Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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HRPT PROPERTIES TRUST
(Exact name of registrant as specified in its charter)
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Maryland 04-6558834
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
400 Centre Street
Newton, Massachusetts 02458
(617) 332-3990
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
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David J. Hegarty, President
HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02458
(617) 332-3990
(Name, address, including zip code, telephone number,
including area code, of agent for service)
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Copy to:
Alexander A. Notopoulos, Jr., 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: From
time to time or at one time after the effective date of the Registration
Statement as determined by the selling shareholders. All of the shares offered
hereby are for the respective accounts of the selling shareholders.
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. |_|
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class of Securities to be Amount to Offering Price Aggregate Amount of
Registered be Registered Per Unit Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest, par
value $.01 per share ........................... 1,224,074 $13.50(1) $16,524,999 $789.72(2)
<FN>
(1) Estimated pursuant to Rule 457(c) solely for purposes of calculation of the registration fee on the basis of the $13.50
average of the high and low sales prices for the Common Shares on the New York Stock Exchange on September 1, 1999.
(2) Pursuant to Rule 429(a) of the rules and regulations under the Securities Act of 1933, as amended, the Prospectus contained
herein also relates to 1,013,650 Common Shares included in the Company's Registration Statement on Form S-3 (File No. 33-62135). The
aggregate amount of the filing fees associated with such securities that was previously paid with such registration statement with
respect to such Common Shares was $5,243.02.
</FN>
</TABLE>
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.
<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 it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion
Preliminary prospectus dated September 3, 1999
Prospectus
1,224,074 Shares
HRPT Properties Trust
Common Shares of Beneficial Interest
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Selling Shareholders
o The selling shareholders do not have any present intention to sell any
shares. This prospectus relates to the reoffer and resale of shares by HRPT
Advisors, Inc., a Delaware corporation, Gerard M. Martin and Barry M.
Portnoy, the selling shareholders, for their own account. We will not
receive any of the proceeds from the reoffering and resale of the shares.
o Depending upon the selling shareholders' continuing review of their
respective investments and various other facts, the selling shareholders
may, subject to any applicable securities laws, sell all or any part of the
offered shares.
o We have not filed the registration statement of which this prospectus forms
a part because of any present intention of the selling shareholders to sell
any of the offered shares. Rather, the selling shareholders intend to
pledge all or a part of the offered shares they hold to one or more banks
or brokerage houses as collateral for loans to them. In the event of a
default under a loan to a selling shareholder which is secured by the
pledge of offered shares, the lender will have the right to cause the sale
of the offered shares under the registration statement relating to this
prospectus.
----------------------
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.
Our shares are traded on the New York Stock Exchange under the symbol
"HRP." On September 1, 1999, the last sale price for the shares on the NYSE was
$13.3125.
Our principal place of business is 400 Centre Street, Newton,
Massachusetts 02458 and our telephone number is (617) 332-3990.
The date of this prospectus is _____________, 1999.
<PAGE>
TABLE OF CONTENTS
Page
The Company.............................................................. 3
Use of Proceeds.......................................................... 3
Selling Shareholders..................................................... 3
Description of Shares.................................................... 4
Limitation of Liability; Shareholder Liability........................... 6
Restrictions on Transfer of Shares; Business Combinations
and Control Share Acquisitions........................................ 7
Plan of Distribution..................................................... 12
Legal Matters............................................................ 13
Experts.................................................................. 13
About This Prospectus.................................................... 14
Incorporation of Documents by Reference.................................. 14
Where You Can Find More Information...................................... 15
Forward Looking Statements............................................... 15
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THE COMPANY
HRPT Properties Trust is a real estate investment trust, a REIT, that
acquires, owns and leases office buildings and senior housing properties. As of
August 20, 1999, we owned a total of 265 properties located in 36 states and the
District of Columbia. References in this prospectus to "we," "us," "our" or
"HRPT" mean HRPT Properties Trust and its subsidiaries. We have a total market
capitalization of $3.1 billion, including $1.8 billion of equity. We are
organized as a Maryland real estate investment trust.
We recently announced a plan to separate our office properties from our
senior housing real estate by spinning off our subsidiary which owns 93 senior
housing properties. Under that plan, we would distribute to our shareholders
13.2 million of the 26 million shares of that subsidiary. The spin-off, which is
described in more detail in our current reports filed with the SEC which are
incorporated into this prospectus by reference, constitutes one alternative
transaction that we are considering with respect to financing our senior housing
real estate investments. The plan is contingent, and there can be no assurance
that we will complete it or that we will separately finance our senior housing
properties at all.
USE OF PROCEEDS
We will receive no proceeds from the sale of the shares offered by the
selling shareholders. The selling shareholders will receive all proceeds.
SELLING SHAREHOLDERS
The selling shareholders are HRPT Advisors, Inc., a Delaware
corporation, Gerard M. Martin and Barry M. Portnoy. Prior to the offering of
shares described in this prospectus, the selling shareholders owned the
following shares:
<TABLE>
<CAPTION>
Maximum Number Percentage of
Shares Owned of Shares Outstanding Shares
Selling Shareholder Prior to Offering Being Offered Prior to Offering
- ------------------- ----------------- ------------- -----------------
<S> <C> <C> <C>
HRPT Advisors, Inc. 1,134,372(1) 1,134,372 0.86%
Gerard M. Martin 44,851(2) 44,851 0.03%
Barry M. Portnoy 44,851(2) 44,851 0.03%
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<FN>
(1) HRPT Advisors, Inc. is wholly owned by Messrs. Martin and Portnoy.
(2) Messrs. Martin and Portnoy each own 44,851 shares directly. In addition, solely in its capacity as successor
voting trustee of a voting trust agreement, Reit Management & Research, Inc., which is also wholly owned by
Messrs. Martin and Portnoy and is our investment advisor, exercises voting control over 1,000,000 shares which
are owned by AMS Properties, Inc. and are pledged to us to secure the obligations of Mariner Post-Acute
Network, Inc. and its affiliates to us. Reit Management & Research, Inc. also exercises voting control as
proxy over 1,463,366 shares owned by Mr. John F. Chapple, III. These additional 2,463,366 shares represent
1.87% of the outstanding shares.
</FN>
</TABLE>
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The selling shareholders are offering the shares described in this
prospectus. From time to time, depending upon the selling shareholders'
continuing review of their respective investments and various other facts, the
selling shareholders may, subject to any applicable securities laws, sell all or
any part of the shares offered by this prospectus. However, we have not filed
the registration statement of which this prospectus forms a part because of any
present intention of the selling shareholders to sell any of the offered shares.
Rather, we filed the registration statement to facilitate the pledge by the
selling shareholders of all or a part of the offered shares to one or more banks
or brokerage houses as collateral for loans to the selling shareholders. Because
we are registering the offered shares to facilitate the pledge of those shares
and because this offering is not being underwritten on a firm commitment basis,
we cannot give an estimate as to the number or percentage of shares which the
selling shareholders will own upon termination of this offering. More
information about the possible distribution of the offered shares is given in
"Plan of Distribution" below.
Until January 1, 1998, HRPT Advisors, Inc. acted as our investment
advisor. Our Managing Trustees, Gerard M. Martin and Barry M. Portnoy, own HRPT
Advisors, Inc. Messrs. Martin, Portnoy and David J. Hegarty, our President, are
the directors of HRPT Advisors, Inc. and Messrs. Martin and Hegarty are the
President and Treasurer of HRPT Advisors, Inc. Since January 1, 1998, Reit
Management & Research, Inc. has been our investment advisor. Messrs. Martin and
Portnoy own Reit Management & Research, Inc. Messrs. Martin, Portnoy and Hegarty
are the directors of Reit Management & Research, Inc. Mr. Hegarty is the
President of Reit Management & Research, Inc.
DESCRIPTION OF SHARES
Authorized Capital. Our declaration of trust authorizes our company to
issue an aggregate of 200,000,000 shares of beneficial interest, including (i)
150,000,000 common shares, par value $.01 per share, and (ii) 50,000,000
preferred shares, par value $.01 per share. Our declaration of trust permits our
board of trustees to amend the declaration of trust to increase or decrease the
authorized shares of beneficial interest of our company without shareholder
approval.
Preferred Shares. Our declaration of trust authorizes the trustees,
without shareholder approval, from time to time to divide the preferred shares
into classes or series and to set or change, if the class or series has been
previously established, the par value, if any, preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends, qualifications
or terms and conditions of redemption of the preferred shares as are not
prohibited by our declaration of trust or applicable law. In connection with the
adoption of our shareholders rights plan, the trustees established an authorized
but unissued class of 1,500,000 preferred shares, par value $.01 per share,
called the "junior participating preferred shares." The junior participating
preferred shares are described more fully below. As of August 20, 1999, the
trustees had established no other class or series of preferred shares.
Outstanding Shares. As of August 20, 1999, there were 131,907,626
shares outstanding, all of which were common shares. We also had outstanding as
of such date approximately $205 million aggregate principal amount convertible
subordinated debentures of various series, all of
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which are convertible into common shares at an exercise price equal on such date
to $18 per share.
Characteristics of All Shares. The following descriptions are not
complete and are subject to, and qualified in their entirety by reference to,
the more complete descriptions set forth in our declaration of trust.
Except as otherwise determined by the trustees with respect to any
class or series of preferred shares, all shares:
o will participate equally in dividends payable to shareholders
when, as and if declared by the trustees and will participate
ratably in net assets available for distribution to
shareholders on liquidation or dissolution;
o will have one vote per share on all matters submitted to a
vote of the shareholders;
o will not have cumulative voting rights in the election of
trustees; and
o will have no preference, conversion, exchange, sinking fund,
redemption rights or preemptive or similar rights.
Upon issuance in accordance with the declaration of trust and
applicable law, the shares offered by this prospectus will be fully paid and
nonassessable. The holders of shares do not have preemptive rights with respect
to the issuance of additional shares or other of our securities.
We may, at the sole discretion of our trustees, issue the authorized
but unissued shares from time to time for any proper trust purpose, which could
include raising capital, providing compensation or benefits to employees and
others, paying distributions in shares or acquiring companies, businesses or
properties. The issuance of additional shares could have the effect of diluting
the earnings per share and book value per share of currently outstanding shares.
Junior Participating Preferred Shares
General. In connection with the adoption of our shareholders rights
plan, the trustees authorized a class of 1,500,000 junior participating
preferred shares. The powers, preferences and rights and certain qualifications,
limitations and restrictions of the junior participating preferred shares, when
and if issued, are described below. The statements below with respect to the
junior participating preferred shares are not necessarily complete. You should
read the applicable provisions of our declaration of trust, including the
applicable articles supplementary for a more complete description of the junior
participating preferred shares.
Dividends. The holder of each junior participating preferred share,
when and if issued, is entitled to quarterly dividends in the greater amount of
$5.00 or 100 times the quarterly per share dividend, whether cash or otherwise,
declared upon the common shares. Dividends on the junior participating preferred
shares are cumulative. Whenever dividends on the junior participating preferred
shares are in arrears, we are prohibited from declaring or paying dividends,
making
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other distributions on, or redeeming or repurchasing common shares or other
shares ranking junior to the junior participating preferred shares. If we fail
to pay dividends on the junior participating preferred shares for six quarters,
the holders of the junior participating preferred shares will be entitled to
elect two trustees.
Voting. The holder of each junior participating preferred share, when
and if issued, is entitled to 100 votes on all matters submitted to a vote of
the shareholders, voting together with holders of common shares as one class,
unless the declaration of trust otherwise provide.
Liquidation Preference. If we liquidate, dissolve or wind up, the
holders of junior participating preferred shares are entitled to a liquidation
preference of $100 per share plus the amount of any accrued and unpaid dividends
and distributions on the junior participating preferred shares, prior to payment
of any distribution in respect of the common shares or any other shares ranking
junior to the junior participating preferred shares. Following payment of the
liquidation preference, the holders of junior participating preferred shares are
not entitled to further distributions until the holders of common shares receive
an amount per share (the "Common Share Adjustment") equal to the junior
participating preferred shares liquidation preference divided by 100, adjusted
to reflect events such as share splits, share dividends and recapitalizations
affecting the common shares (the "Adjustment Number"). Following the payment of
the full amount of the junior participating preferred shares liquidation
preference and the Common Share Adjustment, holders of junior participating
preferred shares are entitled to participate proportionately on a per share
basis with holders of common shares in the distribution of the remaining assets
to be distributed in respect of shares in the ratio of the Adjustment Number to
one. The powers, preferences and rights of the junior participating preferred
shares are subject to the superior powers, preferences and rights of any senior
series or class of preferred shares which the trustees authorize for issuance
from time to time.
More Information. For more information with respect to the shares, see
"Limitation of Liability; Shareholder Liability" and "Restrictions on Transfer
of Shares; Business Combinations and Control Share Acquisitions" below.
Transfer Agent and Registrar
The Transfer Agent and Registrar for our shares is State Street Bank
and Trust Company, c/o Boston EquiServe, P.O. Box 8200, Boston, Massachusetts
02266-8200, telephone number (800) 426-5523.
LIMITATION OF LIABILITY; SHAREHOLDER LIABILITY
Maryland law permits a REIT to provide, and our declaration of trust
provides, that no trustee, officer, shareholder, employee or agent of HRPT shall
be held to any personal liability, jointly or severally, for any obligation of
or claim against HRPT, and that, as far as practicable, each written agreement
of HRPT is to contain a provision to that effect. Despite these facts, our
lawyers have advised us that in some jurisdictions the possibility exists that
shareholders of a non-corporate entity such as HRPT may be held liable for acts
or obligations of HRPT. Our lawyers have advised us that the State of Texas may
not give effect to the limitation of
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shareholder liability afforded by Maryland law, but that Texas law would likely
recognize contractual limitations of liability such as those discussed above. We
intend to conduct our business in a manner designed to minimize potential
shareholder liability by, among other things, inserting appropriate provisions
in our written agreements; however, we cannot give any assurance that you can
avoid liability in all instances in all jurisdictions.
Our declaration of trust provides that, upon payment by you of any
liability of the kind described above, you will be entitled to indemnification
by us. We cannot give any assurance that, at the time any liability of this type
arises, we will have assets sufficient to satisfy our indemnification
obligation. The trustees intend to conduct our operations, with the advice of
legal counsel, in a manner designated to minimize or avoid, as far as
practicable, the ultimate liability of our shareholders. The trustees do not
intend to provide insurance covering these risks to the shareholders.
RESTRICTIONS ON TRANSFER OF SHARES; BUSINESS COMBINATIONS
AND CONTROL SHARE ACQUISITIONS
Restrictions on Transfer of Shares and Business Combinations
Restrictions on Transfer of Shares. For us to qualify as a REIT under
the Internal Revenue Code of 1986, as amended, in any taxable year not more than
50% in value of our outstanding shares may be owned, directly or indirectly, by
five or fewer individuals during the last six months of that year. In addition,
the shares must be owned by 100 or more persons during at least 335 days of a
taxable year or a proportionate part of a taxable year less than 12 months. In
order to meet these and other requirements, the trustees have the power to
redeem or prohibit the transfer of a sufficient number of shares to maintain or
bring the ownership of the shares into conformity with these tax requirements.
In connection with the foregoing, if the trustees are at any time and
in good faith of the opinion that direct or indirect ownership of shares
representing more than 8.5% in value of the total shares outstanding has or may
become concentrated in the hands of one beneficial owner, other than the
excepted persons described in our declaration of trust, the trustees have the
power (1) to authorize the purchase of those excess shares from any shareholder,
and (2) to require us to refuse to transfer or issue shares to any person whose
acquisition of those shares would, in the opinion of the trustees, result in the
direct or indirect beneficial ownership by any person of shares representing
more than 8.5% in value of the outstanding shares.
Any transfer of shares, options or other securities convertible into
shares that would create a beneficial owner, other than those excepted persons
described in our declaration of trust, of shares representing more than 8.5% in
value of the total shares outstanding will be deemed void from the beginning,
and the intended transferee will be deemed never to have had an interest in the
shares which the transferee sought to acquire in the voided transaction.
Furthermore, our declaration of trust provides that transfers or purported
acquisitions, directly, indirectly or by attribution, of shares or securities
convertible into shares that could result in our disqualification as a REIT are
void, and permits the trustees to repurchase shares or other securities to the
extent necessary to maintain our status as a REIT.
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If the trustees decide to authorize the repurchase of excess shares,
the purchase price will be determined by the price of the shares on the
principal exchange on which they are then traded. If no public trading price is
available, then the purchase price will be equal to the net asset value of those
shares as determined by the trustees in accordance with applicable law. From and
after the date fixed for purchase by the trustees, and so long as payment of the
purchase price for the shares to be so redeemed is made or is duly provided for,
the holder of any excess shares called for purchase by the trustees will cease
to be entitled to distributions, voting rights and any and all other benefits
with respect to those shares, except the right to payment of the purchase price
for the shares.
Business Combinations with Related Persons. Our declaration of trust
also requires that the business combinations described in the declaration of
trust between us and a beneficial holder of 10% or more of the outstanding
shares, a so-called "related person," be approved by the affirmative vote of the
holders of at least 75% of the shares unless (1) the trustees by unanimous vote
or written consent expressly approved in advance the acquisition of the
outstanding shares that caused the related person to become a related person or
approved the business combination prior to the related person involved in the
business combination having become a related person, or (2) the business
combination is solely between us and a 100% owned affiliate of us. As permitted
by law, we have elected to be governed by these provisions rather than the
provisions of Subtitle 6 of Title 3 of the Corporations and Associations Article
of the Annotated Code of Maryland regarding business combinations.
Staggered Board. Under our declaration of trust, the number of trustees
may be fixed from time to time by two-thirds of the trustees or by an amendment
of the declaration by our shareholders, with a minimum of three and a maximum of
twelve trustees, a majority of whom must be independent trustees, as defined in
the declaration of trust. The declaration of trust fixes our current number of
trustees at five and divides the trustees into three groups. Trustees in each
group are elected to three-year terms. As the trustees' terms expire,
replacements are elected by holders of a majority of the outstanding shares. The
classified nature of the trustees may make it more difficult for our
shareholders to remove a majority of our trustees than if all trustees were
elected on an annual basis. Vacancies may be filled by a majority of the
remaining trustees, except that a vacancy among the independent trustees must be
filled by a majority of the remaining independent trustees or by a majority vote
of our shareholders. Any trustee may be removed for cause by all the remaining
trustees, or without cause by vote of two-thirds of the shares then outstanding
and entitled to vote on the removal.
Repeal or Amendment. The provisions regarding business combinations and
the classified nature of the trustees and various other matters may not be
repealed or amended without the affirmative vote of shareholders entitled to
cast at least 75% of all the votes entitled to be cast on the matter. Other
amendments requiring shareholder approval must be approved by the affirmative
vote of shareholders entitled to cast at least a majority of all the votes
entitled to be cast on the matter. The trustees, by two-thirds vote, may,
without the approval or consent of the shareholders, adopt any amendment that
they in good faith determine to be necessary to permit us to qualify as a REIT
under the Internal Revenue Code.
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Possible Anti-Takeover Effect. The foregoing provisions may have the
effect of discouraging unilateral tender offers or other takeover proposals
which some shareholders might deem in their interests or in connection with
which they might receive a substantial premium for their shares. These
provisions could also have the effect of insulating current management against
the possibility of removal and could deprive shareholders of opportunities to
sell at a temporarily higher market price by possibly reducing temporary
fluctuations in market price caused by accumulations of shares. However, the
trustees believe that inclusion of these provisions in our declaration of trust
may help assure fair treatment of shareholders and preserve our assets.
Control Share Acquisitions
Maryland law provides for a limitation of voting rights in a "control
share acquisition." The Maryland statute defines a control share acquisition as
the acquisition of shares which would entitle the acquiror to exercise 20%, 33
1/3% or 50% of the voting power, and requires a two-thirds vote, excluding
shares owned by the acquiring person and by an officer or by a trustee who is an
employee of the trust, to accord voting rights to shares acquired in a control
share acquisition. The statute requires the target company to hold a special
meeting of shareholders at the request of an actual or proposed control share
acquiror subject to compliance with various conditions by the acquiror.
In addition, unless the declaration of trust or bylaws provide
otherwise, the statute gives us, within set time limitations, various redemption
rights if there is a shareholder vote on the issue and the grant of voting
rights is not approved, or if an "acquiring person statement" is not delivered
to the target company within 10 days following a control share acquisition.
Moreover, unless the declaration of trust or bylaws provide otherwise, the
statute provides that if, before a control share acquisition occurs, voting
rights for control shares are approved at a shareholders' meeting and the
acquiror becomes entitled to vote a majority of the shares entitled to vote,
then all other shareholders may exercise appraisal rights. The fair value of the
shares as determined for purposes of these appraisal rights may not be less than
the highest price per share paid by the acquiror in the control share
acquisition. The statute does not apply to shares acquired in a merger,
consolidation or share exchange if the company is a party to the transaction. An
acquisition of shares may be exempted from the control share statute provided
that a declaration of trust or bylaw provision is adopted for this purpose prior
to the control share acquisition. There is no exception from these provisions in
our declaration of trust or bylaws.
Rights Plan
General. In October 1994, the trustees adopted a shareholder rights
plan. The shareholder rights plan provides for the distribution of one junior
participating preferred share purchase right for each common share. Each right
entitles the holder to buy 1/100th of a junior participating preferred share,
or, in some circumstances, to receive cash, property, common shares or other
securities of ours, at an exercise price of $50 per 1/100th of a junior
participating preferred share.
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Distribution Date. Initially, the junior participating preferred share
purchase rights are attached to certificates evidencing common shares. The
junior participating preferred share purchase rights will separate from the
common shares and a so-called "distribution date" will occur upon earlier of the
following:
o 10 business days, or on a later date that the trustees may
determine before a distribution date occurs, following a
public announcement by us that a person or group of affiliated
or associated persons has acquired, or has obtained the right
to acquire, beneficial ownership of 10% or more of the
outstanding common shares; or
o 10 business days, or on a later date that the trustees may
determine before a distribution date occurs, following the
commencement of a tender offer or exchange offer that would
result in a person becoming an acquiring person.
Prior to the Distribution Date. Until the distribution date:
o the junior participating preferred share purchase rights will
be evidenced by the certificates for common shares and will be
transferred with and only with the common share certificates;
o common share certificates will contain a notation
incorporating by reference the rights agreement under which
the junior participating preferred share purchase rights were
issued; and
o the surrender for transfer of any certificates for outstanding
common shares will also constitute the transfer of the junior
participating preferred share purchase rights associated with
the common shares evidenced by the certificates.
Exercise and Expiration. The junior participating preferred share
purchase rights are not exercisable until the distribution date and will expire
at the close of business on October 17, 2004, unless earlier redeemed or
exchanged by us as described below. Until a right is exercised, the holder has
no rights as a shareholder, including without limitation the right to vote or to
receive dividends.
Flip-In Event. In the event a person becomes a so-called "acquiring
person" by acquiring or obtaining the right to acquire beneficial ownership of
10% or more of our outstanding common shares, each holder of a right will
thereafter have the right to receive, upon exercise of the right, common shares,
or, in certain circumstances, cash, property or other securities of ours, having
a current market price equal to two times the exercise price of the right. This
type of event is known as a "flip-in event." A flip-in event does not occur when
a person becomes an acquiring person in connection with a tender or exchange
offer for all outstanding common shares at a price and on terms which a majority
of our outside trustees determines to be fair to and otherwise in the best
interests of HRPT and its shareholders. An offer which is approved by the
outside trustees in this manner is known as a "fair offer." Notwithstanding the
foregoing, following the occurrence of any flip-in event, all junior
participating preferred share purchase
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rights that are, or in the circumstances specified in the junior participating
preferred share purchase rights agreement were, beneficially owned by any
acquiring person or by related parties will be void in the circumstances set
forth in the junior participating preferred share purchase rights agreement.
However, junior participating preferred share purchase rights will not be
exercisable following the occurrence of any flip-in event until such time as the
junior participating preferred share purchase rights are no longer redeemable by
us as set forth below.
Flip-Over Event. In the event that, at any time on or after the share
acquisition date, (1) we take part in a merger or other business combination
transaction, other than various mergers that follow a fair offer, and HRPT is
not the surviving entity, (2) HRPT takes part in a merger or other business
combination transaction in which the common shares are changed or exchanged,
other than some types of mergers that follow a fair offer, or (3) 50% or more of
our assets or earning power is sold or transferred, each holder of a right,
except junior participating preferred share purchase rights which previously
have been voided, as set forth above, thereafter has the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having a
current market price equal to two times the exercise price of the right.
Purchase Price. The purchase price payable and the number of junior
participating preferred shares, or the amount of cash, property or other
securities issuable upon exercise of the junior participating preferred share
purchase rights are subject to adjustment from time to time to prevent dilution
in the following circumstances:
o in the event of a share dividend on, or a subdivision,
combination or reclassification of, the junior participating
preferred shares;
o if holders of the junior participating preferred shares are
granted various rights or warrants to subscribe for junior
participating preferred shares or convertible securities at
less than the current market price of the junior participating
preferred shares; or
o upon the distribution to holders of the junior participating
preferred shares of evidences of indebtedness or assets,
excluding regular quarterly cash dividends or of subscription
rights or warrants other than those referred to above.
Subject to various exceptions, no adjustment in the purchase price will be
required until cumulative adjustments amount to at least 1% of the purchase
price. We are not required to issue fractional shares upon the exercise of any
right, and we will make a cash payment in lieu of any fractional shares.
Redemption. At any time until 10 business days following the share
acquisition date, we may redeem the junior participating preferred share
purchase rights in whole, but not in part, at a price of $.01 per right,
payable, at our option, in cash, common shares or other consideration as the
trustees may determine. Immediately upon the effectiveness of the action of the
trustees ordering redemption of the junior participating preferred share
purchase rights, the junior participating preferred share purchase rights will
terminate and the only right of the holders of
11
<PAGE>
junior participating preferred share purchase rights will be to receive the $.01
per right redemption price.
Amendment. Prior to the distribution date, the trustees may amend the
terms of the junior participating preferred share purchase rights, other than
key financial terms and the date on which the junior participating preferred
share purchase rights expire. Thereafter, the trustees may amend the provisions
of the junior participating preferred share purchase rights agreement only in
order to cure any ambiguity, defect or inconsistency, to make changes which do
not adversely affect the interests of holders of junior participating preferred
share purchase rights, excluding the interests of any acquiring person and other
related parties, or to shorten or lengthen any time period under the junior
participating preferred share purchase rights agreement; provided, however, that
no amendment to lengthen the time period governing redemption is permitted when
the junior participating preferred share purchase rights are not redeemable.
PLAN OF DISTRIBUTION
We will not receive any proceeds from the sale of the offered shares.
Depending upon the selling shareholders' continuing review of their respective
investments and various other facts, the selling shareholders may, subject to
any applicable securities laws, sell all or any part of the offered shares.
However, we have not filed the registration statement of which this prospectus
forms a part because of any present intention of the selling shareholders to
sell any of the offered shares. Rather, the selling shareholders intend to
pledge all or a part of the offered shares held by them to one or more banks or
brokerage houses as collateral for loans to the selling shareholders. In the
event of a default under a loan to a selling shareholder which is secured by the
pledge of offered shares, the lender will have the right to cause the sale of
the offered shares under the registration statement of which this prospectus
forms a part.
One or more selling shareholders, at the direction of a lender or
otherwise, or any lender may sell offered shares from time to time to purchasers
directly. Alternatively, one or more selling shareholders, at the direction of a
lender or otherwise, or any lender may from time to time offer the offered
shares through underwriters, dealers or agents who may receive compensation in
the form of underwriting discounts, concessions or commissions from the selling
shareholders and/or the purchasers of offered shares for whom they may act as
agent. The selling shareholders and any underwriters, dealers or agents who
participate in the distribution of the offered shares may be deemed to be
underwriters, and any profits on the sale of the offered shares by them and any
discounts, commissions or concessions received by any underwriters, dealers or
agents might be deemed to be underwriting discounts and commissions under the
Securities Act of 1933, as amended.
To the extent the selling shareholders may be deemed to be
underwriters, the selling shareholders may be subject to certain statutory
liabilities of the Securities Act of 1933, as amended, including but not limited
to, Sections 11, 12 and 17 of that act and Rule 10b-5 under the Securities
Exchange Act of 1934, as amended. At any time a selling shareholder or
underwriter makes a particular offer of the offered shares under this
prospectus, if required, the selling shareholder or underwriter will distribute
a prospectus supplement that will identify the aggregate amount of the shares
being offered and the terms of the offering, including the name or
12
<PAGE>
names of any underwriters, dealers or agents, any discounts, commissions and
other items constituting compensation from the selling shareholders and any
discounts, commissions or concessions allowed or reallowed or paid to dealers.
We will file the prospectus supplement and, if necessary, a post-effective
amendment to the registration statement of which this prospectus is a part with
the SEC to reflect the disclosure of additional information with respect to the
distribution of the offered shares.
The offered shares may be sold from time to time in one or more
transactions at a fixed offering price, which may be changed, or at varying
prices determined at the time of sale or at negotiated prices. The offered
shares may be sold in transactions in which this prospectus is delivered or, for
selling shareholders who are not underwriters and who are not affiliates of us,
in which this prospectus is not delivered. The selling shareholders will
determine those prices, or those prices will be determined by agreement between
the selling shareholders and underwriters or dealers.
The selling shareholders and any other person participating in a
distribution may be subject to applicable provisions of the Exchange Act and the
rules and regulations thereunder, including without limitation Rules 10b-3,
10b-6 or 10b-7, which provisions may limit the timing or purchases and sales of
any of the offered shares by the selling shareholders and any other such person.
Furthermore, under Rule 10b-6 under the Exchange Act, to the extent applicable,
any person engaged in a distribution of the offered shares may not
simultaneously engage in market making activities with respect to the particular
offered shares being distributed for a period of nine business days prior to the
commencement of the distribution. All of the foregoing may affect the
marketability of the offered shares and the ability of any person or entity to
engage in market making activities with respect to the offered shares.
Our estimated expenses aggregate to approximately $26,000.
LEGAL MATTERS
Sullivan & Worcester LLP, Boston, Massachusetts, our lawyers, have
issued an opinion about the legality of our shares. Sullivan & Worcester LLP
relied, as to certain matters of Maryland law, upon one or more opinions of
Ballard Spahr Andrews & Ingersoll, LLP, Baltimore, Maryland. Barry M. Portnoy
was a partner and chairman of the firm of Sullivan & Worcester LLP until March
31, 1997 and is one of our managing trustees. Mr. Portnoy is also a managing
trustee of Hospitality Properties Trust, a director and 50% owner of Reit
Management & Research, Inc., our investment advisor, and a director and
significant shareholder of one of our tenants. Jennifer B. Clark, a vice
president at Reit Management & Research, Inc., was a partner of Sullivan &
Worcester LLP until July 1, 1999. Sullivan & Worcester LLP also represents
Hospitality Properties Trust, Reit Management & Research, Inc. and their
affiliates on various matters.
EXPERTS
Our consolidated financial statements and financial statement schedules
included or incorporated by reference in our Annual Report on Form 10-K for the
year ended December 31,
13
<PAGE>
1998 have been audited by Ernst & Young LLP, independent auditors, as set forth
in their reports thereon included therein and incorporated herein by reference
which, as to the years 1998, 1997 and 1996, are based in part on the report of
Arthur Andersen LLP, independent public accountants. The financial statements
referred to above are incorporated herein by reference in reliance upon such
reports given upon the authority of such firms as experts in accounting and
auditing.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we
have filed with the Securities and Exchange Commission. This prospectus does not
contain all of the information that you will find in the registration statement.
Statements in this prospectus about the contents of any contract or other
document are not necessarily complete. In addition to reading this prospectus,
you should read the copies of the contracts and other documents that we have
filed as exhibits to the registration statement. The statements we make in this
prospectus are qualified in all respects by the information contained in the
exhibits to the registration statement. The section called "Where You Can Find
More Information" below contains information about how you can obtain copies of
the registration statement and additional information about us.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not, and the selling shareholders have
not, authorized any other person to provide you with different information. If
anyone provides you with different or inconsistent information, you should not
rely on it. We are not, and the selling shareholders are not, making an offer to
sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus,
as well as the information we have previously filed with the SEC and
incorporated by reference, is accurate only as of the date on the front cover of
this prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below which were filed with the
SEC under the Securities Exchange Act of 1934, as amended:
o Annual Report on Form 10-K for the year ended December 31, 1998;
o Quarterly Reports on Form 10-Q for the quarterly periods ended March
31, 1999 and June 30, 1999;
o Current Reports on Form 8-K dated March 5, 1999, March 11, 1999, March
19, 1999, June 14, 1999 and July 30, 1999; and
14
<PAGE>
o the description of our common shares contained in our Registration
Statement on Form 8-A dated November 8, 1986, as amended by Form 8
dated July 30, 1991.
We also incorporate by reference each of the following documents that
we will file with the SEC after the date of this prospectus but before the end
of the offering of the offered shares:
o Reports filed under Sections 13(a) and (c) of the Exchange Act;
o Definitive proxy or information statements filed under Section 14 of
the Exchange Act in connection with any subsequent stockholders'
meeting; and
o Any reports filed under Section 15(d) of the Exchange Act.
We also incorporate by reference each of the reports and statements
described in the preceding paragraph which we will file with the SEC after the
date of the registration statement of which this prospectus is a part but before
the effectiveness of that registration statement.
You may request a copy of any of the filings (excluding exhibits), at
no cost, by writing or telephoning us at the following address:
Investor Relations
HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02458
(617) 332-3990
WHERE YOU CAN FIND MORE INFORMATION
You may read and copy any material that we file with the SEC at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
You may obtain information on the operation of the Public Reference Room by
calling the SEC at 1-800-SEC- 0330. You may access our electronic filings on the
SEC's Internet site, http://www.sec.gov, which contains reports, proxy and
information statements and other information regarding issuers that file
electronically with the SEC.
FORWARD LOOKING STATEMENTS
This prospectus contains statements which constitute forward looking
statements within the meaning of the Private Securities Litigation Reform Act of
1995. Those statements appear in a number of places in this prospectus and
include statements regarding the intent, belief or expectations of HRPT, its
trustees or its officers with respect to the policies and plans of HRPT. We
caution you that these forward looking statements are not guarantees of future
performance and involve risks and uncertainties, and that actual results may
differ materially from those contained in the forward looking statements as a
result of various factors. These factors include, without limitation, changes in
financing terms, our ability or inability to complete acquisitions and financing
transactions, results of operations of our properties and general changes in
15
<PAGE>
economic conditions not presently contemplated. The information contained in our
Annual Report on Form 10-K for the year ended December 31, 1998, including the
information under the heading "Management's Discussion and Analysis of Financial
Condition and Results of Operations," identifies other important factors that
could cause these differences.
-----------------
The Amended and Restated Declaration of Trust establishing HRPT, dated
July 1, 1994, a copy of which, together with all amendments thereto, is duly
filed in the office of the Department of Assessments and Taxation of the State
of Maryland, provides that the name "HRPT Properties Trust" refers to the
trustees under the declaration of trust collectively as trustees, but not
individually or personally, and that no trustee, officer, shareholder, employee
or agent of HRPT shall be held to any personal liability, jointly or severally,
for any obligation of, or claim against, HRPT. All persons dealing with HRPT, in
any way, shall look only to the assets of HRPT for the payment of any sum or the
performance of any obligation.
16
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. 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 shares registered hereby, other than
underwriting discounts and commission, if any, incurred in connection with the
sale of the offered shares. All such amounts will be borne by HRPT Properties
Trust (the "Company").
Registration Fee Under Securities Act $6,032.74
Blue Sky Fees and Expenses 0.00
Legal Fees and Expenses 10,000.00
Accounting Fees and Expenses 5,000.00
Printing and Engraving 0.00
Miscellaneous Fees and Expenses 5,000.00
------------
Total: $26,032.74
Item 15. Indemnification of Directors and Officers
Section 7.4 of the Company's Amended and Restated Declaration of Trust,
filed as an Exhibit to the Company's Current Report on Form 8-K dated May 27,
1998, which provides for indemnification of Trustees and officers of the
Company, is hereby incorporated by reference.
Item 16. Exhibits
3.1 Composite copy of Third Amendment and Restatement of Declaration of
Trust of the Company dated July 1, 1994, as amended to date.
(Incorporated by reference to the Company's Current Report on Form 8- K
dated July 1, 1998)
3.2 Articles Supplementary dated November 4, 1994 to Third Amendment and
Restatement of Declaration of Trust of the Company dated July 1, 1994,
creating the Junior Participating Preferred Shares. (Incorporated by
reference to the Company's Current Report on Form 8-K dated May 27,
1998)
3.3 Articles Supplementary dated May 13, 1997 to Third Amendment and
Restatement of Declaration of Trust of the Company dated July 1, 1994,
increasing the Junior Participating Preferred Shares. (Incorporated by
reference to the Company's Current Report on Form 8-K dated May 27,
1998)
3.4 Articles Supplementary dated May 22, 1998 to Third Amendment and
Restatement of Declaration of Trust of the Company dated July 1, 1994,
increasing the Junior Participating Preferred Shares. (Incorporated by
reference to the Company's Current Report on Form 8-K dated May 27,
1998)
3.5 By-Laws of the Company, as amended to date. (Incorporated by reference
to the Company's Current Report on Form 8-K dated May 27, 1998)
4.1 Form of Common Share Certificate. (Incorporated by reference to the
Company's Current Report on Form 8-K dated March 11, 1999)
4.2 Rights Agreement dated October 17, 1994 between the Company and State
Street Bank and Trust Company, as Rights Agent (including the form of
Articles Supplementary relating to the Junior Participating Preferred
Shares annexed as an exhibit thereto). (Incorporated by reference to
the Company's Registration Statement on Form 8-A dated October 24,
1994)
5.1 Opinion of Sullivan & Worcester LLP. (Filed herewith)
II-1
<PAGE>
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP. (Filed herewith)
8 Opinion of Sullivan and Worcester LLP as to certain tax matters. (Filed
herewith)
23.1 Consent of Ernst & Young LLP. (Filed herewith)
23.2 Consent of Arthur Andersen LLP (Filed herewith)
23.3 Consent of Sullivan & Worcester LLP. (Included in Exhibits 5.1 and 8)
23.4 Consent of Ballard Spahr Andrews & Ingersoll, LLP. (Included in Exhibit
5.2)
24 Powers of Attorney. (Contained on Page II-4)
Item 17. Undertakings
(a) 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 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 this 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) (Section 230.424(b) of 17 C.F.R.) if, in the
aggregate, the changes in volume and price represent
no more than a 20% 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
this registration statement or any material change to
such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) do not apply if 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 Securities and Exchange Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration
statement.
(2) That for the 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 herein, 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.
(b) 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 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
II-2
<PAGE>
by reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to trustees, officers and controlling
persons of the registrant pursuant to the provisions described under
Item 15 of this registration statement, or otherwise (other than
insurance), the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in such 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 such Act and will be governed by the final
adjudication of such issue.
II-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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newton, Commonwealth of Massachusetts, on September
3, 1999.
HRPT PROPERTIES TRUST
By: /s/ David J. Hegarty
David J. Hegarty
President and Chief Operating Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-3 relating to common shares has been
signed below by the following persons in the capacities and on the dates
indicated; and each of the undersigned officers and trustees of HRPT Properties
Trust, hereby severally constitute and appoint David J. Hegarty, Ajay Saini,
John A. Mannix, John Popeo, Gerard M. Martin and Barry M. Portnoy, and each of
them, to sign for him, and in his name in the capacity indicated below, this
Registration Statement for the purpose of registering such securities under the
Securities Act of 1933, as amended, and any and all amendments thereto, and any
other Registration Statement filed by HRPT Properties Trust pursuant to Rule
462(b) which registers additional amounts of such securities for the offering or
offerings contemplated by this Registration Statement (a "462(b) Registration
Statement") hereby ratifying and confirming our signatures as they may be signed
by our attorneys to this Registration Statement, any 462(b) Registration
Statement and any and all amendments to either thereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ David J. Hegarty President and Chief Operating September 3, 1999
David J. Hegarty Officer (principal executive officer)
/s/ Ajay Saini Treasurer and Chief Financial September 3, 1999
Ajay Saini Officer
/s/ Patrick F. Donelan Trustee September 3, 1999
Patrick F. Donelan
/s/ Bruce M. Gans, M.D. Trustee September 3, 1999
Bruce M. Gans, M.D.
/s/ Rev. Justinian Manning, C.P. Trustee September 3, 1999
Rev. Justinian Manning, C.P.
/s/ Gerard M. Martin Managing Trustee September 3, 1999
Gerard M. Martin
/s/ Barry M. Portnoy Managing Trustee September 3, 1999
Barry M. Portnoy
</TABLE>
II-4
EXHIBIT 5.1
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
September 3, 1999
HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Re: Registration Statement on Form S-3; 1,224,074 Common Shares of
Beneficial Interest, par value $.01 per share
Dear Sir or Madam:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by HRPT Properties Trust, a Maryland real estate
investment trust (the "Company"), of 1,224,074 shares (the "Shares") of its
common shares of beneficial interest, par value $.01 per share, all of which
Shares are to be sold from time to time by HRPT Advisors, Inc., a Delaware
Corporation, Gerard M. Martin and Barry M. Portnoy (the "Selling Shareholders"),
at the direction of a lender or lenders or otherwise, the following opinion is
furnished to you to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5.1 to the Company's registration statement on Form S-3
(the "Registration Statement"). The Registration Statement describes a proposed
reoffering and resale of the Shares by the Selling Shareholders (the
"Offering").
We have acted as counsel to the Company in connection with the
Offering, and we have examined originals or copies, certified or otherwise
identified to our satisfaction, of the Registration Statement, the Amended and
Restated Declaration of Trust of the Company, as presently in effect, corporate
records, certificates and statements of officers and accountants of the Company
and of public officials, and such other documents as we have considered
necessary in order to furnish the opinion hereinafter set forth.
We express no opinion herein as to the laws of any jurisdiction other
than the Commonwealth of Massachusetts and the federal law of the United States,
and we express no opinion as to state securities or blue sky laws. Insofar as
this opinion involves matters of Maryland law we have, with your permission,
relied solely on the opinion of Ballard, Spahr, Andrews & Ingersoll LLP, a copy
of which is being filed herewith as Exhibit 5.2 to the
<PAGE>
HRPT Properties Trust
September 3, 1999
Page 2
Registration Statement, and our opinion is subject to the exceptions,
qualifications and limitations therein expressed.
Based on and subject to the foregoing, we are of the opinion that, as
of the date hereof, the Shares are duly authorized, validly issued, fully paid
and nonassessable by the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP
EXHIBIT 5.2
BALLARD SPAHR ANDREWS & INGERSOLL, LLP
19th Floor
300 East Lombard Street
Baltimore Maryland 21202-3268
(410) 528-5600
FAX (410) 528-5650
September 3, 1999
HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as Maryland counsel for HRPT Properties Trust, a Maryland
real estate investment trust (the "Company"), in connection with certain matters
of Maryland law arising out of the registration of 1,224,074 common shares (the
"Shares") of beneficial interest, $.01 par value per share, of the Company
("Common Shares"), covered by the above-referenced Registration Statement, and
all amendments thereto (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 were issued to the Advisors
(as defined herein) and certain affiliates of such Advisors and may be sold from
time to time by the selling shareholders referred to in the Registration
Statement. Unless otherwise defined herein, capitalized terms used herein 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;
2. The Amended and Restated Declaration of Trust of the Company, as
amended (the "Declaration of Trust"), certified as of a recent date by
the State Department of Assessments and Taxation of Maryland (the
"SDAT");
<PAGE>
HRPT Properties Trust
September 3, 1999
Page 2
3. The Bylaws of the Company, certified as of the date hereof by the
Treasurer and Chief Financial Officer of the Company;
4. A certificate as of a recent date of the SDAT as to the good standing
of the Company;
5. Resolutions adopted by the Board of Trustees of the Company (the "Board
of Trustees"), or a duly authorized committee thereof, relating to the
approval of the Advisory Agreements (as defined herein) and the
authorization of the issuance and registration of the Shares (the
"Resolutions"), certified as of the date hereof by the Treasurer and
Chief Financial Officer of the Company;
6. The Advisory Agreement, dated as of November 20, 1986, as amended, by
and between the Company and HRPT Advisors, Inc., a Delaware corporation
("HRPT Advisors"), pursuant to which certain of the Shares were issued,
and the Advisory Agreement, dated as of January 1, 1998, by and between
the Company and Reit Management & Research, Inc., a Delaware
corporation ("RMR," and together with HRPT Advisors, collectively
referred to as the "Advisors"), pursuant to which certain of the Shares
were issued (collectively referred to as the "Advisory Agreements"),
certified as of the date hereof by the Treasurer and Chief Financial
Officer of the Company;
7. A certificate executed by the Treasurer and Chief Financial Officer of
the Company, dated as of the date hereof; and
8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth below, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed 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.
<PAGE>
HRPT Properties Trust
September 3, 1999
Page 3
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.
4. Any Documents submitted to us as originals are authentic. Any
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All factual statements and information contained in the Documents are true and
complete. There has been no modification of or amendment to any of the
Documents, and there has been no waiver of any provision of any of the
Documents, by action or omission of the parties or otherwise.
5. All actions required to be taken and resolutions required to be
adopted by any committee of the Board of Trustees in order to validly authorize
the issuance of any of the Shares under Maryland law pursuant to any delegation
to any such committee by the Board of Trustees in the Resolutions were duly
taken and adopted prior to the issuance of any of the Shares.
6. The Shares have not been issued or transferred in violation of any
restriction or limitation contained in the Declaration of Trust.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that, as of the date hereof:
1. The Company is a real estate investment trust duly formed 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 and validly issued and are
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.
We express no opinion as to compliance with federal or state securities laws,
including the securities laws of the State of Maryland, or as to federal or
state laws regarding fraudulent transfers. To the extent that
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HRPT Properties Trust
September 3, 1999
Page 4
any matter as to which our opinion is expressed herein would be governed by the
laws of any jurisdiction other than the State of Maryland, we do not express any
opinion on such matter. The opinion expressed herein is subject to the effect of
judicial decisions which may permit the introduction of parol evidence to modify
the terms or the interpretation of agreements.
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 any opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the 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 Sullivan & Worcester 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 & Ingersoll, LLP
SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
Exhibit 8
September 3, 1999
HRPT Properties Trust
400 Centre Street
Newton, Massachusetts 02458
Ladies and Gentlemen:
In connection with the registration statement to be filed on Form S-3
(the "Registration Statement"), by HRPT Properties Trust, a Maryland real estate
investment trust (the "Company"), the following opinion is furnished to you to
be filed therewith as Exhibit 8 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
We have acted as counsel for the Company in connection with its
Registration Statement and we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement,
corporate records, certificates and statements of officers and accountants of
the Company and of public officials, and such other documents as we have
considered relevant and necessary in order to furnish the opinion hereinafter
set forth. Specifically, and without limiting the generality of the foregoing,
we have reviewed the Company's declaration of trust, as amended and restated,
the by-laws of the Company, the prospectus dated September 3, 1999 (the
"Prospectus"), and the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, filed under the Exchange Act (the "Annual Report"). We have
reviewed the sections of the Annual Report captioned "Federal Income Tax
Considerations" and "ERISA Plans, Keogh Plans and Individual Retirement
Accounts." With respect to all questions of fact on which the opinion set forth
below is based, we have assumed the accuracy and completeness of and have relied
on the information set forth in the Prospectus and the Annual Report, and in the
documents incorporated therein by reference, and on representations made to us
by the officers of the Company. We have not independently verified such
information.
The opinion set forth below is based upon the Internal Revenue Code of
1986, as amended, the Treasury Regulations issued thereunder, published
administrative interpretations thereof, and judicial decisions with respect
thereto, all as of the date hereof (collectively, the "Tax Laws"), and upon the
Employee Retirement Income Security Act of 1974, as amended, the Department of
Labor regulations issued thereunder, published administrative interpretations
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HRPT Properties Trust
September 3, 1999
Page 2
thereof, and judicial decisions with respect thereto, all as of the date hereof
(collectively, the "ERISA Laws"). No assurance can be given that the Tax Laws or
the ERISA Laws will not change. In preparing the discussions with respect to Tax
Laws and ERISA Laws matters in the sections of the Annual Report captioned
"Federal Income Tax Considerations" and "ERISA Plans, Keogh Plans and Individual
Retirement Accounts," we have made certain assumptions and expressed certain
conditions and qualifications therein, all of which assumptions, conditions and
qualifications are incorporated herein by reference.
Based upon and subject to the foregoing, we are of the opinion that the
discussions with respect to Tax Laws and ERISA Laws matters in the sections of
the Annual Report captioned "Federal Income Tax Considerations" and "ERISA
Plans, Keogh Plans and Individual Retirement Accounts," in all material respects
are accurate and fairly summarize the Tax Laws issues and ERISA Laws issues
addressed therein, and hereby confirm that the opinions of counsel referred to
in said sections represent our opinions on the subject matter thereof.
We hereby consent to the incorporation of this opinion by reference as
an exhibit to the Registration Statement and to the reference to our firm in the
Prospectus. In giving such consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or under the rules and regulations of the SEC promulgated
thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of HRPT Properties
Trust for the registration of 1,224,074 common shares of beneficial interest and
to the incorporation by reference therein of our report dated February 5, 1999,
with respect to the consolidated financial statements and schedules of HRPT
Properties Trust incorporated by reference or included in its Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ERNST & YOUNG LLP
Boston, Massachusetts
August 30, 1999
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in HRPT Properties Trust's registration statement on Form S-3 to
register 1,224,074 common shares of beneficial interest of our report dated
January 15, 1999 on Hospitality Properties Trust included in HRPT Properties
Trust's Form 8-K dated March 5, 1999 for the year ended December 31, 1998 and to
all references to our Firm included in the registration statement.
/s/ Arthur Andersen LLP
Vienna, VA
August 31, 1999
