S-11/A: Registration of securities issued by real estate companies
Published on November 5, 1997
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 5, 1997
NO. 333-35281
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENTERTAINMENT PROPERTIES TRUST
(Exact name of Registrant as specified in its charter)
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ONE KANSAS CITY PLACE
1200 MAIN STREET, SUITE 3250
KANSAS CITY, MISSOURI 64105
(816) 480-4649
(Address of Principal Executive Offices)
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PETER C. BROWN
ENTERTAINMENT PROPERTIES TRUST
ONE KANSAS CITY PLACE
1200 MAIN STREET, SUITE 3250
KANSAS CITY, MISSOURI 64105
(816) 480-4649
(Name and address of agent for service)
COPIES TO:
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after this registration statement becomes effective.
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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. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 31. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table itemizes the expenses incurred by the Registrant in
connection with the offering of the shares being registered. All the amounts
shown are estimates (other than the SEC registration fee and the NASD fee).
ITEM 32. SALES TO SPECIAL PARTIES.
See Item 33.
ITEM 33. RECENT SALES OF UNREGISTERED SECURITIES.
On August 28, 1997, the Company issued 50 shares of Common Stock to Robert
L. Harris and 50 shares of Common Stock to David M. Brain at a purchase price of
$20.00 per share. Such shares were issued in a transaction exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933 as they were
issued in a transaction not involving any public offering. In addition, Robert
L. Harris and David M. Brain agreed to purchase an aggregate of 120,000 Shares
pursuant to the Company's Share Purchase Program. Such Shares will be issued to
the two officers pursuant to the exemption provided by Section 4(2) of the
Securities Act as they were issued in a transaction not involving any public
offering. The opportunity to purchase such Shares was not made to any person
other than Mr. Harris and Mr. Brain and the agreement by such officers to
purchase such Shares was made prior to the filing of the Registration Statement
on September 10, 1997. Both Mr. Harris and Mr. Brain are "accredited investors"
and "executive officers" as defined in Rule 501 in Regulation D under the
Securities Act.
ITEM 34. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Maryland law permits a Maryland corporation to include in its declaration of
trust 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 Registrant's
declaration of trust contains such a provision which eliminates such liability
to the maximum extent permitted by Maryland law.
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The Registrant's officers and trustees are and will be indemnified under the
Registrant's declaration of trust against certain liabilities. The Registrant's
declaration of trust provides that the Registrant will, to the maximum extent
permitted by Maryland law in effect from time to time, indemnify (a) any
individual who is a present or former trustee or officer of the Registrant or
(b) any individual who, while a trustee or officer of the Registrant and at the
request of the Registrant, serves or has served as a director, officer,
shareholder, partner, trustee, employee or agent of any real estate investment
trust corporation, partnership, joint venture, trust, employee benefit plan or
any other enterprise from and against any claim or liability, together with
reasonable expenses actually incurred in advance of a final disposition of a
legal proceeding, to which such person may become subject or which such person
may incur by reason as his or her status as such. The Registrant has the power,
with the approval of the Registrant's Board of Trustees, to provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Registrant in any of the capacities described in (a) or (b) above and to
any employee or agent of the Registrant or its predecessors.
Maryland law permits a Maryland real estate investment trust to indemnify
and advance expenses to its trustees, officers, employees and agents to the same
extent as permitted by the Maryland General Corporation Law ("MGCL") for
directors, officers, employees and agents of a Maryland corporation. The MGCL
requires a corporation (unless its charter provides otherwise, which the
Registrant's declaration of trust does not) to indemnify a director or officer
who has been successful, on the merits or otherwise, in the defense of any
proceeding to which he or she is made a party by reason of his or her 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 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 any 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 an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification by the corporation and (b) a written undertaking
by or on his or her behalf to repay the amount paid or reimbursed by the
corporation if it shall ultimately be determined that the standard of conduct
was not met.
The Registrant has entered into indemnity agreements with each of its
officers and trustees which provide for reimbursement of all expenses and
liabilities of such officer or trustee, arising out of any lawsuit or claim
against such officer or trustee due to the fact that he or she was or is serving
as an officer or trustee, except for such liabilities and expenses (a) the
payment of which is judicially determined to be unlawful, (b) relating to claims
under Section 16(b) of the Exchange Act or (c) relating to judicially determined
criminal violations.
The form of Underwriting Agreement filed as an exhibit to this Registration
Statement provides for the reciprocal indemnifications by the Underwriters of
the Registrant, and its trustees, officers and controlling persons, and by the
Registrant of the Underwriters, and their respective directors, officers and
controlling persons, against certain liabilities under the Securities Act.
ITEM 35. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
The consideration to be received by the Registrant for the shares registered
will be credited to the appropriate capital account.
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ITEM 36. FINANCIAL STATEMENTS AND EXHIBITS.
See Index to Financial Statements and Index to Exhibits.
ITEM 37. UNDERTAKINGS.
The undersigned Registrant hereby undertakes to provide to the underwriters
at the closing specified in the underwriting agreements, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, 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 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 director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The Registrant hereby undertakes that: (1) for purposes of determining any
liability under the Securities Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in reliance upon Rule
430A and contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared effective;
and (2) for the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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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-11 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF KANSAS CITY, STATE OF MISSOURI, ON THE 5th DAY
OF NOVEMBER, 1997.
Pursuant to requirements of the Securities Act of 1933, this Amendment to
the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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* Chairman of the Board of
- ------------------------------ Trustees (Principal November 5, 1997
PETER C. BROWN Executive Officer)
* President, Chief
- ------------------------------ Development Officer and November 5, 1997
ROBERT L. HARRIS Trustee
/s/ DAVID M. BRAIN Chief Financial Officer
- ------------------------------ (Principal Financial and November 5, 1997
DAVID M. BRAIN Accounting Officer)
*By: /s/ DAVID M. BRAIN
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DAVID M. BRAIN
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INDEX TO EXHIBITS
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* To be filed by amendment.
+ Previously filed.
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