<PAGE>
As filed with the Securities and Exchange Commission on June 3, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BRANDYWINE REALTY TRUST
(Exact name of Registrant as specified in its charter)
Maryland 23-2413352
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
16 Campus Boulevard
Newtown Square, Pennsylvania 19073
(610) 325-5600
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
1997 LONG-TERM INCENTIVE PLAN
Gerard H. Sweeney
President and Chief Executive Officer
16 Campus Boulevard
Newtown Square, Pennsylvania 19073
(610) 325-5600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Shares Amount to be Offering Aggregate Amount of
to be Registered Registered Price Per Share(1) Offering Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest, par 750,000 shares $20.1875 $15,140,625 $4,588
value $.01 per share.................
====================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) based on the average of the high and low
reported sales prices per share on the American and Stock Exchange on May
28, 1997, a date within five business days of the date on which this
registration statement is being filed.
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Brandywine Realty
Trust ("Registrant" or the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference into this
Registration Statement:
(a) the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997;
(c) the Company's Current Reports on Form 8-K dated February
7, 1997, February 27, 1997, March 18, 1997, April 18, 1997, May 1, 1997 and May
9, 1997, and the Current Reports on Form 8-K/A dated February 5, 1997 (8-K/A No.
1), February 13, 1997 (8-K/A No. 1), February 24, 1997 (8-K/A No. 2) and April
29, 1997 (8-K/A No. 1).
(d) the description of the Common Shares of the Company
contained in the Company's Registration Statement on Form 8-A dated March 24,
1986, as amended by a Form 8 dated June 4, 1986, as further amended by a Form 8
dated July 23, 1986 and as further amended by a Form 8-A/A dated December 23,
1996 and any other amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange
Act") after the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered pursuant to this
Registration Statement have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any
other subsequently filed document that also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
The Common Shares, which are the class of securities offered pursuant
to this Registration Statement, are registered under the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Title 8 of the Corporations and Associations Article of the Annotated
Code of Maryland permits a Maryland real estate investment trust to include in
its Declaration of Trust a provision limiting the liability of its trustees and
officers to the trust 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) active a deliberate dishonesty established by
a final judgment as being material to the cause of action. The Declaration of
Trust of the Company contains such a provision which eliminates such liability
to the maximum extent permitted by the Maryland law.
The Company's Bylaws require it to indemnify (a) any present or former
trustee or officer who has been successful, on the merits or otherwise, in the
defense of a proceeding to which he was made a party by reason of such status,
against reasonable expenses incurred by him in connection with the proceeding
and (b) any present or former trustee or officer against any claim or
<PAGE>
liability to which he may become subject by reason of his status as such unless
it is established that (i) his act or omission was committed in bad faith or was
the result of active and deliberate dishonesty, (ii) he actually received an
improper personal benefit in money, property or services or (iii) in the case of
a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful. In addition, the Company's Bylaws require it to pay or
reimburse, in advance of final disposition of a proceeding, reasonable expenses
incurred by a present or former trustee or officer made a party to a proceeding
by reason of his status as a trustee or officer provided that the Company shall
have received (i) 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 Company as authorized by the Bylaws and (ii) a written
undertaking by or on his behalf to repay the amount paid or reimbursed by the
Company if it shall ultimately be determined that the standard of conduct was
not met. The Company's Bylaws also (i) permit the Company, with the approval of
its trustees, to provide indemnification and payment or reimbursement of
expenses to a present or former trustee of officer who served a predecessor of
the Company in such capacity, and to any employee or agent of the Company or a
predecessor of the Company, (ii) provide that any indemnification or payment or
reimbursement of the expenses permitted by Bylaws shall be furnished in
accordance with the procedures provided for indemnification and payment or
reimbursement of expenses under Section 2-418 of the Maryland General
Corporation Law ("MGCL") for directors of Maryland corporations and (iii) permit
the Company to provide such other and further indemnification or payment or
reimbursement of expenses as may be permitted by the MGCL for directors of
Maryland corporations.
The limited partnership agreement of the Operating Partnership also
provides for indemnification by the Operating Partnership of the Company and its
trustees and officers for any costs, expenses or liabilities incurred by them by
reason of any act performed by them for or on behalf of the Operating
Partnership or the Company; provided that such person's conduct was taken in
good faith and in the belief that such conduct was in the best interests of the
Operating Partnership and that such person was not guilty of fraud, willful
misconduct or gross negligence.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to trustees and
officers of the Trust pursuant to the foregoing provisions or otherwise, the
Company has been advised that, although the validity and scope of the governing
statute has not been tested in court, in the opinion of the Commission, such
indemnification is against public policy as expressed in Securities Act and is,
therefore, unenforceable. In addition, indemnification may be limited by state
securities laws.
Item 7. Exemption From Registration Claimed.
No restricted securities are being reoffered or resold pursuant to this
registration statement.
Item 8. Exhibits.
5.1 Opinion of Pepper, Hamilton & Scheetz
5.2 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Pepper, Hamilton & Scheetz (contained in Exhibit 5.1)
23.3 Consent of Ballard Spahr Andrews and Ingersoll (contained in
Exhibit 5.2)
24 Power of Attorney (see page 4)
Item 9. Undertakings.
The undersigned 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;
-2-
<PAGE>
(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, 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 and of
the estimated maximum offering range may be reflected in the form of a
prospectus filed with the Commission pursuant to Rule 424(h) 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;
provided, however, that clauses (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to trustees, officers and controlling persons of the
Registrant pursuant to the foregoing provisions or otherwise, the Registrant has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
trustee, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
-3-
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on June
3, 1997.
BRANDYWINE REALTY TRUST
By: /s/ Gerard H. Sweeney
--------------------------------------
Gerard H. Sweeney
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Anthony A. Nichols, Sr. and
Gerard H. Sweeney his true and lawful attorneys-in-fact and agents, with full
power of substitution and re substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully as to all intents and purposes as
he might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agent or either of them, or their or his substitute or
substitutes, may lawfully 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/Anthony A. Nichols, Sr. Chairman of the Board of Trustees June 3, 1997
- --------------------------------
Anthony A. Nichols, Sr.
/s/ Gerard H. Sweeney President, Chief Executive Officer and June 3, 1997
- -------------------------------- Trustee (Principal Executive Officer)
Gerard H. Sweeney
/s/ Mark S. Kripke Chief Financial Officer (Principal June 3, 1997
- -------------------------------- Financial and Accounting Officer)
Mark S. Kripke
/s/ Richard M. Osborne Trustee
- --------------------------------
Richard M. Osborne June 3, 1997
/s/ Warren V. Musser Trustee
- --------------------------------
Warren V. Musser June 3, 1997
/s/ Walter D. Alessio Trustee
- --------------------------------
Walter D'Alessio June 3, 1997
/s/ Charles P. Pizzi Trustee June 3, 1997
- --------------------------------
Charles P. Pizzi
</TABLE>
-4-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Exhibit Numbered
Number Description Page
- ------ ----------- ----
<S> <C> <C>
5.1 Opinion of Pepper, Hamilton & Scheetz LLP
5.2 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Pepper, Hamilton & Scheetz LLP (contained in Exhibit 5.1)
23.3 Consent of Ballard Spahr Andrews and Ingersoll (contained in Exhibit 5.2)
24 Power of Attorney (see page 4)
</TABLE>
-5-
<PAGE>
Exhibit 5.1
June 3, 1997
Brandywine Realty Trust
16 Campus Boulevard
Newtown Square, PA 19073
Re: 1997 Long-Term Incentive Plan
-----------------------------
Ladies and Gentlemen:
You have requested our opinion, as counsel for Brandywine
Realty Trust, a Maryland real estate investment trust (the "Trust"), in
connection with its Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"), which
registers the offer and sale of 750,000 common shares of beneficial interest,
par value $.01 per share (the "Shares") of the Trust, issuable pursuable to the
1997 Long-Term Incentive Plan.
We have examined such records and documents and have made
such examination of law as we have deemed relevant in connection with this
opinion. Based upon such examination, it is our opinion that when there has been
compliance with the Act and applicable state securities laws, the Shares, when
issued against payment pursuant to their terms and the 1997 Long Term Incentive
Plan, will be validly issued, fully paid and nonassessable. Insofar as this
opinion relates to matters of Maryland law, we have relied exclusively upon the
opinion of Ballard Spahr Andrews & Ingersoll addressed to the Company dated June
3, 1997.
We assume no obligation to supplement this opinion if any
applicable law changes after the date hereof or if we become aware of any fact
that might change the opinion expressed herein after the date hereof.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
caption "Exhibits" in the Registration Statement. In doing so, we do not admit
that we are in the category of persons whose consent is required under Section 7
of the Act or the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
PEPPER, HAMILTON & SCHEETZ
By: /s/Michael H. Friedman
-------------------------------
Michael H. Friedman, A Partner
-6-
<PAGE>
FILE NUMBER
853707
June 3, 1997
Brandywine Realty Trust
16 Campus Boulevard
Newton Square, PA 19073
Re: Registration Statement on Form S-8
Dated June 3, 1997
-----------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Brandywine Realty Trust,
a Maryland real estate investment trust (the "Company"), in connection with
certain matters of Maryland law arising out of the registration of 750,000
common shares of beneficial interest, $.01 par value per share, of the Company
(the "Shares") covered by the above-referenced Registration Statement (the
"Registration Statement"), filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"1933 Act"). The Shares are to be issued by the Company pursuant to the
Company's 1997 Long-Term Incentive Plan (the "Plan"). Capitalized terms used but
not defined herein shall have the meanings given to them in the Registration
Statement.
In connection with our representation of the Company, and as a
basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement, filed with the Securities and
Exchange Commission (the "Commission"), pursuant to the 1933 Act;
2. The Amended and Restated Declaration of Trust of the
Company, as amended (the "Declaration"), certified as of a recent date by the
State Department of Assessments and Taxation of Maryland (the "SDAT");
<PAGE>
Brandywine Realty Trust
June 3, 1997
Page 2
3. The Bylaws of the Company, certified as of a recent date by
its Secretary;
4. Resolutions adopted by the Board of Trustees of the Company
(the "Board") relating to the approval of the Plan, certified as of a recent
date by the Secretary of the Company;
5. Resolutions adopted by the Board relating to the issuance
and registration of the Shares, certified as of a recent date by the Secretary
of the Company;
6. A specimen of the certificate evidencing the Shares,
certified as of a recent date by the Secretary of the Company;
7. A certificate of the SDAT as of a recent date as to the
good standing of the Company;
8. A certificate executed by the Secretary of the Company,
dated June 3, 1997;
9. A copy of the Plan, certified as of a recent date by the
Secretary of the Company; and
10. Such other documents and matters as we have deemed
necessary or appropriate to express the opinion set forth in this letter,
subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed,
and so far as is known to us there are no facts inconsistent with, the
following:
1. Each of the parties (other than the Company) executing any
of the Documents has duly and validly executed and delivered each of the
Documents to which such party is a signatory, and such party's obligations set
forth therein are legal, valid and binding and are enforceable in accordance
with all stated terms except as limited (a) by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws relating to or
affecting the enforcement of creditors' rights or (b) by general equitable
principles.
2. Each individual executing any of the Documents on behalf of
a party (other than the Company) is duly authorized to do so.
3. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to do so.
<PAGE>
Brandywine Realty Trust
June 3, 1997
Page 3
4. All Documents submitted to us as originals are authentic.
All Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All statements and information contained in the Documents are true and complete.
We have relied on statements and information contained in certificates of
officers of the Company. There are no oral or written modifications or
amendments to the Documents, and there has been no waiver of any of the
provisions of the Documents, by action or conduct of the parties or otherwise.
5. The Shares will not be issued in violation of any
restriction or limitation contained in the Declaration.
The phrase "known to us" is limited to the actual knowledge,
without independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the transaction giving rise to the issuance of this
opinion.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The Company is a real estate investment trust duly
organized and existing under and by virtue of the laws of the State of Maryland
and is in good standing with the SDAT.
2. The Shares have been duly authorized for issuance pursuant
to the Plan and, when and if issued and delivered against payment therefor in
the manner described in the Plan, the Registration Statement and the resolutions
of the Board of the Company authorizing their issuance and assuming that the sum
of (a) all shares of beneficial interest issued and outstanding as of the date
hereof, (b) any shares of beneficial interest issued between the date hereof and
the dates on which the Shares are actually issued, and (c) the Shares will not
exceed the total number of shares of beneficial interest that the Company is
authorized to issue, the Shares will be validly issued, fully paid and
nonassessable.
The foregoing opinion is limited to the substantive laws of
the State of Maryland and we do not express any opinion herein concerning any
other law. The opinion expressed herein is subject to the effect of judicial
decisions which may permit the introduction of parol evidence to modify the
terms on the interpretation of agreements. We express no opinion as to
<PAGE>
Brandywine Realty Trust
June 3, 1997
Page 4
compliance with the securities (or "blue sky") laws or the real estate
syndication laws of the State of Maryland.
We assume no obligation to supplement this opinion if any
applicable law changes after the date hereof or if we become aware of any fact
that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to the Company solely for
submission to the Securities and Exchange Commission as an exhibit to the
Registration Statement and, accordingly, may not be relied upon by, quoted in
any manner to, or delivered to any other person or entity (except Pepper
Hamilton & Scheetz, LLP, counsel to the Company) without, in each instance, our
prior written consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of the name of our firm therein. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
Ballard Spahr Andrews and Ingersoll
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of our
report dated February 22, 1997, on the consolidated financial statements of
Brandywine Realty Trust (the Company) included in the Company's Form 10-K for
the year ended December 31, 1996, our report dated February 11, 1997 on the
combined financial statements of revenue and certain expenses of Columbia
Acquisition Properties for the year ended December 31, 1996, included in the
Company's Form 8-K/A (No. 1) dated February 13, 1997 and Form 8-K/A (No. 2)
dated February 24, 1997, and our report dated January 29, 1997 on the combined
financial statements of revenue and certain expenses of Main Street Properties
for the year ended December 31, 1996 included in the Company's Form 8-K/A (No.
1) dated April 29, 1997, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, PA
June 2, 1997
