As filed with the Securities and Exchange Commission on April 2, 1998
Registration Nos. 333-40055 and 333-40055-1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
JOINT REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
<TABLE>
<CAPTION>
MEDITRUST CORPORATION MEDITRUST OPERATING COMPANY
<S> <C>
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
Delaware Delaware
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation or organization)
95-3520818 95-3419438
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
197 First Avenue, Suite 300 197 First Avenue, Suite 100
Needham Heights, Massachusetts 02194 Needham Heights, Massachusetts 02194
(781) 433-6000 (781) 453-8062
(Address, including zip code, and telephone number, (Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices) including area code, of registrant's principal executive offices)
--------------------------------- ---------------------------------
DAVID F. BENSON ABRAHAM D. GOSMAN
President Chairman and Chief Executive Officer
MEDITRUST CORPORATION MEDITRUST OPERATING COMPANY
197 First Avenue, Suite 300 197 First Avenue, Suite 100
Needham Heights, Massachusetts 02194 Needham Heights, Massachusetts 02194
(781) 433-6000 (781) 453-8062
(Name, address, including zip code, and telephone number, (Name, address, including zip code, and telephone number,
including area code, of agent for service) including area code, of agent for service)
</TABLE>
Copies of communications to:
MICHAEL J. BOHNEN, ESQUIRE
NUTTER, McCLENNEN & FISH, LLP
One International Place
Boston, MA 02110-2699
(617) 439-2000
Approximate date of commencement of proposed sale to public: From time to time
after the Joint 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, 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, 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. [ ]
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
maximum maximum Amount of
Title of each class of securities Amount to offering price aggregate registration
to be registered be registered per unit offering price (1) fee (2)
- --------------------------------------------------------- ----------------- ---------------- -------------------- -------------
<S> <C> <C> <C> <C>
Meditrust Corporation Common Stock,
Preferred Stock, Depositary Shares representing
fractional interests in shares of Preferred Stock,
Series Common Stock, Debt Securities and
Warrants for Common Stock and Debt Securities
(3)(4)
which may or may not be paired with, as applicable,
Meditrust Operating Company Common Stock,
Preferred Stock, Depositary Shares representing
fractional interests in shares of Preferred Stock,
and Series Common Stock $2,000,000,000 (5) $2,000,000,000
Meditrust Operating Company Common Stock,
Preferred Stock, Depositary Shares representing
fractional interests in shares of Preferred Stock,
Series Common Stock, Debt Securities and
Warrants for Common Stock and Debt
Securities (3)(4)
which may or may not be paired with, as applicable,
Meditrust Corporation Common Stock,
Preferred Stock, Depositary Shares representing
fractional interests in shares of Preferred Stock,
and Series Common Stock
</TABLE>
================================================================================
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $2,000,000,000, or
if any Debt Securities are issued with an original issue discount, such
greater amount as shall result in an aggregate offering price of
$2,000,000,000. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder.
(2) Previously paid in connection with the original filing.
(3) There is being registered an indeterminate number of shares of Common Stock
and Preferred Stock and such indeterminate number of Depositary Shares as
may be issued from time to time at indeterminate prices. There is also
being registered an indeterminate number of shares of Common Stock as may
be issued upon conversion of the Preferred Stock, Depositary Shares or
Debt Securities or exercise of the Warrants registered hereby.
(4) There is also being registered hereunder an indeterminate number of Debt
Securities Warrants and Common Stock Warrants representing rights to
purchase Debt Securities and shares of Common Stock, respectively,
registered pursuant to this Registration Statement.
(5) Not applicable pursuant to General Instructions II.D of Form S-3 under the
Securities Act of 1933, as amended.
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
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.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED APRIL 2, 1998
[RED HERRING]
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
[/RED HERRING]
PROSPECTUS
Common Stock, Preferred Stock, Depositary Shares,
Series Common Stock, Debt Securities and/or Securities Warrants
---------------
The Meditrust Companies are comprised of two companies, Meditrust
Corporation (the "REIT" or the "Corporation") and Meditrust Operating Company
(the "Operating Company"), each incorporated under the laws of Delaware
(collectively, the "Companies" and, individually, a "Company"). The REIT is a
real estate investment trust under the Internal Revenue Code of 1986, as
amended. The shares of common stock of the Companies, comprised of common stock
of the REIT ("REIT Common Stock") and common stock of the Operating Company
("Operating Common Stock" and, together with the REIT Common Stock, the "Common
Stock"), are paired and traded as units consisting of one share of each
Company, and are herein sometimes referred to as "Paired Common Stock." Shares
of preferred stock of the Companies, comprised of preferred stock of the REIT
("REIT Preferred Stock") and preferred stock of the Operating Company
("Operating Preferred Stock" and, together with the REIT Preferred Stock, the
"Preferred Stock"), may or may not be paired, but if paired will trade as units
consisting of one share of each Company. Shares of REIT Preferred Stock may or
may not be represented by depositary shares ("REIT Depositary Shares") and
shares of Operating Preferred Stock may or may not be represented by depositary
shares ("Operating Depositary Shares" and, together with the REIT Depositary
Shares, the "Depositary Shares"), and REIT Depositary Shares and Operating
Depositary Shares may or may not be paired, but if paired will trade as units
consisting of one Depositary Share of each Company. Shares of series common
stock, comprised of series common stock of the REIT ("REIT Series Common
Stock") and series common stock of the Operating Company ("Operating Series
Common Stock" and, together with the REIT Series Common Stock, the "Series
Common Stock"), may or may not be paired, but if paired will trade as units
consisting of one share of each Company. The Companies may offer, from time to
time, shares of Paired Common Stock, shares of Preferred Stock (which may or
may not be paired) in one or more series, Depositary Shares (which may or may
not be paired) representing fractional interests in shares of Preferred Stock
(which may or may not be paired), shares of Series Common Stock (which may or
may not be paired) in one or more series, debt securities ("Debt Securities")
which will not be paired in one or more series, warrants to purchase shares of
Paired Common Stock (the "Share Warrants") and warrants to purchase Debt
Securities (the "Debt Securities Warrants" and, together with the Share
Warrants, the "Securities Warrants"). The Common Stock, Preferred Stock,
Depositary Shares, Series Common Stock, Debt Securities and Securities Warrants
are collectively referred to herein as the "Securities." The Securities will
have an aggregate offering price of up to $2,000,000,000 and will be offered in
amounts, at prices and on terms to be determined at the time of offering.
Each of the Companies may offer its Securities separately from the other
Company, or the Companies may offer their respective Securities together. When
issued, the particular Securities (or, in the case of Depositary Shares, the
Preferred Stock represented by such Depositary Shares) will be an equity
interest in, or an obligation of, as the case may be, only the respective
issuing Company, and will not represent an equity interest in or an obligation
of the other Company, even though the Securities of one Company may be paired
with Securities of the other Company.
In the case of shares of Paired Common Stock ("Shares"), the specific
number of Shares and public offering price per Share will be set forth in an
accompanying supplement to this Prospectus (a "Prospectus Supplement"). In the
case of Preferred Stock, the public offering price, dividend rights, dividend
rates, any conversion rights, any voting rights, any rights and terms of
redemption (including any sinking fund provisions), liquidation preferences and
any other specific terms of any series and the designation thereof will be set
forth in an accompanying Prospectus Supplement. In the case of Depositary
Shares, the public offering price and the fraction of a share of Preferred
Stock represented by such Depositary Share will be set forth in an accompanying
Prospectus Supplement. In the case of Series Common Stock, the public offering
price, dividend rights, dividend rates, any conversion rights, any voting
rights, any rights and terms of redemption (including any sinking fund
provisions), any liquidation preferences and any other specific terms of any
series and the designation thereof will be set forth in an accompanying
Prospectus Supplement. In the case of Debt Securities, the specific title, the
aggregate principal amount, the public offering price, the maturity, the rate
and time of payment of any interest, any redemption or sinking fund provisions,
any conversion provisions, any provisions for the subordination of such Debt
Securities to other indebtedness, and any other specific terms, of such Debt
Securities will be set forth in an accompanying Prospectus Supplement. In the
case of Securities Warrants, the duration, public offering price, exercise
price and detachability, if applicable, will be set forth in an accompanying
Prospectus Supplement. The Prospectus Supplement will also disclose whether the
Securities will be listed on a national securities exchange.
The Securities may be sold: (i) directly by the Companies; (ii) through
underwriting syndicates represented by one or more managing underwriters, or by
one or more underwriters without a syndicate; and (iii) through agents
designated from time to time. The names of any underwriters or agents of the
Companies involved in the sale of the Securities in respect of which this
Prospectus is being delivered and any applicable commissions or discounts will
be set forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The net proceeds to the Companies from such sale also will be
set forth in the Prospectus Supplement.
The Shares are traded on the New York Stock Exchange (the "NYSE") under
the symbol "MT". On April 1, 1998, the last reported sale price of the shares
on the NYSE was $30.9375.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
---------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
---------------
The date of this Prospectus is , 1998.
<PAGE>
AVAILABLE INFORMATION
The Companies are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission" or "SEC"). Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at Room 1024 of
the offices of the Commission, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, or at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, New York 10048 and Suite 1400,
Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois 60661.
Copies of such material can be obtained from the principal offices of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C. 20549,
at prescribed rates. The Companies file information electronically with the
Commission, and the Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding registrants
(including the Companies) that file electronically with the Commission. The
address of the Commission's Web site is (http://www.sec.gov). Reports, proxy
materials and other information concerning the Companies can also be inspected
at the offices of the New York Stock Exchange, 20 Broad Street, Room 1102, New
York, New York 10005.
The Companies have filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities
Act"). This Prospectus and any accompanying Prospectus Supplement do not
contain all the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is made to the Registration
Statement, copies of which may be obtained upon payment of a fee prescribed by
the Commission, or may be examined free of charge at the principal office of
the Commission in Washington, D.C.
Statements made in this Prospectus and any accompanying Prospectus
Supplement as to the contents of any contract or other document referred to are
not necessarily complete, and reference is made to the copy of such contract or
other document filed as an exhibit to the Registration Statement, each such
statement being qualified in all respects by such reference.
------------
Certain persons, including any underwriters, participating in the offering
made by any Prospectus Supplement may engage in transactions that stabilize,
maintain or otherwise affect the price of the Securities. Such transactions may
include stabilizing, the purchase of Securities to cover syndicate short
positions and the imposition of penalty bids. For a description of these
activities, see the applicable Prospectus Supplement.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated herein by reference:
The REIT and the Operating Company
1. Annual Report on Form 10-K for the fiscal year ended December 31, 1997;
2. Joint Current Report on Form 8-K, event date January 3, 1998;
3. Joint Current Report on Form 8-K, event date January 3, 1998;
4. Joint Current Report on Form 8-K, event date January 4, 1998;
5. Joint Current Report on Form 8-K, event date January 11, 1998;
6. Joint Current Report on Form 8-K, event date January 11, 1998;
7. Joint Current Report on Form 8-K, event date February 24, 1998;
8. Joint Current Report on Form 8-K, event date February 26, 1998.
9. Joint Current Report on Form 8-K, event date March 16, 1998; and
10. Joint Current Report on Form 8-K, event date March 31, 1998.
All other documents filed by the Companies with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of the offering of the Securities offered
hereby shall be deemed to be incorporated by reference into this Prospectus and
to be a part hereof from the date of filing such documents. Any statement
contained herein, in any Prospectus Supplement or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein, in a Prospectus Supplement or in a subsequently filed
document which also is or is deemed to be incorporated by reference herein, as
the case may be, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
The Companies will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all documents incorporated by reference into this Prospectus
other than exhibits to such documents which are not specifically incorporated
by reference in such documents. Requests for such copies should be directed,
with respect to the REIT, to Michael S. Benjamin, Esq., Senior Vice President,
Secretary and General Counsel, Meditrust Corporation, 197 First Avenue, Suite
300, Needham Heights, Massachusetts 02194, telephone (781) 433-6000; and with
respect to the Operating Company, to Michael J. Bohnen, Secretary, Meditrust
Operating Company, 197 First Avenue, Suite 100, Needham Heights, Massachusetts
02194, telephone (781) 453-8062.
------------
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized. Neither this Prospectus nor any
Prospectus Supplement constitutes an offer to sell or the solicitation of an
offer to buy any securities other than the securities described in this
Prospectus or an offer to sell or the solicitation of an offer to buy such
securities in any jurisdiction where or to any person to whom it is unlawful to
make such an offer or solicitation. Neither the delivery of this Prospectus or
any Prospectus Supplement nor any sale made hereunder or thereunder shall,
under any circumstances, create any implication that there has been no change
in the affairs of the Companies since the date hereof or thereof or that the
information contained or incorporated by reference herein or therein is correct
as of any time subsequent to its date.
3
<PAGE>
RISK FACTORS
In addition to the other information contained or incorporated by
reference in this Prospectus, prospective investors should carefully consider
the following risk factors.
REIT Tax Risks; Paired Share REIT Tax Risks
Dependence on Qualification as a REIT. The Corporation believes that it
operates so as to qualify as a real estate investment trust (a "REIT") for
federal income tax purposes. However, there is no assurance that the
Corporation has satisfied the requirements for REIT qualification in the past
or will qualify as a REIT in the future. Qualification as a REIT involves the
application of highly technical and complex provisions of the Internal Revenue
Code of 1986, as amended (the "Code"), for which there are only limited
judicial or administrative interpretations. The complexity of these provisions
is greater in the case of a paired share REIT such as the Corporation.
Qualification as a REIT also involves the determination of various factual
matters and circumstances not entirely within the Corporation's control. In
addition, the Corporation's ability to qualify as a REIT is dependent upon its
continued exemption from the anti-pairing rules of Section 269B(a)(3) of the
Code, which would ordinarily prevent the Corporation from qualifying as a REIT.
The "grandfathering" rules governing Section 269B generally provide, however,
that Section 269B(a)(3) does not apply to a paired share REIT if the REIT and
its paired operating company were paired on June 30, 1983. On June 30, 1983,
the Corporation (which was then known as Santa Anita Realty Enterprises, Inc.
("Realty")) was paired with the Operating Company (which was then known as
Santa Anita Operating Company ("SAOC," and together with Realty, "Santa
Anita")). There are, however, no judicial or administrative authorities
interpreting this "grandfathering," rule. Moreover, if for any reason the
Corporation failed to qualify as a REIT in 1983, the benefit of the
"grandfathering" rule would not be available to the Corporation, in which case
the Corporation would not qualify as a REIT for any taxable year from and after
1983. Failure of the Corporation to qualify as a REIT would have a material
adverse effect on the Companies and their ability to make distributions to
their shareholders and to pay amounts due on their indebtedness. See "Federal
Income Considerations--REIT Qualification of the Corporation."
On February 2, 1998, the Department of Treasury released an explanation of
the revenue proposals included in the Clinton Administration's fiscal 1999
budget (the "Administration Tax Proposals"). The Administration Tax Proposals,
among other things, include a freeze on the grandfathered status of paired share
REITs such as the Companies. Under this proposal, the Corporation and Operating
Company would be treated as one entity with respect to properties acquired on or
after the date of the first Congressional committee action with respect to such
proposal and with respect to activities or services relating to such properties
that are undertaken or performed by one of the paired entities on or after such
date. The Administration Tax Proposals would prevent the Companies from using
their paired share structure to operate properties acquired on or after the date
of such first Congressional committee action. The Administration Tax Proposals
also would prohibit REITs from holding stock of a corporation possessing more
than 10% of the vote or value of all classes of stock of the corporation. This
proposal would be effective with respect to stock acquired on or after the date
of the first Congressional committee action with respect to the proposal;
provided that the proposal would apply to stock acquired before such effective
date if, on or after such date, the subsidiary corporation engaged in a new
trade or business or acquired substantial new assets.
On March 26, 1998, Representative William Archer, Chairman of the House
Ways and Means Committee, and Senator William V. Roth, Jr., Chairman of the
Senate Finance Committee, introduced identical legislation to limit this
"grandfathering" rule (the "Tax Proposals"). Under the Tax Proposals, the
anti-pairing rules provided in the Code would apply to real property interests
acquired after March 26, 1998 by the Companies, or a subsidiary or partnership
in which a ten percent or greater interest is owned by the Companies
(collectively, the "REIT Group"), unless (1) the real property interests are
acquired pursuant to a written agreement which was binding on March
4
<PAGE>
26, 1998 and at all times thereafter or (2) the acquisition of such real
property interests was described in a public announcement or in a filing with
the SEC on or before March 26, 1998.
Under the Tax Proposals as currently proposed, the properties to be
acquired through the proposed mergers of the Corporation with La Quinta Inns,
Inc. ("La Quinta") and Cobblestone Holdings, Inc. ("Cobblestone") (see "The
Meditrust Companies--Recent Developments") would not be subject to these
anti-pairing rules. However, there can be no assurance that the Tax Proposals
will be adopted in their current form, with a consequence that the properties to
be acquired from La Quinta and Cobblestone or other properties of the Companies
could become subject to the anti-pairing rules of the Code in the future. In
addition, the Tax Proposals also provide that a property held by the Companies
that is not subject to the anti-pairing rules would become subject to such
rules in the event of an improvement placed in service after December 31, 1999
that changes the use of the property and the cost of which is greater than 200
percent of (1) the undepreciated cost of the property (prior to the
improvement) or (2) in the case of property acquired where there is a
substituted basis (e.g., the properties to be acquired from La Quinta and
Cobblestone), the fair market value of the property on the date it was acquired
by the Companies. There is an exception for improvements placed in service
before January 1, 2004 pursuant to a binding contract in effect on December 31,
1999 and at all times thereafter. This proposed restriction on property
improvements would apply to the properties to be acquired from La Quinta and
Cobblestone, as well as all other properties owned by the Companies, and would
limit the ability of the Companies to improve or change the use of those
properties after December 31, 1999.
If adopted in its present form, the restrictions on the activities of a
grandfathered REIT provided in the Tax Proposals may in the future make it
impractical or undesirable for the Companies to continue to maintain their
paired share structure. Restructuring the operations of the Corporation and the
Operating Company to comply with the rules contemplated by the Administration
Tax Proposals or the Tax Proposals could cause the Companies to incur
substantial tax liabilities, to recognize an impairment loss on their goodwill
assets, or otherwise materially adversely affect the Companies and their ability
to make distributions to shareholders and to pay amounts due on their
indebtedness.
In addition, a significant component of the Companies' strategy is to grow
through acquisitions. The Companies believe that the current tax treatment of
their paired share structure may provide them with certain advantages in making
acquisitions, and the Tax Proposals could therefore make it more difficult to
make acquisitions in the future.
Other legislation, as well as regulations, administrative interpretations
or court decisions, also could change the tax law with respect to the
Corporation's qualification as a REIT and the federal income tax consequence of
such qualification. The adoption of any such legislation, regulations or
administrative interpretations or court decisions could have a material adverse
effect on the Companies and their ability to make distributions to shareholders
and to pay amounts due on their indebtedness.
On November 5, 1997, Meditrust, a Massachusetts business trust and
predecessor to the Corporation (hereinafter called the "Corporation's
Predecessor"), merged (the "Realty Merger") with Realty, with Realty as the
surviving corporation, whereupon Realty changed its name to Meditrust
Corporation. At the same time, Meditrust Acquisition Company ("MAC"), a newly
organized Massachusetts business trust and subsidiary of the Corporation's
Predecessor, merged (the "SAOC Merger" and, together with the Realty Merger,
the "Santa Anita Mergers") with SAOC, with SAOC as the surviving corporation,
whereupon SAOC changed its name to Meditrust Operating Company. Qualification
of the Corporation as a REIT in the future also generally depends on the REIT
qualification of the Corporation for prior periods and the REIT qualification
of the Corporation's Predecessor for periods prior to November 5, 1997.
Accordingly, failure of the Corporation's Predecessor to qualify as a REIT for
periods prior to November 5, 1997 could have a material adverse effect on the
Companies and their ability to make distributions to shareholders and pay
amounts due on their indebtedness. See "Federal Income Tax Considerations--REIT
Qualification of the Corporation."
If the Corporation fails to qualify as a REIT, it would be subject to
federal income tax (including any applicable alternative minimum tax) on its
taxable income at corporate rates. In addition, unless entitled to relief under
certain statutory provisions and subject to the discussion above regarding the
impact if the Corporation failed to qualify as a REIT in 1983, the Corporation
also would be disqualified from re-electing REIT status for the four taxable
years following the year during which qualification is lost. Failure to qualify
as a REIT would result in additional tax liability to the Corporation for the
year or years involved. In addition, distributions to shareholders would no
longer be required to be made by the Code. To the extent that distributions to
shareholders would have been made
5
<PAGE>
in anticipation of the Corporation's qualifying as a REIT, the Corporation
might be required to borrow funds or to liquidate certain of its investments to
pay the applicable tax. See "Federal Income Tax Considerations--REIT
Qualification of the Corporation."
The failure to qualify as a REIT would also constitute a default under
certain debt obligations of the Corporation, which would generally allow the
holders thereof to demand the immediate repayment of such indebtedness, which
could have a material adverse effect on the Companies and their ability to make
distributions to shareholders and to pay amounts due on their indebtedness.
Adverse Effects of REIT Minimum Distribution Requirements. In order to
qualify as a REIT the Corporation is generally required each year to distribute
to its shareholders at least 95% of its taxable income (excluding any net
capital gain). In addition, if the Corporation disposes of assets acquired in
certain acquisitions during the ten-year period following the acquisition, the
Corporation will be required to distribute at least 95% of the amount of any
"built-in gain" attributable to such assets that the Corporation recognizes in
the disposition, less the amount of any tax paid with respect to such
recognized built-in gain. See "Federal Income Tax Considerations--REIT
Qualification of the Corporation--Built-In Gain Tax." The Corporation generally
is subject to a 4% nondeductible excise tax on the amount, if any, by which
certain distributions paid by it with respect to any calendar year are less
than the sum of (i) 85% of its ordinary income for that year, (ii) 95% of its
capital gain net income for that year, and (iii) 100% of its undistributed
income from prior years.
The Corporation intends to make distributions to its shareholders to
comply with the 95% distribution requirement and to avoid the nondeductible
excise tax. Differences in timing between the recognition of taxable income and
the receipt of cash available for distribution and the seasonality of the
businesses it owns or may acquire could require the Corporation to borrow funds
on a short-term basis to meet the 95% distribution requirement and to avoid the
nondeductible excise tax.
Distributions to shareholders by the Companies are determined by their
respective Boards of Directors and depend on a number of factors, including,
the amount of cash available for distribution, financial condition, results of
operations, any decision by either Board of Directors to reinvest funds rather
than to distribute such funds, capital expenditures, the annual distribution
requirements under the REIT provisions of the Code (in the case of the
Corporation) and such other factors as either Board of Directors deems
relevant. For federal income tax purposes, distributions paid to shareholders
may consist of ordinary income, capital gains (in the case of the Corporation),
return of capital, or a combination thereof. The Companies will provide
shareholders with annual statements as to the taxability of distributions.
Requirement to Distribute Accumulated Earnings and Profits. To maintain
its qualification as a REIT in the event its merger with La Quinta is
consummated, the Corporation will be required to distribute the current and
accumulated earnings and profits of La Quinta (as determined for federal income
tax purposes). Following the merger, the Corporation intends to make a
distribution of earnings and profits in the amount determined by the
Corporation to be necessary for federal income tax purposes.
It is a condition to the obligation of the Companies to consummate the
proposed merger with La Quinta that, at the closing date of the proposed
merger, La Quinta and the Corporation shall have obtained a report prepared by
KPMG Peat Marwick LLP ("KPMG") of the accumulated and current earnings and
profits of La Quinta (as determined for federal income tax purposes) as of the
most recent date through which earnings and profits are ascertainable as well
as a reasonable estimate of any earnings and profits from such most recent date
through the closing date of the merger, and Coopers & Lybrand LLP shall have
reviewed and approved in the exercise of its reasonable judgment the report and
workpapers of KPMG. La Quinta has provided a report of the earnings and profits
calculation through December 31, 1996 from KPMG.
It is a condition to the obligation of the Companies to consummate the
proposed merger with Cobblestone that, as of the closing date of the proposed
merger, Cobblestone and the Companies shall have obtained a certification of
the independent accountants of Cobblestone, reasonably satisfactory to the
Companies, to the effect that Cobblestone had no current or accumulated
earnings and profits (as determined for federal income tax purposes) as of
September 30, 1997, and a certification from Cobblestone's Chief Financial
Officer, reasonably satisfactory to the Companies, to the effect that as of the
closing date of the proposed merger, Cobblestone has no such current or
accumulated earnings and profits.
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If the Internal Revenue Service ("IRS") were to determine that La Quinta's
actual current or accumulated earnings and profits exceeded the amount
distributed or deemed distributed by the Corporation following the proposed
merger (due to miscalculation, insufficient funds or any other reason), or that
Cobblestone in fact had current or accumulated earnings and profits, the
Corporation would be disqualified as a REIT. Certain technical provisions of
the Taxpayer Relief Act of 1997 (the "Relief Act") facilitate the distribution
of inherited earnings and profits, but do not change the basic requirement that
inherited earnings and profits must be distributed.
Risks Associated with Rapid Growth of the Companies; Risks of Growth Strategy
The Companies currently are experiencing a period of rapid growth through
acquisitions. The Companies have recently consummated the Santa Anita Mergers
and acquired (the "IRI Acquisition") five golf courses (the "IRI Golf Courses")
from IRI Golf Group ("IRI"), and have recently entered into merger agreements
with La Quinta and Cobblestone. See "The Meditrust Companies--Recent
Developments." Failure to efficiently manage acquired assets, or the failure of
the Companies to successfully integrate Santa Anita's, La Quinta's, IRI's, or
Cobblestone's operations with existing operations and the operations of other
acquired businesses, could have a material adverse effect on the Companies and
their ability to make distributions to shareholders and to pay amounts due on
their indebtedness. The success of any completed acquisition will depend in
large measure on the Companies' ability to integrate the acquired properties
within the Companies' existing portfolio, to integrate the accounting systems,
management information systems, personnel and other operations acquired with
those of the Companies, and to improve the operating results of the acquired
properties and businesses. The process of integrating acquired properties,
operations and personnel and in particular, geographically diverse properties
and properties which, like the Santa Anita, La Quinta, IRI and Cobblestone
properties, are outside of the Companies' traditional expertise in health care
related properties, with the Companies' existing properties may involve
unforeseen difficulties and may require a disproportionate amount of the
Companies' financial and other resources, including management time, which
could adversely impact the Companies.
As noted above, there can be no assurance that proposed or pending
acquisitions will be consummated or that acquired properties or businesses will
perform in accordance with expectations. In that regard, see "--Cautionary
Statements Concerning Forward-Looking Statements" below. In addition, the
proposed La Quinta and Cobblestone acquisitions will be financed largely
through the issuance of Shares, and the Companies may finance acquisitions by,
among other things, issuing debt and equity securities, including Shares. The
issuance of Shares to finance acquisitions could have a dilutive effect on
funds from operations per Share. In that regard, both the La Quinta and
Cobblestone merger agreements are structured in a way that will require the
Companies to increase the number of Shares they issue to consummate those
mergers if the average market price of the Shares (as determined pursuant to
the merger agreements) declines below specified levels. Accordingly, there can
be no assurance that acquisitions, including the proposed La Quinta and
Cobblestone acquisitions, will not be dilutive to funds from operations per
Share or other operating results, that acquired businesses (including La Quinta
and Cobblestone) will be able to maintain or improve historical results of
operations or contribute to future growth, or the effect of the La Quinta and
Cobblestone acquisition (if consummated) on the Companies.
The Companies' growth strategy depends, in large part, on their ability to
identify, finance, acquire and successfully operate additional real estate
interests. No assurance can be given that the Companies will find suitable
acquisitions, that the Companies will be able to consummate or obtain financing
for these acquisitions in a timely manner or at all, that potential
acquisitions will not be acquired by the Companies' competitors or that
acquired properties will perform in accordance with expectations. In that
regard, enactment of the Tax Proposals could make it more difficult for the
Companies to consummate acquisitions in the future. See "--REIT Tax Risks;
Paired Share REIT Tax Risks" above.
Consummation of the acquisitions of La Quinta and Cobblestone is subject
to various conditions, including, receipt of appropriate governmental approvals
(including under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended) and, in the case of La Quinta, approval of the shareholders of La
Quinta and the Corporation and, in the case of Cobblestone, approval by
Cobblestone's shareholders, successful completion of a tender offer for certain
of Cobblestone's outstanding debt instruments and receipt of requisite consents
to the amendment of certain covenants in Cobblestone's debt instruments. The
Companies may also be required to obtain additional financing in connection
with such mergers, which is not, however, a condition to such mergers. See
"--Financing Risks Relating to Proposed La Quinta and Cobblestone Acquisitions"
below. In addition, if the average price (as determined pursuant to the merger
agreement) of the Companies' Shares during the period prior to the expected
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closing date of the La Quinta Merger is less than $30.40, then La Quinta has
the right to terminate the merger agreement unless the Corporation exercises
its right to increase the number of Shares issuable in the merger as provided
in the merger agreement. If, however, the average price of the Companies'
Shares on such date is less than $28.50, La Quinta has the right to terminate
the merger agreement outright. Moreover, La Quinta and the Companies were named
in two substantially similar lawsuits filed after the announcement of the
planned merger with La Quinta which seek compensatory and injunctive relief on
the alleged grounds that the La Quinta directors violated their fiduciary duty,
duty of care and duty of loyalty to La Quinta shareholders by entering into the
merger agreement with the Corporation without having first invited other
bidders. Although the Companies believe the claims are entirely without merit,
there can be no assurance that the plaintiffs in these actions will not be
successful or that these actions will not have an adverse effect on the
Companies. Among other things, if the plaintiffs were to prevail in these
actions, they might obtain injunctive or other relief blocking the proposed
merger or requiring other action that could adversely affect the consummation
of the proposed merger, as well as monetary damages against both La Quinta and
the Companies. As a result of the foregoing, and other factors, there can be no
assurance that the acquisitions of La Quinta and Cobblestone will be
consummated on their current terms or at all.
The Companies Are Heavily Dependent on Health Care Related Properties and Will
Need to Rely on New Members of Management as They Diversify Their Operations
As of December 31, 1997, approximately 93% of the Companies' real property
portfolio was comprised of health care related real property. Recently, through
acquisitions that are either pending, such as Cobblestone and La Quinta, or
have been consummated, such as the IRI Golf Courses, the Companies have begun
to diversify their operations as well as their real property portfolio. The
Companies are currently in the business of operating a race track acquired in
November 1997 in the Santa Anita Merger, the Corporation purchased the IRI Golf
Courses in February 1998, and, if the La Quinta and Cobblestone mergers are
consummated, the Companies will enter the hotel business and further develop
their golf business. To the extent that the Companies are successful in
diversifying into new areas through acquisitions, it is likely that the
Companies will rely heavily upon the expertise of the existing management of
the acquired businesses or will need to hire outside management to operate
these diversified operations. No assurance can be given that the Companies will
be able to hire or retain experienced management to operate the businesses they
acquire or propose to acquire, which could have a material adverse effect on
the Companies and their ability to make distributions to shareholders and to
pay amounts due on their indebtedness.
Health Care Industry Risks
Operating Risks. One of the Corporation's primary businesses is that of
buying, selling, financing and leasing health care related properties. The
risks of this business include, among other things: competition for tenants;
competition from other health care financing providers, a number of which may
have greater marketing, financial and other resources and experience than the
Corporation; changes in government regulation of health care; changes in the
availability and cost of insurance coverage; increases in operating costs due
to inflation and other factors; changes in interest rates; the availability of
financing; and adverse effects of general and local economic conditions.
Concentration of Credit Risks. As of December 31, 1997, long-term care
facilities comprised 51% of the Corporation's real estate investments and the
Corporation's investments in facilities of its three largest health care
operators totaled approximately 39% of the Corporation's total real estate
investments. Such a concentration in specific types of facilities, as well as
in these operators, could have a material adverse effect on the Companies.
Government Regulation May Increase. The health care industry is subject to
changing political, economic, regulatory and demographic influences that may
affect the operations of health care facilities and providers. During the past
several years, the health care industry has been subject to an increase in
government regulation of, among other things, reimbursement rates and certain
capital expenditures. Some elected officials have announced that they intend to
examine certain aspects of the U.S. health care system including proposals
which may further increase governmental involvement in health care. For
example, the President and Congress have in the past, and may in the future,
propose health care reforms which could impose additional regulations on the
Corporation and its operators (including the Operating Company) or limit the
amounts that operators may charge for services. The Corporation and the
operators of its health care facilities are and will continue to be subject to
varying degrees of regulation and licensing by health or social service
agencies and other regulatory authorities in the various states and localities
in which they operate or in which they will operate.
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Reliance on Third-Party Payors; Availability of Reimbursement. The cost of
many of the services offered by the current operators of the Corporation's
health care facilities are reimbursed or paid for by third-party payors such as
Medicare and Medicaid programs for elderly, low income and disabled patients
and state Medicaid programs for managed care organizations. No assurance can be
given that third-party reimbursement for the Corporation's operators will
continue to be available or when reimbursement will be offered or that
reimbursement rates will not be reduced. The increase in the number of
providers contracting to provide per person fixed cost health care to a patient
population has increased pressure on third party payors to lower costs.
The foregoing factors could adversely affect the ability of the operators
of the Corporation's health care facilities (including the Operating Company)
to generate revenues and make payments to the Corporation. This, in turn, could
materially adversely affect the Companies and their ability to make
distributions to shareholders and to pay amounts due on their indebtedness.
Lodging Industry Risks
In the event the proposed merger with La Quinta is consummated, the
Companies will have made a significant investment in hotels and related lodging
facilities. If the La Quinta merger occurs, La Quinta will be operated as a
business unit of the Operating Company and its real estate assets will be owned
by the Corporation.
Competition. The results of operations of La Quinta hotels are subject to
general economic conditions, competition, the desirability of particular
locations, the relationship between supply of and demand for hotel rooms and
other factors. La Quinta hotels generally operate in markets that contain
numerous competitors, including wide range of lodging facilities offering
full-service, limited-service and all-suite lodging options to the public. The
continued success of La Quinta's hotels will be dependent, in large part, upon
their ability to compete in such areas as reasonableness of room rates, quality
of accommodations, name recognition, service level and convenience of
locations. Additionally, an increasing supply of hotel rooms in La Quinta's
market segment and recent consolidations in the lodging industry generally
resulting in the creation of several large, multi-branded hotel chains with
diversified operations may adversely impact La Quinta's financial condition,
results of operations and business. No assurance can be given that demographic,
geographic or other changes in markets will not adversely affect the
convenience or desirability of the locations of La Quinta's hotels.
Furthermore, no assurance can be given that, in the markets in which La
Quinta's hotels operate, competing hotels will not provide greater competition
for guests than currently exists, and that new hotels will not enter such
markets. Additionally, La Quinta's hotels are concentrated in the western and
southern regions of the United States. As a result, La Quinta is sensitive to
economic and competitive conditions in those regions.
Extensive Employment and Other Governmental Regulations. The hotel
business is subject to extensive federal, state and local regulatory
requirements, including building and zoning requirements, all of which can
prevent, delay, make uneconomical or significantly increase the cost of
developing additional lodging facilities. In addition, La Quinta's hotels and
the Operating Company are subject to laws governing their relationship with
employees, including minimum wage requirements, overtime, working conditions,
work permit requirements and discrimination claims. If the merger with La
Quinta is consummated, an increase in the minimum wage rate, employee benefit
costs or other costs associated with employees could adversely affect the
Companies.
Fluctuations in Operating Results. The lodging industry may be adversely
affected by, among other things, changes in economic conditions, changes in
local market conditions, oversupply of hotel space, a reduction in demand for
hotel space in specific areas, changes in travel patterns, weather conditions,
changes in governmental regulations that influence or determine wages, prices
or construction costs, changes in interest rates, the availability of financing
for operating or capital needs, and changes in real estate tax rates and other
operating expenses. Room supply and demand historically have been sensitive to
shifts in GNP growth, which has resulted in cyclical changes in average daily
room and occupancy rates. Due in part to the strong correlation between the
lodging industry's performance and economic conditions, the lodging industry is
subject to cyclical changes in revenues. In that regard, there can be no
assurance that the recent strength in the lodging industry generally, or in the
segment of the industry in which La Quinta operates, will not decline in the
future. Furthermore, the lodging industry is seasonal in nature, with revenues
typically higher in summer periods than in winter periods.
Risks of Expansion Strategy. If the La Quinta merger is consummated, the
Corporation intends to continue La Quinta's strategy of growth through both the
construction of new lodging facilities and the opportunistic acquisition of
existing lodging facilities. No assurance can be given that the Corporation
will find suitable sites for construction or
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suitable properties for acquisition or that these sites and properties will not
be acquired by competitors. The Corporation will incur certain costs in
connection with the construction and acquisition of new properties and may be
required to provide significant capital expenditures for conversions and
upgrades when acquiring a property operating as other than a La Quinta[RegTM]
brand property. No assurance can be given that any of the properties the
Corporation may construct or acquire will be profitable following such
construction or acquisition. The construction or acquisition of a property that
is not profitable, or the acquisition or construction of a property that
results in significant unanticipated conversion costs, or substantial
construction cost overruns, could materially adversely affect the Companies and
their ability to make distributions to shareholders and to pay amounts due on
their indebtedness. The Corporation may in the future require additional
financing in order to continue to make acquisitions, and to fund construction
costs of hotel properties. No assurance can be given that such additional
financing will be available to the Corporation on acceptable terms or at all.
Construction. If the La Quinta merger is consummated and the Corporation
continues La Quinta's strategy of growing through new construction, the
Corporation may from time to time experience shortages of materials or
qualified tradespeople or volatile increases in the cost of certain
construction materials or labor, resulting in longer than normal construction
and remodeling periods, loss of revenue and increased costs. The Corporation
will rely heavily on local contractors, who may be inadequately capitalized or
understaffed. The inability or failure of one or more local contractors to
perform may result in construction or remodeling delays, increased cost and
loss of revenue.
The foregoing factors could adversely affect La Quinta's operations which,
in turn, could materially adversely affect the Companies and their ability to
make distributions to shareholders and to pay amounts due on their
indebtedness.
Golf Course Industry Risks
In the event that the proposed merger with Cobblestone is consummated, and
as a result of the acquisition of the IRI Golf Courses, the Companies will have
made a significant investment in golf courses and related facilities. If the
Cobblestone merger occurs, Coblestone will be operated as a business unit of
the Operating Company and its real estate assets will be owned by the
Corporation.
Real Estate Investment Considerations. Investments in golf courses and
related properties are subject to risks typically associated with investments
in real estate. Revenue from golf courses may be affected by many factors,
including changes in government regulations, general or local economic
conditions, the available local supply of golf courses, a decrease in the
number of people playing golf or adverse weather conditions.
One factor specifically affecting real estate investments in golf
facilities is the availability of water. A severe water shortage could
adversely affect the revenue received from these investments.
In addition, the golf courses which the Companies will acquire if the
Cobblestone merger is consummated are generally located in sun-belt states.
Nine golf facilities are located in Texas, eight in California, four in Arizona
and one in each of Florida, Georgia and Virginia. The five golf courses
acquired from IRI are all located in Texas. The geographic proximity of many of
these golf courses may mean that adverse economic and/or weather conditions in
the same geographic area could adversely affect the operating results of a
large portion of the Companies' golf course facilities.
Competition. If the Cobblestone merger is consummated, the Corporation
intends to continue to acquire golf courses. The Companies will compete with
several national and regional golf course companies for the purchase, lease and
management of golf courses. No assurance can be given that suitable golf course
acquisition opportunities will be available or that, because of competition
from other purchasers or other reasons, the Corporation will be able to
consummate acquisitions on satisfactory terms or at all or to obtain necessary
acquisition financing. In addition, the acquisition of golf courses may become
more expensive in the future if demand for properties increases.
Cobblestone competes for the purchase, lease and management of golf
courses with several national and regional golf course companies. Several of
Cobblestone's national competitors have larger staffs and more golf courses
currently owned, leased or under management than does Cobblestone. In addition,
several of Cobblestone's national competitors and certain of its smaller,
regional competitors have significantly greater capital resources than does
Cobblestone.
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Golf courses are also subject to competition for players and members from
other golf courses located in the same geographic areas. The number and quality
of golf courses in a particular area could have a material adverse effect on
the revenue of a golf course. The availability of sufficient acreage often
limits the number of competing courses, particularly in metropolitan areas.
However, the parts of Arizona and Texas in which many of Cobblestone's existing
properties, and all of the IRI Golf Courses, are clustered have significant
open land available, and there has been continued construction of both public
and private golf facilities in those areas. In addition, revenue will be
affected by a number of factors including, the demand for golf and the
availability of other forms of recreation.
Consumer Spending and Trends. The amount spent by consumers on
discretionary items, such as those offered by Cobblestone and IRI, has
historically been dependent upon levels of discretionary income which may be
adversely affected by general economic conditions. A decrease in the number of
golfers and in consumer spending on golf and golf associated activities could
have a material adverse effect on the Companies' golf course division's
financial condition and results of operations.
The foregoing factors could adversely affect the operations of Cobblestone
and the IRI Golf Courses which, in turn, could materially adversely affect the
Companies and their ability to make distributions to shareholders and to pay
amounts due on their indebtedness.
Horse Racing Industry Risks
Regulation of Gaming Operations. The Operating Company's pari-mutuel
wagering operations at Santa Anita Park (the "Race Track"), conducted by Los
Angeles Turf Club, Incorporated ("LATC"), a subsidiary of The Santa Anita
Companies, Inc. (itself a subsidiary of the Operating Company), depend upon the
continued governmental acceptance of such operations as forms of legalized
gaming. As a form of gaming, pari-mutuel wagering is subject to extensive
licensing and regulatory control by the California Horse Racing Board (the
"CHRB"). The CHRB has broad powers with respect to the licensing of gaming
operations. It may revoke, suspend, condition or limit the gaming operations of
the Operating Company. Any such change in regulations may have a material
adverse effect on the Companies.
Dependence on Relationship with Owners and Trainers Associations. LATC's
horse racing operations require it to maintain good working relationships with
the Thoroughbred Owners of California, or the "Owners Association", and the
California Horsemen's Benevolent and Protective Association, or the "Trainers
Association." If LATC cannot maintain working relationships with the Owners
Association or the Trainers Association or finds itself unable to attract a
sufficient number of horses to its live horse race meets, such events could
have a material adverse effect on the Companies.
Competition. Thoroughbred horse racing, and gaming generally, are
competitive industries. The Operating Company competes in its markets with
other horse racing facilities, off-track betting, state-run lotteries and
Native American reservation gaming. Many of these competitors have resources
that exceed those of the Companies. The Operating Company also competes locally
with other sporting and entertainment businesses. Approval of legislation
legalizing casinos and other forms of gaming or expansion of gaming at Native
American reservations could increase competition for the Operating Company. The
Operating Company also may face increasing competition from businesses
accepting wagers by telephone and via the Internet.
Declines in On-Track Attendance and Wagering Revenue. The Companies
believe that many horse racing tracks across the nation, including the Race
Track, are experiencing declines in on-track attendance. In addition, the
Operating Company has experienced declining revenues from wagering in recent
years. It cannot be assured that the Operating Company will not experience
further declines in on-track attendance and wagering revenues, which could have
a material adverse effect on the Companies. In that regard, the amount of
rental revenues received by the Corporation from its lease of the Race Track to
LATC is wholly dependent upon the level of racing activities and wagering.
Seasonality. The Operating Company has historically conducted a live
thoroughbred horse racing meet at the Race Track each winter and has sublet the
Race Track each fall for a live thoroughbred racing meet conducted by Oak Tree
Racing Association. The winter and fall meets generate a substantial amount of
the Operating Company's horse racing revenue each year. As a result, the
Operating Company's horse racing activities are subject to significant seasonal
variations in revenue and net income or loss.
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Real Estate Investment Risks
General Risks. The Corporation's investments (including those of La Quinta
and Cobblestone, assuming consummation of their respective mergers) will be
subject to the risks inherent in owning real estate. The underlying value of
the Corporation's real estate investments and the Companies' results of
operations and ability to make distributions to their shareholders and pay
amounts due on their indebtedness will depend on the ability of the lessees,
the operators and the Operating Company to operate the Corporation's properties
in a manner sufficient to maintain or increase revenues and to generate
sufficient revenues in excess of operating expenses to make rent payments under
their leases or loan payments in respect of their loans from the Corporation.
Results of operations of the Corporation's properties may also be
adversely affected by, among other things:
[bullet] changes in national economic conditions, changes in local market
conditions due to changes in general or local economic conditions and
neighborhood characteristics;
[bullet] changes in interest rates and in the availability, cost and terms of
financing;
[bullet] the impact of present or future environmental legislation and
compliance with environmental laws and other regulatory requirements;
[bullet] the ongoing need for capital improvements, particularly in older
structures;
[bullet] changes in real estate tax rates and assessments and other operating
expenses;
[bullet] adverse changes in governmental rules and fiscal policies;
[bullet] adverse changes in zoning and other land use laws; and
[bullet] civil unrest, earthquakes and other natural disasters (which may result
in uninsured losses) and other factors which are beyond its control.
Value and Illiquidity of Real Estate. Real estate investments are
relatively illiquid. The Corporation's ability to vary its portfolio in
response to changes in economic and other conditions will therefore be limited.
If the Corporation wants to sell an investment, no assurance can be given that
the Corporation will be able to dispose of it in the time period it desires or
that the sales prices of any investment will recoup or exceed the amount of the
Corporation's investment.
Increases in Property Taxes. The Corporation's health care facilities and
real estate investments, La Quinta's and Cobblestone's properties and the
Corporation's racing facilities are all subject to real property taxes. The
real property taxes on properties in which the Corporation invests may increase
or decrease as property tax rates change and as the value of the properties are
assessed or reassessed by taxing authorities. In addition, as a result of
acquisitions, certain of the Corporation's properties may be subject to
reappraisal or reassessment. Increases in property taxes resulting from such
reappraisals or reassessments may have an adverse effect on the Companies and
their ability to make distributions to shareholders and to pay amounts due on
their indebtedness.
Environmental Matters. The obligation to pay for the cost of complying
with existing environmental laws, ordinances and regulations, as well as the
cost of complying with future legislation, may affect the operating costs of
the Corporation and the Operating Company. Under various federal, state and
local environmental laws, ordinances and regulations, a current or previous
owner or operator of real property may be liable for the costs of removal or
remediation of hazardous or toxic substances on or under the property.
Environmental laws often impose liability whether or not the owner or operator
knew of, or was responsible for, the presence of such hazardous or toxic
substances and whether or not such substances originated from the property. In
addition, the presence of hazardous or toxic substances, or the failure to
remediate such property properly, may adversely affect the Corporation's
ability to borrow by using such real property as collateral.
Persons who arrange for the transportation, disposal or treatment of
hazardous or toxic substances may also be liable for the costs of removal or
remediation of hazardous or toxic substances at the disposal or treatment
facility, whether or not such facility is or ever was owned or operated by such
person. Certain environmental laws and common law principles could be used to
impose liability for releases of hazardous materials, including asbestos-
containing materials or "ACMs", into the environment. In addition, third
parties may seek recovery from owners or operators of real properties for
personal injury associated with exposure to released ACMs or other hazardous
materials. Environmental laws may also impose restrictions on the use or
transfer of property, and these restrictions
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may require expenditures. In connection with the ownership and operation of any
of the Corporation's properties, the Corporation, the Operating Company and the
other lessees or operators of these properties may be liable for any such
costs. The cost of defending against claims of liability or remediating
contaminated property and the cost of complying with environmental laws could
materially adversely affect the Companies and their ability to make
distributions to shareholders and to pay amounts due on their indebtedness.
Compliance with the ADA. Under the Americans with Disabilities Act of 1990
(the "ADA"), all public accommodations are required to meet certain federal
requirements related to access and use by disabled persons. A determination
that the Corporation or the Operating Company is not in compliance with the ADA
could result in the imposition of fines and/or an award of damages to private
litigants. If the Corporation or the Operating Company were required to make
modifications to comply with the ADA, there could be a material adverse effect
on the Companies and their ability to make distributions to shareholders and to
pay amounts due on their indebtedness.
Uninsured and Underinsured Losses. Each of the Corporation's leases and
mortgage loans typically specifies that comprehensive insurance is to be
maintained on each of the applicable properties, including liability, fire and
extended coverage. Leases and loan documents for new investments (including
those leased to the Operating Company) typically contain similar provisions.
However, there are certain types of losses, generally of a catastrophic nature,
such as earthquakes and floods, that may be uninsurable or not economically
insurable. The Corporation will use its discretion in determining amounts,
coverage limits and deductibility provisions of insurance, with a view to
maintaining appropriate insurance coverage on the investments of the
Corporation and the Operating Company at a reasonable cost and on suitable
terms. This may result in insurance coverage that, in the event of a
substantial loss, would not be sufficient to pay the full current market value
or current replacement cost of the lost investment and also may result in
certain losses being totally uninsured. Inflation, changes in building codes,
zoning or other land use ordinances, environmental considerations, lender
imposed restrictions and other factors also might make it infeasible to use
insurance proceeds to replace the property after such property has been damaged
or destroyed. Under such circumstances, the insurance proceeds, if any,
received by the Corporation or the Operating Company might not be adequate to
restore its economic position with respect to such property.
Real Estate Financing Risks
Financing and Maturities. The Corporation is subject to the normal risks
associated with debt and preferred stock financing, including the risk that the
Corporation's cash flow will be insufficient to meet required payments of
principal and interest and dividends, the risk that indebtedness on its
properties, or unsecured indebtedness, will not be able to be renewed, repaid
or refinanced when due or that the terms of any renewal or refinancing will not
be as favorable as the terms of such indebtedness. If the Corporation were
unable to refinance the indebtedness on acceptable terms, or at all, the
Corporation might be forced to dispose of one or more of its properties on
disadvantageous terms, which might result in losses to the Corporation, which
losses could have a material adverse effect on the Corporation and its ability
to make distributions to shareholders and to pay amounts due on its
indebtedness. Furthermore, if a property is mortgaged to secure payment of
indebtedness and the Corporation is unable to meet mortgage payments, the
mortgagee could foreclose upon the property, appoint a receiver and receive an
assignment of rents and leases or pursue other remedies, all with a consequent
loss of revenues and asset value to the Corporation. Foreclosures could also
create taxable income without accompanying cash proceeds, thereby hindering the
Corporation's ability to meet the REIT distribution requirements of the Code.
Risk of Rising Interest Rates. The Corporation has incurred and expects in
the future to incur indebtedness which bears interest at variable rates.
Accordingly, increases in interest rates would increase the Corporation's
interest costs (to the extent that the related indebtedness was not protected
by interest rate protection arrangements), which could have a material adverse
effect on the Corporation and its ability to make distributions to shareholders
and to pay amounts due on its indebtedness or cause the Corporation to be in
default under certain debt instruments (including its Debt Securities). In
addition, an increase in market interest rates may lead holders of the Shares
to demand a higher yield on their Shares from distributions by the Companies,
which could adversely affect the market price for the Shares and could also
adversely affect the market price of any Preferred Stock issued by either of
the Companies.
Additional Debt. The Corporation currently funds acquisition opportunities
partially through borrowings (including its lines of credit). The
organizational documents of the Corporation do not contain any limitation on
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<PAGE>
the amount of indebtedness that the Corporation may incur. Accordingly, the
Corporation could become more highly leveraged, resulting in an increase in
debt service, which could have a material adverse effect on the Corporation and
its ability to make distributions to shareholders and to pay amounts due on its
indebtedness and in an increased risk of default on its obligations.
Employment and Other Governmental Regulation
The health care, golf, hotel, race track and related businesses of the
Companies are subject to varying degrees to extensive federal, state and local
regulatory requirements, including building and zoning requirements, all of
which can prevent, delay, make uneconomical or significantly increase the cost
of developing and maintaining existing and additional facilities or properties
in the health care, golf, hotel, race track and related businesses. In
addition, La Quinta, Cobblestone and the Companies are subject to laws
governing their relationship with employees, including minimum wage
requirements, overtime, working conditions, work permit requirements and
discrimination claims. An increase in the minimum wage rate, employee benefit
costs or other costs associated with employees, could adversely affect the
Companies and their ability to make distributions to shareholders and to pay
amounts due on their indebtedness.
ERISA Plans May Be Affected by Certain Ownership of REIT Securities
The Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and section 4975 of the Code prohibit certain transactions that involve (i)
certain pension, profit-sharing, employee benefit, or retirement plans or
individual retirement accounts (each, a "Plan") and (ii) the assets of a Plan,
on the one hand, and a "party in interest" or "disqualified person" with
respect to such Plan, on the other hand. A "party in interest" or
"disqualified person" with respect to a Plan will be subject to (x) an initial
15% excise tax on the amount involved in any prohibited transaction involving
the assets of the Plan and (y) an excise tax equal to 100% of the amount
involved if any prohibited transaction is not corrected. Consequently, the
fiduciary of a Plan contemplating an investment in Securities offered by any
Prospectus Supplement should consider whether the Companies, any other person
associated with the issuance of the Securities offered by any Prospectus
Supplement, or any affiliate of the foregoing is or might become a "party in
interest" or "disqualified person" with respect to the Plan. In such a case,
the acquisition or holding of Securities offered by any Prospectus Supplement
by or on behalf of the Plan could be considered to give rise to a prohibited
transaction under ERISA and the Code.
Regulations of the Department of Labor that define "plan assets" provide
that in some situations, when a Plan acquires an equity interest in an entity,
the Plan's assets include both the equity interest and an undivided interest in
each of the underlying assets of the entity, unless one or more exceptions
specified in the plan asset regulations are satisfied. In such a case, certain
transactions that the Companies might enter into in the ordinary course of
their business and operations might constitute "prohibited transactions" under
ERISA and the Code.
Substantial Leverage Risks
The Corporation has substantial leverage. The degree of leverage of the
Corporation could have important consequences to investors, including the
following: (i) the Corporation's ability to obtain additional financing may be
impaired in the future; (ii) a substantial portion of the Corporation's cash
flow from operations must be dedicated to the payment of principal and interest
on its indebtedness, thereby reducing the funds available to the Corporation
for other purposes; (iii) as described below, certain of the Corporation's
borrowings are and will continue to be at variable rates of interest, which
will expose the Corporation to the risk of increased interest rates; (iv) the
Corporation may be substantially more leveraged than certain of its
competitors, which may place the Corporation at a competitive disadvantage; and
(v) the Corporation's substantial degree of leverage may limit its flexibility
to adjust to changing market conditions, reduce its ability to withstand
competitive pressures and make it more vulnerable to a downturn in general
economic conditions or its business.
If the mergers with La Quinta and Cobblestone had been consummated on
December 31, 1997, the Companies would have had, as of December 31, 1997,
approximately $3.14 billion of pro forma combined total indebtedness as
compared to combined total indebtedness of the Companies, without giving effect
to the La Quinta and Cobblestone acquisitions, of approximately $1.38 billion
at that date. The interest rates of the Companies' credit facilities bear
interest at variable rates based, in part, on the Companies' leverage ratio.
Consequently, the incurrence of indebtedness if the La Quinta and Cobblestone
acquisitions are consummated, the Corporation's subsequent distribution of
inherited earnings and profits in connection with the La Quinta Merger (see
"--REIT Tax Risks;
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<PAGE>
Paired Share REIT Tax Risks--Requirement to Distribute Accumulated Earnings and
Profits"), and the resulting increase in the leverage ratio will result in
increased interest expense under the Companies' credit facilities. In addition,
increases in market interest rates will also result in increased borrowing cost
for the Companies, which may adversely affect the Companies and their ability
to make distributions to shareholders and to pay amounts due on their
indebtedness.
The foregoing risks associated with the debt obligations of the Companies
may adversely affect the market price of Securities offered by any Prospectus
Supplement and may inhibit the ability of the Companies to raise capital in
both the public and private markets.
Risks Related to Restrictions on Dividends and Distributions; Risks Relating to
Restrictive Debt Covenants and Compliance with Debt Instruments
The Companies and their subsidiaries are or in the future may become
parties to agreements and debt instruments which restrict or prevent the
payment of dividends on, or the purchase or redemption of, their Paired Common
Stock, Preferred Stock or Series Common Stock, including indirect restrictions
(through, for example, covenants requiring the maintenance of specified levels
of net worth) and direct restrictions. In particular, the Corporation is
currently a party to revolving loan agreements (the "Revolving Loan
Agreements") which permit borrowings in an aggregate amount of up to $365
million with Fleet National Bank, as agent for certain other financial
institutions, and with Via Banque. The Revolving Loan Agreements provide that
the Corporation shall not declare or pay any dividends (other than a dividend
payable in capital stock of the Companies) on any of its capital stock if such
action would constitute an event of default or an event which, with the giving
of notice or lapse of time or both, would constitute an event of default under
the Revolving Loan Agreements or any other material agreement to which the
Corporation is a party. Events of default under the Revolving Loan Agreements
include, among other things, failure by the Corporation to comply with certain
financial covenants relating to cash flow coverage, combined tangible net
worth, and a ratio of total liabilities to combined financial net worth. Other
events of default under the Revolving Loan Agreements include failure to pay
principal, interest, fees or reimbursements under letters of credit when due,
certain events of bankruptcy or insolvency or creditor actions with respect to
the Corporation and its subsidiaries, breach of any of the representations,
warranties or covenants under the Revolving Loan Agreements, certain monetary
defaults under other debt instrument of the Corporation, failure to pay all
amounts due under the Revolving Loan Agreements upon the sale or permanent
disposition of an operator of the Corporation's properties who operates more
than a specified percentage of the Corporation's properties, or the occurrence
of events of default under any of the other documents relating to the Revolving
Loan Agreements. Likewise, the Corporation has previously issued debt
securities under several indentures (each, an "Existing Indenture"). As of
December 31, 1997, approximately $1,134,594,000 of borrowings were outstanding
under the Existing Indentures. Each Existing Indenture provides that the
Corporation may not pay dividends on any of its capital stock (other than
dividends payable in capital stock) if at the time of such action an event of
default under such Existing Indenture has occurred and is continuing or would
exist immediately after giving effect to such action. Events of default under
the Existing Indenture include a failure by the Corporation, after the
expiration of any applicable grace period, to pay principal or interest when
due, failure by the Corporation after expiration of a grace period to comply
with any agreements in the Existing Indentures, events of default under any
other debt instruments of the Corporation or its subsidiaries if any such event
of default results from either the failure to pay such other indebtedness when
due or acceleration of such other indebtedness, and the commencement of
voluntary or involuntary bankruptcy or similar proceedings with respect to the
Corporation. As a result of the foregoing, in the event of a deterioration in
the financial condition or results of operations of the Corporation or the
Operating Company, the terms of the Revolving Loan Agreements, the Existing
Indentures or other instruments or agreements to which the Companies or their
subisidiaries are or may in the future become parties could limit or prohibit
the payment of dividends on shares of Paired Common Stock, Preferred Stock or
Series Common Stock offered by any Prospectus Supplement. Any such limitation
or prohibition could have a material adverse effect on the market price of such
Paired Common Stock, Preferred Stock, or Series Common Stock. Any failure of
the Corporation to pay dividends as required by the Code, whether as a result
of restrictive covenants in its debt instruments or otherwise, would result in
the loss of its status as a real estate investment trust under the Code, which
would have a material adverse effect on the Companies and their ability to make
distributions to shareholders and to pay amounts due on their indebtedness.
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<PAGE>
Debt instruments (including the Revolving Loan Agreements and the Existing
Indentures) to which the Corporation is currently a party and to which the
Corporation and/or the Operating Company may in the future become parties
contain and may contain a number of significant covenants that, among other
things, will restrict in varying degrees the applicable Company from disposing
of assets, incurring additional indebtedness, repaying other indebtedness,
paying dividends, creating liens on assets, entering into leases, making
investments, loans or advances, making acquisitions, engaging in mergers or
consolidations, engaging in certain transactions with affiliates and otherwise
restrict corporate activities.
A Company's ability to remain in compliance with certain such covenants
will depend upon, among other things, its results of operations and may be
affected by events beyond its control, including economic, financial and
industry conditions. Accordingly, there can be no assurance that the Companies
will remain in compliance with such agreements and covenants. In the event of a
default under such instruments or agreements relating to any indebtedness of
the applicable Company, the holders of such indebtedness generally will be able
to declare all such indebtedness, together with accrued interest thereon, to be
due and payable immediately and, in the case of collateralized indebtedness, to
proceed against their collateral. In addition, default under one debt
instrument could in turn permit lenders under other debt instruments to declare
borrowings outstanding thereunder to be due and payable pursuant to
cross-default clauses. Accordingly, the occurrence of a default under any debt
instrument could have a material adverse effect on the Companies.
Financing Risks Relating to Proposed La Quinta and Cobblestone Acquisitions
Although the Cobblestone and La Quinta mergers will be financed largely
through the issuance of Shares, the Companies are exploring various alternative
means to most effectively finance the cash that will be payable in connection
with the La Quinta merger and the Cobblestone merger, including costs
associated with the earnings and profits distribution (see "--REIT Tax Risks;
Paired Share REIT Tax Risks" above), the cash consideration to be paid in the
La Quinta merger pursuant to cash elections by La Quinta shareholders and the
other costs associated with the proposed mergers, such as the refinancing and
assumption of certain La Quinta debt and the repayment of certain Cobblestone
debt. This financing may consist of, among other things, public or private
offerings of equity or debt securities, borrowings under the Revolving Loan
Agreements, or a combination thereof. No assurance can be given, however, that
the Companies will successfully obtain the financing necessary to consummate
the mergers, or if obtained, that such financing will be on terms and
conditions favorable to the Companies. The Companies' obligations under the La
Quinta merger agreement and the Cobblestone merger agreement are not
conditioned on the obtaining of financing.
Possible Effects of Failing to Consummate the Pending Acquisitions
It cannot be assured that the mergers with La Quinta and Cobblestone will
be completed. The Companies have incurred substantial expenses in connection
with the proposed acquisition of La Quinta and Cobblestone. The Companies may
also be responsible for sizable termination fees, under certain circumstances,
if either the La Quinta or Cobblestone acquisition does not occur. In addition,
if the Cobblestone acquisition is not consummated, Cobblestone's expertise in
developing, operating and managing golf courses would not be available to the
Companies as they pursue their strategy to offer recreational opportunities to
residents of their senior living communities.
Restrictions on Transfer of Capital Stock; Repurchase of Capital Stock
In order to qualify as a REIT under the Code, the Corporation's capital
stock must be held by 100 or more shareholders and more than 50% of its capital
stock may not be held by five or fewer individuals. The Companies' respective
by-laws contain provisions intended to preserve the status of the Corporation
as a REIT for federal income tax purposes. Among other things, the by-laws of
each Company provide that, if its Board of Directors shall at any time be of
the opinion that direct or indirect ownership of shares of its capital stock
has or may become concentrated to an extent which would cause the Corporation
to fail to qualify or be disqualified as a REIT under the Code, or to an extent
which would cause any rent to be paid to the Corporation to fail to qualify or
to be disqualified as rent from real property for purposes of the Code, the
Board of Directors of such Company may call for the purchase from any
shareholder of such Company such number of shares sufficient, in the opinion of
the Board of Directors, to maintain or bring the direct or indirect ownership
of shares of stock of such Company into conformity with the requirements of the
Code. The purchase price for the shares called for purchase shall be equal to
the fair market value of such shares as reflected in
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<PAGE>
the closing price for such shares on the principal stock exchange on which such
shares are listed or, if such shares are not listed, then the last bid
quotation for shares of such stock as of the close of business on the date
fixed by the Board of Directors for such purchase or, if no quotation for the
shares is available, as determined in good faith by the Board of Directors.
From and after the date fixed for purchase by the Board of Directors as
aforesaid, the holders of any shares so called for purchase shall cease to be
entitled to dividends, voting rights and other benefits with respect to such
shares, excepting only the right to payment of the purchase price fixed as
aforesaid. Such purchase price may be paid in cash or, at the option of the
Board of Directors, in the form subordinated indebtedness equal to the purchase
price of the shares (less amounts paid in cash, if any), which subordinated
indebtedness shall have such other terms as may be determined by the Board of
Directors. In addition, the by-laws of each Company provide that such Company
may refuse to transfer shares of stock to any person whose acquisition of such
shares would, in the opinion of its Board of Directors, result in the
Corporation being unable to conform to the requirements of the Code referred to
above. The by-laws also provide that any transfer of shares that would prevent
the Corporation from continuing to be qualified as a REIT under the Code shall
be void and the intended transferee of such shares shall be deemed never to
have had an interest therein. If the foregoing provision is determined to be
invalid, the by-laws also provide that the transferee of such shares shall be
deemed to have acted as agent on behalf of the Corporation or the Operating
Company, as applicable, in acquiring such shares and to hold such shares on
behalf of the Corporation or the Operating Company, as applicable. See "Federal
Income Tax Considerations."
Year 2000 Issues
The Companies have begun the process of identifying, evaluating and
implementing changes to computer programs necessary to address the year 2000
issue. This issue affects computer systems that have programs that may not
properly recognize the year 2000. This could result in system failures or
miscalculations. The Companies are currently addressing their internal year
2000 issues, with modifications to existing programs and conversions to new
programs. The Companies are also communicating with financial institutions,
software vendors and others with which they conduct business to help them
identify and resolve the year 2000 issue. The total cost of converting all
internal systems has not been completely quantified, but it is not expected to
be a material cost. However, no estimates can be made as to the potential
adverse impact that may result from the financial institutions, software
vendors and others with which the Companies conduct business. Costs related to
the year 2000 issue are being expensed as incurred.
Cautionary Statements Concerning Forward-Looking Statements
Any statements included or incorporated by reference in this Prospectus or
any Prospectus Supplement, including statements in the documents that are
incorporated by reference as set forth under "Available Information," that are
not strictly historical are forward-looking statements within the meaning of
the safe harbor provisions of the Private Securities Litigation Reform Act of
1995. Any such forward-looking statements contained or incorporated by
reference herein or in the accompanying Prospectus Supplement should not be
relied upon as predictions of future events. Certain such forward-looking
statements can be identified by the use of forward-looking terminology such as
"believes," "expects," "may," "will," "should," "seeks," "approximately,"
"intends," "plans," "pro forma," "estimates" or "anticipates" or the negative
thereof or other variations thereof or comparable terminology, or by
discussions of strategy, plans, intentions or anticipated or projected events,
results or conditions. Such forward-looking statements are necessarily
dependent on assumptions, data or methods that may be incorrect or imprecise
and they may be incapable of being realized. Such forward-looking statements
include statements with respect to (i) the declaration or payment of
distributions by the Companies, (ii) the ownership, management and operation of
hotels, golf courses, health care related facilities, race tracks and other
properties, including the integration of the acquisitions effected or proposed
by the Companies, (iii) potential acquisitions or dispositions of properties,
assets or other public or private companies by the Companies, including the
acquisition of La Quinta and Cobblestone, (iv) the policies of the Companies
and (if the mergers with La Quinta and Cobblestone are consummated) La Quinta
and Cobblestone regarding investments, acquisitions, dispositions, financings,
conflicts of interest and other matters, (v) the qualification of the
Corporation and the Corporation's Predecessor as a REIT under the Code and the
"grandfathering" rules under Section 269B of the Code, (vi) the health care,
real estate, golf and lodging industries and real estate markets in general,
(vii) the availability of debt and equity financing, (viii) interest rates,
(ix) general economic conditions, (x) supply and customer demand, (xi) trends
affecting the Companies', and, if the mergers are consummated, La Quinta's and
Cobblestone's financial condition or results of operations, (xii) the effect of
acquisitions (including the proposed La Quinta and Cobblestone acquisitions) on
results of operations (including funds from operations, margins, and cash flow,
financial condition (including market
17
<PAGE>
capitalization) and financial flexibility, (xiii) the anticipated performance
of the Companies and of acquired properties and businesses, including, without
limitation, statements regarding anticipated revenues, cash flows, funds from
operations, EBITDA, operating or profit margins and sensitivity to economic
downturns or anticipated growth or improvements in any of the foregoing, (xiv)
conditions or prospects in the lodging and other industries, including
anticipated growth or profitability, and the sensitivity of certain segments of
those industries to economic downturns, (xv) the ability of the Companies and
of acquired properties and businesses to grow (including La Quinta's ability to
renovate hotels and open new hotels as planned), and (xvi) the Corporation's
funds from operations payout ratio after giving effect to anticipated
acquisitions. Shareholders are cautioned that, while forward-looking statements
reflect the respective Companies' good faith beliefs, they are not guarantees
of future performance and they involve known and unknown risks and
uncertainties and there can be no assurance that the events, results or
conditions reflected in such forward-looking statements will occur. Actual
results may differ materially from those in the forward-looking statements as a
result of various factors. The information contained or incorporated by
reference in this Prospectus, including, without limitation, the information
set forth in "Risk Factors," identifies important factors that could cause such
differences.
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<PAGE>
THE MEDITRUST COMPANIES
The REIT
The REIT is a self-administered real estate investment trust under the
Internal Revenue Code of 1986, as amended (the "Code"), which has historically
invested primarily in health care related real property in locations throughout
the United States. The REIT also invests in other entities outside of the
United States which make similar health care related real property investments.
The REIT invests in high quality facilities that are managed by experienced
operators and achieves diversity in its property portfolio by sector of the
health care industry, geographic location, operator and form of investment. The
REIT's investments have historically taken the form of permanent mortgage
loans, sale/leaseback transactions and development projects.
The REIT was organized to qualify, and intends to continue to operate, as
a real estate investment trust (a "REIT") in accordance with federal tax laws
and regulations. So long as the REIT so complies, with limited exceptions, the
REIT will not be taxed under Federal income tax laws on that portion of its
taxable income that it distributes to its shareholders. See "Federal Income Tax
Considerations".
The REIT's principal executive offices are located at 197 First Avenue,
Suite 300, Needham Heights, Massachusetts 02194, and its telephone number is
(781) 433-6000.
The Operating Company
The Operating Company is engaged in thoroughbred horse racing. The
thoroughbred horse racing operation is conducted by Los Angeles Turf Club,
Incorporated ("LATC") (a wholly-owned subsidiary of The Santa Anita Companies,
Inc., itself a wholly-owned subsidiary of the Operating Company), which leases
from the REIT an approximately 400 acre parcel of land in Arcadia, California
on which Santa Anita Park, a thoroughbred horse racing facility (the "Race
Track"), is located. The Operating Company believes that the Race Track is one
of the premier thoroughbred horse racing venues in North America. The Operating
Company has conducted a winter live thoroughbred horse racing meet at the Race
Track each year since 1934 (except for three years during World War II). In
addition, the Race Track has been the site of a fall meet conducted by Oak Tree
Racing Association, which has leased the Race Track from LATC since 1969. The
Race Track was the location of the 1986 and 1993 Breeders' Cup Championships.
As described below, shares of Operating Common Stock are paired and trade
together with shares of REIT Common Stock as a single unit on the NYSE. The
Operating Company's principal executive offices are located at 197 First
Avenue, Suite 100, Needham Heights, Massachusetts 02194, and its telephone
number is (781) 453-8062.
Santa Anita Mergers
On November 5, 1997, the Corporation's Predecessor completed its merger
with Realty, with Realty as the surviving corporation, whereupon Realty changed
its name to Meditrust Corporation. At the same time, MAC, a Massachusetts
business trust and newly formed subsidiary of the Corporation's Predecessor,
completed its merger with SAOC, with SAOC as the surviving corporation,
whereuopn SAOC changed its name to Meditrust Operating Company. The mergers were
accounted for as reverse acquisitions whereby the Corporation's Predecessor and
MAC were treated as the acquirors for accounting purposes. Accordingly, unless
otherwise expressly stated or the context otherwise requires, the historical
financial information with respect to the Companies included in this Prospectus,
the documents incorporated by reference herein and any accompanying Prospectus
Supplement as of any dates and for any periods prior to November 5, 1997 is that
of the Corporation's Predecessor and MAC and not of Realty or SAOC.
Recent Developments
On January 3, 1998, the Companies entered into a merger agreement with La
Quinta Inns, Inc. ("La Quinta") pursuant to which La Quinta will merge with and
into the REIT with the REIT being the surviving corporation (the "La Quinta
Merger"). If the La Quinta Merger is consummated, holders of La Quinta common
stock will receive in exchange therefor cash and newly-issued shares of Paired
Common Stock of the Companies with an aggregate value of approximately $2.1
billion, subject to certain adjustments. In addition, the REIT will assume
approximately $900 million of La Quinta's existing indebtedness. La Quinta is a
fully-integrated lodging company that focuses on the ownership, operation and
development of its two hotel products: (i) La Quinta Inns, a chain positioned
in the mid-price segment without food and beverage facilities, and (ii) La
Quinta Inn & Suites, a new concept positioned at
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the upper end of the mid-price segment without food and beverage facilities.
The La Quinta Merger is expected to close in the second quarter of 1998 and is
subject to various conditions including approval of the La Quinta Merger by
two-thirds of the outstanding shares of La Quinta and a majority of the
outstanding shares of the REIT, approval of the issuance of Operating Common
Stock by a majority of the outstanding shares of the Operating Company, and
approval from various regulatory agencies.
On January 12, 1998, the Companies entered into a merger agreement with
Cobblestone Holdings, Inc. ("Cobblestone"), parent of Cobblestone Golf Group,
Inc., pursuant to which Cobblestone will merge with and into the REIT with the
REIT being the surviving corporation (the "Cobblestone Merger"). If the
Cobblestone Merger is consummated, holders of all of the outstanding preferred
and common stock of Cobblestone will receive in exchange therefor newly-issued
shares of Paired Common Stock of the Companies with an aggregate value of
approximately $241 million, subject to certain adjustments. In addition, under
the terms of the Cobblestone merger agreement, approximately $154 million of
Cobblestone debt and associated costs will be either refinanced or assumed as a
condition of closing. Cobblestone is a privately-held company which owns and
operates golf courses in the United States. The Cobblestone Merger is subject
to various closing conditions, including, the successful completion of a tender
offer for certain of Cobblestone's outstanding debt instruments, receipt of the
requisite consents to the amendment of certain covenants in Cobblestone's debt
instruments and receipt of governmental approvals.
On March 6, 1998, the REIT entered into an agreement to acquire five golf
courses from the IRI Golf Group ("IRI"), a privately held owner and manager of
golf facilities, for $41 million in cash. The REIT completed the acquisition of
three of the courses on the same date, and the acquisitions of the other two
courses closed during the following week. The golf courses are currently being
managed by Cobblestone Golf Group, Inc., a subsidiary of Cobblestone.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges and the ratios of earnings to
combined fixed charges and preferred stock dividends (i) for the Companies on a
combined basis, (ii) for the REIT on a consolidated basis and (iii) for the
Operating Company on a consolidated basis for each of the periods indicated are
as follows:
The Companies
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------------------
1993 1994 1995 1996 1997
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges ............. 2.02 2.19 2.35 3.27 2.71
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends ......... 2.02 2.19 2.35 3.27 2.71
</TABLE>
The REIT
<TABLE>
<CAPTION>
Year Ended December 31,
---------------------------------------------------------
1993 1994 1995 1996 1997
--------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges ............. 2.02 2.19 2.35 3.27 2.72
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends ......... 2.02 2.19 2.35 3.27 2.72
</TABLE>
The Operating Company
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------------------------------
1993 1994 1995 1996 1997
------ ------ ------ ------ -----------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges ............. -- -- -- -- --(A)
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock Dividends ......... -- -- -- -- --(A)
</TABLE>
- ----------------
(A) Earnings were inadequate to cover fixed charges. The amount of the
deficiency was $391,000.
For periods prior to November 5, 1997, the ratios set forth above reflect
historical financial information for the Corporation's Predecessor and MAC. See
"The Meditrust Companies--Santa Anita Mergers." MAC was organized in 1997. In
addition, the ratios of earnings to fixed charges and earnings to combined
fixed charges and preferred
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stock dividends are identical for the periods indicated because neither the
Corporation's Predecessor, MAC or the Companies had any preferred stock
outstanding.
The ratio of earnings to fixed charges is computed as income from operations
before extraordinary items plus fixed charges (excluding capitalized interest)
divided by fixed charges. Fixed charges consist of interest costs, including
amortization and debt discount and deferred financing fees, whether capitalized
or expensed, plus the interest component of rental expense.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities offered
thereby will be used for general corporate purposes of the issuing Company,
which may include the repayment of indebtedness, the acquisition, development
and improvement of properties, to provide all or a portion of the financing for
acquisitions, and to refinance indebtedness incurred in connection with
acquisitions.
DESCRIPTION OF CAPITAL STOCK
The Certificate of Incorporation of the REIT, as amended (the "REIT
Charter"), authorizes the REIT to issue up to 306,000,000 shares of capital
stock, consisting of (i) 270,000,000 shares of REIT Common Stock, (ii)
6,000,000 shares of REIT Preferred Stock and (iii) 30,000,000 shares of REIT
Series Common Stock (collectively, the "REIT Capital Stock" or "Corporation
Capital Stock"). The REIT Charter grants the REIT Board of Directors the power,
without further shareholder authorization, to authorize from time to time the
issuance of REIT Preferred Stock and REIT Series Common Stock in one or more
series, and to determine the number of shares, dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices, and liquidation
preferences, if any, of any such series and the designation thereof. As of
March 30, 1998, except for the authorized but unissued Junior Participating
Preferred Stock (see "--Rights Agreement" below), and the outstanding Series A
Non-Voting Convertible Common Stock ("REIT Series A Stock") (see "Description
of Series Common Stock--Series A Non-Voting Convertible Common Stock" below),
no shares of REIT Preferred Stock or REIT Series Common Stock were outstanding.
REIT Preferred Stock and REIT Series Common Stock may be subject to the Pairing
Agreement described below.
The Certificate of Incorporation of the Operating Company, as amended (the
"Operating Company Charter") authorizes the Operating Company to issue up to
306,000,000 shares of capital stock, consisting of (i) 270,000,000 shares of
Operating Common Stock, (ii) 6,000,000 shares of Operating Preferred Stock and
(iii) 30,000,000 shares of Operating Series Common Stock (collectively, the
"Operating Capital Stock", and, together with the REIT Capital Stock or
Corporation Capital Stock, the "Capital Stock"). The Operating Company Charter
grants the Operating Company Board of Directors the power, without further
shareholder authorization, to authorize from time to time the issuance of
Operating Preferred Stock and Operating Series Common Stock in one or more
series, and to determine the number of shares, dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices, and liquidation
preferences, if any, of any such series and the designation thereof. As of
March 30, 1998, except for the authorized but unissued Junior Participating
Preferred Stock (see "--Rights Agreement" below), and the outstanding Series A
Non-Voting Convertible Common Stock ("Operating Series A Stock" and, together
with the REIT Series A Stock, the "Series A Stock") (see "Description of Series
Common Stock--Series A Non-Voting Convertible Common Stock" below), no shares
of Operating Preferred Stock or Operating Series Common Stock were outstanding.
Operating Preferred Stock and Operating Series Common Stock may be subject to
the Pairing Agreement described below.
The summary in this Prospectus of certain provisions of the REIT Charter,
the REIT Capital Stock, the Operating Company Charter, the Operating Capital
Stock, the by-laws of the REIT, the by-laws of the Operating Company, the
Pairing Agreement, the Rights Agreement, the Rights, the Junior Preferred Stock
and the Series A Stock (as such terms are herein defined) do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
the terms of such instruments and agreements, copies of which have been filed
or incorporated by reference as exhibits to the Registration Statement.
The Pairing
Pursuant to a pairing agreement by and between the REIT and the Operating
Company, dated as of December 20, 1979, as amended (the "Pairing Agreement"),
(i) the shares of REIT Common Stock and shares of Operating Common Stock are
transferable and tradeable only in combination as units, each unit consisting
of one
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share of REIT Common Stock and one share of Operating Common Stock. These
restrictions on the transfer of shares of REIT Common Stock and Operating
Common Stock are also imposed by the Companies' respective by-laws. The pairing
is evidenced by "back-to-back" stock certificates; that is, certificates
evidencing shares of Operating Common Stock are printed on the reverse side of
certificates evidencing shares of REIT Common Stock. The certificates bear a
legend referring to the restrictions on transfer imposed by the Companies'
by-laws. To permit proper allocation of the consideration received in
connection with the sale of Paired Common Stock, the Pairing Agreement provides
that the REIT and the Operating Company shall, as decided from time to time but
not less than once a year, jointly make arrangements to determine the relative
value of the stock of each Company. Shares of the Preferred Stock and/or Series
Common Stock which are convertible into shares of REIT Common Stock or
Operating Common Stock are also subject to the Pairing Agreement.
Ownership Limitations and Restrictions on Transfers
Under the Code, the REIT may not own, directly or indirectly, after
application of the attribution rules of the Code, 10% or more of the
outstanding shares of Operating Capital Stock, if the REIT is to qualify as a
REIT. Moreover, under the Code the REIT Capital Stock must be held by 100 or
more shareholders and more than 50% of the REIT Capital Stock may not be held
by five or fewer individuals. The Companies' respective by-laws provide that if
the Board of Directors shall at any time and in good faith be of the opinion
that direct or indirect ownership of shares of capital stock of such Company
has or may become concentrated to an extent which would cause the REIT to fail
to qualify or be disqualified as a REIT under the Code, or to an extent which
would cause any rent to be paid to the REIT to fail to qualify or to be
disqualified as rent from real property for purposes of the Code, the Board of
Directors of such Company may call for the purchase from any shareholder of
such Company such number of shares sufficient, in the opinion of the Board of
Directors, to maintain or bring the direct or indirect ownership of shares of
stock of such Company into conformity with the requirements of the Code. The
purchase price for the shares called for purchase shall be equal to the fair
market value of such shares as reflected in the closing price for such shares
on the principal stock exchange on which such shares are listed or, if such
shares are not listed, then the last bid quotation for shares of such stock as
of the close of business on the date fixed by the Board of Directors for such
purchase or, if no quotation for the shares is available, as determined in good
faith by the Board of Directors. From and after the date fixed for purchase by
the Board of Directors as aforesaid, the holders of any shares so called for
purchase shall cease to be entitled to dividends, voting rights and other
benefits with respect to such shares, excepting only the right to payment of
the purchase price fixed as aforesaid. Such purchase price may be paid in cash
or, at the option of the Board of Directors, in the form of subordinated
indebtedness equal to the purchase price of the shares (less amounts paid in
cash, if any), which subordinated indebtedness shall have such other terms as
may be determined by the Board of Directors. In addition, the by-laws of each
Company provide that such Company may refuse to transfer shares of stock to any
person whose acquisition of such shares would, in the opinion of its Board of
Directors, result in the Corporation being unable to conform to the
requirements of the Code referred to above. The by-laws also provide that any
transfer of shares that would prevent the Corporation from continuing to be
qualified as a REIT under the Code shall be void and the intended transferee of
such shares shall be deemed never to have had an interest therein. If the
foregoing provision is determined to be invalid, the by-laws also provide that
the transferee of such shares shall be deemed to have acted as agent on behalf
of the REIT or the Operating Company, as applicable, in acquiring such shares
and to hold such shares on behalf of the REIT or the Operating Company, as
applicable. See "Federal Income Tax Considerations."
Rights Agreement
The REIT has distributed to each holder of REIT Common Stock, and has
authorized, with respect to each additional share of REIT Common Stock that
shall become outstanding between the date of such distribution and the earliest
of the Distribution Date, the Expiration Date (as such terms are hereinafter
defined) or the date, if any, on which Rights (as hereinafter defined) may be
redeemed, the distribution of one right (a "Right") for each share of REIT
Common Stock. Each Right entitles the registered holder to purchase from the
REIT, initially, one one-hundredth of a share of Junior Participating Preferred
Stock ("REIT Junior Preferred Stock") at a price of $100 (the "Purchase
Price"), subject to adjustment. The terms of the Rights are set forth in a
Rights Agreement among the REIT, the Operating Company and Boston EquiServe, as
Rights Agent, dated as of June 15, 1989 (the "Rights Agreement").
REIT Junior Preferred Stock purchasable upon exercise of the Rights will
be entitled to dividends of 100 times the dividends per share declared on REIT
Common Stock and, in the event of liquidation, will be entitled to a
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minimum preferential liquidating distribution of $100 per share and an
aggregate liquidating distribution per share of 100 times the distribution made
with respect to each share of REIT Common Stock. Each share of REIT Junior
Preferred Stock is entitled to 100 votes on all matters submitted to a vote of
shareholders. REIT Junior Preferred Stock will vote together with REIT Common
Stock and, in the event of any merger, consolidation or other transaction in
which REIT Common Stock is exchanged, each share of REIT Junior Preferred Stock
will be entitled to receive 100 times the amount received per share of REIT
Common Stock.
Because of the voting, dividend and liquidation rights of the REIT Junior
Preferred Stock, the value when issued of the one one-hundredth interest in a
share of REIT Junior Preferred Stock purchasable upon exercise of each Right
should approximate the value of one share of REIT Common Stock.
Until the earlier to occur of (i) 10 business days following a public
announcement that an Acquiring Person (as defined) has acquired beneficial
ownership of 10% or more of the REIT's general voting power other than pursuant
to a Qualified Offer (as defined below), the date of such public announcement
being called the "Stock Acquisition Date," or (ii) 10 business days (or such
later date as may be determined by action of the Board of Directors) following
the commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 10% or more of the REIT's general voting
power (the date of the earliest to occur of the foregoing being called the
"Distribution Date"), the Rights will be evidenced by the certificates
representing REIT Common Stock and will be transferred with and only with REIT
Common Stock. The surrender for transfer of any certificate for REIT Common
Stock will also constitute the transfer of the Rights associated with the REIT
Common Stock represented by such certificate. As soon as practicable, following
the Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of REIT Common Stock as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on August 31, 1999 (the "Expiration Date"), unless the Expiration
Date is extended or unless the Rights are earlier redeemed or exchanged by the
REIT, as described below.
The Purchase Price payable, the number of shares or other securities or
property issuable upon exercise of the Rights, and the number of outstanding
Rights, are subject to adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision, combination or
reclassification of, REIT Common Stock or REIT Junior Preferred Stock, (ii)
upon the grant to holders of REIT Common Stock or REIT Junior Preferred Stock
of certain rights or warrants to subscribe for REIT Common Stock or REIT Junior
Preferred Stock at a price, or securities convertible into REIT Common Stock or
REIT Junior Preferred Stock with a conversion price, less than the then current
per share market price, or (iii) upon the distribution to holders of REIT
Common Stock or REIT Junior Preferred Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of earnings or
retained earnings or dividends payable in REIT Common Stock) or of subscription
rights or warrants (other than those referred to above).
A "Qualified Offer" is a tender offer or exchange offer for all
outstanding REIT Common Stock which is determined by a majority of the
independent directors to be adequate and otherwise in the best interests of the
REIT and its shareholders.
If any person becomes an Acquiring Person other than by a purchase
pursuant to a Qualified Offer, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will not be entitled to the
benefit of an Exercise Adjustment (as defined below)), will thereafter have the
right to receive upon exercise that number of shares of REIT Common Stock or
REIT Common Stock equivalents having a market value of two times the exercise
price of the Right (an "Exercise Adjustment"). Such an Exercise Adjustment will
also be made in the event that (i) an Acquiring Person merges with or otherwise
consolidates or combines with the REIT in a transaction in which the REIT is
the surviving corporation, (ii) an Acquiring Person engages in one or more
self-dealing transactions specified in the Rights Agreement, or (iii) during
such time as there is an Acquiring Person, an event specified in the Rights
Agreement occurs which results in the Acquiring Person's ownership interest in
the REIT being increased by more than 1%.
In the event that, at any time after an Acquiring Person has become such,
the REIT is acquired in a merger or other business combination transaction
(other than a merger which follows a Qualified Offer at the same or a higher
price) or 50% or more of its consolidated assets or earning power are sold,
each holder of a Right (other
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than an Acquiring Person) will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right, that number
of shares of common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise price of the
Right.
At any time after an Acquiring Person has become such, the Board of
Directors of the REIT may exchange the Rights (other than Rights owned by such
person or group), in whole or in part, at an exchange ratio of one share of
REIT Common Stock per Right (subject to adjustment).
With certain exceptions, no adjustments in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market price of REIT Common
Stock or REIT Junior Preferred Stock, as the case may be, on the last trading
day prior to the date of exercise.
Up to and including the tenth business day after a Stock Acquisition Date,
the REIT Board of Directors may redeem the Rights in whole, but not in part, at
a price of $.001 per Right (the "Rights Redemption Price"). The redemption of
the Rights may be made effective at such time on such conditions as the Board
of Directors in its sole discretion may establish. Immediately upon any
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Rights
Redemption Price.
The terms of the Rights may be amended by the REIT Board of Directors
without the consent of the holders of the Rights at any time prior to the
Distribution Date. Thereafter the Rights may be amended to make changes which
do not adversely affect the interests of the holders of the Rights, or which
shorten or lengthen time periods, subject to certain limitations set forth in
the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a REIT shareholder, including, without limitation, the right to vote
or to receive dividends.
The Operating Company has authorized the issuance of a series of Junior
Participating Preferred Stock ("Operating Junior Preferred Stock" and, together
with the REIT Junior Preferred Stock, the "Junior Preferred Stock") with terms
substantially similar to the REIT Junior Preferred Stock. The Rights Agreement
provides that, during such time as the Pairing Agreement shall remain in
effect, the Operating Company will issue, on a share for share basis, Operating
Common Stock or Operating Junior Preferred Stock, as the case may be, to each
person receiving REIT Common Stock or REIT Junior Preferred Stock,
respectively, upon exercise of or in exchange for one or more Rights.
The terms of the Rights Agreement and the Junior Preferred Stock could
make it more difficult for a third party to gain control of the Companies, and
could have the effect of delaying or preventing a merger, tender offer or other
attempt to take over the Companies.
Certain Anti-Takeover Provisions
Under the Delaware General Corporation Law (the "DGCL"), transactions such
as mergers, consolidations, sales of substantially all of the assets or
dissolution of a corporation generally must be approved by the holders of at
least a majority of all outstanding shares entitled to vote, unless the
certificate of incorporation requires approval by a greater number of shares.
However, the ability of the Companies to merge with or be acquired by
another corporation is limited by the DGCL. Under the DGCL, with certain
exceptions, a publicly-held corporation may not engage, in a "business
combination" with an "interested stockholder" for a period of three years
following the time of the transaction in which the person became an interested
stockholder unless (i) prior to such date either the business combination or
the transaction which resulted in the stockholder becoming an interested
stockholder is approved by the board of directors of the corporation, (ii) upon
consummation of the transaction which resulted in the stockholder becoming an
interested stockholder, the interested stockholder owns at least 85 percent of
the voting stock of the corporation outstanding at the time the transaction
commenced, excluding for purposes of determining the number of shares
outstanding those shares owned by (A) persons who are both directors and
officers and (B) certain employee stock plans, or (iii) on or after such date
the business combination is approved by the board of directors and authorized
at an annual or special meeting of stockholders, and not by written consent, by
the affirmative vote of at least 662/3 percent of the outstanding voting stock
which is not owned by the interested stockholder. A "business combination"
includes certain mergers, consolidations, asset sales, transfers and
transactions resulting in a financial benefit to the stockholder. An
"interested stockholder" is, in general, a person who, together with affiliates
and
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associates, owns (or within three years, did own) 15 percent or more of the
corporation's voting stock. The DGCL permits the corporation, by vote of the
holders of at least a majority of the shares entitled to vote, to adopt an
amendment to its certificate of incorporation or by-laws expressly electing not
to be governed by the provision restricting business combinations with
interested shareholders. Neither the REIT nor the Operating Company has adopted
such an amendment.
Both the REIT Charter and the Operating Company Charter restrict certain
"business combinations" (as defined therein) with interested shareholders (the
"Business Combination Provisions"). An interested shareholder for the purposes
of the Business Combination Provisions includes any person or entity who is,
together with its affiliates and associates, the beneficial owner of more than
10% of the voting stock of the applicable Company. The Business Combination
Provisions provide that business combinations with interested shareholders of a
Company may not be consummated without:
(a) the affirmative vote of the holders of at least 80% of the combined
voting power of all issued and outstanding shares entitled to vote in
the election of directors of such Company ("Voting Stock");
(b) if less than 90% of the combined voting power of the Voting Stock
approve the business combination, the affirmative vote of at least a
majority of the combined voting power of Voting Stock held by persons
who are not interested shareholders.
The Business Combination Provisions do not apply to business combinations
approved by a majority of the directors unaffiliated with the interested
shareholder and elected prior to such an interested shareholder becoming an
interested shareholder or if certain price and procedural requirements are met.
A "business combination" includes:
(a) a merger or consolidation with an interested shareholder;
(b) the sale or disposition of assets to an interested shareholder having
an aggregate fair market value of $5,000,000 or more;
(c) the issuance of securities to an interested shareholder having a fair
market value of $5,000,000 or more;
(d) the adoption of a plan of liquidation or dissolution proposed by or on
behalf of an interested shareholder; and
(e) any merger, consolidation, reclassification or recapitalization which
increases the proportionate shareholdings of an interested
shareholder.
The higher percentage of shareholder approval required for a business
combination with interested shareholders, together with the provisions of the
DGCL described above and the Rights Agreement, could make it more difficult for
a third party to gain control of the Companies, and could have the effect of
delaying or preventing a merger, tender offer or other attempt to take over the
Companies.
Certain provisions of the DCGL, the REIT Charter and by-laws and the
Operating Company Charter and by-laws could have a potential for similar
anti-takeover effects. Those provisions include the following:
[bullet] the REIT Charter and the Operating Company Chart and the
by-laws of each of the Companies provide for a classified
board of directors, with each class standing for re-election
once every three years;
[bullet] Delaware law permits removal of directors of the REIT and the
Operating Company, other than upon expiration of their term,
only for cause;
[bullet] except as may be provided in a certificate of designations
creating a class or series of Preferred Stock or Series Common
Stock, the by-laws of each of the Companies do not permit
shareholders to call a special meeting of shareholders;
[bullet] the by-laws of each of the Companies contain restrictions on
the number of shares that may be owned by any stockholder and
permit the Companies to enforce those restrictions by
purchasing shares from shareholders or by refusing to transfer
shares, (see "--Ownership Limitations and Restrictions on
Transfers" above);
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[bullet] the REIT Charter and the Operating Company Charter permit the
issuance, without stockholder approval, of one or more series
of Preferred Stock or Series Common Stock with rights and
preferences to be determined by the Board of Directors;
[bullet] the by-laws of each of the Companies eliminate the right of
stockholders to take action by written consent;
[bullet] the by-laws of each of the Companies require that vacancies in
the Board of Directors and newly created directorships be
filled by the remaining directors (except as may otherwise be
provided with respect to any series of Preferred Stock); and
[bullet] the by-laws of each of the Companies require advance notice of
stockholder proposals and director nominations.
DESCRIPTION OF PAIRED COMMON STOCK
General
The Paired Common Stock is currently listed on the NYSE under the symbol
"MT". As of the close of business on March 26, 1998, there were 89,717,320
shares of REIT Common Stock outstanding and 88,411,943 shares of Operating
Common Stock outstanding.
Terms
Subject to provisions of law and the preferences of any series of
Preferred Stock or Series Common Stock outstanding, holders of Paired Common
Stock are entitled to receive dividends at such times and in such amounts as
may be declared from time to time by the respective Boards of Directors out of
funds legally available therefor. To maintain eligibility as a REIT, the
Corporation must in general distribute at least 95% of its "real estate
investment trust taxable income" before deduction of dividends paid (less any
net long-term capital gain and subject to certain other adjustments) to its
shareholders.
Holders of Paired Common Stock are entitled to one vote for each share
held on every matter submitted to a vote of shareholders of the respective
Companies. Except as otherwise provided by law, by the terms of the REIT's and
Operating Company's Series A Stock or authorized but unissued Junior Preferred
Stock, or by the terms of any other series of Preferred Stock or Series Common
Stock, the holders of the Paired Common Stock of each Company have sole voting
power.
Transfer Agent
The transfer agent and registrar for the Paired Common Stock is State
Street Bank and Trust Company, Boston, Massachusetts, acting through its
servicing agent, Boston EquiServe.
DESCRIPTION OF PREFERRED STOCK
The Board of Directors of each of the Companies may authorize the issuance
of shares of Preferred Stock of such Company in one or more series. The summary
of certain provisions of the Preferred Stock set forth below and the summary of
certain terms of a particular series of Preferred Stock set forth in the
applicable Prospectus Supplement do not purport to be complete and are subject
to and qualified in their entirety by reference to all of the provisions of the
REIT Charter and the Operating Company Charter, as applicable, and the by-laws
of the REIT and the Operating Company, as applicable, which have been filed or
incorporated by reference as exhibits to the Registration Statement, and the
form of certificate of designations (the "Certificate of Designations")
relating to such series of Preferred Stock which will be filed as an exhibit to
or incorporated by reference in the Registration Statement, all of which are
incorporated herein by reference and copies of which may be obtained as
described under "Available Information."
The following description of Preferred Stock sets forth certain general
terms and provisions of the series of Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of any particular series of
Preferred Stock, including Preferred Stock to be represented by Depositary
Shares, will be described in the applicable Prospectus Supplement. To the
extent that any particular terms of any Preferred Stock described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
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General
Each of the Companies is authorized to issue 6,000,000 shares of Preferred
Stock, $.10 par value per share, in one or more series. No shares of Preferred
Stock were outstanding as of the date of this Prospectus. However, in
connection with the Rights Agreement, each of the Companies has authorized the
issuance of 200,000 shares of its respective Junior Preferred Stock. No shares
of Junior Preferred Stock were outstanding on the date of this Prospectus and
such shares will be issued only in connection with the exercise of Rights. See
"Description of Capital Stock--Rights Agreement."
Each of the Companies may offer shares of its Preferred Stock separately
from the other Company, or the Companies may offer shares of their respective
Preferred Stocks together, and the Preferred Stock of one Company may or may
not be paired with the Preferred Stock of the other Company. However, when
issued, the Preferred Stock of any series will represent an equity interest
only in the Company which issued such Preferred Stock and will not represent an
equity interest in, and will not otherwise be an obligation of, the other
Company, even though the Preferred Stock of one Company may be paired with the
Preferred Stock of the other Company. As used under this caption "Description
of Preferred Stock," the term "Issuing Company" means, with respect to any
series of Preferred Stock offered by a Prospectus Supplement, the Company which
is issuing such Preferred Stock.
Terms
Subject to the limitations prescribed by Delaware law and the REIT Charter
and the Operating Company Charter, as applicable, the Board of Directors of
each of the Companies is authorized to fix the number of shares constituting
each series of Preferred Stock and the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices, and liquidation
preference of any wholly unissued series of Preferred Stock and the designation
thereof. The Preferred Stock will, when issued, be fully paid and nonassessable
by the Issuing Company and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the series of
Preferred Stock offered thereby for specific terms thereof, including:
(1) the title of such series of Preferred Stock;
(2) the number of shares of such series of Preferred Stock offered, the
liquidation preference per share and the public offering price of such
Preferred Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Preferred Stock;
(4) the date from which dividends on such Preferred Stock shall accrue, if
applicable, and whether dividends on such Preferred Stock shall be
cumulative or non-cumulative;
(5) the procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) the provision for a sinking fund, if any, for such Preferred Stock;
(7) the provision for redemption, if applicable, of such Preferred Stock;
(8) any listing of such Preferred Stock on any securities exchange;
(9) the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Paired Common Stock of the Companies,
including the conversion price or manner of calculation thereof;
(10) whether interests in such Preferred Stock will be represented by
Depositary Shares;
(11) the preferences of such Preferred Stock as to dividends and rights
upon liquidation, dissolution or winding up of the Issuing Company;
(12) in addition to the limitations described above under "Description of
Capital Stock--Ownership Limitations and Restrictions on Transfers",
any limitations on direct or beneficial ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status of
the Corporation as a REIT; and
(13) any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
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Rank
Unless otherwise specified in the applicable Prospectus Supplement, each
series of Preferred Stock of an Issuing Company will rank, with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of such Issuing Company, (i) senior to the Common
Stock of such Issuing Company and senior to all other capital stock of such
Issuing Company other than capital stock referred to in clauses (ii) and (iii)
of this sentence; (ii) on a parity with all capital stock of such Issuing
Company the terms of which specifically provide that such capital stock ranks
on a parity with the Preferred Stock of such series with respect to the payment
of dividends and the distribution of assets upon liquidation, dissolution or
winding up of such Issuing Company; and (iii) junior to all capital stock of
such Issuing Company the terms of which specifically provide that such capital
stock ranks senior to the Preferred Stock of such series with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of such Issuing Company. In that regard, the Board of
Directors of an Issuing Company may from time to time, without shareholder
approval, authorize the issuance of one or more series of Preferred Stock or
Series Common Stock ranking on a parity with the Preferred Stock of any other
series. See "Description of Capital Stock" above and "--Voting Rights" below.
Dividend and Redemption Restrictions
As described above, but subject to the limitations described below under
"--Voting Rights", the Issuing Company may from time to time issue capital
stock which ranks senior to the Preferred Stock offered by any Prospectus
Supplement as to dividends or rights upon liquidation, dissolution or winding
up of the Issuing Company. In addition, the Issuing Company and its
subsidiaries are or may in the future become parties to agreements and
instruments which restrict or prevent the payment of dividends on, or the
purchase or redemption of, the Issuing Company's Paired Common Stock, Preferred
Stock or Series Common Stock, including indirect restrictions (through, for
example, covenants requiring the maintenance of specified levels of net worth)
and direct restrictions. See "Risk Factors--Risks Related to Restrictions on
Dividends and Distributions; Risks Relating to Restrictive Debt Covenants and
Compliance with Debt Instruments."
In the event of a deterioration in the financial condition or results of
operations of the Corporation or the Operating Company, the terms of the
Revolving Loan Agreements, the Existing Indentures or other instruments or
agreements to which the Companies or their subsidiaries are or may in the
future become parties could limit or prohibit the payment of dividends on
shares of Paired Common Stock, Preferred Stock or Series Common Stock offered
by any Prospectus Supplement. Any failure of the Corporation to pay dividends
as required by the Code, whether as a result of restrictive covenants in its
debt instruments or otherwise, would result in the loss of its status as a REIT
under the Code. See "Risk Factors--Risks Related to Restrictions on Dividends
and Distributions; Risks Relating to Restrictive Debt Covenants and Compliance
with Debt Instruments."
Dividends
Subject to the preferential rights of the holders of any capital stock of
the Issuing Company ranking prior to any series of Preferred Stock as to
dividends, the holders of the Preferred Stock of each series will be entitled
to receive, when, as and if declared by the Board of Directors of the Issuing
Company, out of assets of the Issuing Company legally available for payment,
cash dividends at such rates and on such dates as will be set forth in the
applicable Prospectus Supplement. Each such dividend shall be payable to
holders of record as they appear on the share transfer books of the Issuing
Company on such record dates as shall be fixed by the Board of Directors of the
Issuing Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will accumulate from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors of the Issuing
Company fails to declare a dividend payable on a dividend payment date on any
series of the Preferred Stock for which dividends are noncumulative, then the
holders of such series of the Preferred Stock will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Issuing Company will have no obligation to pay the dividend
accrued for such period, whether or not dividends on such series are declared
payable on any future dividend payment date.
If any shares of Preferred Stock of any series of an Issuing Company are
outstanding, no full dividends will be declared or paid or set apart for
payment on any capital stock of the Issuing Company of any other class or
series
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ranking, as to dividends, on a parity with or junior to the Preferred Stock of
such series for any period unless (i) if such series of Preferred Stock has a
cumulative dividend, full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Preferred Stock of such series for all past
dividend periods and the then current dividend period or (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends for the
then current dividend period have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
such payment on the Preferred Stock of such series. When dividends are not paid
in full (or a sum sufficient for such full payment is not so set apart) upon
Preferred Stock of any series and the shares of any other class or series of
capital stock of the Issuing Company ranking on a parity as to dividends with
the Preferred Stock of such series, all dividends declared upon the Preferred
Stock of such series and any other class or series of capital stock of the
Issuing Company ranking on a parity as to dividends with the Preferred Stock of
such series shall be declared pro rata so that the amount of dividends declared
per share of Preferred Stock of such series and such other class or series of
capital stock of the Issuing Company shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the Preferred Stock
of such series (which shall not include any accumulation in respect of unpaid
dividends for prior dividend periods if such Preferred Stock does not have a
cumulative dividend) and such other class or series of capital stock of the
Issuing Company bear to each other. Holders of shares of any series of
Preferred Stock shall not be entitled to any dividends, whether payable in
cash, securities or other property, in excess of full cumulative (if
applicable) dividends on such series. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on
Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, or (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the then current
dividend period, no dividends (other than in shares of Common Stock of the
Issuing Company or other capital stock of the Issuing Company ranking junior to
the Preferred Stock of such series as to dividends and as to the distribution
of assets upon liquidation, dissolution and winding up of the Issuing Company)
shall be declared or paid or set aside for payment or other distribution
declared or made upon the Common Stock of the Issuing Company or any other
capital stock of the Issuing Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Issuing Company, nor
shall any shares of Common Stock of the Issuing Company or any other capital
stock of the Issuing Company ranking junior to or on a parity with the
Preferred Stock of such series as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Issuing Company be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
paid to or made available for a sinking fund for the redemption of any such
shares of junior or parity stock) by the Issuing Company (except by conversion
into or exchange for other capital stock of the Issuing Company ranking junior
to the Preferred Stock of such series as to dividends and as to the
distribution of assets upon liquidation, dissolution and winding up of the
Issuing Company, and except for the purchase of capital stock of the Issuing
Company pursuant to the provisions of its by-laws allowing it to purchase
shares of its capital stock to preserve the status of the Corporation as a REIT
for federal income tax purposes).
Redemption
If so provided in the applicable Prospectus Supplement, the Preferred
Stock offered thereby may be subject to mandatory redemption or redemption at
the option of the Issuing Company, as a whole or in part, in each case upon the
terms, at the times and at the redemption prices set forth in such Prospectus
Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Issuing Company in each year
commencing after a date to be specified, at a redemption price per share to be
specified, together with an amount equal to all accrued and unpaid dividends
thereon (which shall not, if such Preferred Stock does not have a cumulative
dividend, include any accumulation in respect of unpaid dividends for prior
dividend periods) to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the applicable
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Prospectus Supplement. If the redemption price for Preferred Stock of any
series is payable only from the net proceeds of the issuance of capital stock
of the Issuing Company, the terms of such Preferred Stock may provide that, if
no such capital stock shall have been issued or to the extent the net proceeds
from any issuance are insufficient to pay in full the aggregate redemption
price then due, such Preferred Stock shall automatically and mandatorily be
converted into the applicable capital stock of the Issuing Company pursuant to
conversion provisions specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if such series of Preferred
Stock has a cumulative dividend, full cumulative dividends on all shares of
such series of Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for all past dividend periods and the then current dividend period, and
(ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends on all shares of Preferred Stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for the then current dividend period,
no shares of such series of Preferred Stock shall be redeemed unless all
outstanding shares of Preferred Stock of such series are simultaneously
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of Preferred Stock of such series pursuant to the provisions of
the by-laws of the Issuing Company allowing it to purchase shares of its
capital stock to preserve the status of the Corporation as a REIT for federal
income tax purposes or pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of Preferred Stock of such
series. In addition, unless (i) if such series of Preferred Stock has a
cumulative dividend, full cumulative dividends on all outstanding shares of
such series of Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for
payment for all past dividend periods and the then current dividend period, and
(ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends on the Preferred Stock of such series have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for payment for the then current dividend period,
the Issuing Company shall not purchase or otherwise acquire directly or
indirectly any shares of Preferred Stock of such series (except by conversion
into or exchange for capital stock of such Issuing Company ranking junior to
the Preferred Stock of such series as to the payment of dividends and with
respect to the distribution of assets upon liquidation, dissolution and winding
up of such Issuing Company); provided, however, that the foregoing shall not
prevent the purchase or acquisition of Preferred Stock of such series pursuant
to the provisions of the by-laws of the Issuing Company allowing it to purchase
shares of its capital stock to preserve the status of the Corporation as a REIT
for federal income tax purposes or pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of Preferred Stock
of such series.
If fewer than all of the outstanding shares of Preferred Stock of any
series are to be redeemed at the option of the Issuing Company, the number of
shares to be redeemed will be determined by the Issuing Company and such shares
may be redeemed pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders (with adjustments
to avoid redemption of fractional shares or, if fractional shares are
outstanding, with such additional adjustments as the Issuing Company may elect
in order to effect the redemption of fractional shares) or by lot or any other
equitable manner determined by the Issuing Company that will not give the
Issuing Company the right to purchase shares of Preferred Stock of such series
pursuant to the provisions in its by-laws allowing it to purchase shares of its
capital stock to preserve the status of the Corporation as a REIT for federal
income tax purposes.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of Preferred Stock of
any series to be redeemed at the address shown on the share transfer books of
the Issuing Company. Each notice shall state: (i) the redemption date; (ii) the
number of shares and series of the Preferred Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such
Preferred Stock are to be surrendered for payment of the redemption price; (v)
that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) the date upon which the holder's conversion rights,
if any, as to such shares shall terminate. If fewer than all the shares of
Preferred Stock of any series are to be redeemed, the notice mailed to each
such holder thereof shall also specify the number of shares of Preferred Stock
to be redeemed from each such holder. If notice of redemption of any Preferred
Stock has been given and if the funds necessary for such redemption have been
set aside by the Issuing Company in trust for the benefit of the holders of the
shares of Preferred Stock so called for redemption, then from and after the
redemption date dividends will cease to accrue on shares of such Preferred
Stock so called for redemption, such shares of Preferred Stock shall no longer
be deemed outstanding, and all rights of the holders of such shares will
terminate, except the right
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to receive the redemption price together with, if applicable, accrued and
unpaid dividends thereon (which shall not include any accumulation in respect
of unpaid dividends for prior dividend periods if such series of Preferred
Stock does not have cumulative dividends).
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the Issuing Company, then, before any distribution or payment shall be made
to the holders of any Common Stock, Junior Preferred Stock or Series A Stock of
the Issuing Company or any other class or series of capital stock of the
Issuing Company ranking junior to the Preferred Stock of any series with
respect to the distribution of assets upon liquidation, dissolution or winding
up of the Issuing Company, the holders of such series of Preferred Stock shall
be entitled to receive out of assets of the Issuing Company legally available
for distribution to stockholders liquidating distributions in the amount of the
liquidation preference per share (as set forth in the applicable Prospectus
Supplement), plus an amount equal to all dividends accrued and unpaid thereon
(which shall not include any accumulation in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a cumulative
dividend). After payment of the full amount of the liquidating distributions to
which they are entitled, the holders of Preferred Stock of such series will
have no right or claim to any of the remaining assets of the Issuing Company.
If, upon any such voluntary or involuntary liquidation, dissolution or winding
up, the assets of the Issuing Company legally available therefor are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Preferred Stock of such series and the corresponding
amounts payable on all shares of other classes or series of capital stock of
the Issuing Company ranking on a parity with the Preferred Stock of such series
with respect to the distribution of assets upon liquidation, dissolution or
winding up, then the holders of the Preferred Stock of such series and all
other such classes or series of capital stock will share ratably in any such
distribution of assets in proportion to the full liquidating distributions
(including accrued and unpaid dividends) to which they would otherwise be
respectively entitled.
If liquidating distributions shall have been made in full to all holders
of Preferred Stock of any series, the remaining assets of the Issuing Company
shall be distributed among the holders of any other classes or series of
capital stock ranking junior to the Preferred Stock of such series upon
liquidation, dissolution or winding up, according to their respective rights
and preferences. For such purposes, neither the consolidation or merger of the
Issuing Company with or into any other corporation, trust or entity, nor the
sale, lease or conveyance of all or substantially all of the property or
business of the Issuing Company, shall be deemed to constitute a liquidation,
dissolution or winding up of the Issuing Company.
Voting Rights
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
If the terms of the Certificate of Designations, as described in the
Prospectus Supplement relating thereto, creating a particular series of
Preferred Stock so provide, then whenever dividends on any shares of Preferred
Stock of such series shall be in arrears for six or more quarterly periods
(whether or not consecutive), the holders of shares of Preferred Stock of such
series (voting separately as a class with all other classes or series of
capital stock of the Issuing Company upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of two
additional directors of the Issuing Company at a special meeting called by the
holders of record of at least 10% of the outstanding shares of such series of
Preferred Stock or by the holders of any other class or series of capital stock
of the issuing Company upon which like voting rights have been conferred and
are exercisable (unless such request is received less than 90 days before the
date fixed for the next annual or special meeting of the stockholders) or at
the next annual or special meeting of stockholders, and at each subsequent
annual meeting until (i) if such series of Preferred Stock has a cumulative
dividend, all dividends accumulated on such shares of Preferred Stock for all
past dividend periods and the then current dividend period shall have been
fully paid or declared and a sum sufficient for the payment thereof set aside
for payment or (ii) if such series of Preferred Stock does not have a
cumulative dividend, four consecutive quarterly dividends shall have been fully
paid or declared and a sum sufficient for the payment thereof set aside for
payment. In such case, the entire board of directors of the Issuing Company
will be automatically increased by two directors.
Unless provided otherwise for any series of Preferred Stock, so long as
any shares of Preferred Stock of any series remain outstanding, the Issuing
Company will not, without the affirmative vote or consent of the holders of at
least two-thirds of the shares of such series of Preferred Stock outstanding at
the time, given in person or
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by proxy (such series voting separately as a class), (i) authorize or create,
or increase the authorized or issued amount of, any class or series of capital
stock ranking prior to such series of Preferred Stock with respect to payment
of dividends or the distribution of assets upon liquidation, dissolution or
winding up or reclassify any authorized capital stock of such Issuing Company
into such shares, or create, authorize or issue any obligation or security
convertible into, exchangeable or exercisable for, or evidencing the right to
purchase, any such shares; or (ii) amend, alter or repeal the provisions of the
Issuing Company's certificate of incorporation (including the Certificate of
Designation for such series of Preferred Stock), whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of such series of
Preferred Stock or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii) above, so long as the
Preferred Stock of such series remains outstanding with the terms thereof
materially unchanged, taking into account that upon the occurrence of such an
Event, the Company may not be the surviving entity, the occurrence of any such
Event shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of Preferred Stock of such
series; and provided further that any increase in the amount of the authorized
Preferred Stock or Series Common Stock or the creation or issuance of any other
series of Preferred Stock or any series of Series Common Stock, or any increase
in the amount of authorized or outstanding shares of such series or any other
series of Preferred Stock or any series of Series Common Stock, in each case
ranking on a parity with or junior to the Preferred Stock of such series with
respect to payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall
have been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
Conversion Rights
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into shares of Common Stock of the Issuing Company will be set
forth in the applicable Prospectus Supplement relating thereto. Such terms will
include the conversion price or rate (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the holders of the Preferred Stock of such series or the Issuing Company, the
events requiring an adjustment of the conversion price or rate and provisions
affecting conversion in the event of the redemption of such series of Preferred
Stock.
Restrictions on Ownership and Transfer
The by-laws of each Issuing Company contain provisions and restrictions
intended to preserve the status of the Corporation as a REIT for federal income
tax purposes, including provisions permitting such Issuing Company to purchase
its capital stock from stockholders or to refuse to transfer its capital stock.
The Preferred Stock offered by any Prospectus Supplement will be subject to all
of such provisions and restrictions. See "Description of Capital
Stock--Ownership Limitations and Restrictions on Transfers."
Registrar and Transfer Agent
The Registrar and Transfer Agent for the Preferred Stock of any series
will be set forth in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
General
Each of the Companies may issue Depositary Shares, each of which will
represent a fractional interest in a share of a particular series of Preferred
Stock of such Company, as specified in the applicable Prospectus Supplement.
Shares of Preferred Stock of each series represented by Depositary Shares will
be deposited under a separate deposit agreement (each, a "Deposit Agreement")
among the Issuing Company (as defined below), the depositary named in such
Deposit Agreement (the "Preferred Stock Depositary"), and the holders from time
to time of the depositary receipts (the "Depositary Receipts") issued under
such Deposit Agreement. Subject to the terms of the applicable Deposit
Agreement, each owner of a Depositary Receipt will be entitled, in proportion
to the fractional interest in a share of a particular series of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipt, to
all the rights and preferences of the Preferred Stock represented by such
Depositary Shares (including dividend, voting, conversion (if any), redemption
(if any) and liquidation rights).
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Each of the Companies may offer its Depositary Shares separately from the
other Company, or the Companies may offer their respective Depositary Shares
together, and the Depositary Shares of one Company may or may not be paired
with the Depositary Shares of the other Company. However, when issued, the
Preferred Stock of any series represented by Depositary Shares will represent
an equity interest only in the Company which issued such Preferred Stock and
will not represent an equity interest in, and will not otherwise be an
obligation of, the other Company, even though the Depositary Shares of one
Company may be paired with the Depositary Shares of the other Company. As used
under this caption "Description of Depositary Shares," the term "Issuing
Company" means, with respect to any Depositary Shares offered by a Prospectus
Supplement, the Company which is issuing the Preferred Stock represented by
such Depositary Shares.
The summary of certain provisions of a particular issue of Depositary
Shares and the related Depositary Receipts and Deposit Agreement set forth
herein and in the applicable Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to all of
the provisions of the form of such Deposit Agreement, together with the form of
related Depositary Receipt, which will be filed or incorporated by reference as
an exhibit to the Registration Statement and will be available as described
under "Available Information." The description of the Depositary Shares, the
Depositary Receipts and the Deposit Agreement herein sets forth certain general
terms and provisions thereof to which any Prospectus Supplement may relate.
Certain other terms of any issue of Depositary Shares and the related
Depositary Receipts and the Deposit Agreement may be described in the
applicable Prospectus Supplement. To the extent that any particular terms of
the Depositary Shares or the related Depositary Receipts or Deposit Agreement
described in a Prospectus Supplement differ from any of the terms described
herein, then such terms described herein shall be deemed to have been
superseded by such Prospectus Supplement.
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the
issuance and delivery of the Preferred Stock by the Issuing Company to the
applicable Preferred Stock Depositary, the Issuing Company will cause the
Preferred Stock Depositary to issue the Depositary Receipts on behalf of the
Issuing Company.
Depositary Receipts may be surrendered for transfer or exchange for new
Depositary Receipts of different authorized denominations at any office of the
applicable Preferred Stock Depositary maintained for such purpose, subject to
the terms of the related Deposit Agreement. Unless otherwise specified in the
applicable Prospectus Supplement, Depositary Receipts will be issued in
denominations evidencing any whole number of Depositary Shares. No service
charge will be made for any transfer or exchange of Depositary Receipts, but
the Issuing Company or the Preferred Stock Depositary may require payment of
any transfer tax or similar governmental charge payable in connection
therewith.
Dividends and Other Distributions
The Preferred Stock Depositary will be required to distribute all cash
dividends or other cash distributions received in respect of the applicable
Preferred Stock to the record holders of Depositary Receipts evidencing the
related Depositary Shares in proportion, insofar as possible, to the number of
such Depositary Receipts owned by such holders on the relevant record date,
subject to certain obligations of holders to file proofs, certificates and
other information and to pay certain charges and expenses to the Preferred
Stock Depositary. The Preferred Stock Depositary will distribute only such
amount, however, as can be distributed without attributing to any holder of
Depositary Receipts a fraction of one cent, and any balance not so distributed
will be added to and treated as part of the next sum, if any, received by the
Preferred Stock Depositary for distribution to record holders of Depositary
Receipts, and no interest will accrue on any such amount not so distributed.
In the event of a dividend or other distribution other than in cash, the
Preferred Stock Depositary will be required to distribute the property received
by it to the record holders of Depositary Receipts entitled thereto in
proportion, insofar as possible, to the number of Depositary Receipts owned by
such holders on the relevant record date, subject to certain obligations of
holders to file proofs, certificates, and other information and to pay certain
charges and expenses to the Preferred Stock Depositary, unless the Preferred
Stock Depositary determines that it is not feasible to make such distribution,
in which case the Preferred Stock Depositary may, with the approval of the
Issuing Company, sell such property and distribute the net proceeds from such
sale to such holders.
The amount distributed in any of the foregoing cases will be reduced by an
amount required to be withheld by the Issuing Company or the Preferred Stock
Depositary on account of taxes.
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Withdrawal of Preferred Stock
Upon surrender of Depositary Receipts at the designated office of the
Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption), the holders of such Depositary Receipts
will be entitled to delivery at such office, to or upon such holders' order, of
the number of whole or fractional shares of the related Preferred Stock and any
money or other property represented by the Depositary Shares evidenced by such
Depositary Receipts. Holders of Depositary Receipts will be entitled to receive
whole or fractional shares of the related Preferred Stock on the basis of the
fractional interest in a share of Preferred Stock represented by each
Depositary Share as specified in the applicable Prospectus Supplement. Shares
of Preferred Stock so withdrawn, however, may not be redeposited. If the
Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
shares of Preferred Stock to be withdrawn, the Preferred Stock Depositary will
deliver to such holder at the same time a new Depositary Receipt evidencing
such excess number of Depositary Shares. The Corporation and the Operating
Company do not expect that there will be any public market for shares of
Preferred Stock that are withdrawn as described in this paragraph.
Redemption of Depositary Shares
If a series of Preferred Stock represented by Depositary Shares is subject
to redemption at the option of the Issuing Company, then, whenever the Issuing
Company redeems shares of such Preferred Stock held by the applicable Preferred
Stock Depositary, the Preferred Stock Depositary will be required to redeem as
of the same redemption date the number of Depositary Shares representing the
shares of Preferred Stock so redeemed, provided the Issuing Company has paid in
full to the Preferred Stock Depositary the redemption price of the Preferred
Stock to be redeemed plus, unless otherwise provided in the applicable
Prospectus Supplement, an amount equal to any accrued and unpaid dividends to
the date fixed for redemption. The redemption price per Depositary Share will
be equal to the redemption price and any other amounts per share payable with
respect to one share of the Preferred Stock being redeemed multiplied by the
fraction of a share of such Preferred Stock represented by one such Depositary
Share. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by lot or by any
other equitable method determined by the Issuing Company that will not give the
Issuing Company the right to purchase Depositary Receipts, Depositary Shares or
shares of Preferred Stock represented by such Depositary Shares pursuant to the
provisions of its by-laws allowing the purchase of its capital stock to
preserve the status of the Corporation as a REIT for federal income tax
purposes. If the Depositary Shares evidenced by a Depositary Receipt are to be
redeemed in part only, one or more new Depositary Receipts will be issued for
the Depositary Shares not so redeemed.
From and after the date fixed for redemption all dividends in respect of
the shares of Preferred Stock called for redemption will cease to accrue; the
Depositary Shares called for redemption will no longer be deemed to be
outstanding; and all rights of the holders of the Depositary Receipts
evidencing the Depositary Shares called for redemption will cease, except the
right to receive any monies payable upon such redemption and any money or other
property to which the holders of such Depositary Receipts were entitled upon
such redemption upon surrender of the Depositary Receipts to the Preferred
Stock Depositary.
Voting of the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
applicable Preferred Stock are entitled to vote, the Preferred Stock Depositary
will be required to mail the information contained in such notice of meeting to
the record holders of the Depositary Receipts evidencing the Depositary Shares
that represent such Preferred Stock. Each record holder of Depositary Receipts
evidencing Depositary Shares on the record date (which will be the same date as
the record date for the related Preferred Stock) will be entitled to instruct
the Preferred Stock Depositary as to the exercise of the voting rights
pertaining to the shares of Preferred Stock represented by such holder's
Depositary Shares. The Preferred Stock Depositary will be required to vote the
shares of Preferred Stock represented by such Depositary Shares in accordance
with such instructions, and the Issuing Company will agree to take all
reasonable action that may be deemed necessary by the Preferred Stock
Depositary in order to enable the Preferred Stock Depositary to do so. The
Preferred Stock Depositary will be required to abstain from voting the shares
of Preferred Stock represented by such Depositary Shares to the extent it does
not receive specific instructions from the holders of Depositary Receipts
evidencing such Depositary Shares. The Preferred Stock
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Depositary will not be responsible for any failure to carry out any instruction
to vote or for the manner or effect of any such vote made, as long as any such
action or inaction is in good faith and does not result from negligence or
willful misconduct of the Preferred Stock Depositary.
Liquidation Preference
In the event of the liquidation, dissolution, or winding up of the Issuing
Company, whether voluntary or involuntary, the holder of each Depositary
Receipt will be entitled to an amount per Depositary Receipt equal to the
liquidation preference accorded one share of the related Preferred Stock plus
accrued and unpaid dividends thereon, if any, multiplied by the fraction of a
share of Preferred Stock represented by one such Depositary Share.
Conversion of Preferred Stock
The Depositary Shares, as such, are not convertible into Common Stock or
any other securities or property of the Issuing Company. Nevertheless, if the
Preferred Stock represented by Depositary Shares is convertible at the option
of the holders thereof into Common Stock or other securities of the Issuing
Company as specified in the applicable Prospectus Supplement, the related
Depositary Receipts may be surrendered by their holders to the applicable
Preferred Stock Depositary with written instructions to the Preferred Stock
Depositary to instruct the Issuing Company to cause conversion of the Preferred
Stock represented by the Depositary Shares evidenced by such Depositary
Receipts into whole shares of Common Stock or other applicable securities of
the Issuing Company, and the Issuing Company has agreed that upon receipt of
such instructions and any amounts payable in respect of such conversion, it
will cause the conversion utilizing the same procedures as those provided for
delivery of Preferred Stock to effect such conversion. The conversion rate or
price, as the case may be, per Depositary Share will be equal to the conversion
rate or price per share of the related Preferred Stock appropriately adjusted
by the fraction of a share of such Preferred Stock represented by one
Depositary Share. If the Depositary Shares evidenced by a Depositary Receipt
are to be converted in part only, a new Depositary Receipt will be issued for
any Depositary Shares not to be converted. No fractional shares of Common Stock
will be issued upon conversion, and if such conversion would result in a
fractional share of Common Stock being issued, an amount will be paid in cash
by the Issuing Company equal to the value of the fractional interest based upon
the closing price (as defined) of the Common Stock.
Amendment and Termination of a Deposit Agreement
The Depositary Receipts evidencing Depositary Shares and any provision of
a Deposit Agreement may at any time be amended by agreement between the Issuing
Company and the applicable Preferred Stock Depositary. However, any amendment
that materially and adversely alters the rights of the holders of Depositary
Receipts or that would be materially and adversely inconsistent with the rights
granted to the holders of the related Preferred Stock will not be effective
unless such amendment has been approved by the holders of Depositary Receipts
evidencing at least two-thirds of the Depositary Shares then outstanding. No
amendment may impair the right, subject to certain exceptions in the Deposit
Agreement, of any holder of Depositary Receipts to surrender any Depositary
Receipt with instructions to deliver to the holder the related Preferred Stock
and all money and other property, if any, represented by such Depositary
Receipt, except in order to comply with law. Every holder of an outstanding
Depositary Receipt at the time any such amendment becomes effective will be
deemed, by continuing to hold such Depositary Receipt, to consent and agree to
such amendment and to be bound by the applicable Deposit Agreement as amended
thereby.
A Deposit Agreement may be terminated by the Issuing Company upon not less
than 30 days' prior written notice to the applicable Preferred Stock Depositary
if (i) such termination is necessary to preserve the Corporation's status as a
REIT for federal income tax purposes or (ii) the holders of Depositary Receipts
evidencing at least a majority of the outstanding Depositary Shares affected by
such termination consent to such termination. Upon such termination, the
Preferred Stock Depositary will be required to deliver or make available to
each holder of the related Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, the number of whole or fractional
shares of Preferred Stock that are represented by the Depositary Shares
evidenced by such Depositary Receipts, together with any cash or other property
held by such Preferred Stock Depositary with respect to such Depositary
Receipts. The Issuing Company will agree that, if a Deposit Agreement is
terminated to preserve the Corporation's status as a REIT, then the Issuing
Company will use its best efforts to list the related Preferred Stock on a
national securities exchange. In addition, a Deposit Agreement will
automatically terminate if (i) all outstanding
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Depositary Shares issued under such Deposit Agreement have been redeemed, (ii)
there has been a final distribution in respect of the related Preferred Stock
in connection with any liquidation, dissolution or winding up of the Issuing
Company, and such distribution has been distributed to the holders of
Depositary Receipts evidencing the Depositary Shares representing such
Preferred Stock, or (iii) each share of the related Preferred Stock has been
converted into stock or other securities of the Issuing Company not so
represented by Depositary Shares.
Charges of Preferred Stock Depositary
The Issuing Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of a Deposit Agreement. In addition,
the Issuing Company will pay the fees and expenses of the Preferred Stock
Depositary in connection with the performance of its duties under a Deposit
Agreement; however, holders of Depositary Receipts will pay the fees and
expenses of the Preferred Stock Depositary for any duties requested by such
holders to be performed that are outside of those expressly provided for in the
applicable Deposit Agreement.
Resignation and Removal of Preferred Stock Depositary
A Preferred Stock Depositary will be permitted to resign at any time by
delivering to the Issuing Company notice of its election to do so, and the
Issuing Company will be permitted at any time to remove a Preferred Stock
Depositary, any such resignation or removal to take effect upon the appointment
of and acceptance thereof by a successor Preferred Stock Depositary. A
successor Preferred Stock Depositary will be required to be appointed within 60
days after delivery of the notice of resignation or removal and will be
required to be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50
million.
Miscellaneous
The Preferred Stock Depositary will be required to forward to holders of
Depositary Receipts certain reports and communications from the Issuing Company
that are received by the Preferred Stock Depositary with respect to the related
Preferred Stock.
Neither the Preferred Stock Depositary nor the Issuing Company will be
liable if it is prevented from or delayed in, by law or by circumstances beyond
its control, performing its obligations under the related Deposit Agreement.
The obligations of the Issuing Company and the Preferred Stock Depositary under
the Deposit Agreement will be limited to performing their duties in good faith
and without negligence or willful misconduct, and the Issuing Company and the
Preferred Stock Depositary will not be obligated to prosecute or defend any
legal proceeding in respect of any Depositary Receipts, Depositary Shares or
the related shares of Preferred Stock unless satisfactory indemnity is
furnished. The Issuing Company and the Preferred Stock Depositary may rely on
written advice of counsel or accountants, information provided by persons
presenting shares of Preferred Stock for deposit, holders of Depositary
Receipts, or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed
by a proper party.
In the event the Preferred Stock Depositary receives conflicting claims,
requests or instructions from any holders of Depositary Receipts, on the one
hand, and the Issuing Company, on the other hand, the Preferred Stock
Depositary will be entitled to act on such claims, requests or instructions
received from the Issuing Company.
Restrictions on Ownership and Transfer
The by-laws of each Issuing Company contain provisions and restrictions
intended to preserve the status of the Corporation as a REIT for federal income
tax purposes, including provisions permitting such Issuing Company to purchase
its capital stock from stockholders or to refuse to transfer its capital stock.
The Preferred Stock represented by the Depositary Shares offered by any
Prospectus Supplement, and the Depositary Receipts evidencing such Depositary
Shares, will be subject to all of such provisions and restrictions. In
particular, the applicable Deposit Agreement will contain provisions to the
effect that, among other things, the Depositary Receipts issued thereunder and
the related Depositary Shares will be subject to the provisions in the Issuing
Company's by-laws intended to preserve the status of the Corporation as a REIT
for federal income tax purposes and (i) for purposes of applying those
provisions, each holder of any Depositary Receipts will be deemed to be the
owner of the number of shares (including fractional shares) of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipts and
(ii) such provisions of the Issuing Company's by-laws shall apply to such
holder and such Depositary Receipts and Depositary Shares as if (A) such holder
owned the shares (including fractional shares)
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of Preferred Stock represented by such Depositary Shares directly, (B) such
Depositary Receipts evidenced such shares (including fractional shares) of
Preferred Stock and (C) each such Depository Share was a fractional share of
Preferred Stock, mutatis mutandis. Accordingly, the Issuing Company will be
entitled, among other things, to purchase, and to refuse to transfer,
Depositary Shares evidenced by Depositary Receipts on the same terms and
conditions as are applicable to the underlying Preferred Stock. The purchase
price for each Depositary Share purchased by the Issuing Company as aforesaid
shall be equal to the purchase price payable under the Issuing Company's
by-laws for one share of such Preferred Stock, multiplied by the fraction of a
share of such Preferred Stock represented by one such Depositary Share. See
"Description of Capital Stock--Ownership Limitations and Restrictions on
Transfers."
DESCRIPTION OF SERIES COMMON STOCK
The Board of Directors of each of the Companies may authorize the issuance
of shares of Series Common Stock in one or more series. The summary of certain
provisions of the Series Common Stock set forth below and the summary of
certain terms of a particular series of Series Common Stock set forth in the
applicable Prospectus Supplement do not purport to be complete and are subject
to and qualified in their entirety by reference to all of the provisions of the
REIT Charter and the Operating Company Charter, as applicable, and the by-laws
of the REIT and the Operating Company, as applicable, which have been filed or
incorporated by reference as exhibits to the Registration Statement, and the
form of certificate of designations (the "Certificate of Designations")
relating to such series of Series Common Stock which will be filed as an
exhibit to or incorporated by reference in the Registration Statement, all of
which are incorporated herein by reference and copies of which may be obtained
as described under "Available Information."
The following description of Series Common Stock sets forth certain
general terms and provisions of the series of Series Common Stock to which any
Prospectus Supplement may relate. Certain other terms of any particular series
of Series Common Stock will be described in the applicable Prospectus
Supplement. To the extent that any particular terms of any Series Common Stock
described in a Prospectus Supplement differ from any of the terms described
herein, then such terms described herein shall be deemed to have been
superseded by such Prospectus Supplement.
General
Each of the Companies is authorized to issue 30,000,000 shares of its
Series Common Stock, $.10 par value per share, in one or more series. As of the
date of this Prospectus 8,500,000 shares of Series A Stock of the REIT and
8,500,000 shares of Series A Stock of the Operating Company were outstanding.
See "--Series A Non-Voting Convertible Common Stock" below.
Each of the Companies may offer shares of its Series Common Stock
separately from the other Company, or the Companies may offer shares of their
respective Series Common Stock together, and the Series Common Stock of one
Company may or may not be paired with the Series Common Stock of the other
Company. However, when issued, the Series Common Stock of any series will
represent an equity interest only in the Company which issued such Series
Common Stock and will not represent an equity interest in, and will not
otherwise be an obligation of, the other Company, even though the Series Common
Stock of one Company may be paired with the Series Common Stock of the other
Company. As used under this caption "Description of Series Common Stock," the
term "Issuing Company" means, with respect to any series of Series Common Stock
offered by a Prospectus Supplement, the Company which is issuing such Series
Common Stock.
Terms
Subject to the limitations prescribed by Delaware law and the REIT Charter
and the Operating Company Charter, as applicable, the Board of Directors of
each of the Companies is authorized to fix the number of shares constituting
each series of Series Common Stock and the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), redemption price or prices, and liquidation
preference of any wholly unissued series of Series Common Stock and the
designation thereof. The Series Common Stock will, when issued, be fully paid
and nonassessable by the Issuing Company and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the series of
Series Common Stock offered thereby for specific terms, including:
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(1) the title of such Series Common Stock;
(2) the number of shares of such series of Series Common Stock offered,
the liquidation preference per share and the public offering price of
such Series Common Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to such Series Common Stock;
(4) the date from which dividends on such Series Common Stock shall
accrue, if applicable, and whether dividends on such Series Common
Stock shall be cumulative or non-cumulative;
(5) the procedures for any auction and remarketing, if any, for such
Series Common Stock;
(6) the provision for a sinking fund, if any, for such Series Common
Stock;
(7) the provision for redemption, if applicable, of such Series Common
Stock;
(8) any listing of such Series Common Stock on any securities exchange;
(9) the terms and conditions, if applicable, upon which such Series Common
Stock will be convertible into Paired Common Stock of the Companies,
including the conversion price or manner of calculation thereof;
(10) the preferences of such Series Common Stock as to dividend rights and
rights upon liquidation, dissolution or winding up of the Issuing
Company;
(11) in addition to the limitations described below under "--Restrictions
on Ownership and Transfer," any limitations on direct or beneficial
ownership and restrictions on transfer, in each case as may be
appropriate to preserve the status of the Corporation as a REIT; and
(12) any other specific terms, preferences, rights, limitations or
restrictions of such Series Common Stock.
Rank
The ranking of the Series Common Stock of any series will be described in
the applicable Prospectus Supplement. In that regard, the Board of Directors of
an Issuing Company may from time to time, without shareholder approval,
authorize the issuance of a series of Series Common Stock ranking on a parity
with or senior to the Common Stock of such Issuing Company and on a parity with
any series of Preferred Stock of such Issuing Company. See "Description of
Capital Stock."
Restrictions on Ownership and Transfer
The by-laws of each Issuing Company contain provisions and restrictions
intended to preserve the status of the Corporation as a REIT for federal income
tax purposes, including provisions permitting such Issuing Company to purchase
its capital stock from stockholders or to refuse to transfer its capital stock.
The Series Common Stock offered by any Prospectus Supplement will be subject to
all of such provisions and restrictions. See "Description of Capital
Stock--Ownership Limitations and Restrictions on Transfer."
Registrar and Transfer Agent
The registrar and transfer agent for the Series Common Stock of any series
will be set forth in the applicable Prospectus Supplement.
Series A Non-Voting Convertible Common Stock
The REIT and the Operating Company have each established a series of their
respective Series Common Stock comprised of 10,000,000 shares and designated as
the "Series A Non-Voting Convertible Common Stock" (the "Series A Stock"). The
holders of Series A Stock of each Company have the same rights and privileges
as the holders of the Common Stock of such Company, including dividend and
liquidation rights, except that they have no right to vote except as required
by law. The Series A Stock will convert into Paired Common Stock on the earlier
of (i) the next business day after the REIT and the Operating Company
shareholders approve the La Quinta Merger or (ii) the La Quinta merger
agreement is terminated. See "The Meditrust Companies--Recent Developments."
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DESCRIPTION OF DEBT SECURITIES
Each of the Companies may issue Debt Securities from time to time in one
or more series. The Debt Securities of one Company will not be paired with the
Debt Securities of the other Company, and the Debt Securities of any series
will be the exclusive obligation of the Company which issued such Debt
Securities and not the joint obligations of the Companies. As used herein, the
term "Obligor" means, with respect to any series of Debt Securities offered by
a Prospectus Supplement, the Company which issued such Debt Securities.
The Prospectus Supplement will describe certain terms of any series of
Debt Securities offered hereby, including (i) the title of such Debt
Securities; (ii) any limit on the aggregate principal amount of such Debt
Securities and their purchase price; (iii) the date or dates on which such Debt
Securities will mature; (iv) the rate or rates per annum (or manner in which
interest is to be determined) at which such Debt Securities will bear interest,
if any, and the date from which such interest, if any, will accrue; (v) the
dates on which such interest, if any, on such Debt Securities will be payable
and the regular record dates for such interest payment dates; (vi) any
mandatory or optional sinking fund or analogous provisions; (vii) provisions,
if any, for the defeasance of such Debt Securities; (viii) the date, if any,
after which and the price or prices at which such Debt Securities may, pursuant
to any optional or mandatory redemption or repayment provisions, be redeemed
and the other terms and provisions of any such optional or mandatory redemption
or repayment provisions; (ix) whether such Debt Securities are to be issued in
whole or in part in registered form represented by one or more global
securities and, if so, the identity of the depository for such global security
or securities; (x) any provisions relating to security for payments due under
such Debt Securities; (xi) any provisions relating to the conversion or
exchange of such Debt Securities into or for Shares or Debt Securities of
another series; (xii) the terms, if any, pursuant to which such Debt Securities
may be made subordinate in right of payment to all Senior Indebtedness of the
Obligor, and the definition of any such Senior Indebtedness; (xiii) the
denominations in which such Debt Securities are authorized to be issued; (xiv)
the place or places where principal of, premium, if any, and interest, if any,
on such Debt Securities will be payable; (xv) any special United States Federal
income tax consequences and (xvi) any other terms of such Debt Securities,
including any additional events of default or covenants provided for with
respect to such Debt Securities, and any additions to, deletions from or other
changes in the related Indenture (as defined below) with respect to such Debt
Securities, in each case whether or not consistent with the other terms of such
Indenture.
The Debt Securities may be issued in one or more series under an Indenture
(an "Indenture") to be executed by the applicable Obligor and a trustee (the
"Trustee"). The terms of the Debt Securities may include those stated in the
Indenture and those made a part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended.
The following is a summary of certain provisions of the Indenture and the
Debt Securities and does not purport to be complete and is qualified in its
entirety by reference to the detailed provisions of the form of Indenture and
Debt Securities, including the definitions therein of certain terms, which have
been or will be filed or incorporated by reference to exhibits to the
Registration Statement and copies of which may be obtained as described under
"Available Information." Wherever particular provisions or sections of the
Indenture, the Debt Securities or terms defined therein are referred to herein,
such provisions or definitions are incorporated herein by reference.
The following description sets forth certain general terms of any series
of Debt Securities and the related Indenture to which a Prospectus Supplement
may relate. Certain other specific terms of any particular series of Debt
Securities and the related Indenture will be described in the applicable
Prospectus Supplement. To the extent that any particular terms of the Debt
Securities or the related Indenture described in a Prospectus Supplement differ
from any of the terms described herein, then such terms described herein shall
be deemed to have been superseded by such Prospectus Supplement.
General. The Indenture does not limit the aggregate principal amount of
Debt Securities that may be issued thereunder and provides that Debt Securities
may be issued from time to time in one or more series.
Conversion Rights. The terms, if any, on which Debt Securities of any
series may be converted into Shares or Debt Securities of another series will
be set forth in the Prospectus Supplement relating thereto. To protect the
Corporation's status as a REIT, the Indenture will provide that the holders of
Debt Securities of any series ("Holders") may not convert any Debt Security,
and such Debt Security shall not be convertible by any Holder, if as a result
of such conversion any person obtains any ownership interest, directly or
indirectly, in REIT Capital Stock which is not in conformity with the
requirements of the Code pertaining to a REIT.
In the case of Debt Securities which are convertible into Shares, the
conversion price will be subject to adjustment under certain conditions,
including (i) the payment of dividends (and other distributions) in Shares on
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any class or series of capital stock of the Companies; (ii) subdivisions,
combinations and reclassifications of Shares; (iii) the issuance to all or
substantially all holders of Shares of rights or warrants entitling them to
subscribe for or purchase Shares at a price per Share (or having a conversion
price per Share) less than the then current market price; and (iv)
distributions to all or substantially all holders of Shares of capital stock of
any other class or series, or evidences of indebtedness or assets (including
securities, but excluding those rights, warrants, dividends and distributions
referred to above and dividends and distributions not prohibited under the
terms of the Indenture) of the Companies, subject to the limitation that all
adjustments by reason of any of the foregoing shall not be made until they
result in a cumulative change in the conversion price of at least 1%. In the
event the Companies shall effect any capital reorganization or reclassification
of their respective Shares or shall consolidate or merge with or into any trust
or corporation (other than a consolidation or merger in which the Companies are
the surviving entities) or shall sell or transfer substantially all their
assets to any other trust or corporation, the Holders shall, if entitled to
convert such Debt Securities into Shares at any time after such transaction, be
entitled to receive upon conversion thereof, in lieu of the Shares into which
the Debt Securities of such series would have been convertible prior to such
transaction, the same kind and amount of stock and other securities, cash or
property as shall have been issuable or distributable in connection with such
transaction with respect to each Share.
The Companies may, at their option, make adjustments to the conversion
price of Debt Securities according to the provisions of the Debt Securities of
any series or, in addition to those set forth above, reductions in the
conversion price of Debt Securities of any series, as the Boards of Directors
of the Companies deem advisable to avoid or diminish any income tax to holders
of Shares resulting from any dividend or distribution of Shares (or rights to
acquire Shares) or from any event treated as such for income tax purposes or
for any other reason. The Boards of Directors will also have the power to
resolve any ambiguity or correct any error in the provisions relating to the
adjustment of the conversion price of the Debt Securities of such series and
its actions in so doing shall be final and conclusive.
Fractional Shares will not be issued upon conversion, but, in lieu
thereof, the Companies will pay a cash adjustment based upon market price.
The Holders of Debt Securities of any series at the close of business on
an interest payment record date shall be entitled to receive the interest
payable on such Debt Securities on the corresponding interest payment date
notwithstanding the conversion thereof. However, Debt Securities surrendered
for conversion during the period from the close of business on any record date
for the payment of interest to the opening of business on the corresponding
interest payment date must be accompanied by payment of an amount equal to the
interest payable on such interest payment date. Holders of Debt Securities of
any series who convert Debt Securities of such series on an interest payment
date will receive the interest payable by the Companies on such date and need
not include payment in the amount of such interest upon surrender of such Debt
Securities for conversion. Except as aforesaid, no payment or adjustment is to
be made on conversion for interest accrued on the Debt Securities of any series
or for dividends on Shares.
Optional Redemption. The Debt Securities of any series that are
convertible into Shares will be subject to redemption, in whole or from time to
time in part, at any time for certain reasons intended to protect the
Corporation's status as a REIT at the option of the relevant Obligor on at
least 30 days' prior notice by mail at a redemption price equal to 100% of the
principal amount, plus interest accrued to the date of redemption. Except as
otherwise set forth in the accompanying Prospectus Supplement, the relevant
Obligor may exercise its redemption powers solely with respect to the Debt
Securities of the Holder or Holders which pose a threat to the Corporation's
REIT status and only to the extent deemed necessary by the Corporation's Board
of Directors to preserve such status.
Dividends, Distributions and Acquisitions of Shares. The Indenture
provides that the Obligor thereunder will not (i) declare or pay any dividend
or make any distribution on its Shares or to holders of its Shares (other than
dividends or distributions payable in its Shares or other than as the
Corporation determines is necessary to maintain its status as a REIT) or (ii)
purchase, redeem or otherwise acquire or retire for value any of its Shares or
permit any subsidiary to do so, if at the time of such action an Event of
Default (as defined in the Indenture) has occurred and is continuing or would
exist immediately after giving effect to such action.
Additional Covenants. Any additional covenants of the relevant Obligor
with respect to a series of its Debt Securities will be set forth in the
Prospectus Supplement relative thereto.
Modification of the Indenture. Under the Indenture, with certain
exceptions, the rights and obligations of the Obligor thereunder with respect
to any series of its Debt Securities and the rights of Holders of such series
may
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be modified by such Obligor and the Trustee with the consent of the Holders of
at least a majority in principal amount of the outstanding Debt Securities of
such series. However, without the consent of each Holder of any Debt Securities
affected, an amendment, waiver or supplement may not (i) reduce the principal
of, or the premium, if any, or rate of interest on, any Debt Securities; (ii)
change the stated maturity date of the principal of, or any installment of
principal of or interest on, any Debt Securities; (iii) waive a default in the
payment of the principal of, or interest on, or premium payable on, any Debt
Securities; (iv) change the currency for payment of the principal of, or
premium or interest on, any Debt Securities; (v) impair the right to institute
suit for the enforcement of any such payment when due; (vi) adversely affect
any right of the Holder of any Debt Securities to require such Obligor to repay
such Debt Securities at such Holder's option or to convert any Debt Securities;
(vii) reduce the amount of outstanding Debt Securities necessary to consent to
an amendment, supplement or waiver provided for in the Indenture; or (viii)
modify any provisions of the Indenture relating to the modification and
amendment of the Indenture or waivers of past defaults, except as otherwise
specified.
Modifications and amendments of the Indenture will be permitted to be made
by the applicable Obligor and the Trustee without the consent of any Holder of
Debt Securities for any of the following purposes: (i) to evidence the
succession of another entity to the Obligor as obligor under the Indenture;
(ii) to add to the covenants of the Obligor for the benefit of the Holders of
all or any series of Debt Securities or to surrender any right or power
conferred upon the Obligor in the Indenture; (iii) to add Events of Default for
the benefit of the Holders of all or any series of Debt Securities; (iv) to
amend or supplement any provisions of the Indenture, provided that any such
amendment or supplement shall not be applicable to any outstanding Debt
Securities of any series created prior to the effective time of such amendment
or supplement which are entitled to the benefit of such provision; (v) to
establish the form or terms of Debt Securities of any series; (vi) to provide
for the acceptance of appointment by a successor Trustee or to facilitate the
administration of the trusts under the Indenture by more than one Trustee; and
(vii) to cure any ambiguity, defect or inconsistency in the Indenture, provided
that such action shall not adversely affect the interests of Holders of Debt
Securities of any series in any material respect.
Events of Default, Notice and Waiver. Except as otherwise set forth in the
accompanying Prospectus Supplement, the following is a summary of certain
provisions of the Indenture relating to events of default, notice and waiver.
The following are "Events of Default" under the Indenture with respect to
any series of Debt Securities: (i) default in the payment of any interest on
the Debt Securities of such series when due and payable, which continues for 30
days; (ii) default in the payment of any principal of (or premium, if any) on
the Debt Securities of such series when due, at maturity, upon redemption or
otherwise, which continues for five Business Days; (iii) failure to perform any
other covenant contained in the Indenture (other than a covenant which has been
included in the Indenture solely for the benefit of one or more other series of
Debt Securities) or the Debt Securities of such series which continues for 60
days after written notice to the Obligor under such Indenture from the Trustee
or the holders of a majority in principal amount of the Debt Securities of such
series then outstanding specifying the default, demanding that it be remedied
and stating that the notice is a "Notice of Default"; (iv) default under any
bond, debenture or other Indebtedness (as defined in the Indenture) of such
Obligor or any subsidiary if (a) either (x) such event of default results from
the failure to pay any such Indebtedness at maturity or (y) as a result of such
event of default, the maturity of such Indebtedness has been accelerated prior
to its expressed maturity and such acceleration shall not be rescinded or
annulled or the accelerated amount paid or such Indebtedness discharged within
ten days after notice to the Obligor under such Indenture from the Trustee or
the holders of a majority in principal amount of the Debt Securities of such
series then outstanding specifying the default, demanding that it be remedied
and stating that the notice is a "Notice of Default" and (b) the principal
amount of such Indebtedness, together with the principal amount of any other
such Indebtedness in default for failure to pay principal or interest thereon,
or the maturity of which has been so accelerated, aggregates $10,000,000 or
more; (v) certain events of bankruptcy, insolvency or reorganization relating
to such Obligor; and (vi) any other Event of Default provided with respect to
the Debt Securities of that series.
If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, either the Trustee or the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of such series
may declare such Debt Securities due and payable immediately. Upon certain
conditions, any such declaration of acceleration and its consequences may be
rescinded and annulled by the Holders of a majority in aggregate principal
amount of the outstanding Debt Securities of such series.
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The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default (as defined in the Indenture) or Event of Default
with respect to the Debt Securities of any series, give to the Holders of the
Debt Securities of such series notice of all uncured Defaults and Events of
Default known to it, but the Trustee will be protected in withholding such
notice if it in good faith determines that the withholding of such notice is in
the interest of such Holders, except in the case of a default in the payment of
the principal of (or premium, if any) or interest on any of the Debt Securities
of such series.
The Indenture provides that the Holders of a majority in aggregate
principal amount of the Debt Securities of any series then outstanding may
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series. The right of a
Holder to institute a proceeding with respect to the Indenture is subject to
certain conditions precedent including notice and indemnity to the Trustee, but
the Holder has an absolute right to receipt of principal of (and premium, if
any) and interest on such Holder's Debt Securities on or after the respective
due dates expressed in the Debt Securities, and to institute suit for the
enforcement of any such payments.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series then outstanding may on behalf of the Holders of all
Debt Securities of such series waive certain past defaults, except a default in
payment of the principal of (or premium, if any) or interest on any Debt
Securities of such series or in respect of certain provisions of the Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Debt Securities of such series affected thereby.
The Companies will be required to furnish to the Trustee annually a
statement of certain officers of the Companies stating whether or not they know
of any Default or Event of Default and, if they have knowledge of a Default or
Event of Default, a description of the efforts to remedy the same.
Consolidation, Merger, Sale or Conveyance. The Indenture provides that the
relevant Obligor may merge or consolidate with, or sell or convey all or
substantially all of its assets to, any other corporation, provided that (i)
either such Obligor shall be the continuing corporation, or the successor
corporation (if other than such Obligor) shall be a corporation organized and
existing under the laws of the United States or a state thereof or the District
of Columbia (although such Obligor may, in turn, be owned by a foreign
corporation) and such corporation shall expressly assume by supplemental
indenture all of the obligations of such Obligor under the Debt Securities of
each series and the Indenture, (ii) immediately after giving effect to such
transactions no Default or Event of Default shall have occurred and be
continuing, and (iii) such Obligor shall have delivered to the Trustee an
Officers' Certificate and opinion of counsel, stating that the transaction and
supplemental indenture comply with the Indenture. The Indenture does not
contain any provision requiring the relevant Obligor to repurchase the Debt
Securities of any series at the option of the Holders thereof in the event of a
leveraged buyout, recapitalization or similar restructuring of the Obligor,
even though the Obligor's creditworthiness and the market value of the Debt
Securities may decline significantly as a result of such transaction. The
Indenture does not protect Holders of the Debt Securities of any series against
any decline in credit quality, whether resulting from any such transaction or
from any other cause.
Global Securities. The Debt Securities of a series may be issued in whole
or in part in global form (the "Global Securities"). The Global Securities will
be deposited with a depository (the "Depository"), or with a nominee for a
Depository, identified in the Prospectus Supplement. In such case, one or more
Global Securities will be issued in a denomination or aggregate denominations
equal to the portion of the aggregate principal amount of outstanding Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive form, a Global Security may not be transferred except
as a whole by the Depository for such Global Security to a nominee of such
Depository or by a nominee of such Depository to such Depository or another
nominee of such Depository or by such Depository or any such nominee to a
successor for such Depository or a nominee of such successor.
The Companies anticipate that the following provisions will apply to all
depository arrangements unless otherwise provided in the applicable Prospectus
Supplement.
Upon the issuance of a Global Security, the Depository for such Global
Security will credit, on its book entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such Depository
("participants"). The accounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities.
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Ownership of beneficial interests in a Global Security will be limited to
participants or persons that may hold interests through participants. Ownership
of beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the Depository for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants
(with respect to interests of persons other than participants). So long as the
Depository for a Global Security, or its nominee, is the registered owner of
such Global Security, such Depository or such nominee as the case may be, will
be considered the sole owner or Holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture; provided, however,
that for purposes of obtaining any consents or directions required to be given
by the Holders of the Debt Securities, the relevant Obligor, the Trustee and
its agents will treat a person as the Holder of such principal amount of Debt
Securities as specified in a written statement of the Depository.
Principal, premium, if any, and interest payments, if any, on Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made to such Depository or its nominee, as
the case may be, as the registered owner of such Global Security. None of the
Companies, the Trustee or any paying agent for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in such Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
The Companies expect that the Depository for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium, if any, or interest will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the records of such
Depository. The Companies also expect that payments by participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names," and will be the responsibility of such participants.
If the Depository for any Debt Securities represented by a Global Security
is at any time unwilling or unable to continue as Depository and a successor
Depository is not appointed by the relevant Obligor within 90 days, such
Obligor will issue Debt Securities of such series in definitive form to the
beneficial owners of interests in such Global Security in exchange for such
Global Security. In addition, the relevant Obligor may at any time and in its
sole discretion determine not to have any of its Debt Securities of a series
represented by one or more Global Securities and, in such event, will issue
Debt Securities of such series in definitive form in exchange for all of the
Global Security or Securities representing such Debt Securities.
The laws of some states may require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in Debt Securities
represented by Global Securities.
Governing Law. The Indenture and the Debt Securities will be governed by
and construed in accordance with the laws of the State of New York.
DESCRIPTION OF SECURITIES WARRANTS
The Companies may issue Securities Warrants for the purchase of Debt
Securities or Shares. Securities Warrants may be issued independently or
together with Debt Securities or Shares offered by any Prospectus Supplement
and may be attached to or separate from such Debt Securities or Shares. Each
series of Securities Warrants will be issued under a separate warrant agreement
(a "Securities Warrant Agreement") to be entered into between one or both of
the Companies and a bank or trust company, as Securities Warrant agent, all as
set forth in the Prospectus Supplement relating to the particular issue of
offered Securities Warrants. As used herein with respect to any Securities
Warrant Agreement, the term "Issuer" means (i) if both Companies are parties to
such Securities Warrant Agreement, the Companies collectively or (ii) if only
one Company is a party to such Securities Warrant Agreement, such Company. The
Securities Warrant agent will act solely as an agent of the Issuer in
connection with the Securities Warrant certificates relating to the Securities
Warrants and will not assume any obligation or relationship of agency or trust
for or with any holders of Securities Warrant certificate or beneficial owners
of Securities Warrants. The following summaries of certain provisions of the
Securities Warrant Agreement and Securities Warrants do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the form of Securities Warrant Agreement and the form
of Securities Warrant certificates relating to each series of Securities
Warrants which will be filed with the Commission and incorporated
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by reference as an exhibit to the Registration Statement of which this
Prospectus is a part at or prior to the time of the issuance of such series of
Security Warrants, and copies of which may be obtained as described under
"Available Information."
The description set forth herein sets forth certain general terms and
provisions of any series of Securities Warrants and the related Securities
Warrant Agreement to which any Prospectus Supplement may relate. Certain other
specific terms of any series of Securities Warrants and the related Securities
Warrant Agreement will be described in the applicable Prospectus Supplement. To
the extent that any particular terms of the Securities Warrants or Securities
Warrant Agreement described in a Prospectus Supplement differ from any of the
terms described herein, then such terms described herein shall be deemed to
have been superseded by such Prospectus Supplement.
If Debt Securities Warrants are offered, the applicable Prospectus
Supplement will describe the terms of such Securities Warrants, including the
following where applicable: (i) the offering price, (ii) the denominations and
terms of the series of Debt Securities purchasable upon exercise of such
Securities Warrants, (iii) the designation and terms of any series of Debt
Securities with which such Securities Warrants are being offered and the number
of such Securities Warrants being offered with each such Debt Security, (iv)
the date, if any, on and after which such Securities Warrants and the related
Securities will be transferable separately, (v) the principal amount of the
series of Debt Securities purchasable upon exercise of each such Securities
Warrants and the price at which such principal amount of Debt Securities of
such series may be purchased upon such exercise, (vi) the date on which the
right to exercise such Securities Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire, (vii) whether the
Securities Warrants will be issued in registered or bearer form, (viii) any
special United States Federal income tax consequences, (ix) the terms, if any,
on which the Issuer may accelerate the Expiration Date and (x) any other terms
of such Securities Warrants.
In the case of Share Warrants, the applicable Prospectus Supplement will
describe the terms of such Securities Warrants, including the following where
applicable: (i) the offering price, (ii) the aggregate number of Shares
purchasable upon exercise of such Securities Warrants and the exercise price,
(iii) the designation and terms of the Securities with which such Securities
Warrants are being offered, if any, and the number of such Securities Warrants
being offered with each such Security, (iv) the date, if any, on and after
which such Securities Warrants and the related Securities will be transferable
separately, (v) the date on which the right to exercise such Securities
Warrants shall commence and the Expiration Date, (vi) any special United States
Federal income tax consequences, (vii) whether the Securities Warrants will be
issued in registered or bearer form, (viii) the terms, if any, on which the
Issuer may accelerate the Expiration Date, and (ix) any other terms of such
Securities Warrants.
Securities Warrant certificates may be exchanged for new Securities
Warrant certificates of different denominations, may (if in registered form) be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Securities Warrant agent or any other office indicated in
the applicable Prospectus Supplement. Prior to the exercise of any Debt
Securities Warrants, holders of such Securities Warrants will not have any of
the rights of holders of the Debt Securities purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on such Debt Securities or to enforce covenants in the
applicable Indenture. Prior to the exercise of any Share Warrants, holders of
such Securities Warrants will not have any rights of holders of such Shares,
including the right to receive payments of dividends, if any, on such Shares,
or to exercise any applicable right to vote.
Certain Risk Considerations. Any Securities Warrants will involve a
certain degree of risk, including risks arising from the fluctuations in the
price of the underlying securities and, if applicable, general risks applicable
to the stock market (or markets) on which the underlying securities are traded.
Prospective purchasers of the Securities Warrants should recognize that
the Securities Warrants may expire worthless and, thus, purchasers should be
prepared to sustain a total loss of the purchase price of their Securities
Warrants. This risk reflects the nature of a Securities Warrant as an asset
which, other factors held constant, tends to decline in value over time and
which may, depending on the price of the underlying securities, become
worthless when it expires. The trading price of a Securities Warrant at any
time is expected to increase as the price, or, if applicable, dividend rate on
the underlying securities increases. Conversely, the trading price of a
Securities Warrant is expected to decrease as the time remaining to expiration
of the Securities Warrant decreases and as the price or, if applicable,
dividend rate on the underlying securities, decreases. Assuming all other
factors are held constant, the more a Securities Warrant is "out of the money"
(i.e., the more the exercise price exceeds the price of the
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underlying securities and the shorter its remaining term to expiration), the
greater the risk that a purchaser of the Securities Warrant will lose all or
part of his or her investment. If the price of the underlying securities does
not rise before the Securities Warrant expires to an extent sufficient to cover
a purchaser's cost of the Securities Warrant, the purchaser will lose all or
part of his or her investment in such Securities Warrant upon expiration.
In addition, prospective purchasers of the Securities Warrants should be
experienced with respect to options and option transactions and understand the
risks associated with options and should reach an investment decision only
after careful consideration, with their financial advisers, of the suitability
of the Securities Warrants in light of their particular financial circumstances
and the information discussed herein and, if applicable, the Prospectus
Supplement. Before purchasing, exercising or selling any Securities Warrants,
prospective purchasers and holders of Securities Warrants should carefully
consider, among other things, (i) the trading price of the Securities Warrants,
(ii) the price of the underlying securities at such time, (iii) the time
remaining to expiration and (iv) any related transaction costs. Some of the
factors referred to above are in turn influenced by various political, economic
and other factors that can affect the trading prices of the underlying
securities and should be carefully considered prior to making any investment
decisions.
Purchasers of the Securities Warrants should further consider that the
initial offering price of the Securities Warrants may be in excess of the price
that a purchaser of options might pay for a comparable option in a private,
less liquid transaction. In addition it is not possible to predict the price at
which the Securities Warrants will trade in the secondary market or whether any
such market will be liquid. The Companies may, but are not obligated to, file
an application to list any Securities Warrants issued on a United States
national securities exchange. To the extent that any Securities Warrants are
exercised, the number of Securities Warrants outstanding will decrease, which
may result in a lessening of the liquidity of the Securities Warrants. Finally,
the Securities Warrants will constitute direct, unconditional and unsecured
obligations of the Issuer and as such will be subject to any changes in the
perceived creditworthiness of the Issuer.
In addition, purchasers of Securities Warrants should further consider
that the Securities Warrants may be subject to purchase by the issuer in order
to maintain the Corporation's status as a REIT. See "Description of Capital
Stock--Ownership Limitations and Restrictions on Transfers."
Exercise of Securities Warrants. Each Securities Warrant will entitle the
holder thereof to purchase such principal amount of Debt Securities or number
of Shares, as the case may be, at such exercise price as shall in each case be
set forth in, or calculable from, the Prospectus Supplement relating to the
offered Securities Warrants. After the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Issuer), unexercised Securities Warrants will become void.
Securities Warrants may be exercised by delivering to the Securities
Warrant agent payment as provided in the applicable Prospectus Supplement of
the amount required to purchase the Debt Securities or Shares, as the case may
be, purchasable upon such exercise together with certain information set forth
on the reverse side of the Securities Warrant certificate. Securities Warrants
will be deemed to have been exercised upon receipt of payment of the exercise
price, subject to the receipt within five Business Days of the Securities
Warrant certificate evidencing such Securities Warrants. Upon receipt of such
payment and the Securities Warrant certificate properly completed and duly
executed at the corporate trust office of the Securities Warrant agent or any
other office indicated in the applicable Prospectus Supplement, the Issuer
will, as soon as practicable, issue and deliver the Debt Securities or Shares,
as the case may be, purchasable upon such exercise. If fewer than all of the
Securities Warrants represented by such Securities Warrant certificate are
exercised, a new Securities Warrant certificate will be issued for the
remaining amount of Securities Warrants.
Amendments and Supplements to Securities Warrant Agreement. The Securities
Warrant Agreements may be amended or supplemented without the consent of the
holders of the Securities Warrants issued thereunder, to effect changes that
are not inconsistent with the provisions of the Securities Warrants and that do
not adversely affect the interest of the holders of the Securities Warrants.
Share Warrant Adjustments. Unless otherwise indicated in the applicable
Prospectus Supplement, the exercise price of and the number of Shares covered
by a Share Warrant are subject to adjustment in certain events, including (i)
payment of a dividend on the Shares payable in Shares, Share splits and
combinations or reclassification of Shares, (ii) issuance to all holders of
Shares of rights or warrants to subscribe for or purchase Shares at less than
their current market price (as defined in the Securities Warrant Agreement for
such series of Share Warrants)
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and (iii) certain distributions of evidences of indebtedness or assets
(including securities but excluding cash, dividends or distributions paid out
of consolidated earnings or retained earnings or dividends payable in Shares or
of subscription rights and warrants excluding those referred to above).
No adjustments in the exercise price of and the number of Shares covered
by a Share Warrant will be made for regular quarterly or other periodic or
recurring cash dividends or distributions or for cash dividends or
distributions to the extent paid from consolidated earnings or retained
earnings. No adjustment will be required unless such adjustment would require a
change of at least 1% in the exercise price then in effect. Except as stated
above, the exercise price of and the number of Shares covered by a Share
Warrant will not be adjusted for the issuance of Shares or any securities
convertible into or exchangeable for Shares or carrying the right or option to
purchase or otherwise acquire the foregoing in exchange for cash, other
property or services.
In the event of any (i) consolidation or merger of the Companies with or
into any entities (other than a consolidation or a merger that does not result
in any reclassification, conversion, exchange or cancellation of outstanding
Shares), (ii) sale, transfer, lease or conveyance of all or substantially all
of the assets of the Companies or (iii) reclassification, capital
reorganization or change of the Shares (other than solely a change in par
value), then any holder of a Share Warrant will be entitled, on or after the
occurrence of any such event, to receive on exercise of such Share Warrant the
kind and amount of Shares or other securities, cash or other property (or any
combination thereof) that the holder would have received had such holder
exercised such holder's Share Warrant immediately prior to the occurrence of
such event. If the consideration to be received upon exercise of the Share
Warrant following any such event consists of common stock (or its equivalent)
of the surviving entity, then from and after the occurrence of such event, the
exercise price of such Share Warrant will be subject to the same anti-dilution
and other adjustments described in the second preceding paragraph, applied as
if such common stock were Shares.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a brief and general summary of the material federal
income tax considerations of an investment in the Corporation's and the
Operating Company's Securities to the extent those considerations relate to the
federal income taxation of the Corporation, the Operating Company and its U.S.
Stockholders (as defined below in "--Federal Income Taxation of Paired Capital
Stock--Taxation of Taxable U.S. Stockholders"). To the extent such
considerations relate to the specific tax treatment of Securities other than
the paired REIT Capital Stock and paired Operating Capital Stock (referred to
herein as "Paired Capital Stock"), they will be addressed in the applicable
Prospectus Supplement. For the particular provisions that govern the federal
income tax treatment of the Corporation and its stockholders, reference is made
to Sections 856 through 860 of the Code and the regulations thereunder. The
following summary is qualified in its entirety by such reference.
The statements in this discussion are based on current provisions of the
Code, Treasury Regulations, the legislative history of the Code, existing
administrative rulings and practices of the Internal Revenue Service (the
"IRS"), and judicial decisions. No assurance can be given that future
legislative, judicial, or administrative actions or decisions, which may be
retroactive in effect, will not affect the accuracy of any statements in this
Prospectus with respect to the transaction entered into or contemplated prior
to the effective date of such changes.
EACH INVESTOR IS ADVISED TO CONSULT HIS OR HER OWN TAX ADVISOR REGARDING
THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF AN INVESTMENT IN THE COMPANIES'
SECURITIES.
REIT Qualification of the Corporation
General
On November 5, 1997, the Corporation (formerly known as Santa Anita Realty
Enterprises, Inc. ("Realty")) merged with Meditrust, a Massachusetts business
trust ("Meditrust"), with the Corporation as the surviving corporation, and the
Operating Company (formerly known as Santa Anita Operating Company ("SAOC")),
merged with Meditrust Acquisition Company, a Massachusetts business trust
("MAC"), with the Operating Company as the surviving corporation (collectively,
the "Santa Anita Mergers"). Upon completion of the Santa Anita Mergers, Realty
changed its corporate name to "Meditrust Corporation," and SAOC changed its
corporate name to "Meditrust Operating Company."
The Corporation has elected to be taxed as a real estate investment trust
under Sections 856 through 860 of the Code, commencing with its taxable year
ended December 31, 1980. Meditrust had elected to be taxed as a real
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estate investment trust under Sections 856 through 860 of the Code, commencing
with its initial taxable year ended December 31, 1985, and through its last
taxable year ending November 5, 1997. The Corporation believes that commencing
with its taxable year ended December 31, 1980, it was organized and has been
operated in such a manner as to qualify for taxation as a REIT under the Code.
In addition, the Corporation believes that, commencing with its taxable year
ended December 31, 1985 through its final taxable year ended November 5, 1997,
Meditrust was organized and operated in such a manner as to qualify for
taxation as a REIT under the Code. The Corporation intends to continue to
operate in such a manner, however, no assurance can be given that either the
Corporation or Meditrust qualified as a REIT under the Code for prior years or
that the Corporation will operate in a manner so as to qualify or remain
qualified as a REIT.
At the time of the Santa Anita Mergers, counsel to Realty and SAOC
rendered an opinion that, based on representations of management, for the
calendar year 1996, Realty met all the requirements of the Code for
qualification as a REIT and that the consummation of the Santa Anita Mergers
would not adversely affect the qualification of Realty as a REIT or its ability
to retain its status as grandfathered from the application of Section
269B(a)(3) of the Code. At the time of the Santa Anita Mergers, based on the
representations of management, Nutter, McClennen & Fish, LLP, counsel to
Meditrust and MAC, also rendered an opinion that immediately prior to the Santa
Anita Mergers, Meditrust qualified as a REIT and that the consummation of the
Santa Anita Mergers would not adversely affect the qualification of Realty as a
REIT. See "--Paired Shares" below.
In the opinion of Nutter, McClennen & Fish, LLP, special tax counsel to
the Corporation, the Corporation has qualified as a REIT through its taxable
year ending December 31, 1997 (subject to the filing of its Federal income tax
return for that year) and the Corporation's proposed method of operation will
enable it to continue to meet the requirements for qualification and taxation
as a REIT under the Code. This opinion is based on representations from the
Corporation and its predecessors regarding their compliance with the
requirements for REIT qualification, and it will not be binding on the IRS.
Qualification and taxation as a REIT depends upon the Corporation's and its
predecessors' having met and continuing to meet, through actual and annual
operating results, the distribution levels, stock ownership, and other various
qualification tests imposed under the Code. Counsel has not verified and will
not verify the Corporation's compliance with these tests. Accordingly, no
assurance can be given that the IRS will not challenge the status of the
Corporation as a REIT prior to the offering made by any Prospectus Supplement
or the status of the Corporation after such offering. Further, the anticipated
Federal income tax treatment described in this Prospectus may be changed,
perhaps retroactively, by legislative, administrative, or judicial action at
any time.
In rendering its opinion regarding REIT qualification, Nutter, McClennen &
Fish, LLP has relied upon the representations of the Corporation that it will
distribute, with respect to the taxable year in which each merger closes, all
earnings and profits inherited from Cobblestone (if any) and La Quinta. If the
IRS were to determine that La Quinta's actual earnings and profits for federal
income tax purposes exceeded the amount distributed, or that Cobblestone in
fact had current or accumulated earnings and profits for federal income tax
purposes, the Corporation would be disqualified as a REIT. See "--Distribution
of Earnings and Profits" below.
If the Corporation (including in certain instances, Meditrust or Realty,
as predecessors to the Corporation) failed to qualify as a REIT in any taxable
year, the Corporation would be subject to federal income taxation as if it were
a domestic "C" corporation, and the Corporation's stockholders would be taxed
in the same manner as the stockholders of ordinary corporations. In this event,
the Corporation could be subject to potentially significant tax liabilities,
and the amount of cash available for distribution to stockholders and to pay
debt service would be reduced and possibly eliminated.
To qualify for tax treatment as a REIT under the Code, the Corporation
must meet the following requirements, among others:
(1) At least 95% of the Corporation's gross income each taxable year
must be derived from:
(a) rents from real property;
(b) gain from the sale or disposition of real property that is not
held primarily for sale to customers in the ordinary course of
business;
(c) interest on obligations secured by mortgages on real property
(with certain minor exceptions);
(d) dividends or other distributions from, or gains from the sale of,
shares of qualified REITs that are not held primarily for sale to
customers in the ordinary course of business;
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(e) abatements and refunds of real property taxes;
(f) income and gain derived from foreclosure property;
(g) most types of commitment fees related to either real property or
mortgage loans;
(h) gains from sales or dispositions of real estate assets that are
not "prohibited transactions" under the Code;
(i) dividends;
(j) interest on obligations other than those secured by mortgages on
properties; and
(k) gains from sales or dispositions of securities not held primarily
for sale to customers in the ordinary course of business.
In addition, at least 75% of the Corporation's gross income each taxable
year must be derived from items (a) through (h) above and from income
attributable to stock or debt instruments acquired with the proceeds from the
sale of stock or certain debt obligations ("new capital") of the Corporation
received during a one-year period beginning on the day such proceeds were
received ("qualified temporary investment income").
For purposes of these requirements, the term "rents from real property" is
defined in the Code to include charges for services customarily furnished or
rendered in connection with the rental of real property, whether or not such
charges are separately stated. The term "rents from real property" also
includes rent attributable to incidental personal property that is leased
under, or in connection with, a lease of real property, provided that the rent
attributable to such personal property for the taxable year does not exceed 15%
of the total rent for the taxable year attributable to both the real and
personal property leased under such lease. The term "rents from real property"
is also defined to exclude: (i) any amount received or accrued with respect to
real property, if the determination of such amount depends in whole or in part
on the income or profits derived by any person from the property (except that
any amount so received or accrued shall not be excluded from "rents from real
property" solely by reason of being determined on the basis of a fixed
percentage of receipts or sales); (ii) any amount received or accrued, directly
or indirectly, from any person or corporation if ownership of a 10% or greater
interest in the stock, assets or net profits of such person or corporation is
attributed to the Corporation; (iii) any amount received or accrued from
property that the Corporation manages or operates or for which the Corporation
furnishes services to the tenants, which would constitute unrelated trade or
business income if received by certain tax-exempt entities, either itself or
through another person who is not an "independent contractor" (as defined in
the Code) from whom the Corporation does not derive or receive income; and (iv)
any amount received or accrued from property with respect to which the
Corporation furnishes (whether or not through an independent contractor)
services not customarily rendered to tenants, other than a de minimis amount
(defined in the Code as 1% of all amounts received or accrued with respect to
the property), in properties of a similar class in the geographic market in
which the property is located. The amount received for any service for this
purpose shall be deemed to be not less than 150% of the direct cost to the
Corporation in furnishing or rendering the service. The Corporation believes
that any services furnished to tenants are not, and will not be, of a type that
would cause any rents to fail to qualify as rents from real property, or, if
so, that the amount of income derived from those activities will not jeopardize
the Corporation's REIT status.
If the Corporation should fail to satisfy the foregoing income tests but
otherwise satisfies the requirements for taxation as a REIT and if such failure
is held to be due to reasonable cause and not willful neglect and if certain
other requirements are met, then the Corporation would continue to qualify as a
REIT but would be subject to a 100% tax on the excessive unqualified income
reduced by an approximation of the expenses incurred in earning that income.
(2) At the close of each quarter of its taxable year, the Corporation must
also satisfy three tests relating to the nature of its assets. First, at least
75% of the value of the Corporation's total assets must be represented by real
estate assets (including (i) assets held by the Corporation's qualified REIT
subsidiaries and the Corporation's allocable share of real estate assets held
by partnerships in which the Corporation owns an interest and (ii) stock or
debt instruments held for not more than one year purchased with the proceeds of
a stock offering or a long-term (at least five years) public debt offering of
the Corporation), cash, cash items and government securities. Second, not more
than 25% of the Corporation's total assets may be represented by securities
other than those in the 75% asset class. Third, of the investments included in
the 25% asset class, the value of any one issuer's securities owned by the
Corporation may not exceed 5% of the value of the Corporation's total assets
and the Corporation may not own more than 10% of any one issuer's outstanding
voting securities. The Corporation's share of income earned
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or assets held by a partnership in which the Corporation is a partner will be
characterized by the Corporation in the same manner as they are characterized
by the partnership for purposes of the assets and income requirements described
in this paragraph (2) and in paragraph (1) above.
(3) The shares of the Corporation must be "transferable" and beneficial
ownership of them must be held by 100 or more persons during at least 335 days
of each taxable year (or a proportionate part of a short taxable year). More
than 50% by value of the outstanding stock may not be owned, directly or
indirectly, actually or constructively, by or for five or fewer "individuals"
at any time during the last half of any taxable year. For the purpose of such
determination, shares owned directly or indirectly by or for a corporation,
partnership, estate or trust are considered as being owned proportionately by
its shareholders, partners or beneficiaries; an individual is considered as
owning shares directly or indirectly owned by or for members of his family; and
the holder of an option to acquire shares is considered as owning such shares.
In addition, because of the lessor-lessee relationship between the Corporation
and LATC, no person may own, actually or constructively, 10% or more of the
outstanding voting power or total number of shares of stock of the two
Companies. The bylaws of Operating Company and the Corporation preclude any
transfer of shares which would cause the ownership of shares not to be in
conformity with the above requirements. Each year the Corporation must demand
written statements from the record holders of designated percentages of its
shares disclosing the actual owners of the shares and must maintain, within the
Internal Revenue District in which it is required to file its federal income
tax return, permanent records showing the information it has thus received as
to the actual ownership of such shares and a list of those persons failing or
refusing to comply with such demand. Failure to comply with the foregoing would
not result in the loss of REIT status; however, it would result in a penalty of
$25,000 ($50,000 for intentional violations) for any year in which the REIT
does not comply with the ownership regulations.
(4) The Corporation must distribute to its shareholders dividends in an
amount at least equal to the sum of 95% of its "real estate investment trust
taxable income" before the deduction for dividends paid (i.e., taxable income
less any net capital gain and less any net income from foreclosure property or
from property held primarily for sale to customers, and subject to certain
other adjustments provided in the Code); plus (i) 95% of the excess of the net
income from foreclosure property over the tax imposed on such income by the
Code; less (ii) a portion of certain noncash items of the Corporation that are
required to be included in income, such as the amounts includable in gross
income under Section 467 of the Code (relating to certain payments for use of
property or services). The distribution requirement is reduced by the amount by
which the sum of such noncash items exceeds 5% of real estate investment trust
taxable income. Such undistributed amount remains subject to tax at the tax
rate then otherwise applicable to corporate taxpayers. Each year, the
Corporation has, or will be deemed to have, distributed at least 95% of its
real estate investment trust taxable income as adjusted.
For this purpose, certain dividends paid by the Corporation after the
close of the taxable year may be considered as having been paid during the
taxable year. However, if the Corporation does not actually distribute each
year at least the sum of: (i) 85% of its real estate investment trust taxable
income; (ii) 95% of its capital gain net income; and (iii) any undistributed
taxable income from prior periods, then the amount by which such sums exceed
the actual distributions during the taxable year will be subject to a 4% excise
tax.
If a determination (by a court or by the IRS requires an adjustment to the
Corporation's taxable income that results in a failure to meet the percentage
distribution requirements (e.g., a determination that increases the amount of
the Corporation's real estate investment trust taxable income), the Corporation
may, by following the "deficiency dividend" procedure of the Code, cure the
failure to meet the annual percentage distribution requirement by distributing
a dividend within 90 days after the determination, even though this deficiency
dividend is not distributed to the shareholders in the same taxable year as
that in which income was earned. The Corporation will, however, be liable for
interest based on the amount of the deficiency dividend.
(5) The directors of the Corporation must have authority over the
management of the Corporation, the conduct of its affairs and, with certain
limitations, the management and disposition of the Corporation's property.
(6) The Corporation must have the calendar year as its annual accounting
period.
(7) The Corporation must satisfy certain procedural requirements.
Distribution of Earnings and Profits
To maintain its qualification as a REIT, in the event the proposed La
Quinta Merger is consummated, the Corporation will be required to distribute
the current and accumulated earnings and profits of La Quinta (as determined
for federal income tax purposes). Following the La Quinta Merger, the
Corporation intends to make
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a distribution of earnings and profits in the amount determined by the
Corporation to be necessary for federal income tax purposes. The distribution
will be taken into account by the Corporation's taxable U.S. shareholders as
ordinary income to the extent it is made out of the Corporation's current or
accumulated earnings and profits as determined for federal income tax purposes,
and will not be eligible for the dividends received deduction generally
available for corporations.
It is a condition to the obligation of the Companies to consummate the
proposed La Quinta Merger that, at the closing date of the La Quinta Merger, La
Quinta and the Corporation shall have obtained a report prepared by KPMG Peat
Marwick LLP ("KPMG") of the accumulated and current earnings and profits of La
Quinta (as determined for federal income tax purposes) as of the most recent
date through which the earnings and profits are ascertainable as well as a
reasonable estimate of any earnings and profits from such most recent date
through the closing date of the La Quinta Merger, and Coopers & Lybrand LLP
shall have reviewed and approved in the exercise of its reasonable judgment the
report and workpapers of KPMG. La Quinta has provided a report of the earnings
and profits calculation through December 31, 1996 from KPMG.
It is a condition to the obligation of the Companies to consummate the
proposed Cobblestone Merger that, as of the closing date of the Cobblestone
Merger, Cobblestone and the Companies shall have obtained a certification of
the independent accountants of Cobblestone, reasonably satisfactory to the
Companies, to the effect that Cobblestone had no current or accumulated
earnings and profits (as determined for federal income tax purposes) as of
September 30, 1997, and a certification from Cobblestone's Chief Financial
Officer, reasonably satisfactory to the Companies, to the effect that as of the
closing date of the Cobblestone Merger, Cobblestone has no such current or
accumulated earnings and profits.
If the IRS were to determine that La Quinta's actual current and
accumulated earnings and profits exceeded the amount distributed by the
Corporation following the proposed La Quinta Merger (due to miscalculation,
insufficient funds or any other reason), or that Cobblestone, in fact, had
current or accumulated earnings and profits, the Corporation would be
disqualified as a REIT. Certain technical provisions of the Relief Act
facilitate the distribution of inherited earnings and profits, but do not
change the basic requirement that inherited earnings and profits must be
distributed.
Paired Shares
On October 16, 1979, the IRS issued a Private Letter Ruling (the "Ruling")
to Realty in which the IRS held that the pairing of the Realty shares and SAOC
shares would not preclude Realty from qualifying as a REIT. Subsequent to the
issuance of the Ruling, (i) the IRS announced that it would no longer issue
rulings to the effect that a REIT whose shares are paired with those of a
non-REIT will qualify as a REIT if the activities of the paired entities are
integrated, and (ii) Congress, in 1984, enacted Section 269B of the Code.
Section 269B(a)(3) of the Code provides that if the shares of a REIT and a
non-REIT are paired, then the REIT and the non-REIT shall be treated as one
entity for purposes of determining whether either company qualifies as a REIT.
If Section 269B(a)(3) of the Code applied to the Corporation and the Operating
Company, then the Corporation would not be eligible to be taxed as a REIT.
Section 269B(a)(3) does not apply, however, if the shares of the REIT and the
non-REIT were paired on June 30, 1983 and the REIT was taxable as a REIT on
June 30, 1983. The Corporation believes that, as a result of this
"grandfathering" rule, Section 269B(a)(3) of the Code does not apply to the
Corporation and the Operating Company. By its terms, this "grandfathering" rule
continues to apply to the Corporation after the Santa Anita Mergers. At the
time of the Santa Anita Mergers, Nutter, McClennen & Fish, LLP rendered an
opinion that the Santa Anita Mergers did not result in Section 269B of the Code
becoming applicable to the Corporation. There are, however, no judicial or
administrative authorities interpreting this "grandfathering" rule in the
context of a merger or otherwise, and this opinion, as well as the opinions
described above regarding Realty's and the Corporation's qualification as a
REIT and related matters, are based solely on the literal language of the
statute. There can be no assurance that the IRS will not seek to deny the
Corporation REIT status despite its grandfathered status.
On February 2, 1998, the Department of Treasury released an explanation of
the revenue proposals included in the Clinton Administration's fiscal 1999
budget (the "Administration Tax Proposals"). The Administration Tax Proposals,
among other things, include a freeze on the grandfathered status of paired
share REITs such as the Companies. Under this proposal, the Corporation and
Operating Company would be treated as one entity with respect to properties
acquired on or after the date of the first Congressional committee action with
respect to such
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proposal and with respect to activities or services relating to such
properties that are undertaken or performed by one of the paired entities on or
after such date. The Administration Tax Proposals would prevent the Companies
from using their paired share structure to operate properties acquired on or
after the date of such first Congressional committee action. The Administration
Tax Proposals also would prohibit REITs from holding stock of a corporation
possessing more than 10% of the vote or value of all classes of stock of the
corporation. This proposal would be effective with respect to stock acquired on
or after the date of the first Congressional committee action with respect to
the proposal; provided that the proposal would apply to stock acquired before
such effective date if, on or after such date, the subsidiary corporation
engaged in a new trade or business or acquired substantial new assets.
On March 26, 1998, Representative William Archer, Chairman of the House
Ways and Means Committee, and Senator William V. Roth, Jr., Chairman of the
Senate Finance Committee, introduced identical legislation to limit this
"grandfathering" rule (the "Tax Proposals"). Under the Tax Proposals, the
anti-pairing rules provided in the Code would apply to real property interests
acquired after March 26, 1998 by the Companies, or a subsidiary or partnership
in which a ten percent or greater interest is owned by the Companies
(collectively, the "REIT Group"), unless (1) the real property interests are
acquired pursuant to a written agreement which was binding on March 26, 1998
and at all times thereafter or (2) the acquisition of such real property
interests was described in a public announcement or in a filing with the SEC on
or before March 26, 1998.
Under the Tax Proposals as currently proposed, the properties to be
acquired in the proposed mergers of the Corporation with La Quinta and
Cobblestone would not be subject to these anti-pairing rules. However, there can
be no assurance that the Tax Proposals will be adopted in their current form,
with a consequence that the properties to be acquired from La Quinta and
Cobblestone or other properties of the Companies could become subject to the
anti-pairing rules of the Code in the future. In addition, the Tax Proposals
also provide that a property held by the Companies that is not subject to the
anti-pairing rules would become subject to such rules in the event of an
improvement placed in service after December 31, 1999 that changes the use of
the property and the cost of which is greater than 200 percent of (1) the
undepreciated cost of the property (prior to the improvement) or (2) in the case
of property acquired where there is a substituted basis (e.g., the properties to
be acquired from La Quinta and Cobblestone), the fair market value of the
property on the date it was acquired by the Companies. There is an exception for
improvements placed in service before January 1, 2004 pursuant to a binding
contract in effect on December 31, 1999 and at all times thereafter. This
proposed restriction on property improvements would apply to the properties to
be acquired from La Quinta and Cobblestone, as well as all other properties
owned by the Companies, and would limit the ability of the Companies to improve
or change the use of those properties after December 31, 1999.
If adopted in their present form, the restrictions on the activities of a
grandfathered REIT provided in the proposed legislation may in the future make
it impractical or undesirable for the Companies to continue to maintain their
paired share structure. Restructuring the operations of the Corporation and the
Operating Company to comply with the rules contemplated by the Administration
Tax Proposals or the Tax Proposals could cause the Companies to incur
substantial tax liabilities, to recognize an impairment loss on their goodwill
assets, or otherwise materially adversely affect the Companies and their ability
to make distributions to shareholders and to pay amounts due on their
indebtedness.
Effects of Compliance with REIT Requirements
Operating income derived from health care related facilities, hotels, golf
courses or a racetrack does not constitute qualifying income under the REIT
requirements. Accordingly, all of the Corporation's facilities have been leased
to lessees, and the Corporation intends to continue to lease such facilities
for as long as the Corporation owns such facilities. Similarly, the Corporation
has leased the Race Track to the Operating Company, and the Corporation intends
to continue to lease the Race Track for so long as the Corporation owns the
Race Track. In addition, the hotels and golf courses to be acquired in the La
Quinta and Cobblestone mergers, as well as the golf
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courses acquired from IRI, also will be leased to the Operating Company. Rent
derived from such leases will be qualifying income under the REIT requirements,
provided several requirements are satisfied. Among other requirements, a lease
may not have the effect of giving the Corporation a share of the net income of
the lessee, and the amount of personal property leased under the lease must not
exceed the 15% rent described above. The Corporation also may not provide
services, other than customary services, except for a de minimis amount, to the
lessee or their subtenants. In addition, the leases must also qualify as "true"
leases for federal income tax purposes (as opposed to service contracts, joint
ventures or other types of arrangements). There are, however, no controlling
Treasury Regulations, published rulings, or judicial decisions that discuss
whether leases similar to the Corporation's leases constitute "true" leases.
Therefore, there can be no complete assurance that the IRS will not
successfully assert a contrary position.
Payments under a lease will not constitute qualifying income for purposes
of the REIT requirements if the Corporation owns, directly or indirectly, 10%
or more of the ownership interests in the relevant lessee. Constructive
ownership rules apply, such that, for instance, the Corporation is deemed to
own the assets of stockholders who own 10% or more in value of the stock of the
Corporation. The by-laws of each of the Companies are therefore designed to
prevent a stockholder of the Corporation from owning REIT stock or Operating
Company stock that would cause the Corporation to own, actually or
constructively, 10% or more of the ownership interests in a lessee (including
the Operating Company). See "Description of Capital Stock -- Ownership
Limitations and Restrictions on Transfer." However, because the relevant
constructive ownership rules are broad and it is not possible to monitor
continually direct and indirect transfers of Paired Shares, and because the
by-law provisions referred to above may not be effective, no assurance can be
given that such transfers or other events will not cause the Corporation to own
constructively 10% or more of one or more lessees at some future date.
Taxation of the Corporation
As a REIT, the Corporation is subject to Federal corporate income tax on
its taxable income, which is computed taking into account a deduction for
dividends paid and certain other special rules. Thus, if the Corporation does
not distribute all its net capital gains or distributes more than 95% but less
than 100% of its other REIT income, the Corporation will be subject to Federal
corporate income tax (including any applicable alternative minimum tax) on the
undistributed portion of such income (in the case of capital gains taxes paid
by the Corporation, each shareholder of the Corporation shall be entitled to a
tax credit based on the amount of such taxes). Such undistributed income also
may be subject to the 4% excise tax mentioned earlier. The Corporation expects
to distribute all its income on a current basis so it will not incur any
Federal income or excise tax (although it may incur some amount of state and
local tax in jurisdiction whose tax laws do not conform to the Federal income
tax treatment of REITs).
In addition to the considerations discussed above, the REIT requirements
will impose a number of other restrictions on the operations of the
Corporation. For example, net income from sales of property sold to customers
in the ordinary course of business (other than inventory acquired by reason of
certain foreclosures) is subject to a 100% tax unless eligible for a certain
safe harbor. Minimum distribution requirements also generally require the
Corporation to distribute each year at least 95% of its taxable income for the
year (excluding any net capital gain). In addition, certain asset tests limit
the Corporation's ability to acquire non-real estate assets.
Federal Income Taxation of Operating Company; Non-Controlled Subsidiaries
As a "C" corporation under the Code, the Operating Company will be subject
to U.S. federal income tax on its taxable income at corporate rates. Any
income, net of taxes, will be available for retention in the Operating
Company's business or for distribution to shareholders as dividends. However,
there is no tax provision that requires the Operating Company to distribute any
of its after-tax earnings and the Operating Company does not expect to pay cash
dividends in the foreseeable future. As non-REIT subsidiaries, the corporate
subsidiaries of the Corporation that are not controlled by it will also be
subject to federal income tax in the same manner as the Operating Company.
State and Local Taxation
The Companies and their stockholders may be subject to state and local
taxes in various jurisdictions, including those in which it or they transact
business, own property, or reside. The state and local tax treatment of such
entities or persons may not conform to the federal income tax consequences
discussed above. Consequently, the Companies and their stockholders should
consult their own tax advisers regarding the effect of state and local tax laws
on the ownership of Paired Common Stock.
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Federal Income Taxation of Paired Capital Stock
Separate Taxation
Notwithstanding that Paired Capital Stock may only be transferred as a
unit, holders of Paired Capital Stock will be treated for U.S. federal income
tax purposes as holding equal numbers of shares of Corporation Capital Stock
and of Operating Capital Stock. The tax treatment of distributions to
stockholders and of any gain or loss upon sale or other disposition of the
Paired Capital Stock (as well as the amount of gain or loss) must therefore be
determined separately with respect to each share of Corporation Capital Stock
and each share of Operating Capital Stock contained within each share of Paired
Capital Stock. The tax basis and holding period for each share of Corporation
Capital Stock and each share of Operating Capital Stock also must be determined
separately. Upon a taxable sale of a share of Paired Capital Stock, the amount
realized should be allocated between the Corporation Capital Stock and the
Operating Capital Stock based on their then relative values.
Taxation of Taxable U.S. Stockholders
As used herein, the term "U.S. Stockholder" means a holder of Paired
Capital Stock that for U.S. federal income tax purposes is (i) a citizen or
resident of the United States, (ii) a corporation, partnership, or other entity
created or organized in or under the laws of the United States or any political
subdivision thereof, (iii) an estate, the income of which is subject to U.S.
federal income taxation regardless of its source or (iv) a trust, if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust and (v) is not an
entity that has a special status under the Code (such as a tax-exempt
organization or a dealer in securities).
As long as the Corporation qualifies as a REIT, distributions made to the
Corporation's taxable U.S. Stockholders out of current or accumulated earnings
and profits (and not designated as capital gain dividends) will be taken into
account by such U.S. Stockholders as ordinary income and will not be eligible
for the dividends received deduction generally available to corporations. For
purposes of determining whether distributions on Corporation Capital Stock are
out of earnings and profits, earnings and profits will be allocated first to
any outstanding REIT Preferred Stock and then allocated to any outstanding REIT
Common Stock. Subject to the discussion below regarding changes to the capital
gains tax rates, distributions that are designated as capital gain dividends
will be taxed as capital gains (to the extent they do not exceed the
Corporation's actual net capital gain for the taxable year) without regard to
the period for which the stockholder has held his Corporation Capital Stock.
Distributions in excess of current and accumulated earnings and profits will
not be taxable to a stockholder to the extent that they do not exceed the
adjusted basis of the stockholder's Corporation Capital Stock, but rather will
reduce the adjusted basis of such stock. To the extent that such distributions
in excess of current and accumulated earnings and profits exceed the adjusted
basis of a stockholder's Corporation Capital Stock, such distributions will be
included in income as long-term capital gain (or, in the case of individuals,
trusts and estates, mid-term capital gain if the Corporation Capital Stock has
been held for more than 12 months but not more than 18 months or in the case of
all taxpayers short-term capital gain if the Corporation Capital Stock has been
held for 12 months or less) assuming shares are a capital asset in the hands of
the stockholder. In addition, any distribution declared by the Corporation in
October, November or December of any year and payable to a stockholder of
record on a specified date in any such month shall be treated as both paid by
the Corporation and received by the stockholder on December 31 of such year,
provided that the distribution is actually paid by the Corporation during
January of the following calendar year.
Distributions on Operating Capital Stock from the Operating Company up to
the amount of the Operating Company's current or accumulated earnings and
profits (allocable first to any Operating Preferred Stock and then to any
Operating Common Stock) will be taken into account by U.S. Stockholders as
ordinary income and generally will be eligible for the dividends-received
deduction for corporations (subject to certain limitations). Distributions in
excess of the Operating Company's current and accumulated earnings and profits
will not be taxable to a holder to the extent that they do not exceed the
adjusted basis of the holder's Operating Capital Stock, but rather will reduce
the adjusted basis of such Operating Capital Stock. To the extent that such
distributions exceed the adjusted basis of a holder's Operating Capital Stock
they will be included in income as long-term capital gain (or, in the case of
individuals, trusts and estates, mid-term capital gain if the Operating Capital
Stock has been held for more than 12 months but not more than 18 months or in
the case of all taxpayers, short-term capital gain if the Operating Capital
Stock has been held for 12 months or less) assuming the shares are a capital
asset in the hands of the stockholder.
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For taxable years beginning after December 31, 1997, the Corporation may
elect to retain and pay income tax on net long-term capital gains recognized
during the taxable year. If the Corporation so elects for a taxable year, its
stockholders would include in income as capital gain their proportionate share
of such of its long-term capital gains as the Corporation may designate. A
stockholder would be deemed to have paid its share of the tax paid by the
Corporation, which would be credited or refunded to the stockholder. The
stockholders' basis in its shares of Corporation Capital Stock would be
increased by the amount of undistributed capital gains (less the capital gains
tax paid by the Corporation) included in the stockholder's capital gains. If
the Corporation so elects for a taxable year beginning before January 1, 1998,
no such credit or increase in basis is available to the Corporation's
stockholders even though the stockholders would still include in income as
capital gain their proportionate share of long-term capital gain designated by
the Corporation.
Taxable distributions from the Corporation or the Operating Company and
gain or loss from the disposition of shares of Corporation Capital Stock and
Operating Capital Stock will not be treated as passive activity income and,
therefore, stockholders generally will not be able to apply any passive
activity losses (such as losses from certain types of limited partnerships in
which the stockholder is a limited partner) against such income. In addition,
taxable distributions from the Corporation or the Operating Company generally
will be treated as investment income for purposes of the investment interest
deduction limitations. Capital gain dividends, capital gains (other than
short-term capital gains) from the disposition of Paired Capital Stock and
actual or deemed distributions from either company treated as such, including
capital gains (other than short-term capital gains) recognized on account of
distributions in excess of a stockholder's basis or any deemed capital gain
distributions to a Corporation stockholder on account of retained capital gains
of the Corporation, will be treated as investment income for purposes of the
investment interest deduction limitations only if and to the extent the
stockholder so elects, in which case such capital gains will be taxed at
ordinary income rates to the extent of the election. The Corporation and the
Operating Company will notify stockholders after the close of their taxable
years as to the portions of the distributions attributable to that year that
constitute ordinary income, return of capital, and (in the case of the
Corporation) capital gain. Stockholders may not include in their individual
income tax returns any net operating losses or capital losses of the
Corporation or of the Operating Company.
The Taxpayer Relief Act of 1997 (the "Relief Act") alters the taxation of
capital gain income. Under the Relief Act, individuals, trusts and estates that
hold certain investments for more than 18 months may be taxed at a maximum
long-term capital gain rate of 20% on the sale or exchange of those
investments. Individuals, trusts and estates that hold certain assets for more
than 12 months but not more than 18 months may be taxed at a maximum mid-term
capital gain rate of 28% on the sale or exchange of those investments. The
Relief Act also provides a maximum rate of 25% for "unrecaptured section 1250
gain" for individuals, trusts and estates, special rules for "qualified 5-year
gain," as well as other changes to prior law. The Relief Act allows the IRS to
prescribe regulations on how the Relief Act's new capital gain rates will apply
to sales of capital assets by (or interests in) "pass-thru entities," which
include REITs such as the Corporation. To date regulations have not yet been
prescribed, however, the IRS has issued a notice discussing the rates which
will be prescribed under the Regulations.
The notice provides that a REIT may designate (subject to certain limits)
whether a capital gain dividend is taxable to U.S. Stockholders (other than
corporations) as a 20 percent rate gain distribution (for capital gains
recognized by the REIT with respect to capital assets held for more than 18
months), a 28 percent rate gain distribution (for capital gains recognized by
the REIT with respect to capital assets held for more than one year but not
more than 18 months), or a Section 1250 gain distribution taxed at a 25 percent
rate (for a portion of the gain, recognized by the REIT with respect to
dispositions of certain real property held for more than 18 months, equal to
the amount of all prior depreciation deductions not otherwise required to be
taxed as ordinary depreciation recapture income). This designation will apply
to distributed and undistributed capital gain dividends. Investors are urged to
consult their own tax advisors with respect to the new rules contained in the
Relief Act. No change was made to the capital gains rate or holding period for
corporations under the Relief Act.
Taxation of Stockholders on the Disposition of Paired Capital Stock
In general, and assuming the taxpayer has the same holding period for the
Corporation Capital Stock and the Operating Capital Stock, any gain or loss
realized upon a taxable disposition of Paired Capital Stock by a stockholder
who is not a dealer in securities will be treated as long-term capital gain or
loss if the Paired Capital Stock has been held for more than 12 months, (or, in
the case of individuals, trusts and estates, mid-term capital gain or loss if
the Paired Capital Stock has been held for more than 12 months but not more
than 18 months, and long-term
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capital gain or loss if the Paired Capital Stock has been held for more than 18
months) and otherwise as short-term capital gain or loss. In addition, any loss
upon a sale or exchange of Corporation Capital Stock by a stockholder who has
held such stock for six months or less (after applying certain holding period
rules), will be treated as a long-term capital loss to the extent of
distributions from the Corporation or undistributed capital gains required to
be treated by such stockholder as long-term capital gain. However, the IRS has
indicated in a recent notice that it is examining the proper tax treatment of a
long-term capital loss upon a sale or exchange of corporation capital stock by
a stockholder who has held the stock for less than six months. All or a portion
of any loss realized upon a taxable disposition of Paired Capital Stock may be
disallowed if other Paired Capital Stock is purchased within 30 days before or
after the disposition.
Information Reporting Requirements and Backup Withholding
The Corporation and the Operating Company will each report to their U.S.
Stockholders and the IRS the amount of distributions paid during each calendar
year, and the amount of tax withheld, if any. Under the backup withholding
rules, a stockholder may be subject to backup withholding at the rate of 31%
with respect to distributions paid unless such holder (i) is a corporation or
comes within certain other exempt categories and, when required, demonstrates
this fact or (ii) provides a taxpayer identification number, certifies as to no
loss of exemption from backup withholding and otherwise complies with the
applicable requirements of the backup withholding rules. A stockholder who does
not provide the Corporation and the Operating Company with his, her or its
correct taxpayer identification number also may be subject to penalties imposed
by the IRS. Any amount paid as backup withholding will be creditable against
the stockholder's income tax liability. In addition, the Corporation and the
Operating Company may be required to withhold a portion of capital gain
distributions to any stockholders who fail to certify their non-foreign status
to the Corporation and the Operating Company.
The Treasury Department recently issued new regulations (the "New
Regulations") which make certain modifications to the withholding, backup
withholding and information reporting rules described above. The New
Regulations attempt to unify certification requirements and modify reliance
standards. The New Regulations will generally be effective for payments made
after December 31, 1998, subject to certain transition rules. Prospective
investors are urged to consult their own tax advisors regarding the New
Regulations.
Taxation of Tax-Exempt Stockholders
Tax-exempt entities, including qualified employee pension and profit
sharing trusts and individual retirement accounts ("Exempt Organizations"),
generally are exempt from federal income taxation. They are, however, subject
to taxation on their unrelated business taxable income ("UBTI"). While many
investments in real estate generate UBTI, amounts distributed by the
Corporation to Exempt Organizations generally should not constitute UBTI, nor
should dividends paid by the Operating Company generally constitute UBTI.
However, if an Exempt Organization finances its acquisition of Paired Capital
Stock with debt, a portion of its income from the Corporation and the Operating
Company will constitute UBTI pursuant to the "debt-financed property" rules.
Furthermore, social clubs, voluntary employee benefit associations,
supplemental unemployment benefit trusts, and qualified group legal services
plans that are exempt from taxation under paragraphs (7), (9), (17), and (20),
respectively, of section 501(c) of the Code are subject to different UBTI
rules, which generally will require them to characterize distributions from the
Corporation and the Operating Company as UBTI.
Investors are urged to consult their own tax advisors with respect to the
appropriateness of an investment in the Securities offered hereby and with
respect to the tax consequences arising under federal law and the laws of any
state, municipality or other taxing jurisdiction, including tax consequences
resulting from such investor's own tax characteristics. In particular, foreign
investors should consult their own tax advisors concerning the tax consequences
of an investment in the Corporation and Operating Company including the
possibility of U.S. income tax withholding on distributions.
PLAN OF DISTRIBUTION
The Companies, together or individually, may sell Securities in any of
three ways: (i) through underwriting syndicates represented by one or more
managing underwriters, or through one or more underwriters without a syndicate;
(ii) through agents designated from time to time; and (iii) directly to
investors. The names of any underwriters or agents of the Companies involved in
the sale of the Securities in respect of which this Prospectus
55
<PAGE>
is being delivered and any applicable commissions or discounts will be set
forth in the Prospectus Supplement. The net proceeds to the Companies from such
sale will also be set forth in the Prospectus Supplement.
The distribution of the Securities may be effected from time to time in
one or more transactions at a fixed price or prices (which may be changed from
time to time), at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The
Prospectus Supplement will describe the method of distribution of the
Securities.
In connection with the sale of Securities, underwriters or agents acting
on the Companies' behalf may receive compensation from the Companies or from
purchasers of Securities for whom they may act as agents, in the form of
discounts, concessions or commissions. The underwriters, dealers and agents
that participate in the distribution of Securities may be deemed to be
underwriters under the Securities Act and any discounts or commissions received
by them and any profit on the resale of Securities by them may be deemed to be
underwriting discounts and commissions under the Securities Act. Any such
underwriter or agent will be identified and any such compensation will be
described in the Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered into with
the Companies to indemnification by the Companies against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the agents or underwriters may be required to make in respect
thereof. Agents and underwriters may engage in transactions with or perform
services for the Companies in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Companies by Nutter, McClennen & Fish, LLP. In addition, Nutter, McClennen &
Fish, LLP will pass upon certain Federal income tax matters relating to the
Companies. The name of any legal counsel for any underwriter or agent will be
set forth in the applicable Prospectus Supplement.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Michael J. Bohnen, a partner in the law firm Nutter, McClennen & Fish,
LLP, currently serves as Secretary of the Operating Company. Nutter, McClennen
& Fish, LLP, serves as counsel to the Companies, and has rendered a legal
opinion with respect to the validity of the Securities being offered pursuant
to this Prospectus and as to certain Federal income tax matters.
EXPERTS
The combined consolidated financial statements of the REIT and the
Operating Company and the consolidated financial statements of the REIT as of
December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996 and
1995, and the consolidated financial statements of the Operating Company as of
December 31, 1997 and for the initial period ended December 31, 1997,
incorporated herein by reference to the Companies' Joint Current Report on Form
8-K, event date February 26, 1998, have been audited by Coopers & Lybrand
L.L.P., independent accountants, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
The combined balance sheets of La Quinta Inns, Inc. as of December 31,
1997 and 1996, and the related combined statements of operations, shareholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1997, incorporated herein by reference to the Companies' Joint
Current Report on Form 8-K, event date March 31, 1998, have been audited by
KPMG Peat Marwick LLP, independent auditors as set forth in their report
thereon included therein and incorporated herein by reference and have been so
incorporated herein in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
56
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits
The following is a list of exhibits filed as part of this Registration
Statement (numbering corresponds to numbering in Item 601 of Regulation S-K).
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------- -------------------------------------------------------------------------------------------------
<S> <C>
1.1 Form of Underwriting Agreement (incorporated by reference to Exhibit 1 to the Current Report
on Form 8-K of Meditrust dated October 7, 1994).
1.2 Form of Underwriting Agreement for Depositary Shares*
3.1 Certificate of Merger merging Meditrust with and into Santa Anita Realty Enterprises, Inc. filed
with the Secretary of State of Delaware on November 5, 1997.**
3.2 Certificate of Amendment of Certificate of Incorporation of Meditrust Corporation filed with the
Secretary of State of Delaware on November 5, 1997.**
3.3 Certificate of Merger merging Meditrust Acquisition Company with and into Santa Anita
Operating Company filed with the Secretary of State of Delaware on November 5, 1997.**
3.4 Certificate of Amendment of Certificate of Incorporation of Meditrust Operating Company filed
with the Secretary of State of Delaware on November 5, 1997.**
3.5 Restated Certificate of Incorporation of Meditrust Corporation (incorporated by reference to
Exhibit 3.2 to Joint Registration Statement on Form S-4 of Meditrust Corporation and
Meditrust Operating Company (File Nos. 333-47737 and 333-47737-01)).
3.6 Amended and Restated By-Laws of Meditrust Corporation (incorporated by reference to
Exhibit 3.5 to Joint Registration Statement on Form S-4 of Meditrust Corporation and
Meditrust Operating Company (File Nos. 333-47737 and 333-47737-01)).
3.7 Restated Certificate of Incorporation of Meditrust Operating Company (incorporated by
reference to Exhibit 3.4 to Joint Registration Statement on Form S-4 of Meditrust
Corporation and Meditrust Operating Company (File Nos. 333-47737 and 333-47737-01)).
3.8 Amended and Restated By-Laws of Meditrust Operating Company (incorporated by reference to
Exhibit 3.6 to Joint Registration Statement on Form S-4 of Meditrust Corporation and
Meditrust Operating Company (File Nos. 333-47737 and 333-47737-01)).
4.1 Pairing Agreement by and between Meditrust Corporation (formerly known as Santa Anita
Realty Enterprises, Inc.) and Meditrust Operating Company (formerly known as Santa Anita
Operating Company), dated as of December 20, 1979 (incorporated by reference to Exhibit 5
to Joint Registration Statement on Form 8-A of Santa Anita Operating Company filed
February 5, 1980).
4.2 First Amendment to Pairing Agreement, by and between Meditrust Corporation and Meditrust
Operating Company, dated November 6, 1997 (incorporated by reference to Exhibit 4.4 to
Joint Registration Statement on Form S-8 of Meditrust Corporation and Meditrust Operating
Company filed November 7, 1997).
4.3 Second Amendment to Pairing Agreement, by and between Meditrust Corporation and
Meditrust Operating Company, dated as of February 6, 1998 (incorporated by reference to
Exhibit 4.3 to Joint Registration Statement on Form S-4 of Meditrust Corporation and
Meditrust Operating Company (File Nos. 333-47737 and 333-47737-01)).
4.4 Rights Agreement, dated June 15, 1989, among Meditrust Corporation (formerly known as
Santa Anita Realty Enterprises, Inc.), Meditrust Operating Company (formerly known as
Santa Anita Operating Company), and Boston EquiServe, as Rights Agent (incorporated by
reference to Exhibit 2.1 to Joint Registration Statement on Form 8-A of Santa Anita Realty
Enterprises, Inc., filed June 19, 1989).
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Description
- ------------- --------------------------------------------------------------------------------------------
<S> <C>
4.5 Appointment of Boston EquiServe as Rights Agreement, dated October 24, 1997 (incorporated
by reference to Exhibit 4.6 to Joint Registration Statement on Form S-8 of Meditrust
Corporation and Meditrust Operating Company, filed November 7, 1997).
4.6 Form of Indenture**
4.7 Form of Convertible Debenture*
4.8 Form of Debt Security*
4.9 Form of Warrant Agreement and form of Warrant Certificate*
4.10 Certificate of Designation for Preferred Stock*
4.11 Form of Certificate Evidencing Shares of Preferred Stock*
4.12 Form of Deposit Agreement for Depositary Shares, including form of Depositary Receipt
4.13 Form of Certificate Evidencing Shares of Paired Common Stock.
5 Opinion letter of Nutter, McClennen & Fish, LLP
8 Opinion letter of Nutter, McClennen & Fish, LLP regarding tax matters
12 Computation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to Combined Fixed
Charges and Preferred Stock Dividends
23.1 Consents of Nutter, McClennen & Fish, LLP (included in Exhibits 5 and 8)
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of KPMG Peat Marwick LLP
24.1 Power of Attorney (Meditrust Corporation)**
24.2 Power of Attorney (Meditrust Operating Company)**
25 Form T-1, Statement of Eligibility and Qualification**
</TABLE>
- ------------
* To be filed by amendment or incorporated by reference if necessary in
connection with the offering of the Securities.
** Previously filed.
II-2
<PAGE>
MEDITRUST CORPORATION SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Meditrust
Corporation 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
Amendment No. 1 to Form S-3 Joint Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Needham,
Commonwealth of Massachusetts, as of April 2, 1998.
MEDITRUST CORPORATION
By: /s/ David F. Benson
-------------------------------------
Name: David F. Benson
Title: Director, President and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Amendment to
the Joint Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- -------------------------------------- ----------------------------------- ---------------
<S> <C> <C>
*
- --------------------------------- Chairman of the Board
Abraham D. Gosman April 2, 1998
* Director, President and Treasurer
- --------------------------------- (Principal Executive Officer)
David F. Benson April 2, 1998
* Chief Financial Officer (Principal
- --------------------------------- Financial and Accounting Officer)
Laurie T. Gerber April 2, 1998
*
- ---------------------------------
Donald J. Amaral Director April 2, 1998
- ---------------------------------
William C. Baker Director
*
- ---------------------------------
Edward W. Brooke Director April 2, 1998
*
- ---------------------------------
C. Gerald Goldsmith Director April 2, 1998
- ---------------------------------
J. Terrence Lanni Director
*
- ---------------------------------
Phillip L. Lowe Director April 2, 1998
*
- ---------------------------------
Thomas J. Magovern Director April 2, 1998
- ---------------------------------
Gerald Tsai, Jr. Director
* By /s/ David F. Benson
-------------------------------
David F. Benson, attorney-in-fact
</TABLE>
II-3
<PAGE>
MEDITRUST OPERATING COMPANY SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Meditrust
Operating Company 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
Amendment No. 1 to Form S-3 Joint Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the Town of Needham,
Commonwealth of Massachusetts as of April 2, 1998.
MEDITRUST OPERATING COMPANY
By: /s/ Abraham D. Gosman
----------------------------------
Name: Abraham D. Gosman
Title: Chairman of the Board, Chief
Executive Officer and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Joint Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title
- ----------------------------------- ------------------------------------
<S> <C> <C>
* Chairman of the Board, Chief
- --------------------------------- Executive Officer and Treasurer
Abraham D. Gosman (Principal Executive, Financial and
Accounting Officer) April 2, 1998
*
- ---------------------------------
Donald J. Amaral Director April 2, 1998
*
- ---------------------------------
David F. Benson Director April 2, 1998
*
- ---------------------------------
Edward W. Brooke Director April 2, 1998
- ---------------------------------
James P. Conn Director
- ---------------------------------
John C. Cushman Director
*
- ---------------------------------
C. Gerald Goldsmith Director April 2, 1998
*
- ---------------------------------
Phillip L. Lowe Director April 2, 1998
*
- ---------------------------------
Thomas J. Magovern Director April 2, 1998
- ---------------------------------
Gerald Tsai, Jr. Director
*By /s/ Michael J. Bohnen
------------------------------
Michael J. Bohnen, attorney-in-fact
</TABLE>
II-4
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of *,1998 among MEDITRUST CORPORATION, a
Delaware corporation (the "Company"), and *, a *, as Depositary, and all holders
from time to time of Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary (as hereinafter defined) for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
the Receipts evidencing Depositary Shares (as hereinafter defined) representing
fractional interests in the shares of Preferred Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. The following definitions shall apply to the respective terms
(in the singular and plural forms of such terms) used in this Deposit Agreement
and the Receipts:
"Certificate of Designation" shall mean the Certificate of Designation of
*% ______________________________ Preferred Stock of the Company, setting forth
the terms of the Preferred Stock, filed Secretary of State of the State of
Delaware.
"Certificate of Incorporation" shall mean the amended and restated
certificate of incorporation, as the same may be further amended or restated
from time to time, of the Company.
"Company" shall mean Meditrust Corporation, a Delaware corporation, and its
successors.
<PAGE>
"Corporate Office" shall mean the corporate office of the Depositary at
which at any particular time its business in respect of matters governed by this
Deposit Agreement shall be administered, which at the date of this Deposit
Agreement is located at *, New York, New York*.
"Deposit Agreement" shall mean this agreement, as the same may be amended,
modified or supplemented from time to time.
"Depositary" shall mean *, a company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000,
and any successor as depositary hereunder, which successor shall also have its
principal office in the United States and a combined capital and surplus of at
least $50,000,000.
"Depositary Share" shall mean a fractional interest of 1/10 of a share of
Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented by such Depositary Share, including the dividend, voting,
distribution, redemption and liquidation rights contained in the Certificate of
Designation.
"Depositary's Agent" shall mean an agent appointed by the Depositary as
provided, and for the purposes specified, in Section 7.5.
"New York Office" shall mean the office maintained by the Depositary in the
Borough of Manhattan, The City of New York for the execution and delivery,
transfer, surrender and exchange, split-up, combination and redemption of
Receipts (and payment of amounts due upon such redemption), purchase of Receipts
as contemplated by Section 2.10 hereof (and payment of amounts due upon such
purchase) and deposit and withdrawal of Preferred Stock, which facility at the
date of this Deposit Agreement is located at *, New York, New York *. [Delete if
the Depositary's main office is in New York City.]
"Preferred Stock" shall mean the Company's *% ___________________
___________ Preferred Stock, $.10 par value per share, heretofore validly
issued, fully paid and nonassessable.
"Receipt" shall mean a depositary receipt issued hereunder to evidence one
or more Depositary Shares, whether in definitive or temporary form,
substantially in the form set forth as Exhibit A hereto.
"record date" shall mean the date fixed pursuant to Section 4.4.
"record holder" or "holder" as applied to a Receipt shall mean the person
in whose name a Receipt is registered on the books maintained by the Depositary
for such purpose.
2
<PAGE>
"Registrar" shall mean * or any bank or trust company appointed to register
ownership and transfers of Receipts or the deposited Preferred Stock, as the
case may be, as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Transfer Agent" shall mean * or any bank or trust company appointed to
transfer the Receipts or the deposited Preferred Stock, as the case may be, as
herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1. Form and Transferability of Receipts. Definitive Receipts
shall be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company delivered in
compliance with Section 2.2, shall execute and deliver temporary Receipts which
may be printed, lithographed, typewritten, word-processed, mimeographed or
otherwise reproduced, substantially of the tenor of the definitive Receipts in
lieu of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for definitive
Receipts upon surrender of the temporary Receipts at the Corporate Office[, the
New York Office] and such other offices, if any, as the Depositary may
designate, without charge to the holder. Upon surrender for cancellation of any
one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Deposit Agreement, and with respect to the
Preferred Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized signatory of the Depositary, provided that such signature may be
a facsimile if a Registrar (other than the Depositary) shall have been appointed
and such Receipts are countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it shall
have been executed as provided in the preceding
3
<PAGE>
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided, however, that
until a Receipt shall be transferred on the books of the Depositary as provided
in Section 2.4, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in this Deposit Agreement and
for all other purposes.
SECTION 2.2. Deposit of Preferred Stock; Execution and Delivery of Receipts
in Respect Thereof. Concurrently with the execution of this Deposit Agreement,
the Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing * shares of Preferred
Stock, properly endorsed or accompanied, if required by the Depositary, by a
duly executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with (i) all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement and (ii)
a written order of the Company directing the Depositary to execute and deliver
to, or upon the written order of, the person or persons stated in such order a
Receipt or Receipts for the Depositary Shares representing such deposited
Preferred Stock. The Depositary acknowledges receipt of the deposited Preferred
Stock and related documentation and agrees to hold such deposited Preferred
Stock in an account to be established by the Depositary at the Corporate Office
or at such other office as the Depositary shall determine. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Preferred
Stock and the Depositary hereby accepts such appointment and, as such, will
reflect changes in the number of shares (including any fractional shares) of
deposited Preferred Stock held by it by notation, bookentry or other appropriate
method.
If required by the Depositary, Preferred Stock presented for deposit by the
Company at any time, whether or not the register of stockholders of the Company
is closed, shall also be
4
<PAGE>
accompanied by an agreement or assignment, or other instrument satisfactory to
the Depositary, that will provide for the prompt transfer to the Depositary or
its nominee of any dividend or right to subscribe for additional Preferred Stock
or to receive other property that any person in whose name the Preferred Stock
is or has been registered may thereafter receive upon or in respect of such
deposited Preferred Stock, or in lieu thereof such agreement of indemnity or
other agreements as shall be satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited hereunder, together with the other documents specified
above, and upon registering such Preferred Stock in the name of the Depositary,
the Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to, or upon the order of, the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section 2.2, a Receipt or Receipts for the number of whole
Depositary Shares representing the Preferred Stock so deposited and registered
in such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the [New York
Office/Corporate Office], except that, at the request, risk and expense of any
person requesting such delivery, such delivery may be made at such other place
as may be designated by such person.
Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of dividends or other
distributions of Preferred Stock, if any, there shall be deposited hereunder not
more than the number of shares constituting the Preferred Stock as set forth in
the Certificate of Designation, as such may be amended from time to time.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.3. Optional Redemption of Preferred Stock for Cash. Whenever the
Company shall elect to redeem deposited shares of Preferred Stock for cash in
accordance with the provisions of the Certificate of Designation, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 60 days' prior written notice of the date of such proposed redemption
and of the number of such shares of Preferred Stock held by the Depositary to be
redeemed and the applicable redemption price, as set forth in the Certificate of
Designation, including the amount, if any, of accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods) to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of the Preferred Stock and the proposed simultaneous redemption of the
Depositary Shares representing the Preferred Stock to be redeemed, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Preferred Stock and Depositary Shares (the "cash redemption date"), to the
holders of record on the record date fixed for such redemption pursuant to
Section 4.4 hereof of the Receipts evidencing the Depositary Shares to be so
redeemed, at the addresses of such holders as the same appear on the records of
the Depositary, but neither failure to mail any such
5
<PAGE>
notice to one or more such holders nor any defect in any such notice shall
affect the sufficiency of the proceedings for redemption as to other holders.
The Company shall provide the Depositary with such notice, and each such notice
shall state: (i) the cash redemption date; (ii) the cash redemption price; (iii)
the number of shares of deposited Preferred Stock and Depositary Shares to be
redeemed; (iv) the place or places where Receipts evidencing Depositary Shares
to be redeemed are to be surrendered for payment of the cash redemption price;
(v) that from and after the cash redemption date dividends in respect of the
Preferred Stock represented by the Depositary Shares to be redeemed will cease
to accrue; and (vi) if fewer than all the Depositary Shares evidenced by
Receipts held by any holder are to be redeemed, the number of such Depositary
Shares held by such holder to be so redeemed. If fewer than all the outstanding
Depositary Shares are to be redeemed, the Depositary Shares to be redeemed shall
be selected pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by lot or by any other equitable method
determined by the Company that will not give the Company the right to purchase
Receipts, Depositary Shares or shares of Preferred Stock represented by such
Depositary Shares pursuant to the provisions of Section 7.5 of the Company's
by-laws or any other provisions of the Company's by-laws or Certificate of
Incorporation allowing the purchase or redemption of its capital stock to
preserve the status of the Company as a real estate investment trust for federal
income tax purposes. The Company shall also cause notice of redemption to be
published in the Wall Street Journal or, if such newspaper is not then being
published, any other daily newspaper of general circulation in The City of New
York at least once a week for two successive weeks commencing not less than 30
nor more than 60 days prior to the cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Certificate
of Designation) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid dividends (including, without
limitation, accumulated dividends, if any, for prior dividend periods) to the
date of redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed to
redeem the shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph and to pay all amounts
due upon such redemption) all dividends in respect of the shares of Preferred
Stock called for redemption shall cease to accrue, the Depositary Shares called
for redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the cash redemption price together with accrued and unpaid dividends
thereon (including, without limitation, accumulated dividends, if any, for prior
dividend periods) and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price per Depositary Share of $25,
plus 1/*th of the accrued and unpaid dividends (including, without limitation,
accumulated dividends, if any, for prior dividend periods) on one share of
Preferred Stock to the date fixed
6
<PAGE>
for redemption, plus 1/*th of any other money and other property payable in
respect of one such share of Preferred Stock. The foregoing shall be further
subject to the terms and conditions of the Certificate of Designation.
If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.
SECTION 2.4. Registration of Transfer of Receipts. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Receipts and
the Depositary hereby accepts such appointment and, as such, shall register on
its books from time to time transfers of Receipts upon any surrender thereof by
the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
SECTION 2.5. Combinations and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office[, the New York Office] or such other
office as the Depositary may designate for the purpose of effecting a split-up
or combination of Receipts, subject to the terms and conditions of this Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in
the authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.6. Surrender of Receipts and Withdrawal of Preferred Stock. Any
holder of a Receipt or Receipts may withdraw any or all of the deposited
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
or Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office[, the New York Office] or at such other office as the Depositary may
designate for such withdrawals, provided that a holder of a Receipt or Receipts
may not withdraw such Preferred Stock (or money and other property, if any,
represented thereby) which has previously been called for redemption. After such
surrender, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole or fractional shares of such Preferred Stock and
all such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders
of such whole or fractional shares of Preferred Stock will not thereafter be
entitled to deposit such Preferred Stock hereunder or to receive Depositary
Shares therefor. If the Receipt or Receipts delivered by the holder to the
Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole or fractional shares of deposited
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Preferred Stock to be withdrawn, the Depositary shall at the same time, in
addition to such number of whole or fractional shares of Preferred Stock and
such money and other property, if any, to be withdrawn, deliver to such holder
or (subject to Section 2.4) upon his order, a new Receipt or Receipts evidencing
such excess number of Depositary Shares. Delivery of such Preferred Stock and
such money and other property being withdrawn may be made by the delivery of
such certificates, documents of title and other instruments as the Depositary
may deem appropriate, which, if required by the Depositary, shall be properly
endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money
and other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the [New York Office/Corporate Office],
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery may
be made at such other place as may be designated by such holder.
SECTION 2.7. Limitations on Execution and Delivery, Transfer, Split-up,
Combination, Surrender and Exchange of Receipts. As a condition precedent to the
execution and delivery, transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require any or all of the following: (i) payment to it of a sum sufficient
for the payment (or, in the event that the Depositary or the Company shall have
made such payment, the reimbursement to it) of any tax or other governmental
charge with respect thereto (including any such tax or charge with respect to
the Preferred Stock being deposited or withdrawn); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement or as may be required by any
securities exchange upon which the deposited Preferred Stock, the Depositary
Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the transfer of Receipts may be
refused, and the transfer, split-up, combination, surrender or exchange of
outstanding Receipts may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
reasonably necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement.
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SECTION 2.8. Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, provided that the holder thereof provides the Depositary with
(i) evidence reasonably satisfactory to the Depositary of such destruction, loss
or theft of such Receipt, of the authenticity thereof and of his ownership
thereof and (ii) reasonable indemnification satisfactory to the Depositary and
the Company.
SECTION 2.9. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
SECTION 2.10. Purchase of Preferred Stock and Depositary Shares Pursuant to
the By-Laws. The Receipts and the Depositary Shares represented thereby are
subject to the provisions of Section 7.5 of the Company's by-laws and (i) for
purposes of applying Section 7.5 of the Company's by-laws, each holder of any
Receipts will be deemed to be the owner of the number of shares (including
fractional shares) of Preferred Stock represented by the Depositary Shares
evidenced by such Receipts and (ii) Section 7.5 of the Company's by-laws shall
apply to such holder and such Receipts and Depositary Shares as if (A) such
holder owned the shares (including fractional shares) of Preferred Stock
represented by such Depositary Shares directly, (ii) such Receipts evidenced
such shares (including fractional shares) of Preferred Stock and (iii) each such
Depositary Share was a fractional share of Preferred Stock, mutatis mutandis.
If, pursuant to Section 7.5 of its by-laws, the Company purchases any shares of
Preferred Stock represented by Depositary Shares, the Company will, prior to
such purchase, provide the Depositary with the names of the specific holders of
the Receipts evidencing such Depositary Shares and, on or prior to the day of
purchase, the Company will pay to the Depositary an amount equal to the purchase
price of such shares of Preferred Stock, together with accrued and unpaid
dividends thereon (including, without limitation, accumulated dividends, if any,
for prior dividend periods) to the date of purchase, and the Depositary will
apply such monies to purchase such Depositary Shares from the holders identified
by the Company as aforesaid against surrender of such Depositary Receipts.
Anything in the Company's by-laws to the contrary notwithstanding, the purchase
price for each Depositary Share purchased by the Company pursuant to this
Section 2.10 shall be payable in cash and shall be equal to 1/* of the purchase
price payable under Section 7.5 of the Company's by-laws per share of Preferred
Stock to be purchased as aforesaid, plus 1/* of the accrued and unpaid dividends
(including, without limitation, accumulated dividends, if any, for prior
dividend periods) on one share of such Preferred Stock to the date of purchase,
plus 1/* of any other money or other property payable in respect of one share of
such Preferred Stock.
If fewer than all of the Depositary Shares evidenced by a Receipt are
purchased as contemplated by this Section 2.10, the Depositary will deliver to
the holder of such Receipt upon its surrender to the Depositary, together with
payment of the purchase price for and all other amounts payable in respect of
the Depositary Shares so purchased, a new Receipt
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evidencing the Depositary Shares evidenced by such prior Receipt and not so
purchased by the Company. The Depositary and the Company will cooperate in good
faith to carry out the terms of this Section 2.10, subject to the other terms
and provisions of this Deposit Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.1. Filing Proofs Certificates and Other Information. Any person
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other information,
to execute such certificates and to make such representations and warranties as
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery of any Receipt, the
transfer, redemption or exchange of any Receipt, the withdrawal of the deposited
Preferred Stock represented by the Depositary Shares evidenced by any Receipt,
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof, until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.2. Payment of Fees and Expenses. Holders of Receipts shall be
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.7, or to provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any dividend or other distribution on such
Preferred Stock may be withheld, and any part or all of the Preferred Stock or
other property represented by the Depositary Shares evidenced by such Receipt
may be sold for the account of the holder thereof (after attempting by
reasonable means to notify such holder a reasonable number of days prior to such
sale). Any dividend or other distribution so withheld and the proceeds of any
such sale may be applied to any payment of such fees or expenses, the holder of
such Receipt remaining liable for any deficiency.
SECTION 3.3. Representations and Warranties as to Preferred Stock. In the
case of the initial deposit of the Preferred Stock hereunder, the Company and,
in the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
SECTION 3.4. Representation and Warranty as to Receipts and Depositary
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence
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legal and valid interests in the Depositary Shares and each Depositary Share
will represent a legal and valid 1/10 fractional interest in a deposited share
of Preferred Stock. Such representation and warranty shall survive the deposit
of the Preferred Stock and the issuance of Receipts.
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.1. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
sums as are, as nearly as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by law to
withhold and shall withhold from any cash dividend or other cash distribution in
respect of the Preferred Stock represented by the Receipts held by any holder an
amount on account of taxes, the amount made available for distribution or
distributed in respect of Depositary Shares represented by such Receipts subject
to such withholding shall be reduced accordingly. The Depositary shall
distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Receipts a fraction of one cent, and any balance not so distributable shall be
held by the Depositary (without liability for interest thereon) and shall be
added to and be treated as part of the next sum received by the Depositary for
distribution to record holders of Receipts then outstanding. Notwithstanding the
foregoing, (i) if less than all of the outstanding Depositary Shares are to be
redeemed and the Depositary Shares to be so redeemed are not selected pro rata,
then only the holders of the Receipts evidencing the Depositary Shares selected
for redemption will be entitled to receive the cash redemption price therefor or
any other amounts payable upon such redemption; and (ii) if any Depositary
Shares are purchased pursuant to Section 2.10 hereof, then only the holders of
the Receipts evidencing such Depositary Shares shall be entitled to receive the
purchase price therefor or any other amounts payable upon such purchase.
SECTION 4.2. Distributions Other Than Cash. Whenever the Depositary shall
receive any distribution other than cash on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.2, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the Company
may deem equitable and practicable for accomplishing such distribution. If, in
the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible,
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the Depositary may, with the approval of the Company, adopt such method as it
deems equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.1
in the case of a distribution received in cash. The Company shall not make any
distribution of such securities or property unless the Company shall have
provided to the Depositary an opinion of counsel stating that such securities or
property have been registered under the Securities Act or do not need to be
registered.
SECTION 4.3. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
deposited Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible to
make such rights, preferences or privileges available to the holders of Receipts
(by the issue of warrants or otherwise) or (b) if and to the extent instructed
by holders of Receipts who do not desire to exercise such rights, preferences or
privileges, the Depositary shall then, if applicable laws or the terms of such
rights, preferences or privileges so permit, sell such rights, preferences or
privileges of such holders at public or private sale, at such place or places
and upon such terms as it may deem proper. The net proceeds of any such sale
shall, subject to Section 3.2, be distributed by the Depositary to the record
holders of Receipts entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges unless the Company shall have provided to
the Depositary an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be
registered.
If registration under the Securities Act of the securities to which any
rights, preferences or privileges relate is required in order for holders of
Receipts to be offered or sold the securities to which such rights, preferences
or privileges relate, the Company agrees that it will promptly file a
registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders are
exempt from registration under the
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provisions of the Securities Act and the Company shall have provided to the
Depositary an opinion of counsel to such effect.
If any other action under the law of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges or related securities to be made available to
holders of Receipts, the Company agrees to take such action or obtain such
authorization, consent or permit prior to the distribution of such rights,
preferences or privileges and further agrees, in the case of any such related
securities, to use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.4. Notice of Dividends; Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered with respect to the
deposited Preferred Stock, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Stock are entitled to vote or
of which holders of such Preferred Stock are entitled to notice or (ii) any
election on the part of the Company to redeem any such shares of Preferred
Stock, the Depositary shall in each such instance fix a record date (which shall
be the same date as the record date fixed by the Company with respect to the
Preferred Stock) for the determination of the holders of Receipts who shall be
entitled (x) to receive such dividend, distribution, rights, preferences or
privileges or the net proceeds of the sale thereof, or (y) to give instructions
for the exercise of voting rights at any such meeting or to receive notice of
such meeting or whose Depositary Shares are to be so redeemed.
SECTION 4.5. Voting Rights. Upon receipt of notice of any meeting at which
the holders of deposited Preferred Stock are entitled to vote, the Depositary,
as soon as practicable thereafter, shall mail to the record holders of Receipts
a notice, which shall be provided by the Company and which shall contain (i)
such information as is contained in such notice of meeting, (ii) a statement
that the holders of Receipts at the close of business on a specified record date
fixed pursuant to Section 4.4 will be entitled, subject to any applicable
provision of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Preferred Stock represented by their respective
Depositary Shares and (iii) a brief statement as to the manner in which such
instructions may be given. Upon the written request of a holder of a Receipt on
such record date, the Depositary shall vote or cause to be voted the Preferred
Stock represented by the Depositary Shares evidenced by such Receipt in
accordance with the instructions set forth in such request. To the extent any
such instructions request the voting of a fractional interest of a share of
deposited Preferred Stock, the Depositary shall aggregate such interest with all
other fractional interests resulting from requests with the same voting
instructions and shall vote the number of whole votes resulting from such
aggregation in accordance with the instructions received in such requests. Each
share of Preferred Stock is entitled to [ten] votes and, accordingly, each
Depositary Share is entitled to one vote. The Company hereby agrees to take all
reasonable action that may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred
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Stock or cause such Preferred Stock to be voted. In the absence of specific
instructions from the holder of a Receipt, the Depositary will abstain from
voting to the extent of the Preferred Stock represented by the Depositary Shares
evidenced by such Receipt. The Depositary shall not be required to exercise
discretion in voting any Preferred Stock represented by the Depositary Shares
evidenced by such Receipt.
SECTION 4.6. Changes Affecting Preferred Stock and Reclassifications,
Recapitalization, etc. Upon any change in the liquidation preference, or upon
any split-up, combination or any other reclassification of Preferred Stock, or
upon any recapitalization, reorganization, merger or consolidation affecting the
Company or to which it is a party or sale of all or substantially all of the
Company's assets, the Depositary shall, upon the instructions of the Company,
(i) make such adjustments in (a) the fraction of an interest represented by one
Depositary Share in one share of Preferred Stock and (b) the ratio of the
redemption price or, for purposes of Section 2.10 hereof, purchase price per
Depositary Share to the redemption price or purchase price, as the case may be,
of a share of Preferred Stock, in each case as may be required to fully reflect
the effects of such change in liquidation preference, split-up, combination or
other reclassification of Preferred Stock, or of such recapitalization,
reorganization, merger, consolidation or sale and (ii) treat any shares of stock
or other securities or property (including cash) that shall be received by the
Depositary in exchange for or upon conversion of or in respect of the Preferred
Stock as new deposited property under this Deposit Agreement, and Receipts then
outstanding shall thenceforth represent the proportionate interests of holders
thereof in the new deposited property so received in exchange for or upon
conversion or in respect of such Preferred Stock. In any such case the
Depositary may, in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited property. Anything to the contrary herein notwithstanding, holders of
Receipts shall have the right from and after the effective date of any such
change in liquidation preference, split-up, combination or other
reclassification of the Preferred Stock or any such recapitalization,
reorganization, merger or consolidation or sale of all or substantially all the
assets of the Company, to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the Preferred Stock represented
thereby only into or for, as the case may be, the kind and amount of shares of
stock and other securities and property and cash into which the deposited
Preferred Stock evidenced by such Receipts might have been converted or for
which such Preferred Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction. The Company shall cause
effective provision to be made in the charter or other governing instruments of
the resulting, surviving or transferee entity (if other than the Company) for
protection of such rights as may be applicable upon exchange of the deposited
Preferred Stock for securities or property or cash of the surviving entity in
connection with the transactions set forth above. The Company shall cause any
such surviving entity (if other than the Company) expressly to assume the
obligations of the Company hereunder, by written instrument or agreement
executed and delivered on or prior to the effective date of such transaction.
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SECTION 4.7. Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office[, the New York Office]
and at such other places as it may from time to time deem advisable during
normal business hours any reports and communications received from the Company
that are both received by the Depositary as the holder of deposited Preferred
Stock and made generally available to the holders of the Preferred Stock. In
addition, the Depositary shall transmit certain notices and reports to the
holders of Receipts as provided in Section 5.5.
SECTION 4.8. List of Holders of Receipts. Promptly upon request from time
to time by the Company, the Depositary shall furnish to the Company a list, as
of a recent date specified by the Company, of the names, addresses and holdings
of Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary.
SECTION 4.9. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of Internal Revenue Service Forms
1099 for all open and closed accounts, (ii) foreign tax withholding, (iii)
back-up withholding (or any withholding as may be required at the then
applicable rate) on dividends paid and other distributions made to eligible
holders of Receipts, (iv) mailing Internal Revenue Service Forms W-9 to new
holders of Receipts without a certified taxpayer identification number, (v)
processing certified Internal Revenue Service Forms W-9, (vi) preparation and
filing of state information returns and (vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is obligated
by law to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.1. Maintenance of Offices. Agencies and Transfer Books by the
Depositary and the Registrar. The Depositary shall maintain [Delete clause (i)
if the Corporate Office is in New York] (i) at the New York Office facilities
for the execution and delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts (and payment of amounts due upon such
redemption) and purchase of Receipts as contemplated by Section 2.10 hereof (and
payment of amounts due upon such purchase), and deposit and withdrawal of
Preferred Stock and (ii) at the Corporate Office and at the offices of the
Depositary's Agents, if any, facilities for the execution and delivery,
transfer, surrender and exchange, split-up, combination and redemption of
Receipts (and payment of amounts due
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upon such redemption) and purchase of Receipts as contemplated by Section 2.10
hereof (and payment of amounts due upon such purchase) and deposit and
withdrawal of Preferred Stock, all in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at the [New York Office/Corporate Office]
for the registration and transfer of Receipts, which books at all reasonable
times shall be open for inspection by the record holders of Receipts. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary shall, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if so
permitted by the requirements of such exchange) may be removed and a substitute
Registrar appointed by the Depositary upon the request or with the approval of
the Company. If the Receipts, such Depositary Shares or such Preferred Stock are
listed on one or more other stock exchanges, the Depositary will,- at the
request and expense of the Company, arrange such facilities for the delivery,
transfer, surrender, redemption, purchase and exchange of such Receipts, such
Depositary Shares or such Preferred Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.2. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, any Depositary's
Agent or any Registrar, by reason of any provision, present or future, of the
Certificate of Incorporation or the Certificate of Designation or, in the case
of the Company, the Depositary, the Depositary's Agent or any Registrar, by
reason of any act of God or war or other circumstance beyond the control of the
relevant party, the Depositary, any Depositary's Agent, any Registrar or the
Company shall be prevented or forbidden from doing or performing any act or
thing that the terms of this Deposit Agreement provide shall be done or
performed; nor shall the Depositary, any Depositary's Agent, any Registrar or
the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents' the
Registrar and the Company. Neither the Depositary, any Depositary's Agent, any
Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out
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<PAGE>
of conduct constituting bad faith, negligence or willful misconduct in the
performance of such duties as are specifically set forth in this Deposit
Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability, unless indemnity reasonably satisfactory to it against all
expense and liability be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Preferred Stock for deposit, any holder of a Receipt or
any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims, requests
or instructions received from the Company and shall be entitled to the full
indemnification set forth in Section 5.6 hereof in connection with any action so
taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliates, or subsidiaries, any Depositary's
Agent, and any Registrar may own, buy, sell or deal in any class of securities
of the Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its affiliates
may be interested or contract with or lend money to or otherwise act as fully or
as freely as if it were not the Depositary or the Depositary's Agent hereunder.
The Depositary may also act as transfer agent or registrar of any of the
securities of the Company and its affiliates or act in any other capacity for
the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall
be deemed to be an "issuer" of the securities under the federal securities laws
or applicable state securities laws, it being expressly understood and agreed
that the Depositary and any
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Depositary's Agent are acting only in a ministerial capacity as Depositary for
the deposited Preferred Stock; provided, however, that the Depositary agrees to
comply with all information reporting and withholding requirements applicable to
it under law or this Deposit Agreement in its capacity as Depositary.
Neither the Depositary (or its officers, directors, employees or agents)
nor any Depositary's Agent makes any representation or has any responsibility as
to the validity of the registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the deposited Preferred Stock,
the Depositary Shares, the Receipts (except its signature or countersignature
thereon) or any instruments referred to herein or therein, or as to the
correctness of any statement made herein or therein; provided, however, that the
Depositary is responsible for its representations in this Deposit Agreement and
for the validity of any action taken or required to be taken by the Depositary
in connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock and
the Depositary Shares in accordance with the applicable securities laws.
SECTION 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60 days,
the resigning Depositary may petition a court of competent jurisdiction to
appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder and pursuant to which it shall agree to become the
depositary under this Agreement, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Stock and any moneys
or property held hereunder to such successor and shall deliver to such successor
a list of the record holders of all outstanding Receipts. Any
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successor depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any corporation, association or other entity into or with which the
Depositary may be merged, consolidated or converted shall be the successor of
such Depositary without the execution or filing of any document or any further
act. Such successor depositary may execute the Receipts either in the name of
the predecessor depositary or in the name of the successor depositary.
SECTION 5.5. Notices, Reports and Documents. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
addresses recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or the
Receipts are included for quotation or listed or by the Certificate of
Incorporation, the Company's by-laws or the Certificate of Designation to be
furnished by the Company to holders of the deposited Preferred Stock and, if
requested by the holder of any Receipt, a copy of this Deposit Agreement, the
form of Receipt, the Certificate of Designation and the form of Preferred Stock
certificate. Such transmission will be at the Company's expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the record holders of Receipts at the Company's expense such other documents as
may be requested by the Company.
SECTION 5.6. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys' fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary's Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, negligence or bad faith on the part of any such person or
persons. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent or
termination of this Deposit Agreement.
SECTION 5.7. Fees, Charges and Expenses. No charges or expenses of the
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except as provided in this Section 5.7. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the initial deposit of the Preferred Stock and the
initial issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the Preferred Stock at the option of the Company, any purchase of
Preferred Stock by the Company as contemplated by Section 2.10 hereof, and all
withdrawals of the Preferred Stock by holders of Depositary Shares. If a holder
of Receipts requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the holder of the cost of the
performance of such duties prior to the
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performance thereof. Such holder will be liable for the charges and expenses
related to such performance. All other fees and expenses of the Depositary and
any Depositary's Agent hereunder and of any Registrar (including, in each case,
fees and expenses of counsel) incident to the performance of their respective
obligations hereunder will be promptly paid as agreed between the Depositary and
the Company from time to time. The Depositary shall present its statement for
fees and expenses to the Company every month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. Amendment. The Receipts and any provision of this Deposit
Agreement (including any provision of the form of Receipt attached as Exhibit A
hereto) may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of the holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Preferred Stock pursuant to the Certificate of Designation shall be
effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least two-thirds of the Depositary Shares then
outstanding. In no event shall any amendment impair the right, subject to the
provisions of Section 2.6, Section 2.7 and Article III hereof, of any holder of
any Depositary Shares to surrender the Receipt evidencing such Depositary Shares
with instructions to the Depositary to deliver to the holder the deposited
Preferred Stock and all money and other property, if any, represented thereby,
except in order to comply with mandatory provisions of applicable law. Every
holder of an outstanding Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby.
SECTION 6.2. Termination. This Deposit Agreement may be terminated by the
Company upon not less than 30 days' prior written notice to the Depositary if
(i) such termination is necessary to preserve the Company's status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended (or
any successor thereto) or (ii) the holders of Receipts evidencing at least a
majority of the outstanding Depositary Shares consent to such termination,
whereupon the Depositary shall deliver or make available to each holder of a
Receipt, upon surrender of the Receipt held by such holder, such number of whole
or fractional shares of deposited Preferred Stock as are represented by the
Depositary Shares evidenced by such Receipt, together with any cash or other
property held by the Depositary in respect of such Receipt. In the event that
this Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company hereby agrees to use its best efforts to list
the Preferred Stock issued upon surrender of the Receipts evidencing the
Depositary Shares represented thereby on a national securities exchange. This
Deposit Agreement will automatically terminate if (i) all outstanding Depositary
Shares shall have
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<PAGE>
been redeemed pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the deposited Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Section 5.6 and Section 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Deposit Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Corporate Office[, the
New York Office] and the respective offices of the Depositary's Agents, if any,
by any holder of a Receipt.
SECTION 7.2. Exclusive Benefits of Parties. This Deposit Agreement is for
the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given personally delivered or sent by mail, by overnight courier, or
by telegram or facsimile transmission confirmed by letter, addressed to the
Company at:
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Meditrust Corporation
197 First Avenue
Needham Heights, Massachusetts 02194-9127
Attention: Michael S. Benjamin
Telephone No.: (781) 433-6000
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the Receipts
shall be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, by overnight courier, or by telegram or telex or
telecopier confirmed by letter, addressed to the Depositary at the Corporate
Office.
Any notices given to any record holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, by overnight courier, or by telegram or
telex or telecopier confirmed by letter, addressed to such record holder at the
address of such record holder as it appears on the books of the Depositary or,
if such holder shall have filed with the Depositary in a timely manner a written
request that notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex or telecopier
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram or
telex or telecopier message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram or
telex or telecopier message received by it from the other or from any holder of
a Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.5. Depositary's Agents. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.6. Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.7. Governing Law. This Deposit Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
applicable to agreements made and to be performed in said State.
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<PAGE>
SECTION 7.8. Inspection of Deposit Agreement and Certificate of
Designation. Copies of this Deposit Agreement and the Certificate of Designation
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Corporate Office[, the New York
Office] and the respective offices of the Depositary's Agents, if any, by any
holder of any Receipt.
SECTION 7.9. Headings. The headings of articles and sections in this
Deposit Agreement (including Exhibit A hereto) and in the Receipts have been
inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or to have any bearing upon the meaning or interpretation of
any provision contained herein or in the Receipts.
23
<PAGE>
IN WITNESS WHEREOF, Meditrust Corporation and * have duly executed this
Deposit Agreement as of the day and year first above set forth and all holders
of Receipts shall become parties hereto by and upon acceptance by them of
delivery of Receipts issued in accordance with the terms hereof.
MEDITRUST CORPORATION
By: ________________________________
Name:
Title:
*
By: ________________________________
Name:
Title:
24
<PAGE>
EXHIBIT A
Form of Receipt
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
[Point for company counsel: The following legend should also appear on the
Preferred Stock Certificate.] The Company will furnish to any holder hereof who
so requests and any other stockholder who so requests, without charge, the
powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights. The Company will
also furnish without charge to each holder hereof who so requests, without
charge, a copy of the Deposit Agreement (as defined below) and a copy of the
Certificate of Designation with respect to the Stock (as defined below) of the
Company. Any such request be made to the Secretary of the Company at its
principal office or to the Depositary (as defined below).
The shares of Stock represented by the Depositary Shares (as defined below)
evidenced by this Receipt (as defined below) are subject to restrictions in the
by-laws of the Company which prohibit any person from acquiring or maintaining
any ownership interest in the stock of the Company which is inconsistent with
the requirements of the Internal Revenue Code of 1986, as amended (the "Code"),
pertaining to real estate investment trusts and which permit the Company to
purchase from any stockholder such number of shares sufficient to maintain or
bring the ownership of stock of the Company into conformity with such
requirements of the Code. The Deposit Agreement provides that this Receipt and
the Depositary Shares evidenced by this Depositary Receipt are subject to the
foregoing provisions of the Company's by-laws as if the holder hereof owned the
shares (including fractional shares) of Stock represented by such Depositary
Shares directly, and this Receipt and the Depositary Shares evidenced hereby are
therefore subject to the restrictions on ownership and transfer set forth in,
and may be purchased by the Company in accordance with, the provisions and
restrictions in its by-laws referred to above. The holder of this Receipt by his
or her acceptance hereof consents to be bound by such provisions and
restrictions.
DRC- This Depositary Receipt is transferable in [ ] or
New York, New York.
CUSIP See reverse for certain definitions.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES
EACH REPRESENTING 1/[ ]TH OF A SHARE OF
[ ]% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
MEDITRUST CORPORATION
(a Delaware corporation)
[ ], as Depositary (the "Depositary", which term includes any successor
depositary under the Deposit Agreement referred to below), hereby certifies that
____________________________________ is the registered owner of ____________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing 1/[
] of one share of [ ]% Series A Cumulative Redeemable Preferred Stock, par value
$0.10 per share (the "Stock"), of Meditrust Corporation, a Delaware corporation
(the "Company", which term, as used herein, includes it successors), on deposit
with the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement dated as of [ ], 1998 (as the same may be amended or
supplemented from time to time, the "Deposit Agreement") among the Company, the
Depositary and the holders from time to time of depositary receipts ("Receipts")
issued thereunder. By accepting this Receipt, the holder hereof becomes a party
to and agrees to be bound by all the terms and conditions of the Deposit
Agreement. This Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary, provided that, if a Registrar in respect of the
Receipts (other than the Depositary) shall have been appointed, then this
Receipt may be signed by the facsimile signature of a duly authorized signatory
of the Depository so long as it is countersigned by the manual signature of a
duly authorized signatory of such Registrar. [Point for the Depositary: note
that the Receipts must be manually executed by the Depositary.]
This Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this place.
Dated:
[ ],
as Depositary, Transfer Agent and Registrar
By:
------------------------------------------
Authorized Signatory
10351\00071\79585.4
A-1
<PAGE>
[FORM OF REVERSE OF RECEIPT]
MEDITRUST CORPORATION
1. The Deposit Agreement. Receipts, of which this Receipt is one, are made
available upon the terms and conditions set forth in the Deposit Agreement (as
defined on the face hereof). The Deposit Agreement (copies of which are on file
at the Corporate Office of the Depositary and at the office of any agent of the
Depositary) sets forth the rights of holders of Receipts and the rights and
duties of the Depositary. The statements made on the face and the reverse of
this Receipt are summaries of certain provisions of the Deposit Agreement and
are subject to the detailed provisions thereof, to which reference is hereby
made. In the event of any conflict between the provisions of this Receipt and
the provisions of the Deposit Agreement, the provisions of the Deposit Agreement
will govern.
2. Definitions. Unless otherwise expressly herein provided, all defined
terms used in this summary of the Deposit Agreement shall have the meanings
ascribed thereto in the Deposit Agreement.
3. Redemption of Stock. Whenever the Company shall elect to redeem shares
of Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice furnished by the Company of the redemption
of Stock and the proposed simultaneous redemption of Depositary Shares
representing the Stock to be redeemed, not less than 30 and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares,
to the holders of record on the record date fixed for such redemption pursuant
to the Deposit Agreement of the Receipts evidencing the Depositary Shares to be
so redeemed, at the addresses of such holders as the same appear on the records
of the Depositary. Any such notice shall also be published in the manner
specified in the Deposit Agreement. On the date of such redemption, the
Depositary shall redeem the number of Depositary Shares representing such Stock
so called for redemption; provided, that the Company shall then have paid in
full to the Depositary the cash redemption price of the Stock to be redeemed
(including any accrued and unpaid dividends (including, without limitation
accumulated dividends, if any, for prior dividend periods) to the date of
redemption). If fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed shall be selected pro rata or by
lot or by any other equitable method determined by the Company that will not
give the Company the right to purchase Receipts, Depositary Shares or shares of
Stock represented by such Depositary Shares pursuant to any provisions in its
by-laws or Certificate of Incorporation allowing the purchase or redemption of
its capital stock to preserve the status of the Company as a real estate
investment trust for federal income tax purposes. Notice having been mailed as
aforesaid, from and after the redemption date (unless the Company shall have
failed to redeem the shares of Stock to be redeemed by it as set forth in the
notice of redemption and to pay in full the redemption price therefor (including
accrued and unpaid dividends (including accumulated dividends, if any, for prior
dividend periods)), all dividends in respect of the shares of Stock
A-2
<PAGE>
called for redemption shall cease to accrue, the Depositary Shares called for
redemption shall be deemed no longer to be outstanding and all rights of the
holders of Receipts evidencing such Depositary Shares (except the right to
receive the redemption price together with accrued and unpaid dividends, if any,
thereon (including, without limitation, accumulated dividends, if any, for prior
dividend periods) and any other moneys or property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price per Depositary Share of $25,
plus 1/[ ]th of the accrued and unpaid dividends (including, without limitation,
accumulated dividends, if any, for prior dividend periods) on one share of Stock
to the date fixed for redemption, plus 1/[ ]th of any other money and other
property payable in respect of one such share of Stock. The foregoing is subject
to the further terms and conditions of the Certificate of Designation. If fewer
than all of the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will deliver to the holder of this Receipt upon its
surrender to the Depositary, together with the redemption payment, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
4. Surrender of Receipts and Withdrawal of Stock. Upon surrender of this
Receipt to the Depositary at the Corporate Office[, the New York Office] or at
such other office as the Depositary may designate, and subject to the provisions
of the Deposit Agreement, the holder hereof is entitled to withdraw, and to
obtain delivery, without unreasonable delay, to or upon the order of such
holder, any or all of the Stock (in whole or fractional shares of Stock) and all
money and other property, if any, represented by the Depositary Shares evidenced
by this Receipt; provided, however, that, in the event this Receipt shall
evidence a number of Depositary Shares in excess of the number of Depositary
Shares representing the number of whole or fractional shares of deposited Stock
to be withdrawn, the Depositary shall at the same time, in addition to such
number of whole or fractional shares of Stock and such money and other property,
if any, to be withdrawn, deliver to or upon the order of such holder, a new
Receipt or Receipts evidencing such excess number of Depositary Shares.
5. Transfers, Split-Ups, Combinations. Subject to the Deposit Agreement,
this Receipt is transferable on the books of the Depositary upon surrender of
this Receipt by the holder hereof in person or by a duly authorized attorney to
the Depositary, properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, together with evidence of the payment of
any transfer taxes as may be required by law. Upon such surrender the Depositary
shall sign and deliver a Receipt or Receipts to or upon the order of the person
entitled thereto, all as provided in and subject to the Deposit Agreement.
Subject to the terms of the Deposit Agreement, this Receipt may be split into
other Receipts or combined with other Receipts into one Receipt evidencing the
same aggregate number of Depositary Shares evidenced by the Receipt or Receipts
surrendered; provided, however, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
6. Conditions to Signing and Delivery, Transfer, etc. of Receipts. As a
condition precedent to the execution and delivery, transfer, split-up,
combination, surrender or exchange of this Receipt, the Depositary, any of the
Depositary's Agents or the Company may
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<PAGE>
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement to it) of any tax or other governmental charge
with respect thereto (including any such tax or charge with respect to the
Preferred Stock being deposited or withdrawn); (ii) production of proof
satisfactory to it as to the identity and genuineness of any signature (or the
authority of any signature); and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of the Deposit Agreement or as may be required by any
securities exchange upon which the deposited Stock, the Depositary Shares or the
Receipts may be included for quotation or listed.
7. Suspension of Delivery, Transfer, etc. The deposit of Stock may be
refused, the delivery of this Receipt against Stock may be suspended, the
transfer of Receipts may be refused, and the transfer, split-up, combination,
surrender or exchange of this Receipt may be suspended (i) during any period
when the register of stockholders of the Company is closed or (ii) if any such
action is deemed reasonably necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because of
any requirement of law or of any government or governmental body or commission,
or under any provision of the Deposit Agreement.
8. Amendment. The Receipts and any provision of the Deposit Agreement
(including any provision of the form of Receipt attached as an exhibit thereto)
may at any time and from time to time be amended by agreement between the
Company and the Depositary in any respect that they may deem necessary or
desirable; provided, however, that no such amendment which (i) shall materially
and adversely alter the rights of holders of Receipts or (ii) would be
materially and adversely inconsistent with the rights granted to the holders of
the Stock pursuant to the Certificate of Designation shall be effective unless
such amendment shall have been approved by the holders of at least two-thirds of
the Depositary Shares evidenced by Receipts then outstanding. The holder of this
Receipt at the time any such amendment becomes effective shall be deemed, by
continuing to hold this Receipt, to consent and agree to such amendment and to
be bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right, as provided in the Deposit Agreement, of the owner
of the Depositary Shares evidenced by this Receipt to surrender this Receipt
with instructions to the Depositary to deliver to the holder the deposited Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
9. Charges and Expenses. The Company will pay all transfer and other taxes
and governmental charges arising solely form the existence of the depositary
arrangement, except such charges as are expressly provided in the Deposit
Agreement to be at the expense of holders of Receipts.
10. Title to Receipts. Title to this Receipt (and to the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement, is transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until
this Receipt is transferred on the books of the Depositary as provided in the
Deposit Agreement, the Depositary may, notwithstanding any notice to the
contrary, treat the record holder hereof at such time as the absolute owner
hereof
A-4
<PAGE>
for the purpose of determining the person entitled to distribution of dividends
or other distributions or to any notice provided for in the Deposit Agreement
and for all other purposes.
11. Dividends and Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the deposited Stock, the Depositary
shall, subject to the provisions of the Deposit Agreement, distribute to record
holders of Receipts on the record date fixed pursuant to the Deposit Agreement
such amounts of such sums as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required by law to withhold and shall withhold from any cash dividend or other
cash distribution in respect of the Stock represented by the Receipts held by
any holder an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares represented by such
Receipts subject to such withholding shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
holder of Receipts a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then outstanding.
Notwithstanding the foregoing, (i) if less than all of the outstanding
Depositary Shares are to be redeemed and the Depositary Shares to be so redeemed
are not selected pro rata, then only the record holders of the Receipts
evidencing the Depositary Shares selected for redemption will be entitled to
receive the cash redemption price therefor or any other amounts payable upon
such redemption; and (ii) if any Depositary Shares are purchased pursuant to
Section 2.10 of the Deposit Agreement, then only the record holders of the
Receipts evidencing such Depositary Shares shall be entitled to receive the
purchase price therefor or any other amounts payable upon such purchase.
12. Subscription Rights, Preferences or Privileges. If the Company shall at
any time offer or cause to be offered to the persons in whose names deposited
Stock is registered on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance, subject to the provisions of the Deposit
Agreement, be made available by the Depositary to the record holders of Receipts
in such manner as the Company shall instruct (including by the issue to such
record holders of warrants representing such rights, preferences and
privileges).
13. Notice of Distributions, Fixing of Record Date. Whenever any cash
dividend or other cash distribution shall become payable, any distribution other
than cash shall be made, or any rights, preferences or privileges shall at any
time be offered with respect to the deposited Stock, or whenever the Depositary
shall receive notice of (i) any meeting at which holders of such Stock are
entitled to vote or of which holders of such Stock are entitled to notice or
(ii) any election on the part of the Company to redeem any such shares of Stock,
the Depositary shall in each such instance fix a record date (which shall be the
same date as the record date fixed by the Company with respect to the Stock) for
the determination of the holders of Receipts who shall be entitled (x) to
receive such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or (y) to give instructions for the exercise
A-5
<PAGE>
of voting rights at any such meeting or to receive notice of such meeting or
whose Depositary Shares are to be so redeemed.
14. Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Stock are entitled to vote, the Depositary, as soon as
practicable thereafter, shall mail to the record holders of Receipts a notice,
which shall be provided by the Company and which shall contain (i) such
information as is contained in such notice of meeting, (ii) a statement that the
holders of Receipts at the close of business on a specified date fixed as
provided in the Deposit Agreement will be entitled, subject to any applicable
provisions of law, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective Depositary Shares
and (iii) a brief statement as to the manner in which such instructions may be
given. Upon the written request of a holder of this Receipt on such record date,
the Depositary shall vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the instructions
set forth in such request. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of this Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the Depositary
Shares evidenced by this Receipt. The Depositary shall not be required to
exercise discretion in voting the Stock represented by the Depositary Shares
evidenced by this Receipt.
15. Reports, Inspection of Transfer Books. The Depositary shall transmit to
the record holders of Receipts at the addresses recorded in the Depositary's
books copies of all notices and reports (including financial statements)
required by law, by the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are included for quotation or
listed or by the Certificate of Incorporation, the Company's by-laws or the
Certificate of Designation to be furnished by the Company to holders of the
deposited Stock that are received by the Depositary from the Company. The
Depositary shall keep books at the [New York Office/Corporate Office] for the
registration and transfer of Receipts, which books at all reasonable times will
be open for inspection by the record holders of Receipts.
16. Liability of the Depositary, the Depositary's Agents, the Registrar and
the Company. Neither the Depositary, any Depositary's Agent, any Registrar nor
the Company shall incur any liability to any holder of this Receipt, if by
reason of any provision of any present or future law or regulation thereunder of
the United States of America or of any other governmental authority or, in the
case of the Depositary, any Depositary's Agent or any Registrar, by reason of
any provision, present or future, of the Certificate of Incorporation or the
Certificate of Designation or, in the case of the Company, the Depositary, any
Depositary's Agent or any Registrar, by reason of any act of God or war or other
circumstances beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing that the terms of the Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of this Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or
A-6
<PAGE>
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement.
17. Obligations of the Depositary's Agents, the Registrar and the Company.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
assumes any obligation or shall be subject to any liability under the Deposit
Agreement or this Receipt to the holder hereof other than from acts or omissions
arising out of conduct constituting bad faith, negligence or wilful misconduct
in the performance of such duties as are specifically set forth in the Deposit
Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Stock, Depositary
Shares or Receipts that in its reasonable opinion may involve it in expense or
liability, unless indemnity reasonably satisfactory to it against all expense
and liability be furnished as often as may be reasonably required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information provided
by any person presenting Stock for deposit, any holder of this Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
18. Termination of Deposit Agreement. The Deposit Agreement may be
terminated by the Company upon not less than 30 days' prior written notice to
the Depositary if (i) such termination is necessary to preserve the Company's
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor thereto) or (ii) the holders of Receipts
evidencing a majority of the outstanding Depositary Shares consent to such
termination, whereupon the Depositary shall deliver or make available to each
holder of a Receipt, upon surrender of the Receipt held by such holder, such
number of whole or fractional shares of deposited Stock as are represented by
the Depositary Shares evidenced by such Receipt, together with any cash or other
property held by the Depositary in respect of such Receipt. In the event that
the Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company has agreed in the Deposit Agreement to use its
best efforts to list the Stock issued upon surrender of the Receipts evidencing
the Depositary Shares represented thereby on a national securities exchange.
Upon the termination of the Deposit Agreement, the Company shall be discharged
of all obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7 of the Deposit
Agreement.
19. Governing Law. The Deposit Agreement and this Receipt and all rights
thereunder and hereunder and provisions thereof and hereof shall be governed by,
and construed in accordance with, the law of the State of New York applicable to
agreements made and to be performed in said State.
A-7
<PAGE>
The following abbreviations when used in the instructions on
the face of this Receipt shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM - as tenant in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ____________ Custodian ____________
(Cust)
Under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received,
---------------------------------------------------
hereby sell(s), assign(s) and transfers) unto
----------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE
Depositary Shares represented by the
- ------------------------------------
within Receipt, and do(es) hereby irrevocably constitute and appoint
- ----------------------------------------------------------------Attorney to
transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution in the premises.
Dated:
----------------------- Notice: The signature to the assignment
must correspond with the name
as written upon the face of
this Receipt in every
particular, without alteration
or enlargement or any change
whatever.
Signature(s) Guaranteed:
- ---------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY
AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS AND CREDIT UNIONS) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM PURSUANT TO
S.E.C. RULE 17Ad-15.
A-8
Exhibit 4.13
TEMPORARY CERTIFICATE--EXCHANGEABLE FOR DEFINITIVE ENGRAVED CERTIFICATE WHEN
READY FOR DELIVERY
NUMBER SHARES
T
MEDITRUST CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
THIS CERTIFICATE IS TRANSFERRABLE IN BOSTON, MA OR NEW YORK, NY
SEE REVERSE FOR CERTIFICATE OF
MEDITRUST OPERATING COMPANY
AND FOR CERTAIN DEFINITIONS
COMMON STOCK CUSIP 58501T 30 6
THIS CERTIFIES THAT
is the record holder of
FULLY PAID AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE OF $.10
PER SHARE OF
- ----------------------------- ------------------------------
- -----------------------------MEDITRUST CORPORATION------------------------------
- ----------------------------- ------------------------------
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this Certificate properly endorsed
or assigned. Transfers of fractions of whole shares of the Corporation shall not
be made, except as may otherwise be provided in the By-Laws of the Corporation.
This Certificate is not valid until countersigned by the Transfer Agent and
registered by the Registrar.
Witness the facsimile Seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated
-----------------------
| MEDITRUST CORPORATION |
| |
| CORPORATE |
| SEAL |
| |
| 1979 |
| |
| DELAWARE |
| |
| * |
-----------------------
COUNTERSIGNED AND REGISTERED:
STATE STREET BANK AND TRUST COMPANY
TRANSFER AGENT AND REGISTRAR
BY
AUTHORIZED SIGNATURE
COUNTERSIGNED AND REGISTERED AS TO BOTH THE STOCK OF MEDITRUST CORPORATION AND
THE STOCK OF MEDITRUST OPERATING COMPANY REPRESENTED HEREBY
/s/ Michael J. Bohnen /s/ David F. Benson
SECRETARY PRESIDENT
THESE SHARES ARE SUBJECT TO RESTRICTIONS ON TRANSFER DESCRIBED ON THE REVERSE
HEREOF
<PAGE>
MEDITRUST OPERATING COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON SHARES
THIS CERTIFIES THAT the person or persons designated on the reverse hereof
is the owner of a number of fully paid and non-assessable common shares of the
par value of $.10 each of Meditrust Corporation equal to the number of shares
shown on the reverse hereof. The shares are subject to restrictions on transfer
described below and are transferable on the books of the Company by the holder
hereof in person or by duly authorized attorney only in accordance with said
restrictions, upon surrender of this certificate properly endorsed. This
certificate is not valid until countersigned by the transfer agent and
registered by the registrar on the reverse hereof.
WITNESS the facsimile seal of the Company and the facsimile signatures of
its duly authorized officers. Dated as of the date on the reverse hereof.
-----------------------------
| MEDITRUST OPERATING COMPANY |
| |
| CORPORATE |
| SEAL |
| |
| 1979 |
| |
| DELAWARE |
| |
| * |
-----------------------------
/s/ Michael J. Bohnen /s/ Abraham D. Gosman
SECRETARY CHAIRMAN
THE SHARES OF MEDITRUST CORPORATION AND MEDITRUST OPERATING COMPANY
REPRESENTED BY THIS COMBINED CERTIFICATE ARE SUBJECT TO THE BY-LAW RESTRICTIONS
WHICH PROHIBIT (A) ANY PERSON FROM ACQUIRING OR MAINTAINING ANY OWNERSHIP
INTEREST IN THE STOCK OF THE TWO COMPANIES WHICH IS INCONSISTENT WITH THE
REQUIREMENTS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, PERTAINING TO
REAL ESTATE INVESTMENT TRUSTS, AND (B) ANY TRANSFER OF SHARES OF STOCK OF EITHER
COMPANY EXCEPT IN COMBINATION WITH AN EQUAL NUMBER OF SHARES OF THE OTHER
COMPANY, IN ACCORDANCE WITH THE BY-LAWS OF THE TWO COMPANIES AND AN AGREEMENT
BETWEEN THEM DATED AS OF DECEMBER 20, 1979, AS AMENDED, COPIES OF WHICH ARE ON
FILE WITH THE TRANSFER AGENT, AND THE HOLDER OF THIS CERTIFICATE BY HIS
ACCEPTANCE HEREOF CONSENTS TO BE BOUND BY SUCH RESTRICTIONS.
MEDITRUST CORPORATION AND MEDITRUST OPERATING COMPANY WILL FURNISH WITHOUT
CHARGE, TO EACH STOCKHOLDER WHO SO REQUESTS, A COPY OF THE BY-LAW PROVISIONS AND
AGREEMENT REFERENCED ABOVE AND A COPY OF THE PROVISIONS SETTING FORTH THE
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER
SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH THE CORPORATION IS
AUTHORIZED TO ISSUE, AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH
PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST MAY BE ADDRESSED TO THE SECRETARY OF
THE CORPORATION OR TO THE TRANSFER AGENT NAMED ON THE FACE HEREOF.
---------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- ___________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors
Act______________________
(State)
UNIF TRF MIN ACT -- ______ Custodian (until age_______)
(Cust)
__________under Uniform Transfers
(Minor)
to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
______________________________
For Value Received,__________________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------
| |
| |
| |
- ---------------------------------------
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
___________________________________________________________________common shares
of Meditrust Corporation and a like number of common shares of Meditrust
Operating Company represented by the within certificates, and do hereby
irrevocabaly constitute and appoint
________________________________________________________________________Attorney
to transfer the said stock on the books of the within named companies with full
power of substitution in the premises.
Dated_____________________________________
Signature(s) of Stockholder(s)
_______________________________________
Signature(s) Guaranteed:_____________________________________________
The signature(s) should be guaranteed by an
eligible guarantor institution (Banks,
Stockbrokers, Savings and Loan Associations
and Credit Unions with membership in an
approved signature guarantee Medallion
Program), pursuant to S.E.C. Rule 17Ad-15.
This certificate also entitles the holder hereof to certain Rights as set forth
in the Rights Agreement among the Company, Meditrust Operating Company and State
Street Bank and Trust Company, as Rights Agent as the same shall be amended from
time to time (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. The Company will mail to the
holder of this certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. Under certain circumstances set forth in
the Rights Agreement, Rights issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement) or certain transferees of any
thereof, whether currently held by or on behalf of such Person or by any
subsequent holder, may be limited as provided in Section 7(f) of the Rights
Agreement.
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGES WHATEVER.
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: (617) 439-2000 FACSIMILE: (617) 973-9748
CAPE COD OFFICE
HYANNIS, MASSACHUSETTS
EXHIBIT 5
March 31, 1998
12742-17
Meditrust Corporation
197 First Avenue, Suite 300
Needham, MA 02194
Meditrust Operating Company
197 First Avenue, Suite 100
Needham, MA 02194
Gentlemen:
Reference is made to Pre-Effective Amendment No. 1 to the Joint
Registration Statement on Form S-3 (the "Registration Statement"), which
Meditrust Corporation, a Delaware corporation, and Meditrust Operating Company,
a Delaware corporation (together, the "Companies"), have filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to any combination of the Companies' shares
of paired common stock, par value $.10 (the "Shares"), shares of preferred
stock, par value $.10, which may or may not be paired (the "Preferred Stock"),
depositary shares ("Depositary Shares") representing fractional interests in
shares of Preferred Stock, shares of series common stock, par value $.10 which
may or may not be paired (the "Series Common Stock"), debt securities (the "Debt
Securities") issued under an Indenture (together with any supplement thereto,
the "Indenture") between the Companies and a national bank as trustee (the
"Trustee"), warrants to purchase Shares, warrants to purchase Debt Securities
(collectively, the "Securities Warrants"), valued in the aggregate at a maximum
of $2,000,000,000, to be offered on a continuous or delayed basis pursuant to
the provisions of Rule 415 under the Securities Act, and an indeterminate number
of Shares as may be issued upon any conversion of the Debt Securities and/or
exercise of the warrants to purchase Shares (the "Conversion Shares"). As used
herein with respect to any issuance of Shares, Preferred Stock, Depositary
Shares, Series Common Stock, Debt Securities, Securities Warrants or Conversion
Shares (collectively, the "Securities") the term "Issuing Company" means (i)
both of the Companies if both of the Companies issue such Securities or (ii) if
only one of the Companies issues such Securities, such Company.
We have acted as counsel for the Companies in connection with the
Registration Statement and are familiar with the proceedings taken and proposed
to be taken by the Companies in connection with the authorization, registration,
sale and issuance of the Securities. We have examined the Certificates
of Incorporation and By-laws of each of the Companies and all amendments
thereto, and certificates of public officials and such other documents, records
and materials as we have deemed necessary in connection with this opinion
letter. Based upon the foregoing, and in reliance upon information from time to
time furnished to us by the Companies' officers, directors and agents, we are of
the opinion that:
1. Upon the due authorization, execution and delivery of the Debt
Securities by the Issuing Company, in the manner referred to in the Registration
Statement and assuming any requisite authentication of the Debt Securities
<PAGE>
Meditrust
March 31, 1998
Page 2
by the Trustee and due qualification of the Indenture, if any, under the Trust
Indenture Act of 1939, as amended, and subject to the terms of the Debt
Securities being otherwise in compliance with then applicable law, the Debt
Securities will be duly issued and delivered by the Issuing Company, and will
constitute the valid and legally binding obligations of the Issuing Company
enforceable in accordance with their terms, except as such enforceability may be
subject to or limited by bankruptcy, insolvency, reorganization or other laws of
general application relating to or affecting creditors' rights or by general
equitable principles.
2. The Shares, the Preferred Stock, the Depositary Shares and the Series
Common Stock, when issued in compliance with the terms described in the
Registration Statement, and the Conversion Shares, when issued from time to time
upon conversion of the Debt Securities and/or exercise of the Warrants to
purchase Shares and in compliance with the terms described in the Indenture, if
any, concerning conversion of Debt Securities, will be duly and validly issued,
fully paid and non-assessable.
3. The Securities Warrants, when issued in compliance with the terms
described in the Registration Statement, will be duly issued and legally binding
obligations of the Issuing Company, enforceable in accordance with their terms,
except as such enforceability may be subject to or limited by bankruptcy,
insolvency, reorganization or other laws of general application relating to or
affecting creditors' rights or by general equitable principles.
We understand that this opinion letter is to be used in connection with the
Registration Statement as finally amended, and hereby consent to the filing of
this opinion letter with and as a part of the Registration Statement as so
amended, and to the reference to our firm in the Prospectus under the heading
"Legal Matters." It is understood that this opinion letter is to be used in
connection with the offer and sale of the Securities only while the Registration
Statement is effective as so amended and as it may be amended from time to time
as contemplated by Section 10(a)(3) of the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
Nutter, McClennen & Fish, LLP
MJB/PRE/NCH/nab
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: (617) 439-2000 FACSIMILE: (617) 973-9748
CAPE COD OFFICE
HYANNIS, MASSACHUSETTS
EXHIBIT 8
March 31, 1998
12742-17
Meditrust Corporation
197 First Avenue, Suite 300
Needham, MA 02194
Gentlemen:
You have requested our opinion regarding the federal income taxation of
shareholders of Meditrust Corporation, a Delaware corporation (the "REIT"), in
connection with the Joint Registration Statement on Form S-3 of the REIT and
Meditrust Operating Company, a Delaware corporation (together with the REIT, the
"Companies") with respect to the Companies' shelf registration of $2,000,000,000
in securities of the Companies, or either or both of them, as the case may be,
consisting of a combination of shares of paired common stock, debt securities,
warrants, preferred stock and series common stock to be offered from time to
time (the "Registration Statement"). The facts, as we understand them, and upon
which we rely in rendering the opinion expressed herein, are set forth in the
Registration Statement.
Based on such facts, we are of the opinion that the statements contained in
the Registration Statement under the caption "Federal Income Tax
Considerations," insofar as such statements constitute statements of federal
income tax law, are correct in all material respects. No opinion is expressed as
to any factual matter or as to any matter not set forth therein. Our opinion is
based on our interpretation of the statutes, regulations, decisions and
published administrative interpretations in effect on the date hereof, and we
can offer no assurance that such statutes, regulations, decisions and published
administrative interpretations will not be amended, revoked or modified in a
manner that would affect our opinion set forth herein. Further, any variation in
the facts from those set forth in the Registration Statement may affect the
conclusion stated herein.
We understand that this opinion letter is to be used in connection with the
Registration Statement, as finally amended, and hereby consent to the filing of
this opinion letter with and as a part of the Registration Statement as so
amended, and to the reference to our firm in the Prospectus under the heading
"Legal Matters." It is understood that this opinion letter is to be used in
connection with the offer and sale of the shares of paired common stock, debt
<PAGE>
Meditrust Corporation
March 31, 1998
Page 2
securities, warrants, preferred stock and/or series common stock only while the
Registration Statement is effective as so amended and as it may be amended from
time to time as contemplated by Section 10(a)(3) of the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
Nutter, McClennen & Fish, LLP
KPF/NCH/pm
EXHIBIT 12
Computation of Ratios of Earnings to Fixed Charges and Ratios of Earnings to
Combined Fixed Charges and Preferred Stock Dividends for (i) the Companies on a
combined basis, (ii) the REIT on a consolidated basis and (iii) for the
Operating Company on a consolidated basis for each of the periods indicated are
as follows:
The Companies
Year Ended December 31,
--------------------------------------------------
(Dollars in thousands) 1993 1994 1995 1996 1997
--------- -------- -------- --------- --------
Net Income $ 63,636 $ 80,460 $ 86,518 $157,976 $162,412
Interest Expense 62,193 67,479 64,163 64,216 87,428
------- ------- ------- ------- -------
Total $125,829 $147,939 $150,681 $222,192 $249,840
======= ======= ======= ======= =======
Interest Capitalized -- -- -- 3,711 4,627
Ratio of Earnings
to Fixed Charges 2.02 2.19 2.35 3.27 2.71
------- ------- ------- ------- -------
Ratio of Earnings
to Combined Fixed
Charges and
Preferred Stock
Dividends 2.02 2.19 2.35 3.27 2.71
The REIT
Year Ended December 31,
--------------------------------------------------
(Dollars in thousands) 1993 1994 1995 1996 1997
--------- -------- -------- --------- --------
Net Income $ 63,636 $ 80,460 $ 86,518 $157,976 $163,012
Interest Expense 62,193 67,479 64,163 64,216 87,412
------- ------- ------- ------- -------
Total $125,829 $147,939 $150,681 $222,192 $250,424
======= ======= ======= ======= =======
Interest Capitalized -- -- -- 3,711 4,627
Ratio of Earnings
to Fixed Charges 2.02 2.19 2.35 3.27 2.72
------- ------- ------- ------- -------
Ratio of Earnings
to Combined Fixed
Charges and
Preferred Stock
Dividends 2.02 2.19 2.35 3.27 2.72
The Operating Company
Initial Period Ended December 31,
--------------------------------------------------
(Dollars in thousands) 1993 1994 1995 1996 1997
--------- -------- -------- --------- --------
Net Income -- -- -- -- $ (600)
Interest Expense -- -- -- -- 209
------- ------- ------- ------- -------
Total -- -- -- -- $ (391)
======= ======= ======= ======= =======
Ratio of Earnings
to Fixed Charges -- -- -- -- --(A)
------- ------- ------- ------- -------
Ratio of Earnings
to Combined Fixed
Charges and
Preferred Stock
Dividends -- -- -- -- --(A)
(A) Earnings were inadequate to cover fixed charges. The amount of the
deficiency was $391,000.
For periods prior to November 5, 1997, the ratios set forth above reflect
historical financial information for the Corporation's Predecessor and MAC. See
"The Meditrust Companies -- Santa Anita Merger." MAC was organized in 1997. In
addition, the ratios of earnings to fixed charges and earnings to combined fixed
charges and preferred stock dividends are identical for the periods indicated
because neither the Corporation's Predecessor, MAC or the Companies had any
preferred stock outstanding.
The ratio of earnings to fixed charges is computed as income from
operations before extraordinary items plus fixed charges (excluding capitalized
interest) divided by fixed charges. Fixed charges consist of interest costs,
including amortization and debt discount and deferred financing fees, whether
capitalized or expensed, plus the interest component of rental expense.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated January 30, 1998, except for Note 16
for which the date is February 26, 1998, on our audits of the financial
statements of The Meditrust Companies and Meditrust Corporation as of December
31, 1997 and 1996, and for the years ended December 31, 1997, 1996 and 1995, and
of Meditrust Operating Company as of December 31, 1997 and for the initial
period ended December 31, 1997 and of our report dated January 30, 1998 on the
financial statements schedules of Meditrust Corporation as of December 31, 1997.
We also consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related prospectus.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
April 2, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
La Quinta Inns, Inc.
San Antonio, Texas
We consent to the incorporation by reference in the Joint Registration Statement
on Form S-3 (File Nos. 333-40055 and 333-40055-1) and related prospectus of
Meditrust Corporation and Meditrust Operating Company of our report dated
January 23, 1998, except for Note 17, which is as of February 12, 1998, relating
to the combined balance sheets of La Quinta Inns, Inc. as of December 31, 1997
and 1996, and the related combined statements of operations, shareholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1997, which report appears in the Meditrust Corporation and
Meditrust Operating Company Joint Current Report on Form 8-K, dated March 31,
1998, and to the reference to our firm under the heading "Experts" in the Joint
Registration Statement and related prospectus.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
San Antonio, Texas
March 31, 1998
