As filed with the Securities and Exchange Commission on May16,1996
Registration Statement No. 33
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Berkshire Realty Company. Inc.
(Exact name of registrant as specified in charter)
Massachusetts
(State or other jurisdiction of incorporation or organization)
04-2968018
(I.R.S. employer identification number)
470 Atlantic Avenue. Boston, Massachusetts 02210
(Address, including zip code, of registrant's principal executive offices)
Berkshire Realty Company. Inc. 1996 Stock Option Plan
(Full title of the Plan)
Scott D. Spelfogel, Esq.
470 Atlantic Avenue, Boston. Massachusetts 02210. 617-423-2233
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copy to
Alexander J. Jordan, Jr., Esq.
Peabody & Brown
101 Federal Street
Boston, Massachusetts 02110-1832
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed Amount
Title of Securities Amount to be Maximum Maximum of
to be Registered Registered Offering Price Aggregate Registra-
Per Share 1 Offering tion Fee
Price
<C> <C> <C> <C> <C>
Common Stock,
par value $.01 1,500,000 $10.25 $15,375,000 $5,302.00
per share
</TABLE>
1 Solely for purposes of calculating the registration fee pursuant to Rule
457(c) under the Securities Act of 1933, the proposed maximum per share
price is equal to the average of the high and low prices of the Common
Stock as reported on the New York Stock ExchangeComposite Tape on May 10,
1996.
<PAGE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference and made a part hereof:
(a) the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1995 (File No. 1 -10660), filed pursuant
to Section 13(a) of the Securities Exchange Act of 1934
(the "Exchange Act");
(b) the Registrant's Notice of Annual Meeting and Proxy
Statement for the Annual Meeting to be held on May 2, 1996,
mailed to stockholders on or about March 29, 1996;
(c) the Registrant's quarterly Report on Form 10-Q for the
quarter ended March 31, 1996: and
(d) the description of the Registrant's Common Stock contained
in the Registrant's registration statement on Form 8-A
filed under the Exchange Act and any amendments or reports
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of the filing
of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article IX of the Restated Certificate of Incorporation of the
Company provides that a Director of the Company shall not be personally
liable to the Company or to its shareholders for monetary damages for
breach of fiduciary duty as a Director except for liability: (i) for any
breach of the Director's duty of loyalty to the Company or its
Shareholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section
174 of the General Corporation Law of Delaware; or (iv) for any transaction
from which the Director derived an improper personal benefit. Such article
also provides that if the General Corporation Law of Delaware is amended to
authorize further eliminating or limiting the personal liability of the
Directors, then the liability of a director of the Company shall be
eliminated or limited to the fullest extent permitted by the law as so
amended.
Article V of the By-Laws of the Company provides generally that
each person who is involved in any proceeding by reason of serving as a
Director or Officer of the Company shall be indemnified and held harmless
by the Company to the fullest extent authorized by the Delaware General
Corporation Law against all liability reasonably incurred by such party in
connection with such proceeding. This right to indemnification includes the
right to be paid by the Company the expenses incurred in defending any
proceeding in advance of its final disposition; provided that if the
Delaware General Corporation Law requires, an advancement of expenses shall
be made only upon delivery to the Company of an undertaking to repay all
amounts so advanced if it is ultimately determined that the indemnitee is
not entitled to be indemnified for such expenses.
If a claim under Article V of the By-Laws is not paid in full by the
company within 60 days after a written claim has been received by the
Company, the indemnitee may at any time thereafter bring suit against the
Company to recover the unpaid amount. If such suit is successful, the
indemnitee is also entitled to be paid the expense of prosecuting the suit.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Berkshire Realty Company, Inc.1996 Stock Option Plan.
5.1 Opinion of Peabody & Brown, counsel to the Registrant, as
to the legality of the 1.500.000 shares.
23.1 Consent of Coopers & Lybrand, L.L.P.
23.2 Consent of Peabody & Brown (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5 of this registration
statement).
Item 9. Undertakings.
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933:
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; 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 for such
information in the registration statement;
provided; however, that paragraphs (i) and (ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
<PAGE>
(b) 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
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) 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.
2. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
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 in
the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of
such issue.
<PAGE>
<PAGE>
SIGNATURE
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 Boston, Massachusetts on May_, 1996.
BERKSHIRE REALTY COMPANY. INC.
By:/s/ David Marshall
David F. Marshall
President and Chief Operating
Officer
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 date indicated.
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Laurence Gerber, David F. Marshall and Marianne Pritchard, and each of them
individually, as his or her true and lawful attorney-in-fact and agent,
with full power of substitution, for him or her and in his or her name,
place and stead, in any and all capacities to sign any or all amendments or
post-effective amendments to this registration statement, and to file the
same, with 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 in an about the
premises, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his or her substitute, may lawfully do or
cause to be done by virtue hereof.
Signature Capacity Date
/s/Douglas Krupp
Douglas Krupp Chairman of the Board and Director May 16, 1996
/s/Laurence Gerber
Laurence Gerber Chief Executive Officer and Director May 16, 1996
(Principal Executive Officer)
/s/ David F. Marshall
David F. Marshall President and Chief Operating Officer May 16, 1996
/s/David M. deWilde
David M. deWilde Director May 16, 1996
/s/J. Paul Finnegan
J. Paul Finnegan Director May 16, 1996
/s/Charles N. Goldberg
Charles N. Goldberg Director May 16, 1996
/s/E. Robert Roskind
E. Robert Roskind Director May 16, 1996
/s/Marianne Pritchard
Marianne Pritchard Senior Vice President and Chief May 16, 1996
Financial Officer (Principal
Financial and Accounting Officer)
<PAGE>
<PAGE>
BERKSHIRE REALTY COMPANY. INC.
EXHIBIT INDEX
Exhibit Title of Exhibit
4.1 Berkshire Realty Company, Inc. 1996 Stock Option
Plan.
5.1 Opinion of Peabody & Brown, counsel to the
Registrant, as to the legality of the shares.
23.1 Consent of Coopers & Lybrand, L.L.P..
23.2 Consent of Peabody & Brown (included in Exhibit 5.1
hereto).
24.1 Power of Attorney (included on page 4 of this
registration statement).
<PAGE>
BERKSHIRE REALTY COMPANY, INC.
1996 STOCK OPTION PLAN
I. Purpose
The purpose of this Berkshire Realty Company, Inc. 1996 Stock Option
Plan (the "Plan") is to advance the interests of Berkshire Realty Company,
Inc., a Delaware corporation ("Berkshire Realty"); its Operating
Partnership, BRI OP Limited Partnership, a Delaware limited partnership;
and their respective subsidiaries (hereinafter collectively "BRI" or the
"Company"), by stimulating the efforts of key employees and consultants on
behalf of BRI, heightening the desire of key employees to continue in
employment with BRI, assisting BRI in competing effectively with other
enterprises for the service of new employees and consultants necessary for
the continued improvement of the Company's operations, and to attract and
retain the best available personnel for service as directors of Berkshire
Realty. This Plan permits the grant of incentive stock options as defined
in Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code"), as well as options which are not incentive stock options pursuant
to Code Section 422.
2. Definitions
(a) "Board of Directors" means the Board of Directors of Berkshire
Realty.
(b) "Committee" means the Compensation Committee appointed by the
Board of Directors from amongst its members.
(c) "Disablement" means a physical condition arising from an illness
or injury which renders an individual incapable of performing
work. The determination of the Committee as to an individual's
Disablement shall be made in accordance with the standards and
procedures of the Company' s then-current Long Term Disability
Plan and shall be conclusive on all parties.
(d) "Plan" means the Berkshire Realty Company, Inc. 1996 Stock
Option Plan, as herein set forth.
(e) "Retirement" means retirement from active employment with the
Company at or after age 62. The determination of the Committee
as to an individual's Retirement shall be conclusive on all
Parties.
(f) "Subsidiary" means any corporation (other than Berkshire Realty)
in an unbroken chain of corporations beginning with Berkshire
Realty where each of the corporations in the unbroken chain
other than the last corporation owns stock possessing fifty
percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
<PAGE>
3. Participants
"Participants" in the Plan shall be those key BRI employees and those
consultants (including, but not limited to, key employees of companies
providing services to BRI) to whom options may be granted from time to time
by the Committee. Participants shall also include non-employee directors of
Berkshire Realty to whom options are granted in accordance with Section 6.
No option shall be granted to any person if immediately after the grant of
such option such person would own stock, including stock subject to
outstanding options held by him or her, amounting to more than five percent
(5%) of the total combined voting power or value of all classes of stock of
the Company or any Subsidiary.
4. Effective Date and Termination of the Plan
This Plan was adopted by the Board of Directors on February 8, 1996
for submission to the shareholders on May 2, 1996, and is effective upon
the approval of the shareholders. The Plan shall terminate when all shares
of stock subject to options granted under this Plan shall have been
acquired through exercise of such options or on May 1, 2001, whichever is
earlier, or at such earlier time as the Board of Directors may determine.
Termination of the Plan will not affect the rights and obligations arising
under options theretofore granted and then in effect.
5. Shares Subject to the Plan and to Options
The stock subject to options authorized to be granted under the Plan
shall consist of 1,500,000 shares of Berkshire Realty's common stock, $.01
par value, or the number and kind of shares of stock or other securities
which shall be substituted or adjusted for such shares as provided in
Section 7. Such shares may be authorized and unissued shares of Berkshire
Realty's common stock. All or any shares of stock subject to an option
which for any reason terminates unexercised may again be made subject to an
option under the Plan.
6. Grant, Terms and Conditions of Options
Options may be granted at any time and from time to time prior to the
termination of the Plan to those key employees of BRI and those consultants
(including, but not limited to, key employees of companies providing
services to BRI) who, in the Committee's judgment, are largely responsible
through their judgment, interest, ability and special efforts for the
successful conduct of BRI's business. However, no Participant shall be
granted options in any year to purchase a number of Berkshire Realty's
common stock in excess of one percent
(1%) of the number of shares of Berkshire Realty's common stock outstanding
on January l, 1996.
Options will be granted to non-employee directors as follows: As of
the effective date of this plan each non-employee director will receive an
initial grant of 12,000 shares. Thereafter, each new non-employee director
will receive an initial grant of 5,000 shares at the time of his or her
appointment or election to the position of director; and each director
continuing in office will receive an annual grant of 3,000 shares on the
date of each annual shareholder's meeting of Berkshire Realty. Each
non-employee director serving on the Audit Committee or the Compensation
Committee of the Board of Directors (or both) shall receive an additional
initial grant of l0,000 shares and additional annual grants of l,000 shares
for each such committee served on, and the chair of each such committee
shall receive (in lieu of said 1,000 share grant) an additional initial
grant of 2,000 shares and additional annual grants of 2,000 shares for each
such committee chaired. The Committee will have no discretion to select
which non-employee directors will be granted options or to determine the
number of option shares, price, vesting schedule or any other term of the
options granted to non-employee directors. All options granted to
non-employee directors will be non-qualified options.
No Participant shall have any rights as a stockholder with respect to
any shares of stock subject to option hereunder until said shares have been
issued. Each option shall be evidenced by a written stock option agreement
which will expressly identify the option as an incentive stock option or as
a non-qualified stock option. Furthermore, the grant of an incentive stock
option pursuant to this Plan shall in no way be construed as an alterative
to the right of an optionee to
purchase stock pursuant to any present or future grant of a non-qualified
option under any of BRI's current or future stock plans. Options granted
pursuant to the Plan need not be identical, but each option is subject to
the Plan and must contain and be subject to the following terms and
conditions:
(a) Price: The purchase price under each option granted to employees
shall be established by the Committee. In no event will the
option price be less than 100% of the fair market value of the
stock on the date of the grant. For purposes of the Plan fair
market value on a particular date means the closing price of
Berkshire Realty's stock on the immediately prior day trading
day. The option price must be paid in full at the time of the
exercise. The price may be paid in cash; cash equivalents or
secured notes acceptable to the Committee; by arrangement with a
broker which is acceptable to the Committee where payment of the
option price is made pursuant to an irrevocable direction to the
broker to deliver all or part of the proceeds from the sale of
the option shares to the Company; by the surrender of shares of
common stock owned by the optionee exercising the option and
having a fair market value on the date of the exercise equal to
the option price; or, in any combination of the foregoing.
(b) Duration and Exercise or Termination of Option: Each option
granted to an employee or consultant shall be exercisable in
such manner and at such times as the Committee shall determine.
Each option granted must expire within a period of ten (10)
years from the grant date. An employee's stock option agreement
may provide for accelerated exercisability in the event of the
employee's death, Disablement or Retirement or other events in
accordance with policies established by the Committee and may
provide for expiration prior to the end of its terms in the
event of the termination of the employee' s service. A
consultant's stock agreement may provide for accelerated
exercisability in the event of the consultant's death,
Disablement, retirement from employment at or after age 62 or
other events in accordance with policies established by the
Committee and may provide for expiration prior to the end of its
terms in the event of the termination of the consultant's
service
Each initial 12,000 or 5,000 share option and each subsequent
3,000 share option granted to a non-employee director, and each
2,000 or 1,000 share option granted to a non-employee director
by virtue of his or her committee chairmanship or membership
will become exercisable beginning one year from the date of the
annual meeting of the shareholders on which date the options
were granted. If a non-employee director is appointed by the
Board of Directors to begin serving as a director or committee
member or chair on a date not coincident with an annual meeting
<PAGE>
date, the director will be granted the initial share options as
of the date of the first meeting at which he or she serves as
director, committee member or committee chair, as the case may
be; however, his or her options will become first exercisable
beginning one year from the date of the next occurring annual
meeting and he or she will not receive an additional grant of
options on the date of such next occurring annual meeting.
(c) Suspension or Termination of Option: Unless the following
provisions are waived or modified by the Committee in connection
with the entering into, extension or modification of an
employment agreement, each option shall provide that if the
Chief Executive Officer of Berkshire Realty or his designee
reasonably believes that a Participant other than a non-employee
director has committed an act of misconduct as described in this
Section, the Chief Executive Officer may suspend the
Participant's right to exercise any option pending a
determination by the Board of Directors. If the Board of
Directors determines a Participant other than a non-employee
director has committed an act of embezzlement, fraud,
dishonesty, nonpayment of any obligation to the Company, breach
of fiduciary duty or deliberate disregard of BRI rules resulting
in loss, damage or injury to the Company, or if a Participant
makes an unauthorized disclosure of any BRI trade secret or
confidential information, or engages in any conduct constituting
unfair competition, neither Participant nor his estate shall be
entitled to exercise any option whatsoever. In making such
determination, the Board of Directors shall act fairly and shall
give the Participant an opportunity to appear and present
evidence on his or her behalf at a hearing before a committee of
the Board of Directors. For any Participant who is an "executive
officer" for purposes of Section 16 of the Securities Exchange
Act of 1934, the determination of the Board of Directors shall
be subject to the approval of the Committee.
(d) Termination of Non-Employee Director's Service: Subject to
Section 6(b), upon the termination of the Participant's service
as a non-employee director, his or her rights to exercise an
option then held shall be only as follows:
(1) Death. Upon the death of a non-employee director while in
service as a non-employee director of Berkshire Realty,
the non-employee director's rights will be exercisable by
his or her estate or beneficiary at any time within twelve
(12) months next succeeding the date of death. The number
of shares exercisable by the estate or beneficiary will be
the total number of unexercised options under the
non-employee director' s option on the date of his or her
death. If a non-employee director shall die within thirty
(30) days of his or her termination of service as a
non-employee director with Berkshire Realty, an option
will be exercisable by his or her estate or beneficiary at
any time during the twelve (12) months succeeding the date
of termination, but only to the extent the number of
shares to which such option was exercisable as of the date
of such termination. A non-employee director's estate
shall mean his or her legal representative of other person
who so acquires the right to exercise the option.
(2) Disablement. Upon the Disablement of a non-employee
director, any option which he or she holds, whether or not
<PAGE>
then exercisable, may be exercised after the date of the
Disablement within twelve (12) months.
(3) Retirement. Upon the Retirement of a non-employee
director, the non-employee director's rights to
non-qualified stock options may be exercised for a period
of twelve months after Retirement.
(4) Other Reasons. Upon the termination of a non-employee
director's service as a non-employee director for any
reason other than those stated above, the non-employee
director may, within ninety (90) days following such
termination, exercise the option to the extent such option
was exercisable on the date of termination.
(e) Transferability of Option: Each stock option shall be
transferable only by will or the laws of descent and
distribution and shall only be exercisable by the Participant
during his lifetime.
(f) Modification or Assumption of Options: The Committee may modify,
extend or assume outstanding options (whether granted by BRI or
by another issuer) in return for the grant of new options for
the same or a different number of shares and at the same or a
different exercise price.
(g) Other Terms and Conditions: Options may also contain such other
provisions, which shall not be inconsistent with any of the
foregoing terms, as the Committee shall deem appropriate. No
Option, however, nor anything contained in the Plan shall confer
upon any Participant any right to continue in BRI's employ or
service nor limit in any way BRI's right to terminate his or her
employment or service at any time.
7. Adjustment of and Changes in the Stock
(a) In the event that the shares of common stock of Berkshire Realty
shall be changed into or exchanged for a different number or
kind of shares of stock or other securities of Berkshire Realty
or of another corporation (whether by reason of merger,
consolidation, recapitalization, reclassification, split-up,
combination of shares, or otherwise), or if the number of
shares of common stock of Berkshire Realty shall be increased
through a stock split or the payment of a stock dividend, then
there shall be substituted for or added to each share of common
stock theretofore appropriated or thereafter subject or which
may become subject to an option under the Plan, the number and
kind of shares of stock or other securities into which each
outstanding share of common stock of Berkshire Realty shall so
be changed, or for which each such share shall be exchanged, or
to which each such share shall be entitled, as the case may be.
Outstanding options shall also be amended as to any price or
other terms if necessary to reflect the foregoing events. In the
event there shall be any other change in the number or kind of
the outstanding shares of common stock of Berkshire Realty, or
any other stock or other securities into which such common
stock shall have been changed, or for which it shall have been
exchanged, then if the Committee shall, in its sole discretion,
determine that such change equitably requires an adjustment in
any option theretofore granted under the Plan, such adjustment
shall be made in accordance with such determination.
<PAGE>
(b) No right to purchase fractional shares shall result from any
adjustment in options pursuant to this Section 7. In case of any
such adjustment, the shares subject to the option shall be
rounded down to the nearest whole share. Notice of any
adjustment shall be given by the Company to each Participant who
shall have been so adjusted and such adjustment (whether or not
notice is given) shall be effective and binding for all purposes
of the Plan.
(c) Any other provision hereof to the contrary notwithstanding
(except Section 6(b)) in the event Berkshire Realty is a party
to a merger or other reorganization, outstanding options shall
be subject to the agreement of merger or reorganization. Such
agreement may provide, without limitation, for the assumption of
outstanding options by the surviving corporation or its parent,
for their continuation by Berkshire Realty (if Berkshire Realty
is a surviving corporation), for accelerated vesting and
accelerated expiration, or for settlement in cash.
8. Listing or Qualification of Stock
In the event the Board of Directors determines in its discretion that
the listing or qualification of the Plan shares on any securities exchange
or under any applicable law or governmental regulation is necessary as a
condition to the issuance of such shares under the option, the option may
not be exercised in whole or in part unless such listing, qualification,
consent or approval has been unconditionally obtained.
9. Administration and Amendment of the Plan
The Plan shall be administered by the Committee. The Committee shall
consist of two or more directors of Berkshire Realty, who shall be
appointed by the Board of Directors, and who shall be disinterested
persons, as hereinafter defined. The Board shall fill vacancies and may
from time to time remove or add members. All members of the Committee will
be disinterested persons as defined in Rule 16b-3 under the Exchange Act. A
non-employee director shall not fail to be "disinterested" solely because
he or she receives the grant described in Section 6. The Board of Directors
may also appoint one or more separate committees of the Board of Directors,
each composed of one or more directors of Berkshire Realty who need not be
disinterested, who may administer the Plan with respect to employees or
consultants who are not executive officers or directors of BRI, may grant
options to such employees or consultants and may determine all of the terms
of such options. The Board of Directors may amend or terminate the Plan as
desired, without further action by Berkshire Realty's shareholders except
to the extent required by applicable law.
Notwithstanding the above, the provisions of Section 6 relating to
non-employee directors may not be amended more than once every six months,
except to comply with changes to the Code or the rules thereunder.
10. Time of Granting Options
The effective date of each option granted hereunder shall be the date
on which the grant was made. Within a reasonable time thereafter, Berkshire
Realty will execute and deliver a written option agreement to the
Participant.
11. Withholding
To the extent required by applicable federal, state, local or foreign
law, a Participant shall make arrangements satisfactory to the Company for
<PAGE>
the satisfaction of any withholding tax obligations that arise by reason of
an option exercise or any sale of shares. Berkshire Realty shall not be
required to issue shares until such obligations are satisfied. The
Committee may permit these obligations to be satisfied by having the
Company withhold a portion of the shares of stock that otherwise would be
issued to him or her upon exercise of the option, or to the extent
permitted, by tendering shares previously acquired.
<PAGE>
PEABODY & BROWN
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
101 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1832
(617) 345-10000
WRITER'S DIRECT DIAL NUMBER FAX: (617) 345-1300 MANCHESTER, NH
PROVIDENCE, Rl
WASHINGTON, DC
May 14, 1996
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, MA 02210
Ladies and Gentlemen:
This opinion is furnished in connection with the registration,
pursuant to the Securities Act of 1933, as amended (the "Securities Act"),
of l ,500,000 shares (the "Shares") of common stock, par value $.01 per
share ("Common Stock"), of Berkshire Realty Company, Inc., a Delaware
corporation (the "Company"), pursuant to the Berkshire Realty Company, Inc.
1996 Stock Option Plan.
In connection with rendering this opinion, we have examined the
Amended and Restated Certificate of Incorporation, as amended, and the
Bylaws of the Company, as amended; such records of the corporate
proceedings of the Company as we deemed material; a registration statement
on Form S-8 under the Securities Act relating to the Shares (the
"Registration Statement"), the Berkshire Realty Company, Inc. 1996 Stock
Option Plan (the "Plan") and such other records and documents as we
considered necessary for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any
jurisdictions other than the laws of the United States of America, The
Commonwealth of Massachusetts and the General Corporation Law of the State
of Delaware.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the
Registration Statement and the Plan, the Shares will be legally issued,
fully paid arid nonassessable shares of the Company's Common Stock.
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PEABODY & BROWN
Berkshire Realty Company, Inc.
May 14, 1996
Page 2
The foregoing assumes that all requisite steps will be taken to
comply with the requirements of the Securities Act and applicable
requirements of state laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PEABODY & BROWN
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CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration
statement of Berkshire Realty Company, Inc. on Form S-8 of our report,
dated January 12, 1996, except as to the information presented in Note N,
for which the date is March 1, 1996, on our audits of the consolidated
financial statements and financial statement schedules of Berkshire Realty
Company, Inc. as of December 31, 1995 and 1994, and for the years ended
December 31, 1995, 1994, and 1993, which report is included in the 1995
Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 14, 1996
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