As filed with the Securities and Exchange Commission on April 10, 1998
Registration Statement No. 333-48575
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BERKSHIRE REALTY COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 04-3086485
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
470 Atlantic Avenue
Boston, Massachusetts 02210
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Scott D. Spelfogel
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, Massachusetts 02210
(617) 423-2233
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
Copies to:
Alexander J. Jordan, Jr.
Peabody & Brown
101 Federal Street
Boston, Massachusetts 02110-1832
(617) 345-1103
- --------------------------------------------------------------------------------
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"), pursuant to the
Exchange Act. Such reports, proxy statements and other information filed by the
Company may be examined without charge at, or copies obtained upon payment of
prescribed fees from, the Public Reference Section of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, DC 20549 and are also
available for inspection and copying at the regional offices of the Commission
located at 7 World Trade Center, 13th Floor, New York, NY 10048 and at 500 West
Madison Street, Suite 1400, Chicago, IL 60661-2511. The Commission maintains a
Web site at http://www.sec.gov containing reports, proxy and information
statements and other information regarding registrants, including the Company,
that file electronically with the Commission. In addition, the Common Stock of
the Company is listed on the New York Stock Exchange, and similar information
concerning the Company can also be inspected and copied at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission, 450 Fifth Street, N.W.,
Washington, DC 20549, a Registration Statement on Form S-3 under the Securities
Act and the rules and regulations promulgated thereunder, with respect to the
securities offered pursuant to this Prospectus. This Prospectus, which is part
of the Registration Statement, does not contain all of the information set forth
in the Registration Statement and the exhibits and financial schedules thereto.
For further information concerning the Company and the securities offered
hereby, reference is made to the Registration Statement and the exhibits and
schedules filed therewith, which may be examined without charge at, or copies
obtained upon payment of prescribed fees from, the Commission at its regional
offices at the locations listed above. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission (File No. 1-10660) are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1997
and amendment to such Annual Report on Form 10-K/A;
(b) Current Report on Form 8-K filed February 13, 1998 and amendment
to such Current Report on Form 8-K/A filed March 31, 1998; and
(c) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed November 19,
1990 pursuant to the Exchange Act.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the filing of a post-effective amendment which indicates that all
Redemption Shares offered hereby have been sold or which deregisters all
Redemption Shares then remaining unsold shall be incorporated by reference in
this Propsectus and made a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be
<PAGE>
Recent Legislation
In addition to changes to the requirements for qualification and
taxation as a REIT discussed above, the Taxpayer Relief Act also contains
significant changes to the taxation of capital gains of individuals, trusts and
estates. For gains realized after July 28, 1997, and subject to certain
exceptions, the maximum rate of tax on net capital gains of individuals, trusts
and estates from the sale or exchange of capital assets held for more than 18
months has been reduced to 20%, and the maximum rate is reduced to 18% for
assets acquired after December 31, 2000 and held for more than five years. The
maximum rate for long-term capital gains attributable to the sale of depreciable
real property held for more than 18 months is 25% to the extent of the
deductions for depreciation with respect to such property. Long-term capital
gain allocated to a shareholder by the Company will be subject to the 25% rate
to the extent that the gain does not exceed depreciation on real property sold
by the Company. The maximum rate of capital gains tax for capital assets held
for more than one year but not more than 18 months remains at 28%. The taxation
of capital gains of corporations was not changed by the Taxpayer Relief Act.
Unitholders are urged to consult their own tax advisors with respect to
the appropriateness of an investment in the Common Stock and with respect to the
tax consequences arising under the federal law and the laws of any state,
municipality or other taxing jurisdiction, including tax consequences arising
from such Unitholder's own tax characteristics. In particular, foreign investors
should consult their own tax advisors concerning the tax consequences of an
investment in the Company including the possibility of United States income tax
withholding on Company distributions.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the issuance of any
Redemption Shares, but will acquire Units tendered to the Operating Partnership
for redemption for which it elects to issue Redemption Shares. The shares of
Common Stock offered hereby may be sold from time to time on the NYSE on terms
to be determined at the time of such sales.
The shares of Common Stock offered hereby 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 Company will pay substantially all the expenses incurred by the
Unitholders and the Company incident to the offering, but excluding any selling
commissions or discounts, brokerage fees, transfer taxes or the fees or expenses
of any counsel, accountants or other representatives retained by the
Unitholders.
The Company has agreed to indemnify the Unitholders against certain
liabilities, including liabilities under the Securities Act.
EXPERTS
The consolidated financial statements of Berkshire Realty Company, Inc.
and its subsidiaries, included in the report on Form 10-K of the Company for the
fiscal year ended December 31, 1997 referred to above have been audited by
Coopers & Lybrand L.L.P., independent accountants, as set forth in their report
dated January 16, 1998, except for Note V, for which the date is February 27,
1998, accompanying such financial statements, and are incorporated herein by
reference in reliance upon the report of such firm, which report is given upon
their authority as experts in accounting and auditing.
<PAGE>
Item 16. Exhibits
Exhibit
Numbers Description
------- -----------
5.1 Opinion regarding legality.
8.1 Opinion regarding certain tax matters.
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 signature page hereto).
-------------------------------
** Previously filed.
<PAGE>
SIGNATURES
Pursuant to the requirement 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
Pre-Effective Amendment No. 1 to its Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Boston, Massachusetts,
on April 9, 1998.
BERKSHIRE REALTY COMPANY, INC.
By: /s/ Marianne Pritchard
------------------------------------------
Marianne Pritchard, Executive
Vice President and Chief Financial Officer
of Berkshire Realty Company, Inc.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Douglas Krupp* Chairman of the Board and Director of Berkshire April 9, 1998
- ----------------------------- Realty Company, Inc.
Douglas Krupp
/s/ David F. Marshall* President, Chief Executive Officer and Director April 9, 1998
- ----------------------------- of Berkshire Realty Company, Inc.
David F. Marshall
/s/ Marianne Pritchard* Executive Vice President and Chief Financial April 9, 1998
- ----------------------------- Officer of Berkshire Realty Company, Inc.
Marianne Pritchard
/s/ Terrance R. Ahern* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
Terrance R. Ahern
/s/ David M. deWilde* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
David M. deWilde
<PAGE>
/s/ J. Paul Finnegan* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
J. Paul Finnegan
/s/ Charles N. Goldberg* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
Charles N. Goldberg
/s/ Paul D. Kazilionis* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
Paul D. Kazilionis
/s/ E. Robert Roskind* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
E. Robert Roskind
/s/ Arthur P. Solomon* Director of Berkshire Realty Company, Inc. April 9, 1998
- -----------------------------
Arthur P. Solomon
*By: /s/ Marianne Pritchard
-----------------------------------
Marianne Pritchard, Attorney-in-fact
</TABLE>
<PAGE>
Exhibit Index to Registration Statement on Form S-3
---------------------------------------------------
The following exhibits are filed as part of this Registration Statement on Form
S-3.
Exhibit
Numbers Description
------- -----------
5.1 Opinion regarding legality.
8.1 Opinion regarding certain tax matters.
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 the signature page hereto).
- ---------------------
** Previously filed.
EXHIBIT 5.1
PEABODY & BROWN
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
101 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1832
(617) 345-1000
------
WRITER'S DIRECT DIAL NUMBER FAX: (617) 345-1300 MANCHESTER, NH
------ PROVIDENCE, RI
WASHINGTON, DC
http://www.peabodybrown.com
March 24, 1998
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, MA 02210
Gentlemen:
You have requested our opinion in connection with the Registration
Statement on Form S-3 (the "Registration Statement") filed under the Securities
Act of 1933, as amended (the "Securities Act"), for the purpose of registering
1,700,000 shares of common stock, par value $.01 (the "Common Stock"), to be
issued by Berkshire Realty Company, Inc., a Delaware corporation (the
"Company"), from time to time as described in the Registration Statement if, and
to the extent that, holders of units of limited partnership interest ("Units")
in BRI OP Limited Partnership (the "Operating Partnership") tender such Units to
the Operating Partnership for redemption and the Company exercises its right to
acquire such tendered Units in exchange for Common Stock (the "Redemption
Shares") pursuant to the terms of the Agreement of Limited Partnership (the
"Partnership Agreement") of the Operating Partnership.
We have acted as counsel for the Company in connection with the
preparation of the Registration Statement and various corporate documents
related thereto. We have examined and relied upon the following documents and
instruments for the purpose of giving this opinion which, to our knowledge and
in our judgment, are all of the documents and instruments that are necessary for
us to examine for such purpose:
1. the Registration Statement and the prospectus filed therewith and
all exhibits thereto;
2. a copy of the Company's Restated Certificate of Incorporation, as
amended to date;
3. a copy of the Company's Bylaws, as amended to date;
4. a copy of the Partnership Agreement, as amended to date;
<PAGE>
PEABODY & BROWN
Berkshire Realty Company, Inc.
March 24, 1998
Page 2
5. a copy of a Contribution Agreement between the Company, the
Operating Partnership and The Berkshire Companies Limited
Partnership dated as of February 28, 1997;
6. a copy of an Action by Written Consent of the Board of Directors
of the Company adopted as of March 23, 1998; and
7. such other documents as we have deemed necessary or appropriate
for purposes of this opinion.
In examining all documents, we have assumed the genuineness of all
signatures thereon, the accuracy of all statements contained therein, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents furnished to us as certified or photographic
copies and the completeness of all documents furnished to us. We have also
assumed the legal capacity (as distinct from authority) and competency of any
individual who has signed any instrument referred to herein. With respect to the
latter assumption, nothing has come to our attention giving us reasonable
grounds to question the correctness of such assumption.
Based upon the foregoing, and having regard for such legal considerations
as we deem relevant, we are of the opinion that, upon their issuance in exchange
for Units, the Redemption Shares will be legally issued, fully paid and
nonassessable.
The foregoing assumes that all requisite steps have been taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
Our opinion is subject to the following qualifications and limitations:
i. We express no opinion as to the laws of any state or jurisdiction
other than the federal laws of the United States, the laws of The Commonwealth
of Massachusetts and the General Corporation Law of the State of Delaware.
ii. The opinions set forth herein are expressed as of the date hereof,
and we disclaim any undertaking to advise you of any changes which may
subsequently be brought to our attention in the facts and the law upon which
such opinions are based.
This opinion is furnished by us solely for your benefit and is intended
to be used as an exhibit to the Registration Statement filed with the Securities
and Exchange Commission. Except for such use, neither this opinion nor copies
hereof may be relied upon, delivered to or quoted in whole or in part by any
person without our prior written consent.
<PAGE>
PEABODY & BROWN
Berkshire Realty Company, Inc.
March 24, 1998
Page 3
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Registration
Statement. In giving such consent, we do not admit that we come within the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations promulgated thereunder by the Securities and
Exchange Commission.
Very truly yours,
/s/ PEABODY & BROWN
PEABODY & BROWN
EXHIBIT 8.1
PEABODY & BROWN
A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
101 FEDERAL STREET
BOSTON, MASSACHUSETTS 02110-1832
(617) 345-1000
------
WRITER'S DIRECT DIAL NUMBER FAX: (617) 345-1300 MANCHESTER, NH
------ PROVIDENCE, RI
WASHINGTON, DC
http://www.peabodybrown.com
March 24, 1998
Berkshire Realty Company, Inc.
470 Atlantic Avenue
Boston, MA 02210
Re: Registration Statement on Form S-3
----------------------------------
Gentlemen:
We have acted as counsel to Berkshire Realty Company, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
registration statement on Form S-3 (the "Registration Statement") for the
purpose of registering 1,700,000 shares of the Company's Common Stock, par value
$.01 per share.
The Company has requested our opinion as to the Company's qualification
for federal income tax purposes as a real estate investment trust (a "REIT")
pursuant to sections 856 through 860 of the Internal Revenue Code of 1986, as
amended (the "Code"), and the accuracy of the statements in the Registration
Statement set forth under the caption FEDERAL INCOME TAX CONSIDERATIONS.
In connection with the opinions rendered below, we have examined the
following documents:
1. the Registration Statement and the prospectus filed therewith and
all exhibits thereto;
2. a copy of the Company's Restated Certificate of Incorporation, as
amended to date;
3 a copy of the Company's Bylaws, as amended to date; and
4. such other documents as we have deemed necessary or appropriate
for purposes of this opinion.
<PAGE>
PEABODY & BROWN
Berkshire Realty Company, Inc.
March 24, 1998
Page 2
We have reviewed the Registration Statement and the descriptions set
forth therein of the Company and its investments and activities. We have relied
upon the representations of the Company and its affiliates and certain officers
thereof (including, without limitation, representations contained in a
representation letter dated as of March 11, 1998 provided by the Company and
Berkshire Apartments, Inc.) regarding the manner in which the Company has been
and will continue to be owned and operated. We have neither independently
investigated nor verified such representations, and we assume that such
representations are true, correct and complete and that all representations made
"to the best of the knowledge and belief" of any person(s) or party(ies) are and
will be true, correct and complete as if made without such qualification. We
assume that the Company has been and will be operated in accordance with
applicable laws and the terms and conditions of applicable documents, and that
the descriptions of the Company and its investments and the proposed
investments, activities, operations and governance of the Company set forth in
the Registration Statement continue to be true. In addition, we have relied on
certain additional facts and assumptions described below.
In examining all documents, we have assumed the genuineness of all
signatures thereon, the accuracy of all statements contained therein, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents furnished to us as certified or photographic
copies and the completeness of all documents furnished to us. We have also
assumed the legal capacity (as distinct from authority) and competency of any
individual who has signed any instrument referred to herein. With respect to the
latter assumption, nothing has come to our attention giving us reasonable
grounds to question the correctness of such assumption.
The discussion and conclusions set forth below are based upon the Code,
the Income Tax Regulations and Procedure and Administration Regulations
promulgated thereunder and existing administrative and judicial interpretations
thereof, all of which are subject to change. No assurance can therefore be given
that the federal income tax consequences described below will not be altered in
the future.
Based upon and subject to the foregoing, and provided that the Company
continues to meet the applicable asset composition, source of income,
shareholder diversification, distribution, recordkeeping and other requirements
of the Code necessary for a corporation to qualify as a REIT, we are of the
opinion that:
1. The Company is organized in conformity with the requirements for
qualification as a REIT under the Code, and its method of operation, as
described in the representations
<PAGE>
PEABODY & BROWN
Berkshire Realty Company, Inc.
March 24, 1998
Page 3
referred to above, will enable it to continue to meet the requirements for
qualification and taxation as a REIT under the Code.
2. The statements in the Registration Statement set forth under the
caption FEDERAL INCOME TAX CONSIDERATIONS, to the extent such information
constitutes matters of law, summaries of legal matters or legal conclusions,
have been reviewed by us and are accurate in all material respects.
We express no opinion with respect to the transactions described in the
Registration Statement other than those expressly set forth herein. You should
recognize that our opinions are not binding on the Internal Revenue Service and
that the Internal Revenue Service may disagree with the opinions contained
herein. Although we believe that our opinions will be sustained if challenged,
there can be no assurance that this will be the case. Except as specifically
discussed above, the opinions expressed herein are based upon the law as it
currently exists. Consequently, future changes in the law may cause the federal
income tax treatment of the Company as a REIT to be materially and adversely
different from that under current law.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Registration
Statement. In giving such consent, we do not admit that we are in the category
of persons whose consent is required by Section 7 of the Securities Act of 1933,
as amended, or the rules and regulations promulgated thereunder by the
Securities and Exchange Commission.
The foregoing opinions are limited to the federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any state,
locality or foreign country. We undertake no obligation to update the opinions
expressed herein after the date of this letter. This opinion letter is solely
for the information and use of the addressee and may not be relied upon for any
purpose by any other person without our express written consent.
Very truly yours,
/s/ PEABODY & BROWN
PEABODY & BROWN
EX-23.1
Consents of Experts And Counsel
[Coopers & Lybrand Letterhead]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-3 of our report dated January 16, 1998, except for Note V,
for which the date is February 27, 1998, on our audits of the consolidated
financial statements and financial statement schedule of Berkshire Realty
Company, Inc. and its subsidiaries. We also consent to the references to our
firm under the caption "Experts".
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
April 9, 1998
