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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 17, 1998
REGISTRATION NO. 333-68465
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PRIME RETAIL, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 38-2559212
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
</TABLE>
100 EAST PRATT STREET, NINETEENTH FLOOR, BALTIMORE, MARYLAND 21202
(410) 234-0782
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
C. ALAN SCHROEDER
PRIME RETAIL, INC.
100 EAST PRATT STREET
NINETEENTH FLOOR
BALTIMORE, MARYLAND 21202
(410) 234-0782
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
WAYNE D. BOBERG, ESQ.
STEVEN J. GAVIN, ESQ.
WINSTON & STRAWN
35 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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EXPLANATORY NOTE
Prime Retail, Inc. has prepared this Amendment No. 2 for the purpose of
filing with the Securities and Exchange Commission Exhibit 8.1 to the
Registration Statement. Amendment No. 2 does not modify any provision of the
Prospectus included in the Registration Statement; accordingly, such Prospectus
has not been included herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
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1.1 -- Form of Underwriting Agreement(1)
4.1 -- Form of Common Stock Warrant Agreement(1)
4.2 -- Form of Preferred Stock Warrant Agreement(1)
4.3 -- Form of Articles of Restatement for the Preferred Stock(1)
4.4 -- Form of Preferred Stock Certificate(1)
4.5 -- Form of Deposit Agreement(1)
5.1 -- Opinion of Winston & Strawn(3)
8.1 -- Opinion of Winston & Strawn regarding tax matters(2)
12.1 -- Computation of Ratios of Earnings to Combined Fixed Charges and Preferred Stock
Distributions and Dividends(3)
23.1 -- Consent of Ernst & Young LLP--Baltimore(3)
23.2 -- Consent of Ernst & Young LLP--Chicago(3)
23.3 -- Consent of Winston & Strawn (included in Exhibit 5.1)
24.1 -- Powers of Attorney(3)
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(1) To be filed by amendment or incorporated by reference in connection with the
offering of securities offered by this prospectus.
(2) Filed herewith.
(3) Filed previously.
II-1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable ground to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Baltimore, State of Maryland, on this 17th day of December, 1998.
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PRIME RETAIL, INC.
By: /s/ C. ALAN SCHROEDER
-----------------------------------------
C. Alan Schroeder
EXECUTIVE VICE PRESIDENT--GENERAL COUNSEL
AND SECRETARY
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Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed by the following persons in the capacities indicated as of the
17th day of December, 1998.
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<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
*
------------------------------------------- Chairman of the Board of Directors
Michael W. Reschke
*
------------------------------------------- Chief Executive Officer (Principal Executive Officer) and
Abraham Rosenthal Director
*
------------------------------------------- President, Chief Operating Officer and Director
William H. Carpenter, Jr.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------------------ ---------------------------------------------------------
<C> <S>
*
------------------------------------------- Executive Vice President--Development and Acquisitions
Glenn D. Reschke and Director
* Executive Vice President--Chief Financial Officer and
------------------------------------------- Treasurer (Principal Financial Officer and Principal
Robert P. Mulreaney Accounting Officer)
*
------------------------------------------- Director
William P. Dickey
*
------------------------------------------- Director
Terence C. Golden
*
------------------------------------------- Director
Norman Perlmutter
------------------------------------------- Director
Robert D. Perlmutter
*
------------------------------------------- Director
Kenneth A. Randall
*
------------------------------------------- Director
Sharon Sharp
*
------------------------------------------- Director
James R. Thompson
------------------------------------------- Director
Marvin S. Traub
</TABLE>
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<S> <C> <C> <C>
*By: /s/ C. ALAN SCHROEDER
-------------------------
C. Alan Schroeder
AS ATTORNEY-IN-FACT
</TABLE>
II-3
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December 16, 1998
Prime Retail, Inc.
100 East Pratt Street
Nineteenth Floor
Baltimore, Maryland 21202
Re: Qualification of Prime Retail, Inc. as a REIT and Material
Federal Income Tax Considerations Disclosure
Ladies and Gentlemen:
We have acted as special counsel to Prime Retail, Inc., a Maryland
Corporation (the "Company") in connection with the Company's registration of
certain of its Preferred Stock, $.01 par value per share; Depository Shares;
Preferred Stock Warrants; Common Stock, par value $.01 per share; and Common
Stock Warrants, as set forth in the Registration Statement on Form S-3
(Registration No. 333-68465) initially filed with the Securities and Exchange
Commission on December 7, 1998 and as subsequently amended (the "Registration
Statement"). Capitalized terms used herein and not otherwise defined herein
shall have the meaning set forth in the Registration Statement.
You have requested our opinions concerning (i) whether the Company is
organized in conformity with the requirements for qualification as a real estate
investment trust ("REIT") for federal income tax purposes, (ii) whether the
Company's method of operation has enabled it to meet the requirements for
qualification and taxation as a REIT under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), (iii) whether the Company's
proposed method of operation will enable it to continue to meet the requirements
for qualification as a REIT and (iv) whether the discussion in the Registration
Statement Prospectus under the heading "Material Federal Income Tax
Considerations" fairly summarizes the federal income tax considerations that are
likely to be material to a holder of the Company's capital stock.
In rendering these opinions, we have examined and relied upon, with
your consent, the descriptions of the Company, Prime Retail, L.P., a Delaware
limited partnership (the "Operating Partnership") , and the property
partnerships and their respective investments, activities, operations and
governance, as set forth in the following documents:
(1) the Registration Statement and Prospectus;
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Page 2
(2) the Amended and Restated Articles of Incorporation of the Company
as amended to the date hereof (the "Charter");
(3) the Second Amended and Restated Agreement of Limited Partnership
of the Operating Partnership as amended to the date hereof;
(4) each of the property partnerships' operative agreements as
amended; and
(5) the Officer's Certificate dated as October 13, 1998, and as
reaffirmed as of the date hereof, setting forth certain
representations (the "Officer's Certificate"),
together with such other documents, information, records and matters of law as
we have deemed relevant or necessary (these enumerated and unenumerated
documents are referred to as the "Relevant Documents"). We have assumed the
genuineness of all signatures on originals or copies, the legal capacity of
natural persons, the authority of any individual or individuals who executed any
such documents on behalf of any other person, the authenticity of all documents
submitted to us as originals, the accuracy of copies, and the conformity to
originals or certified copies of all copies submitted to us as certified or
reproduction copies.
With your permission, we are relying upon the Relevant Documents,
including the Officer's Certificate, which was executed by a duly authorized
officer of the Company, referring to certain legal opinions regarding the REIT
status of the predecessor to the Company and setting forth certain factual
representations relating to the formation, ownership, operation, future method
of operation, and compliance with the REIT and partnership provisions of the
Code with respect to the Company, the Operating Partnership, each of the
property partnerships, and the various partnerships, qualified REIT
subsidiaries, and other entities in which the Company, the Operating Partnership
or any property partnership own equity interests. Our reliance upon this
Officer's Certificate relates only to matters of fact and the legal conclusions
contained in the opinions referenced therein concerning the predecessor to the
Company and does not otherwise relate to matters of law or legal conclusions. We
have further relied on and assumed the truth and correctness of (i) the
Company's representations in the Second Amended and Restated Agreement of
Limited Partnership of the Operating Partnership and (ii) the certificates of
public officials with respect to the formation of certain limited partnerships.
Moreover, for the purpose of rendering our opinion, we have assumed that no
partner in the Operating Partnership or any property partnership or any other
partnership in which the Company, the Operating Partnership, or any property
partnership has an equity interest has or will elect to be excluded from all or
part of subchapter K of the Code.
For the purposes of rendering these opinions, we have not made an
independent investigation of the facts set forth in any of the Relevant
Documents, including without limitation,
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Page 3
the Registration Statement and the Officer's Certificate. We have consequently
relied upon your factual representations that the information presented in the
Relevant Documents or otherwise furnished to us accurately and completely
describes all material facts relevant to these opinions. Furthermore, we have
not independently verified the accuracy of the legal opinions referred to in the
Officer's Certificate concerning the REIT status of the predecessor to the
Company which, for purposes of these opinions, we assume to be true and correct.
In rendering these opinions, we have assumed that the transactions
contemplated by the Registration Statement will be consummated in accordance
with the Relevant Documents, and such documents accurately reflect the material
facts of such transactions. In addition, the opinions set forth herein are based
on the correctness of the following specific assumptions: (i) each of the
Company, the Operating Partnership, each property partnership and each affiliate
thereof or entity in which they have an equity interest will operate in the
manner described in the relevant partnership agreement or other organizational
documents and in the Registration Statement and Prospectus and in accordance
with applicable laws; and (ii) each partner in the Operating Partnership and in
each of the property partnerships and in each partnership in which they or the
Company or any affiliate has an equity interest was motivated in acquiring its
respective partnership interest by such partner's anticipation of economic
rewards apart from tax considerations. Any alteration of such assumptions may
adversely affect our opinions.
Our opinions herein are based upon the current provisions of the Code,
as amended, currently applicable Treasury Regulations promulgated or proposed
thereunder, currently published administrative rulings, judicial decisions and
other applicable authorities, all as in effect on the date hereof. All of the
foregoing authorities are subject to change or new interpretations, both
prospectively and retroactively, and such changes or interpretations, as well as
any change in the facts as they have been represented to us or assumed by us,
could affect our opinions. Our opinions are rendered only as of the date hereof
and we take no responsibility to update these opinions after this date. Our
opinions do not foreclose the possibility of a contrary determination by the
Internal Revenue Service (the "IRS") or by a court of competent jurisdiction, or
of a contrary position by the IRS or Treasury Department in regulations or
rulings issued in the future.
Based on the foregoing, and subject to the limitations, qualifications
and exceptions set forth herein, we are of the opinion that (i) the Company is
organized in conformity with the requirements for qualification as a REIT, (ii)
the Company's method of operation has enabled it to meet the requirements for
qualification and taxation as a REIT under the Code, (iii) the Company's
proposed method of operation will enable it to continue to meet the requirements
for qualification as a REIT, and (iv) the discussion in the Registration
Statement under the heading "Material Federal Income Tax Considerations" fairly
summarizes the federal income tax considerations that are likely to be material
to a holder of the Company's capital stock.
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Page 4
The Company's qualification and taxation as a REIT (including the
Operating Partnership's qualification and taxation as a partnership and not a
publicly traded partnership taxable as a corporation) depend upon the Company's
ability to meet on a continuing basis, through actual annual operating and other
results, the various requirements under the Code and described in the
Registration Statement with regard to, among other things, the sources of gross
income, the composition of assets, the level of distributions to stockholders,
and the diversity of its stock ownership. Winston & Strawn undertakes no
responsibility to, and will not, review the Company's compliance with these
requirements on a continuing basis. Accordingly, no assurance can be given that
the actual results of the Company's operations, the nature of its assets, the
amount and types of its gross income, the level of its distributions to
stockholders and the diversity of its stock ownership for any given taxable year
will satisfy the requirements under the Code for qualification and taxation as a
REIT. In particular, we would note that, although the Company's Charter contains
certain provisions which restrict the ownership and transfer of the Company's
capital stock and which are intended to prevent concentration of stock
ownership, such provisions do not ensure that the Company will be able to
satisfy the requirement set forth in Code section 856(a)(6) that it not be
"closely held" within the meaning of Code section 856(h) for any given taxable
year, primarily, though not exclusively, as a result of fluctuations in value
among the different classes of the Company's capital stock.
Other than as expressly stated above, we express no opinion on any
issue relating to the Company or the Operating Partnership or to any investment
therein.
These opinions are being delivered only to you and may not be quoted
in whole or in part or otherwise referred to, used by, or relied upon, nor be
filed with, or furnished to, any other person or entity other than for the
benefit of the Company stockholders, without our prior written consent.
Notwithstanding the foregoing, we hereby consent to the use of this opinion as
Exhibit 8 to the Registration Statement and the use of our name in the
Registration Statement. In giving this consent, we do not admit that we are
included in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission.
Very truly yours,
/s/ Winston & Strawn
