As filed with the Securities and Exchange Commission on May 7, 2002
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________
ELDERTRUST
(Exact name of registrant as specified in its charter)
Maryland 23-2932973
(State or other jurisdiction of (I.R.S. employer identification
incorporation or organization) no.)
101 East State Street, Suite 100
Kennett Square, PA 19348
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
D. Lee McCreary, Jr.
President, Chief Executive Officer,
Chief Financial Officer,
Treasurer and Secretary
ElderTrust
101 East State Street, Suite 100
Kennett Square, PA 19348
(610) 925-4200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
___________
Copies to:
J. Warren Gorrell, Jr., Esq.
George P. Barsness, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
Approximate date of commencement of proposed sale of the securities
to the public: From time to time after this registration statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. ___
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following
box. _X_
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. ___
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. ___
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. ___
______________
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Class of Offering Aggregate Amount of
Securities Being Amount to be Price Per Offering Registration
Registered Registered Common Share(1) Price(1) Fee(1)
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Common shares of
beneficial
interest, $.01
par value per
share 130,349 $8.205 $1,069,513.55 $98.40
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(1) Determined in accordance with Rule 457(c) under the Securities Act
of 1933 based on the average of the high and low reported sales prices
on the New York Stock Exchange on May 3, 2002.
The Registrant hereby amends the Registration Statement on such date
or dates as may be necessary to delay the effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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RED HERRING:
The information in this prospectus is not complete and may be changed.
The selling shareholders identified herein may not sell these securities
until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these securities in
any state where the offer or sale is not permitted.
Subject to Completion, dated May 7, 2002
Prospectus
130,349 Shares
ELDERTRUST
COMMON SHARES OF BENEFICIAL INTEREST
___________
The persons and entities listed in this prospectus, whom we refer to
as the "selling shareholders," may use this prospectus to offer and sell
up to 130,349 of our common shares of beneficial interest from time to
time. We are registering these shares for offer and sale as required
under the terms of a registration rights agreement between the selling
shareholders and us. Our registration of the offered shares does not
mean that any of the selling shareholders will offer or sell any of the
shares. We will receive no proceeds of any sales of the offered shares
by the selling shareholders, but we will incur expenses in connection
with the offering.
The selling shareholders may sell the offered shares in public or
private transactions, on or off the New York Stock Exchange, at prevailing
market prices or at privately negotiated prices. The selling shareholders
may sell the offered shares directly or through agents or broker-dealers
acting as principal or agent, or in a distribution by underwriters.
Our common shares are listed on the New York Stock Exchange under
the trading symbol "ETT."
Investing in the offered shares involves risks. You should
carefully read the risk factors described in our 2001 Annual Report on
Form 10-K filed on March 20, 2002, which is incorporated by reference
in this prospectus.
___________
You should read this prospectus, the documents that are incorporated
by reference in this prospectus and any prospectus supplement carefully
before you decide to invest. You should not assume that the information
in this prospectus is accurate as of any date other than the date on the
front of this document.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this prospectus is _________ ___, 2002
ABOUT ELDERTRUST
We are a self-managed and self-administered real estate investment
trust that invests principally in senior housing and other healthcare
facilities, primarily skilled nursing facilities, assisted and
independent living facilities and medical and other office buildings.
We were formed in the State of Maryland on September 23, 1997 and began
operations upon completion of our initial public offering on January
30, 1998.
We conduct all of our operations through ElderTrust Operating
Limited Partnership, which we refer to as "ET Partnership." We are
the sole general partner of ET Partnership. At December 31, 2001,
we owned a 94.9% interest in ET Partnership. At that date, ET
Partnership's consolidated assets consisted primarily of a diversified
portfolio of 23 healthcare properties.
Genesis Healthcare Ventures, Inc., which recently emerged from
bankruptcy, is our principal tenant.
Our principal executive offices are located at 101 East State
Street, Suite 100, Kennett Square, PA 19348, and our telephone number
is (610) 925-4200.
RISK FACTORS
See our 2001 Annual Report on Form 10-K filed on March 20, 2002,
for a discussion of material risks associated with an investment in
our company.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3
that we filed with the SEC under the Securities Act of 1933. This
prospectus and any accompanying prospectus supplement do not contain
all of the information included in the registration statement. For
further information, we refer you to the registration statement,
including its exhibits. Statements contained in this prospectus and
any accompanying prospectus supplement about the provisions or
contents of any agreement or other document are not necessarily
complete. If the SEC's rules and regulations require that an agreement
or document be filed as an exhibit to the registration statement,
please see the agreement or document for a complete description of
these matters. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date
other than the date on the front of each document.
This prospectus provides you with a general description of the
offered shares. Each time a selling shareholder sells any of the
offered shares, the selling shareholder will provide you with this
prospectus and a prospectus supplement, if applicable, that will
contain specific information about the terms of the offering. The
prospectus supplement also may add, update or change any information
contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information"
below.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information
with the SEC. You may read and copy materials that we have filed with the
SEC, including the registration statement, at the following location:
Public Reference Room
450 Fifth Street, N.W.
Room 1024
Washington, D.C. 20549
You may obtain information on the operation of the SEC's Public
Reference Room by calling the SEC at 1-800-SEC-0330.
The SEC also maintains an Internet web site that contains reports,
proxy statements and other information regarding issuers, including us,
who file electronically with the SEC. The address of that site is
http://www.sec.gov. Reports, proxy statements and other information
concerning us may also be inspected at the offices of the New York
Stock Exchange, which are located at 20 Broad Street, New York,
New York 10005.
The SEC allows us to "incorporate by reference" the information we
file with it, which means that we can disclose important information to
you by referring you to another document filed separately with the SEC.
The information incorporated by reference is considered to be part of
this prospectus, and information we file later with the SEC will
automatically update and supersede this information. We incorporate
by reference the filings listed below, which we have previously filed
with the SEC, and any future filings made with the SEC prior to the
termination of this offering under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934. All of these filings, which
contain important information about us, are considered a part of
this prospectus.
ElderTrust SEC Filings (File No. 1-13807):
2001 Annual Report on Form 10-K Filed on March 20, 2002
Current Report on Form 8-K Filed on February 26, 2002
Registration Statements on Form 8-A Filed on January 20, 1998,
setting forth the
description of our common
shares, including any
amendments or reports filed
for the purpose of updating
such description.
Filed on October 20, 1999,
setting forth the description
of our shareholder rights
plan, including any
amendments or reports filed
for the purpose of updating
such description.
3
You can obtain copies of any of the documents incorporated by
reference in this document from us or through the SEC or the SEC's
website, described above. Documents incorporated by reference are
available from us, without charge, excluding all exhibits unless
specifically incorporated by reference as an exhibit to this document
or any document incorporated by reference in this document. You may
obtain documents incorporated by reference in this document by writing
us at the following address or calling us at the telephone number
listed below:
ELDERTRUST
101 East State Street, Suite 100
Kennett Square, PA 19348
Attention: Secretary
(610) 925-4200
A WARNING ABOUT FORWARD-LOOKING STATEMENTS
We make forward-looking statements in this document, and in
documents that are incorporated by reference in this document,
that are subject to risks and uncertainties. Forward-looking statements
include information concerning our possible or assumed future results
of operation. Also, statements including words such as "believes,"
"expects," "anticipates," "intends," "plans," "estimates," or similar
expressions are forward-looking statements. Many factors, some of
which are discussed elsewhere in this document and in the documents
incorporated by reference in this document, could affect our future
financial results and could cause actual results to differ materially
from those expressed in forward-looking statements contained or
incorporated by reference in this document. Important factors that
could cause actual results to differ materially from current
expectations reflected in the forward-looking statements in
this document include, among others, the risk factors discussed in
the filings made by us with the SEC that are identified above and
incorporated in this document by reference.
Forward-looking statements are not guarantees of performance. They
involve risks, uncertainties and assumptions. Our future results and
shareholder values may differ materially from those expressed in these
forward-looking statements. Many of the factors that will determine
these results and values are beyond our ability to control or predict.
For those statements, we claim the protection of the safe harbor for
forward-looking statements contained in the Private Securities
Litigation Reform Act of 1995.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common shares
covered by this prospectus.
THE SELLING SHAREHOLDERS
The following table provides the names of and the number and
percentage of common shares beneficially owned by each selling shareholder
at April 30, 2002, the number of common shares issued or that may be
issued to each selling shareholder upon redemption of ET Partnership
units of limited partnership interest and subsequently sold by the
selling shareholder under this prospectus and the number and
percentage of common shares to be beneficially owned be each selling
shareholder after completion of the offering. The number of shares
beneficially owned before the offering represents the number of common
shares the selling shareholder holds plus the number of common shares
issued or issuable upon redemption of ET Partnership units held by the
selling shareholder plus the number of options to purchase common shares
which are exercisable within 60 days of April 30, 2002. The post-
4
offering figures assume each selling shareholder redeems all the
ET Partnership units owned by the selling shareholder for common
shares and sells the common shares under this prospectus. The term
"selling shareholder" also includes transferees, assignees,
distributees or pledgees of any person or entity identified as a
selling shareholder.
The shares of common stock offered by this prospectus may be
offered from time to time by the selling shareholders named below
and other selling shareholders named in supplements to this
prospectus:
Beneficially
Owned Before Beneficially Owned
the Offering After the Offering
------------ -------------------
Number
of Shares Number Percentage
Name of Selling Number of Offered of of Shares
Shareholder Shares Hereby(1) Shares Outstanding
- ------------------------ ------------ --------- --------------------
D. Lee McCreary, Jr.(2) 413,761 12,000 401,761 5.3
David Carl Almquist 6,562 6,562 0 *
Thomas W. Balderston 18,330 8,330 10,000 *
David C. Barr 17,047 15,750 1,297 *
Richard P. Blinn 6,562 6,562 0 *
Cynthia Doyle 11,530 9,030 2,500 *
George V. Hager, Jr. 28,162 13,125 15,037 *
Richard R. Howard 20,965 20,965 0 *
Mary Ann Miller 7,102 6,562 540 *
Richard Pell, Jr. 6,562 6,562 0 *
Robert Arthur Reitz 7,102 6,562 540 *
Marc Rubinger 7,102 6,562 540 *
Debra Soutar 7,452 6,562 890 *
Joseph A. Williamson 5,215 5,215 0 *
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Total 130,349
========
_____________________
* Less than 1%.
(1) Represents the number of common shares that we have issued or may
issue to the selling shareholder on redemption of ET Partnership
units owned by the selling shareholder.
(2) Mr. McCreary is our President, Chief Executive Officer, Chief
Financial Officer, Treasurer and Secretary. He also is one of our
trustees. The shares reported as beneficially owned by Mr. McCreary
in the above table include 205,094 common shares, 12,000 ET
Partnership units and options to purchase 196,667 common shares
which are presently exercisable or exercisable within 60 days of
April 30, 2002.
5
PLAN OF DISTRIBUTION
Any of the selling shareholders may from time to time sell all or
a portion of the offered shares in one or more transactions on the New
York Stock Exchange, in the over-the-counter market, on any other
national securities exchange on which our common shares are listed or
traded, in negotiated transactions, in underwritten transactions or
otherwise, at prices then prevailing or related to the then current
market price or at negotiated prices. The offering price of the
offered shares will be determined by the selling shareholders and,
at the time of such determination, may be higher or lower than the
market price of our common shares on the New York Stock Exchange.
The offered shares may be sold directly or through broker-dealers
acting as principal or agent, or pursuant to a distribution by one or
more underwriters on a firm commitment or best-efforts basis. The
methods by which the offered shares may be sold include:
* block trades in which a broker-dealer attempts to sell the
offered shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
* purchases by a broker-dealer as principal and resale by the
broker-dealer for its account pursuant to this prospectus;
* ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
* exchange distributions in accordance with the rules of the New
York Stock Exchange;
* privately negotiated transactions; and
* underwritten transactions.
In connection with any underwritten offering, underwriters or agents
may receive compensation in the form of discounts, concessions or
commissions from a selling shareholder or from purchasers of the offered
shares for whom they may act as agents, and underwriters may sell the
offered shares to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they
may act as agents. When a selling shareholder elects to make a
particular offer of shares covered by this prospectus, this prospectus
and a prospectus supplement, if required, will be distributed which will
identify any underwriters, dealers or agents and any discounts,
commissions and other terms constituting compensation from such selling
shareholder and any other required information. We have, however, no
obligation to retain any underwriter to effect the sale of the shares
covered by this prospectus.
The selling shareholders, and any underwriters, dealers or agents
participating in a distribution of the offered shares, may be deemed to
be "underwriters" within the meaning of the Securities Act and any profit
on the sale of the offered shares by the selling shareholders, and any
commissions received by any such dealers or agents, may be deemed to be
underwriting commissions under the Securities Act.
To comply with any applicable state securities laws, the offered
shares may be sold only through registered or licensed brokers or
dealers unless an exemption from registration or qualification is
satisfied.
We have agreed to pay all costs and expenses incurred in connection
with the registration under the Securities Act of the offered shares,
including, without limitation, all registration and filing fees,
printing expenses and fees and disbursements of our counsel and
accountants. The selling shareholders will pay any brokerage fees
and commissions, fees and disbursements of their own legal counsel and
stock transfer and other taxes attributable to the sale of the offered
shares.
6
Under agreements that may be entered into by us and any
underwriters, dealers and agents who participate in the distribution of
the offered shares, and their respective directors, trustees, officers,
partners, agents, employees and affiliates, may be entitled to
indemnification by us against specified liabilities, including
liabilities, losses, claims, damages and expenses and any actions or
proceedings arising under the securities laws in connection with this
offering, or to contribution with respect to payments which such
underwriters, dealers or agents may be required to make in respect
thereof. We have agreed to so indemnify each of the selling
shareholders and each person who controls (within the meaning of the
Securities Act or the Exchange Act) the selling shareholders. Each
of the selling shareholders has agreed to indemnify us, each person
who controls us (within the meaning of the Securities Act or the
Exchange Act) and each of our trustees and officers, against
specified losses, claims, damages, liabilities and expenses and
any actions or proceedings arising under the securities laws
in connection with this offering with respect to written
information furnished to us by such selling shareholders.
EXPERTS
The consolidated financial statements and related financial
statement schedules of ElderTrust and subsidiaries as of December 31,
2001 and 2000, and for each of the years in the three-year period
ended December 31, 2001 and the financial statements of ET Sub-
Meridian Limited Partnership L.L.P. as of December 31, 2001 and 2000,
and for each of the years in the three-year period ended December
31, 2001 and the related financial statement schedule, have been
incorporated by reference in the registration statement in reliance
upon the reports of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm
as experts in accounting and auditing.
LEGAL MATTERS
In connection with this prospectus, Hogan & Hartson L.L.P.,
Washington, D.C., has provided its opinion as to the validity of the
issuance of the common shares offered by this prospectus and as to our
qualification as a REIT for federal income tax purposes.
7
================================== ==================================
You should only rely on the
information incorporated by
reference or provided in this
prospectus. We have authorized no
one to provide you with different
information. We are not making an
offer of the common shares in any
state where the offer is not
permitted. You should not assume
that the information in this
prospectus is accurate as of
any date other than the date on 130,349 Shares
the front of this document.
ELDERTRUST
Common Shares of Beneficial
Interest
Table of Contents
Page
----
About ElderTrust 2
Risk Factors 2
About this Prospectus 2 PROSPECTUS
Where You Can Find More
Information 3
A Warning About Forward-
Looking Statement 4
Use of Proceeds 4
The Selling Shareholders 4
Plan of Distribution 6
Experts 7 _______ __, 2002
Legal Matters 7
================================== ==================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth those expenses for distribution to
be incurred in connection with the issuance and distribution of the
securities being registered.
SEC Registration Fee $ 98.40
Printing and Duplicating Expenses 500.00
Legal Fees and Expenses 15,000.00
Accounting Fees and Expenses 5,000.00
Miscellaneous 1,000.00
------------
Total $ 21,598.40
------------
Item 15. Indemnification of Trustees and Officers
The Maryland REIT Law permits a Maryland REIT to include in its
declaration of trust a provision limiting the liability of its trustees
and officers to the REIT and its shareholders for money damages, except
with respect to liability resulting from (1) an actual receipt of an
improper benefit or profit in money, property or services, to the extent
of the amount of the benefit or profit in money, property or services
actually received or (2) a judgment or other final adjudication adverse
to the trustee or officer entered in a proceeding based on a finding
that the trustee's or officer's action or failure to act was material
to the cause of action adjudicated in the proceeding and was the result
of active and deliberate dishonesty. The ElderTrust declaration of trust
contains such a provision.
The Maryland REIT Law permits a Maryland REIT to indemnify and
advance expenses to its trustees and officers to the same extent as
permitted for directors and officers of a Maryland corporation under
the Maryland General Corporation Law. In the case of directors and
officers of a Maryland corporation, the Maryland General Corporation
Law permits a Maryland corporation to indemnify present and former
directors and officers (including any such person who, while serving
in that capacity, is or was serving at the request of the corporation
as a director, officer, partner, trustee, employee or agent of a foreign
or domestic corporation, partnership, joint venture, trust, other
enterprise or employee benefit plan) against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by
reason of such service, unless it is established that either: (1) the
act or omission of the director or officer was material to the matter
giving rise to the proceeding and either (x) was committed in bad
faith or (y) was the result of active and deliberate dishonesty;
(2) the director or officer actually received an improper personal
benefit in money, property or services; or (3) in the case of any
criminal proceeding, the director or officer had reasonable cause
to believe that the act or omission was unlawful.
Under the Maryland General Corporation Law, a Maryland corporation
may not, however, indemnify a director or advance expenses for a
proceeding brought by the direct or against the corporation, except
(x) for a proceeding to enforce indemnification under the Maryland
General Corporation Law or (y) if the charter or bylaws of the
corporation, a resolution of the board of directors of the corporation
or an agreement approved by the board of directors of the corporation
to which the corporation is a party expressly so provide. Also, in the
case of a proceeding by or in the right of the corporation, the
II-1
corporation may not indemnify in the case of a judgment of liability
on the basis that a personal benefit was improperly received. In
either situation described in this paragraph, a court may order
indemnification only for expenses.
As a condition to advancing expenses, a Maryland corporation must
first receive (1) a written affirmation by the director or officer of
his or her good faith belief that he or she has met the standard of
conduct necessary for indemnification and (2) a written undertaking
by the director or officer or on his or her behalf to repay the
amount paid or reimbursed by the Maryland corporation if it shall
ultimately be determined that the standard of conduct was not met.
Under the Maryland General Corporation Law, a determination of
entitlement to indemnification must by made by (1) the board of
directors by a majority vote of a quorum consisting of directors not,
at the time, parties to the proceeding, or, if such a quorum cannot
be obtained, then by a majority vote of a committee of the board
consisting solely of two or more directors not, at the time,
parties to such proceeding and who were fully designated to act
in the matter by a majority vote of the full board in which the
designated directors who are parties may participate; (2) special
legal counsel selected by the board for a committee of the board by
vote, or, if the requisite quorum of the full board cannot be
obtained and the committee cannot be established, by a majority
vote of the full board in which directors who are parties may
participate; or (3) shareholders.
The ElderTrust declaration of trust provides that ElderTrust has
the power, to the maximum extent permitted by Maryland law, to obligate
itself to indemnify, and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to, (1) any individual
who is a present or former trustee or officer of ElderTrust or (2)
any individual who, while a trustee or officer of ElderTrust and at
the request of ElderTrust, serves or has served as a director, officer,
partner, trustee, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or any other enterprise and
who is made a party to the proceeding by reason of his or her status as
a present or former trustee or officer of ElderTrust. The ElderTrust
bylaws provide that, to the maximum extent permitted by Maryland
law, ElderTrust shall indemnify such persons. In addition, under the
ElderTrust bylaws, ElderTrust is obligated to, without requiring a
preliminary determination of the ultimate entitlement to indemnification,
pay or reimburse, in advance of final disposition of a proceeding,
reasonable expenses incurred by such persons under circumstances
permitted by Maryland law. Under the ElderTrust declaration of trust
and bylaws, ElderTrust also may, with the approval of its board of
trustees, provide indemnification or payment or reimbursement of
expenses to any present or former trustee or officer who served a
predecessor of ElderTrust.
ElderTrust has entered into indemnification agreements with certain
of its trustees and executive officers to provide them with
indemnification to the full extent permitted by Maryland law and the
declaration of trust and bylaws of ElderTrust.
ElderTrust has obtained an insurance policy to provide liability
coverage for its trustees and officers.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to trustees, officers or persons
controlling ElderTrust under the foregoing provisions, ElderTrust
has been informed that in the opinion of the SEC such indemnification
is against public policy as expressed in the Act and is therefore
unenforceable.
II-2
Item 16. Exhibits
Exhibit No. Exhibit Description
- ------------- --------------------------------------------------------
5.1* Opinion of Hogan & Hartson L.L.P. regarding the legality
of common shares being registered
8.1* Opinion of Hogan & Hartson L.L.P. regarding the
qualification of ElderTrust as a real estate investment
trust for federal income tax purposes
23.1 Consent of KPMG LLP
23.2* Consent of Hogan & Hartson L.L.P. (included in Exhibit
5.1)
23.3* Consent of Hogan & Hartson L.L.P. (included in Exhibit
8.1)
24.1 Power of attorney (included in signature page)
* To be filed by amendment.
Item 17. Undertakings
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to rule
424(b) if, in the aggregate, such changes in volume and price
represent no more than a 20% change in the maximum aggregated
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that subparagraphs (i) and (ii) above shall not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic reports filed
with or furnished to the Commission by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-3
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to trustees, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a trustee, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is
asserted by such trustee, officer or controlling person in connection
with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Kennett Square,
Commonwealth of Pennsylvania on May 7, 2002.
ELDERTRUST
BY: /s/ D. Lee McCreary, Jr.
---------------------------
D. Lee McCreary, Jr.
President, Chief Executive
Officer, Chief Financial
Officer, Treasurer and
Secretary
We, the undersigned trustees of ElderTrust, do hereby constitute
and appoint D. Lee McCreary, Jr., our true and lawful attorney-in-fact
and agent, to do any and all acts and things in our names and our behalf
in our capacities as trustees and to execute any and all instruments for
us and in our names in the capacities indicated below, which said
attorney and agent may deem necessary or advisable to enable ElderTrust
to comply with the Securities Act of 1933 and any rules, regulations and
requirements of the Securities and Exchange Commission, in connection
with this registration statement, or any registration statement for this
offering that is to be effective upon filing pursuant to Rule 462(b)
under the Securities Act of 1933, including specifically, but without
limitation, any and all amendments, including post-effective amendments,
hereto; and we hereby ratify and confirm all that said attorney and agent
shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated as of the 7th day of May, 2002.
Signature Title
- --------------------------- ------------------------------------------
/s/ D. Lee McCreary, Jr. President, Chief Executive Officer, Chief
- --------------------------- Financial Officer, D. Lee McCreary, Jr.
D. Lee McCreary, Jr. Treasurer, Secretary and Trustee (principal
executive, financial and accounting officer)
/s/ Michael R. Walker Chairman of the Board of Trustees
- ---------------------------
Michael R. Walker
/s/ John G. Foos Trustee
- ---------------------------
John G. Foos
/s/ Rodman W. Moorhead, III Trustee
- ---------------------------
Rodman W. Moorhead, III
/s/ Harold L. Zuber, Jr. Trustee
- ---------------------------
Harold L. Zuber, Jr.
II-5
EXHIBIT INDEX
Exhibit No. Exhibit Description Page No.
- --------------- -------------------------------------------- --------
5.1* Opinion of Hogan & Hartson L.L.P. regarding
the legality of common shares being
registered
8.1* Opinion of Hogan & Hartson L.L.P. regarding
the qualification of ElderTrust as a real
estate investment trust for federal income
tax purposes
23.1 Consent of KPMG LLP
23.2* Consent of Hogan & Hartson L.L.P. (included
in Exhibit 5.1)
23.4* Consent of Hogan & Hartson L.L.P. (included
in Exhibit 8.1)
24.1 Power of attorney (included in signature page)
* To be filed by amendment.
Exhibit 23.1
Independent Auditors' Consent
-----------------------------
The Board of Trustees
ElderTrust:
We consent to the incorporation by reference in the registration statement
on Form S-3 of ElderTrust of our reports dated January 16, 2002, with
respect to the consolidated balance sheets of ElderTrust as of December
31, 2001 and 2000, and the related consolidated statements of operations,
shareholders' equity and cash flows for each of the years in the three-
year period ended December 31, 2001, and the related financial statement
schedules, and with respect to the balance sheets of ET Sub-Meridian
Limited Partnership, L.L.P. as of December 31, 2001 and 2000, and the
related statements of operations, partners' capital (deficit), and cash
flows for each of the years in the three-year period ended December 31,
2001 and the related financial statements schedule which reports appear
in the December 31, 2001, annual report on Form 10-K of ElderTrust and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
McLean, VA
May 7, 2002