<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 4, 2000
REGISTRATION STATEMENT NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
BEACON CAPITAL PARTNERS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 04-3403281
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
</TABLE>
ONE FEDERAL STREET, 26TH FLOOR
BOSTON, MASSACHUSETTS 02110
(617) 457-0400
(Address and Telephone Number of Principal Executive Offices)
ALAN M. LEVENTHAL
CHIEF EXECUTIVE OFFICER
AND
WILLIAM A. BONN, ESQ.
GENERAL COUNSEL
BEACON CAPITAL PARTNERS, INC.
ONE FEDERAL STREET, 26TH FLOOR
BOSTON, MASSACHUSETTS 02110
(617) 457-0400
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
------------------------------
COPY TO:
GILBERT G. MENNA, P.C.
KATHRYN I. MURTAGH, ESQ.
GOODWIN, PROCTER & HOAR, LLP
BOSTON, MA 02109
(617) 570-1000
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this registration statement becomes effective, as determined by the
Registering Stockholder.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES BEING AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED BE REGISTERED(1) PER SHARE(2) OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock................................ 2,528,296 $13.67 $34,561,806 $9,125
</TABLE>
(1) Plus such additional number of shares as may be required in the event of a
stock dividend, reverse stock split, split-up, recapitalization, or other
similar event.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended (the
"Securities Act").
------------------------------
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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<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
SUBJECT TO COMPLETION, DATED MAY 4, 2000
2,528,296 SHARES
BEACON CAPITAL PARTNERS, INC.
COMMON STOCK
------------------
Beacon Capital Partners, Inc., is a real estate investment trust (a "REIT")
that conducts real estate investment and development activities.
This Prospectus relates to 2,528,296 shares of our Common Stock which may be
issued to and sold by a Selling Stockholder. We are registering these securities
on behalf of the Selling Stockholder. We are not selling any of these securities
and we will not receive any proceeds from the sale of these securities.
Our Common Stock is not listed on any national securities exchange or the
Nasdaq Stock Market.
Our principal executive offices are located at One Federal Street, 26th
Floor, Boston, Massachusetts 02110. Our telephone number is (617) 457-0400.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2000.
<PAGE>
FORWARD-LOOKING STATEMENTS
This Prospectus, including the information incorporated by reference into
this Prospectus, contains statements that are forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. When we use the words "anticipate," "believe,"
"estimate," "expect" and other similar expressions in this Prospectus, they are
generally intended to identify forward-looking statements. In connection with
such forward-looking statements, you should consider that they involve known and
unknown risks, uncertainties and other factors which are, in some cases, beyond
our control and which could materially affect our actual results, performance or
achievements. Factors that could cause our actual results, performances or
achievements to differ materially from those expressed or implied by our
forward-looking statements include, but are not limited to, the following:
-- potential developments or acquisitions or dispositions of properties;
-- our qualifications as a real estate investment trust under the Internal
Revenue Code;
-- the real estate markets in Seattle, Washington, Sunnyvale, California,
and Boston, Massachusetts;
-- the anticipated operating performance of our investments;
-- the availability of debt and equity financing;
-- interest rates;
-- availability of qualified personnel;
-- trends affecting our financial condition or result of operations;
-- changes in, or the failure or inability to comply with, governmental
regulation;
-- the impact of pending or future litigation; and
-- international, national, regional and local economic and political
changes.
We caution you that, while forward-looking statements reflect our estimates
and beliefs, they are not guarantees of future performance. These
forward-looking statements were based on information, plans and estimates at the
date of this Prospectus, and we disclaim any obligation to update or revise any
forward-looking statements to reflect changes in underlying assumptions or
factors, new information, future events or other changes.
<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement on Form S-3 that we
filed with the Securities and Exchange Commission under the Securities Act of
1933. This Prospectus and any accompanying Prospectus supplement do not contain
all of the information included in the Registration Statement. For further
information, we refer you to the Registration Statement, including its exhibits.
Statements contained in this Prospectus and any accompanying prospectus
supplement about the provisions or contents of any agreement or other document
are not necessarily complete. If the SEC's rules and regulations require that
such agreement or document be filed as an exhibit to the Registration Statement,
or if we otherwise filed such agreement or document, please see such agreement
or document for a complete description of these matters.
This Prospectus provides you with a general description of the offered
shares. Each time the Selling Stockholder sells any of the offered shares, the
Selling Stockholder will provide you with this Prospectus and a prospectus
supplement, if applicable, that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update or change
any information contained in this Prospectus. You should read both this
Prospectus and any prospectus supplement together with additional information
described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 or at
the SEC's regional offices located at Seven World Trade Center, 13th Floor, New
York, New York 10048 and at Citicorp Center, 500 West Madison Street, (Suite
1400), Chicago, Illinois 60661. Our SEC filings are also available at the SEC's
Public Reference Section at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The SEC also maintains a website with filings at
http://www.sec.gov.
The SEC allows us to incorporate by reference the information we file with
them into this Prospectus, which means that we can disclose important
information to you by referring you to these documents. The information
incorporated by reference is an important part of this Prospectus, and
information that we file later with the SEC will automatically update and
supersede the information in this Prospectus and listed below. We are
incorporating by reference the documents listed below, which we have already
filed with the SEC, and any future filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until the
Selling Stockholder sells all of the securities.
- our Proxy Statement dated April 10, 2000 prepared in connection with our
Annual Meeting of Shareholders to be held on May 10, 2000;
- our Annual Report on Form 10-K for the year ended December 31, 1999;
- our Current Reports on Form 8-K dated January 4, 2000; February 14, 2000;
March 22, 2000; April 13, 2000; and April 24, 2000; and
- the description of our common stock contained in our Registration
Statement on Form 8-A, filed on September 23, 1998.
You may request a copy of the information incorporated by reference in this
Prospectus, as well as any exhibit we have specifically incorporated by
reference as an exhibit in this Prospectus, at no cost, by writing to us at the
following address: Beacon Capital Partners, Inc., One Federal Street, 26th
Floor, Boston, Massachusetts 02110, Attention: Secretary. Telephone requests may
be directed to (617) 457-0400.
You should rely only on the information incorporated by reference or
contained in this Prospectus or any supplement. We have not authorized anyone
else to provide you with different or additional information. You should not
assume that the information in this Prospectus or any supplement is accurate as
of any date other than the date on the front of those documents.
2
<PAGE>
USE OF PROCEEDS
The Selling Stockholder will receive all of the proceeds from the sale of
the securities offered hereby. We will not receive any of the proceeds from the
sale by the Selling Stockholder of its Common Stock.
SELLING STOCKHOLDER
The following table sets forth information with respect to the Selling
Stockholder, including the number of shares of Common Stock which may be issued
to the Selling Stockholder and which may be offered pursuant to this Prospectus.
We are obligated by the terms of a Registration Rights Agreement to file this
Registration Statement on behalf of the listed stockholder. Upon issuance, the
Selling Stockholder may offer and sell all of the securities registered hereby.
If the Selling Stockholder sells all shares registered hereby, the Selling
Stockholder will not beneficially own any securities of the Company after this
Offering. Inclusion on this list does not imply that the Selling Stockholder
will actually offer or sell any of the shares registered on its behalf.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
SHARES OWNED SHARES BEING
BEFORE THE REGISTERED IN
SELLING STOCKHOLDER OFFERING(1) THE OFFERING
- ------------------- ------------ -------------
<S> <C> <C>
Luddite Associates.......................................... 0 2,528,296
</TABLE>
- ------------------------
(1) The Selling Stockholder presently owns 2,528,296 units of limited
partnership interest in Beacon Capital Partners, L.P., a Delaware limited
partnership and subsidiary of the Company, which may be redeemed for cash
or, at the option of the Company, for an equivalent number of shares of the
Company's Common Stock.
The Selling Stockholder does not have, nor within the past three years has
it had, any position, office or other material relationship with the Company or
any if its predecessors or affiliates. Because the Selling Stockholder may,
pursuant to this Prospectus, offer all or some portion of the Common Stock, no
estimate can be given as to the amount of the Common Stock that will be held by
the Selling Stockholder upon termination of any such sales.
3
<PAGE>
PLAN OF DISTRIBUTION
The securities offered hereby, the Offered Securities, may be sold from time
to time to purchasers directly by the Selling Stockholder. As used herein,
Selling Stockholder includes donees and pledges selling shares received from the
Selling Stockholder after the date of this Prospectus. Alternatively, the
Selling Stockholders may from time to time offer the Offered Securities to or
through underwriters, broker/ dealers or agents, who may receive compensation in
the form of underwriting discounts, concessions or commissions from the Selling
Stockholder or the purchasers of such securities for whom they may act as
agents. The Selling Stockholder and any underwriters, broker/dealers or agents
that participate in the distribution of Offered Securities may be deemed to be
"underwriters" within the meaning of the Securities Act and any profit on the
sale of such securities and any discounts, commissions, concessions or other
compensation received by any such underwriter, broker/dealer or agent may be
deemed to be underwriting discounts and commissions under the Securities Act.
The Offered Securities may be sold from time to time in one or more
transactions at fixed prices, at prevailing market prices at the time of sale,
at varying prices determined at the time of sale or at negotiated prices. The
sale of the Offered Securities may be effected in transactions (which may
involve cross or block transactions)
-- on any national securities exchange or quotation service on which the
Offered Securities may be listed or quoted at the time of sale;
-- in the over-the-counter market;
-- in transactions otherwise than on such exchanges or in the
over-the-counter market; or
-- through the writing of options.
At the time a particular offering of the Offered Securities is made, a
Prospectus Supplement, if required, will be distributed which will set forth the
aggregate amount and type of Offered Securities being offered and the terms of
the offering, including the name or names of any underwriters, broker/dealers or
agents, any discounts, commissions and other terms constituting compensation
from the Selling Stockholder and any discounts, commissions or concessions
allowed or reallowed or paid to broker/ dealers.
To comply with the securities laws of certain jurisdictions, if applicable,
the Offered Securities will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
jurisdictions the Offered Securities may not be offered or sold unless they have
been registered or qualified for sale in such jurisdictions or any exemption
from registration or qualification is available and is complied with.
All expenses of the registration of the Offered Securities will be paid by
the Company, including, without limitation, Commission filing fees and expenses
of compliance with state securities or "blue sky" laws; provided, however, that
the Selling Stockholder will pay all the underwriting discounts and selling
commissions, if any. The Selling Stockholder will be indemnified by the Company
against certain civil liabilities, including certain liabilities under the
Securities Act, or will be entitled to contribution in connection therewith. We
will be indemnified by the Selling Stockholder against certain civil
liabilities, including certain liabilities under the Securities Act, or will be
entitled to contribution in connection therewith.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Goodwin,
Procter & Hoar LLP, Boston, Massachusetts. Certain partners of Goodwin, Procter
& Hoar LLP directly or indirectly own an aggregate of 7,237 shares of common
stock of the Company.
4
<PAGE>
EXPERTS
The consolidated financial statements and financial statement schedule of
Beacon Capital Partners, Inc. and the consolidated financial statements and
financial statement schedule of Beacon/PW Kendall LLC, both included in Beacon
Capital Partners, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1999, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their reports thereon included therein and incorporated herein
by reference. Such consolidated financial statements and financial statement
schedules are incorporated herein by reference in reliance upon such reports
given on the authority of such firm as experts in accounting and auditing.
5
<PAGE>
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS,
INCORPORATED HEREIN BY REFERENCE OR CONTAINED IN A PROSPECTUS SUPPLEMENT.
NEITHER WE NOR THE SELLING STOCKHOLDERS HAVE AUTHORIZED ANYONE ELSE TO PROVIDE
YOU WITH DIFFERENT OR ADDITIONAL INFORMATION. THE SELLING STOCKHOLDERS ARE NOT
MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS, OR
INCORPORATED HEREIN BY REFERENCE, OR IN ANY PROSPECTUS SUPPLEMENT IS ACCURATE AS
OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE DOCUMENTS.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
--------
<S> <C>
Forward-Looking Statements............ 1
Where You Can Find More Information... 2
Use of Proceeds....................... 3
Selling Stockholder................... 3
Plan of Distribution.................. 4
Legal Matters......................... 4
Experts............................... 5
</TABLE>
2,528,296 SHARES
BEACON CAPITAL
PARTNERS, INC.
COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 2000
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated fees and expenses payable by us
in connection with the registration of the securities registered hereby:
<TABLE>
<S> <C>
Registration fee............................................ $ 9,125
Legal fees and expenses..................................... 10,000
Accounting fees and expenses................................ 10,000
Printing and duplicating expenses........................... 15,000
Miscellaneous............................................... 875
--------
Total....................................................... $ 45,000
========
</TABLE>
- ------------------------
(1) All amounts except the registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 result
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 liability to the maximum extent permitted by the MGCL.
The Charter authorizes BCP, 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
director or officer or (b) any individual who, while a director of BCP and at
the request of BCP 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 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 director or officer of
BCP. The Bylaws obligate BCP, to the maximum extent permitted by Maryland law,
to indemnify and, without requiring a preliminary determination of the ultimate
entitlement to indemnification, 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 a party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a director of BCP and
at the request of BCP, 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. The Charter and Bylaws
also permit BCP to indemnify and advance expenses to any person who served a
predecessor of BCP in any of the capacities described above. Under the Bylaws,
if a claim for indemnification or advancement of expenses by a director or
officer is not paid in full by BCP within (a) 60 days after the receipt by BCP
of a written claim for indemnification or (b) in the case of a director, 10 days
after the receipt by BCP of documentation of expenses and the required
undertaking, such director or officer may at any time thereafter bring suit
against BCP to recover the unpaid amount of the claim, and if successful in
whole or in part, such director or officer is also entitled to be paid the
expenses of prosecuting such claim. The Bylaws permit BCP to maintain (and it
does maintain) insurance, at its expense, to protect itself and any director,
officer, or non-officer employee against any
II-1
<PAGE>
liability of any character asserted against or incurred by BCP or any such
director, officer, or non-officer employee, or arising out of any such person's
corporate status, whether or not BCP would have the power to indemnify such
person against such liability under the MGCL or the Bylaws.
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 the defense of any proceeding to
which his 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 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, whether or not received in the director's or officer's
official capacity, 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 good belief that he
has met the standard of conduct necessary for indemnification by the corporation
and (b) a written undertaking by or on his 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. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or
persons controlling BCP pursuant to the foregoing provisions, BCP has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
BCP has entered into indemnification agreements with each of its directors
and senior officers. The indemnification agreements require, among other
matters, that BCP indemnify its directors and officers, as well as their spouses
and children, to the fullest extent permitted by Maryland law and advance to the
directors and officers all related expenses, subject to reimbursement if it is
subsequently determined that indemnification is not permitted. Under these
agreements, BCP must also indemnify and advance all expenses incurred by
directors and officers seeking to enforce their rights under the indemnification
agreements or recovery under any directors' and officers' liability insurance
policies maintained by BCP. BCP is not required to indemnify the director or
officer for amounts paid or to be paid in settlement unless such settlement is
approved in advance by BCP. The agreements also require BCP to provide to the
directors or officers the maximum amount of directors' and officers' liability
insurance available under any insurance policy or policies maintained by BCP,
and to continue such coverage for seven years after the directors or officers no
longer serve as directors or officers of BCP for events occurring during their
service with BCP.
Under Section 8 of the Purchase Agreement filed as Exhibit 1.1 hereto, the
Initial Purchaser has agreed to indemnify, under certain conditions, BCP, its
directors, officers, employees and persons who control BCP within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against
certain losses, claims, damages, liabilities or expenses.
II-2
<PAGE>
ITEM 16. EXHIBITS. The following is a complete list of Exhibits filed or
incorporated by reference as part of this Registration Statement.
<TABLE>
<C> <S>
1.1 Placement Agent Agreement between NationsBanc Montgomery
Securities LLC and the Company, as amended.(1)
2.1 Agreement and Plan of Merger by and between the Predecessor
and the Company.(1)
4.1 Specimen certificate for common stock, $.01 par value, of
the Company.(2)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the validity of
the securities being offered.
10.1 Beacon Capital Strategic Partners, L.P. Limited Partnership
Agreement.(3)
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on signature page hereof).
</TABLE>
- ------------------------
(1) Previously filed as an exhibit to the Company's Registration Statement on
Form S-11 (SEC File No. 333-56937) filed with the Commission on June 16,
1998.
(2) Previously filed as an exhibit to Pre-Effective Amendment No. 1 to the
Company's Registration Statement on Form S-11 (SEC File No. 333-56937) filed
with the Commission on August 21, 1998.
(3) Previously filed as an exhibit to Post-Effective Amendment on Form S-3 to
the Company's Registration Statement on Form S-11 (SEC File No. 333-56937)
filed with the Commission on November 24, 1999.
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 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of 1933,
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.
(2) For the purpose of determining any liability under the Securities Act of
1933, 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.
(3) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
II-3
<PAGE>
(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
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; and
(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;
(4) 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.
(5) The undersigned registrant hereby undertakes that, for 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 (and, where applicable, each filing of
an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
II-4
<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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on this 4th
day of May, 2000.
<TABLE>
<S> <C> <C>
BEACON CAPITAL PARTNERS, INC.
By: /s/ LIONEL P. FORTIN
-----------------------------------------
Lionel P. Fortin
President and Chief Operating Officer
</TABLE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Beacon Capital Partners, Inc. hereby severally constitute Lionel
P. Fortin and Randy J. Parker, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below any and all amendments (including
post-effective amendments) to this registration statement (or to any other
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act), and generally to do all such
things in our names and in our capacities as officers and directors to enable
Beacon Capital Partners, Inc. to comply with the provisions of the Securities
Act of 1933 and all requirements of the Securities and Exchange Commission,
hereby ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said registration statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ ALAN M. LEVENTHAL Chairman of the Board and Chief
------------------------------------------- Executive Officer and Director May 4, 2000
Alan M. Leventhal (Principal Executive Officer)
/s/ LIONEL P. FORTIN
------------------------------------------- President, Chief Operating May 4, 2000
Lionel P. Fortin Officer and Director
Senior Vice President and Chief
/s/ RANDY J. PARKER Financial Officer (Principal
------------------------------------------- Financial and Accounting May 4, 2000
Randy J. Parker Officer)
/s/ STEPHEN T. CLARK
------------------------------------------- Director May 4, 2000
Stephen T. Clark
/s/ ROBERT M. MELZER
------------------------------------------- Director May 4, 2000
Robert M. Melzer
/s/ STEVEN SHULMAN
------------------------------------------- Director May 4, 2000
Steven Shulman
/s/ SCOTT M. SPERLING
------------------------------------------- Director May 4, 2000
Scott M. Sperling
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<S> <C>
1.1 Placement Agent Agreement between NationsBanc Montgomery
Securities LLC and the Company, as amended.(1)
2.1 Agreement and Plan of Merger by and between the Predecessor
and the Company.(1)
4.1 Specimen certificate for common stock, $.01 par value, of
the Company.(2)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the validity of
the securities being offered.
10.1 Beacon Capital Strategic Partners, L.P. Limited Partnership
Agreement.(3)
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on signature page hereof).
</TABLE>
- ------------------------
(1) Previously filed as an exhibit to the Company's Registration Statement on
Form S-11 (SEC File No. 333-56937) filed with the Commission on June 16,
1998.
(2) Previously filed as an exhibit to Pre-Effective Amendment No. 1 to the
Company's Registration Statement on Form S-11 (SEC File No. 333-56937) filed
with the Commission on August 21, 1998.
(3) Previously filed as an exhibit to Post-Effective Amendment on Form S-3 to
the Company's Registration Statement on Form S-11 (SEC File No. 333-56937)
filed with the Commission on November 24, 1999.
<PAGE>
Exhibit 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 523-1231
May 4, 2000
Beacon Capital Partners, Inc.
One Federal Street, 26th Floor
Boston MA 02109
Re: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
This opinion is delivered in our capacity as special counsel to
Beacon Capital Partners, Inc., a Maryland corporation (the "Company"), in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, of a Registration
Statement on Form S-3 (the "Registration Statement") relating to the resale
of up to 2,528,296 shares of Common Stock, par value $.01 per share (the
"Registered Shares"). The Registered Shares may be sold from time to time by
the selling stockholder (the "Selling Stockholder") named in the Registration
Statement.
As counsel for the Company, we have examined the Company's Articles
of Incorporation, as amended, and the Company's Amended and Restated By-laws,
each as presently in effect, the Registration Statement, the records of the
proceedings of the Board of Directors of the Company, and such records,
certificates and other documents of the Company as we have deemed necessary
or appropriate for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America, The Commonwealth of
Massachusetts and the Maryland General Corporation Law (the "MGCL").
Based on the foregoing, we are of the opinion that, when issued and
paid for in accordance with the Contribution Agreement, the Registered Shares
will have been duly authorized, legally issued, fully paid and
non-assessable.
The opinion is based on currently existing statutes, rules and
regulations and judicial decisions and is rendered as of the date hereof, and
we disclaim any obligation to advise you of any change in any of the
foregoing sources of law or subsequent developments in law or changes in
facts or circumstances which might affect any matters or opinions set forth
herein.
<PAGE>
GOODWIN, PROCTER & HOAR LLP
Beacon Capital Partners, Inc.
May 4, 2000
Page 2
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the references therein to our firm under the
caption "Legal Matters," and to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of Beacon Capital
Partners, Inc. (the "Company") for the registration of 2,528,296 shares of
its common stock and to the incorporation by reference therein from the
Company's Annual Report (Form 10-K) for the year ended December 31, 1999 of
(i) our report dated January 20, 2000, with respect to the consolidated
financial statements and schedule of Beacon Capital Partners, Inc. and (ii)
our report dated January 14, 2000, with respect to the consolidated financial
statements and schedule of Beacon/PW Kendall LLC, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
April 27, 2000
