Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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HEALTH AND RETIREMENT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
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Maryland 04-6558834
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
400 Centre Street
Newton, Massachusetts 02158
(617) 332-3990
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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David J. Hegarty, President
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
(617) 332-3990
(Name, address, including zip code, telephone number, including
area code, of agent for service)
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Copy to:
Alexander A. Notopoulos, Jr., Esq.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
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Approximate date of commencement of proposed sale to the public: From
time to time or at one time after the effective date of the Registration
Statement as determined by the Selling Shareholders. All of the Shares offered
hereby are for the respective accounts of the Selling Shareholders.
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. |_|
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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. |_|
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Amount to Offering Price Aggregate Offering Amount of
Title of Each Class of Securities to be Registered be Registered Per Unit Price Registration Fee
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest, par value
$.01 per share ................................. 86,188 $18.19(1) $1,567,759.72 $476(2)
<FN>
(1) Estimated pursuant to Rule 457(c) solely for purposes of calculation of the registration fee on the basis of the $18
3/16 average of the high and low sales prices for the Common Shares on the New York Stock Exchange on August 27, 1997.
(2) Pursuant to Rule 429(a) of the rules and regulations under the Securities Act of 1933, as amended, the Prospectus
contained herein also relates to 3,898,840 Common Shares included in the Company's Registration Statement on Form S-3 (File No.
333-29675). The amount of the filing fee associated with such securities that was previously paid with such registration statement
was $21,786.25.
</FN>
</TABLE>
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
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 by 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.
Subject to Completion
Preliminary Prospectus Dated September 2, 1997
PROSPECTUS
3,985,028 Shares
Health and Retirement Properties Trust
Common Shares of Beneficial Interest
----------------------
This Prospectus relates to the reoffer and resale by certain selling
shareholders described herein (the "Selling Shareholders") of common shares of
beneficial interest, par value $.01 per share ("Common Shares"), of Health and
Retirement Properties Trust (the "Company"). The Company is a real estate
investment trust ("REIT") which invests primarily in retirement communities,
assisted living centers, long-term care facilities and other income producing
healthcare related properties and in office buildings leased to various agencies
of the United States government. The Common Shares offered hereby (the "Offered
Shares") are being reoffered and resold for the account of the Selling
Shareholders, and the Company will not receive any of the proceeds from such
reoffering and resale.
The Selling Shareholders have advised the Company that the resale of the
Offered Shares may be effected from time to time in one or more transactions on
the New York Stock Exchange (the "NYSE"), in negotiated transactions or
otherwise at market prices prevailing at the time of the sale or at prices
otherwise negotiated. The Selling Shareholders may effect such transactions by
selling the Offered Shares to or through broker-dealers who may receive
compensation in the form of discounts, concessions or commissions from the
Selling Shareholders and/or the purchasers of the Offered Shares for whom such
broker-dealers may act as agent or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer may be in excess of
customary commissions). Any broker-dealer acquiring the Offered Shares from the
Selling Shareholders may sell such securities in its normal market making
activities, through other brokers on a principal or agency basis, in negotiated
transactions, to its customers or through a combination of such methods. See
"Plan of Distribution."
The Company will bear all expenses incurred by it in connection with the
reoffering and resale of the Offered Shares, excluding any fees and
disbursements of underwriters, brokers or dealers, underwriting discounts and
commissions, broker or dealer discounts, concessions or commissions and certain
expenses of the Selling Shareholders. The Company's estimated expenses aggregate
$80,000, and the Selling Shareholders have advised the Company that their
estimated expenses aggregate $5,000.
The Common Shares are traded on the NYSE under the symbol "HRP." On August
27, 1997, the last sale price for the Common Shares on the NYSE was $18 3/16.
----------------------
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 COM-
MISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is ______________, 1997.
<PAGE>
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 in connection with the offer contained in this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company, the Selling Shareholders or any
underwriters, agents or dealers. This Prospectus does not constitute an offer to
sell or solicitation of an offer to buy securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create an implication that there has been no change in the
affairs of the Company and its subsidiaries since the date hereof or the
information contained or incorporated by reference herein is correct at any time
subsequent to the date hereof.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a registration statement on Form S-3
(together with all exhibits, schedules and amendments thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Offered Shares. This Prospectus, which is a part of the
Registration Statement, does not contain all of the information set forth in the
Registration Statement. Statements in this Prospectus as to the contents of any
contract or other document are not necessarily complete, and in each instance
reference is made to the copy of such contract or other documents filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference and the exhibits and schedules thereto. For
further information concerning the Company and the Offered Shares, reference is
made to the Registration Statement. Copies of the Registration Statement may be
obtained from the Commission at its principal office in Washington, D.C. upon
payment of the prescribed fee.
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 and other information with the Commission. The
Registration Statement, the exhibits and schedules forming a part thereof and
the reports, proxy statements and other information filed by the Company with
the Commission can be inspected and copies obtained at the public reference
facilities maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following regional offices of
the Commission: Chicago Regional Office, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661-2511; and New York Regional Office, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a World Wide Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of the site is
http://www.sec.gov. The Company's Common Shares are traded on the NYSE under the
symbol "HRP," and similar information concerning the Company may be inspected at
the office of the NYSE at 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission pursuant
to the Exchange Act, are hereby incorporated in this Prospectus and specifically
made a part hereof by reference: (i) the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996 (the "Annual Report"), (ii) the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997
and June 30, 1997, (iii) the Company's Current Reports on Form 8-K dated June
23, 1997, July 2, 1997 and September 2, 1997, (iv) the information in Item 5,
Other Events, under the caption "Legal Proceedings" contained in the Company's
Current Report on Form 8-K dated February 13, 1997, (v) the Company's Current
Reports on Form 8-K dated February 17, 1997 and March 14, 1997, (vi) the
consolidated financial statements of Marriott International, Inc. ("MII"), at
and for the fiscal year ended January 3, 1997, as contained in MII's Annual
Report on Form 10-K for the year ended January 3, 1997 (Commission File No.
1-12188), (vii) the consolidated financial statements of MII at and for the
quarters ended March 28, 1997 and June 20, 1997, as contained in MII's Quarterly
Reports on Form 10-Q for the quarters ended March 28, 1997 and June 20, 1997,
and (viii) the description of the Company's Common Shares contained in the
Company's Registration Statement on Form 8-A dated November 8, 1986, as amended
by Form 8 dated July 30, 1991. All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (i) subsequent to the date
of this Prospectus and prior to the termination of the
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<PAGE>
offering of the Offered Shares and (ii) subsequent to the date of filing of the
registration statement of which this Prospectus forms a part and prior to
effectiveness of such registration statement shall be deemed to be incorporated
by reference into this Prospectus and to be a part hereof from the respective
dates of filing of such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any subsequently filed document that also is or is deemed to be
incorporated herein by reference, 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 hereby undertakes to 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 and all of the information that has been incorporated by
reference in this Prospectus (excluding exhibits unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests for such copies should be made to the Company at its
principal executive offices, 400 Centre Street, Newton, Massachusetts 02158,
Attention: Investor Relations, telephone (617) 332-3990.
3
<PAGE>
THE COMPANY
The Company is a real estate investment trust ("REIT") which invests
primarily in retirement communities, assisted living centers, long-term care
facilities and other income producing healthcare related real estate and in
office buildings leased to various agencies of the United States government. At
August 1, 1997, the Company had investments totaling (at cost) over $1.8
billion, of which approximately 71% represented healthcare related properties,
23% represented U.S. Government-leased office buildings and 6% represented an
equity investment in Hospitality Properties Trust ("HPT"), a New York Stock
Exchange-listed REIT founded by the Company which invests in hotels. The
Company's investments on such date were in over 220 properties located in 32
states. Additionally, on August 1, 1997, HPT owned and leased an aggregate of 93
hotels located in 29 states.
The Company is organized as a Maryland real estate investment trust. The
Company's principal place of business is 400 Centre Street, Newton,
Massachusetts 02158 and its telephone number is (617) 332-3990.
USE OF PROCEEDS
The Company will receive no proceeds from the sale of the Offered Shares by
the Selling Shareholders. All proceeds will be received by the Selling
Shareholders.
SELLING SHAREHOLDERS
The following table sets forth certain information as of August 1, 1997
with respect to the number of Common Shares beneficially owned by each Selling
Shareholder prior to the offering and the maximum number of Common Shares being
offered hereby. Because the Selling Shareholders may offer all, a portion or
none of the Common Shares offered pursuant to this Prospectus, no estimate can
be given as to the number of Common Shares that will be held by each Selling
Shareholder upon termination of the offering. See "Plan of Distribution." To the
extent required, the names of any agent, dealer, broker or underwriter
participating in any such sales and any applicable commission or discount with
respect to the sale will be set forth in a supplement to this Prospectus. The
Common Shares offered by means of this Prospectus may be offered from time to
time by the Selling Shareholders named in the following table:
<TABLE>
<CAPTION>
Number of Common Shares
Beneficially Owned Prior to the Maximum Number of Common
Name of Selling Shareholder Offering Shares Being Offered
- ------------------------------------------------------- ------------------------------------ ------------------------------------
<S> <C> <C>
Government Property Investors, Inc. 1,502,536 1,502,536
("GPI") (1)
The 1818 Fund II, L.P. ("The 1818 Fund") 1,375,869 1,375,869
(1)(2)
GovProp Sub-Debt Partners, L.P. 1,106,623 1,106,623
("GovProp") (1)(3)
<FN>
(1) The 1818 Fund and Rosecliff Realty, L.P. ("RRLP"), an affiliate of GovProp, collectively, own substantially all of the
outstanding capital stock of GPI. In addition, pursuant to GPI's Plan of Liquidation, designees of The 1818 Fund and RRLP are
the liquidators of GPI. As a result, The 1818 Fund and GovProp may be deemed to have joint voting and investment power with
respect to the Common Shares owned by GPI in addition to the Common Shares directly owned by each such entity.
(2) The 1818 Fund is a Delaware limited partnership. The general and managing partner of The 1818 Fund is Brown Brothers Harriman &
Co., a New York partnership, which has designated its partners T. Michael
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<PAGE>
Long and Lawrence C. Tucker as the sole and exclusive partners having voting power and investment power with respect to the
Common Shares that are held by The 1818 Fund.
(3) GovProp and RRLP are Delaware limited partnerships controlled by their general partner, Rosecliff- GovProp Holdings, Inc.,
which is 100% owned by Peter T. Joseph. Accordingly, Mr. Joseph may be deemed to beneficially own the Common Shares owned by
GovProp.
</FN>
</TABLE>
THE MERGER
The Merger and the Merger Agreement. The Offered Shares were originally
issued by the Company to GPI in a private placement pursuant to an Agreement of
Merger (as amended, the "Merger Agreement"), between the Company and GPI. The
Merger Agreement provided for the merger (the "Merger") of Government Property
Holdings Trust (together with its subsidiaries, except where the context
otherwise requires, "GPH"), a Maryland real estate investment trust which was a
wholly owned subsidiary of GPI, with and into a wholly owned subsidiary of the
Company ("HRP Merger Sub"). As a result of the Merger, all of the outstanding
shares of GPH converted into the right to receive the merger consideration
described below.
Through the Merger and pursuant to provisions of the Merger Agreement
contemplating additional acquisitions by the Company, the Company acquired or
agreed to acquire up to 30 office buildings containing approximately 3.4 million
square feet, substantially all of which is leased to various agencies of the
United States government. The consideration to be paid under the Merger
Agreement was payable in two portions, the "First Closing Consideration" and the
"Second Closing Consideration." The First Closing Consideration was payable in
approximately 4.2 million Common Shares, subject to adjustment as provided in
the Merger Agreement, issuable in part on the date of the Merger and in part on
subsequent closing dates in respect of properties which GPH had a right to
acquire or was developing at the time of the Merger; the assumption by the
Company through subsidiaries of approximately $28 million of debt secured by
mortgages on four acquired properties and by the payment of approximately $337
million to retire other debt and pay certain obligations of GPI and its
subsidiaries assumed by the Company's subsidiaries at the time of the Merger.
The Merger occurred on March 25, 1997 (the "First Closing Date"), at which time
the Company issued to GPI 3,862,716 Common Shares. GovProp and The 1818 Fund
received their Common Shares from GPI in repayment of certain indebtedness owed
to them by GPI. Subsequent closings in respect of two properties occurred on (i)
May 15, 1997, on which date the Company issued to GPI an aggregate of 36,124
Common Shares (which amount includes Common Shares issued for certain
post-closing adjustments) and (ii) July 11, 1997, on which date the Company
issued to GPI an aggregate of 86,188 Common Shares. The 3,985,028 Common Shares
issued on the First Closing Date and such subsequent closing dates constitute
the Offered Shares.
In addition to the First Closing Consideration, the Company has agreed to
pay the Second Closing Consideration in an amount equal to the greater of $8
million or 3% of the aggregate cost of certain additional properties acquired by
the Company from GPI as described in the Merger Agreement prior to the first
anniversary of the First Closing Date (the "Second Closing Date") by the
issuance of Common Shares valued at the arithmetic average of the closing sales
prices for the Common Shares as reported by the NYSE for the 20 trading days
immediately prior to the Second Closing Date.
The Second Closing Consideration payable in Common Shares will be
adjusted (i) if the amounts paid to GPI or its successor pursuant to the Service
Contract (as hereafter defined) (the "Service Contract Payment") are less than
the amounts actually paid by GPI or its successor for office expenses, salaries
and other operating expenses through July 31, 1997, by the addition of an amount
of up to the difference between such amounts, provided that such amount shall
not exceed the difference between $974,935 and the Service Contract Payment;
(ii) if the aggregate amount funded or anticipated to be funded by the Company
subsequent to the consummation of the Merger to complete one of the GPI
properties located in Golden, Colorado (including interest thereon) exceeds
$9,046,823, by the deduction of one-half of such excess; and (iii) if the
aggregate amount funded or anticipated to be funded by the Company subsequent to
the consummation of the Merger to complete one of the GPI properties located in
San Diego, California (including interest thereon) exceeds $1,063,264, by the
deduction of one-half of such excess.
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<PAGE>
A copy of the Merger Agreement is filed as an exhibit to the Registration
Statement of which this Prospectus forms a part. The description of the Merger
set forth herein describes certain provisions of the Merger Agreement, but does
not purport to be complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Merger Agreement, including the
definition of certain terms therein.
Pursuant to the Merger Agreement, the agreements described below (the
"Additional Agreements") were also entered into by certain parties to the Merger
Agreement and others. A copy of the form of each Additional Agreement and each
of certain other related agreements is filed as a schedule to the Merger
Agreement. The descriptions of the Additional Agreements describe the material
provisions of each of the Additional Agreements, but do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
all of the provisions of each of the Additional Agreements, including the
definition of certain terms therein.
Registration Rights Agreement. Pursuant to an investment and registration
rights agreement between the Company and GPI (the "Registration Rights
Agreement"), the Company agreed to file with the Securities and Exchange
Commission a registration statement relating to the offer and sale of Common
Shares delivered on the First Closing Date to GPI pursuant to the Merger
Agreement by the holders thereof. The Company has also agreed to amend such
registration statement from time to time to include additional Common Shares
delivered after the First Closing Date to GPI and its successors pursuant to the
Merger Agreement. The Company is required to use its best efforts to have such
registration statement declared effective as soon as reasonably practicable
after filing and to maintain the continuous effectiveness of such registration
statement for three years from the First Closing Date or such shorter period as
will terminate when all such Common Shares have been sold. The Company has filed
the registration statement of which this Prospectus forms a part pursuant to the
Registration Rights Agreement. The Registration Rights Agreement provides for
suspension periods when the registration statement is not effective and for
block out periods in connection with other offerings of the securities of the
Company, each on customary terms and conditions. The Registration Rights
Agreement also provides certain cross-indemnities between the Company and
sellers of the Common Shares subject to the Registration Rights Agreement. Such
indemnities may be unenforceable, in whole or in part, under federal or state
securities laws or certain public policies.
Indemnification Agreement. Pursuant to an indemnification agreement between
the Company and GPI (the "Idemnification Agreement"), GPI will indemnify the
Company and other related parties for certain losses arising out of any breach
of any warranty or representation made by GPI in the Merger Agreement, the
Registration Rights Agreement or the Indemnification Agreement; provided that,
any claim for indemnification must be made by December 31, 1997. The
Indemnification Agreement provides that GPI shall be liable only for losses in
excess of $1,500,000 in the aggregate (except for certain losses related to the
property located in College Park, Maryland) and that GPI shall have no liability
for losses in excess of the Second Closing Consideration.
Voting Agreement. At the time of the Merger, the Company and The 1818 Fund
and RRLP (the "Principal Stockholders") entered into the voting agreement (the
"Voting Agreement"), pursuant to which each Principal Stockholder agreed that it
will not, until the occurrence of a Change in Management (as defined in the
Voting Agreement) or until such Principal Stockholder, with its affiliates, owns
less than 25% of the aggregate Common Shares issued pursuant to the Merger
Agreement, unless otherwise approved by the Board of Trustees of the Company,
(i) transfer any Common Shares held by Principal Stockholder to any person who,
to the Principal Stockholders' knowledge, holds directly, or is an affiliate of
a person who holds, 5% or more of the aggregate Common Shares at the time
outstanding; (ii) make directly or indirectly or participate in an unsolicited
offer to purchase any Common Shares; (iii) vote (or direct to be voted) any
Common Shares or any other shares of equity interest in the Company as to which
either has direct or indirect voting power or control in favor of any
transaction that could result in a Change of Control (as defined in the Voting
Agreement) of the Company; or (iv) present any shareholder proposal dealing with
a Change of Control of the Company.
Information Access Agreement. At the time of the Merger, the Company and
the Principal Stockholders entered into an information access agreement pursuant
to which the Company agreed upon request to permit the Principal Stockholders to
inspect the Company's properties, provide certain financial information, make
certain of the Company's officers available for consultation and inform the
Principal Stockholders of significant corporate
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<PAGE>
actions. Each Principal Stockholder has agreed to hold all such information in
confidence. Such information access agreement will terminate on the third
anniversary of the First Closing Date.
Service Contract. At the time of the Merger, GPI and M&P Partners Limited
Partnership ("M&P"), an affiliate of HRPT Advisors, Inc. ("Advisors"), the
Company's investment advisor, which is owned by Advisors and Messrs. Gerard M.
Martin and Barry M. Portnoy, the Managing Trustees of the Company, entered into
a service contract (the "Service Contract"), pursuant to which certain employees
of GPI provide administrative and support services to HRP Merger Sub until July
31, 1997. HRP Merger Sub is required to reimburse GPI for such employees'
compensation and for rent payments for GPI's office space in Washington, D.C.
until July 31, 1997 in an amount not to exceed $700,000.
DESCRIPTION OF SHARES
The Declaration of Trust ("Declaration") authorizes the Company to issue an
aggregate of 175,000,000 shares of beneficial interest in the Company
("Shares"), including (i) 125,000,000 Common Shares, par value $.01 per share,
and (ii) 50,000,000 Preferred Shares, par value $.01 per share ("Preferred
Shares"). The Declaration permits the Company's Board of Trustees (the
"Trustees") to amend the Declaration to increase or decrease the authorized
shares of beneficial interest of the Company without the requirement of
shareholder approval.
The Declaration authorizes the Trustees, without shareholder approval, from
time to time to divide the Preferred Shares into classes or series and to set
(or change, if the class or series has been previously established) the par
value, if any, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications or terms and
conditions of redemption of such Preferred Shares as are not prohibited by the
Declaration or applicable law. In connection with the adoption of the Company's
shareholders rights plan (see "Redemption; Business Combinations and Control
Share Acquisitions -- Rights Plan," below), the Trustees established an
authorized but unissued class of 1,250,000 Preferred Shares, par value $.01 per
share (the "Junior Participating Preferred Shares"), described more fully below,
and as of August 1, 1997 no other class or series of Preferred Shares had been
established.
As of August 1, 1997 there were 98,836,840 Shares outstanding, all of which
were Common Shares. The Company also had outstanding as of such date $211.7
million aggregate principal amount convertible subordinated debentures of
various series, all of which are convertible into Common Shares at an exercise
price equal on such date to $18 per share.
The following descriptions do not purport to be complete and are subject
to, and qualified in their entirety by reference to, the more complete
descriptions thereof set forth in the Declaration. Capitalized terms not defined
herein are as defined in the Declaration.
Except as otherwise determined by the Trustees with respect to any class or
series of Preferred Shares, all Shares: (i) will participate equally in
dividends payable to shareholders when, as and if declared by the Trustees and
ratably in net assets available for distribution to shareholders on liquidation
or dissolution; (ii) will have one vote per share on all matters submitted to a
vote of the shareholders, (iii) will not have cumulative voting rights in the
election of Trustees; and (iv) will have no preference, conversion, exchange,
sinking fund, redemption rights or preemptive or similar rights.
Upon issuance in accordance with the Declaration and applicable law, the
Offered Shares will be fully paid and nonassessable. The holders of Shares do
not have preemptive rights with respect to the issuance of additional Shares or
other securities of the Company.
The authorized but unissued Shares will be available for issuance from time
to time by the Company at the sole discretion of its Board of Trustees for any
proper trust purpose, which could include raising capital, providing
compensation or benefits to employees and others, paying stock dividends or
acquiring companies, businesses or properties. The issuance of such unissued
Shares could have the effect of diluting the earnings per share and book value
per share of currently outstanding Shares.
7
<PAGE>
In connection with the adoption of the Company's shareholders rights plan,
the Trustees established an authorized but unissued class of 1,250,000 Junior
Participating Preferred Shares. See "Redemption; Business Combinations and
Control Share Acquisitions" below. Certain powers, preferences and rights and
certain qualifications, limitations and restrictions of the Junior Participating
Preferred Shares, when and if issued, are as follows. The statements below with
respect to the Junior Participating Preferred Shares are in all respects subject
to and qualified in their entirety by reference to the applicable provisions of
the Declaration (including the applicable articles supplementary) and By-Laws.
The holder of each Junior Participating Preferred Share is entitled to
quarterly dividends in the greater amount of $5.00 or 100 times the quarterly
per share dividend, whether cash or otherwise, declared upon the Common Shares.
Dividends on the Junior Participating Preferred Shares are cumulative. Whenever
dividends on the Junior Participating Preferred Shares are in arrears, the
Company, among other things, is prohibited from declaring or paying dividends,
making other distributions on, or redeeming or repurchasing Common Shares or
other Shares ranking junior to the Junior Participating Preferred Shares, and
upon failure of the Company to pay such dividends for six quarters, the holders
of the Junior Participating Preferred Shares will be entitled to elect two
Trustees. The holder of each Junior Participating Preferred Share is entitled to
100 votes on all matters submitted to a vote of the shareholders, voting (unless
otherwise provided in the Declaration or by law) together with holders of Common
Shares as one class. Upon liquidation, dissolution or winding up of the Company,
the holders of Junior Participating Preferred Shares are entitled to a
liquidation preference of $100 per share plus the amount of any accrued and
unpaid dividends and distributions thereon (the "Liquidation Preference"), prior
to payment of any distribution in respect of the Common Shares or any other
Shares ranking junior to the Junior Participating Preferred Shares. Following
payment of the Liquidation Preference, the holders of Junior Participating
Preferred Shares are not entitled to further distributions until the holders of
Common Shares shall have received an amount per share (the "Common Share
Adjustment") equal to the Liquidation Preference divided by 100 (adjusted to
reflect events such as stock splits, stock dividends and recapitalizations
affected the Common Shares) (the "Adjustment Number"). Following the payment of
the full amount of the Liquidation Preference and the Common Share Adjustment,
holders of Junior Participating Preferred Shares are entitled to participate
proportionately on a per share basis with holders of Common Shares in the
distribution of the remaining assets to be distributed in respect of Shares in
the ratio of the Adjustment Number to one, respectively. The powers, preferences
and rights of the Junior Participating Preferred Shares are subject to the
superior powers, preferences and rights of any senior series or class of
Preferred Shares which the Trustees shall, from time to time, authorize and
issue.
For certain other information with respect to the Shares, see "Limitation
of Liability; Shareholder Liability" and "Redemption; Business Combinations and
Control Share Acquisitions" below.
LIMITATION OF LIABILITY; SHAREHOLDER LIABILITY
Maryland law permits a REIT to provide, and the Declaration provides, 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, and that, as far as practicable, each written agreement of
the Company is to contain a provision to that effect. Despite these facts,
counsel has advised the Company that in some jurisdictions the possibility
exists that shareholders of a non-corporate entity such as the Company may be
held liable for acts or obligations of the Company. Counsel has advised the
Company that the State of Texas may not give effect to the limitation of
shareholder liability afforded by Maryland law, but that Texas law would likely
recognize contractual limitations of liability such as those discussed above.
The Company intends to conduct its business in a manner designed to minimize
potential shareholder liability by, among other things, inserting appropriate
provisions in written agreements of the Company; however, no assurance can be
given that shareholders can avoid liability in all instances in all
jurisdictions.
The Declaration provides that, upon payment by a shareholder of any such
liability, the shareholder will be entitled to indemnification by the Company.
There can be no assurance that, at the time any such liability arises, there
will be assets of the Company sufficient to satisfy the Company's
indemnification obligation. The Trustees intend to conduct the operations of the
Company, with the advice of counsel, in such a way as to minimize or avoid,
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as far as practicable, the ultimate liability of the shareholders of the
Company. The Trustees do not intend to provide insurance covering such risks to
the shareholders.
REDEMPTION; BUSINESS COMBINATIONS AND CONTROL SHARE ACQUISITIONS
Redemption and Business Combinations
For the Company to qualify as a REIT under the Code, in any taxable year,
not more than 50% in value of its outstanding Shares may be owned, directly or
indirectly, by five or fewer individuals during the last six months of such
year, and the shares must be owned by 100 or more persons during at least 335
days of a taxable year or a proportionate part of a taxable year less than 12
months. In order to meet these and other requirements, the Trustees have the
power to redeem or prohibit the transfer of a sufficient number of Shares 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
shares representing more than 8.5% in value of the total Shares outstanding (the
"Excess Shares") has or may become concentrated in the hands of one beneficial
owner, other than Excepted Persons, as defined in the Declaration, the Trustees
shall have the power (i) to purchase from any shareholder of the Company such
Excess Shares, and (ii) to refuse to transfer or issue Shares to any person
whose acquisition of such Shares would, in the opinion of the Trustees, result
in the direct or indirect beneficial ownership by any person of Shares
representing more than 8.5% in value of the outstanding Shares. Any transfer of
Shares, options, or other securities convertible into Shares that would create a
beneficial owner (other than any of the Excepted Persons) of Shares representing
more than 8.5% in value of the total Shares outstanding shall be deemed void ab
initio, and the intended transferee shall be deemed never to have had an
interest therein. Further the Declaration provides that transfers or purported
acquisitions, directly, indirectly or by attribution, of Shares, or securities
convertible into Shares, that could result in disqualification of the Company as
a REIT are null and void and permits the Trustees to repurchase Shares or other
securities to the extent necessary to maintain the Company's status as a REIT.
The purchase price for any Shares so purchased shall be determined by the price
of the Shares on the principal exchange on which they are then traded, or if no
such price is available, then the purchase price shall be equal to the net asset
value of such Shares as determined by the Trustees in accordance with applicable
law. From and after the date fixed for purchase by the Trustees, and so long as
payment of the purchase price for the Shares to be so redeemed shall have been
made or duly provided for, the holder of any Excess Shares so called for
purchase shall cease to be entitled to distributions, voting rights and any and
all other benefits with respect to such Shares, except the right to payment of
the purchase price for the Shares.
The Declaration also requires that Business Combinations, as defined in the
Declaration, between the Company and a beneficial holder of 10% or more of the
outstanding Shares (a "Related Person") be approved by the affirmative vote of
the holders of at least 75% of the Shares unless (1) the Trustees by unanimous
vote or written consent shall have expressly approved in advance the acquisition
of the outstanding Shares that caused the Related Person to become a Related
Person or shall have approved the Business Combination prior to the Related
Person involved in the Business Combination having become a Related Person; or
(2) the Business Combination is solely between the Company and a 100% owned
affiliate of the Company. As permitted by law, the Company has elected to be
governed by such provisions rather than the provisions of Subtitle 6 of Title 3
of the Corporations and Associations Article of the Annotated Code of Maryland
regarding business combinations.
Under the Declaration the number of trustees may be fixed from time to time
by two-thirds of the Trustees or by an amendment of the Declaration by the
shareholders of the Company, with a minimum of three and a maximum of 12
trustees, a majority of whom must be Independent Trustees, as defined in the
Declaration. The Declaration fixes the current number of trustees of the Company
at five and divides the Trustees into three groups. Trustees in each group are
elected to three-year terms. As the trustees' terms expire, replacements are
elected by a majority of the outstanding Shares. The classified nature of the
Trustees may make it more difficult for the shareholders to remove the
management of the Company than if all trustees were elected on an annual basis.
Vacancies may be filled by a majority of the remaining trustees, except that a
vacancy among the Independent Trustees must be filled by a majority of the
remaining Independent Trustees or by majority vote of the Company's
9
<PAGE>
shareholders. Any trustee may be removed for cause by all the remaining
trustees, or without cause by vote of two-thirds of the Shares then outstanding
and entitled to vote thereon.
The provisions regarding business combinations and the classified nature of
the Trustees and certain other matters may not be repealed or amended without
the affirmative vote of at least 75% of the shareholders of the Company,
provided that the Trustees, by two-thirds vote, may, without the approval or
consent of the shareholders, adopt any amendment that they in good faith
determine to be necessary to permit the Company to qualify as a REIT under the
Code.
The foregoing provisions may have the effect of discouraging unilateral
tender offers or other takeover proposals which certain shareholders might deem
in their interests or pursuant to which they might receive a substantial premium
for their Shares. 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. However, the Trustees believe that inclusion of the business
combination provisions in the Declaration may help assure fair treatment of
shareholders and preserve the assets of the Company.
Control Share Acquisition
Maryland law provides for a limitation of voting rights in a "control share
acquisition." The Maryland statute defines a control share acquisition at the
20%, 33 1/3% and 50% acquisition levels, and requires a two-thirds vote
(excluding shares owned by the acquiring person and certain members of
management) to accord voting rights to shares acquired in a control share
acquisition. The statute would require the target company to hold a special
meeting at the request of an actual or proposed control share acquiror subject
to compliance with certain conditions by such acquiror. In addition, unless the
charter, declaration of trust or By-Laws provide otherwise, the statute gives
the Company, within certain time limitations, various redemption rights if there
is a shareholder vote on the issue and the grant of voting rights is not
approved, or if an "acquiring person statement" is not delivered to the target
company within 10 days following a control share acquisition. Moreover, unless
the charter, declaration of trust or By-Laws provide otherwise, the statute
provides that if, before a control share acquisition occurs, voting rights for
control shares are approved at a shareholders' meeting and the acquiror becomes
entitled to vote a majority of the shares entitled to vote, then all other
shareholders may exercise appraisal rights. The statute does not apply to shares
acquired in a merger, consolidation or share exchange if the company is a party
to the transaction. An acquisition of shares may be exempted from the control
share statute provided that a charter, declaration of trust or By-Law provision
is adopted for such purpose prior to the control share acquisition. There are no
such provisions in the Declaration or By-Laws of the Company.
Rights Plan
In October 1994 the Trustees adopted a shareholder rights plan (the "Rights
Plan"). The Rights Plan provides for the distribution of one Junior
Participating Preferred Share purchase right (a "Right") for each Common Share.
Each Right entitles the holder to buy 1/100th of a Junior Participating
Preferred Share (or, in certain circumstances, to receive cash, property, Common
Shares or other securities of the Company) at an exercise price of $50 per
1/100th of a Junior Participating Preferred Share. Certain powers, preferences
and rights and certain qualifications, limitations and restrictions of the
Junior Participating Preferred Shares are summarized above under "Description of
Shares."
Initially, the Rights are attached to certificates representing Common
Shares. The Rights will separate from such Common Shares and a "Distribution
Date" will occur upon earlier of (1) 10 business days (or such later date as the
Trustees may determine before a Distribution Date occurs) following a public
announcement by the Company that a person or group affiliated or associated
persons, with certain exceptions (an "Acquiring Person"), has acquired, or has
obtained the right to acquire, beneficial ownership of 10% or more of the
outstanding Common Shares (the date of such announcement being a "Share
Acquisition Date") or (ii) 10 business days (or such later date as the Trustees
may determine before a Distribution Date occurs) following the commencement of a
tender offer or exchange offer that would result in a person becoming an
Acquiring Person.
10
<PAGE>
Until the Distribution Date, (i) the Rights will be evidenced by the
certificates for Common Shares and will be transferred with and only with such
Common Share certificates, (ii) Common Share certificates will contain a
notation incorporating the rights agreement pursuant to which the Rights were
issued (the "Rights Agreement") by reference and (iii) the surrender for
transfer of any certificates for Common Shares outstanding will also constitute
the transfer of the Rights associated with the Common Shares represented by such
certificates.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on October 17, 2004, unless earlier redeemed or
exchanged by the Company as described below. Until a Right is exercised, the
holder thereof, as such, has no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive dividends.
In the event (a "Flip-In Event") a Person becomes an Acquiring Person
(except pursuant to a tender or exchange offer for all outstanding Common Shares
at a price and on terms which a majority of the Company's Outside Trustees (as
defined in the Rights Agreement) determines to be fair to and otherwise in the
best interests of the Company and its shareholders (a "fair offer")), each
holder of a Right will thereafter have the right to receive, upon exercise of
such Right, Common Shares (or, in certain circumstances, cash, property or other
securities of the Company) having a Current Market Price (as defined in the
Rights Agreement) equal to two times the exercise price of the Right.
Notwithstanding the foregoing, following the occurrence of any Flip-In Event,
all Rights that are, or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring Person (or by certain
related parties) will be null and void in the circumstances set forth in the
Rights Agreement. However, Rights will not be exercisable following the
occurrence of any Flip-In Event until such time as the Rights are no longer
redeemable by the Company as set forth below.
In the event (a "Flip-Over Event") that, at any time on or after the Share
Acquisition Date, (i) the Company shall take part in a merger or other business
combination transaction (other than certain mergers that follow a fair offer)
and the Company shall not be the surviving entity or (ii) the Company shall take
part in a merger or other business combination transaction in which the Common
Shares are changed or exchanged (other than certain mergers that follow a fair
offer) or (iii) 50% or more of the Company's assets or earning power is sold or
transferred, each holder of a Right (except Rights which previously have been
voided, as set forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having a
Current Market Price equal to two times the exercise price of the Right. Flip-In
Events and Flip-Over Events are collectively referred to as "Triggering Events."
The Purchase Price payable and the number of Junior Participating Preferred
Shares (or the amount of cash, property or other securities) issuable upon
exercise of the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a share dividend on, or a subdivision, combination
or reclassification of, the Junior Participating Preferred Shares, (ii) if
holders of the Junior Participating Preferred Shares are granted certain rights
or warrants to subscribe for Junior Participating Preferred Shares or
convertible securities at less than the Current Market Price of the Junior
Participating Preferred Shares or (iii) upon the distribution to holders of the
Junior Participating Preferred Shares of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above). With certain exceptions, no
adjustment in the Purchase Price will be required until cumulative adjustments
amount to at least 1% of the Purchase Price. The Company is not required to
issue fractional Shares upon the exercise of any Right, and in lieu thereof, a
cash payment will be made.
At any time until 10 business days following the Share Acquisition Date,
the Company may redeem the Rights in whole, but not in part, at a price of $.01
per Right, payable, at the option of the Company, in cash, Common Shares or
other consideration as the Trustees may determine. Immediately upon the
effectiveness of the action of the Trustees ordering redemption of the Rights,
the Rights will terminate and the only right of the holders of Rights will be to
receive the $.01 per Right redemption price.
The term of the Rights, other than key financial terms and the date on
which the Rights expire, may be amended by the Trustees prior to the
Distribution Date. Thereafter, the provisions of the Rights Agreement may
11
<PAGE>
be amended by the Trustees only in order to cure any ambiguity, defect or
inconsistency, to make changes which do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring Person and certain
other related parties) or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to lengthen the time
period governing redemption is permitted to be made at such time as the Rights
are not redeemable.
PLAN OF DISTRIBUTION
The Selling Shareholders have provided the Company with the following
information concerning the reoffer and resale of the Offered Shares. Sales of
the Offered Shares by the Selling Shareholders may be made from time to time in
one or more transactions, including block transactions, on the NYSE or any other
exchange or quotation system on which the Offered Shares may be listed or quoted
pursuant to and in accordance with the applicable rules of the exchanges, or in
the over the counter market, in negotiated transactions or in a combination of
any such methods of sale, at fixed prices that may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. The Offered Shares may be offered directly, to
or through agents designated from time to time, or to or through brokers or
dealers, or through any combination of these methods of sale. Such agents,
brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the Selling Shareholders and/or the purchasers
of the Offered Shares for whom such broker-dealers may act as agents or to whom
they sell as principals, or both (which compensation as to a particular
broker-dealer might be in excess of customary commissions). A member firm of an
exchange may be engaged to act as an agent in the sale of Offered Shares by the
Selling Shareholders.
GPI, one of the Selling Shareholders, may, from time to time, distribute
all or a portion of its Offered Shares to its stockholders. At the time such a
distribution is made, to the extent required, a supplement to this Prospectus
will be distributed which will set forth the names and beneficial ownership of
Common Shares of such GPI stockholders receiving Offered Shares as new Selling
Shareholders hereunder.
The Selling Shareholders and any underwriters, dealers or agents that
participate in the distribution of the Offered Shares may be deemed to be
underwriters, and any profit on the sale of such Offered Shares by them and any
discounts, commissions or concessions received by any such underwriters, dealers
or agents might be deemed to be underwriting discounts and commissions under the
Securities Act. At the time a particular underwritten offer of Offered Shares is
made, to the extent required, a supplement to this Prospectus will be
distributed which will set forth the aggregate amount of Offered Shares being
offered and the terms of the offering, including the name or names of any
underwriters, dealers or agents, and discounts, commissions and other items
constituting compensation from the Selling Shareholders and any discounts,
commissions or concessions allowed or reallowed or paid to dealers.
The Company and the Selling Shareholders entered into the Registration
Rights Agreement, pursuant to which the Company agreed to register the Offered
Shares held by the Selling Shareholders and maintain an effective registration
statement for a period of time after the registration statement is declared
effective by the Commission. The Offered Shares registered hereunder are being
registered pursuant to the Registration Rights Agreement. The Company agreed in
the Registration Rights Agreement to bear all expenses incurred by it in
connection with the reoffering and resale of the Offered Shares, excluding any
fees and disbursements of underwriters, brokers or dealers, underwriting
discounts and commissions, broker or dealer discounts, concessions or
commissions and certain expenses of the Selling Shareholders. Under the
Registration Rights Agreement, the Selling Shareholders will be indemnified by
the Company against certain civil liabilities, including liabilities under the
Securities Act, and the Company will be indemnified by the Selling Shareholders
against certain other civil liabilities, including liabilities under the
Securities Act.
LEGAL MATTERS
Certain legal matters with respect to the Offered Shares offered hereby
will be passed upon for the Company by Sullivan & Worcester LLP, Boston,
Massachusetts. Sullivan & Worcester LLP, will rely, as to all matters of
Maryland law, upon one or more opinions of Piper & Marbury L.L.P., Baltimore,
Maryland. Barry
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M. Portnoy, a retired partner of the firm of Sullivan & Worcester LLP, is a
Managing Trustee of the Company and HPT, a director and 50% shareholder of
Advisors, and a director and/or significant shareholder of certain lessees and
mortgagors of the Company. Sullivan & Worcester LLP represents Advisors, HPT,
certain of such lessees and mortgagors and certain affiliates of each of the
foregoing on various matters.
EXPERTS
The respective consolidated financial statements of the Company and GPI
included in the Company's Current Report on Form 8-K dated February 17, 1997,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report thereon included therein and incorporated herein by reference. Such
report on the consolidated financial statements of the Company, as to the year
1996, is based in part on the report of Arthur Andersen LLP, independent public
accountants. Such consolidated financial statements are incorporated herein by
reference in reliance upon such reports given upon the authority of such firms
as experts in accounting and auditing.
The consolidated financial statements of Marriott International, Inc.
incorporated by reference in this Prospectus and elsewhere in the registration
statement to the extent and for the periods indicated in their reports, have
been audited by Arthur Andersen LLP, independent public accountants, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
FORWARD LOOKING STATEMENTS
THIS PROSPECTUS INCORPORATES FORWARD-LOOKING STATEMENTS. SUCH STATEMENTS
ARE SUBJECT TO CERTAIN RISKS AND UNCERTAINTIES WHICH COULD CAUSE ACTUAL RESULTS
TO DIFFER MATERIALLY FROM THOSE ANTICIPATED OR PROJECTED. PROSPECTIVE PURCHASERS
ARE CAUTIONED NOT TO PLACE UNDUE RELIANCE ON THESE FORWARD-LOOKING STATEMENTS
WHICH SPEAK ONLY AS OF THE DATE HEREOF. THE COMPANY UNDERTAKES NO OBLIGATION TO
PUBLISH REVISED FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR CIRCUMSTANCES
AFTER THE DATE HEREOF OR TO REFLECT THE OCCURRENCE OF PRESENTLY UNANTICIPATED
EVENTS.
-----------------
THE AMENDED AND RESTATED DECLARATION OF TRUST OF THE COMPANY, DATED JULY 1,
1994, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"),
IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE
STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT PROPERTIES
TRUST" 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.
13
<PAGE>
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus in connection with the offer made by this Prospectus and, if given or
made, such information or representations must not be relied upon as having been
authorized by the Company or any of the Selling Shareholders. This Prospectus
does not constitute an offer to sell or the solicitation of an offer to buy the
Offered Shares by anyone in any jurisdiction in which such offer or solicitation
is not authorized, or in which the person making such offer or solicitation is
not qualified to do so, or to any person to whom it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create an implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
TABLE OF CONTENTS
Page
Available Information....................... 2
Incorporation of Certain Documents
By Reference............................. 2
The Company................................. 4
Use of Proceeds............................. 4
Selling Shareholders........................ 4
The Merger.................................. 5
Description of Shares....................... 7
Limitation of Liability; Shareholders
Liability................................ 8
Redemption; Business Combinations
and Control Share Acquisitions........... 9
Plan of Distribution........................ 12
Legal Matters............................... 12
Experts..................................... 13
Forward Looking Statements.................. 13
3,985,028 Shares
HEALTH AND RETIREMENT
PROPERTIES TRUST
Common Shares of
Beneficial Interest
------------------------
PROSPECTUS
------------------------
____________, 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate (except in the case of the registration
fee) of the amount of fees and expenses to be incurred in connection with the
issuance and distribution of the Offered Shares registered hereby, other than
underwriting discounts and commission, if any, incurred in connection with the
sale of the Offered Shares. Pursuant to the Registration Rights Agreement, all
such amounts (other than certain legal expenses estimated by the Selling
Shareholders to be $5,000) will be borne by the Company.
Registration Fee Under Securities Act $22,262.25
Blue Sky Fees and Expenses 1,000.00
Legal Fees and Expenses 30,000.00
Accounting Fees and Expenses 30,000.00
Printing 1,000.00
Miscellaneous Fees and Expenses 737.75
--------------
Total*: $ 85,000.00
- --------------
* Includes $21,786.25 paid as a registration fee on Common Shares carried
forward from the Company's Registration Statement on Form S-3 (File No.
333-29675) pursuant to Rule 429(a) and legal and accounting fees and expenses
and printing expenses pertaining to such Registration Statement of $24,000.
Item 15. Indemnification of Directors and Officers
Section 7.4 of the Company's Amended and Restated Declaration of Trust,
filed as an Exhibit to the Company's Current Report on Form 8-K dated July 10,
1996, which provides for indemnification of Trustees and officers of the
Company, is hereby incorporated by reference.
Reference is made to the Registration Rights Agreement (included in
Exhibit 10.1 hereto) which contains certain provisions for indemnification by
the Selling Shareholders of the Company, Trustees, officers and controlling
persons under certain circumstances.
Item 16. Exhibits
3.1 Amended and Restated Declaration of Trust as amended by the amendment
approved by the shareholders June 28, 1996 and filed with the Maryland
Department of Assessments and Taxation on July 9, 1996 (Incorporated by
reference to the Company's Current Report on Form 8-K, dated July 10,
1996)
3.2 Amendment, effective March 3, 1997, to Health and Retirement Properties
Trust's Amended and Restated Declaration of Trust providing for an
increase in the authorized common shares of beneficial interest, $.01
par value per share, from 100,000,000 to 125,000,000 (Incorporated by
reference to the Company's Current Report on Form 8-K, dated March 3,
1997)
3.3 Amendment, effective May 14, 1997, to the Articles Supplementary to
Health and Retirement Properties Trust's Amended and Restated
Declaration of Trust providing for an increase in the authorized Junior
Participating Preferred Shares, from 100,000 to 125,000 (Incorporated
by reference to the Company's Quarterly Report on Form 10-Q, dated May
15, 1997)
3.3 Amended and Restated Bylaws (Incorporated by reference to the Company's
Annual Report on Form 10-K for the year ended December 31, 1995)
4.1 Rights Agreement dated October 17, 1994 between the Company and State
Street Bank and Trust Company, as Rights Agent (including the form of
Articles Supplementary relating to the Junior Participating Preferred
Shares annexed as an exhibit thereto) (Incorporated by reference to the
Company's Registration Statement on Form 8-A dated October 24, 1994)
II-1
<PAGE>
5.1 Opinion of Sullivan & Worcester LLP
5.2 Opinion of Piper & Marbury L.L.P.
8.1 Opinion of Sullivan and Worcester LLP re: certain tax matters
(Incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996)
10.1 Merger Agreement dated February 17, 1997 between the Company and
Government Property Investors, Inc., including forms of Escrow
Agreement, Investment and Registration Rights Agreement, Voting
Agreement, Information Access Agreement, Indemnification Agreement,
Service Contract and Non- Solicitation Agreement (Incorporated by
reference to the Company's Current Report on Form 8-K dated February
17, 1997)
10.2 Amendment No. 1 to Agreement of Merger dated March 25, 1997 between the
Company and Government Properties Investors, Inc. (Incorporated by
reference to the Company's Registration Statement on Form S-3 (File No.
333-29675) filed with the Commission on June 20, 1997)
23.1 Consent of Ernst & Young LLP
23.2 Consents of Arthur Andersen LLP
23.3 Consents of Sullivan & Worcester LLP (included in Exhibit 5.1)
23.4 Consent of Piper & Marbury L.L.P. (included in Exhibit 5.2)
24 Powers of Attorney (Contained on Page II-4)
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 the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in 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) (Section 230.424(b) of 17 C.F.R.) 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
information required to be included in a post-effective amendment by
those paragraphs is contained in the periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
and 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 herein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
(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.
(b) The undersigned Registrant hereby further undertakes that, for the
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 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 herein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) 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 described under
Item 15 of this registration statement, or otherwise (other than
insurance), the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in such Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a trustee, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such trustee, officer or controlling person in
connection with the Securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in such Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certificates that it has reasonable grounds to believe that it meets
all of the requirements for being on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Newton, Commonwealth of Massachusetts, on
September 2, 1997.
HEALTH AND RETIREMENT PROPERTIES TRUST
By: /s/ David J. Hegarty
David J. Hegarty
President and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-3 relating to Common Shares has been
signed below on September 2, 1997 by the following persons in the capacities and
on the dates indicated; and each of the undersigned officers and trustees of
Health and Retirement Properties Trust, hereby severally constitute and appoint
David J. Hegarty, Ajay Saini, Gerard M. Martin and Barry M. Portnoy, and each of
them, to sign for him, and in his name in the capacity indicated below, this
Registration Statement for the purpose of registering such securities under the
Securities Act of 1933, as amended, and any and all amendments thereto, and any
other Registration Statement filed by Health and Retirement Properties Trust
pursuant to Rule 462(b) which registers additional amounts of such securities
for the offering or offerings contemplated by this Registration Statement (a
"462(b) Registration Statement") hereby ratifying and confirming our signatures
as they may be signed by our attorneys to this Registration Statement, any
462(b) Registration Statement and any and all amendments to either thereof.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ David J. Hegarty President and Chief Operating September 2, 1997
David J. Hegarty Officer (principal executive officer)
/s/ Ajay Saini Treasurer and Chief Financial September 2, 1997
Ajay Saini Officer
/s/ Bruce M. Gans Trustee September 2, 1997
Bruce M. Gans, M.D.
/s/ Rev. Justinian Manning Trustee September 2, 1997
Rev. Justinian Manning, C.P.
/s/ Gerard M. Martin Managing Trustee September 2, 1997
Gerard M. Martin
/s/ Barry M. Portnoy Managing Trustee September 2, 1997
Barry M. Portnoy
/s/ Ralph J. Watts Trustee September 2, 1997
Ralph J. Watts
</TABLE>
II-4
Exhibit 5.1
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
August 29, 1997
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Ladies and Gentlemen:
In connection with the registration by Health and Retirement Properties
Trust, a Maryland real estate investment trust (the "Company"), of 86,188 common
shares of beneficial interest, par value $.01 per share (the "Offered Shares"),
for reoffering and resale by the Selling Shareholders, as defined in the
Registration Statement, as defined below, from time to time, as set forth in the
prospectus which forms a part of the Registration Statement (the "Prospectus"),
the following opinion is furnished to the Company to be filed with the
Securities and Exchange Commission (the "Commission") as Exhibit 5.1 to the
Company's Registration Statement on Form S-3, under the Securities Act of 1933,
as amended (the "Securities Act"), to be filed on or about the date hereof. As
used in this opinion, the term "Registration Statement" means, unless otherwise
stated, such Registration Statement, as amended when declared effective by the
Commission (including any necessary post-effective amendments thereto).
In connection with this opinion, we have examined and relied upon a
copy of the Registration Statement to be filed with the Commission on or about
the date hereof. We have also examined and relied upon originals or copies of
such records, agreements and instruments of the Company, certificates of public
officials and of officers of the Company and such other documents and records,
and such matters of law, as we have deemed necessary as a basis for the opinions
hereinafter expressed. In making such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies, which facts we have
not independently verified.
<PAGE>
Health and Retirement Properties Trust
August 29, 1997
Page 2
We express no opinion herein as to the laws of any jurisdiction other
than the Commonwealth of Massachusetts and the federal law of the United States,
and we express no opinion as to state securities or blue sky laws. Insofar as
this opinion involves matters of Maryland law we have, with your permission,
relied solely on the opinion of Piper & Marbury L.L.P., a copy of which is being
filed herewith as Exhibit 5.2 to the Registration Statement, and our opinion is
subject to the exceptions, qualifications and limitations therein expressed.
Based on and subject to the foregoing, we are of the opinion that, as
of the date hereof, the Offered Shares have been duly and validly authorized by
the Company and such Offered Shares are validly issued, fully paid and
nonassessable by the Company.
With respect to personal liability attaching to the holders of the
Offered Shares, we note the matters described in the Company's Registration
Statement on Form 8-A dated November 8, 1986, as amended by the Company's Form 8
dated July 30, 1991, with respect to the Company's common shares of beneficial
interest and incorporated by reference into the Prospectus forming a part of the
Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the incorporation by reference from the Company's
annual report on Form 10- K for the year ended December 31, 1996 in the
Registration Statement of our opinion regarding certain tax matters and to the
reference to our firm in the Prospectus forming a part of the Registration
Statement. In giving such consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
under the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP
EXHIBIT 5.2
PIPER & MARBURY
L.L.P.
CHARLES CENTER SOUTH
36 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201-3018
410-539-2530 WASHINGTON
FAX: 410-539-0489 NEW YORK
PHILADELPHIA
EASTON
August 29, 1997
Health and Retirement Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Re: Registration Statement on Form S-3 of
Health and Retirement Properties Trust
Ladies and Gentlemen:
We have acted as counsel to Health and Retirement Properties Trust, a
Maryland real estate investment trust (the "Company"), in connection with the
preparation of a Registration Statement on Form S-3 (the "Registration
Statement") filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act"), relating to
the registration of 86,188 common shares of beneficial interest, $.01 par value,
of the Company (the "Shares") to be offered and sold by certain selling
shareholders from time to time.
In our capacity as Maryland counsel, we have reviewed the following:
(a) The Declaration of Trust of the Company certified by an officer of the
Company, as amended to date (the "Declaration of Trust");
(b) A copy of the By-laws of the Company certified by an officer of the
Company, as in effect on the date hereof (the "By-laws");
(c) The Registration Statement;
<PAGE>
Piper & Marbury
L.L.P.
Health and Retirement Properties Trust
Sullivan & Worcester LLP
August 29, 1997
Page 2
(d) The Agreement of Merger between the Company and Government Property
Investors, Inc. dated as of February 17, 1997, as amended by Amendment
No. 1 thereto dated as of March 25, 1997;
(e) Certified resolutions of the Board of Trustees of the Company
authorizing the issuance of the Shares and the Registration Statement;
(f) A good standing certificate for the Company, dated August 29, 1997,
issued by the Maryland State Department of Assessments and Taxation;
(g) An Officer's Certificate of the Company dated as of the date hereof as
to certain factual matters (the "Officer's Certificate"); and
(h) Such other documents as we have considered necessary to the rendering
of the opinions expressed below.
In such examination, we have assumed, without independent
investigation, the genuineness of all signatures, the legal capacity of all
individuals who have executed any of the aforesaid documents, the authenticity
of all documents submitted to us as originals, the conformity with originals of
all documents submitted to us as copies and that all public records received are
accurate and complete. As to any facts material to this opinion which we did not
independently establish or verify, we have relied solely upon the Officer's
Certificate. In addition, this opinion is based upon the assumption that the
Registration Statement and any required post-effective amendments thereto have
become effective under the Securities Act.
On the basis of the foregoing we are of the opinion that:
1. The Company has been duly formed and is validly existing in good
standing as a real estate investment trust under the laws of the State of
Maryland.
2. The Shares have been duly authorized and are validly issued, fully
paid and nonassessable.
<PAGE>
Piper & Marbury
L.L.P.
Health and Retirement Properties Trust
Sullivan & Worcester LLP
August 29, 1997
Page 3
The foregoing opinions are limited to the laws of the State of
Maryland, exclusive of securities or "blue sky" laws. We assume no obligation to
supplement this opinion if any applicable laws change after the date hereof or
if we become aware of any facts that might change the opinions expressed herein
after the date hereof. We hereby consent to the filing of this opinion as
Exhibit 5 to the Registration Statement and to the reference to our firm in the
Registration Statement.
Very truly yours,
/s/ Piper & Marbury L.L.P.
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Health and
Retirement Properties Trust for the registration of 86,188 Common Shares of
Beneficial Interest and to the incorporation by reference therein of (i) our
report dated February 6, 1997, with respect to the consolidated financial
statements of Health and Retirement Properties Trust, and (ii) our report dated
January 31, 1997 (except for the last paragraphs of Note 1 and Note 12, as to
which the date is February 18, 1997), with respect to the consolidated financial
statements of Government Property Investors, Inc., both included in the Current
Report on Form 8-K of Health and Retirement Properties Trust dated February 17,
1997, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Boston, Massachusetts
August 29, 1997
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
January 10, 1997, included in Health and Retirement Properties Trust's Form 10-K
for the fiscal year ended December 31, 1996, and to all references to our firm
included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Washington, D.C.
August 26, 1997
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in Health and Retirement Properties Trust's registration statement on
Form S-3 of our report dated February 24, 1997 included in Marriott
International, Inc.'s Form 10-K for the year ended January 3, 1997 (File No.
1-12188) and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
Washington, D.C.
August 26, 1997
