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As filed with the Securities and Exchange Commission May 27, 1998
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
THE TOWN AND COUNTRY TRUST
--------------------------
(Exact Name of Registrant as Specified in its Charter)
Maryland 52-6613091
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(State of Organization) (I.R.S. Employer Identification No.)
100 S. Charles Street, Baltimore, Maryland 21201
- ------------------------------------------- -------
(Address of Principal Executive Offices) (ZIP Code)
THE TOWN AND COUNTRY TRUST 1997 LONG TERM
INCENTIVE PLAN (the "Plan")
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(Full Title of the Plan)
Harvey Schulweis Copy to: Daniel G. Berick, Esq.
The Town and Country Trust Berick, Pearlman & Mills
100 S. Charles Street Co., L.P.A.
Baltimore, Maryland 21201 1350 Eaton Center
(410) 539-7600 1111 Superior Avenue
- ----------------------------- Cleveland, OH 44114
(Name, address and telephone (216) 861-4900
number of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed
Maximum Proposed
Title of Offering Maximum
Securities Amount Price Aggregate Amount of
to be to be Per Offering Registration
Registered Registered (1) Share(2) Price(2) Fee (2)
- --------------------------------------------------------------------------------
Common Shares
of Beneficial 1,200,000 $16.09 $19,308,000 $5695.86
Interest, par
value $0.01 per
share
- --------------------------------------------------------------------------------
(1) An undetermined number of additional Common Shares may be issued if the
antidilution provisions of the Plan become operative.
(2) Based upon the average of the high and low sales prices of the
Common Shares on May 22, 1998; determined in accordance with
Rule 457(c) solely for purposes of determining the amount of the
registration fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and reports filed with the Securities and Exchange
Commission (the "Commission") by The Town and Country Trust (File No. 1-12056)
(the "Trust") are incorporated herein by reference:
(a) Annual Report on Form 10-K of the Trust for the fiscal year ended
December 31, 1997;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of the
fiscal year covered by the Annual Report on Form 10-K referred to in
(a), above; and
(c) The description of the Trust's Common Shares contained in the Trust's
registration statement filed under Section 12 of the Securities
Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents subsequently filed by the Trust pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post- effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Shares being registered hereby has been passed
upon by Berick, Pearlman & Mills Co., L.P.A., 1350 Eaton Center, 1111 Superior
Avenue, Cleveland, Ohio 44114, counsel for the Trust. James H. Berick, Chairman
of the firm of Berick, Pearlman & Mills Co., L.P.A., is a Trustee of the Trust.
Daniel G. Berick, a principal in such firm, is Secretary (but not an executive
officer) of the Trust.
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
The Trust, as a real estate investment trust formed under Maryland law, is
permitted to limit, and has limited, by provision in its Declaration of Trust,
the liability of its trustees and
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officers so that no trustee or officer shall be liable to the Trust or to any
shareholder for money damages except for the liability of a trustee or
officer for (i) acts or omissions involving active and deliberate dishonesty
established by a final judgment or (ii) actual receipt of an improper benefit
or profit in money, property or services.
The Trust's Bylaws require it to indemnify any present or former trustee or
officer against all liabilities and expenses incurred by him in connection with
any action, suit or other proceeding unless it is established that (i) his act
or omission was committed in bad faith or was the result of active and
deliberate dishonesty, (ii) he actually received an improper personal benefit in
money, property or services, (iii) in the case of a criminal proceeding, he had
reasonable cause to believe that his act or omission was unlawful, or (iv) in
the case of an action by or in right of the Trust, he is adjudged to have
breached his duty of loyalty to the Trust. In addition, the Bylaws require the
Trust to pay or reimburse, in advance of final disposition of a proceeding,
reasonable expenses incurred by a present or former trustee or officer made a
party to a proceeding by reason of his service as a trustee or officer, provided
that the Trust shall have received (i) a written affirmation by the trustee or
officer of his good faith belief that he has met the standard of conduct
necessary for indemnification by the Trust as authorized by the Bylaws and (ii)
a written undertaking by or on his behalf to repay the amount paid or reimbursed
by the Trust if it ultimately shall be determined that the standard of conduct
was not met. The Bylaws also (i) permit the Trust to provide indemnification
and advance expenses to a present or former trustee or officer who served a
predecessor of the Trust in such capacity, and to any employee or agent of the
Trust or a predecessor or affiliate of the Trust, (ii) provide that any
indemnification or payment or reimbursement of the expenses permitted by the
Bylaws shall be furnished in accordance with the procedures provided for
indemnification and payment or reimbursement of expenses under Section 2-418 of
the Maryland General Corporation Law (the "MGCL") for directors of Maryland
corporations and (iii) permit the Trust to provide such other and further
indemnification or payment or reimbursement of expenses as may be permitted by
Section 2-418 of the MGCL for directors of Maryland corporations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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ITEM 9. UNDERTAKINGS.
A. The Trust hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however that clauses (1)(i)
and (1)(ii) do not apply if the information required to be included in a
post-effective amendment by those clauses is contained in periodic reports filed
by the Trust pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The Trust hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Trust's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in the registration statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling persons of
the Trust pursuant to the foregoing provisions, or otherwise, the Trust 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 Trust
of expenses incurred or paid by a trustee, officer or controlling persons of
the Trust in the
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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 Trust 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Trust
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Baltimore, State of Maryland, on this 22nd day of
May, 1998.
THE TOWN AND COUNTRY TRUST
By: /s/ Harvey Schulweis
---------------------------------
Title: President
Dated: May 22, 1998
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Harvey Schulweis Trustee, Principal May 22, 1998
- ---------------------- Executive Officer and
Harvey Schulweis Principal Financial
Officer
/s/ Jennifer C. Munch Principal Accounting May 22, 1998
- ---------------------- Officer
Jennifer C. Munch
Alfred Lerner* Trustee
James H. Berick* Trustee
H. Grant Hathaway* Trustee
Milton A. Wolf* Trustee
</TABLE>
*By: /s/ Harvey Schulweis
-----------------------------
Harvey Schulweis
Attorney-in-Fact
May 22, 1998
*Powers of attorney authorizing Harvey Schulweis to sign this Registration
Statement on behalf of Trustees of the Trust are being filed with the Securities
and Exchange Commission herewith.
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EXHIBIT INDEX
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<CAPTION>
Exhibit Exhibit
Number Description
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<S> <C>
4(a) First Amended and Restated Declaration
of Trust of the Trust, defining the
rights of holders of its Common Shares
(incorporated by reference to Exhibit
3.1 to the Trust's Registration
Statement on Form S-11 (No. 33-63150))
4(b) The Town and Country Trust 1997 Long
Term Incentive Plan (incorporated by
reference to Exhibit 10.3 to the Trust's
Annual Report on Form 10-K for the
fiscal year ended December 31, 1997)
5 Opinion of Berick, Pearlman & Mills Co.,
L.P.A. as to the Common Shares being
registered
23(a) Consent of Ernst & Young LLP
23(b) Consent of Berick, Pearlman
& Mills Co., L.P.A. (contained in
opinion filed as Exhibit 5)
24 Powers of Attorney
</TABLE>
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Exhibit 5
BERICK, PEARLMAN & MILLS
A LEGAL PROFESSIONAL ASSOCIATION
1350 EATON CENTER
1111 SUPERIOR AVENUE
CLEVELAND, OHIO 44114-2569
(216) 861-4900
FAX (216) 861-4929
May 27, 1998
The Town and Country Trust
1700 Equitable Bank Center
100 South Charles Street
Baltimore, MD 21201
Ladies and Gentlemen:
We are familiar with the proceedings taken and proposed to be taken by
The Town and Country Trust (the "Trust") relative to the issuance and sale of
1,200,000 Common Shares of Beneficial Interest, par value $.01 per share, of
the Trust (the "Shares"), which Shares are reserved for issuance pursuant to
restricted and unrestricted share awards and upon the exercise of options
granted pursuant to the Trust's 1997 Long Term Incentive Plan. As your
counsel, we have been involved in the preparation of a Registration Statement
on Form S-8 filed by you with the Securities and Exchange Commission to
effect the registration of the Shares pursuant to the Securities Act of 1933,
as amended (the "Registration Statement").
In this connection, we have examined the First Amended and Restated
Declaration of Trust of the Trust and the records of proceedings taken by the
Board of Trustees and shareholders of the Trust and all other documents and
records as we determined appropriate for the purposes of this opinion.
Based upon the foregoing, we are of the opinion that, upon the issuance and
sale of the Shares as contemplated by the Registration Statement, the Shares
will be legally issued, fully paid and non-assessable.
We hereby consent to the references to our firm in the Registration
Statement and to the inclusion of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Berick, Pearlman & Mills
BERICK, PEARLMAN & MILLS
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EXHIBIT 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to The Town and Country Trust 1997 Long Term Incentive
Plan of our reports dated January 29, 1998, with respect to the consolidated
financial statements of The Town and Country Trust incorporated by reference
in its Annual Report (Form 10-K) for the year ended December 31, 1997 and the
related financial statement schedule included therein, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Baltimore, Maryland
May 21, 1998
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Exhibit 24
POWER OF ATTORNEY
The undersigned Trustee and officer of The Town and Country Trust, a
Maryland real estate investment trust, which anticipates filing with the
Securities and Exchange Commission, Washington, D.C. under the provisions of
the Securities Act of 1933, as amended, and the Securities and Exchange Act
of 1934, as amended, a Registration Statement on Form S-8 for the purpose of
registering Common Shares of Beneficial Interest, hereby constitutes and
appoints JAMES H. BERICK and HARVEY SCHULWEIS, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign
for the undersigned and in my name, place and stead, as Trustee and Chairman
of the Board of said Trust, said Registration Statement and any and all
amendments and exhibits thereto, and any and all applications and documents
to be filed with the Securities and Exchange Commission pertaining thereto,
with full power of authority to do and perform any and all acts and things
whatsoever requisite, necessary or advisable to be done in the premises, as
fully and for all intents and purposes as the undersigned could do if
personally present, hereby ratifying and approving the acts of said
attorneys, and any of them, and any such substitute.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of April,
1998.
/s/ Alfred Lerner
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Alfred Lerner
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POWER OF ATTORNEY
The undersigned Trustee of The Town and Country Trust, a Maryland real
estate investment trust, which anticipates filing with the Securities and
Exchange Commission, Washington, D.C. under the provisions of the Securities
Act of 1933, as amended, and the Securities and Exchange Act of 1934, as
amended, a Registration Statement on Form S-8 for the purpose of registering
Common Shares of Beneficial Interest, hereby constitutes and appoints ALFRED
LERNER and HARVEY SCHULWEIS, and each of them, with full power of
substitution and resubstitution, as attorneys or attorney to sign for the
undersigned and in my name, place and stead, as Trustee of said Trust, said
Registration Statement and any and all amendments and exhibits thereto, and
any and all applications and documents to be filed with the Securities and
Exchange Commission pertaining thereto, with full power and authority to do
and perform any and all acts and things whatsoever requisite, necessary or
advisable to be done in the premises, as fully and for all intents and
purposes as the undersigned could do if personally present, hereby ratifying
and approving the acts of said attorneys, and any of them, and any such
substitute.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of April,
1998.
/s/ James H. Berick
-----------------------------
James H. Berick
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POWER OF ATTORNEY
The undersigned Trustee of The Town and Country Trust, a Maryland real
estate investment trust, which anticipates filing with the Securities and
Exchange Commission, Washington, D.C. under the provisions of the Securities
Act of 1933, as amended, and the Securities and Exchange Act of 1934, as
amended, a Registration Statement on Form S-8 for the purpose of registering
Common Shares of Beneficial Interest, hereby constitutes and appoints ALFRED
LERNER, JAMES H. BERICK and HARVEY SCHULWEIS, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign
for the undersigned and in my name, place and stead, as Trustee of said
Trust, said Registration Statement and any and all amendments and exhibits
thereto, and any and all applications and documents to be filed with the
Securities and Exchange Commission pertaining thereto, with full power and
authority to do and perform any and all acts and things whatsoever requisite,
necessary or advisable to be done in the premises, as fully and for all
intents and purposes as the undersigned could do if personally present,
hereby ratifying and approving the acts of said attorneys, and any of them,
and any such substitute.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of April,
1998.
/s/ H. Grant Hathaway
-----------------------------
H. Grant Hathaway
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POWER OF ATTORNEY
The undersigned Trustee of The Town and Country Trust, a Maryland real
estate investment trust, which anticipates filing with the Securities and
Exchange Commission, Washington, D.C. under the provisions of the Securities
Act of 1933, as amended, and the Securities and Exchange Act of 1934, as
amended, a Registration Statement on Form S-8 for the purpose of registering
Common Shares of Beneficial Interest, hereby constitutes and appoints ALFRED
LERNER, JAMES H. BERICK and HARVEY SCHULWEIS, and each of them, with full
power of substitution and resubstitution, as attorneys or attorney to sign
for the undersigned and in my name, place and stead, as Trustee of said
Trust, said Registration Statement and any and all amendments and exhibits
thereto, and any and all applications and documents to be filed with the
Securities and Exchange Commission pertaining thereto, with full power and
authority to do and perform any and all acts and things whatsoever requisite,
necessary or advisable to be done in the premises, as fully and for all
intents and purposes as the undersigned could do if personally present,
hereby ratifying and approving the acts of said attorneys, and any of them,
and any such substitute.
IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of April,
1998.
/s/ Milton A. Wolf
---------------------------
Milton A. Wolf
