<PAGE>
As filed with the Securities and Exchange Commission on June 15, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ElderTrust
-------------------------------------------------------------------
(Exact name of registrant as specified in its declaration of trust)
Maryland
-------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
23-2932973
-------------------------------------------------------------------
(I.R.S. employer identification no.)
101 East State Street, Suite 100, Kennett Square, PA 19348
-------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
1999 Share Option and Incentive Plan
-------------------------------------------------------------------
(Full title of the plan)
Edward B. Romanov, Jr.
President and Chief Executive Officer
ElderTrust
101 East State Street, Suite 100, Kennett Square, PA 19348
-------------------------------------------------------------------
(Name and address of agent for service)
(610) 925-4200
-------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copy to:
George P. Barsness, Esq.
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------- ------------------- -------------------------- ------------------------- --------------------
<S> <C> <C> <C> <C>
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per share aggregate offering price registration fee
- ----------------------------- ------------------- -------------------------- ------------------------- --------------------
Common shares of beneficial
interest, 350,000 $9.3125 (1) $3,259,375(1) $906.11
par value $.01 per share
- ----------------------------- ------------------- -------------------------- ------------------------- --------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h) under the Securities Act of 1933,
as amended, as of June 10, 1999 solely for the purpose of calculating the
registration fee.
Exhibit Index is on page 9
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the "Commission") either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
ElderTrust (the "Registrant") hereby incorporates by reference into
this registration statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(b) The Registrant's Form 10-Q for the quarter ended March 31,
1999;
(c) The description of the Registrant's common shares of
beneficial interest, par value $.01 per share (the "Common
Shares"), contained in the Registrant's Form 8-A12B filed with
the Commission on January 20, 1998; and
(d) All documents filed by the Registrant subsequent to the date
hereof pursuant to Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities
remaining unsold.
Item 4. Description of Securities.
Not applicable (the common shares are registered under Section 12 of
the Exchange Act).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
-2-
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company's officers and trustees are indemnified under Maryland and
Delaware law, the Declaration of Trust and Bylaws of the Company and the
Partnership Agreement of the ElderTrust Operating Limited Partnership (the
"Operating Partnership") against certain liabilities. The Declaration of Trust
of the Company requires it to indemnify its trustees and officers to the fullest
extent permitted from time to time under Maryland law.
The Declaration of Trust of the Company authorizes it, 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
(a) any present or former trustee or officer or (b) any individual who, while a
trustee of the Company and at the request of the Company, 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 from and against any claim or liability to which such person
may become subject or which such person may incur by reason of his or her status
as a present or former trustee or officer of the Company. The Bylaws of the
Company obligate it, to the maximum extent permitted by Maryland law, to
indemnify and to pay or reimburse reasonable expenses in advance of final
disposition of a proceeding to (a) any present or former trustee or officer who
is made party to the proceeding by reason of his service in that capacity or (b)
any individual who, while a trustee or officer of the Company and at the request
of the Company, serves or has served another real estate investment trust,
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise as a trustee, director, officer or partner of such real estate
investment trust, corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise and who is made a party to the proceeding by
reason of his service in that capacity, against any claim or liability to which
he may become subject by reason of such status. The Declaration of Trust and
Bylaws also permit the Company to indemnify and advance expenses to any person
who served as a predecessor of the Company in any of the capacities described
above and to any employee or agent of the Company or a predecessor of the
Company. The Bylaws require the Company to indemnify a trustee or officer who
has been successful, on the merits or otherwise, in the defense of any
proceeding to which he is made a party by reason of his service in that
capacity.
Maryland Law permits a Maryland real estate investment trust to
indemnify and advance expenses to its trustees, officers, employees and agents
to the same extent as permitted by the Maryland General Corporation Law ("MGCL")
for directors and officers of Maryland corporations. The MGCL permits a
corporation to indemnify its present and former directors and officers, among
others, 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 their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, under the MGCL, a Maryland corporation may not indemnify for
an adverse judgment in a suit by or in the right of the corporation. In
accordance with the MGCL, the Bylaws of the Company require it, as a condition
to advancing expenses, to obtain (a) a written affirmation by the trustee or
officer of his good faith belief that he has met the standard of conduct
necessary for indemnification by the Company as authorized by the Bylaws and (b)
a written statement by or on his behalf to repay the amount paid or reimbursed
by the Company if it shall ultimately be determined that the standard of conduct
was not met.
-3-
<PAGE>
The Agreement of Limited Partnership of the Operating Partnership also
provides for indemnification of the Registrant and its officers and trustees to
the same extent that indemnification is provided to officers and trustees of the
Registrant in its Declaration of Trust, and limits the liability of the
Registrant and its officers and trustees to the Operating Partnership and its
respective partners to the same extent that the liability of the officers and
trustees of the Registrant to the Registrant and its shareholders is limited
under the Registrant's Declaration of Trust.
The Registrant has entered into indemnification agreements with each of
its trustees and officers. The indemnification agreements require, among other
things, that the Company indemnify its trustees and officers to the fullest
extent permitted by law and advance to its trustees and officers all related
expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted.
The Registrant also maintains director and officer liability insurance.
* * * * *
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 Securities Act of
1933, as amended and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of the expenses incurred or paid by a trustee, officer or controlling
person of the Registrant of 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 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
-4-
<PAGE>
Item 8. Exhibits.
Exhibit
Number Description
5 Opinion of Hogan & Hartson L.L.P. regarding the
legality of the shares being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Hogan & Hartson L.L.P.
(See Exhibit 5)
Item 9. Undertakings.
(a) The undersigned 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;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
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.
(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.
-5-
<PAGE>
(b) The undersigned Registrant hereby undertakes 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.
(c) The undertaking concerning indemnification is set forth under
the response to Item 6.
-6-
<PAGE>
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-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Kennett Square, Pennsylvania on this 15th day of June, 1999.
ELDERTRUST
By: /s/ Edward B. Romanov, Jr.
----------------------------------------
Edward B. Romanov, Jr.
President and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Edward B. Romanov, Jr. President June 15, 1999
- -------------------------- and Chief Executive Officer
Edward B. Romanov, Jr. (Principal Executive Officer)
/s/ D. Lee McCreary, Jr. Senior Vice President, June 15, 1999
- --------------------------------- Chief Financial Officer,
D. Lee McCreary, Jr. Treasurer and Secretary
(Principal Financial and
Accounting Officer)
/s/ Michael R. Walker Chairman of the Board June 15, 1999
- --------------------------------- of Trustees
Michael R. Walker
</TABLE>
-7-
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Kent P. Dauten Trustee June 15, 1999
- ---------------------------------
Kent P. Dauten
/s/ Rodman W. Moorhead, III Trustee June 15, 1999
- ---------------------------------
Rodman W. Moorhead, III
/s/ Timothy T. Weglicki Trustee June 15, 1999
- ---------------------------------
Timothy T. Weglicki
</TABLE>
-8-
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description Page
- ------ ----------- ----
5 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the shares being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of Hogan & Hartson L.L.P.
(See Exhibit 5)
-9-
<PAGE>
Exhibit 5
[Letterhead of Hogan & Hartson L.L.P.]
June 15, 1999
Board of Trustees
ElderTrust
101 East State Street
Suite 100
Kennett Square, PA 19348
Ladies and Gentlemen:
We are acting as counsel to ElderTrust, a Maryland real estate
investment trust (the "Company"), in connection with its registration statement
on Form S-8 (the "Registration Statement") filed with the Securities and
Exchange Commission relating to up to 350,000 shares of the Company's common
shares of beneficial interest, par value $.01 per share (the "Shares"), issuable
in connection with the Company's 1999 Share Option and Incentive Plan (the "1999
Plan"). This opinion letter is furnished to you at your request to enable you to
fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss.
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies
of the following documents:
1. An executed copy of the Registration Statement.
2. The Declaration of Trust of the Company, as certified
by the Secretary of the Company on the date hereof as
being complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the
Secretary of the Company on the date hereof as being
complete, accurate and in effect.
4. Resolutions of the Board of Trustees and shareholders
of the Company adopted at meetings held on April 15,
1999 and May 20, 1999, respectively, as certified by
the Secretary of the Company on the date hereof as
being complete, accurate and in effect, approving and
adopting the 1999 Plan.
<PAGE>
Board of Trustees
ElderTrust
June 15, 1999
Page 2
In our examination of the aforesaid documents, we have assumed
the genuineness of all signatures, the legal capacity of all natural persons,
the accuracy and completeness of all documents submitted to us, the authenticity
of all original documents and the conformity to authentic original documents of
all documents submitted to us as copies (including telecopies). We also have
assumed that the Shares will not be issued in violation of the ownership limit
contained in the Company's Declaration of Trust. This opinion letter is given,
and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on
applicable provisions of Maryland law. We express no opinion herein as to any
other laws, statutes, ordinances, rules or regulations or as to compliance with
the securities (or "blue sky") laws.
Based upon, subject to and limited by the foregoing, we are of
the opinion that, when issued in accordance with the terms of the 1999 Plan, the
Shares will be validly issued, fully paid and nonassessable.
This opinion letter has been prepared for your use in
connection with the Registration Statement and speaks as of the date hereof. We
assume no obligation to advise you of any changes in the foregoing subsequent to
the delivery of this opinion letter.
We hereby consent to the filing of this opinion letter as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are an "expert" within the meaning of the Securities Act
of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
----------------------------------
HOGAN & HARTSON L.L.P.
<PAGE>
Exhibit 23.1
[Letterhead of KPMG LLP]
Accountants Consent
The Board of Trustees
ElderTrust:
We consent to the incorporation by reference herein of our report dated February
26, 1999, on the consolidated financial statements and financial statement
schedules of ElderTrust and subsidiaries as of December 31, 1998 and for the
period from January 30, 1998 to December 31, 1998.
/s/ KPMG LLP
Washington, D.C.
June 3, 1999
