<PAGE> 1
As filed with the Securities and Exchange Commission on December 16, 1997
===============================================================================
REGISTRATION NO. 333-
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
EQUITY OFFICE PROPERTIES TRUST
(Exact name of registrant as specified in its governing instrument)
MARYLAND 36-4151656
(State of Organization) (I.R.S. Employer Identification Number)
TWO NORTH RIVERSIDE PLAZA, SUITE 2200
CHICAGO, ILLINOIS 60606
(Address of principal executive offices)
STANLEY M. STEVENS
CHIEF LEGAL COUNSEL
TWO NORTH RIVERSIDE PLAZA, SUITE 2200
CHICAGO, ILLINOIS 60606
(Name and address of agent for service)
(312) 466-3300
(Telephone number, including area code, for Agent for Service)
--------------------------------------------------------------
Copies to:
J. WARREN GORRELL, JR.
JAMES E. SHOWEN
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF CLASS AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
OF SECURITIES BEING REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) REGISTRATION FEE (3)
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest,
$.01 par value 4,749,095 Shares various $92,196,049 $27,197
===============================================================================================================================
</TABLE>
(1) This Registration Statement covers the maximum number of Common Shares of
the Registrant that could be issued upon exercise of all outstanding
options under the Beacon Properties Corporation ("Beacon") 1994 Stock
Option and Incentive Plan and 1996 Stock Option Plan. The Registrant
assumed the obligations of Beacon under such plans upon the consummation
on December 19, 1997 of the merger of Beacon with and into the Registrant
pursuant to the terms of that certain Agreement and Plan of Merger dated
as of September 15, 1997, as amended, among the Registrant, EOP Operating
Limited Partnership, a Delaware limited partnership, Beacon and Beacon
Properties, L.P., a Delaware limited partnership.
(2) Determined pursuant to Rule 457(h)(1).
(3) Previously paid by the registrant as computed pursuant to Rule 457(f)(1)
in connection with a Registration Statement on Form S-4 (Commission File
No. 333-40357) on November 17, 1997.
_________________________
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EXPLANATORY NOTE
This Registration Statement covers the maximum number of Common Shares of
the Registrant that could be issued upon exercise of all outstanding options
under the Beacon Properties Corporation ("Beacon") 1994 Stock Option and
Incentive Plan and 1996 Stock Option Plan. The Registrant assumed the
obligations of Beacon under such plans upon the consummation on December 19,
1997 of the merger of Beacon with and into the Registrant (the "Merger")
pursuant to the terms of that certain Agreement and Plan of Merger dated as of
September 15, 1997, as amended, among the Registrant, EOP Operating Limited
Partnership, a Delaware limited partnership, Beacon and Beacon Properties,
L.P., a Delaware limited partnership. The issuance of shares pursuant to this
Registration Statement is contingent upon the consummation of the Merger.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement and shall be deemed to
be a part hereof:
(a) Joint Proxy Statement/Prospectus dated November 19, 1997, filed
pursuant to Rule 424(b) on November 19, 1997;
(b) Prospectus dated July 7, 1997, filed pursuant to Rule 424(b) on July
8, 1997;
(c) Quarterly Reports on Form 10-Q for the periods ended June 30, 1997 and
September 30, 1997;
(d) Periodic Reports on Form 8-K dated October 1, 1997, September 15,
1997, and August 4, 1997; and
(e) Description of the Common Shares contained in the Registration
Statement on Form 8-A (Commission File No. 1-13115) dated June 19, 1997.
All documents subsequently filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and shall be
deemed a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Rosenberg & Liebentritt, P.C., a law firm in which Sheli Z. Rosenberg, a
trustee of the Registrant, was a principal until September 11, 1997, and is now
of counsel to, received legal fees from the Registrant of approximately
$1,900,000, $2,461,000, $3,480,500 and $3,230,100 for the nine months ended
September 30, 1997 and 1996 and the years ended December 31, 1996 and 1995,
respectively. Attorneys for Rosenberg & Liebentritt, P.C. beneficially own
less than 1% of the outstanding Common Shares of Beneficial Interest, par value
$.01 per share, of the Registrant, either directly or upon the exercise of
options.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's officers and directors are and will be indemnified under
Maryland and Delaware law, the Declaration of Trust and Bylaws of the
Registrant and the Partnership Agreement of the EOP Operating Limited
Partnership against certain liabilities. The Declaration of Trust of the
Registrant requires it to indemnify its directors and officers to the fullest
extent permitted from time to time under Maryland law.
The Declaration of Trust of the Registrant authorizes it, to the maximum
extent permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding
to (a) any present or former trustee or officer or (b) any individual who,
while a trustee of the Registrant and at the request of the Registrant, serves
or has served as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan
or any other enterprise from and against any claim or liability to which such
person may become subject or which such person may incur by reason of his or
her status as a present or former trustee or officer of the Registrant. The
Bylaws of the Registrant 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
trustee or officer who is made party to the proceeding by reason of his service
in that capacity or (b) any individual who, while a trustee or officer of the
Registrant and at the request of the Registrant, serves or has served another
real estate investment trust, corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a trustee, director, officer
or partner of such real estate investment trust, corporation, 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 Declaration of Trust and Bylaws also permit the Registrant to indemnify
and advance expenses to any person who served as a predecessor of the
Registrant in any of the capacities described above and to any employee or
agent of the Registrant or a predecessor of the Registrant. The Bylaws require
the Registrant to indemnify a trustee or officer who has been successful, on
the merits or otherwise, in the defense of any proceeding to which he is made a
party by reason of his service in that capacity.
The Maryland REIT 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 MGCL for directors and officers of
Maryland corporations. 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
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an adverse judgment in a suit by or in the right of the corporation or
for a judgment of liability on the basis that a personal benefit was improperly
received, unless, in either case, a court orders indemnification and then only
for expenses. Under the MGCL, as a condition to advancing expenses, as required
by the Bylaws, the Registrant must first receive (a) a written affirmation by
the trustee or officer of his good faith belief that he has met the standard of
conduct necessary for indemnification by the Registrant and (b) a written
statement by or on his behalf to repay the amount paid or reimbursed by the
Registrant if it shall ultimately be determined that the standard of conduct was
not met.
The Registrant has entered into indemnification agreements with each of
its trustees and executive officers. The indemnification agreements require,
among other things, that the Registrant indemnify its trustees and executive
officers to the fullest extent permitted by law and advance to the trustees and
executive officers all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Under these
agreements, the Registrant must also indemnify and advance all expenses
incurred by trustees and executive officers seeking to enforce their rights
under the indemnification agreements and may cover trustees and executive
officers under the Registrant's trustees and officers' liability insurance.
Although the form of indemnification agreement offers substantially the same
scope of coverage afforded by law, as a traditional form of contract it may
provide greater assurance to trustees and executive officers that
indemnification will be available.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index attached hereto which is incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in 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 end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
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Commission pursuant to Rule 424(b) if, in the aggregate, such changes in
volume and price represent no more than a 20% change in the maximum
aggregated 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 subparagraphs (i) and (ii) above do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in the periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities and
Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(2) That for purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the Common Shares offered herein, and the offering of
such Common Shares at that time shall be deemed to be the initial bona fide
offering thereof.
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 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 whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois on December 16, 1997.
Equity Office Properties Trust
By: /s/ Timothy H. Callahan
---------------------------------
Timothy H. Callahan
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, hereby constitutes and appoints Samuel Zell and Timothy H. Callahan, or
either of them, his attorneys-in-fact and agents, with full power of
substitution and resubstitution for him in any and all capacities, to sign any
or all amendments or post-effective amendments to this Registration Statement,
and to file the same, with exhibits thereto and other documents in connection
therewith or in connection with the registration of the Common Shares under the
Exchange Act, with the Securities and Exchange Commission, granting unto each
of such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary in connection with such
matters as fully to all intents and purposes as he might or could in person,
hereby notifying and confirming all that each of such attorneys-in-fact and
agents or his substitute or substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 16th day of December, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------- ----- ------------------
<S> <C> <C>
/s/ Timothy H. Callahan
- ---------------------- President, Chief
Timothy H. Callahan Executive Officer and
and Trustee December 16, 1997
/s/ Richard Kincaid
- ---------------------- Chief Financial
Richard Kincaid Officer (principal
financial officer
and principal
accounting officer) December 16, 1997
/s/ Samuel Zell Chairman of the
- ---------------------- Board of Trustees December 16, 1997
Samuel Zell
</TABLE>
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/s/ Sheli Z. Rosenberg
- -------------------------- Trustee December 16, 1997
Sheli Z. Rosenberg
- --------------------------
Thomas E. Dobrowski Trustee December ___, 1997
/s/ James D. Harper, Jr.
- -------------------------- Trustee December 16, 1997
James D. Harper, Jr.
- -------------------------- Trustee December ___, 1997
Peter Linneman
- --------------------------
Jerry M. Reinsdorf Trustee December ___, 1997
/s/ William M. Goodyear
- --------------------------
William M. Goodyear Trustee December 16, 1997
/s/ David K. McKown
- --------------------------
David K. McKown Trustee December 16, 1997
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE NO.
- ----------- ---------------------- ---------
<S> <C> <C>
4.1* -- Articles of Amendment and Restatement of Declaration of Trust
of the Registrant
4.2* -- Bylaws of the Registrant
4.3** -- Agreement and Plan of Merger, dated as of September 25, 1997,
as amended, among Equity Office Properties Trust, EOP Operating
Limited Partnership, Beacon Properties Corporation, and Beacon
Properties, L.P.
5.1 -- Opinion of Hogan & Hartson L.L.P. regarding the validity of the
securities being registered
23.1 -- Consent of Hogan & Hartson L.L.P. (included as part of Exhibit 5.1)
24.1 -- Power of Attorney (included in the Signature Page at page II-5)
</TABLE>
* Included as an exhibit to the Registrant's Current Report on Form 8-K dated
August 5, 1997, and incorporated herein by reference.
** Filed as a part of the Registrant's Registration Statement on Form S-4
(Commission File No. 333-40357) on November 17, 1997, and incorporated herein
by reference.
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<PAGE> 1
EXHIBIT 5.1
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
December 16, 1997
Board of Trustees
Equity Office Properties Trust
Two North Riverside Plaza
22nd Floor
Chicago, Illinois 60606
Ladies and Gentlemen:
We are acting as counsel to Equity Office Properties Trust, a Maryland
real estate investment trust (the "COMPANY"), in connection with its
registration statement on Form S-8, as amended (the "REGISTRATION STATEMENT"),
filed with the Securities and Exchange Commission relating to the proposed
public offering of up to 4,839,569 shares of the Company's common shares of
beneficial interest, $0.01 par value per share (the "SHARES"), in connection
with the assumption by the Company of the obligations of Beacon Properties
Corporation, a Maryland corporation ("BEACON"), under the Beacon 1994 Stock
Option and Incentive Plan and 1996 Stock Option Plan (the "Beacon Plans") upon
the merger of Beacon with and into the Company pursuant to the terms of the
Agreement and Plan of Merger dated as of September 15, 1997, as amended (the
"AGREEMENT"), among the Company, EOP Operating Limited Partnership, Beacon and
Beacon Properties, L.P. This opinion letter is furnished to you at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. An executed copy of the Agreement.
3. The Articles of Amendment and Restatement of
Declaration of Trust of the Company, as certified by the
Maryland State Department of Assessments and Taxation on
December 9, 1997 and by the Secretary of the Company on
the date hereof as then being complete, accurate and in
effect.
<PAGE> 2
4. The Bylaws of the Company, as certified by the
Secretary of the Company on the date hereof as then being
complete, accurate and in effect.
5. Resolutions of the Board of Trustees of the
Company adopted on December 16, 1997, as certified by the
Secretary of the Company on the date hereof as then being
complete, accurate and in effect, relating to assumption of
the Plans in accordance with the terms of the Agreement and
arrangements in connection therewith.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of the
Company. In our examination of the aforesaid certificates, records, documents
and agreements, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the accuracy and completeness of
all documents submitted to us, the authenticity of all original documents and
the conformity with the original documents of all documents submitted to us as
copies (including telecopies). We have assumed the accuracy, completeness and
authenticity of the foregoing certifications (of public officials, governmental
agencies and departments, corporate officers and individuals) and statements of
fact, on which we are relying, and have made no independent investigations
thereof. This opinion letter is given, and all statements herein are made, in
the context of the foregoing.
This opinion letter is based as to matters of law solely on Title 8 of the
Corporations and Associations Article of the Annotated Code of Maryland (the
"Maryland REIT Statute"). We express no opinion herein as to any other laws,
statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, we are of the opinion
that, when issued in accordance with the terms of the Beacon Plans pursuant to
the terms of the Agreement, the Shares will be validly issued, fully paid and
nonassessable under the Maryland REIT Statute.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
