<PAGE> 1
As filed with the Securities and Exchange Commission
on April 23, 1996
Registration No. 333-1843
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3/A
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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MEDITRUST
(Exact name of registrant as specified in governing instruments)
Massachusetts
(State or other jurisdiction of 04-6532031
incorporation or organization) (I.R.S. Employer Identification No.)
197 First Avenue
Needham Heights, Massachusetts 02194
(617) 433-6000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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ABRAHAM D. GOSMAN
Chairman and Chief Executive Officer
MEDITRUST
197 First Avenue
Needham Heights, Massachusetts 02194
(617) 433-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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 effective date of this Registration Statement.
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
reinvestment plans, check the following box. [X]
<PAGE> 2
<TABLE>
CALCULATION OF REGISTRATION FEE
================================================================================
<CAPTION>
Title of Each Amount to Be Proposed Proposed Amount of
Class of Registered Maximum Maximum Registration
Securities Offering Aggregate Fee (2)
Being Price per Unit Offering
Registered Price (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of
Beneficial
Interest and (6) (6) $500,000,000 $172,413.80
Debt
Securities
and Warrants
for Shares of
Beneficial
Interest and
Debt
Securities
Issuable in
Series(3)(4)(5)
================================================================================
<FN>
(1) In no event will the aggregate maximum offering price of all securities
issued pursuant to this Registration Statement exceed $500,000,000, or if
any Debt Securities are issued with an original issue discount, such
greater amount as shall result in an aggregate offering price of
$500,000,000. Any securities registered hereunder may be sold separately or
as units with other securities registered hereunder.
(2) Determined pursuant to Rule 457(o) under the Securities Act of 1933, as
amended.
(3) There is also being registered an indeterminate number of Shares of
Beneficial Interest as may be issued upon conversion of the Debt Securities
or exercise of the Securities Warrants registered hereby.
(4) There is also being registered hereunder an indeterimate number of Debt
Securities as may be issued upon exercise of the Securities Warrants
registered hereby.
(5) There is also being registered hereunder an indeterminate number of Debt
Securities Warrants and Share Warrants representing rights to purchase Debt
Securities and Shares of Beneficial Interest, respectively, registered
pursuant to this Registration Statement.
(6) Not applicable pursuant to General Instructions II.D of Form S-3 under the
Securities Act of 1933, as amended.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
</TABLE>
<PAGE> 3
SUBJECT TO COMPLETION, DATED
--------
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 SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
MEDITRUST
Shares of Beneficial Interest,
Debt Securities and/or Securities Warrants
----------
Meditrust, a Massachusetts business trust (together with its subsidiaries
unless the context otherwise requires, the "Company"), is a real estate
investment trust under the Internal Revenue Code of 1986, as amended, which may
offer from time to time, in one or more series, its debt securities (the "Debt
Securities"), warrants to purchase Debt Securities (the "Debt Securities
Warrants"), shares of beneficial interest, without par value (the "Shares"), and
warrants to purchase Shares (the "Share Warrants"). The Debt Securities Warrants
and the Share Warrants are collectively referred to herein as the "Securities
Warrants." The Debt Securities, Shares and Securities Warrants are collectively
referred to herein as the "Securities." The Securities will have an aggregate
offering price of $500,000,000 and will be offered in amounts, at prices and on
terms to be determined at the time of offering.
In the case of Debt Securities, the specific title, the aggregate principal
amount, the purchase price, the maturity, the rate and time of payment of any
interest, any redemption or sinking fund provisions, any conversion provisions
and any other specific term of the Debt Securities will be set forth in an
accompanying supplement to this Prospectus (the "Prospectus Supplement"). In the
case of Shares, the specific number of Shares and issuance price per Share will
be set forth in an accompanying Prospectus Supplement. In the case of Securities
Warrants, the duration, 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 and if they are not to be listed, the possible
effects thereof on their marketability.
The Securities may be sold: (i) directly by the Company; (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
Company 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 Company from such sale also will be set
forth in the Prospectus Supplement.
The Company's shares are traded on the New York Stock Exchange under the
symbol "MT." On April 19, 1996, the closing sale price of the Shares on the New
York Stock Exchange was $34.125.
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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.
----------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
----------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
----------
The date of this Prospectus is April 23, 1996.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). 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. Reports, proxy materials and other information concerning the Company can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, Room 1102, New York, New York 10005.
The Company has 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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus its
Annual Report on Form 10-K for the fiscal year ended December 31, 1995, as
amended on March 5, 1996, and its Current Report on Form 8-K dated January 29,
1996, which shall be deemed to be a part hereof. The discussion of Federal
income tax treatment of the Company and its shareholders which is contained in
the Company's Current Report on Form 8-K dated March 4, 1992, as amended by the
Company's Form 8-K/A dated March 20, 1996, including any other amendment or
report filed for the purpose of updating such discussion, is hereby incorporated
by reference into this Prospectus and
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<PAGE> 5
shall be deemed to be a part hereof.
All documents filed by the Company 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 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 or in a subsequently filed
document, as the case may be, which also is or is deemed to be incorporated by
reference herein, 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 Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
(without exhibits) of any or all documents incorporated by reference into this
Prospectus. Requests for such copies should be directed to Lisa P. McAlister,
Chief Financial Officer and Treasurer, Meditrust, 197 First Avenue, Needham
Heights, Massachusetts 02194, telephone (617) 433-6000.
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THE DECLARATION OF TRUST ESTABLISHING THE COMPANY, DATED AUGUST 6, 1985, AS
AMENDED (THE "DECLARATION"), A COPY OF WHICH IS DULY FILED IN THE OFFICE OF THE
SECRETARY OF STATE OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME
"MEDITRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
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<PAGE> 6
THE COMPANY
Meditrust, established in 1985, is the largest dedicated health care real
estate investment trust in the United States based on its gross real estate
investments of $1.9 billion as of December 31, 1995. The Company invests in high
quality health care facilities managed by experienced operators and attempts to
achieve diversity in its property portfolio by sector of the health care
industry, geographic location, operator and form of investment.
As of December 31, 1995, the Company had investments in 303 facilities,
consisting of 247 long-term care facilities, 24 rehabilitation hospitals, 14
medical office buildings, 10 alcohol and substance abuse and psychiatric
facilities, seven retirement and assisted living facilities and one acute care
hospital campus. Included in the 303 facilities are 17 properties under
construction that are expected to be completed during the next three to 12
months. The properties are located in 35 states and are operated by 33 health
care companies. Of the 33 different operators, 11 are publicly-traded companies
(i.e., Sun Healthcare Group, Inc., Horizon/CMS Healthcare Corporation, Geriatric
and Medical Centers, Inc., OrNda Healthcorp., Integrated Health Services, Inc.,
Tenet HealthCare Corporation, Columbia/HCA Healthcare Corporation, HealthSouth
Rehabilitation Corporation, The Multicare Companies, Inc., Mariner Health Group,
Inc. and Youth Services International, Inc.), and constitute approximately 47%
of the Company's real estate investments.
During 1995, the Company committed approximately $450 million to new real
estate investments, of which approximately $358 million was funded. Of these
amounts, approximately $92 million was committed and funded during the quarter
ended December 31, 1995.
The Company's real estate investments are either owned by the Company or
secured by a mortgage lien. As of December 31, 1995, permanent mortgage loans
constituted 53%, sale/leaseback transactions constituted 41% and development
mortgage financing constituted 6% of the Company's portfolio as measured by
gross real estate investments. The leases and mortgages provide for rental or
interest rates which generally range from approximately 9% to 13% per annum of
the acquisition price or mortgage amount. The leases and mortgages generally
provide for an initial term of 10 years, with the leases having one or more
five-year renewal options. The leases and mortgages also provide for additional
rent and interest which are generally either based upon a percentage of
increased revenues over specific base period revenues of the related properties
or a fixed rent or interest escalation provision.
In addition, the Company usually obtains guarantees from the parent
corporation, if any, of the operator or affiliates or individual principals of
the operator. Many obligations are backed by letters of credit or pledges of
certificates of deposit which cover from three to 12 months of lease or mortgage
payments. In addition, the
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<PAGE> 7
Company's permanent and development mortgage loans and leases generally are
cross-defaulted or where appropriate cross-collateralized with other mortgage
and development loans, leases or other agreements between the Company and the
same operator or any affiliated operators. With respect to development mortgage
loans, the Company generally requires guaranteed maximum price construction
contracts, performance completion bonds or guarantees. The Company enters into a
development mortgage loan when the Company will also be the permanent owner or
mortgage lender.
In making its investment decisions, the Company reviews, among other
criteria, the operational viability of the facility, the experience and
competency of the operator and the financial strength of the guarantor. From
time to time, the Company enters into transactions with related parties. As of
December 31, 1995, the Company had total commitments of $160 million, $83
million of which was funded, to companies in which Abraham D. Gosman, the
Company's Chairman and Chief Executive Officer, owns a controlling equity
interest. The Company expects to enter into additional transactions with related
parties in the future. All of the terms and conditions of such transactions are
subject to approval by the independent Trustees of the Company. The Board of
Trustees believes that the terms of the transactions which the Company has
entered into with related parties are not less favorable to the Company than
those prevailing at the time for comparable transactions with unrelated persons.
The Company was organized to qualify, and intends to continue to operate,
as a real estate investment trust in accordance with Federal tax laws and
regulations. So long as the Company so complies, with limited exceptions, the
Company will not be taxed under Federal income tax laws on that portion of its
taxable income that it distributes to its shareholders. The Company has
distributed, and intends to continue to distribute, substantially all of its
real estate investment trust taxable income to shareholders.
In order to meet its ongoing capital requirements for additional
investments, the Company may raise additional capital through a variety of
sources, including the sale of Shares and debt securities and drawings against
its revolving bank lines of credit.
The Company is a self-administered real estate investment trust, with its
principal executive offices at 197 First Avenue, Needham Heights, Massachusetts
02194. Its telephone number is (617) 433-6000.
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<PAGE> 8
HEALTH CARE REFORM AND REGULATION
Many of the operators with which the Company does business rely on
government reimbursement, primarily Medicare and Medicaid, for a significant
portion of their operating revenues. During the 1994 session of the United
States Congress, there was active consideration of various proposals for
national health care reform, including the administration's proposal to cap
national health care spending and the future growth of Medicare and Medicaid
funding. No such legislation was passed during the 1994 session of Congress.
Other recent proposals include replacement of the current Medicaid program with
block grants to the states and other limitations on Medicaid spending. Some of
these proposals, if enacted, could have an impact on operators doing business
with the Company. It is not possible to predict whether and when health care
reform legislation will be passed by Congress and, if passed, what features such
legislation will contain or the effect it may have on the nursing home, assisted
living or rehabilitation care industries, the reimbursements levels available to
health care providers or on the health care industry in general.
From time to time, Medicaid, Medicare and other governmental payors have
reviewed the billing practices of many health care facilities operators
including certain of the operators with which the Company does business. It is
unclear what impact such reviews may have on these operators. The Company does
not believe, however, that any adverse findings against these operators would
materially affect the Company's financial position.
<TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
<CAPTION>
Year Ended December 31,
-----------------------
1991 1992 1993 1994 1995
-------------------------------------------------
<S> <C> <C> <C> <C> <C>
Ratio l.60 1.88 2.02 2.19 2.35
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges for
the years ended December 31, 1991, 1992, 1993, 1994 and 1995, net income has
been added to interest expense and that sum has been divided by such interest
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 from
time to time hereby will be used for general business purposes, including the
repayment of bank lines of credit, if any, outstanding, and investments in
health care facilities. As of April 19, 1996, there were no loans outstanding
under the Company's bank lines of credit. Any drawings under the
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<PAGE> 9
Company's banklines of credit will mature on or before June 30, 1997 and bear
interest at the lenders' respective prime rates or the London Interbank Offering
Rate plus 0.80% to 1.25% per annum. Pending such uses, the net proceeds will be
invested in short-term, interest-bearing, direct obligations issued or
guaranteed by the United States, certificates of deposit or accounts, or
investment grade commercial paper, consistent with the Company's qualification
as a real estate investment trust, the Company's Restated Declaration of Trust,
as amended (the "Declaration"), and the Company's agreements with its lenders.
DESCRIPTION OF SHARES
There is no limit on the number of Shares the Company is authorized to
issue. Shares may be issued by the Board of Trustees without any vote of the
shareholders. The outstanding Shares are of one class and without par value. The
following description is qualified in all respects by reference to the
Declaration and the By-laws of the Company, copies of which are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part.
SHARES OF BENEFICIAL INTEREST. All Shares participate equally in dividends
and in net assets available for distribution to shareholders on liquidation or
termination of the Company, have one vote per Share on all matters submitted to
a vote of the shareholders and do not have cumulative voting rights in the
election of Trustees. The Shares offered hereby will be validly issued, fully
paid and nonassessable by the Company upon issuance.
REDEMPTION. For the Company to qualify as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code"), in any taxable
year, not more than 50% of its outstanding Shares may be owned by five or fewer
individuals and Shares must be owned by 100 or more persons during at least 335
days of a taxable year of 12 months or during a proportionate part of a shorter
taxable year. In order to meet these requirements, the Trustees have the power
to redeem or prohibit the transfer of a sufficient number of Shares selected in
a manner deemed appropriate to maintain or bring the ownership of the Shares
into conformity with such requirements. In connection with the foregoing, if the
Trustees shall, at any time and in good faith, be of the opinion that direct or
indirect ownership of at least 9.9% or more of the Shares has or may become
concentrated in the hands of one beneficial owner, the Trustees shall have the
power (i) by lot or other means deemed equitable by them to call for the
purchase from any shareholder of the Company of a number of Shares sufficient,
in the opinion of the Trustees, to maintain or bring the direct or indirect
ownership of Shares of such owner to a level of no more than 9.9% of the
outstanding Shares, and (ii) to refuse to transfer or issue Shares to any person
whose acquisition of such Shares would cause a beneficial holder to hold in
excess of 9.9% of the outstanding Shares. Further, any transfer of Shares that
would create a beneficial owner of more than 9.9% of the outstanding Shares
shall be deemed void and the intended transferee shall be deemed never to have
had an interest therein. The purchase price for any Shares so redeemed shall be
equal to the fair market value of the Shares reflected in the closing sales
price for the Shares, if then listed on a national securities exchange, or the
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<PAGE> 10
average of the closing sales price for the Shares if then listed on more than
one national securities exchange, or if the Shares are not then listed on a
national securities exchange, the latest bid quotation for the Shares if then
traded over-the-counter, on the last business day immediately preceding the day
on which notices of such acquisition are sent by the Company. From and after the
date fixed for purchase by the Trustees, the holder of any Shares so called for
purchase shall cease to be entitled to distributions, voting rights and other
benefits with respect to such Shares, except the right to payment of the
purchase price for the Shares.
The foregoing provisions may have the effect of discouraging unilateral
tender offers or other takeover proposals which certain shareholders might deem
in their interest or in which they might receive a substantial premium. The
provisions could also have the effect of insulating current management against
the possibility of removal and could, by possibly reducing temporary
fluctuations in market price caused by accumulations of Shares, deprive
shareholders of opportunities to sell at a temporarily higher market price.
ADDITIONAL PROVISIONS. The Declaration provides that annual meetings of
shareholders are to be held within six months after the end of each fiscal year
and special meetings of the shareholders may be called by the President of the
Company, a majority of the Trustees or a majority of the Independent Trustees
(defined in the Declaration) and shall be called upon the written request of the
holders of 10% or more of the outstanding Shares.
Whenever any action is to be taken by the shareholders, it shall, except as
otherwise clearly indicated in the Declaration of Trust, be authorized by
holders of a majority of the Shares then outstanding and entitled to vote
thereon. Notwithstanding the foregoing, at all elections of Trustees, voting by
shareholders shall be conducted under the non-cumulative method and the election
of Trustees shall be by the affirmative vote of the holders of Shares
representing a plurality of the Shares then outstanding which are present in
person or by proxy at a meeting in which a quorum is present.
Whenever shareholders are required or permitted to take any action (unless
a vote at a meeting is specifically required, as with respect to termination or
amendment of the Declaration), such action may be taken without a meeting by
written consents setting forth the action so taken, signed by the holders of a
majority (or such higher percentage as may be specified) of the outstanding
Shares that would be entitled to vote thereon at a meeting.
Except with respect to matters on which a shareholders' vote is
specifically required by the Declaration, no action taken by the shareholders at
any meeting shall in any way bind the Trustees.
The Shares have no preemptive, conversion, exchange, sinking fund or
appraisal rights.
The Declaration provides that shareholders of the Company shall not be
subject to any liability for the acts or obligations of the Company and that, as
far as is practicable, each written agreement of the Company is to contain a
provision to that effect. No personal liability
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<PAGE> 11
will attach to the shareholders for claims under any contract containing such a
provision in writing where adequate notice is given of such provision, except
possibly in a few jurisdictions. With respect to all types of claims in such
jurisdictions and with respect to tort claims, contract claims where the
shareholder liability is not disavowed as described above, claims for taxes and
certain statutory liabilities in other jurisdictions, a shareholder may be held
personally liable to the extent claims are not satisfied by the Company.
However, the Declaration provides that, upon payment of any such liability, the
shareholder will be entitled to reimbursement from the general assets of the
Company. The Trustees intend to conduct the operations of the Company, with the
advice of counsel, in such a way as to avoid, as far as is practicable, the
ultimate liability of the shareholders of the Company. For example, almost all
of the real estate and all of the mortgages included in the assets of the
Company are held by corporate subsidiaries. The Trustees do not intend to
provide insurance covering such risks to shareholders.
TRANSFER AGENT AND REGISTRAR. Fleet National Bank, Providence, Rhode
Island, acts as transfer agent and registrar of the Shares.
DESCRIPTION OF DEBT SECURITIES
The Prospectus Supplement will describe certain terms of any 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) additional 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 detailed
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 registered global securities
(a "Registered Global Security") and, if so, the identity of the depository for
such Registered Global Security or Securities; (x) certain applicable United
States Federal income tax consequences; (xi) any provisions relating to security
for payments due under such Debt Securities; (xii) any provisions relating to
the conversion or exchange of such Debt Securities into or for Shares or Debt
Securities of another series; (xiii) any provisions relating to the ranking of
such Debt Securities in right of payment as compared to other obligations of the
Company; (xiv) the denominations in which such Debt Securities are authorized to
be issued; (xv) the place or places where principal of, premium, if any, and
interest, if any, on such Debt Securities will be payable; (xvi) whether such
debt Securities are to be issued pursuant to an indenture of trust; and (xvii)
any other specific term of such Debt Securities, including any additional events
of default or covenants provided for with respect to such Debt
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<PAGE> 12
Securities, and any terms that may be required by or advisable under applicable
laws or regulations.
The Debt Securities may be issued in one or more series under an Indenture
to be executed by the Company and a trustee (the "Trustee"), a form of which is
included as an exhibit to the Registration Statement of which this Prospectus is
a part (the "Indenture"). The terms of the Debt Securities may include those
stated in the Indenture and those made a part of the Indenture (before any
supplements) by reference to the Trust Indenture Act of 1939, as amended.
The following is a summary of certain provisions of the Indenture and does
not purport to be complete and is qualified in its entirety by reference to the
detailed provisions of the Indenture, including the definitions of certain terms
therein to which reference is hereby made, for a complete statement of such
provisions. Wherever particular provisions or sections of the Indenture or terms
defined therein are referred to herein, such provisions or definitions are
incorporated herein by reference.
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
Company's status as a real estate investment trust ("REIT"), 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 would then be deemed to beneficially own, directly or
indirectly, 9.9% or more of the then outstanding Shares.
The conversion price will be subject to adjustment under certain
conditions, including (i) the payment of dividends (and other distributions) in
Shares on any class of shares of the Company; (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 or shares of any other class, 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 Company,
subject to the limitation that all adjustments by reason of any of the foregoing
would not be made until they result in a cumulative change in the conversion
price of at least 1%. In the event the Company shall effect any capital
reorganization or reclassification of its Shares or shall consolidate or merge
with or into any trust or corporation (other than a consolidation or merger in
which the Company is the surviving entity) or shall sell or transfer
substantially all its assets to any other trust or corporation, the Holders
shall, if entitled to convert such Debt Securities at any time after such
transaction, receive upon conversion thereof, in lieu of each Share into which
the
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<PAGE> 13
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.
A conversion price adjustment made according to the provisions of the Debt
Securities of any series (or the absence of provision for such an adjustment)
might result in a constructive distribution to the Holders of Debt Securities of
such series or holders of Shares that would be subject to taxation as a
dividend. The Company may, at its option, make such reductions in the conversion
price, in addition to those set forth above, as the Board of Trustees of the
Company deems 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 Board of Trustees 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 Company 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 Company 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 Company's status
as a REIT at the option of the Company 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 Company may exercise its redemption
powers solely with respect to the securities of the security holder or holders
which pose a threat to the Company's REIT status and only to the extent deemed
necessary by the Company's Board of Trustees to preserve such status. (See
"Redemption" under "Description of Shares".)
DIVIDENDS, DISTRIBUTIONS AND ACQUISITIONS OF SHARES OF BENEFICIAL INTEREST.
The Indenture provides that the Company will not (i) declare or pay any dividend
or make any distribution on
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its Shares or to holders of its Shares (other than dividends or distributions
payable in its Shares or other than as the Company 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 Company with respect
to a series of the 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 Company with respect to any series
of Debt Securities and the rights of Holders of such series may only be modified
by the Company 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 rate of
interest on, any Debt Securities; (ii) change the stated maturity date of the
principal of, or any installment of interest on, any Debt Securities; (iii)
waive a default in the payment of the principal amount of, or the interest on,
or any premium payable on redemption of, 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 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.
EVENTS OF DEFAULT, NOTICE AND WAVER. 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 interest on the Debt
Securities of such series when due and payable, which continues for 30 days;
(ii) default in the payment of principal of (and premium, if any) on the Debt
Securities when due, at maturity, upon redemption or otherwise, which continues
for five Business Days; (iii) failure to perform any other covenant of the
Company contained in the Indenture or the Debt Securities of such series which
continues for 60 days after written notice as provided in the Indenture; (iv)
default under any bond, debenture or other Indebtedness (as defined in the
Indenture) of the Company 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 within ten days after
notice to the Company of such acceleration, or such Indebtedness having been
discharged, and (b) the principal amount of such
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<PAGE> 15
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 the Company; 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 the Debt Securities due and payable immediately.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default or Event of Default with respect to the Debt
Securities of any series, give to the Holders of Debt Securities 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 Company will be required to furnish to the Trustee annually a statement
of certain officers of the Company stating whether or not they know of any
Default or Events of Default (as defined in the Indenture) 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
Company may merge or consolidate with, or sell or convey all or substantially
all of its assets to, any other trust or corporation, provided that (i) either
the Company shall be the continuing entity,
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<PAGE> 16
or the successor entity (if other than the Company) shall be an entity organized
and existing under the laws of the United States or a state thereof or the
District of Columbia (although it may, in turn, be owned by a foreign entity)
and such entity shall expressly assume by supplemental indenture all of the
obligations of the Company under the Debt Securities of any 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) the Company
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 Company 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 Company, even though the Company'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 specific material terms of the depository arrangement with respect to
any portion of a series of Debt Securities to be represented by a Global
Security will be described in the Prospectus Supplement. The Company anticipates
that the following provisions will apply to all depository arrangements.
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. 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
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<PAGE> 17
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 Company, 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
Company, 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 Company expects 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
Company also expects 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 Company within 90 days, the Company will
issue each Debt Security in definitive form to the beneficial owners thereof in
exchange for such Global Security. In addition, the Company may at any time and
in its sole discretion determine not to have any of the 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 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 Commonwealth of Massachusetts.
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<PAGE> 18
DESCRIPTION OF SECURITIES WARRANTS
The Company 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 the Company 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. The Securities Warrant agent will act solely as an agent of the
Company 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 certificates 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 Securities Warrant Agreement and the
Securities Warrant certificates relating to each series of Security Warrants
which will be filed with the Commission and incorporated 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.
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 series
of Debt Securities will be transferable separately, (v) the principal amount of
the series of Debt Securities purchasable upon exercise of each such Securities
Warrant 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 Company
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 series of Debt Securities or Shares
will be transferable separately, (v) the date on which the right to exercise
such Securities Warrants shall commence and the Expiration Date,
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<PAGE> 19
(vi) any special United States Federal income tax consequences and (vii) 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 issued by the Company
will involve a certain degree of risk, including risks arising from the
fluctuations in the price of the underlying securities and 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 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,
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(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 Company may, but is 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
Company and as such will be subject to any changes in the perceived
creditworthiness of the Company.
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 Company),
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 Company 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.
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<PAGE> 21
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 and Share splits,
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) 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 Company with or into
any entity (other than 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 Company 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.
PLAN OF DISTRIBUTION
General.
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The Company may sell the Securities in any of three ways: (i) through
underwriting syndicates represented by one or more managing underwriters, or by
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 Company involved in the sale of the
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<PAGE> 22
Securities in respect of which this Prospectus is being delivered and any
applicable commissions or discounts will be set forth in the Prospectus
Supplement. The net proceeds to the Company 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 Company's behalf may receive compensation from the Company or from
purchasers of Securities for whom they may act as agents, in the form of
discounts, concessions or commissions. The underwriter, dealers and agents that
participate in the distribution of Securities will 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 will be deemed to be underwriting
discounts and commissions under the Securities Act. Any such underwriter 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 Company to indemnification by the Company 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 Company in the ordinary course of business.
Structured Equity Program.
- -------------------------
The Company may also issue and sell Shares from time to time through one or
more sales agents (to be named in a prospectus supplement hereto, the "Agent")
in ordinary brokers' transactions on the New York Stock Exchange (the "NYSE").
Such sales, if any, will be effected during a series of one or more pricing
periods (each, a "Pricing Period"), each consisting of five consecutive calendar
days in duration, unless a shorter period has otherwise been agreed to by the
Company and the Agent. For each Pricing Period, an Average Market Price (as
hereinafter defined) will be computed. With respect to any Pricing Period,
"Average Market Price" shall equal the average of the arithmetic mean of the
high and low sales prices of the Shares of the Company reported on the NYSE for
each trading day of such Pricing Period.
The net proceeds to the Company with respect to sales of Shares in any
Pricing Period up to a maximum amount agreed to in advance with the Agent (the
"Average Market Price Shares") will equal a percentage (the "Company's
Percentage") of the Average Market Price for each Share sold during the Pricing
Period (subject to adjustment in certain circumstances), plus Excess Proceeds
(as defined below), if any. The compensation to the Agent for sales of Average
Market Price Shares in any Pricing Period will equal the difference between the
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<PAGE> 23
aggregate gross sales price at which such sales are actually effected and the
net proceeds to the Company for such sales, but in no event will exceed 10% of
the aggregate gross sales prices of the Average Market Price Shares during any
Pricing Period (the "Maximum Commission"). To the extent that such aggregate
gross sales prices are less than the Average Market Price, the compensation to
the Agent will be correspondingly reduced; to the extent that such aggregate
gross sales prices are greater than the Average Market Price, the compensation
to the Agent will be correspondingly increased (but in no event will exceed the
Maximum Commission). In the event that the average aggregate gross sales price
in any Pricing Period equals the Company's Percentage of the Average Market
Price (or less) for such Pricing Period, all of the proceeds from such sales
will be for the account of the Company and no compensation will be payable to
the Agent. To the extent that the Agent's compensation under the foregoing
formula would otherwise exceed the Maximum Commission in any Pricing Period, the
excess will constitute additional net proceeds to the Company (the "Excess
Proceeds").
Any Shares sold by the Agent during the Pricing Period on behalf of the
Company other than Average Market Price Shares ("Additional Shares") will be at
a fixed commission rate based on a percentage of the Share price per Share. In
no event will the compensation to the Agent be in excess of any applicable
requirements of the National Association of Securities Dealers, Inc.
Settlements of sales of Additional Shares and Average Market Price Shares
will occur on the third business day following the date on which any such sales
are made. Purchases of Shares from the Agent, as sales agent for the Company,
will settle the regular way on the NYSE. Compensation to the Agent with respect
to sales of Average Market Price Shares will be paid out of the proceeds of such
settlements. There is no arrangement for funds to be received in an escrow,
trust or similar arrangement.
At the end of each Pricing Period, the Company will file a Prospectus
Supplement under the applicable paragraph of Rule 424(b) promulgated under the
Act, which Prospectus Supplement will set forth the name of the Agent, dates
included in such Pricing Period, the number of such Shares sold through the
Agent as sales agent (identifying separately the number of Average Market Shares
and any Additional Shares), the high and low prices at which Average Market
Shares were sold during such Pricing Period, the net proceeds to the Company,
the compensation payable by the Company to the Agent with respect to such sales
pursuant to the formula set forth above and other relevant information. Unless
otherwise indicated in a Prospectus Supplement, the Agent will act as sales
agent on a best efforts basis.
In connection with the sale of the Shares on behalf of the Company, the
Agent will be deemed to be an "underwriter" within the meaning of the Securities
Act, and the compensation of the Agent will be deemed to be underwriting
commissions or discounts. The Company intends to provide indemnification and
contribution to the Agent against certain civil liabilities, including
liabilities under the Securities Act. The Agent may engage in transactions with,
or perform services for, the Company in the ordinary course of business.
-21-
<PAGE> 24
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Nutter, McClennen & Fish, LLP, Boston, Massachusetts. In addition,
Nutter, McClennen & Fish, LLP will pass upon certain Federal income tax matters
relating to the Company. The name of any legal counsel that passes on the
validity of the other Securities offered hereby for any underwriter or agent
will be set forth in the applicable Prospectus Supplement.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1995 and
1994 and the related consolidated statements of income, changes in shareholders'
equity and cash flows for each of the three years in the period ended December
31, 1995, and the financial statement schedules incorporated by reference in
this Prospectus and elsewhere in the Registration Statement, have been audited
by Coopers & Lybrand L.L.P., independent accountants, as indicated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing.
Any financial statements and schedules hereafter incorporated by reference in
the registration statement of which this Prospectus is a part that have been
audited and are the subject of a report by independent accountants will be so
incorporated by reference in reliance upon such reports and upon the authority
of such firms as experts in accounting and auditing to the extent covered by
consents filed with the Commission.
-22-
<PAGE> 25
================================================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE HEREIN, IN
CONNECTION WITH THIS OFFERING AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY OTHER PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR
SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. THE DELIVERY OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT
THE INFORMATION IN THE PROSPECTUS IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS
DATE.
- -----------------------------------------------------
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C>
Available Information............ 2
Incorporation of Certain
Documents by Reference......... 2
The Company...................... 4
Health Care Reform
and Regulation.................. 6
Ratio of Earnings to Fixed
Charges........................ 6
Use of Proceeds.................. 6
Description of Shares............ 7
Description of Debt
Securities..................... 9
Description of Securities
Warrants....................... 16
Plan of Distribution............. 19
Legal Matters.................... 22
Experts.......................... 22
================================================================================
</TABLE>
================================================================================
MEDITRUST
PROSPECTUS
April 23, 1996
================================================================================
<PAGE> 26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement;
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of
the offering.
II-1
<PAGE> 27
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that for purposes of
determining any liability under the Securities Act of 1933, the information
omitted from the form of prospectus filed as part of this registration
statement in reliance upon Rule 430A and contained in the form of prospectus
filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(d) The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to trustees, officers and controlling persons of the
registrant pursuant to the provisions of the registrant's Restated Declaration
of Trust, as amended, and By-laws, as amended, or otherwise, the registrant has
been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or a controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy, as expressed in the
Securities Act of 1933, and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Boston, Commonwealth of Massachusetts on April
22, 1996.
MEDITRUST
By: /s/ Abraham D. Gosman*
-----------------------
Abraham D. Gosman, Chairman of
the Board and Chief Executive
Officer
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to the registration statement has been signed below by the
following persons on behalf of the registrant in the capacities and on the dates
indicated.
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Abraham D. Gosman* Chairman of the
- ---------------------- Board and Chief
Abraham D. Gosman Executive Officer
(Principal Executive Officer) April 22, 1996
/s/ Lisa P. McAlister* Chief Financial Officer
- ---------------------- and Vice President
Lisa P. McAlister (Principal
Financial and Accounting Officer) April 22, 1996
/s/ David F. Benson* President
- -------------------- and Trustee
David F. Benson April 22, 1996
/s/ Edward W. Brooke* Trustee April 22, 1996
- ---------------------
Edward W. Brooke
/s/ Robert Cataldo* Trustee April 22, 1996
- -------------------
Robert Cataldo
/s/ Philip L. Lowe* Trustee April 22, 1996
- -------------------
Philip L. Lowe
/s/ Thomas J. Magovern* Trustee April 22, 1996
- -----------------------
Thomas J. Magovern
</TABLE>
II-3
<PAGE> 29
<TABLE>
<S> <C> <C>
/s/ Gerald Tsai, Jr.* Trustee April 22, 1996
- ---------------------
Gerald Tsai, Jr.
/s/ Frederick W. Zuckerman* Trustee April 22, 1996
- ---------------------------
Frederick W. Zuckerman
*By: /S/ Michael J. Bohnen
-----------------------
Michael J. Bohnen
Attorney-in-fact
<FN>
*A power of attorney was previously filed with the Registration Statement.
</TABLE>
II-4
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
of Meditrust on Form S-3 of our reports dated January 29, 1996 on our audits of
the consolidated financial statements and financial statement schedules of
Meditrust as of December 31, 1995 and 1994 and for the years ended December 31,
1995, 1994 and 1993, which reports are included or incorporated by reference in
the Meditrust Annual Report on Form 10-K dated February 29, 1996. Our report on
the 1995 consolidated financial statements of Meditrust appears in Meditrust's
Current Report on Form 8-K, dated January 29, 1996. We also consent to the
reference to our firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
March 21, 1996
II-5
