AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 2001
REGISTRATION NO. 333-69846
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FIVE STAR QUALITY CARE, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 8051 04-3516029
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of Industrial Identification Number)
incorporation or organization) Classification Code Number)
400 CENTRE STREET
NEWTON, MASSACHUSETTS 02458
(617) 796-8387
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
EVRETT W. BENTON, PRESIDENT
FIVE STAR QUALITY CARE, INC.
400 CENTRE STREET
NEWTON, MASSACHUSETTS 02458
(617) 796-8387
(Name, address, including zip code, telephone number, including area code, of
agent for service)
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COPY TO:
WILLIAM J. CURRY, ESQ.
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement
becomes effective.
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. / /
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _____
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _____
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The Registrant has filed this Pre-Effective Amendment No. 3 to Registration
Statement to modify Exhibit 5.2.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate (except in the case of the registration fee)
of the amount of fees and expenses to be incurred in connection with the
issuance and distribution of the offered securities. All such fees and expenses
are to be paid by Senior Housing Properties Trust.
Registration Fee Under Securities Act of 1933............... $ 12,529
Blue Sky Fees and Expenses.................................. 1,000
American Stock Exchange Listing Fee......................... 25,000
Legal Fees and Expenses..................................... 750,000
Accounting Fees and Expenses................................ 450,000
Printing and Engraving...................................... 400,000
Distribution Agent, Transfer Agent and Registrar Fees and
Expenses.................................................. 25,000
Miscellaneous Fees and Expenses............................. 86,471
Total:...................................................... $1,750,000
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Maryland General Corporation Law permits a Maryland corporation to
include in its charter a provision limiting the liability of its directors and
officers to the corporation and its shareholders for money damages except for
liability resulting from (a) actual receipt of an improper benefit or profit in
money, property or services or (b) acts committed in bad faith or active and
deliberate dishonesty established by a final judgment as being material to the
cause of action. The Company's charter contains such a provision which
eliminates such liability to the maximum extent permitted by Maryland law.
The Company's charter authorizes the Company, to the maximum extent
permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonably expenses in advance of final disposition of a proceeding to
(i) any present or former director or officer or (ii) any individual who, while
a director and at the Company's request, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise from and against any claim or
liability to which he or she may become subject or which he or she may incur by
reason of his or her status as a present or former director or officer of the
Company. The Company's bylaws obligate it, 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 who is made party to the proceeding by reason of his service
in that capacity or (b) any individual who, while a director or officer of the
Company and at the request of the Company, serves or has served another
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner or
trustee of such corporation, real estate investment trust, partnership, joint
venture, trust, employee benefit plan or other enterprise and who is made a
party to the proceeding by reason of his service in that capacity, against any
claim or liability to which he may become subject by reason of such status. The
Company's charter and bylaws also permit 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 Maryland General Corporation Law requires a
corporation (unless its charter provides otherwise, which the Company's charter
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 Maryland General
Corporation Law permits a corporation to indemnify its directors and officers,
among others, against judgments, penalties, fines, settlements and reasonable
expenses actually incurred
II-1
by them in connection with any proceedings 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 proceedings 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 Maryland General Corporation Law, 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 accordance with the Maryland General Corporation
Law, the Company's bylaws require it, as a condition to advancing expenses, to
obtain (1) 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 Company as authorized by the Company's bylaws and (2) a
written statement by or on his or her 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.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
In the three years preceding the filing of this registration statement, we
have issued the following securities that were not registered under the
Securities Act:
On September 17, 2001, we issued 1,000 shares of common stock to Senior
Housing Properties Trust for $1,000 in connection with our organization under
Maryland law.
No underwriters were used in the foregoing transaction. The sale of
securities described above were made in reliance upon the exemption from
registration provided by Section 4(2) of the Securities Act for transactions by
an issuer not involving a public offering.
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ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
EXHIBIT NO. DESCRIPTION
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2.1* Form of Agreement of Merger among the Registrant, FSQ
Acquisition, Inc. and FSQ, Inc.
3.1* Articles of Amendment and Restatement of the Registrant
3.2* Amended and Restated Bylaws of the Registrant
4.1* Specimen Certificate for shares of common stock of the
Registrant
4.2* Description of Capital Stock (contained in Exhibits 3.1 and
3.2)
5.1* Legal Opinion of Sullivan & Worcester LLP
5.2 Legal Opinion of Ballard Spahr Andrews & Ingersoll, LLP
8.1* Legal Opinion of Sullivan & Worcester LLP re: tax matters
10.1* Form of Transaction Agreement by and among Senior Housing
Properties Trust, certain subsidiaries of Senior Housing
Properties Trust party thereto, the Registrant, certain
subsidiaries of the Registrant party thereto, FSQ, Inc.,
Hospitality Properties Trust, HRPT Properties Trust and Reit
Management & Research LLC
10.2* Stock Purchase Agreement among Senior Housing Properties
Trust, SNH/CSL Properties Trust, Crestline Capital
Corporation and CSL Group, Inc., dated August 9, 2001
10.2(a)* Amendment to Stock Purchase Agreement among Senior Housing
Properties Trust, SNH/CSL Properties Trust, Crestline
Capital Corporation and CSL Group, Inc. dated November 5,
2001
#10.3* Form of Operating Agreement
#10.4* Form of Pooling Agreement
10.5* Form of Shared Services Agreement between the Registrant and
Reit Management & Research LLC
10.6* Form of Master Lease Agreement by and among certain
affiliates of Senior Housing Properties Trust, as Landlords,
and Five Star Quality Care Trust, as Tenant, relating to the
56 properties managed by FSQ, Inc.
10.7* Form of Master Lease Agreement by and among certain
affiliates of Senior Housing Properties Trust, as Landlords,
and FS Tenant Holding Company Trust, as Tenant, relating to
the 31 properties managed by Marriott Senior Living
Services, Inc.
10.8* 2001 Stock Option and Stock Incentive Plan
10.9* Form of Guaranty Agreement made by the Registrant, as
Guarantor, for the benefit of the Landlords under the Form
of Master Lease Agreement relating to the 56 properties
managed by FSQ, Inc.
10.10* Form of Guaranty Agreement made by the Registrant, as
Guarantor, for the benefit of the Landlords under the Form
of Master Lease Agreement relating to the 31 properties
managed by Marriott Senior Living Services, Inc.
10.11* Form of Pledge of Shares of Beneficial Interest Agreement
made by the Registrant for the benefit of the Landlords
under the Form of Master Lease Agreement for the 56
properties managed by FSQ, Inc.
10.12* Form of Pledge of Shares of Beneficial Interest Agreement
made by FSQ, Inc. for the benefit of the Landlords under the
Form of Master Lease Agreement for the 31 properties managed
by Marriott Senior Living Services, Inc.
10.13* Form of Security Agreement by and among Five Star Quality
Care Trust and the Landlords under the Form of Master Lease
Agreement relating to the 56 properties managed by FSQ, Inc.
10.14* Form of Security Agreement by and among FS Tenant Holding
Company Trust and the Landlords under the Form of Master
Lease Agreement relating to the 31 properties managed by
Marriott Senior Living Services, Inc.
11.1* Statement re: Computation of Per Share Earnings
21.1* Subsidiaries of the Registrant
23.1* Consent of Sullivan & Worcester LLP (contained in Exhibits
5.1 and 8.1)
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EXHIBIT NO. DESCRIPTION
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23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in Exhibit 5.2)
23.3* Consent of Ernst & Young LLP
23.4* Consent of KPMG LLP
23.5* Consent of Arthur Andersen LLP
24.1* Power of Attorney
99.1* Consent of John L. Harrington to being named a Director
99.2* Consent of Bruce M. Gans to being named a Director
99.3* Consent of Arthur G. Koumantzelis to being named a Director
99.4* Form of Audit Committee Charter of the Registrant
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* Filed previously.
# Agreement filed is illustrative of numerous other agreements to which the
Registrant will be a party.
(b) Financial Statement Schedules:
1. Schedule II -- Valuation and Qualifying Accounts of Forty-two Facilities
Acquired by Senior Housing Properties Trust from Integrated Health
Services, Inc.
2. Schedule II -- Valuation and Qualifying Accounts of Certain Mariner
Post-Acute Network Facilities (Operated by subsidiaries of Mariner
Post-Acute Network, Inc.)
All other schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under the
related instructions or are not applicable, and therefore have been omitted.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 14 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 of 1933 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 whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
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 Newton,
Commonwealth of Massachusetts, on December 6, 2001.
FIVE STAR QUALITY CARE, INC.
By: *
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Evrett W. Benton
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement on Form S-1 has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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* President and Chief Executive December 6, 2001
---------------------------------------- Officer
Evrett W. Benton
/s/ BRUCE J. MACKEY JR. Chief Financial Officer and December 6, 2001
---------------------------------------- Treasurer
Bruce J. Mackey Jr.
/s/ BARRY M. PORTNOY Director December 6, 2001
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Barry M. Portnoy
/s/ GERARD M. MARTIN Director December 6, 2001
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Gerard M. Martin
*By: /s/ BARRY M. PORTNOY
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ATTORNEY-IN-FACT
PURSUANT TO THE POWERS OF ATTORNEY
PREVIOUSLY PROVIDED AS PART OF
THIS REGISTRATION STATEMENT.
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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2.1* Form of Agreement of Merger among the Registrant, FSQ
Acquisition, Inc. and FSQ, Inc.
3.1* Articles of Amendment and Restatement of the Registrant
3.2* Amended and Restated Bylaws of the Registrant
4.1* Specimen Certificate for shares of common stock of the
Registrant
4.2* Description of Capital Stock (contained in Exhibits 3.1 and
3.2)
5.1* Legal Opinion of Sullivan & Worcester LLP
5.2 Legal Opinion of Ballard Spahr Andrews & Ingersoll, LLP
8.1* Legal Opinion of Sullivan & Worcester LLP re: tax matters
10.1* Form of Transaction Agreement by and among Senior Housing
Properties Trust, certain subsidiaries of Senior Housing
Properties Trust party thereto, the Registrant, certain
subsidiaries of the Registrant party thereto, FSQ, Inc.,
Hospitality Properties Trust, HRPT Properties Trust and Reit
Management & Research LLC
10.2* Stock Purchase Agreement among Senior Housing Properties
Trust, SNH/CSL Properties Trust, Crestline Capital
Corporation and CSL Group, Inc., dated August 9, 2001
10.2(a)* Amendment to Stock Purchase Agreement among Senior Housing
Properties Trust, SNH/CSL Properties Trust, Crestline
Capital Corporation and CSL Group, Inc. dated November 5,
2001
#10.3* Form of Operating Agreement
#10.4* Form of Pooling Agreement
10.5* Form of Shared Services Agreement between the Registrant and
Reit Management & Research LLC
10.6* Form of Master Lease Agreement by and among certain
affiliates of Senior Housing Properties Trust, as Landlords,
and Five Star Quality Care Trust, as Tenant, relating to the
56 properties managed by FSQ, Inc.
10.7* Form of Master Lease Agreement by and among certain
affiliates of Senior Housing Properties Trust, as Landlords,
and FS Tenant Holding Company Trust, as Tenant, relating to
the 31 properties managed by Marriott Senior Living
Services, Inc.
10.8* 2001 Stock Option and Stock Incentive Plan
10.9* Form of Guaranty Agreement made by the Registrant, as
Guarantor, for the benefit of the Landlords under the Form
of Master Lease Agreement relating to the 56 properties
managed by FSQ, Inc.
10.10* Form of Guaranty Agreement made by the Registrant, as
Guarantor, for the benefit of the Landlords under the Form
of Master Lease Agreement relating to the 31 properties
managed by Marriott Senior Living Services, Inc.
10.11* Form of Pledge of Shares of Beneficial Interest Agreement
made by the Registrant for the benefit of the Landlords
under the Form of Master Lease Agreement for the 56
properties managed by FSQ, Inc.
10.12* Form of Pledge of Shares of Beneficial Interest Agreement
made by FSQ, Inc. for the benefit of the Landlords under the
Form of Master Lease Agreement for the 31 properties managed
by Marriott Senior Living Services, Inc.
10.13* Form of Security Agreement by and among Five Star Quality
Care Trust and the Landlords under the Form of Master Lease
Agreement relating to the 56 properties managed by FSQ, Inc.
10.14* Form of Security Agreement by and among FS Tenant Holding
Company Trust and the Landlords under the Form of Master
Lease Agreement relating to the 31 properties managed by
Marriott Senior Living Services, Inc.
11.1* Statement re: Computation of Per Share Earnings
21.1* Subsidiaries of the Registrant
23.1* Consent of Sullivan & Worcester LLP (contained in Exhibits
5.1 and 8.1)
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in Exhibit 5.2)
23.3* Consent of Ernst & Young LLP
23.4* Consent of KPMG LLP
EXHIBIT NO. DESCRIPTION
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23.5* Consent of Arthur Andersen LLP
24.1* Power of Attorney
99.1* Consent of John L. Harrington to being named a Director
99.2* Consent of Bruce M. Gans to being named a Director
99.3* Consent of Arthur G. Koumantzelis to being named a Director
99.4* Form of Audit Committee Charter of the Registrant
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* Filed previously.
# Agreement filed is illustrative of numerous other agreements to which the
Registrant will be a party.