<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1998
REGISTRATION STATEMENT NO. 333-57101
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
MERIDIAN INDUSTRIAL TRUST, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 94-3224765
(State of Organization) (I.R.S. Employer
Identification Number)
</TABLE>
455 MARKET STREET, 17TH FLOOR
SAN FRANCISCO, CALIFORNIA 94105
(415) 281-3900
(Address of principal executive offices)
------------------------
Allen J. Anderson Copies to:
Chairman and Chief Executive Officer Michael D. Wortley, Esq.
Meridian Industrial Trust, Inc. Vinson & Elkins L.L.P.
455 Market Street, 17th Floor 2001 Ross Avenue, Suite 3700
San Francisco, California 94105 Dallas, Texas 75201
(Name and address of agent for (214) 220-7700
service)
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, 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. /X/
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(2) FEE
<S> <C> <C> <C> <C>
Debt Securities(4)..........................
Preferred Stock, par value $0.001 per
share(5).................................. (3) (3) (3) (3)
Common Stock, par value $0.001 per
share(6)..................................
Warrants(7).................................
Total..................................... $550,000,000(8) 100% $550,000,000(8) $162,250(9)
</TABLE>
FOOTNOTES TO TABLE ON NEXT PAGE
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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<PAGE>
FOOTNOTES FROM PREVIOUS PAGE
(1) The proposed maximum offering price per unit will be determined from time to
time by the registrant in connection with the issuance by the registrant of
the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
(3) Not applicable pursuant to General Instruction II.D. of Form S-3.
(4) Subject to note (8) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities. If any Debt Securities
are issued at an original issue discount, then the offering price shall be
in such greater principal amount as shall result in an aggregate initial
offering price not to exceed $550,000,000 less the dollar amount of any
securities previously issued hereunder.
(5) Subject to note (8) below, there is being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold, from time
to time, by the registrant.
(6) Subject to note (8) below, there is being registered hereunder an
indeterminate number of shares of Common Stock as may be sold, from time to
time, by the registrant. There is also being registered hereunder an
indeterminate number of shares of Common Stock as shall be issuable upon
conversion or redemption of Preferred Stock or Debt Securities registered
hereunder.
(7) Subject to note (8) below, there is being registered hereunder an
indeterminate amount and number of Warrants, representing rights to purchase
Debt Securities, Preferred Stock, or Common Stock registered hereunder.
(8) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$550,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies. The aggregate amount of
Common Stock registered hereunder is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act of 1933. The
securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(9) Previously paid as a portion of the registration fee for the Registrant's
Registration Statement on Form S-3 (Reg. No. 333-24579).
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 2, 1998
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
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DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
MERIDIAN INDUSTRIAL TRUST, INC.
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Meridian Industrial Trust, Inc. (the "Company") may from time to time offer
in one or more series its (a) debt securities ("Debt Securities"), (b) warrants
to purchase Debt Securities ("Debt Warrants"), (c) Preferred Stock, par value
$0.001 per share ("Preferred Stock"), (d) warrants to purchase Preferred Stock
("Preferred Stock Warrants"), (e) Common Stock, par value $0.001 per share
("Common Stock"), or (f) warrants to purchase Common Stock ("Common Stock
Warrants"), all having an aggregate initial offering price not to exceed
$550,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units, or composite currencies, including European Currency
Units. The Debt Warrants, Preferred Stock Warrants and Common Stock Warrants are
collectively referred to herein as the "Warrants." The Debt Securities,
Preferred Stock, Common Stock and Warrants offered by the Company hereby
(collectively referred to herein as the "Offered Securities") may be offered,
separately or together, in separate series, in amounts, at prices and on terms
to be set forth in a supplement to this Prospectus (a "Prospectus Supplement").
Certain holders (the "Selling Stockholders") of the Company's Common Stock may
also offer and sell certain shares of Common Stock held by them ("Selling
Stockholder Offered Securities" and together with the Company Offered
Securities, the "Offered Securities").
The specific terms of the Offered Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable: (a) in the case of Debt
Securities, the specific title, aggregate principal amount, currency, form
(which may be registered or bearer, or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, terms for redemption at the option of the Company or
repayment at the option of the Holder, terms for sinking fund payments, and any
initial public offering price, (b) in the case of Preferred Stock, the
designation and stated value, any dividend, liquidation, redemption, conversion,
voting and other rights, and the number of shares and the terms or the offering
and sale thereof, (c) in the case of Common Stock, the number of shares and the
terms of the offering and sale thereof, (d) in the case of Warrants, the number
and terms thereof, the designation and the number of securities issuable upon
exercise, the exercise price, the terms of the offering and sale thereof, and
where applicable, the duration and detachability thereof, and (e) in the case of
all Offered Securities, whether such Offered Securities will be offered
separately or as a unit with other Offered Securities. The Selling Stockholder
Offered Securities may be offered in amounts, at prices and on terms to be
determined at the time of sale and set forth in a Prospectus Supplement. In
addition, such specific terms may include limitations on direct or beneficial
ownership and restrictions on transfer of the Offered Securities, in each case
as may be appropriate to preserve the status of the Company as a real estate
investment trust ("REIT") for federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by such Prospectus Supplement.
The Company may sell the Offered Securities in or outside the United States
through underwriters, brokers or dealers, directly to one or more purchasers, or
through agents. The Selling Stockholder Offered Securities may be offered to or
through underwriters either separately or in connection with offerings of
Offered Securities by the Company. If any agents or underwriters are involved in
the sale of any of the Offered Securities, their names, and any applicable
purchase price, fee, commission or discount arrangement between or among them,
will be set forth, or will be calculable from the information set forth, in the
applicable Prospectus Supplement. See "Plan of Distribution." No Offered
Securities may be sold without delivery of the applicable Prospectus Supplement
describing the method and terms of the offering of such series of Offered
Securities. The Company will not receive any of the proceeds from the sale of
any of the Selling Stockholder Offered Securities by any of the Selling
Stockholders.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is July , 1998.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549; Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661; and 7 World Trade Center, 13th Floor, New York, New
York 10048. Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such material can also be obtained from the Commission's
worldwide web site at http://www.sec.gov. The Company's outstanding shares of
Common Stock are listed on the New York Stock Exchange (the "NYSE") under the
symbol "MDN" and all such reports, proxy statements and other information filed
by the Company with the NYSE may be inspected at the NYSE's offices at 20 Broad
Street, New York, New York 10005. In addition, warrants to purchase shares of
the Company's Common Stock are listed on the American Stock Exchange ("ASE") and
such reports, proxy statements and other information filed by the Company with
the ASE may be inspected at the ASE's offices at 86 Trinity Place, New York, New
York 10006-1881.
This Prospectus constitutes part of a registration statement on Form S-3
(together with all amendments and exhibits, the "Registration Statement") filed
by the Company with the Commission under the Securities Act. This Prospectus
does not contain all of the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION BY REFERENCE
There are incorporated herein by reference the following documents
heretofore filed by the Company with the Commission (File No. 1-14166):
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1997;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
(c) Current Report on Form 8-K filed February 23, 1998;
(d) Current Report on Form 8-K filed March 16, 1998;
(e) Current Report on Form 8-K filed May 29, 1998;
(f) Current Report on Form 8-K filed June 23, 1998;
(g) Current Report on Form 8-K filed June 26, 1998;
(h) Current Report on Form 8-K filed July 2, 1998; and
(i) The description of the Common Stock contained in the Company's
registration statement on Form 8-A filed on January 4, 1996 for registration
of the Common Stock pursuant to Section 12(b) of the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Offered Securities shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein, or in any subsequently filed document which is incorporated or
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any or all of the documents
incorporated herein by reference, other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents.
Requests should be addressed to General Counsel, Meridian Industrial Trust,
Inc., 455 Market Street, 17th Floor, San Francisco, California 94105.
2
<PAGE>
AS USED HEREIN THE TERM "COMPANY" INCLUDES MERIDIAN INDUSTRIAL TRUST, INC.,
A MARYLAND CORPORATION, AND ONE OR MORE OF ITS SUBSIDIARIES, AS APPROPRIATE.
CERTAIN ADDITIONAL TERMS CONTAINED HEREIN ARE DEFINED IN THE GLOSSARY OF THIS
PROSPECTUS.
THE COMPANY
Meridian Industrial Trust, Inc. is a self-administered and self-managed real
estate operating company engaged primarily in the business of owning, acquiring,
developing, managing and leasing income-producing warehouse/distribution and
light industrial properties. Based on the total square feet of leasable space
and management's knowledge of the industrial real estate market, the Company
believes it is one of the largest public owners and managers of modern
industrial space for lease in the United States. The Company's strategy is to be
a demand-driven, competitively priced, nationwide provider of warehouse/
distribution space.
The Company's fundamental business objective is to maximize total return to
its stockholders by increasing cash flow per share and increasing the long-term
value of the Company's properties. In order to achieve this objective, the
Company will seek to add value to the Company's Properties, build market share,
achieve name recognition and continue to improve its operating efficiency. The
Company places a high priority on disciplined portfolio management and
anticipating customers' needs. The Company intends to achieve its primary
business objective by applying its corporate strategies to achieve growth in its
portfolio of Properties. The Company will seek to grow through (a) acquiring
warehouse/distribution properties, (b) developing warehouse/distribution
properties to meet customer demand, (c) selectively acquiring land parcels in
anticipation of development projects, (d) repositioning the Company's existing
portfolio by selling Properties which no longer meet its investment objectives
and reinvesting the proceeds and (e) maximizing cash flow from its operating
Properties by increasing occupancy levels and releasing space at higher levels.
The Company's executive offices are located at 455 Market Street, 17th
Floor, San Francisco, California 94105, and its telephone number at those
offices is (415) 281-3900.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the net
proceeds from the sale of the Offered Securities will be used for the
acquisition and development of additional industrial properties, as suitable
opportunities arise, for the repayment of certain outstanding indebtedness at
such time, for capital improvements to properties and for general corporate
purposes. None of the proceeds from the sale of any of the Selling Stockholder
Offered Securities by any of the Selling Stockholders will be received by the
Company.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS
For the three months ended March 31, 1998 and for the years ended December
31, 1996 and 1997, the Company's ratio of earnings to fixed charges was 2.75x,
2.73x and 2.60x, respectively. For the same periods, the ratio of earnings to
combined fixed charges and preferred dividends was 2.42x, 2.24x and 1.91x,
respectively. For the period from May 18, 1995 (inception) to December 31, 1995,
except for interest earned on its investments and general and administrative
expenses incurred and accrued the Company had no activities. During this period
the Company's fixed charges were in excess of earnings by $1.29 million and
combined fixed charges and preferred dividends were in excess of earnings of
$1.32 million.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges (excluding capitalized interest) to income (loss) before
extraordinary items. Fixed charges consist of interest costs, whether expensed
or capitalized, the interest component of rental expense, and amortization of
capitalized loan fees.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities being offered and the extent to which
such general provisions may apply will be described in a Prospectus Supplement
relating to such Debt Securities.
The Debt Securities will be issued under an indenture, dated as of a date
prior to the issuance of the Debt Securities, as amended or supplemented from
time to time (the "Indenture"), between the Company and a trustee (the
"Trustee") chosen by the Company and qualified to act as Trustee under the Trust
Indenture Act of 1939, as amended (the "TIA"). The form of Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part and is available for inspection as described above under "Available
Information." The Indenture is subject to, and governed by, the TIA. The
statements made hereunder relating to the Indenture and the Debt Securities to
be issued thereunder are summaries of certain provisions thereof and do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indenture and such Debt Securities.
Capitalized terms used but not defined herein shall have the respective meanings
set forth in the Indenture. All Section references appearing herein are to
sections of the Indenture.
Wherever particular Sections or defined terms of the Indenture are referred
to herein or in a Prospectus Supplement, such Sections or defined terms are
incorporated by reference herein or therein, as the case may be.
GENERAL
The Debt Securities will be direct, unsecured obligations of the Company and
will rank PARI PASSU with all other unsecured and unsubordinated indebtedness of
the Company. The Debt Securities are non-convertible and will be effectively
subordinated to any secured indebtedness of the Company and any indebtedness of
the Company's Subsidiaries. At least one nationally-recognized statistical
rating organization will have assigned an investment grade rating to the Debt
Securities at the time of sale. At March 31, 1998, the Company and its
Subsidiaries had $94.0 million of secured indebtedness and $251.9 million of
unsecured indebtedness outstanding. The Debt Securities may be issued without
limit as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board as established in the Indenture or in one or more
indentures supplemental to the Indenture. All Debt Securities of one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series (Section
301).
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series (Section 610). In the event that two or more persons are acting as
Trustee with respect to different series of Debt Securities, each such trustee
shall be a Trustee of a trust under the applicable Indenture separate and apart
from the trust administered by any other Trustee (Section 609) and, except as
otherwise indicated herein, any action described herein to be taken by a Trustee
may be taken by each such Trustee with respect to, and only with respect to, the
one or more series of Debt Securities for which it is Trustee under the
applicable Indenture.
The applicable Prospectus Supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities:
(a) the title of such Debt Securities;
(b) any limit on the aggregate principal amount of such Debt Securities
or the series of which they are a part;
4
<PAGE>
(c) the Person to whom any interest on a Debt Security shall be payable,
if other than the Person in whose name the Debt Security is registered;
(d) the date or dates on which the principal of any of such Debt
Securities will be payable;
(e) the rate or rates at which any of such Debt Securities will bear
interest, if any, the date or dates from which any such interest will
accrue, the Interest Payment Dates on which any such interest will be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(f) the place or places where the principal of and any premium and
interest on any of such Debt Securities will be payable;
(g) the period or periods within which, the price or prices at which and
the terms and conditions on which any of such Debt Securities may be
redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase any of
such Debt Securities pursuant to any sinking fund or analogous provision or
at the option of the Holder thereof, and the period or periods within which,
the price or prices at which, and the terms and conditions on which, any of
such Debt Securities will be redeemed or purchased, in whole or in part,
pursuant to any such obligation;
(i) the denominations in which any of such Debt Securities will be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(j) if the amount of principal of or any premium or interest on any of
such Debt Securities may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(k) if other than the entire principal amount thereof, the portion of
the principal amount of any of such Debt Securities which will be payable
upon declaration of acceleration of the Maturity thereof;
(l) if the principal amount payable at the Stated Maturity of any of
such Debt Securities will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any Maturity
other than the Stated Maturity or which will be deemed to be Outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined);
(m) if applicable, that such Debt Securities, in whole or any specified
part, are defeasible pursuant to the provisions of the Indenture described
under "--Defeasance and Covenant Defeasance--Defeasance and Discharge" or
"--Defeasance and Covenant Defeasance--Defeasance of Certain Covenants," or
under both such captions;
(n) whether any of such Debt Securities will be issuable in whole or in
part in the form of one or more Global Debt Securities and, if so, the
respective Depositaries for such Global Debt Securities, the form of any
legend or legends to be borne by any such Global Debt Security in addition
to or in lieu of the legend referred to under "--Global Debt Securities"
and, if different from those described under such caption, any circumstances
under which any such Global Debt Security may be exchanged in whole or in
part for Debt Securities registered, and any transfer of such Global Debt
Security in whole or in part may be registered, in the names of Persons
other than the Depositary for such Global Debt Security or its nominee;
(o) any addition to or change in the Events of Default applicable to any
of such Debt Securities and any change in the right of the Trustee or the
Holders thereof to declare the principal amount of any of such Debt
Securities due and payable;
5
<PAGE>
(p) any addition to or change in the covenants in the Indenture
described under "--Certain Covenants" applicable to any of such Debt
Securities; and
(q) any other terms of such Debt Securities not inconsistent with the
provisions of the Indenture (Section 301).
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Certain special United
States federal income tax considerations (if any) applicable to Debt Securities
sold at an original issue discount may be described in the applicable Prospectus
Supplement.
Except as described under "--Merger, Consolidation or Sale" or "--Certain
Covenants" or as may be set forth in any Prospectus Supplement, the Indenture
does not contain any provisions that would limit the ability of the Company to
incur indebtedness or that would afford Holders of the Debt Securities
protection in the event of (a) a highly leveraged or similar transaction
involving the Company, the management of the Company or any affiliate of any
such party, (b) a change of control or (c) a reorganization, restructuring,
merger or similar transaction involving the Company that may adversely affect
the Holders of the Debt Securities. In addition, subject to the limitations set
forth under "--Merger, Consolidation or Sale," the Company may, in the future,
enter into certain transactions, such as the sale of all or substantially all of
its assets or the merger or consolidation of the Company, that would increase
the amount of the Company's indebtedness or substantially reduce or eliminate
the Company's assets, which may have an adverse effect on the Company's ability
to service its indebtedness, including the Debt Securities. However,
restrictions on ownership and transfers of the Company's Common Stock designed
to preserve its status as a REIT and the provisions of the Company's Stockholder
Rights Plan each may act to prevent or hinder a change of control. Reference is
made to the applicable Prospectus Supplement for information with respect to any
deletions from, modifications of or additions to the events of default or
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
DENOMINATIONS, REGISTRATION AND TRANSFER
The Debt Securities of each series will be issuable only in fully registered
form, without coupons, and, unless otherwise specified in the applicable
Prospectus Supplement, only in denominations of $1,000 and integral multiples
thereof (Section 302).
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Debt Securities, Debt Securities of each series
will be exchangeable for other Debt Securities of the same series of any
authorized denomination and of a like tenor and aggregate principal amount
(Section 305).
Subject to the terms of the Indenture and the limitations applicable to
Global Debt Securities, Debt Securities may be presented for exchange as
provided above or for registration of transfer (duly endorsed or with the form
of transfer endorsed thereon duly executed) at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose. No service charge will be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Such transfer or exchange will be effected upon the Security
Registrar or such transfer agent, as the case may be, being satisfied with the
documents of title and identity of the person making the request. The Company
has appointed the Trustee as Security Registrar. Any transfer agent (in addition
to the Security Registrar) initially designated by the Company for any Debt
Securities will be named in the applicable Prospectus Supplement (Section 305).
The Company may at any time designate additional transfer agents or rescind
the designation of any transfer agent or approve a change in the office through
which any transfer agent acts, except that the
6
<PAGE>
Company will be required to maintain a transfer agent in each Place of Payment
for the Debt Securities of each series (Section 1002).
If the Debt Securities of any series (or of any series and specified terms)
are to be redeemed in part, the Company will not be required to (a) issue,
register the transfer of or exchange any Debt Security of that series (or of
that series and specified terms, as the case may be) during a period beginning
at the opening of business 15 days before the day of mailing of a notice of
redemption of any such Debt Security that may be selected for redemption and
ending at the close of business on the day of such mailing, (b) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any such Debt Security being
redeemed in part or (c) to issue, register the transfer of or exchange any Debt
Security that has been surrendered for payment at the option of the Holder,
except the portion, if any, of such Debt Security not to be so repaid (Section
305).
GLOBAL DEBT SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Debt Securities which will have an
aggregate principal amount equal to that of the Debt Securities represented
thereby. Each Global Debt Security will be registered in the name of a
Depositary or a nominee thereof identified in the applicable Prospectus
Supplement, will be deposited with such Depositary or nominee or a custodian
therefor and will bear a legend regarding the restrictions on exchanges and
registration of transfer thereof referred to below and any such other matters as
may be provided for pursuant to the Indenture (Section 305).
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Debt Security may be exchanged in whole or in part
for Debt Securities registered, and no transfer of a Global Debt Security in
whole or in part may be registered, in the name of any Person other than the
Depositary for such Global Debt Security or any nominee of such Depositary
unless (a) the Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Debt Security or has ceased to
be qualified to act as such as required by the Indenture, (b) there shall have
occurred and be continuing an Event of Default with respect to the Debt
Securities represented by such Global Debt Security or (c) there shall exist
such circumstances, if any, in addition to or in lieu of those described above
as may be described in the applicable Prospectus Supplement (Section 305). All
securities issued in exchange for a Global Debt Security or any portion thereof
will be registered in such names as the Depositary may direct (Sections 204 and
305).
As long as the Depositary, or its nominee, is the registered Holder of a
Global Debt Security, the Depositary or such nominee, as the case may be, will
be considered the sole owner and Holder of such Global Debt Security and the
Debt Securities represented thereby for all purposes under the Debt Securities
and the Indenture (Section 308). Except in the limited circumstances referred to
above, owners of beneficial interests in a Global Debt Security will not be
entitled to have such Global Debt Security or any Debt Securities represented
thereby registered in their names, will not receive or be entitled to receive
physical delivery of certificated Debt Securities in exchange therefor and will
not be considered to be the owners or Holders of such Global Debt Security or
any Debt Securities represented thereby for any purpose under the Debt
Securities or the Indenture. All payments of principal of and any premium and
Interest on a Global Debt Security will be made to the Depositary or its
nominee, as the case may be, as the Holder thereof. The laws of some
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in definitive form. These laws may impair the
ability to transfer beneficial interests in a Global Debt Security.
Ownership of beneficial interests in a Global Debt Security will be limited
to institutions that have accounts with the Depositary or its nominee
("participants") and to persons that may hold beneficial interests through
participants. In connection with the issuance of any Global Debt Security, the
Depositary will credit, on its book-entry registration and transfer system, the
respective principal amounts of Debt
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Securities represented by the Global Debt Security to the accounts of its
participants. Ownership of beneficial interests in a Global Debt Security will
be shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the Depositary (with respect to
participants' interests) or any such participant (with respect to interests of
persons held by such participants on their behalf). Payments, transfers,
exchanges and other matters relating to beneficial interests in a Global Debt
Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the Trustee or any agent of
the Company or the Trustee will have any responsibility or liability for any
aspect of the Depositary's or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Debt Security, or
for maintaining, supervising or reviewing any records relating to such
beneficial interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Global Debt Security, in all cases, will trade in the Depositary's
settlement system, in which secondary market trading activity in those
beneficial interests will be required by the Depositary to settle in immediately
available funds. The Company cannot predict the effect, if any, that settlement
in immediately available funds would have on trading activity in such beneficial
interests. Also, settlement for purchases of beneficial interests in a Global
Debt Security upon the original issuance thereof will be required to be made in
immediately available funds.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Debt Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Debt
Securities) is registered at the close of business on the Regular Record Date
for such interest (Section 307).
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement,
the corporate trust office of the Trustee will be designated as the Company's
sole Paying Agent for payments with respect to Debt Securities of each series.
Any other Paying Agents initially designated by the Company for the Debt
Securities of a particular series will be named in the applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that the Company will be required to
maintain a Paying Agent in each Place of Payment for the Debt Securities of a
particular series (Section 1002).
All moneys paid by the Company to a Paying Agent for the payment of the
principal of, or any premium or interest on, any Debt Security that remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company, and the Holder of such
Debt Security thereafter may look only to the Company for payment thereof
(Section 103).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable regular record
date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to the Holder of such Debt Security not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner, all as more completely described in the applicable
Prospectus Supplement (Section 307).
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MERGER, CONSOLIDATION OR SALE
The Company may not consolidate with or merge into, or convey, transfer or
lease its properties and assets substantially as an entirety to, any Person (a
"successor Person"), and may not permit any Person to merge into, or convey,
transfer or lease its properties and assets substantially as an entirety to, the
Company, unless (a) the successor Person (if any) is a corporation, partnership
or trust organized and validly existing under the laws of any domestic
jurisdiction and assumes, by a supplemental indenture, the Company's obligations
on the Debt Securities and under the Indenture, (b) immediately after giving
effect to the transaction, and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary as a result of the transaction as
having been incurred by it at the time of the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event
of Default, shall have occurred and be continuing and (c) certain other
conditions are met (Section 801).
CERTAIN COVENANTS
EXISTENCE. Except as permitted under "--Merger, Consolidation or Sale," the
Company will be required to do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights and franchises;
provided, however, that the Company shall not be required to preserve any right
or franchise if it determines that the preservation thereof is no longer
desirable in the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Holders of the Debt Securities
(Section 1005).
MAINTENANCE OF PROPERTIES. The Company will be required to cause all
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and to cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that the Company shall not be prevented from discontinuing
the operation or maintenance of any of its properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders (Section 1006).
INSURANCE. The Company will be required to, and to cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage with insurers of recognized responsibility in commercially reasonable
amounts and types (Section 1008).
PAYMENT OF TAXES AND OTHER CLAIMS. The Company will be required to pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings (Section 1007).
PROVISION OF FINANCIAL INFORMATION. Whether or not the Company is subject
to Section 13 or Section 15(d) of the Exchange Act and for so long as any Debt
Securities are outstanding, the Company will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Section 13 or Section 15(d) (the "Financial
Statements") if the Company were so subject, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject. The Company will also in any event (a) within 15 days
of each Required Filing
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Date (i) transmit by mail to all Holders of Debt Securities whose names appear
in the Security Register for such Debt Securities, as their names and addresses
appear in the Security Register for such Debt Securities, without cost to such
Holders, copies of the annual reports and quarterly reports which the Company
would have been required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act if the Company were subject to such Sections
and (ii) file with any Trustee copies of the annual reports, quarterly reports
and other documents which the Company would have been required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act if the
Company were subject to such Sections and (b) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder (Section
1010).
LIMITATIONS ON INCURRENCE OF INDEBTEDNESS. The Company will not, and will
not permit any Subsidiary to, incur any Indebtedness (as defined below), other
than intercompany debt representing Indebtedness to which the only parties are
the Company, the Company and any of their Subsidiaries (but only so long as such
Indebtedness is held solely by any of the Company, the Company and any
Subsidiary) that is subordinate in right of payment to Outstanding Debt
Securities, if, immediately after giving effect to the incurrence of such
additional Indebtedness, the aggregate principal amount of all outstanding
Indebtedness of the Company and its Subsidiaries on a consolidated basis is
greater than 60% of the sum of (a) Total Assets (as defined below) as of the end
of the calendar quarter covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Trustee (or such reports of the Company if filed by the Company with the Trustee
in lieu of filing its own reports) prior to the incurrence of such additional
Indebtedness and (b) the increase in Total Assets from the end of such quarter
including, without limitation, any increase in Total Assets resulting from the
incurrence of such additional Indebtedness (such increase, together with the
Total Assets, is referred to as "Adjusted Total Assets") (Section 1009).
In addition to the foregoing limitation on the incurrence of Indebtedness,
the Company will not, and will not permit any Subsidiary to, incur any
Indebtedness if the ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge (in each case as defined below) for the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Indebtedness is to be incurred shall have been less than 1.5 to 1, on
a pro forma basis, after giving effect to the incurrence of such Indebtedness
and to the application of the proceeds therefrom and calculated on the
assumption that (a) such Indebtedness and any other Indebtedness incurred by the
Company or its Subsidiaries since the first day of such four-quarter period and
the application of the proceeds therefrom, including to refinance other
Indebtedness, had occurred at the beginning of such period, (b) the repayment or
retirement of any other Indebtedness by the Company or its Subsidiaries since
the first day of such four- quarter period had occurred at the beginning of such
period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility shall be computed based upon the average
daily balance of such Indebtedness during such period), (c) the income earned on
any increase in Adjusted Total Assets since the end of such four-quarter period
had been earned on an annualized basis, during such period, and (d) in the case
of any acquisition or disposition by the Company or any Subsidiary of any asset
or group of assets since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset purchase or
sale, such acquisition or disposition or any related repayment of Indebtedness
had occurred as of the first day of such period with appropriate adjustments
with respect to such acquisition or disposition being included in such pro forma
calculation (Section 1009). Further, the Company will not, and will not permit
any Subsidiary to, incur any Secured Indebtedness of the Company or any
Subsidiary if, immediately after giving effect to the incurrence of such
additional Secured Indebtedness, the aggregate principal amount of all
outstanding Secured Indebtedness of the Company and its Subsidiaries on a
consolidated basis would be greater than 40% of Adjusted Total Assets. As used
herein, "Secured Indebtedness" means Indebtedness secured by any mortgage, lien,
charge, encumbrance, trust, deed, deed of trust, deed to secure debt, security
agreement, pledge, conditional sale or other title
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retention agreement, capitalized lease, or other like agreement granting or
conveying security title to or a security interest in real property or other
tangible assets.
For purposes of the foregoing provisions regarding the limitation on the
incurrence of Indebtedness, Indebtedness shall be deemed to be "incurred" by the
Company or a Subsidiary whenever the Company and its Subsidiary shall create,
assume, guarantee or otherwise become liable in respect thereof (Section 1009).
Maintenance of Total Unencumbered Assets. For so long as there are
Outstanding any Debt Securities (other than Debt Securities that are not, by
their terms, entitled to the benefit of this covenant), the Company is required
to maintain Total Unencumbered Assets (as defined below) of not less than 150%
of the aggregate outstanding principal amount of all outstanding Unsecured
Indebtedness (as defined below) (Section 1009).
As used herein:
"Annual Service Charge" as of any date means the amount which is expensed in
any 12-month period for interest on Indebtedness of the Company and its
Subsidiaries.
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income (a) plus amounts which have been deducted for (i)
interest on Indebtedness of the Company and its Subsidiaries, (ii) provision for
taxes of the Company and its Subsidiaries based on income, (iii) amortization of
Indebtedness discount, (iv) losses and provisions for losses on properties, (v)
depreciation and amortization, (vi) the effect of any noncash charge resulting
from a change in accounting principles in determining Consolidated Net Income
for such period, (vii) amortization of deferred charges and (viii) the effect of
net losses of joint ventures in which the Company or any Subsidiary owns an
interest to the extent not requiring a use of cash, and (b) less amounts which
have been included for (i) gains from sales or dispositions of properties and
(ii) the effect of net income of joint ventures in which the Company or any
Subsidiary owns an interest to the extent not providing a source of cash.
"Consolidated Net Income" for any period means the amount of consolidated
net income (or loss) of the Company and its Subsidiaries for such period
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Indebtedness" of the Company or any Subsidiary means any indebtedness of
the Company or such Subsidiary, as applicable, whether or not contingent, in
respect of (a) borrowed money evidenced by bonds, notes, debentures or similar
instruments, (b) indebtedness secured by a mortgage, pledge, lien, charge,
encumbrance of any security interest existing on property owned by the Company
or such Subsidiary, (c) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance that constitutes an accrued expense or trade payable or (d) any
lease of property by the Company or such Subsidiary as lessee which is reflected
in the Company's consolidated balance sheet as a capitalized lease in accordance
with generally accepted accounting principles, in the case of items of
indebtedness under (a) through (c) above to the extent that any such items
(other than letters of credit) would appear as a liability on the Company's
consolidated balance sheet in accordance with generally accepted accounting
principles, and also includes, to the extent not otherwise included, any
obligation by the Company or such Subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than the
Company or any Subsidiary).
"Recourse Indebtedness" means Indebtedness, other than Secured Indebtedness
as to which Secured Indebtedness the liability of the obligor thereon is limited
to its interest in the collateral securing such Secured Indebtedness, provided
that no such Secured Indebtedness shall constitute Recourse Indebtedness by
reason of provisions therein for imposition of full recourse liability on the
obligor for certain wrongful acts, environmental liabilities, or other customary
exclusions from the scope of so-called "non-recourse" provisions.
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"Secured Indebtedness" means Indebtedness secured by any mortgage, lien,
charge, encumbrance, trust, deed, deed of trust, deed to secure debt, security
agreement, pledge, conditional sale or other title retention agreement,
capitalized lease, or other like agreement granting or conveying security title
to or a security interest in real property or other tangible assets. Secured
Indebtedness shall be deemed to be incurred (a) on the date the Company or any
Subsidiary creates, assumes, guarantees or otherwise becomes liable in respect
thereof if it is secured in the manner described in the preceding sentence on
such date or (b) on the date the Company or any Subsidiary first secures such
Indebtedness in the manner described in the preceding sentence if such
Indebtedness was not so secured on the date it was incurred.
"Subsidiary" means (a) a corporation, partnership, limited liability
company, trust, real estate investment trust or other entity a majority of the
voting power of the voting equity securities of which are owned, directly or
indirectly, by the Company or by one or more Subsidiaries of the Company; (b) a
partnership, limited liability company, trust, real estate investment trust or
other entity not treated as a corporation for federal income tax purposes the
majority of the value of the equity interests of which are owned, directly or
indirectly, by the Company or by one or more other Subsidiaries of the Company;
and (c) one or more corporations which, either individually or in the aggregate,
would be Significant Subsidiaries (as defined under Regulation S-X promulgated
under the Securities Act, except that the investment, asset and equity
thresholds for purposes of this definition shall be 5%), the majority of the
value of the equity interests of which are owned, directly or indirectly, by the
Company or by one or more Subsidiaries of the Company.
"Total Assets" as of any date means the sum of (a) Undepreciated Real Estate
Assets and (b) all other assets of the Company and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles (but excluding intangibles and straight-line rents receivable).
"Total Unencumbered Assets" means the sum of (a) those Undepreciated Real
Estate Assets which have not been pledged, mortgaged or otherwise encumbered by
the owner thereof to secure Indebtedness, excluding infrastructure assessment
bonds and (b) all other assets of the Company and its Subsidiaries determined in
accordance with generally accepted accounting principles (but excluding
intangibles and straight-line rents receivable) which have not been pledged,
mortgaged or otherwise encumbered by the owner thereof to secure Indebtedness.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization, determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Unsecured Indebtedness" means Indebtedness which is (a) not subordinated to
any other Indebtedness and (b) not secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of the properties
of the Company or any Subsidiary.
ADDITIONAL COVENANTS. Any additional or different covenants of the Company
with respect to any series of Debt Securities will be set forth in the
applicable Prospectus Supplement.
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
Indenture with respect to Debt Securities of any series: (a) failure to pay any
interest on any Debt Securities of that series when due, and continuance of such
failure for a period of 30 days; (b) failure to pay principal of or any premium
on any Debt Security of that series when due; (c) failure to deposit any sinking
fund payment, when due, in respect of any Debt Security of that series; (d)
failure to perform any other covenant of the Company in the Indenture (other
than a covenant included in the Indenture solely for the benefit of a series
other than that series), that has continued for 60 days after written notice has
been given by the Trustee, or the Holders of at least 25% in aggregate principal
amount of the Outstanding Debt Securities of that series, as
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provided in the Indenture; (e) failure to pay when due (subject to any
applicable grace period) the principal of, or acceleration of, any Recourse
Indebtedness of the Company, if, in the case of any such failure, such Recourse
Indebtedness has not been discharged or, in the case of any such acceleration,
such indebtedness has not been discharged or such acceleration has not been
rescinded or annulled, in each case within 10 days after written notice has been
given by the Trustee, or the Holders of at least 25% in aggregate principal
amount of the Outstanding Debt Securities of that series, as provided in the
Indenture, if the aggregate outstanding principal amount of such Recourse
Indebtedness under the instrument with respect to which such default or
acceleration has occurred exceeds $5 million; (f) certain events of bankruptcy,
insolvency or reorganization of the Company or any Significant Subsidiary or any
of their respective property; and (g) any other event of default provided with
respect to a particular series of Debt Securities (Section 501).
If an Event of Default (other than an Event of Default described in clause
(f) above) with respect to the Debt Securities of any series at the time
Outstanding shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series by notice as provided in the Indenture may declare the principal
amount of the Debt Securities of that series (or, in the case of any Debt
Security that is an Original Issue Discount Security or the principal amount of
which is not then determinable, such portion of the principal amount of such
Debt Security, or such other amount in lieu of such principal amount, as may be
specified in the terms of such Debt Security) to be due and payable immediately.
If an Event of Default described in clause (f) above with respect to the Debt
Securities of any series at the time Outstanding shall occur, the principal
amount of all the Debt Securities of that series (or, in the case of any such
Original Issue Discount Security or other Debt Security, such specified amount)
will automatically, and without any action by the Trustee or any Holder, become
immediately due and payable. After any such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of that series may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal (or other specified
amount), have been cured or waived as provided in the Indenture (Section 502).
For information as to waiver of defaults, see "--Modification and Waiver."
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable indemnity (Section 603). Subject to
such provisions for the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Debt Securities of that
series (Section 512).
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy thereunder, unless (a) such
Holder has previously given to the Trustee written notice of a continuing Event
of Default with respect to the Debt Securities of that series, (b) the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series have made written request, and such Holder or Holders have
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee and (c) the Trustee has failed to institute such proceeding, and has not
received from the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series a direction inconsistent with such
request, within 60 days after such notice, request and offer (Section 507).
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for the enforcement of payment of the principal of or any premium
or interest on such Debt Security on or after the applicable due date specified
in such Debt Security (Section 508).
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Within 120 days after the close of each fiscal year, the Company will be
required to furnish to the Trustee a statement by certain of the Company's
officers as to whether the Company, to their knowledge, is in default in the
performance or observance of any of the terms, provisions and conditions of the
Indenture and, if so, specifying all such known defaults (Section 1004).
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Outstanding Debt Securities of each series affected by such modification or
amendment; provided, however, that no such modification or amendment may,
without the consent of the Holder of each Outstanding Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Debt Security, (b) reduce the principal
amount of, or any premium or interest on, any Debt Security, (c) reduce the
amount of principal of an Original Issue Discount Security or any other Debt
Security payable upon acceleration of the Maturity thereof, (d) change the place
or currency of payment of principal of, or any premium or interest on, any Debt
Security, (e) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security, (f) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the Indenture, (g)
reduce the percentage in principal amount of Outstanding Debt Securities of any
series necessary for waiver of compliance with certain provisions of the
Indenture or for waiver of certain defaults or (h) modify such provisions with
respect to modification and waiver (Section 902).
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by the Company with certain
restrictive provisions of the Indenture (Section 1011). The Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
may waive any past default under the Indenture, except a default in the payment
of principal, premium or interest and certain covenants and provisions of the
Indenture that cannot be amended without the consent of the Holder of each
Outstanding Debt Security of such series affected (Section 513).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given or
taken any direction, notice, consent, waiver or other action under the Indenture
as of any date (a) the principal amount of an Original Issue Discount Security
that will be deemed to be Outstanding will be the amount of the principal
thereof that would be due and payable as of such date upon acceleration of the
Maturity thereof to such date and (b) if, as of such date, the principal amount
payable at the Stated Maturity of a Debt Security is not determinable (for
example, because it is based on an index), the principal amount of such Debt
Security deemed to be Outstanding as of such date will be an amount determined
in the manner prescribed for such Debt Security. Certain Debt Securities,
including those for whose payment or redemption money has been deposited or set
aside in trust for the Holders and those that have been fully defeased pursuant
to Section 1302, will not be deemed to be Outstanding (Section 101).
Except in certain limited circumstances, the Company will be entitled to set
any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give or take any
direction, notice, consent, waiver or other action under the Indenture, in the
manner and subject to the limitations provided in the Indenture. In certain
limited circumstances, the Trustee will be entitled to set a record date for
action by Holders. If a record date is set for any action to be taken by Holders
of a particular series, such action may be taken only by persons who are Holders
of Outstanding Debt Securities of that series on the record date. To be
effective, such action must be taken by Holders of the requisite principal
amount of such Debt Securities within a specified period following the record
date. For any particular record date, this period will be 180 days or such
shorter period as may be specified by the Company (or the Trustee, if it set the
record date), and may be shortened or lengthened (but not beyond 180 days) from
time to time (Section 104).
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Modifications and amendments of the Indenture may be made by the Company and
the Trustee without the consent of any Holders of Debt Securities for any of the
following purposes: (a) to evidence the succession of another person to the
Company and the assumption by such successor of the covenants of the Company in
the Indenture and the Debt Securities; (b) to add to the covenants of the
Company for the benefit of the Holders of all or any series of Debt Securities
or to surrender any right or power conferred upon the Company in the Indenture;
(c) to add events of default for the benefit of the Holders of all or any series
of Debt Securities; (d) to add to or change any provisions of the Indenture as
necessary to permit or facilitate the issuance of Debt Securities in
uncertificated form; (e) to add to, change or eliminate any of the provisions of
the Indenture with respect to one or more series of Debt Securities, so long as
the changes (i) do not (x) apply to any Debt Securities of any series created
prior to such modification or amendment and entitled to the benefit of such
provision or (y) modify the rights of the holder of any such Debt Security with
respect to such provision, or (ii) will only become effective when there is no
such Debt Security Outstanding; (f) to secure the Debt Securities; (g) to
establish the form or terms of Debt Securities of any series as permitted in the
Indenture; or (h) to provide for the acceptance of appointment by a successor
Trustee (Section 901).
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities (Section 1501). A meeting will be permitted to be called at any
time by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities, in any such
case upon notice given as provided in the Indenture (Section 1502). Except for
any consent that must be given by the Holder of each Debt Security affected by
certain modifications and amendments of the Indenture, any resolution presented
at a meeting or adjourned meeting duly reconvened at which a quorum is present
will be permitted to be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series;
provided, however, that, except as referred to above, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Debt Securities may be adopted at a meeting or adjourned meeting
duly reconvened at which a quorum is present by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding Debt
Securities. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities duly held in accordance with the Indenture will be binding on
all Holders of Debt Securities of such series. The quorum at any meeting called
to adopt a resolution, and at any reconvened meeting, will be Persons holding or
representing a majority in principal amount of the Outstanding Debt Securities;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the Holders of not less
than a specified percentage in principal amount of the Outstanding Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the Outstanding Debt Securities of such series
will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt Securities
affected thereby, or of the Holders of such series and one or more additional
series: (a) there shall be no minimum quorum requirement for such meeting and
(b) the principal amount of the Outstanding Debt Securities that vote in favor
of such request, demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other action has
been made, given or taken under the Indenture (Section 1504).
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect, at its option at any time, to have the provisions of Section
1302 of the Indenture, relating to defeasance and
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discharge of indebtedness, or Section 1303, relating to defeasance of certain
restrictive covenants in the Indenture, applied to the Debt Securities of any
series, or to any specified part of a series (Section 1301).
DEFEASANCE AND DISCHARGE
The Indenture provides that, upon the Company's exercise of its option (if
any) to have Section 1302 applied to any Debt Securities, the Company will be
discharged from all its obligations with respect to such Debt Securities (except
for certain obligations to exchange or register the transfer of Debt Securities,
to replace stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold moneys for payment in trust) upon the deposit in trust for
the benefit of the Holders of such Debt Securities of money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the Indenture and such Debt Securities. Such defeasance or discharge may occur
only if, among other things, the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling, or there has
been a change in tax law, in either case to the effect that Holders of such Debt
Securities will not recognize gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge were not to occur
(Sections 1302 and 1304).
DEFEASANCE OF CERTAIN COVENANTS
The Indenture provides that, upon the Company's exercise of its option (if
any) to have Section 1303 applied to any Debt Securities, the Company may omit
to comply with certain restrictive covenants, including those described under
"Certain Covenants," in the last sentence under "--Merger, Consolidation or
Sale" and any that may be described in the applicable Prospectus Supplement, and
the occurrence of certain Events of Default, which are described above in clause
(d) (with respect to such restrictive covenants) and clauses (e) and (g) under
"--Events of Default" and any that may be described in the applicable Prospectus
Supplement, will be deemed not to be or result in an Event of Default, in each
case with respect to such Debt Securities. The Company, in order to exercise
such option, will be required to deposit, in trust for the benefit of the
Holders of such Debt Securities, money or U.S. Government Obligations, or both,
which, through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of and any premium and interest on such Debt Securities on the
respective Stated Maturities in accordance with the terms of the Indenture and
such Debt Securities. The Company will also be required, among other things, to
deliver to the Trustee an Opinion of Counsel to the effect that Holders of such
Debt Securities will not recognize gain or loss for federal income tax purposes
as a result of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance were not
to occur. In the event the Company exercised this option with respect to any
Debt Securities and such Debt Securities were declared due and payable because
of the occurrence of any Event of Default, the amount of money and U.S.
Government Obligations so deposited in trust would be sufficient to pay amounts
due on such Debt Securities at the time of their respective Stated Maturities
but may not be sufficient to pay amounts due on such Debt Securities upon any
acceleration resulting from such Event of Default. In such case, the Company
would remain liable for such payments (Sections 1303 and 1304).
"U.S. Government Obligations" means securities which are (a) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (b) obligations of a person controlled or
supervised by and acting as a agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall
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also include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian of the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S.
Government Obligation evidenced by such depository receipt (Section 1304).
NOTICES
Notices to Holders of Debt Securities will be given by mail to the addresses
of such Holders as they may appear in the Security Register (Sections 101 and
106).
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes (Section 308).
NO CONVERSION RIGHTS
The Debt Securities will not be convertible into or exchangeable for any
stock of the Company or equity interest in the Company.
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DESCRIPTION OF STOCK
The following is a summary of certain features of the Company's stock. This
summary does not purport to be complete and is subject to and is qualified in
its entirety by reference to the Charter and Bylaws, copies of which are
exhibits to the Registration Statement of which this Prospectus is a part. See
"Available Information."
GENERAL
Under the Charter, the Company is authorized to issue a total of 200 million
shares of stock, consisting of 175 million shares of Common Stock, par value
$.001 per share, and 25 million shares of Preferred Stock, par value $.001 per
share. The Company is a Maryland corporation. Under Maryland law, stockholders
generally are not responsible for the corporation's debts or obligations.
COMMON STOCK
All the shares of Common Stock offered by this Prospectus will be duly
authorized, fully paid and nonassessable. They will also be subject to the
ownership and transfer restrictions contained in the Charter (described under
"--Restrictions on Ownership and Transfer").
Subject to the preferential rights of any other shares or series of stock
and the REIT ownership provisions set forth in the Charter, holders of shares of
Common Stock are entitled to receive dividends on shares if, as and when
authorized and declared by the Board out of assets legally available for
distribution. Under the MGCL, a dividend or other distribution may not be made
if after giving effect to it (a) the corporation would not be able to pay its
debts as they become due in the usual course of business or (b) the
corporation's total assets would be less than the corporation's total
liabilities plus (unless the corporation's charter provides otherwise, which the
Charter does not) the amount that would be needed, if the corporation were to be
dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of stockholders whose preferential rights upon dissolution are
superior to those receiving the distribution. Holders of shares of Common Stock
also are entitled to share ratably in the assets of the Company legally
available for distribution to its stockholders in the event of the Company's
liquidation, dissolution or winding-up after payment of, or adequate provision
for, all known debts and liabilities of the Company.
Subject to the REIT ownership provisions set forth in the Charter, each
outstanding share of Common Stock entitles the holder to one vote on all matters
submitted to a vote of stockholders, including the election of directors. Except
as otherwise required by law or except as provided with respect to the Series D
Preferred Stock or any other class or series of stock, the holders of shares of
Common Stock possess the exclusive voting power of the Company. There is no
cumulative voting for the election of directors of the Company, which means that
the holders of a majority of the outstanding shares of Common Stock will be able
to elect all the directors for whom such holders vote, and the holders of the
remaining shares of Common Stock will not be able to elect any directors. As
explained under "--Designated Preferred Stock," the holders of shares of Series
D Preferred Stock will have rights to elect directors under certain
circumstances.
Holders of shares of Common Stock have no conversion, sinking fund or
redemption rights or any preemptive rights to subscribe for any additional
securities of the Company. All shares of Common Stock have equal distribution,
liquidation and other rights, and have no preference or exchange rights.
Under the Maryland General Corporation Law (the "MGCL"), a corporation
generally cannot dissolve, amend its charter, merge, sell all or substantially
all of its assets, engage in a share exchange or engage in similar transactions
outside the ordinary course of business unless approved by the affirmative vote
of holders of at least two-thirds of the shares entitled to vote on the matter
or such lesser percentage (but not less than a majority of all of the votes to
be cast on the matter) as is set forth in the corporation's charter. The Charter
provides that, subject to the rights of any series of Preferred Stock then
outstanding,
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such extraordinary transactions may be approved by the affirmative vote of a
majority of all of the votes entitled to be cast on such matters.
The transfer agent and registrar for the shares of Common Stock is First
Chicago Trust Company of New York.
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which a
Prospectus Supplement may relate. Specific terms of any series of Preferred
Stock offered by a Prospectus Supplement will be described in the Prospectus
Supplement relating to such series. The description set forth below is subject
to and qualified in its entirety by reference to the articles supplementary
establishing a particular series of Preferred Stock, which will be filed with
the SEC in connection with the offering of such series.
Under the Charter, the Board is authorized, without further stockholder
action, to provide for the issuance of up to 25 million shares of Preferred
Stock in one or more series (of which 2,300,000 shares are currently classified
as Series D Preferred Stock). Shares of Preferred Stock may be issued from time
to time, in one or more series, as authorized by the Board, subject to the
rights of holders of any series of Preferred Stock then outstanding. Prior to
the issuance of shares of each series, the Board is required by the MGCL and the
Charter to fix (subject to the express terms of any class or series of the
Company stock outstanding at the time and the ownership and transfer
restrictions contained in the Charter, described under "--Restrictions on
Transfer and Ownership") the terms, preferences, conversion, other rights,
voting powers, restrictions, limitations as to dividends or other distributions,
qualifications and terms and conditions of redemption for each series. Such
rights, powers, restrictions and limitations could include the right to receive
specified dividend payments and payments on liquidation prior to any such
payments being made to the holders of shares of Common Stock. The Board could
also authorize the issuance of shares of Preferred Stock with terms and
conditions that could have the effect of discouraging a takeover or other
transaction in which holders of shares of Common Stock might receive a premium
for their shares over the then market price of such shares.
The rights, preferences, privileges and restrictions, including dividend
rights, voting rights, conversion rights, terms of redemption and liquidation
preferences, of the Preferred Stock of each series will be fixed or designated
by the Board pursuant to the articles supplementary. The specific terms of a
particular series of Preferred Stock offered hereby will be described in a
Prospectus Supplement relating to such series and will include the following:
(a) the maximum number of shares to constitute the series and the distinctive
designation thereof; (b) the annual dividend rate, if any, on shares of the
series (or the method of calculating such rate), whether such rate is fixed or
variable or both, the date or dates from which dividends will begin to accrue or
accumulate, and whether dividends will be cumulative; (c) whether the shares of
the series will be redeemable and, if so, the price at and the terms and
conditions on which such shares may be redeemed, including the time during which
such shares may be redeemed and any accumulated dividends thereon that the
holders of such shares shall be entitled to receive upon the redemption thereof;
(d) the liquidation preference, if any, applicable to shares of the series; (e)
whether the shares of the series will be subject to operation of a retirement or
sinking fund and, if so, the extent to and manner in which any such fund shall
be applied to the purchase or redemption of such shares for retirement or for
other corporate purposes, and the terms and provisions relating to the operation
of such fund; (f) the terms and conditions, if any, on which the shares of the
series will be convertible into, or exchangeable for, shares of any other class
or classes of capital stock of the Company or another corporation or any series
of any other class or classes, or of any other series of the same class,
including the price or rate of conversion or exchange and the method, if any, of
adjusting the same; (g) the voting rights, if any, on the shares of the series;
and (h) any other preferences and relative, participating, optional or other
special rights or qualifications, limitations or restrictions thereof.
The Preferred Stock will, when issued, be fully paid and nonassessable.
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The transfer agent, registrar and dividend disbursement agent for a series
of Preferred Stock will be selected by the Company and will be described in the
applicable Prospectus Supplement. The registrar for shares of Preferred Stock
will send notices to stockholders of any meetings at which holders of the
Preferred Stock have the right to elect directors of the Company or to vote on
any other matter.
DESIGNATED PREFERRED STOCK
In connection with the formation and initial capitalization of the Company,
the Company issued a total of one million shares of Series A Preferred to the
Merged Trusts and Trust 83. These shares were cancelled or redeemed in
connection with the Merger and no shares of the Series A Preferred Stock are
outstanding.
The Company issued a total of 2,272,727 shares of Series B Preferred Stock
for a total purchase price of $35 million or $15.40 per share on February 23,
1996. On June 29, 1998, Ameritech and OTR converted all of the outstanding
shares of Series B Preferred Stock into 2,272,727 shares of Common Stock.
The following summary sets forth the material terms and provisions of the
Series D Preferred Stock, and is qualified in its entirety by reference to the
provisions of the Articles Supplementary relating to the Series D Preferred
Stock (the "Articles Supplementary") and the Company's Charter, which are
incorporated by reference herein.
The Company issued 2,000,000 shares of Series D Preferred Stock on June 30,
1998 in a public offering. The Company also granted the underwriters in the
Series D Preferred Stock offering an option to purchase up to 300,000 additional
shares of Series D Preferred Stock at the initial public offering price of
$25.00 per share less the underwriting discount, solely to cover
over-allotments, if any. The underwriters' over-allotment option expires on July
30, 1998.
The holders of the Series D Preferred Stock have no preemptive rights with
respect to any shares of the stock of the Company or any other securities of the
Company convertible into, or carrying rights or options to purchase, any such
shares. The Series D Preferred Stock is not subject to any sinking fund or other
obligation of the Company to redeem or retire the Series D Preferred Stock.
The transfer agent, registrar and dividend disbursing agent for the Series D
Preferred Stock is First Chicago Trust Company of New York.
With respect to payment of dividends and amounts upon liquidation,
dissolution or winding up, the Series D Preferred Stock ranks senior to the
Common Stock. While any shares of Series D Preferred Stock are outstanding, the
Company may not authorize, create or increase the authorized amount of any class
of security that ranks senior to the Series D Preferred Stock with respect to
the payment of dividends or amounts payable upon liquidation, dissolution or
winding up, or any class of security convertible into shares of such a class,
without the consent of the holders of at least two-thirds of the outstanding
Series D Preferred Stock and Parity Shares (as defined below), voting as a
single class. However, the Company may create additional classes of other stock,
increase the authorized number of shares of Preferred Stock or issue series of
Preferred Stock ranking on a parity with the Series D Preferred Stock with
respect, in each case, to the payment of dividends and amounts upon liquidation,
dissolution and winding up (a "Parity Share") without the consent of any holder
of Series D Preferred Stock.
Holders of the Series D Preferred Stock are entitled to receive, when and as
declared by the Board, out of funds legally available for the payment of
dividends, cumulative preferential cash dividends at the rate of 8.75% of the
liquidation preference per annum (equivalent to $2.1875 per share per annum).
Such dividends will be cumulative from the date of original issue and payable
quarterly in arrears on the last calendar day (or, if such day is not a business
day, the next business day) of each January, April, July and October (each, a
"Dividend Payment Date"). Any dividends payable on the Series D Preferred Stock
for any partial dividend period will be computed on the basis of the actual
number of days in such period. Dividends will be payable to holders of record as
they appear in the records of the Company at the close of business on the
applicable record date, which will be the date designated as such by the Board
of Directors
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of the Company that is not more than 50 nor less than 10 days prior to such
dividend Payment Date (each, a "Dividend Record Date"). Accrued and unpaid
dividends for any past dividend periods may be declared and paid at any time and
for such interim periods to holders of record on the applicable Dividend Record
Date. Any dividend payment made on the Series D Preferred Stock will first be
credited against the earliest accrued but unpaid dividend due with respect to
the Series D Preferred Stock that remains payable.
Dividends on Series D Preferred Stock will accrue whether or not the Company
has earnings, whether or not there are funds available for the payment of such
dividends and whether or not such dividends are declared. No interest, or sum of
money in lieu of interest, will be payable in respect of any dividend payment or
payments on the Series D Preferred Stock that may be in arrears. Holders of
Series D Preferred Stock will not be entitled to any dividends, whether payable
in cash, property or shares of stock, in excess of the full cumulative
dividends, as described herein, on the Series D Preferred Stock.
If, for any taxable year, the Company elects to designate as "capital gain
dividends" (as defined in Section 857 of the Code) any portion (the "Capital
Gains Amount") of the dividends (within the meaning of the Code) paid or made
available for the year to holders of all classes of stock (the "Total
Dividends"), then the portion of the Capital Gains Amount that will be allocable
to holders of Series D Preferred Stock will be in the same portion that the
dividends paid or made available to the holders of Series D Preferred Stock for
the year bears to the Total Dividends.
Except as provided in the next sentence, no dividends will be declared or
paid on any Parity Shares unless full cumulative dividends have been declared
and pair or are contemporaneously declared and funds sufficient for the payment
thereof set aside for such payment on the Series D Preferred Stock for all prior
dividend periods. If accrued dividends on the Series D Preferred Stock for all
prior dividend periods have not been paid in full, then any dividend declared on
the Series D Preferred Stock and on any Parity Shares for any dividend period
will be declared ratably in proportion to accrued and unpaid dividends on the
Series D Preferred Stock and such Parity Shares.
The Company will not (a) declare, pay or set apart funds for the payment of
any dividend or other distribution with respect to any Junior Shares (as defined
below) or (b) redeem, purchase or otherwise acquire for consideration any Junior
Shares through a sinking fund or otherwise (other than a redemption or purchase
or other acquisition of Common Stock made for purposes of any employee incentive
or benefit plan of the Company or any subsidiary), unless (i) all cumulative
dividends with respect to the Series D Preferred Stock and any Parity Shares at
the time such dividends are payable have been paid or declared and funds have
been set apart for payment of such dividends and (ii) sufficient funds have been
paid or declared and set apart for the payment of the dividend for the current
dividend period with respect to the Series D Preferred Stock and any Parity
Shares.
As used herein, (a) the term "dividend" does not include dividends or other
distributions payable solely in Fully Junior Shares, or in options, warrants or
rights to subscribe for or purchase any Fully Junior Shares, (b) the term
"Junior Shares" means the Common Stock and any other class or series of shares
of stock of the Company now or hereafter issued and outstanding that ranks
junior to the Series D Preferred Stock as to the payment of dividends or in the
distribution of assets or amounts upon liquidation, dissolution and winding up
and (c) the term "Fully Junior Shares" means Junior shares that rank junior to
the Series D Preferred Stock both as to the payment of dividends and
distribution of assets upon liquidation, dissolution and winding up.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, the holders of Series D Preferred Stock will be entitled to receive
out of assets of the Company legally available for distribution to stockholders
a liquidation preference of $25.00 per share of Series D Preferred Stock, plus
an amount per share of Series D Preferred Stock equal to all dividends (whether
or not earned or declared) accrued and unpaid thereon to the date of final
distribution to such holders, and no more.
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Until the holders of Series D Preferred Stock and Parity Shares have been
paid their liquidation preference in full, no payment will be made to any holder
of Junior Shares upon the liquidation, dissolution or winding up of the Company.
If upon any liquidation, dissolution or winding up of the Company, the assets of
the Company, or proceeds thereof, distributable among the holders of the Series
D Preferred Stock are insufficient to pay in full the amount payable upon
liquidation with respect to the Series D Preferred Stock and any other Parity
Shares, then such assets, or the proceeds thereof, will be distributed among the
holders of Series D Preferred Stock and any such Parity Shares ratably in
accordance with the respective amounts which would be payable on such Series D
Preferred Stock and any such Parity Shares if all amounts payable thereon were
paid in full. Neither a consolidation or merger of the Company with another
entity, statutory share exchange by the Company nor a sale, lease or transfer of
all or substantially all of the Company's assets will be considered a
liquidation, dissolution or winding up, voluntary or involuntary, of the
Company.
The Series D Preferred Stock is not redeemable by the Company prior to June
30, 2003. On and after June 30, 2003, the Company, at its option, upon not less
than 30 or more than 90 days' written notice, may redeem the Series D Preferred
Stock, in whole or in part, at any time or from time to time, for cash at a
redemption price of $25.00 per share, plus accumulated, accrued and unpaid
dividends thereon to the date fixed for redemption, without interest. The
redemption price of the Series D Preferred Stock (other than the portion thereof
consisting of accrued and unpaid dividends) is payable solely out of proceeds
from the sale of other stock of the Company, which may include Common Stock,
preferred stock, depositary shares, interests, participations or other ownership
interests in the Company however designated (other than debt securities
converted into or exchangeable for capital stock), and any rights, warrants or
options to purchase any thereof. If fewer than all of the outstanding Series D
Preferred Stock are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares held
by such holders (with adjustments to avoid redemption of fractional shares), by
lot or by any other method determined by the Company in its sole discretion to
be equitable.
Unless full cumulative dividends on all Series D Preferred Stock and Parity
Shares have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, no Series D Preferred
Stock or Parity Shares may be redeemed or purchased by the Company except
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding Series D Preferred Stock or Parity Shares, as the case may be.
Notice of redemption will be mailed at least 30 days but not more than 90
days before the redemption date to each holder of record of Series D Preferred
Stock at the address shown on the stock transfer books of the Company. Each
notice shall state: (a) the redemption date; (b) the number of Series D
Preferred Stock to be redeemed; (c) the redemption price per share; (d) the
place or places where certificates for Series D Preferred Stock are to be
surrendered for payment of the redemption price; and (e) that dividends on the
Series D Preferred Stock will cease to accrue on such redemption date. If less
than all Series D Preferred Stock is to be redeemed, the notice mailed to each
such holder thereof shall also specify the number of shares of Series D
Preferred Stock to be redeemed from such holder. If notice of redemption for any
Series D Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Company in trust for the benefit of the
holders of Series D Preferred Stock so called for redemption, then from and
after the redemption date, dividends will cease to accrue on such Series D
Preferred Stock, such Series D Preferred Stock shall no longer be deemed
outstanding and all rights of the holders of such shares will terminate, except
the right to receive the redemption price.
The holders of Series D Preferred Stock at the close of business on a
Dividend Record Date will be entitled to receive the dividends payable with
respect to such Series D Preferred Stock on the corresponding Dividend Payment
Date notwithstanding the redemption thereof between such Dividend Record Date
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and the corresponding Dividend Payment Date or the Company's default in the
payment of the dividend due. Except as provided above, the Company will make no
payment or allowance for unpaid dividends, whether or not in arrears, on Series
D Preferred Stock which have been called for redemption.
The Series D Preferred Stock has no stated maturity and is not subject to
any sinking fund or mandatory redemption.
Except as indicated below, or except as otherwise from time to time required
by applicable law, the holders of Series D Preferred Stock will have no voting
rights.
If six or more quarterly dividends payable on the Series D Preferred Stock
or any Parity Shares are in arrears, whether or not earned or declared, the
number of directors then constituting the Board will be increased by two, and
the holders of Series D Preferred Stock, voting together as a class with the
holders of any other series of Parity Shares, will have the right to elect two
additional directors to serve on the Company's Board at any annual meeting of
stockholders or a properly called special meeting of the holders of the voting
Parity Shares until all such dividends and dividends for the current quarterly
period on the Series D Preferred Stock and such other voting Parity Shares have
been declared and paid or set aside for payment. Such voting rights will
terminate when all such accrued and unpaid dividends have been declared and paid
or set aside for payment. The term of office of all directors so elected will
terminate with the termination of such voting rights.
The approval of at least two-thirds of the outstanding shares of Series D
Preferred Stock and all other Parity Shares similarly affected, voting as a
single class, is required in order to (a) amend the Company's Charter to affect
materially and adversely the rights, preferences or voting power of the holders
of the Series D Preferred Stock, (b) enter into a share exchange that affects
the Series D Preferred Stock or Parity Shares, or consolidate the Company with
or merge the Company with another entity, unless in each such case each share of
Series D Preferred Stock remains outstanding without a material adverse change
to its terms and rights or is converted into or exchanged for preferred stock of
the surviving entity having preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption thereof identical to that of the Series D Preferred
Stock (except for changes that do not materially and adversely affect the
holders of Series D Preferred Stock), or (c) authorize, reclassify, create or
increase the authorized amount of any shares of any class, or any security
convertible into shares of any class, having rights senior to the Series D
Preferred Stock with respect to the payment of dividends or amounts upon
liquidation, dissolution or winding up of the Company. However, the Company may
create additional classes of Parity Shares and Junior Shares, increase the
authorized number of Parity Shares and Junior Shares and issue additional series
of Parity Shares and Junior Shares without the consent of any holder of Series D
Preferred Stock.
Except as provided above and as required by applicable law, the holders of
Series D Preferred Stock are not entitled to vote on any merger or consolidation
involving the Company, on any share exchange or on a sale of all or
substantially all of the assets of the Company.
The Series D Preferred Stock are not convertible into or exchangeable for
any other property or securities of the Company at the option of the holder.
For the Company to qualify as a REIT under the Code, no more than 50% in
value of its outstanding stock may be owned, directly or indirectly, by five or
fewer "individuals" during the last half of a full taxable year or during a
proportionate part of a shorter taxable year. See "--Restrictions on Ownership
and Transfer." Under the constructive ownership provisions of the Code, stock
owned by an entity, including a corporation, life insurance company, mutual fund
or pension trust, is treated as owned by the ultimate individual beneficial
owners of the entity. Because the Company intends to maintain its qualification
as a REIT, the Company's Charter contains certain restrictions on the ownership
and transfer of capital stock, including the Series D Preferred Stock, intended
to assist the Company in complying with these requirements. For a complete
description of these restrictions, see "--Restrictions on Ownership and
Transfer."
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<PAGE>
Subject to certain exceptions specified in the Company's Charter, no holder
may own, or be deemed to own by virtue of certain attribution provisions of the
Code, more than 8.5% of any class or series of Preferred Stock. The Board has
waived this restriction with respect to the acquisition of Series D Preferred
Stock for a holder who is not an "individual" within the meaning of Section
542(a)(2) of the Code, so long as, through such holder's ownership of such
Series D Preferred Stock, (a) no "individual" would be considered the beneficial
owner of more than 8.5% of the Series D Preferred Stock and (b) the Company
would not be deemed to own, actually or constructively, more than a 9.8%
interest (as set forth in Section 856(h)(3) of the Code) in any tenant of the
Company. If a holder were to acquire more than 8.5% of the Series D Preferred
Stock and such holder did not meet the criteria set forth in the preceding
sentence, such holder's shares of Series D Preferred Stock would be subject to
the provisions in the Charter relating to a violation of the ownership limits as
under the caption "--Restrictions on Ownership and Transfer."
RESTRICTIONS ON OWNERSHIP AND TRANSFER
For the Company to qualify as a REIT under the Code, beginning with calendar
year 1996, generally not more than 50% of the value of its outstanding stock may
be owned, directly or indirectly, by five or fewer individuals (as defined in
the Code to include certain entities), and its outstanding stock must be
beneficially owned by at least 100 persons. See "Federal Income Tax
Considerations--REIT Qualification" To help the Company meet these requirements
and otherwise maintain its REIT status, the Charter includes three basic
protective provisions affecting the ownership and transfer of the Company's
issued and outstanding shares of any class or series of Common Stock or
Preferred Stock ("Equity Stock"): (a) a general prohibition against actual or
constructive ownership by any person (other than persons designated by the Board
as "Excepted Holders", described further below) of more than 8.5% of the lesser
of the number or value of the outstanding shares of any class or series of
Equity Stock; (b) a prohibition against ownership of Equity Stock that would
cause the Company to be "closely held" or to otherwise fail to qualify as a REIT
(such as ownership that would result in the Company being treated as owning an
interest in a tenant if income derived by the Company from that tenant would
cause the Company to fail to satisfy any of the REIT gross income requirements);
and (c) a prohibition against transfers that would result in the Equity Stock
being owned by less than 100 persons. In addition, in January, 1996, the Company
issued shares of Common Stock that, prior to the end of that month, were held by
100 individuals in order to meet the 100-person requirement.
These ownership restrictions took effect on February 23, 1996 and may be
terminated if the Board determines that it is no longer in the best interests of
the Company to attempt to, or continue to, qualify as a REIT or that compliance
with the ownership limits and restrictions on transfer is no longer required in
order for the Company to qualify as a REIT.
These restrictions on ownership and transfer may have the effect of
precluding acquisition of control of the Company or otherwise limit the
opportunity for stockholders to receive a premium for their shares of Common
Stock that might otherwise exist if an investor attempted to assemble a block of
shares of Common Stock in excess of the 8.5% ownership limit or the higher
ownership limits set for certain stockholders.
TRANSFERS IN TRUST. The Charter provides that, upon any attempted transfer
of Equity Stock (including warrants or options to acquire Equity Stock) that
would cause any person to be treated as owning Equity Stock in violation of the
ownership restrictions (other than the prohibition against transfers that would
result in less than 100 owners), the number of shares that would cause the
violation are automatically transferred to a trustee for the benefit of a
charitable beneficiary as "Shares-in-Trust." The person who otherwise would have
been considered the owner (the "Prohibited Owner") will have no rights or
economic interest in those shares. For these purposes, potentially violative
"ownership" is evaluated by taking into account the broad constructive ownership
rules of Sections 544 and 318 of the Code, with certain modifications. In
addition, a "transfer" that is subject to these restrictions includes any
issuance,
24
<PAGE>
sale, transfer, gift, assignment, devise or other disposition as well as any
other event that causes any person to have or acquire ownership (applying the
constructive ownership rules) of Equity Stock.
The trustee is entitled to vote all Shares-in-Trust and to receive all
distributions on Shares-in-Trust, and will hold such distributions for the
benefit of the charitable beneficiary. If any distributions with respect to
Shares-in-Trust are paid to the Prohibited Owner before the Company discovers
the violation of the ownership limit, the Prohibited Owner must pay that amount
to the trustee. Distributions on Shares-in-Trust will be used by the trustee
first to pay any expenses of the trust, second to pay any expenses of the
Company incurred in connection with the trust and third to pay any excess to the
charitable beneficiary. The Prohibited Owner is not to receive any benefit from
distributions.
The trustee is obligated to sell the Shares-in-Trust promptly to a person
who would not cause a violation of the ownership restrictions (at which time the
shares will cease to be Shares-in-Trust) and to distribute the net sale proceeds
first to pay any expenses of the trust, second to pay any expenses of the
Company incurred in connection with the trust, third to pay the Prohibited Owner
an amount intended to ensure that the Prohibited Owner will not realize any
appreciation in value of the shares and fourth to pay any excess to the
charitable beneficiary. If a Prohibited Owner sells Shares-in-Trust before the
Company discovers the transfer, such shares are deemed to have been sold on
behalf of the trust. To the extent that the Prohibited Owner received more in
that sale than the Prohibited Owner would otherwise be entitled to receive under
these provisions, the excess must immediately be delivered to the trustee.
COMPANY PURCHASE RIGHT. The Company also will have the right to purchase
all or any portion of the Shares-in-Trust, and the Shares-in-Trust are deemed to
have been offered to the Company, at the lesser of: (a) the price per share paid
for such shares in the transaction that created the Shares-in-Trust (or if no
price was paid, the market price at the time of that event); and (b) the market
price on the date the Company or its designee accepts the offer. This purchase
right exists for a period of 90 days after the later of: (a) the date of the
purported transfer that created the Shares-in-Trust, if the Company receives
notice of the event; and (b) the date the Company determines in good faith that
a purported transfer creating Shares-in-Trust has occurred, if the Company does
not receive notice of the event. The Company may not, however, exercise this
right after the trustee has sold the Shares-in-Trust to a person whose ownership
will not cause a violation of the ownership restrictions.
REPORTING OF TRANSFERS AND OWNERSHIP. To assist in the enforcement of the
ownership restrictions, the Charter requires any person who acquires or attempts
to acquire Equity Stock in violation of the ownership restrictions (or who would
own shares of Equity Stock but for the automatic transfer to the trust) to give
the Company immediate written notice of that event. In the case of a proposed or
attempted violative transfer, the purported transferee must give at least 15
days' prior written notice of the event and provide any other information the
Company requests in order to determine whether such transfer affects the
Company's REIT status.
In addition, the Charter generally requires every person who owns more than
5% (or such lower percentage as is required under the applicable Treasury
Regulations) of the number or value of the outstanding shares of any class or
series of the Equity Stock to give the Company written notice, within 30 days
after the close of each taxable year, stating the owner's name and address, the
number of shares of each class or series of Equity Stock owned and a description
of how the shares are held. These owners must generally provide any additional
information the Company requests in order to determine whether such ownership
affects the Company's REIT status and to ensure compliance with the ownership
restrictions. All remaining owners must generally provide ownership information
upon request. The Charter allows the Board to determine the information that
must be delivered by each owner of Equity Stock.
TRANSFERS VOID. The Charter also provides that if, for any reason, a
transfer to the trust described above would not effectively prevent the
Prohibited Owner from violating the ownership restrictions, then
25
<PAGE>
the purported transfer is void ab initio and the Prohibited Owner does not
acquire any rights in the excess Equity Stock.
EXCEPTED HOLDERS. In order to permit ownership in excess of the specified
8.5% ownership limit for persons who will not jeopardize the Company's REIT
status, the Charter permits the Board to designate certain "Excepted Holders."
Excepted Holders must supply appropriate representations and undertakings
designed to protect the Company's REIT status (such as information establishing
that the Excepted Holder is treated as a "look-through" entity in applying the
REIT stock ownership tests and that the deemed ownership of the Company shares
through the entity will be appropriately dispersed so as not to jeopardize the
Company's REIT status). Other than the general Excepted Holder provision with
respect to holders of Series D Preferred Stock that are not individuals as
described under "--Designated Preferred Stock" above, each Excepted Holder will
be subject to a separate ownership limit as specified by the Board.
Other than any entities that may hold in excess of 8.5% of the outstanding
Series D Preferred Stock, the only current Excepted Holders (and their
respective Excepted Holder Limits for Common Stock) are Ameritech (29%),
Prudential (29%), Hunt (23.7%), USAA (20%), OTR (8.5%), and Morgan Stanley
(1,600,000 shares), six of the principal shareholders of the Company. Ameritech,
Prudential, Hunt, USAA, OTR and Morgan Stanley have entered into separate
"Excepted Holder Agreements" with the Company under which they have given
representations and undertakings designed to protect the Company's REIT status.
Prudential has represented and covenanted to the Company that the shares that it
beneficially owns, including shares held on behalf of certain insurance company
separate accounts, will be treated as being held proportionately by its
policyholders. USAA has represented and covenanted to the Company that shares
that it owns will be treated as held proportionately by the shareholders of its
ultimate parent corporation and that no individual will be treated as owning
more than the "basic" 8.5% ownership limit. Hunt's shares are held by a
partnership that also has represented and covenanted to the Company that the
shares it owns will be held so that no individual will be treated as owning more
than the basic 8.5% ownership limit, except that up to 15.3% of the lesser of
the number or value of any outstanding class of Equity Stock may be treated as
owned by one individual and such individual's family as defined in Code Section
544(a)(2). Accordingly, under the basic 8.5% ownership limit and the existing
Excepted Holder Limits, no five or fewer individuals would be permitted to own
more than 49.3% of the outstanding Equity Stock. One individual, owning through
Hunt, may own up to 15.3%.
The Excepted Holder Agreements with Ameritech and OTR previously permited
Ameritech and OTR to own up to 100% of the outstanding shares of Series B
Preferred Stock and currently permit Ameritech to own up to 29% of the
outstanding shares of Common Stock and OTR to own up to 8.5% of the outstanding
shares of Common Stock. The Excepted Holder Agreement with Morgan Stanley
permits Morgan Stanley acting on its own behalf and on behalf of its clients
accounts over which it has investment discretion to own shares of Common Stock
equal to the greater of 1,600,000 shares or 8.5% of the outstanding shares of
Common Stock. These agreements and the Hunt and USAA Excepted Holder Agreement
also provide for certain adjustments to the ownership limits if the Company
engages in certain types of redemptions or repurchases of Common Stock.
Ameritech and OTR have represented and covenanted that they are "qualified
trusts" entitled to "look-through" treatment in applying the REIT ownership
restrictions and that none of their beneficiaries has been treated as owning a
significant portion of the shares it owns.
Under the Excepted Holder Agreements, the Excepted Holders have made
representations with respect to their actual or constructive ownership of
interests in tenants of the Company. These representations are designed to
assist the Company to qualify as a REIT. A breach of any of these
representations, except as determined by the Board with respect to a particular
Excepted Holder, may result in certain shares of Equity Stock held by such
Excepted Holder becoming Shares-in-Trust. The Excepted Holder Agreement entered
into with Prudential and Ameritech provide that a tenant ownership issue of this
type will be resolved other than through the creation of Shares-in-Trust.
26
<PAGE>
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The Company has adopted a dividend reinvestment and stock purchase plan
designed to provide holders of Common Stock with a convenient and economical
means to reinvest all or a portion of their cash dividends in shares of Common
Stock and to acquire additional shares of Common Stock through voluntary
purchases. First Chicago Trust Company of New York, which serves as the
Company's transfer agent, administers the dividend reinvestment and stock
purchase plan.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock or Common Stock. Warrants may be issued independently or
together with Debt Securities, Preferred Stock, or Common Stock offered by any
Prospectus Supplement and may be attached to or separate from any such Offered
Securities. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Warrant Agent"). The Warrant Agent
will act solely as an agent of the Company in connection with the Warrants and
will not assume any obligation or relationship of agency or trust for or with
any holders or beneficial owners of Warrants. The following summary of certain
provisions of the Warrants does not purport to be complete and is subject to,
and qualified in its entirety by reference to, the provisions of the Warrant
Agreement that will be filed with the SEC in connection with the offering of
such Warrants.
DEBT WARRANTS
The Prospectus Supplement relating to a particular issue of Debt Warrants
will describe the terms of such Debt Warrants, including the following: (a) the
title of such Debt Warrants; (b) the offering price of such Debt Warrants, if
any; (c) the aggregate number of such Debt Warrants; (d) the designation and
terms of the Debt Securities purchasable upon exercise of such Debt Warrants;
(e) if applicable, the designation and terms of the Debt Securities with which
such Debt Warrants are issued and the number of such Debt Warrants issued with
each such Debt Security; (f) if applicable, the date from and after which such
Debt Warrants and any Debt Securities issued therewith will be separately
transferable; (g) the principal amount of Debt Securities purchasable upon
exercise of a Debt Warrant and the price at which such principal amount of Debt
Securities may be purchased upon exercise (which price may be payable in cash,
securities, or other property); (h) the date on which the right to exercise such
Debt Warrants shall commence and the date on which such right shall expire; (i)
if applicable, the minimum or maximum amount of such Debt Warrants that may be
exercised at any one time; (j) whether the Debt Warrants represented by the Debt
Warrant certificates or Debt Securities that may be issued upon exercise of the
Debt Warrants will be issued in registered or bearer form; (k) information with
respect to book-entry procedures, if any; (l) the currency or currency units in
which the offering price, if any, and the exercise price are payable; (m) if
applicable, a discussion of material United States federal income tax
considerations; (n) the antidilution provisions of such Debt Warrants, if any;
(o) the redemption or call provisions, if any, applicable to such Debt Warrants;
and (p) any additional terms of the Debt Warrants, including terms, procedures,
and limitations relating to the exchange and exercise of such Debt Warrants.
STOCK WARRANTS
The Prospectus Supplement relating to any particular issue of Preferred
Stock Warrants or Common Stock Warrants will describe the terms of such
Warrants, including the following: (a) the title of such Warrants; (b) the
offering price for such Warrants, if any; (c) the aggregate number of such
Warrants; (d) the designation and terms of the Common Stock or Preferred Stock
purchasable upon exercise of such Warrants; (e) if applicable, the designation
and terms of the Offered Securities with which such Warrants are issued and the
number of such Warrants issued with each such Offered Security; (f) if
applicable, the date from and after which such Warrants and any Offered
Securities issued therewith will be separately transferable; (g) the number of
shares of Common Stock or Preferred Stock purchasable upon exercise of
27
<PAGE>
a Warrant and the price at which such shares may be purchased upon exercise
(which price may be payable in cash, securities, or other property); (h) the
date on which the right to exercise such Warrants shall commence and the date on
which such right shall expire; (i) if applicable, the minimum or maximum amount
of such Warrants that may be exercised at any one time; (j) the currency or
currency units in which the offering price, if any, and the exercise price are
payable; (k) if applicable, a discussion of material United States federal
income tax considerations; (l) the antidilution provisions of such Warrants, if
any; (m) the redemption or call provisions, if any, applicable to such Warrants;
and (n) any additional terms of the Warrants, including terms, procedures, and
limitations relating to the exchange and exercise of such Warrants.
OUTSTANDING WARRANTS
The Company issued 553,000 Merger Warrants on April 8, 1996. Each Merger
Warrant entitles the holder to receive one share of Common Stock upon its
exercise. The Merger Warrants are listed for trading on the American Stock
Exchange. The Merger Warrants are exercisable during the period May 23, 1997
through February 24, 1999. The exercise price of the Merger Warrants is $16.23
(the average of the closing prices of the Common Stock for the first 20 trading
days after the Merger).
The exercise price of the Merger Warrants and the number of shares of Common
Stock issuable upon exercise of the Merger Warrants are subject to adjustment in
the event of stock dividends, stock splits, subdivisions, reclassifications,
reorganizations, consolidations and mergers. If a holder of Merger Warrants
fails to exercise his or her Merger Warrants before their expiration, those
warrants will expire and the holder will have no further rights with respect to
Merger Warrants. A holder of Merger Warrants will not have any rights,
privileges or liabilities of a stockholder of the Company prior to exercise of
the Merger Warrants, including the rights to vote and to receive distributions.
On February 23, 1996, the Company issued a warrant to purchase shares of
Common Stock to USAA (the "USAA Warrant"). The USAA Warrant was issued as
consideration for the grant by USAA to the Company of the USAA Option. The USAA
Warrant has an exercise price of $14.60 per share and covers 184,900 shares of
Common Stock. On April 3, 1966, USAA sold the USAA Warrant to an affiliate of
Morgan Stanley for $300,000.
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<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder and
relationship, if any, with the Company and (a) the number of shares of Common
Stock beneficially owned by each Selling Stockholder as of July 1, 1998,
(assuming no shares have been sold under this Prospectus as of such date), (b)
the maximum number of shares of Common Stock which may be offered for the
account of such Selling Stockholder under the Prospectus, and (c) the amount and
percentage of Common Stock to be owned by the Selling Stockholder assuming the
sale of all the Common Stock which may be offered hereunder.
<TABLE>
<CAPTION>
AMOUNT AND
PERCENTAGE OF
SHARES OF MAXIMUM COMMON STOCK
COMMON STOCK NUMBER OF SHARES BENEFICIALLY OWNED
BENEFICIALLY OF COMMON STOCK AFTER THE
OWNED PRIOR TO WHICH MAY BE OFFERING(1)
NAME OF SELLING STOCKHOLDER AND RELATIONSHIP TO COMPANY OFFERING SOLD HEREUNDER AMOUNT - %
- ---------------------------------------------------------- -------------- ----------------- -------------------
<S> <C> <C> <C>
Hunt Acquisitions Partners, Ltd.(2) ...................... 1,027,581 1,027,581 --
1445 Ross at Field Dallas, Texas 75202
The Prudential Insurance Company of America(3) . 7,491,650 7,491,650 --
8 Campus Drive Parsippany, New Jersey 07054
The Prudential Variable Contract Real Property 506,894 506,894 --
Partnership ............................................
8 Campus Drive Parsippany, New Jersey 07054
Strategic Performance Fund--II, Inc. ..................... 1,013,788 1,013,788 --
8 Campus Drive Parsippany, New Jersey 07054
Multi-Market Special Investment Fund II .................. 493,642 493,642 --
J.P. Morgan Investment Management, Inc. 522 Fifth Avenue
New York, New York 10036
Commingled Trust Fund Special Situation Investments--Real 493,642 493,642 --
Estate .................................................
J.P. Morgan Investment Management, Inc. 522 Fifth Avenue
New York, New York 10036
USAA Real Estate Company ................................. 1,148,430 1,148,430 --
8000 Robert F. McDermott Freeway
Suite 600 San Antonio, Texas 98230
State Street Bank and Trust Company, as Trustee for 8,888,598 8,888,598 --
Ameritech Pension Trust ................................
One Enterprise Drive
Solomon Willard Building (W6C)
North Quincy, Massachusetts 02171
OTR ...................................................... 649,351 649,351 --
275 East Broad Street
Columbus, Ohio 43215
R. William Gardner ....................................... 8,840 8,840 --
1625 Bethel Road, Suite 203
Columbus, Ohio 43220
Douglas C. Gardner ....................................... 17,680 17,680 --
1625 Bethel Road, Suite 203
Columbus, Ohio 43220
</TABLE>
29
<PAGE>
<TABLE>
<CAPTION>
AMOUNT AND
PERCENTAGE OF
SHARES OF MAXIMUM COMMON STOCK
COMMON STOCK NUMBER OF SHARES BENEFICIALLY OWNED
BENEFICIALLY OF COMMON STOCK AFTER THE
OWNED PRIOR TO WHICH MAY BE OFFERING(1)
NAME OF SELLING STOCKHOLDER AND RELATIONSHIP TO COMPANY OFFERING SOLD HEREUNDER AMOUNT - %
- ---------------------------------------------------------- -------------- ----------------- -------------------
Steven D. Gardner ........................................ 17,680 17,680 --
1625 Bethel Road, Suite 203
Columbus, Ohio 43220
<S> <C> <C> <C>
Todd L. Platt ............................................ 22,100 22,100 --
13600 Heritage Parkway, Suite 200
Fort Worth, Texas 76177
</TABLE>
- ------------------------
(1) Assumes the sale of all shares of Common Stock registered hereunder,
although none of the Selling Stockholders are under any obligation known to
the Company to sell any shares of Common Stock.
(2) Also reporting beneficial ownership of the same shares are Ray L. Hunt and
RLH Investments, Inc. Their address is the same as that of Hunt.
(3) Includes 3,689,947 shares of Common Stock held by The Prudential Insurance
Company of America on behalf of three insurance company separate accounts.
The Company and the Selling Stockholders are parties to various agreements
(the "Registration Rights Agreements"), copies of which are incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part, pursuant to which the Company agreed, among other things, to register
the offer and sale of the Selling Stockholder Offered Securities under the
Securities Act, and the Selling Stockholders and the Company agreed to indemnify
each other against certain liabilities, including liabilities under the
Securities Act in connection with the sale of the shares pursuant to a
registered public offering contemplated by the Registration Rights Agreements.
Pursuant to the Registration Rights Agreements, the Selling Stockholders are
required to pay the underwriting discounts and commissions and expenses of their
legal counsel and accountants associated with the offering contemplated hereby,
and the Company is generally required to pay all of the other expenses directly
associated with the offering, including, without limitation, the cost of
registering the shares offered hereby, including applicable registration and
filing fees, printing expenses and applicable expenses for legal counsel and
accountants incurred by the Company. The Company may from time to time grant
registration rights to other stockholders of the Company. The names of and other
information regarding any such stockholders will be set forth in a Prospectus
Supplement pursuant to which any Selling Stockholder Offered Securities of such
stockholders are offered for sale.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities in or outside the United States
through underwriters, brokers or dealers, directly to one or more purchasers, or
through agents. Any of the Selling Stockholders may sell any of the Selling
Stockholder Offered Securities through underwriters, either separately or in
connection with offerings of Offered Securities by the Company or through
brokers or dealers either separately in connection with block trades by the
Selling Stockholders or in connection with offerings of Offered Securities by
the Company. The Prospectus Supplement with respect to the Offered Securities
will set forth the terms of the offering of the Offered Securities, including
the name or names of any underwriters, dealers, or agents, the purchase price of
the Offered Securities and the proceeds to the Company from such sale, any
delayed delivery arrangements, any underwriting discounts and other items
constituting underwriters' compensation, the initial public offering price, any
discounts or concessions allowed or reallowed or paid to dealers, and any
securities exchanges on which the Offered Securities may be listed.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated
30
<PAGE>
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The Offered Securities may be offered to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. The underwriter or
underwriters with respect to a particular underwritten offering of Offered
Securities will be named in the Prospectus Supplement relating to such offering,
and if an underwriting syndicate is used, the managing underwriter or
underwriters will be set forth on the cover of such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement relating thereto, the
obligations of the underwriters or agents to purchase the Offered Securities
will be subject to conditions precedent and the underwriters will be obligated
to purchase all the Offered Securities if any are purchased. The initial public
offering price and any discounts or concessions allowed or reallowed or paid to
dealers may be changed from time to time.
The Company may also sell the Offered Securities pursuant to one or more
standby agreements with one or more underwriters in connection with the call for
redemption of a specified class or series of any securities of the Company or
any subsidiary of the Company. In such a standby agreement, the underwriter or
underwriters would agree either (a) to purchase from the Company up to the
number of shares of Common Stock that would be issuable upon conversion of all
of the shares of such class or series of securities of the Company or its
subsidiary at an agreed price per share of Common Stock or (b) to purchase from
the Company up to a specified dollar amount of Offered Securities at an agreed
price per Offered Security which price may be fixed or may be established by
formula or other method and which may or may not relate to market prices of the
Common Stock or any other security of the Company then outstanding. The
underwriter or underwriters would also agree, if applicable, to convert into
Common Stock or other security of the Company any securities of such class or
series held or purchased by the underwriter or underwriters. The underwriter or
underwriters may assist in the solicitation of conversions by holders of such
class or series of securities.
If dealers are used in the sale of Offered Securities with respect to which
this Prospectus is delivered, the Company, or with respect to any block trades
the Selling Stockholders, will sell such Offered Securities to the dealers as
principals. The dealers may then resell such Offered Securities to the public at
varying prices to be determined by such dealers at the time of resale. The name
of the dealers and the terms of the transaction will be set forth in the
Prospectus Supplement relating thereto.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time at fixed prices, which may be
changed, or at varying prices determined at the time of sale. Any agent involved
in the offer or sale of the Offered Securities with respect to which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise indicated in the Prospectus Supplement, any such agent
will be acting on a best efforts basis for the period of its appointment.
In connection with the sale of the Offered Securities, underwriters or
agents may receive compensation from the Company or the Selling Stockholders or
from purchasers of Offered Securities for whom they may act as agents in the
form of discounts, concessions, or commissions. Underwriters, agents, and
dealers participating in the distribution of the Offered Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company or the Selling Stockholders and any profit on the resale of the
Offered Securities by them may be deemed to be underwriting discounts or
commissions under the Securities Act.
Upon the Company's being notified by the Selling Stockholder of any change
in the identity of the Selling Stockholder or that any material arrangement has
been entered into with an underwriter, broker or dealer for the sale of any
Selling Stockholder Offered Securities through a secondary distribution, or a
purchase by a broker or dealer, a Prospectus Supplement will be filed, if
required, pursuant to Rule 424(b) under the Securities Act, disclosing (a) the
names of such brokers or dealers; (b) the number of Selling Stockholder Offered
Securities to be sold; (c) the price at which such Selling Stockholder
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Offered Securities are being sold; (d) the commissions paid or the discounts or
concessions allowed to such brokers or dealers; (e) where applicable, that such
broker or dealer did not conduct any investigation to verify the information set
out or incorporated by reference in this Prospectus, as supplemented or amended;
(f) any change in the identity of the Selling Stockholder, and (g) other facts
material to the transaction.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers from certain types of
institutions to purchase Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the
future. Such contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company and/or the Selling
Stockholders against certain civil liabilities, including liabilities under the
Securities Act, or to contribution with respect to payments that such agents,
dealers, or underwriters may be required to make with respect thereto. Agents,
dealers, and underwriters may be customers of, engage in transactions with, or
perform services for the Company and/or the Selling Stockholders in the ordinary
course of business.
The Offered Securities may or may not be listed on a national securities
exchange. No assurances can be given that there will be a market for the Offered
Securities.
CERTAIN PROVISIONS OF MARYLAND LAW AND OF THE CHARTER AND BYLAWS
The following summary of certain provisions of Maryland law and of the
Charter and Bylaws does not purport to be complete and is subject to and
qualified in its entirety by reference to Maryland law and the Charter and
Bylaws, copies of which are exhibits to the Registration Statement of which this
Prospectus is a part. See "Additional Information."
BOARD OF DIRECTORS
The Company's Organizational Documents specify that the initial number of
directors is nine and allow a majority of the entire Board to increase or
decrease the number of directors within a range of three to 15. The tenure of
office of a sitting director will not be affected by any decrease in the number
of directors. These provisions are in accord with Section 2-402 of the MGCL,
which fixes the minimum number of directors at three and allows a range to be
specified in a corporation's bylaws. As described below (see "--Amendment to
Organizational Documents"), the Bylaws may be amended only by the Board, not by
its stockholders. The Board could, therefore, amend the Bylaws to increase or
decrease the number of directors within the specified range, without stockholder
approval, but could not reduce the number of directors below three. Under
certain circumstances the holders of shares of Series D Preferred Stock are
entitled to require, at least temporarily, that the Board be expanded and be
entitled to fill the additional position or positions on the Board. See
"Description of Stock--Preferred Stock."
As permitted by the MGCL, the Charter provides that, subject to the rights
of the holders of any series of Preferred Stock then outstanding, the Company's
stockholders may remove any director, with or without cause, by the affirmative
vote of a majority of all votes entitled to be cast for the election of
directors. If the stockholders of any class or series are entitled separately to
elect one or more directors, a majority vote of all votes of that class or
series is required in order to remove without cause a director elected by that
class or series.
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MERGERS, CONSOLIDATIONS AND SALES OF ASSETS
In general, under the MGCL, any proposed merger or consolidation of the
Company with another company or companies, or any sale of all or substantially
all the assets of the Company, must be approved by the affirmative vote of
two-thirds of all the votes entitled to be cast on the matter or such lesser
percentage (subject to a specified minimum) as is set forth in the corporation's
charter. The Charter provides that such transactions may be approved by the
affirmative vote of a majority of all votes entitled to be cast on such matters.
BUSINESS COMBINATIONS
Under the MGCL, certain "business combinations" (including a merger,
consolidation, share exchange or, in certain circumstances, an asset transfer or
issuance or reclassification of equity securities) between a Maryland
corporation and any person who beneficially owns 10% or more of the voting power
of the corporation's shares or an affiliate of the corporation who, at any time
within the two-year period prior to the date in question, was the beneficial
owner of ten percent or more of the voting power of the then-outstanding voting
stock of the corporation (an "Interested Stockholder") or an affiliate of such
Interested Stockholder are prohibited for five years after the most recent date
on which the Interested Stockholder becomes an Interested Stockholder.
Thereafter, any such business combination must be recommended by the board of
directors of such corporation and approved by the affirmative vote of at least
(i) 80% of the votes entitled to be cast by holders of outstanding shares of
voting stock of the corporation and (ii) two-thirds of the votes entitled to be
cast by holders of voting stock of the corporation other than shares held by the
Interested Stockholder with whom (or with whose affiliate) the business
combination is to be effected, unless, among other conditions, the corporation's
common stockholders receive a minimum price (as defined in the MGCL) for their
shares and the consideration is received in cash or in the same form as
previously paid by the Interested Stockholder for its shares. These provisions
of the MGCL do not apply, however, to business combinations that are approved or
exempted by the board of directors of the corporation prior to the time that the
Interested Stockholder becomes an Interested Stockholder. Hunt, RLH Corporation
(and its affiliates), Ray L. Hunt (and his affiliates), USAA, United States
Automobile Association (and its direct and indirect subsidiaries), Ameritech and
Prudential, beneficially own more than 10% of the Company's voting shares and
would, therefore, be Interested Stockholders under the business combination
provisions of the MGCL. However, pursuant to the statute, the Company has
exempted any business combinations involving these stockholders and affiliates
and, consequently, the five-year prohibition and the super-majority vote
requirements will not apply to business combinations between any of them and the
Company. As a result, these stockholders and affiliates may be able to enter
into business combinations with the Company that may not be in the best interest
of its stockholders without compliance by the Company with the super-majority
vote requirements and the other provisions of the statute.
CONTROL SHARE ACQUISITIONS
The MGCL provides that "control shares" of a Maryland corporation acquired
in a "control share acquisition" have no voting rights except to the extent
approved by a vote of two-thirds of the votes entitled to be cast on the matter,
excluding shares of stock owned by the acquiror, by officers or by directors who
are employees of the corporation. "Control Shares" are voting shares of stock
which, if aggregated with all other such shares of stock previously acquired by
the acquiror or in respect of which the acquiror is able to exercise or direct
the exercise of voting power (except solely by virtue of a revocable proxy),
would entitle the acquiror to exercise voting power in electing directors within
one of the following ranges of voting power: (a) one-fifth or more but less than
one-third; (b) one-third or more but less than a majority; or (c) a majority or
more of all voting power. Control Shares do not include shares the acquiring
person is then entitled to vote as a result of having previously obtained
stockholder approval. A "control share acquisition" means the acquisition of
Control Shares, subject to certain exceptions.
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A person who has made or proposes to make a control share acquisition, upon
satisfaction of certain conditions (including an undertaking to pay expenses),
may compel the board of directors of the corporation to call a special meeting
of stockholders to be held within 50 days of demand to consider the voting
rights of the shares. If no request for a meeting is made, the corporation may
itself present the question at any stockholders meeting.
If voting rights are not approved at the meeting or if the acquiring person
does not deliver an acquiring person statement as required by the statute, then,
subject to certain conditions and limitations, the corporation may redeem any or
all of the Control Shares (except those for which voting rights have previously
been approved) for fair value determined, without regard to the absence of
voting rights for the Control Shares, as of the date of the last control share
acquisition by the acquiror or of any meeting of stockholders at which the
voting rights of such shares are considered and not approved. If voting rights
for control shares are approved at a stockholders meeting and the acquiror
becomes entitled to vote a majority of the shares entitled to vote, all other
stockholders may exercise appraisal rights. The fair value of the shares as
determined for purposes of such appraisal rights may not be less than the
highest price per share paid by the acquiror in the control share acquisition.
The control share acquisition statute does not apply (a) to shares acquired
in a merger, consolidation or share exchange if the corporation is a party to
the transaction or (b) to acquisitions approved or exempted by the charter or
bylaws of the corporation.
As permitted by the MGCL, the Bylaws exempt any acquisitions of shares of
the Company's stock by Hunt, RLH Corporation (and its affiliates), Ray L. Hunt
(and his affiliates), USAA and United States Automobile Association (and its
direct and indirect subsidiaries), Ameritech and Prudential. There can be no
assurance that such provision will not be amended or eliminated at any time in
the future.
RELATED PARTY TRANSACTIONS
Although it is the Company's policy not to engage in transactions with its
directors or officers, the Charter does not place specific restrictions on
related party transactions. The Company is subject to the provisions of the MGCL
concerning "interested director transactions," that is, transactions between the
Company and a member of the Board or between the Company and another
corporation, firm or other entity in which any of its directors is a director or
has a material financial interest. Under the MGCL, a contract or transaction
between a corporation and any of its directors, or between a corporation and any
other corporation, firm or other entity in which any of its directors is a
director or has a material financial interest, is not void or voidable solely
for this reason, or solely because the director is present at or participates in
the meeting of the board or committee that authorizes the contract or
transaction, or solely because his or her votes are counted for such purpose,
if:
1. The fact of the common directorship or interest is disclosed or known to
the board of directors or the committee, and the board or committee authorizes,
approves or ratifies the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even if the disinterested directors
constitute less than a quorum;
2. The fact of the common directorship or interest is disclosed or known to
the stockholders entitled to vote thereon, and the contract or transaction is
authorized, approved or ratified by a majority of the votes cast by the
stockholders entitled to vote, excluding the votes of shares owned by the
interested director or other interested party; or
3. The contract or transaction is fair and reasonable to the corporation.
SPECIAL MEETINGS OF STOCKHOLDERS
The Bylaws provide that special meetings of the Company's stockholders may
be called: (a) by the Chairman of the Board, the President or the Board; or (b)
upon the written request of stockholders
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holding not less than 10% of all the votes entitled to be cast at the meeting.
The request must state the purpose of the meeting and the matters proposed to be
acted on at the meeting. Upon payment by the requesting stockholders of the cost
of preparing and mailing notice of the meeting, the Secretary of the Company
must give notice to each stockholder entitled to notice. Unless requested by
stockholders entitled to cast a majority of the votes entitled to be cast at the
meeting, a special meeting need not be called to consider any matter that is
substantially the same as one voted on at any special meeting during the
preceding 12 months. Under the Bylaws, if the Company calls a special meeting
for the purpose of electing one or more directors, any stockholder of record at
the time the notice is given who is entitled to vote at the meeting may nominate
a person or persons for election by giving notice containing specified
information to the Secretary not earlier than the 90th day before the meeting
and not later than the later of the 60th day before the meeting or the 10th day
after the day on which a public announcement is first made of the date of the
meeting and the nominees proposed by the Board. Only persons nominated in
accordance with procedures specified in the Bylaws are eligible to serve as
directors and only the business specified in the notice of the meeting may be
conducted at the meeting.
ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND NEW BUSINESS
The Bylaws establish procedures for nominations or other business brought by
stockholders at annual meetings. Under these procedures, a stockholder entitled
to vote in the election of directors generally may nominate one or more persons
for election to the Board or propose other business at an annual meeting only if
the stockholder gives notice to the Secretary of the Company not less than 60
nor more than 90 days before the first anniversary of the preceding year's
annual meeting. If, however, the date of the annual meeting is advanced by more
than 30 days or delayed by more than 60 days from the anniversary date, to be
timely, notice by the stockholder must be delivered not earlier than the 90th
day before such annual meeting and not later than the close of business on the
later of the 60th day before such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting was first made.
Such notice must contain specified information. For example, in the case of a
nomination by a stockholder, the notice must include the information about each
nominee that is required to be disclosed pursuant to the proxy rules under the
Exchange Act. The Company's next stockholders' meeting is expected to take place
in mid-1997.
AMENDMENTS TO ORGANIZATIONAL DOCUMENTS
Section 2-604 of the MGCL and Article 7 of the Charter govern amendments to
the Charter. After the Board proposes a charter amendment, the affirmative vote
of the holders of a majority of the outstanding voting stock, voting together as
a single class, is required to amend the Charter. The Bylaws provide that the
Board has the exclusive power to adopt, alter or repeal any provision of the
Bylaws, except for the provision relating to the application of the control
share acquisition provisions of the MGCL, which may not be amended or repealed,
in whole or in part, without the prior written consent of Ray L. Hunt (or any
affiliate of Ray L. Hunt), USAA, Ameritech and Prudential. See "Certain
Provisions of Maryland Law and of the Charter and Bylaws--Control Share
Acquisitions."
LIABILITY AND INDEMNIFICATION OF CERTAIN PERSONS
The MGCL permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action. The Charter contains
such a provision which eliminates such liabilities to the maximum extent
permitted by Maryland law.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Charter does not), to indemnify a director or officer who has been
successful on the merits or otherwise, in defense of any
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proceeding to which he is made a party by reason of his service in that
capacity. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was a result of an active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of a
criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. However, a Maryland corporation may not
indemnify for any adverse judgment in a suit by or in the right of a
corporation. In addition, the MGCL requires the Company, as a condition to
advancing expenses, to obtain (a) a written affirmation by the director or
officer of his good faith belief that he has met the standard of conduct
necessary for indemnification by the Company as authorized by the Bylaws and (b)
a written statement by or on his behalf to repay the amount paid or reimbursed
by the Company if it shall ultimately be determined that the standard of conduct
was not met.
The Charter obligates the Company to the maximum extent permitted by
Maryland law to indemnify and to pay or reimburse reasonable expenses in advance
of final disposition of a proceeding to (a) any present or former director or
officer of the Company or (b) any individual who, while a director of the
Company and at the request of the Company, serves or has served as a director,
officer, partner or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise. The Charter also permits the
Company to indemnify and advance expenses to any person who served a predecessor
of the Company in any other capacity as described above and to any employee or
agent of the Company or a predecessor of the Company.
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements require, among other
matters, that the Company indemnify its executive officers and directors to the
fullest extent permitted by law and advance to the officers all related
expenses, subject to reimbursement, if it is subsequently determined that
indemnification is not permitted. Under these agreements, the Company must also
indemnify and advance all expenses incurred by executive officers and directors
seeking to enforce their rights under the indemnification agreements and may
cover executive officers and directors under the Company's directors' and
officers' liability insurance. Although the indemnification agreement offers
substantially the same scope of coverage afforded by law, it provides greater
assurance to directors and executive officers that indemnification will be
available, because, as a contract, it cannot be modified unilaterally in the
future by the Board of Directors or stockholders to eliminate the rights it
provides. It is the position of the SEC that indemnification of directors and
officers for liability under the Securities Act is against public policy and
unenforceable pursuant to Section 14 of the Securities Act.
COMMON STOCK
Article 4 of the Charter authorizes the Company to issue up to 175 million
shares of Common Stock, of which 30,166,984 shares were outstanding at March 31,
1998. The holders of shares of Common Stock have the right to vote on all
matters for which a common stockholder is entitled to vote at all meetings of
the stockholders of the Company, and will be entitled to one vote for each share
of Common Stock entitled to vote at such a meeting. Common Stock is subject to
ownership limits and restrictions on transfer. See "Description of Stock."
PREFERRED STOCK
Article 4 of the Charter authorizes the Company to issue up to 25 million
shares of Preferred Stock, of which 2,000,000 shares of Series D Preferred Stock
are presently outstanding. Preferred Stock, like
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Common Stock, is subject to ownership limits and restrictions on transfer. See
"Description of Stock-- Restrictions on Ownership and Transfer."
Subject to any limitations imposed by the NYSE and the rights of the holders
of shares of Series D Preferred Stock, the Company may, without stockholder
approval, issue shares of Preferred Stock in classes and series, and may
establish from time to time the number of shares to be included in each such
class or series, and fix the designation, powers, preferences and the rights of
the shares of each such class or series and the qualifications, limitations and
restrictions of each. Except as otherwise provided by law, the holders of the
Preferred Stock have and will have only such voting rights as are provided for
or expressed in the resolutions of the Board relating to such Preferred Stock.
The Board believes it is desirable for the Company to have Preferred Stock
available for possible future financing and acquisition transactions, stock
dividends or distributions and other general corporate purposes. The
availability of such shares for issuance in the future will give the Company
greater flexibility in obtaining financing or in acquiring Properties by
permitting such shares to be issued without the expense and delay of a special
stockholders' meeting.
The availability of Preferred Stock, however, entails risks. Under certain
circumstances, shares of Preferred Stock could be used to create voting
impediments or to frustrate persons seeking to effect a takeover, engage in
proxy contests, or otherwise gain control of the Company. The Board could
authorize holders of Preferred Stock to vote as a class, either separately or
with the holders of Common Stock, and with voting rights that are the same as or
different from the voting rights of Common Stock, on the election of directors,
or approval of a merger, sale or exchange of assets by the Company or any other
extraordinary corporate transaction. See "Description of Stock--Preferred Stock"
for a description of the voting rights of the Series D Preferred Stock. In
addition, the shares of Preferred Stock could be privately placed with
purchasers who might side with the Board in opposing a hostile takeover bid.
Such uses could enhance the Board's ability to deal with attempts to gain
control of, or impose transactions upon, the Company that the Board believes are
coercive, unfair or otherwise not in the best interests of the Company and all
of its stockholders, but which certain stockholders may find attractive. It is
also possible that the dividend requirements and sinking fund, conversion or
redemption provisions, if any, which may be fixed by the Board for any class or
series of Preferred Stock at the time of issuance may have an adverse effect on
the availability of earnings for distribution to holders of Common Stock or for
other corporate purposes.
FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material federal income tax
considerations affecting the Company and holders of Common Stock. Vinson &
Elkins L.L.P., counsel to the Company, has reviewed the following discussion and
is of the opinion that it fairly summarizes the material federal income tax
considerations to a holder of the Common Stock based on current law. This
discussion is directed principally at stockholders who are individual United
States citizens or residents. No attempt has been made to comment on all federal
income tax consequences of the ownership of Common Stock. The summary does not
address considerations that may be relevant to particular stockholders,
including stockholders who are subject to special treatment under the federal
income tax laws (such as insurance companies, financial institutions or
broker-dealers), nor does it address any tax consequences under the laws of any
state, local or foreign jurisdiction. No rulings will be sought from the IRS or
any other tax authorities concerning the federal, state, local or other tax
considerations relevant to the Company's operations or REIT status, or to the
purchase, ownership or disposition of Common Stock. Because the following is
only a summary, it is qualified in its entirety by the applicable provisions of
the Code and the regulations adopted under the Code, court decisions, and the
rulings and other pronouncements of the IRS, all of which are subject to change,
possibly with retroactive effect.
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EACH PROSPECTIVE STOCKHOLDER OF THE COMPANY IS ADVISED TO CONSULT HIS OR HER
OWN TAX ADVISOR ABOUT THE FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX
CONSEQUENCES OF THE OWNERSHIP OR DISPOSITION OF SHARES OF COMMON STOCK,
PARTICULARLY IN LIGHT OF THAT STOCKHOLDER'S SPECIFIC CIRCUMSTANCES.
FEDERAL INCOME TAXATION OF THE COMPANY
The Company believes that since its formation, it has been organized and
operated in a manner that permits it to satisfy the various requirements for
taxation as a REIT under the applicable provisions of the Code. The rules
governing REIT's are highly technical and require ongoing compliance with a
variety of tests that depend, among other things, on operating results. While
the Company believes it has satisfied these tests since its formation and plans
to use its best efforts to do so on a continuing basis, no assurance can be
given that such requirements will be met or that the Company will qualify as a
REIT for any particular year.
In the opinion of Vinson & Elkins L.L.P., commencing with the Company's
initial taxable year ended December 31, 1995, if the Company is organized and
operated as described in this Prospectus, the Company will be able to qualify as
a REIT. It must be emphasized that this opinion is based and conditioned on
various assumptions and representations of the Company and its officers that are
described below. The Company's qualification as a REIT depends upon its ability
to meet, through actual annual operating results, the various qualification
tests imposed under the Code that are discussed below, the results of which will
not be monitored or reviewed by Vinson & Elkins L.L.P. While the Company expects
to satisfy these tests and plans to use its best efforts to do so, no assurance
can be given that actual operations will meet these requirements and that the
Company will qualify as a REIT for any particular year. The opinion of Vinson &
Elkins L.L.P. is not binding on the IRS or any court. The opinion of Vinson &
Elkins L.L.P. is based upon existing law, IRS regulations and currently
published administrative positions of the IRS and judicial decisions, all of
which are subject to change either prospectively or retroactively.
If the Company qualifies for taxation as a REIT, it generally will not be
subject to Federal corporate income tax on that portion of its ordinary income
or net capital gain that is currently distributed to stockholders. The REIT
provisions of the Code generally allow a REIT to deduct dividends paid to its
stockholders. This deduction for dividends paid to stockholders substantially
eliminates the Federal "double taxation" on earnings (once at the corporate
level and once again at the stockholder level) that usually results from
investments in a corporation.
Even if the Company qualifies for taxation as a REIT, however, the Company
may be subject to Federal income or excise tax, including the following: First,
the Company will be taxed at regular corporate rates on its undistributed REIT
taxable income, including undistributed net capital gain. Second, under certain
circumstances, the Company may be subject to the "alternative minimum tax."
Third, if the Company has net income from the sale or other disposition of
"foreclosure property" (which is, in general, property acquired by the Company
by foreclosure or otherwise on default on a loan secured by such property) that
is held primarily for sale to customers in the ordinary course of business or
other non-qualifying income from foreclosure property, it will be subject to tax
at the highest corporate rate on such income (currently 35%). Fourth, if the
Company has net income from prohibited transactions (which are, in general,
certain sales or other dispositions of property held primarily for sale to
customers in the ordinary course of business, other than foreclosure property),
such income will be subject to a 100% tax. Fifth, if the Company should fail to
satisfy either the 75% or 95% gross income test (discussed below) but has
nonetheless maintained its qualification as a REIT because certain other
requirements have been met, it will be subject to a 100% tax on the net income
attributable to the greater of the amount by which the Company fails either of
the 75% or 95% test, multiplied by a fraction intended to reflect the Company's
profitability. Sixth, if the Company fails to distribute during a year at least
the sum of (a) 85% of its REIT ordinary income for such year, (b) 95% of its
REIT capital gain net income for such year and (c) any undistributed taxable
income from prior years, the Company will be subject to a 4% excise tax on the
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excess of such required distribution over the amounts actually distributed.
However, to the extent the Company elects to retain and pay income tax on net
long term capital gains it received during the year, such amounts will be
treated as having been distributed for purposes of the 4% excise tax. Seventh,
if the Company should acquire any asset from a C corporation (i.e., a
corporation generally subject to full corporate-level tax) in a carryover-basis
transaction and the Company subsequently recognizes gain on the disposition of
such asset during the ten-year period beginning on the date on which the asset
was acquired by the Company, then, to the extent of the excess of the fair
market value of the asset over its adjusted basis upon its acquisition by the
Company, such gain will be subject to tax at the highest regular corporate rate,
pursuant to guidelines issued by the IRS.
REQUIREMENTS FOR QUALIFICATION
The Code defines a REIT as a corporation, trust or association: (a) that is
managed by one or more directors or trustees, (b) the beneficial ownership of
which is evidenced by transferable shares or by transferable certificates of
beneficial interest, (c) that would be taxable as a domestic corporation but for
the REIT provisions of the Code, (d) that is neither a financial institution nor
an insurance company subject to certain provisions of the Code, (e) the
beneficial ownership of which is held by 100 or more persons, and (f) during the
last half of each taxable year not more than 50% in value of the outstanding
stock of which is owned, directly or indirectly through the application of
certain attribution rules, by five or fewer individuals (as defined in the Code
to include certain entities). The Company expects to meet each of these
requirements. In addition, certain other tests, described below, regarding the
nature of its income and assets also must be satisfied, which the Company
anticipates. The Code provides that conditions (a) through (d), inclusive, must
be met during the entire taxable year and that conditions (e) and (f) must be
met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. Conditions (e) and
(f) (the "100-Stockholder Requirement" and "Five-or-Fewer Requirement") do not
apply for the first taxable year for which an election is made to be taxed as a
REIT. For purposes of conditions (e) and (f), pension funds and certain other
tax-exempt entities are treated as individuals, subject to a "look-through"
exception in the case of conditions (f).
To protect against violations of the stock ownership requirements, the
Charter provides that no person (other than an "Excepted Holder") is permitted
to own, applying certain constructive ownership tests, more than 8.5% of the
lesser of the number or value of the outstanding shares of any class of the
Company's stock (the "Ownership Limit"). An Excepted Holder is a person who the
Board has determined will be permitted to hold shares in excess of the Ownership
Limit, based upon appropriate representations and undertakings designed to
protect the Company's REIT status (such as information establishing that the
Excepted Holder is treated as a "look-through" entity in applying the REIT stock
ownership tests and that the deemed ownership of the Company shares through it
will be appropriately dispersed so as not to jeopardize the Company's REIT
status). Each Excepted Holder will be subject to a separate ownership limit as
specified by the Board. Attempted transfers of shares of the Company's stock
that would violate the ownership limits (or related restrictions contained in
the Charter or Excepted Holder Agreements) generally will cause the number of
shares in excess of the limit to be transferred automatically to a trust for the
benefit of a charitable beneficiary rather than to the purported transferee.
To monitor the Company's compliance with the share ownership requirements,
the Company is required to maintain records disclosing the actual ownership of
its stock. To do so, the Company must demand written statements each year from
the record holders of 5% or more of its shares. (If the Company were to have
less than 2,000 record stockholders, the demand would have to be made to record
holders of smaller percentages of the shares.) In those statements, the record
holders are to disclose who actually owns the shares (that is, the persons
required to include the Company's dividends in their gross incomes). The Company
must maintain a list of those persons who fail or refuse to comply with this
demand. Such stockholders must submit a statement with their tax returns
disclosing the actual ownership of the shares of stock and certain other
information.
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GROSS INCOME TESTS. In order to qualify as a REIT for a particular year,
the Company also must meet two tests governing the sources of its gross income
that are designed to ensure that the Company earns its income principally from
passive real estate investments. In evaluating a REIT's income under the income
tests, the REIT will be treated as receiving its proportionate share of the
income produced by any partnership in which the REIT invests, and any such
income will retain the character that it has in the hands of the partnership.
The Company may, from time to time, own and operate a number of its properties
through "qualified REIT subsidiaries." The Code provides that a qualified REIT
subsidiary is not treated as a separate corporation, and all of its assets,
liabilities and items of income, deduction and credit are treated as assets,
liabilities and such items of the REIT.
SEVENTY-FIVE PERCENT GROSS INCOME TEST. At least 75% of a REIT's gross
income for each taxable year must be derived from specified classes of income
that principally are real estate related. The key permitted categories are: (a)
rents from real property; (b) interest on loans secured by real property; (c)
gain from the sale of real property or real property loans (excluding gain from
the sale of property that is held primarily for sale to customers in the
ordinary course of a trade or business, which is referred to below as "dealer
property"); (d) income from the operation and gain from the sale of certain
property acquired in connection with the foreclosure of a mortgage securing that
property or upon a default on a lease of the property ("foreclosure property");
(e) distributions on, or gain from the sale of, shares of other REITs; and (f)
"qualified temporary investment income" (described below).
In evaluating the Company's compliance with the 75% income test (as well as
the 95% income test described below), gross income does not include gross income
from "prohibited transactions." A prohibited transaction is a sale of dealer
property, not including foreclosure property and certain dealer property held by
the Company for at least four years.
The Company expects that substantially all of its operating gross income
from its properties will be considered rent from real property. Rent from real
property is qualifying income for purposes of the 75% income test only if
certain conditions are satisfied. Rent from real property includes charges for
services customarily rendered to tenants, and rent attributable to personal
property leased together with the real property so long as the personal property
rent is less than 15% of the total rent. The Company does not expect to earn
material amounts of income from services rendered to tenants or from personal
property.
Rent from real property generally does not include rent based on the income
or profits derived from the property, unless the computation is based only on a
fixed percentage of receipts or sales. Also excluded is rent received from a
person or corporation in which the Company (or any of its 10% or greater owners)
owns a 10% or greater interest. The Company does not expect to earn income in
these two excluded categories.
A third exclusion covers amounts received with respect to real property if
the Company furnishes services to the tenants or manages or operates the
property, other than through an "independent contractor" from whom the Company
does not derive any income. The obligation to operate through an independent
contractor generally does not apply, however, if any services provided by the
Company are "usually or customarily rendered" in connection with the rental of
space for occupancy only and are not considered rendered primarily for the
convenience of the tenant (applying standards that govern in evaluating whether
rent from real property would be unrelated business taxable income when received
by a tax-exempt owner of the property). A DE MINIMIS exception allows the
Company to provide non-customary services to its tenants and not disqualify
income as rents from real property so long as the value of the impermissible
services does not exceed 1% of the Company's gross income from the property. The
amount the Company receives that is attributable to impermissible services
cannot be valued at less than 150% of the direct cost to the Company providing
the services. The Company generally will directly operate and manage its
properties without using an "independent contractor," although independent
contractors may be employed to perform certain day-to-day property management
duties, such as collection of rents and routine maintenance. The Company
believes that the only material services to be provided to tenants will
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be those usually or customarily rendered in connection with the rental of space
for occupancy only. The Company does not provide services that might be
considered rendered primarily for the convenience of the tenants. The Company
believes that substantially all its income from the properties will be
qualifying income under the 75% income test.
A portion of the proceeds of the Offering may be invested in
interest-bearing accounts and an investment fund or funds that invest
substantially all their assets in diversified portfolios of U.S. dollar-
denominated "money market" instruments (such as bank certificates of deposit and
bankers acceptances, commercial paper and repurchase agreements) and obligations
issued or guaranteed by the U.S. government or its agencies or
instrumentalities. The interest and dividend income earned on those funds should
be includable under the 75% income test as "qualified temporary investment
income" (which includes income earned on stock or debt instruments acquired with
the proceeds of a stock offering, not including amounts received under a
dividend reinvestment plan). Qualified temporary investment income treatment
only applies during the one-year period beginning when a REIT receives the new
capital.
Upon the Company's ultimate sale of its properties, any gains realized are
expected to constitute qualifying income, as gain from the sale of real property
(not involving a prohibited transaction).
NINETY-FIVE PERCENT GROSS INCOME TEST. In addition to earning 75% of its
gross income from the sources listed above, at least an additional 20% of the
Company's gross income for each taxable year must come either from those
sources, or from dividends, other interest or gains from the sale or other
disposition of stock or other securities that do not constitute dealer property.
This test permits a REIT to earn a significant portion of its income from
traditional "passive" investment sources that are not necessarily real estate
related. The term "interest" (under both the 75% and 95% tests) does not include
amounts that are based on the income or profits of any person, unless the
computation is based only on a fixed percentage of receipts or sales.
FAILING THE BASIC GROSS INCOME TESTS. As a result of the 75% and 95% tests,
REITs generally are not permitted to earn more than 5% of their gross income
from active sources (such as brokerage commissions or other fees for services
rendered). While the Company does not anticipate that it will earn substantial
amounts of nonqualifying income, if nonqualifying income exceeds 5% of the
Company's gross income, the Company could lose its status as a REIT. If a REIT
fails to meet either the 75% or 95% income tests during any taxable year, it may
still qualify as a REIT for that year if the failure was due to reasonable cause
and certain relief provisions apply, although a special penalty tax may be owed.
See "--Federal Income Taxation of the Company."
ASSET TESTS. In order to qualify as a REIT for a particular year, on the
last day of each calendar quarter the Company also must meet two tests
concerning the nature of its investments. First, at least 75% of the value of
the Company's total assets generally must consist of real estate assets, cash,
cash items (including receivables) and government securities. For this purpose,
"real estate assets" include interests in real property, interests in loans
secured by mortgages on real property or by interests in real property, shares
in other REITs, certain options, and for the one-year period following receipt
of new capital, stock and debt instruments acquired with that new capital. Real
estate assets do not include mineral, oil or gas royalty interests. Second,
although the balance of the Company's assets generally may be invested without
restriction, except for securities that are considered real estate assets, the
Company will not be permitted to own: (a) securities of any one nongovernmental
issuer that represent more than 5% of the value of the Company's total assets;
or (b) more than 10% of the outstanding voting securities of any single issuer.
A REIT may, however, own 100% of the stock of a qualified REIT subsidiary, in
which case the assets, liabilities and items of income, deduction and credit of
the subsidiary are treated as those of the REIT. The Company may, from time to
time, hold certain properties through qualified REIT subsidiaries. In evaluating
a REIT's assets, if the REIT invests in a partnership, it is deemed to own its
proportionate share of the assets of the partnership.
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The Company anticipates that it will comply with these asset tests. As was
described above, for a temporary period, some of the proceeds of the Offering
may be invested principally in interest-bearing accounts and an investment fund
or funds that invest substantially all their assets in diversified portfolios of
U.S. dollar-denominated "money market" instruments (such as bank certificates of
deposit and bankers acceptances, commercial paper and repurchase agreements) and
obligations issued or guaranteed by the U.S. government or its agencies or
instrumentalities, which should constitute qualifying assets, at least during
the initial one-year period following the Offering. Substantially all of the
Company's other investments will be in properties that should represent
qualifying real estate assets.
ANNUAL DISTRIBUTION REQUIREMENT. To maintain REIT status, the Company
generally must distribute to its stockholders in each taxable year at least 95%
of its net ordinary income (capital gain is not required to be distributed).
More precisely, the Company must distribute an amount equal to: (a) 95% of the
sum of (i) its "REIT Taxable Income" before the deduction for dividends paid and
excluding any net capital gain and (ii) any net income from foreclosure property
less the tax on such income, minus (b) certain limited categories of "excess
non-cash income." REIT Taxable Income is defined to be the taxable income of the
REIT, computed as if it were an ordinary corporation, with certain
modifications. For example, net income from foreclosure property and net income
from prohibited transactions are excluded. In addition, the REIT may carry over,
but not carry back, a net operating loss for 15 years after the year in which it
was incurred.
A REIT may satisfy the 95% distribution test with dividends paid during the
taxable year and with certain dividends paid after the end of the taxable year.
Dividends paid in January that were declared during the last calendar quarter of
the prior year and were payable to stockholders of record during the last
calendar quarter of that prior year are treated as paid on December 31 of the
prior year (both for the Company and its stockholders). Because dividends that
are paid in a subsequent year and fail to meet this test will be subject to a
nondeductible 4% excise tax, the Company anticipates distributing its fourth
quarter dividends within the taxable year, or by January 31 of the following
year. Dividends declared before the due date of the Company's tax return for the
taxable year (including extensions) also will be treated as paid in the prior
year (although subject to the excise tax) if they are paid: (a) within 12 months
of the end of such taxable year; and (b) no later than the Company's next
regular distribution payment. Dividends that are paid after the close of a
taxable year and do not qualify under the rule governing payments made in
January will be taxable to the stockholders in the year paid, even though they
may be taken into account by the Company for a prior year.
The Company will be taxed at regular corporate rates to the extent that it
retains any portion of its taxable income. For example, if the Company only
distributes the required 95% of its taxable income, it would be taxed on the
retained 5%. The Company currently intends to distribute sufficient income to
satisfy the annual 95% distribution requirement. Under certain circumstances,
however, the Company may not have sufficient cash or other liquid assets to meet
the distribution requirement. This could arise because of competing demands for
the Company's funds, or due to timing differences between tax reporting and cash
receipts and disbursements (income may have to be reported before cash is
received, or expenses may have to be paid before a deduction is allowed).
Although the Company does not anticipate difficulties in meeting this
requirement, no assurance can be given that the necessary funds will be
available. If the Company fails to make a required distribution, it would lose
its REIT status.
If the Company fails to meet the 95% distribution requirement because of an
adjustment to the Company's taxable income by the IRS, the Company may be able
to cure the failure retroactively by paying to its stockholders a "deficiency
dividend" (as well as paying applicable interest and penalties to the IRS)
within a specified period.
SPECIAL DISTRIBUTION REQUIREMENT; BUILT-IN GAIN RULES. The Code and
regulations provide that a corporation may be taxed as a REIT only if it has no
earnings and profits accumulated in any non-REIT year (including amounts
attributable to entities merged into the REIT). The Company expects to be
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treated as a REIT from inception and does not believe that it inherited any
earnings and profits from any of the Merged Trusts that were accumulated during
any non-REIT years. Pursuant to IRS Notice 88-19, if a REIT acquires the assets
of a C corporation in a tax-free transaction, unless the REIT makes a special
election to recognize any built-in gain over a ten-year period, the C
corporation is treated as having disposed of the assets in a taxable transaction
immediately before the transfer to the REIT. Due to the REIT status of the
Merged Trusts, the Company does not believe that these requirements apply to the
Company or the Merged Trusts. If the IRS were to challenge successfully the REIT
status of one or more of the Merged Trusts during any period prior to the
Merger, depending upon the specific circumstances, the rules applicable to
transfers from C corporations to REITs might adversely affect the Company's
ability to qualify as a REIT.
FAILURE TO QUALIFY AS A REIT
For any taxable year in which the Company fails to qualify as a REIT, it
would be taxed at the usual corporate rates on all of its taxable income.
Distributions to its stockholders would not be deductible in computing that
taxable income and distributions would no longer be required under the Code. Any
corporate level taxes generally would reduce the amount of cash available to the
Company for distribution to its stockholders or for reinvestment. Because the
stockholders would continue to be taxable on the distributions they receive, the
net after-tax yield to the stockholders from their investment in the Company
likely would be reduced substantially. As a result, the Company's failure to
qualify as a REIT during any taxable year could have a material adverse effect
on the Company and its stockholders. If the Company loses its REIT status,
unless certain relief provisions apply, the Company would not be eligible to
elect REIT status again until the fifth taxable year that begins after the first
year for which the Company's election was terminated.
If, after forfeiting its REIT status, the Company later qualifies and elects
to be taxed as a REIT again, the Company may face additional adverse tax
consequences. Prior to the end of the year in which the Company sought to
qualify again as a REIT, the Company would be required to make distributions
sufficient to eliminate any earnings and profits accumulated during its period
of non-REIT status. Moreover, under IRS Notice 88-19, immediately prior to the
effectiveness of the election to return to REIT status, the Company would be
treated as having disposed of all of its assets in a taxable transaction,
triggering taxable gain with respect to the Company's appreciated assets. In
that event, however, under current law the Company would be permitted to elect
an alternative treatment under which those gains would be taken into account
only as and when they actually were recognized upon sales of the appreciated
property occurring within a ten-year period (certain proposed legislation might
eliminate this alternative treatment, in which case the Company might choose to
remain a C corporation). The Company would be required to distribute at least
95% of any such recognized gains, but it would not receive the benefit of a
dividends-paid deduction to reduce those taxable gains. Thus, any such gains on
appreciated assets would be subject to double taxation (that is, at the
corporate level as well as the stockholder level).
TAXATION OF TAXABLE DOMESTIC STOCKHOLDERS
Distributions generally will be taxable to stockholders as ordinary income
to the extent of the Company's earnings and profits. Dividends declared during
the last quarter of a calendar year and actually paid during January of the
immediately following calendar year will generally be treated as if received by
the stockholders on December 31 of the calendar year during which they were
declared. Distributions paid to stockholders will not constitute passive
activity income and, as a result, generally cannot be offset by losses from
passive activities of a stockholder who is subject to the passive activity
rules.
Distributions designated by the Company as capital gains dividends generally
will be taxed as long-term capital gains to stockholders to the extent that the
distributions do not exceed the Company's actual net capital gain for the
taxable year. The IRS has announced that it will issue regulations providing
that a REIT may designate a capital gain dividend distribution as coming from
three sources: (a) a 20% capital
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gain rate distribution in the case of capital assets held for more than 18
months prior to disposition, (b) a 28% capital gain rate distribution in the
case of capital assets held for more than 12 months but less than 18 months
prior to disposition, or (c) a 25% capital gain rate distribution in the case of
depreciable real property held for more than 12 months prior to disposition to
the extent of "unrecaptured section 1250 gain" with respect to the property. If
no designation is made regarding the capital gain dividend, it is treated as a
28% rate gain distribution. Corporate stockholders may be required to treat up
to 20% of any such capital gains dividends as ordinary income. Distributions by
the Company, whether characterized as ordinary income or as capital gains, are
not eligible for the 70% dividends received deduction for corporations.
Stockholders are not permitted to deduct losses or loss carryforwards of the
Company. Future regulations may require that stockholders take into account, for
purposes of computing their individual alternative minimum tax liability,
certain tax preference items of the Company.
The Company may generate cash in excess of its net earnings. If the Company
distributes cash to stockholders in excess of the Company's current and
accumulated earnings and profits, the excess cash will be deemed to be a
nontaxable return of capital to each stockholder to the extent of the adjusted
tax basis of the stockholder's shares, and the distribution will reduce the
stockholder's basis (but not below zero). Distributions in excess of the
adjusted tax basis will be treated as gain from the sale or exchange of the
shares. A stockholder who has received a distribution in excess of the current
and accumulated earnings and profits of the Company may, upon the sale of the
shares, realize a higher taxable gain or a smaller loss because the basis of the
shares as reduced by that distribution will be used for purposes of computing
the amount of the gain or loss.
For taxable years beginning after December 31, 1997, the Company may
designate a certain amount as undistributed capital gains upon which the Company
must pay tax within 30 days after the close of such year, and the amount
designated must also be reported by the Company's stockholders as long-term
capital gains for their tax years in which the last day of the Company's tax
year falls. Such designation must be made in a written notice mailed to the
stockholders within 60 days of the close of the Company's taxable year (or
mailed to its stockholders with its annual report for the taxable year). The
stockholders are treated as having paid the capital gains tax imposed on the
Company on the designated amounts and are allowed a credit or refund for the tax
deemed paid. Stockholders can increase the adjusted bases of their shares by the
difference between the designated amounts included in their long-term capital
gains and tax deemed paid with respect to their shares. The Company's earnings
and profits will be adjusted for any such undistributed capital gains in
accordance with regulations to be prescribed by the IRS.
Generally, gain or loss realized by a stockholder upon the sale of shares
will be reportable as capital gain or loss. If a stockholder receives a capital
gain dividend from the Company and sells the shares before holding them for more
than six months, any loss incurred on the sale or exchange of the shares is
treated as a long-term capital loss to the extent of the corresponding capital
gain dividend received.
In any year in which the Company fails to qualify as a REIT, its
stockholders generally will continue to be treated in the same fashion described
above, except that the Company dividends will not be eligible for treatment as
capital gains dividends, corporate stockholders will qualify for the dividends
received deduction and the stockholders will not be required to report any share
of the Company's tax preference items.
BACKUP WITHHOLDING
The Company will report to its stockholders and the IRS the amount of
dividends paid during each calendar year and the amount of tax withheld, if any.
If a stockholder is subject to backup withholding, the Company will be required
to deduct and withhold from any dividends payable to that stockholder a tax of
31%. These rules may apply: (a) when a stockholder fails to supply a correct
taxpayer identification number; (b) when the IRS notifies the Company that the
stockholder is subject to the rules or has furnished an incorrect taxpayer
identification number; or (c) in the case of corporations or others within
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certain exempt categories, when they fail to demonstrate that fact when
required. A stockholder who does not provide a correct taxpayer identification
number may also be subject to penalties imposed by the IRS. Any amount withheld
as backup withholding may be creditable against the stockholder's federal income
tax liability. The Company also may be required to withhold a portion of capital
gain distributions made to stockholders who fail to certify their non-foreign
status to the Company.
TAXATION OF DOMESTIC TAX-EXEMPT STOCKHOLDERS
In 1993, the federal income tax laws were changed to facilitate investments
by pension funds in REITs. As described above, a corporation cannot be a REIT if
more than 50% of the value of its stock is owned by five or fewer individuals at
any time during the last half of a taxable year. In applying this test, pension
trusts (and certain other tax-exempt stockholders) formerly were treated as
single individuals. Beginning in 1994, however, a qualified pension trust
generally has not been considered a single individual in evaluating a REIT's
ownership. Instead, beneficiaries of the pension trust are treated as holding
the pension trust's stock investment in the REIT in proportion to their
actuarial interests in the pension trust.
In general, a tax-exempt entity that is a stockholder of the Company will
not be subject to tax on distributions from the Company or gain realized on the
sale of shares. In Revenue Ruling 66-106, the IRS ruled that a REIT's
distributions to a tax-exempt employees' pension trust did not constitute
unrelated business taxable income. However, when the law was changed to relax
the stock ownership restrictions applicable to pension plan investors, a related
change was made for unrelated business income tax purposes. This provision
applies only if a REIT is a "Pension-Held REIT." In that case, those pension
trusts owning more than 10% of the value of the REIT's stock may be required to
report a portion of any dividends they receive from the REIT as unrelated
business taxable income. One aspect of the definition of a Pension-Held REIT
requires that either one pension trust must own more than 25% of the value of
the REIT's stock, or one or more pension trusts (each of which owns more than
10%) must own in the aggregate more than 50% of the value of the REIT's stock.
The Company intends to operate such that, if it were classified as a
Pension-Held REIT, these provisions would not cause its stockholders that are
pension trusts to receive dividends that would be considered unrelated business
taxable income, however there can be no assurance that the Company will be able
to operate in such a manner. A tax-exempt entity, however, may be subject to the
unrelated business income tax on dividends from or gain on the Company's shares
to the extent that the tax-exempt entity financed the acquisition of its shares
with "acquisition indebtedness" within the meaning of the Code.
For social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts and qualified group legal services plans exempt from
federal income taxation under Sections 501(c)(7), (9), (17) and (20) of the
Code, respectively, income from an investment in the Company will constitute
unrelated business taxable income unless the organization is able to deduct
amounts properly set aside or placed in reserve for certain purposes so as to
offset the unrelated business taxable income generated by the investment in the
Company. These investors must consult their own tax advisors concerning the "set
aside" and reserve requirements.
TAXATION OF FOREIGN STOCKHOLDERS
The rules governing United States income, gift and estate taxation of
foreign entities and individuals who are neither citizens nor residents of the
U.S. are complex. They depend not only upon U.S. tax principles, but also upon
the treaties, if any, between the U.S. and the countries of the foreign
investors. The following discussion is only a summary of certain U.S. federal
income tax considerations potentially affecting foreign stockholders of the
Company, who must consult with their own advisors to evaluate all relevant tax
considerations.
The character of distributions on the Company's shares generally will be
determined in the same fashion for foreign stockholders as for domestic
stockholders (that is, a distribution may be categorized as
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a taxable ordinary income dividend paid out of the Company's current or
accumulated earnings and profits, a nontaxable return of capital, a distribution
in excess of the stockholder's basis that is taxable as gain from sale of the
shares or a capital gain dividend). See "--Taxation of Taxable Domestic
Stockholders."
If income or gain from the shares is effectively connected with a U.S. trade
or business conducted by a foreign stockholder ("effectively connected income"),
it generally will be subject to regular U.S. income taxes at graduated rates
rather than to the withholding tax described below. Foreign stockholders whose
income from the shares is effectively connected income may file an IRS Form 4224
with the Company certifying to that effect. Such income may be subject to the
alternative minimum tax, and a special alternative minimum tax may apply to
nonresident alien individuals. Foreign corporate stockholders receiving
effectively connected income from the shares also may be subject to an
additional 30% branch profits tax, unless certain exemptions apply.
Foreign stockholders whose income from the shares is not effectively
connected income generally will be subject to withholding at a 30% rate on
ordinary income dividends paid by the Company, unless an applicable tax treaty
reduces that rate. For this purpose, however, ordinary income distributions will
be presumed to represent dividends paid out of earnings and profits, rather than
nontaxable returns of capital or capital gains. If such a distribution is later
determined to have exceeded earnings and profits, an affected foreign
stockholder may claim a refund for excess withholdings.
Any distributions that are attributable to gain from the sale of United
States real property interests (whether or not specifically designated as
capital gain dividends) will be subject to the Foreign Investment in Real
Property Tax Act ("FIRPTA"). Under FIRPTA, those distributions will be treated
as gains that are effectively connected income and generally will be taxed at
regular U.S. capital gains tax rates. As a means of collecting this tax, the
Treasury Regulations require the Company to withhold 35% of any distributions to
foreign stockholders that the Company could designate as capital gains
dividends. If the amount of the FIRPTA withholding exceeds the applicable tax,
the foreign stockholder may obtain a refund.
Gain from the sale of shares generally will not be subject to U.S. taxation.
The sale of shares generally will not be subject to FIRPTA because the Company
should qualify as a "domestically-controlled REIT" (only a minority, if any, of
the Company's stockholders are expected to be foreign stockholders). If any
capital gain dividends or gains from the sale of shares constitute effectively
connected income, however, regular U.S. taxes may apply as described above. If a
nonresident alien stockholder is present in the U.S. for 183 days or more during
the year for which the gains are reportable and has a "tax home" in the U.S., a
30% tax may apply to the capital gains.
Upon the death of a foreign individual stockholder, the stockholder's shares
will be treated as part of the stockholder's U.S. estate for purposes of the
U.S. estate tax, except as may be otherwise provided in an applicable estate tax
treaty.
POSSIBLE TAX LAW CHANGES
The anticipated income tax treatment described in this Prospectus may be
changed, perhaps retroactively, by legislative, administrative or judicial
action at any time. Congress at any time may consider changes to the tax laws,
and any such legislation may affect the treatment of real estate investments, in
general, or REITs in particular. For example, in 1996 the Clinton administration
proposed certain legislation (that has not been enacted) that would require
immediate recognition of built-in gains of certain large C corporations (with a
stock value in excess of $5 million) that elect to be taxed as REITs
(potentially applicable if a REIT loses its REIT status and then seeks to
requalify) or of large C corporations the assets of which are acquired by REITs
in tax-free transactions (effectively repealing the ability to elect under IRS
Notice 88-19 to report any such built-in gains only to the extent that they are
recognized when and if the appreciated assets are sold during a ten-year
period). The Clinton administration's budget proposal announced on February 2,
1998 includes a proposal to amend the REIT asset tests
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with respect to non-qualified REIT subsidiaries, such as certain the Company's
corporate subsidiaries. The proposal would prohibit a REIT from owning more than
10% of the vote or value of the outstanding stock of any non-qualified REIT
subsidiary. Existing non-qualified REIT subsidiaries would be grandfathered, and
therefore subject only to the 5% asset test and 10% voting securities test of
current law, except that such grandfathering would terminate if the subsidiary
engaged in a new trade or business or acquired substantial net assets. As a
result, if the proposal were to be enacted, certain of the Company's
subsidiaries would become subject to the new 10%-vote-and-value limitation if
they commenced new trade or business activities or acquired substantial new
assets after the specified effective date. The Company could not satisfy the new
test because it would be considered to own more than 10% of the value of the
stock of such subsidiaries. Accordingly, the proposal, if enacted, would
materially impede the ability of certain of the Company's corporate subsidiaries
to engage in other activities without jeopardizing the Company's REIT status. No
prediction can be made as to whether these or any other changes to the REIT tax
rules will be implemented, or whether any changes that might take effect would
adversely affect the Company's ability to qualify as a REIT or the treatment of
the Company's stockholders.
STATE AND LOCAL TAXES
The Company will be subject to the taxing jurisdiction of each state in
which it owns properties or otherwise engages in business. Stockholders also may
be subject to state or local taxes in various jurisdictions, including those in
which they reside or transact business. The state or local tax treatment may
differ from the federal income tax treatment described above. As a general
matter, however, stockholders receiving dividends from the Company are likely to
be taxable on those amounts only in their states of residence. Because of the
potential diversity of the state and local rules, this Prospectus does not
include a discussion of state or local taxation of the Company or the
stockholders, nor is any representation made as to the tax status of the Company
or the stockholders in any state or local jurisdiction. All stockholders must
consult their own tax advisors concerning the possible application of any state
or local tax laws.
EXPERTS
The audited financial statements and schedules incorporated by reference
herein and 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, as indicated in their reports with respect
thereto, and have been included herein and in the Registration Statement in
reliance upon the authority of said firm as experts in giving said reports.
LEGAL MATTERS
The legality of the Offered Securities will be passed upon for the Company
by Ballard Spahr Andrews & Ingersoll, Baltimore, Maryland. Certain legal matters
will be passed upon for the Company by Vinson & Elkins L.L.P., Dallas, Texas.
47
<PAGE>
GLOSSARY
"AMERITECH" means State Street Bank and Trust Company, as trustee for the
Ameritech Pension Trust (or any successor trustee).
"ASSET PURCHASE" means the sale by Trust 83 to the Company of all of Trust
83's properties (except the Charleston Business Park property) and certain other
assets, in accordance with the Amended and Restated Asset Purchase Agreement
between the Company and Trust 83 dated as of November 10, 1995.
"BOARD" means the board of directors of the Company.
"BYLAWS" means the Second Amended and Restated Bylaws of the Company, as
amended.
"CHARTER" means the Third Amended and Restated Articles of Incorporation of
the Company.
"CODE" means the Internal Revenue Code of 1986, as amended, together with
its predecessor.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means the Company's common stock, par value $.001 per share.
"COMPANY" means Meridian Industrial Trust, Inc., a Maryland corporation.
"CONSOLIDATION TRANSACTIONS" means the Merger and the Asset Purchase.
"CONTROL SHARE" means voting shares of stock that, if aggregated with all
other such shares of stock previously acquired by the acquiror thereof or in
respect of which the acquiror is able to exercise or direct the exercise of
voting power (except solely by virtue of a revocable proxy) would entitle the
acquiror to exercise voting power in electing directors within any of the
following ranges of voting power: (i) one-fifth or more but less than one-third;
(ii) one-third or more but less than a majority; or (iii) a majority of all
voting power. Control Shares do not include shares the acquiring person is then
entitled to vote as a result of having previously obtained stockholder approval.
"CONTROL SHARE LAW" means Sections 3-701 through 3-709 of the MGCL.
"CONVERSION PRICE" means the price at which the Series B Preferred Stock may
be converted into Common Stock at the option of the holder.
"EQUITY STOCK" means Common and Preferred Stock of the Company.
"EXCEPTED HOLDERS" means a person whom the Board has determined will be
permitted to hold shares in excess of the Ownership Limit, based upon
appropriate representations and undertakings designed to protect the Company's
REIT status.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FIRPTA" means the Foreign Investment in Real Property Act.
"FIVE OR FEWER REQUIREMENT" means the requirement under the Code that not
more than 50% in value of the Company's outstanding shares of capital stock may
be owned, directly or indirectly, by five or fewer individuals (as defined in
the Code) during the last half of a taxable year (other than the first year).
"FUNDS FROM OPERATION" means, in accordance with the resolution adopted by
the Board of Governors of NAREIT, net income (loss) (computed in accordance with
generally accepted accounting principles), excluding gains (or losses) from debt
restructuring and sales of property, plus depreciation and amortization, and
after adjustment from unconsolidated partnerships and joint ventures.
"HUNT" means Hunt Acquisitions Partners, Ltd., a Delaware limited
partnership.
"HUNT REALTY" means Hunt Realty Corporation, a Delaware corporation.
48
<PAGE>
"INDEPENDENT DIRECTOR" means a director of the Company who is not an
officer, full-time employee or member of the immediate family of an officer in
full-time employment of the Company.
"INTERESTED STOCKHOLDER LAW" means the provisions of the MGCL (Sections
3-601 through 3-604) that place restrictions on transactions between Maryland
corporations and stockholders who have acquired 10% or more of a corporation's
stock.
"INTERESTED STOCKHOLDERS" means, in accordance with the MGCL, any person who
owns 10% or more of the voting power of a corporation's shares.
"IRS" means the Internal Revenue Service.
"LIBOR" means the London Interbank Offered Rate.
"MERGED TRUSTS" means Trust IV, Trust VI and Trust VII all of which were
merged into the Company on February 23, 1996.
"MERGER" means the merger of Trusts IV, VI and VII into the Company in
accordance with the Merger Agreement and applicable law.
"MERGER AGREEMENT" means the Amended and Restated Agreement and Plan of
Merger dated as of November 10, 1995 among the Merged Trusts and the Company.
"MERGER WARRANTS" means the warrants to purchase shares of Common Stock to
be issued by the Company to the holders of Trust VI common stock and Trust VII
common stock in connection with the Merger.
"MORTGAGE LOAN" means the Loan Administration Agreement between the
Prudential Insurance Company of America and the Company, as amended.
"MGCL" means the Maryland General Corporation Law, as amended from time to
time.
"NYSE" means the New York Stock Exchange.
"ORGANIZATIONAL DOCUMENTS" means the Charter and Bylaws.
"OTR" means OTR, an Ohio general partnership acting on behalf of and as
nominee for The State Teachers Retirement Board of Ohio.
"OWNERSHIP LIMIT" means the restriction contained in the Charter providing
that, subject to certain exceptions, no holder may own, or be deemed to own by
virtue of the attribution provisions of the Code, more than 8.5% of the lesser
of the number or value of the outstanding shares of any class of the Company's
stock.
"PREFERRED STOCK" means all series of preferred stock of the Company.
"PREFERRED STOCK PRIVATE PLACEMENT" means the private placement of shares of
the Series B Preferred Stock to Ameritech and OTR.
"PROHIBITED OWNER" means the person who would otherwise be considered the
owner of Shares-in-Trust had such shares not been transferred to a trustee
because such owner violated the Ownership Limit.
"PROPERTIES" means all of the properties owned by the Company.
"PROSPECTUS" means this prospectus.
"RECAPITALIZATION" means the May 31, 1995 closing of the transactions under
the stock purchase agreements between Hunt and each of the Merged Trusts and the
stock purchase agreements between USAA and each of the Merged Trusts, and the
concurrent restructuring or retirement of the Trusts' indebtedness.
49
<PAGE>
"REFINANCING" means (i) the retirement of certain Trust indebtedness that
took place when the Consolidation Transactions closed using the net proceeds of
the Preferred Stock Private Placement and (ii) the availability of funds under
the Unsecured Credit Facility.
"REIT" means a real estate investment trust meeting the requirements of
Sections 856 through 860 of the Code.
"REIT TAXABLE INCOME" means taxable income of a REIT, computed as if it were
an ordinary corporation, with certain modifications.
"RULE 144" means Rule 144 adopted by the SEC under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SERIES A PREFERRED STOCK" means the Series A Preferred Stock, par value
$.001 per share of the Company that was redeemed or canceled in the Merger.
"SERIES B PREFERRED STOCK" means the Series B Convertible Preferred Stock,
par value $.001 per share, of the Company issued in the Preferred Stock Private
Placement and converted into common stock effective June 29, 1998.
"SERIES D PREFERRED STOCK" means the Series D Cumulative Redeemable
Preferred Stock, par value $.001 per share, of the Company.
"SHARES-IN-TRUST" means shares of Equity Stock (including warrants or
options to acquire Equity Stock) that would be automatically transferred to a
trustee for the benefit of a charitable beneficiary because they would cause a
person to be treated as owning Equity Stock in violation of the Company's
Ownership Limit.
"STOCK PLAN" means the Amended and Restated Employee and Director Incentive
Stock Plan of the Company.
"TRUST 83" means Meridian Point Realty Trust '83, a California business
trust.
"TRUST IV" means Meridian Point Realty Trust IV Co., a Missouri corporation
that merged into the Company on February 23, 1996.
"TRUST VI" means Meridian Point Realty Trust VI Co., a Missouri corporation
that merged into the Company on February 23, 1996.
"TRUST VII" means Meridian Point Realty Trust VII Co., a Missouri
corporation that merged into the Company on February 23, 1996.
"TRUSTS" means Trust VI, Trust VI, Trust VII and Trust 83, collectively.
"USAA" means USAA Real Estate Company, a Delaware corporation which is an
indirect, wholly-owned subsidiary of United Services Automobile Association, a
reciprocal interinsurance exchange formed under the Texas Insurance Code.
"USAA OPTION" means the option USAA granted to the Company to purchase
certain industrial property located in Lakeland, Florida and the right of first
refusal to purchase certain land and improvements located in Chicago, Illinois.
"USAA WARRANT" means the warrant to purchase shares of Common Stock that the
Company issued to USAA as consideration for the USAA Option.
50
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS OR IN A PROSPECTUS
SUPPLEMENT 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 OTHER PERSON. NEITHER THIS PROSPECTUS NOR ANY
PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR A SOLICITATION OF ANY
OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES, NOR
DOES IT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY SUCH
SECURITIES 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 PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT ANY INFORMATION CONTAINED HEREIN OR
THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 2
Incorporation by Reference................................................ 2
The Company............................................................... 3
Use of Proceeds........................................................... 3
Ratio of Earnings to Combined Fixed Charges and Preferred Dividends....... 3
Description of Debt Securities............................................ 4
Description of Stock...................................................... 18
Description of Warrants................................................... 27
Selling Stockholders...................................................... 29
Plan of Distribution...................................................... 30
Certain Provisions of Maryland Law and of the Charter and Bylaws.......... 32
Federal Income Tax Considerations......................................... 37
Experts................................................................... 47
Legal Matters............................................................. 47
Glossary.................................................................. 48
</TABLE>
[LOGO]
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
---------------------
PROSPECTUS
---------------------
JULY , 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses in connection with the
issuance and distribution of the securities registered hereby, which will be
borne by the Company:
<TABLE>
<S> <C>
SEC registration fee............................................ $ 177,000
Printing and duplicating expenses............................... 125,000
Legal fees and expenses......................................... 150,000
Blue sky fees and expenses (including legal fees)............... 25,000
Accounting fees and expenses.................................... 100,000
Rating agency fees.............................................. 225,000
Trustee and transfer agent fees (including counsel fees)........ 50,000
Miscellaneous expenses.......................................... 148,000
---------
Total....................................................... $1,000,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS
The Maryland General Corporation Law ("MGCL") permits a Maryland corporation
to include in its charter a provision limiting the liability of its directors
and officers to the corporation and its stockholders for money damages except
for liability resulting from (a) actual receipt of improper benefit or profit in
money, property or services or (b) active and deliberate dishonesty established
by a final judgment as being material to the cause of action. The Company's
Charter (the "Charter") contains such a provision which eliminates such
liabilities to the maximum extent permitted by Maryland law.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Charter does not) to indemnify a director or officer who has been
successful on the merits or otherwise, in defense of any proceeding to which he
is made a party by reason of his service in that capacity. The MGCL permits a
corporation to indemnify its present and former directors and officers, among
others, against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by them in connection with any proceeding to which they may be
made a party by reason of their service in those or other capacities unless it
is established that (a) the act or omission of the director or officer was
material to the matter giving rise to the proceeding and (i) was committed in
bad faith or (ii) was the result of an active and deliberate dishonesty, (b) the
director or officer actually received an improper personal benefit in money,
property or services or (c) in the case of a criminal proceeding, the director
or officer had reasonable cause to believe that the act or omission was
unlawful. However, under the MGCL, a Maryland corporation may not indemnify for
any adverse judgment in a suit by or in the right of a corporation. In addition,
the MGCL requires the Company, as a condition to advancing expenses, to obtain
(a) a written affirmation by the director or officer of his good faith belief
that he has met the standard of conduct necessary for indemnification by the
Company as authorized by the Company's bylaws and (b) a written statement by or
on his behalf to repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that the standard of conduct was not met.
The Charter obligates the Company to the maximum extent permitted by
Maryland law to indemnify and to pay or reimburse reasonable expenses in advance
of final disposition of a proceeding to (a) any present or former director or
officer of the Company or (b) any individual who, while a director of the
Company and at the request of the Company, serves or has served as a director,
officer, partner or trustee of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise from and against any claim or
liability which such person may become subject or which such person may incur by
reason of his or her status as a current or former director or officer of the
Company. The Charter also
II-1
<PAGE>
permits the Company to indemnify and advance expenses to any person who served a
predecessor of the Company in any of the capacities described above and to any
employee or agent of the Company or a predecessor of the Company.
The Company has entered into indemnification agreements with each of its
officers and directors. The indemnification agreements require, among other
matters, that the Company indemnify its executive officers and directors to the
fullest extent permitted by law and advance to the officers all related
expenses, subject to reimbursement, if it is subsequently determined that
indemnification is not permitted. Under these agreements, the Company must also
indemnify and advance all expenses incurred by executive officers and directors
seeking to enforce their rights under the indemnification agreements and may
cover executive officers and directors under the Company's directors' and
officers' liability insurance. Although the indemnification agreement offers
substantially the same scope of coverage afforded by law, it provides greater
assurance to directors and executive officers that indemnification will be
available, because, as a contract, it cannot be modified unilaterally in the
future by the Board of Directors of the Company or its stockholders to eliminate
the rights it provides.
It is the position of the SEC that indemnification of directors and officers
for liability under the Securities Act is against public policy and
unenforceable pursuant to Section 14 of the Securities Act.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ --------------------------------------------------------------------------
<S> <C> <C>
1.1+ -- Underwriting Agreement.
3.1 -- The Company's Third Amended and Restated Articles of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-11, Registration No. 333-02322).
3.2 -- Articles Supplementary dated June 25, 1998 classifying 2,300,000 shares of
8.75% Series D Cumulative Redeemable Preferred Stock, par value $.001
per share (incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K filed June 26, 1998).
3.3 -- Second Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1997.
3.4 -- Amendment to Second Amended and Restated Bylaws adopted January 26, 1996
(incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the period ended September 30, 1997.
3.5 -- Second Amendment to Second Amended and Restated Bylaws adopted September
17, 1997 (incorporated by reference to Exhibit 3.3 to the Company's
Quarterly Report on Form 10-Q for the period ended September 30, 1997).
3.6 -- Amendment to Second Amended and Restated Bylaws adopted January 20, 1998
(incorporated by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997).
4.1 -- Form of Certificate of Common Stock, par value $.001 per share, of the
Company (incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-11, Registration No. 333-02322).
4.2** -- Form of Indenture.
4.3+ -- Form of Senior Debt Security.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ --------------------------------------------------------------------------
<S> <C> <C>
4.4+ -- Form of Deposit Agreement.
4.5+ -- Form of Depositary Receipt.
4.6+ -- Form of Warrant Agreement.
4.7+ -- Form of Warrant Certificate.
4.8* -- Form of Certificate of Series D Cumulative Redeemable Preferred Stock, par
value $.001 per share, of the Company.
4.9 -- Amended and Restated Investor Rights Agreement dated as of February 23,
1996 by and among the Company, Hunt, USAA, Ameritech and OTR
(incorporated by reference to Exhibit 10.5 to the Company's Registration
Statement on Form S-11, Registration No. 333-02322)
4.10 -- Registration Rights Agreement dated September 24, 1997, by and among the
Company, Prudential, Strategic Performance Fund-II, Inc. and The
Prudential Variable Contract Real Property Partnership (incorporated by
reference to Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1997).
4.11 -- Amended and Restated Registration Rights Agreement dated September 24,
1997, by and between the Company and Prudential on behalf of certain
insurance company separate accounts (incorporated by reference to
Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1997).
4.12 -- Registration Rights Agreement dated September 30, 1997, between the
Company and Ameritech (incorporated by reference to Exhibit 10.6 to the
Company's Quarterly Report on Form 10-Q for the period ended September
30, 1997).
4.13* -- Registration Rights Agreement dated June 30, 1998, among the Company, R.
William Gardner, Douglas C. Gardner, Steven D. Gardner and Todd L.
Platt.
5.1** -- Opinion of Ballard Spahr Andrews & Ingersoll
8.1** -- Opinion of Vinson & Elkins L.L.P. regarding certain tax matters.
12.1** -- Computation of consolidated ratios of earnings to combined fixed charges
and Preferred Stock dividends.
23.1* -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Ballard Spahr Andrews & Ingersoll (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.3 -- Consent of Vinson & Elkins L.L.P. (included in the opinion filed as
Exhibit 8.1 to this Registration Statement).
24.1 -- Power of Attorney of directors and officers (included in the signature
pages to this Registration Statement).
25.1** -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
trustee.
</TABLE>
- ------------------------
* Filed herewith.
** Previously filed.
+ To be filed.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) 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; notwithstanding the foregoing, any increase
or decrease in the 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 and of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, 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.
(c) 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act 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.
The undersigned registrant hereby undertakes to supplement the prospectus,
after the expiration of the subscription period, to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription
period, the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set
forth on the cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to Trustees, officers and controlling persons of the registrant
pursuant to the provisions set forth or described in Item 15 of this
Registration Statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act 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
II-4
<PAGE>
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 the
Securities Act and will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment no. 1 to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of San Francisco, California, on July 2, 1998.
<TABLE>
<S> <C> <C>
MERIDIAN INDUSTRIAL TRUST, INC.
By: /s/ ALLEN J. ANDERSON
-----------------------------------------
Allen J. Anderson
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this amendment
no. 1 to registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------------------------------------------- ------------------------------------------- ----------------------
<C> <S> <C>
/s/ ALLEN J. ANDERSON
----------------------------------- Chairman and Chief Executive Officer July 2, 1998
Allen J. Anderson (Principal Executive Officer)
/s/ MILTON K. REEDER
----------------------------------- President and Chief Financial Officer July 2, 1998
Milton K. Reeder (Principal Financial Officer)
/s/ RICHARD L. VALLADAO
----------------------------------- Controller (Principal Accounting Officer) July 2, 1998
Richard L. Valladao
/s/ C.E. CORNUTT*
----------------------------------- Director July 2, 1998
C.E. "Doc" Cornutt
/s/ T. PATRICK DUNCAN*
----------------------------------- Director July 2, 1998
T. Patrick Duncan
/s/ PETER O. HANSON*
----------------------------------- Director July 2, 1998
Peter O. Hanson
/s/ JOHN S. MOODY*
----------------------------------- Director July 2, 1998
John S. Moody
----------------------------------- Director
Kenneth N. Stensby
/s/ LEE W. WILSON*
----------------------------------- Director July 2, 1998
Lee W. Wilson
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ ALLEN J. ANDERSON
-------------------------
Allen J. Anderson
ATTORNEY-IN-FACT
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ --------------------------------------------------------------------------
<S> <C> <C>
1.1+ -- Underwriting Agreement.
3.1 -- The Company's Third Amended and Restated Articles of Incorporation
(incorporated by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-11, Registration No. 333-02322).
3.2 -- Articles Supplementary dated June 25, 1998 classifying 2,300,000 shares of
8.75% Series D Cumulative Redeemable Preferred Stock, par value $.001
per share (incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K filed June 26, 1998).
3.3 -- Second Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1997).
3.4 -- Amendment to Second Amended and Restated Bylaws adopted January 26, 1996
(incorporated by reference to Exhibit 3.2 to the Company's Quarterly
Report on Form 10-Q for the period ended September 30, 1997).
3.5 -- Second Amendment to Second Amended and Restated Bylaws adopted September
17, 1997 (incorporated by reference to Exhibit 3.3 to the Company's
Quarterly Report on Form 10-Q for the period ended September 30, 1997).
3.6 -- Amendment to Second Amended and Restated Bylaws adopted January 20, 1998
(incorporated by reference to Exhibit 3.5 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1997).
4.1 -- Form of Certificate of Common Stock, par value $.001 per share, of the
Company (incorporated by reference to Exhibit 4.1 to the Company's
Registration Statement on Form S-11, Registration No. 333-02322).
4.2** -- Form of Indenture.
4.3+ -- Form of Senior Debt Security.
4.4+ -- Form of Deposit Agreement.
4.5+ -- Form of Depositary Receipt.
4.6+ -- Form of Warrant Agreement.
4.7+ -- Form of Warrant Certificate.
4.8* -- Form of Certificate for Series D Cumulative Redeemable Preferred Stock,
par value $.001 per share, of the Company.
4.9 -- Amended and Restated Investor Rights Agreement dated as of February 23,
1996 by and among the Company, Hunt, USAA, Ameritech and OTR
(incorporated by reference to Exhibit 10.5 to the Company's Registration
Statement on Form S-11, Registration No. 333-02322).
4.10 -- Registration Rights Agreement dated September 24, 1997, by and among the
Company, Prudential, Strategic Performance Fund-II, Inc. and The
Prudential Variable Contract Real Property Partnership (incorporated by
reference to Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q
for the period ended September 30, 1997).
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------ --------------------------------------------------------------------------
<S> <C> <C>
4.11 -- Amended and Restated Registration Rights Agreement dated September 24,
1997, by and between the Company and Prudential on behalf of certain
insurance company separate accounts (incorporated by reference to
Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1997).
4.12 -- Registration Rights Agreement dated September 30, 1997, between the
Company and Ameritech (incorporated by reference to Exhibit 10.6 to the
Company's Quarterly Report on Form 10-Q for the period ended September
30, 1997).
4.13* -- Registration Rights Agreement dated June 30, 1998, among the Company, R.
William Gardner, Douglas C. Gardner, Steven D. Gardner and Todd L.
Platt.
5.1** -- Opinion of Ballard Spahr Andrews & Ingersoll
8.1** -- Opinion of Vinson & Elkins L.L.P. regarding certain tax matters.
12.1** -- Computation of consolidated ratios of earnings to combined fixed charges
and Preferred Stock dividends.
23.1* -- Consent of Arthur Andersen LLP.
23.2 -- Consent of Ballard Spahr Andrews & Ingersoll (included in the opinion
filed as Exhibit 5.1 to this Registration Statement).
23.3 -- Consent of Vinson & Elkins L.L.P. (included in the opinion filed as
Exhibit 8.1 to this Registration Statement).
24.1 -- Power of Attorney of directors and officers (included in the signature
pages to this Registration Statement).
25.1** -- Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
trustee.
</TABLE>
- ------------------------
* Filed herewith.
** Previously filed.
+ To be filed.
<PAGE>
SEE REVERSE FOR IMPORTANT
NOTICE ON TRANSFER
RESTRICTIONS AND OTHER
INFORMATION
CUSIP 589643 204
SERIES D CUMULATIVE REDEEMABLE PREFERRED STOCK
NUMBER SHARES
MERIDIAN INDUSTRIAL TRUST, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
This Certifies that ______________________________________________ is the
registered holder of ____________________________ fully paid and nonassessable
shares of Series D Cumulative Redeemable Preferred Stock, $.001 par value per
share of
MERIDIAN INDUSTRIAL TRUST, INC.
(the "Corporation") incorporated under Articles of Incorporation dated May
18, 1995, as amended from time to time, a copy of which together with all
amendments thereto (the "Charter") is on file with the State Department of
Assessments and Taxation of Maryland. The shares represented by this
certificate are transferable only on the books of the Corporation by the
holder hereof in person or by its duly authorized attorney upon surrender of
this Certificate properly endorsed or assigned. This certificate and the
shares represented hereby are subject in all respects to the laws of the
State of Maryland and the Charter and the Bylaws of the Corporation and any
amendments or supplements thereto, to all of which the holder of this
certificate, by acceptance hereof, assents. The Corporation is authorized to
issue Common Stock and Preferred Stock. A statement of the designations and
any preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications, and
terms and conditions of redemption of the stock of each class which the
Corporation is authorized to issue and (i) the differences in the relative
rights and preferences between the shares of each class or series of stock of
the Corporation to the extent set, and (ii) the authority of the Board of
Directors to set such rights and preferences of each subsequent class or
series, may be obtained by any stockholder upon request and without charge
from the Secretary of the Corporation at 455 Market Street, 17th Floor, San
Francisco, California 94105.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed
by its duly authorized officers and its Corporate Seal to be hereunto affixed
this _____ day of _____________, 19___.
- ------------------------------------ -----------------------------------
Secretary President
Countersigned and Registered:
Transfer Agent and Registrar
By:
---------------------------------
Authorized Signature
<PAGE>
FOR VALUE RECEIVED ___________________________ HEREBY SELL, ASSIGN AND
TRANSFER UNTO _____________________________________________________________
SHARES REPRESENTED BY THE WITHIN CERTIFICATE AND DO HEREBY IRREVOCABLY
CONSTITUTE AND APPOINT ____________________________ ATTORNEY TO TRANSFER THE
SAID SHARES ON THE SHARE REGISTER OF THE WITHIN NAMED CORPORATION WITH FULL
POWER OF SUBSTITUTION IN THE PREMISES.*
Dated ________________________, 19___
IN PRESENCE OF ______________________________________________________________
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT___________ Custodian_______
(Custodian) (Minor)
TEN ENT - as tenants by the under Uniform Gifts to Minors Act of
entireties ______________________________________________
(State)
JT TEN - as joint tenants with
right of survivorship
and not as tenants in
common
Additional abbreviations may also be used
though not in the above list.
- --------------------------------------------------------------------------------
1. The shares of stock represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of
its status as a real estate investment trust under the Internal Revenue Code
of 1986, as amended (the "Code"). No Person may (i) Beneficially Own or
Constructively Own shares of Equity Stock in excess of 8.5% (or such other
percentage as may be determined by the Board of Directors of the Corporation)
of the lesser of the number or value of any class or series of the
outstanding Equity Stock of the Corporation unless such Person is an Excepted
Holder (in which case the Excepted Holder Limit shall be applicable) and
except as expressly provided in the Articles Supplementary with respect to
the Series D Cumulative Redeemable Preferred Stock; or (ii) Beneficially Own
or Constructively Own Equity Stock which would result in the Corporation
being "closely held" under Section 856(h) of the Code or otherwise cause the
Corporation to fail to qualify as a REIT. Any Person who attempts to
Beneficially Own or Constructively Own shares of Equity Stock in excess of
the above limitations must notify the Corporation in writing at least 15 days
prior to such attempted transfer. If the restrictions above are violated,
the shares of Equity Stock represented hereby will be transferred
automatically and by operation of law to a Trust and shall be designated
Shares-in-Trust. Shares-in-Trust shall be deemed to have been offered for
sale to the Corporation, or its designee at a price as specified in the
Corporation's Charter. All capitalized terms in this legend have the
meanings defined in the Corporation's Charter, as the same may be further
amended from time to time. The foregoing summary does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Corporation's Charter, a copy of which, including the restrictions on
transfer, will be sent without charge to each stockholder who so requests.
Such request must be made to the Secretary of the Corporation.
2. The shares represented by this certificate are subject to be redeemed
by the Corporation under certain provisions of the Corporation's Charter, a
copy of which will be sent without charge to each stockholder who so requests.
Such request must be made to the Secretary of the Corporation.
- -----------------------
* NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME
AS WRITTEN UPON THE FACE OF THIS CERTIFICATE, IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE WHATEVER.
2
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") dated June 30,
1998, is entered into by and among Meridian Industrial Trust, Inc., a
Maryland corporation ("MIT"), and the securityholders listed on the signature
pages hereto (individually, a "HOLDER" and collectively, the "HOLDERS").
WHEREAS, concurrently herewith, MIT, Meridian Gateway, Inc., a Delaware
corporation and a wholly-owned subsidiary of MIT ("MERGER SUB"), DPI-Venture
I, Inc., an Ohio corporation ("DPI"), and the stockholders of DPI are
entering into that certain Agreement and Plan of Merger of even date herewith
(the "MERGER AGREEMENT"), providing for the merger (the "MERGER") of DPI with
and into Merger Sub (capitalized terms used without definition herein having
the meanings ascribed thereto in the Merger Agreement);
WHEREAS, the Holders are the record and beneficial owners of the number
of shares of DPI Common Stock without par value (the "DPI COMMON STOCK") set
forth in Column I of SCHEDULE I attached hereto, which will be converted
into, and each Holder will receive, the number of shares of MIT Common Stock
as set forth in Column II of SCHEDULE I opposite each Holder's name; and
WHEREAS, pursuant to the terms of the Merger Agreement, MIT has agreed
to register the MIT Common Stock to be received by each Holder pursuant to
the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1 DEFINITIONS. As used herein, the following terms shall
have the meanings indicated.
(a) "AFFILIATE" shall have the meaning ascribed to it in Rule 144
of the Securities Act.
(b) "COMMISSION" shall mean the United States Securities and
Exchange Commission.
(c) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934.
(d) "INDEMNIFYING PARTY" shall have that meaning ascribed to it in
Section 4.3 of this Agreement.
<PAGE>
(e) "INDEMNIFIED PARTY" shall have that meaning ascribed to it in
Section 4.3 of this Agreement.
(f) "INSPECTORS" shall have that meaning ascribed to it in Section
2.2(c) of this Agreement.
(g) "MIT COMMON STOCK" shall mean the common stock, par value $.001
per share, of MIT.
(h) "NYSE" shall mean the New York Stock Exchange or any securities
exchange or quotation system on which similar securities issued by MIT are
then listed.
(i) "RECORDS" shall have that meaning ascribed to it in Section 2.2(c)
of this Agreement.
(j) "REGISTRABLE SECURITIES" shall mean the aggregate number of
shares of MIT Common Stock listed in Column II of SCHEDULE I hereto;
PROVIDED, HOWEVER, that no Holder shall have the right to have his or her
MIT Common Stock registered under this Agreement, when (x) such securities
are no longer held of record by such Holder or (y) the Holder has the
right to resell such securities without the requirement of an effective
registration statement under the Securities Act, whether pursuant to
Rule 144 under the Securities Act or otherwise.
(k) "REGISTRATION STATEMENT" shall have that meaning ascribed to it
in Article 2 of this Agreement.
(l) "SECURITIES ACT" shall mean the Securities Act of 1933.
ARTICLE 2
REGISTRATION RIGHTS
Section 2.1 REGISTRATION STATEMENT. On or before the date that is six
months following the Effective Time, MIT shall file a registration statement
on Form S-3 or amend an existing MIT registration statement on Form S-3 or
other appropriate form pursuant to Rule 415 under the Securities Act, or
other similar rule of the Commission covering the resale by the Holders of
the Registrable Securities set forth in Column II of SCHEDULE I hereto
(however constituted, hereinafter referred to as the "REGISTRATION
STATEMENT"). MIT shall use all commercially reasonable efforts to cause the
Registration Statement to be declared effective and to keep the Registration
Statement continuously effective for a period of two years following the date
on which the Registration Statement is first declared effective or, if
sooner, until the date on which each Holder shall have sold such securities,
or is otherwise able to sell all of such securities then held by such Holder
without the requirement of an effective registration statement under the
Securities Act, whether pursuant to
2
<PAGE>
Rule 144(k) under the Securities Act or otherwise. MIT further agrees, if
necessary, to amend or supplement the Registration Statement when required by
the registration form, by the instructions applicable to Form S-3, or by the
Securities Act or the rules and regulations thereunder and at the request of
a Holder whenever a Holder has assigned such Holder's rights to have the
resale of such Holder's Registrable Securities registered hereunder to
another Holder in accordance with the terms of this Agreement.
Section 2.2 REGISTRATION PROCEDURES. MIT will as expediently as
commercially possible:
(a) Furnish to each Holder such number of copies of the
Registration Statement, any amendments thereto, any documents incorporated by
reference therein, the prospectus included in the Registration Statement,
including any preliminary prospectus, and such other documents as such Holder
may reasonably request in writing in order to facilitate the disposition of
the Registrable Securities owned by such Holder;
(b) Promptly notify each Holder of Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a
supplement to such prospectus or an amendment of the Registration Statement
necessary in order to maintain the effectiveness of the Registration
Statement and to ensure that such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading,
and to promptly file with the Commission and make available to such Holder
any such supplemented prospectus or amended Registration Statement;
(c) Make available for inspection by the Holders, and any attorney,
accountant, or other professional retained by the Holders (collectively, the
"INSPECTORS") all financial and other records, pertinent corporate documents,
and properties of MIT (collectively, the "RECORDS") as shall be reasonably
necessary to enable such Inspectors to exercise their due diligence
responsibility with respect to the Registration Statement, and cause MIT
officers, directors, and employees to supply all information reasonably
requested by any such Inspectors in connection with the Registration
Statement. Records which MIT determines, in good faith, to be confidential
and which it notifies the Inspectors are confidential shall not be disclosed
by the Inspectors unless in the judgment of counsel to MIT the disclosure of
such Records is necessary to avoid or correct a misstatement or omission in
the Registration Statement, or the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction.
Each Holder agrees that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of MIT unless and until
such is made generally available to the public. Each Holder further agrees
that it will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to MIT and allow MIT, at its
expense, to undertake appropriate action to prevent disclosure of the Records
deemed confidential. MIT may require such Holder to promptly furnish in
writing to MIT such information regarding the distribution of the Registrable
Securities as it may from time to time reasonably request and such other
information regarding such Holder as may be legally required in connection
with such registration. Each Holder agrees that, upon receipt of written
notice from MIT
3
<PAGE>
of the happening of any event of the kind described in Section 2.2(b) hereof,
such Holder will immediately discontinue the disposition of Registrable
Securities pursuant to the Registration Statement until such Holder's receipt
of the copies of the revised prospectus contemplated by Section 2.2(b)
hereof, and, if so directed by MIT, such Holder will deliver to MIT all
copies, other than permanent file copies then in such Holder's possession, of
the most recent prospectus covering such MIT Common Stock at the time of
receipt of such notice;
(d) Use every reasonable effort to register or qualify the
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as each Holder shall reasonably request, and do any and all
other acts and things which may be necessary under such securities or blue
sky laws to enable each such Holder to consummate the public sale or other
disposition in such jurisdictions of the Registrable Securities owned by such
Holder, except that MIT shall not for any such purpose be required to qualify
to do business as a foreign corporation in any jurisdiction wherein it is not
so qualified;
(e) Within a reasonable time before each filing of the
Registration Statement or prospectus, or amendments or supplements thereto
with the Commission (or any materials to be provided to the staff of the
Commission), furnish to R. William Gardner, as representative of the other
Holders, copies of such documents proposed to be filed (or provided to the
staff of the Commission);
(f) Use all commercially reasonable efforts to prevent the
issuance of any order suspending the effectiveness of the Registration
Statement, and if one is issued use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at
the earlier possible moment;
(g) Use all commercially reasonable efforts to cause the
Registrable Securities to be listed on the securities exchange or quoted on
the quotation system on which the MIT Common Stock is then listed or quoted;
and
(h) Otherwise use all commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission and make
generally available to MIT's security holders, in each case as soon as
practicable, but not later than 45 days after the close of the period covered
thereby (90 days in case the period covered corresponds to a fiscal year of
MIT), an earnings statement of MIT which will satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
comparable successor provisions).
(i) Notwithstanding any provision of this Agreement to the
contrary, remove any and all restrictive legends from the certificates of MIT
Common Stock issued to Holders two years from the date of this Agreement to
the extent permitted by applicable law.
Section 2.3 REGISTRATION EXPENSES. In connection with the Registration
Statement, MIT shall pay the following registration expenses: all
registration and filing fees; the fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and
4
<PAGE>
disbursements of MIT counsel in connection with blue sky qualifications of
the Registrable Securities); printing expenses; the reasonable fees and
disbursements of counsel for MIT and the customary fees and expenses for
independent certified public accountants retained by MIT; and the reasonable
fees and expenses of any experts retained by MIT in connection with such
registration. MIT shall not have any obligation to pay any legal fees of the
Holders, any underwriting fees, discounts, or commissions attributable to the
sale of Registrable Securities, or any out-of-pocket expenses of the Holders.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE HOLDERS.
As a condition to MIT's obligation to register the Registrable Securities and
any and all other obligations of MIT under this Agreement, each Holder hereby
represents and warrants to, and covenants and agrees with MIT as follows:
(a) this Agreement has been duly executed by such Holder and
constitutes a valid and binding agreement of such Holder enforceable against
such Holder in accordance with its terms, except that such enforcement may
be subject to applicable bankruptcy, insolvency, fraudulent transfer, or
other laws, now or hereafter in effect, affecting creditors' rights
generally, the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses (including
commercial reasonableness, good faith, and fair dealing) and to the
discretion of the court before which any proceeding therefor may be brought;
and subject to limitations as to enforceability of the indemnification and
contribution provisions hereof;
(b) the execution, delivery and performance by each Holder of this
Agreement and the consummation of the transactions contemplated hereby will
not require any consent, approval, authorization or permit of, or filing
with or notification to, any governmental or regulatory authority or other
person, except in connection with the Securities Act, or conflict with or
result in any breach or violation of any provision of any agreement to which
such Holder is a party or by which he or she is bound;
(c) such Holder will furnish to MIT the information requested
opposite such Holder's signature below, which shall include such Holder's
name exactly as it is to appear in the stock transfer records of MIT, such
Holder's current street address, phone number, telecopy number and such other
information reasonably available to such Holder as MIT may reasonably request;
(d) such Holder will not take, directly or indirectly, any action
that is designed to or which has constituted or that might reasonably be
expected to cause or result in stabilization or manipulation of the price of
any security of MIT to facilitate the sale or resale of the Registrable
Securities;
5
<PAGE>
(e) such Holder will comply with Regulation M under the Exchange
Act, which, among other things, requires a seller of Registrable Securities
and all affiliates of the that seller to suspend all bids for or purchases of
shares of MIT Common Stock at least one business day before and during any
offers and sales of Registrable Securities by that seller and until that
seller's offers and sales terminate and prohibits any person from stabilizing
the prices of a security to facilitate an offering of that security. The
Holders agree that, upon receipt of any notice from MIT of the happening of
any event of the kind described in subsection 2.2(b) hereof, such Holder will
immediately discontinue disposition of Registrable Securities pursuant to the
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection 2.2(b) hereof,
and, if so directed by MIT, each Holder will deliver to MIT all copies, other
than permanent file copies in such Holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of
such notice; and
(f) if such Holder was an affiliate of DPI at the time of the
Merger, such Holder acknowledged that he or she is subject to Rule 145
promulgated under the Securities Act and agrees that any certificates
representing MIT Common Stock issued to such Holder shall bear an appropriate
legend to such effect and that such Holder shall comply with the provisions
of Rule 145.
Section 3.2 REPRESENTATIONS AND WARRANTIES OF MIT. MIT represents and
warrants to each Holder as follows:
(a) MIT is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Maryland;
(b) this Agreement has been duly authorized by all necessary
corporate action on the part of MIT, has been duly executed by a duly
authorized officer of MIT, and constitutes a valid and binding agreement of
MIT enforceable against MIT in accordance with its terms; and
(c) the execution, delivery and performance of this Agreement by
MIT and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority except in
connection with the Securities Act, or conflict with the Third Amended and
Restated Articles of Incorporation or Second Amended and Restated By-laws of
MIT or any material agreement to which it is a party or by which it is bound.
Section 3.3 RULE 144. MIT covenants that it will file any reports
required to be filed by it under the Securities Act and the Exchange Act (or,
if MIT is not required to file such reports, it will, upon the request of any
Holder, make publicly available other information so long as necessary to
permit sales under Rule 144 under the Securities Act), and it will take such
further action as any Holder may request, all to the extent required from
time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission.
6
<PAGE>
Section 3.4 FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out
and comply with all of such party's obligations under this Agreement,
including without limitation any actions reasonably requested by MIT in
connection with obtaining any required consents or approvals to the actions
contemplated hereby under the Securities Act. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement
or arrangement) if such action would materially impair the ability of any
party to effectuate, carry out or comply with all of the terms of this
Agreement.
ARTICLE 4
INDEMNIFICATION
Section 4.1 INDEMNIFICATION BY MIT. MIT agrees to indemnify and hold
harmless each Holder, its directors and officers, if any, and each person, if
any, who controls each Holder within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities, and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or prospectus contained therein or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities, or expenses
arise out of, or are based upon, any such untrue statement or omission or
allegation thereof based upon information furnished in writing to MIT by such
Holder or on such Holder's behalf expressly for use therein; and, PROVIDED
FURTHER, that, with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, the
indemnity agreement contained in this subsection shall not apply to the
extent that it has been established that any such loss, claim, damage,
liability, or expense results from the fact that a current copy of the
prospectus was not sent or given to the person asserting any such loss,
claim, damage, liability, or expense at or prior to the written confirmation
of the sale of the Registrable Securities to such person and such current
copy of the prospectus was previously provided to the Holder and such current
copy of the prospectus would have cured the defect giving rise to such loss,
claim, damage, liability, or expense.
Section 4.2 INDEMNIFICATION BY HOLDER. Each Holder, severally but not
jointly, agrees to indemnify and hold harmless MIT, its directors and
officers, and each person, if any, who controls MIT within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from MIT to such Holder, but only
with respect to information furnished in writing by such Holder or on such
Holder's behalf expressly for use in the Registration Statement or prospectus
relating to the Registrable Securities, any amendment or supplement thereto,
or any preliminary prospectus; PROVIDED, HOWEVER, that such Holder shall not
be obligated to provide such indemnity to the extent that such losses,
claims, damages, liabilities or
7
<PAGE>
expenses result from the failure of MIT to promptly amend or take action to
correct or supplement any such Registration Statement or Prospectus on the
basis of corrected or supplemental information provided in writing by such
Holder to MIT expressly for such purpose. In case any action or proceeding
shall be brought against MIT or its directors or officers, or any such
controlling person, in respect of which indemnity may be sought against such
Holder, such Holder and its directors, officers and controlling persons shall
have the rights and duties given to MIT, and MIT or its directors or officers
or such controlling person shall have the rights and duties given to such
Holder, by the preceding subsection hereof. In no event shall the liability
of any Holder of Registrable Securities hereunder be greater in amount than
the amount of the proceeds received by such Holder upon the sale of the
Registrable Securities giving rise to such indemnification obligation.
Section 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any person entitled to indemnification under Section 4.1 or
4.2 above (an "INDEMNIFIED PARTY") in respect of which indemnity may be
sought from any party who has agreed to provide such indemnification (an
"INDEMNIFYING PARTY"), the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Party, and shall assume the payment of all expenses. Such
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless the
Indemnifying Party has agreed to pay such fees and expenses, the
Indemnifying Party has failed to assume the defense of such action within a
reasonable time following written notice thereof from the Indemnified Party
or fails to employ counsel reasonably satisfactory to such Indemnified Party,
or the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that
there is a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the Indemnifying Party shall not have the right to assume the defense of such
action or proceeding on behalf of such Indemnified Party; it being
understood, however, that the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar
or related actions or proceedings in the same jurisdiction arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such Indemnified Parties,
which firm shall be designated in writing by such Indemnified Parties). The
Indemnifying Party shall not be liable for any settlement of any such action
or proceeding effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any loss or liability (to
the extent stated above) by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which such Indemnified Party is a party, and
indemnity could have been sought hereunder by such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
8
<PAGE>
Section 4.4 CONTRIBUTION. If the indemnification provided for in this
Article 4 is unavailable to the Indemnified Parties in respect of any losses,
claims, damages, liabilities, or judgments referred to herein, then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages, liabilities and judgments in the
following manner: as between MIT on the one hand and Holder on the other, in
such proportion as is appropriate to reflect the relative fault of MIT on the
one hand and each selling Holder on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of MIT on the one hand and of Holder on
the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the party's relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of subsection
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 4.4, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Holder were offered to the
public exceeds the amount of any damages which such Holder has otherwise been
required to pay by reason of such untrue statement or omission. Each
Holder's obligation to contribute pursuant to this Section 4.4 is several in
the proportion that the proceeds of the offering received by such Holder
bears to the total proceeds of the offering received by all the Holders and
not joint.
Section 4.5 SURVIVAL. The indemnity and contribution agreements
contained in this Article 4 shall remain operative and in full force and
effect regardless of any termination of this Agreement, any investigation
made by or on behalf of any Indemnified Party or by or on behalf of MIT, and
the consummation of the sale or successive resale of the Registrable
Securities.
ARTICLE 5
GENERAL
Section 5.1 AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified, or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, other than as
initially agreed upon in writing by MIT and the Holders.
Section 5.2 NOTICES. All notices and other communications given or
made pursuant hereto shall be in writing and shall be deemed to have been
duly given upon receipt, if delivered personally, sent by nationally
recognized overnight courier service, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier
number specified below:
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(a) If to MIT, to:
Meridian Industrial Trust, Inc.
455 Market Street, 17th Floor
San Francisco, California 94105
Attention: General Counsel
Fax: (415) 284-2840
with copies to:
Vinson & Elkins L.L.P.
2001 Ross Avenue
Suite 3700
Dallas, Texas 75201
Attention: Michael D. Wortley
Mark Early
Fax: (214) 220-7716
(b) If to a Holder, to the address set forth opposite such
Holder's name on the signature pages hereto.
Section 5.3 SUCCESSORS AND ASSIGNS. No Holder may assign any rights or
benefits under this Agreement, other than the assignment by a Holder of all
or a portion of his rights to have the resale of his Registrable Securities
registered under this Agreement to any other Holder who holds Registrable
Securities, without the prior written consent of MIT. This Agreement shall
inure to the benefit of, and be binding upon, the successors and assigns of
MIT and the successors and permitted assigns of the Holders.
Section 5.4 COUNTERPARTS. This Agreement may be executed in a number
of identical counterparts and it shall not be necessary for MIT and each
Holder to execute each of such counterparts, but when each has executed and
delivered one or more of such counterparts, the several parts, when taken
together, shall be deemed to constitute one and the same instrument,
enforceable against each in accordance with its terms. In making proof of
this Agreement, it shall not be necessary to produce or account for more than
one such counterpart executed by the party against whom enforcement of this
Agreement is sought.
Section 5.5 HEADINGS. The descriptive headings of the several sections
and paragraphs of this Agreement are inserted for convenience of reference
only, do not constitute a part of this Agreement and shall not limit or
otherwise affect the meaning or interpretation of this Agreement.
Section 5.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Maryland, without
regard to principles of conflicts or choice of law. The parties hereto agree
to submit to the exclusive jurisdiction of the State of Maryland, for
purposes of any suit, action or other proceeding arising out of this
Agreement.
10
<PAGE>
Section 5.7 SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future laws
effective during the term of this Agreement, such provision shall be fully
severable; this Agreement shall be construed and enforced as if such illegal,
invalid or unenforceable provision had never comprised a part of this
Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
Furthermore, in lieu of each such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
Section 5.8 ENTIRE AND CONTROLLING AGREEMENT. This Agreement is
intended by MIT and the Holders as a final expression of their agreement and
is intended to be a complete and exclusive statement of their agreement and
understanding in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between MIT and
the Holders with respect to such subject matter. The provisions of this
Agreement shall control in any conflict with the provisions of the Merger
Agreement, with regard to the Registrable Securities.
Section 5.9 THIRD PARTY BENEFICIARIES. Other than Indemnified Parties
not a party hereto, this Agreement is intended only for the benefit of MIT
and the Holders and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any
other person or entity.
Section 5.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement
herein, nor shall any single or partial exercise of any such right preclude
other or further exercise thereof or of any other right. All rights and
remedies existing under this Agreement are in addition to, and not exclusive
of, any rights or remedies otherwise available.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
MERIDIAN INDUSTRIAL TRUST, INC.
By: /s/ Robert A. Dobbin
----------------------------------
Name: Robert A. Dobbin
--------------------------------
Title: Secretary and General Counsel
-------------------------------
HOLDERS:
Address: 1625 Bethel Rd. Suite 203 /s/ R. William Gardner
Columbus, Ohio 43220 -------------------------------------
Telephone No.(614) 451-4454 R. William Gardner
Telecopier No.(614) 451-3008
Address: 1625 Bethel Rd. Suite 203 /s/ Douglas C. Gardner
Columbus, Ohio 43220 -------------------------------------
Telephone No.(614) 451-4454 Douglas C. Gardner
Telecopier No.(614) 451-3008
Address: 1625 Bethel Rd. Suite 203 /s/ Steven D. Gardner
Columbus, Ohio 43220 -------------------------------------
Telephone No.(614) 451-4454 Steven D. Gardner
Telecopier No.(614) 451-3008
Address: 13600 Heritage Parkway, /s/ Todd L. Platt
Suite 200 -------------------------------------
Fort Worth, Texas 76177 Todd L. Platt
Telephone No.(817) 224-6000
Telecopier No.(817) 224-6060
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SCHEDULE I
<TABLE>
DPI COMMON STOCK MIT COMMON STOCK
---------------- ----------------
<S> <C> <C>
R. William Gardner 10 shares 8,840
Douglas C. Gardner 20 shares 17,680
Steven D. Gardner 20 shares 17,680
Todd L. Platt 25 shares 22,100
</TABLE>
<PAGE>
EXHIBIT 23.1
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 March 23, 1998
included in Meridian Industrial Trust, Inc.'s Form 10-K for the year ended
December 31, 1997 and to all references to our Firm included in this
registration statement.
We also consent to the incorporation by reference in this registration
statement of our report dated February 17, 1998 on the statement of revenues and
certain expenses for the year ended December 31, 1997 of the Estate of James
Campbell Transaction included in Meridian Industrial Trust, Inc.'s Current
Report on Form 8-K filed with the Commission on May 29, 1998.
We also consent to the incorporation by reference in this registration
statement of our report dated June 17, 1998 on the statement of revenues and
certain expenses for the year ended December 31, 1997 of the Jackson Shaw
Portfolio included in Meridian Industrial Trust, Inc.'s Current Report on Form
8-K filed with the Commission on June 23, 1998.
We also consent to the incorporation by reference in this registration
statement of our report dated June 22, 1998 on the statement of revenues and
certain expenses for the year ended December 31, 1997 of the 5141 E. Santa Ana
Property included in Meridian Industrial Trust, Inc.'s Current Report on Form
8-K filed with the Commission on July 2, 1998.
/s/ Arthur Andersen LLP
San Francisco, California
July 2, 1998
