As Filed with the Securities and Exchange Commission on June 19, 1998
Registration No. 333-[ ]
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FIRST WASHINGTON REALTY TRUST, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 52-187997
(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization) Number)
4350 East-West Highway, Suite 400
Bethesda, Maryland 20814
(301) 907-7800
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Principal Executive Offices)
1994 Contingent Stock Awards
1996 Restricted Stock Plan
Amended and Restated 1996 Contingent Stock Agreements
(Full title of the Plans)
William J. Wolfe
President and Chief Executive Officer
4350 East-West Highway, Suite 400
Bethesda, Maryland 20814
(301) 907-7800
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
with a copy to:
R. Ronald Hopkinson, Esq.
Latham & Watkins
885 Third Avenue
Suite 1000
New York, New York 10022
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
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 (the "Securities Act"), other than securities offered only in connection
with dividend or interest reinvestment plans, please check the following box.
[X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ___________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
Title of Each Proposed Proposed
Class of Amount To Be Maximum Maximum Amount of
Securities to Registered Aggregate Aggregate Registration
be Registered (1)(2) Price Per Unit Offering Price Fee (2)(3)
Common Stock 888,400 $24.625 $21,876,850 $6,460
</TABLE>
(1) Pursuant to Rule 416(a), the number of shares of Common Stock being
registered shall be adjusted to include any additional shares which may
become issuable as a result of stock splits, stock dividends, or similar
transactions in accordance with the anti-dilution provisions of the Plans
(as defined). (2) In connection with this Registration Statement, the
Registrant is paying a fee based solely on (i) the 200,000 shares of Common
Stock subject to the 1994 Contingent Stock Awards (as defined herein); (ii)
the 478,400 shares of Common Stock subject to the 1996 Restricted Stock Plan
(as defined herein); and (iii) the 210,000 shares of Common Stock subject to
the Amended 1996 Contingent Stock Agreements (as defined herein). (3)
Estimated solely for purposes of calculating the amount of the registration
fee pursuant to Rule 457(c) and (h), and based on a per share price of
$24.625, the average of the high and low prices of the Company's common
stock (the "Common Stock"), as reported on the New York Stock Exchange on
June 15, 1998.
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two parts. The first part contains
a prospectus pursuant to Form S-3 (in accordance with Section C of the General
Instructions to Form S-8) which covers reoffers and resales of Control
Securities and Restricted Securities (as such terms are defined in Section C of
the General Instructions to Form S-8) of the Company which previously have been
issued or which shall be issued pursuant to the Plans. The second part of this
Registration Statement contains Information Required in the Registration
Statement pursuant to Part II of Form S-8 and certain items from "Information
Not Required in the Prospectus" pursuant to Form S-8. The Plan Information
specified by Part I of Form S-8 is not being filed with the Securities and
Exchange Commission (the "Commission") but will be delivered to all participants
in the Plans pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended.
First Washington Realty Trust, Inc., a Maryland corporation (the
"Company"), pursuant to the 1994 Contingent Stock Awards (the "1994 Contingent
Stock Awards") reserved for issuance 200,000 shares of Common Stock to be
distributed pursuant to the 1994 Contingent Stock Awards. On May 23, 1996, the
Company's stockholders approved the 1996 Restricted Stock Plan, as amended on
May 8, 1998 (the "1996 Restricted Stock Plan"), pursuant to which the Company
reserved for issuance 478,400 shares of Common Stock to be issued pursuant to
the 1996 Restricted Stock Plan. On May 23, 1996, the Company's stockholders
approved the 1996 Contingent Stock Agreements (the "1996 Contingent Stock
Agreements") pursuant to which the Company reserved for issuance 60,000 shares
of Common Stock, and on May 8, 1998, the Company's stockholders approved the
Amended and Restated 1996 Contingent Stock Agreements (the "Amended and Restated
1996 Contingent Stock Agreements") pursuant to which the Company reserved for
issuance an additional 150,000 shares of Common Stock to be issued pursuant to
the Amended and Restated 1996 Contingent Stock Agreements. The 1994 Contingent
Stock Awards, the 1996 Restricted Stock Plan and the Amended and Restated 1996
Contingent Stock Agreements are collectively referred to herein as the "Plans."
This Registration Statement on Form S-8 relates to: (i) resale and
reoffer of 200,000 shares of Common Stock that have been issued pursuant to the
1994 Contingent Stock Awards, (ii) the initial registration of 367,658 shares of
Common Stock that will be issued under the 1996 Restricted Stock Plan, (iii) the
resale and reoffer of 478,400 shares of Common Stock issued and issuable under
the 1996 Restricted Stock Plan, (iv) the initial registration of 200,000 shares
of Common Stock that will be issued under the Amended and Restated 1996
Contingent Stock Agreements, and (v) the resale and reoffer of 210,000 shares of
Common Stock issued and issuable under the Amended and Restated 1996 Contingent
Stock Agreements.
<PAGE>
PROSPECTUS
PROSPECTUS DATED JUNE 19, 1998
FIRST WASHINGTON REALTY TRUST, INC.
888,400 Shares
Common Stock
($0.01 Par Value Per Share)
This Prospectus relates to the offer and sale of shares of Common
Stock, par value $0.01 per share (the "Common Stock") of First Washington Realty
Trust, Inc., a Maryland corporation (the "Company"), which may be offered hereby
from time to time by any or all of the selling security holders named herein
(the "Selling Security Holders") for their own benefit. The Selling Security
Holders have acquired or will acquire Common Stock pursuant to the Company's
1994 Contingent Stock Awards, the 1996 Restricted Stock Plan and the Amended and
Restated 1996 Contingent Stock Agreements (collectively, the "Plans"). The
Company will not receive any of the proceeds from the sale of Common Stock
offered hereby. The Company will bear certain expenses (estimated at $16,000) in
connection with the registration of the Common Stock under the Securities Act of
1933, as amended (the "Securities Act"), but the Selling Security Holders will
bear all selling and other expenses. See "Plan of Distribution."
All or a portion of the shares of Common Stock offered hereby may be
offered for sale, from time to time, on the New York Stock Exchange ("NYSE) or
such other national securities exchange or automated interdealer quotation
system on which the Common Stock is then listed, through negotiated transactions
or otherwise at market prices prevailing at the time of the sale or at
negotiated prices. See "Plan of Distribution."
The Company engages in the acquisition, property management, leasing,
renovation and development of principally supermarket-anchored neighborhood
shopping centers. The Company is a fully-integrated, self-administered and
self-managed real estate company that operates as a real estate investment trust
(a "REIT"). The Company is the sole general partner of, and owns approximately
75% of the partnership interests in, First Washington Realty Limited Partnership
(the "Operating Partnership"). For convenience, the business of the Company and
the business of the Operating Partnership are sometimes referred to herein
collectively as the "Company"). All of the Company's operations are conducted
through the Operating Partnership. The Company owns a portfolio of 52 retail
properties. The 52 retail properties contain a total of approximately 5.6
million square feet of gross leasable area ("GLA"). The Company, through a
subsidiary, First Washington Management, Inc. (the "Management Company"), also
provides management, leasing and related services to properties owned by third
parties.
The Company's Common Stock is listed on the NYSE under the symbol "FRW." On
June 15, 1998, the closing sale price of the Common Stock as reported on the
NYSE was $24.625.
To assist the Company in maintaining its qualification as a REIT,
transfer of the Common Stock is restricted, and actual or constructive ownership
by any person is limited to 9.8% (in value or in number of shares, whichever is
more restrictive) of the outstanding shares of Common Stock, subject to certain
exceptions.
See "Risk Factors" incorporated by reference from the Company's Current
Report on Form 8-K filed on September 10, 1997 for certain factors relevant to
an investment in the Common Stock.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is June 19, 1998.
<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"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and a the following Regional Offices
of the Commission: Midwest Regional Office, Citicorp Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511; Northeast Regional Office, 7
World Trade Center, Suite 1300, New York, New York 10048. Copies of such
material may be obtained from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains a website at http://www.sec.gov
containin reports, prospectuses and information statements and other information
regarding registrants, including the Company, that file electronically. Copies
of such materials and other information concerning the Company also are
available for inspection at The New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-8 (together with all amendments, exhibits and schedules, the
"Registration Statement") under the Securities Act with respect to the Common
Stock offered hereby. The Prospectus does not contain all of the information
included in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Common Stock offered hereby,
reference is hereby made to the Registration Statement, including the exhibits
and schedules thereto. Statements contained in this Prospectus concerning the
provisions or contents of any contract, agreement or any other document referred
to herein are not necessarily complete. With respect to each such contract,
agreement or document filed as an exhibit to the Registration Statement,
reference is made to such exhibit for a more complete description of the matters
involved, and each such statement shall be deemed qualified in its entirety by
such reference to the copy of the applicable document filed with the Commission.
The Registration Statement may be inspected without charge at the Commission's
principal office at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549 and copies of it or any part thereof may be obtained from such office,
upon payment of the fees prescribed by the Commission. The Registration
Statement also may be retrieved from the Commission's website
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have previously been filed by the Company
with the Commission are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1997 filed with the Commission on March 31, 1998;
(2) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998 filed with the Commission on May 15, 1998;
(3) the Company's current report on Form 8-K dated June 17, 1998 filed with
the Commission on June 17, 1998;
(4) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on August
9, 1996; and
(5) the Company's Proxy Statement with respect to its Annual Meeting of
Shareholders held on May 8, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Common Stock made hereby shall be deemed
to be incorporated in this Prospectus by reference and to be a part hereof from
the date of filing of such documents. Any statement contained herein, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, on the written
request of any such person, a copy of any or all of the documents incorporated
herein by reference, except the exhibits to such documents (unless such exhibits
are specifically incorporated by reference in such documents). Requests for such
copies should be directed to the Company, at 4350 East-West Highway, Suite 400,
Bethesda, MD 20814, Attention: Investor Relations; telephone number (301)
907-7800.
This Prospectus, including the documents incorporated herein by
reference, contain forward-looking statements within the meaning of Section 27A
of the Securities Act. Also, documents subsequently filed by the Company with
the Commission and incorporated herein by reference will contain forward-looking
statements. Actual results could differ materially from those projected in the
forward-looking statements as a result of the risk factors incorporated herein
by reference and the matters set forth or incorporated in this Prospectus
generally. The Company cautions the reader, however, that such list of factors
may not be exhaustive, particularly with respect to future filings. Prospective
investors should carefully consider, among other factors, the risk factors
incorporated herein by reference.
Although the Company, the Operating Partnership, the Lower Tier
Partnerships (as defined below), and the Management Company are separate
entities, each of which is managed in accordance with its governing documents,
for ease of reference, the term "Company" as used herein shall refer to the
business and properties of the Company, the Operating Partnership, the Lower
Tier Partnerships, and the Management Company, unless the context indicates
otherwise.
THE COMPANY
General
The Company is a fully-integrated, self-administered and self-managed real
estate company that operates as a REIT with expertise in the acquisition,
property management, leasing, renovation and development of principally
supermarket-anchored neighborhood shopping centers. As of May 31, 1998, the
Company owned a portfolio of 52 retail properties (the "Retail Properties" or
the "Properties"). The 52 Retail Properties contain a total of approximately 5.6
million square feet of GLA.
The Company's business strategy is highly focused with respect to property
type and location. The Company concentrates its efforts on supermarket-anchored
neighborhood shopping centers. The Company generally seeks to own properties
located in densely populated areas, that have high visibility, open-air designs
and ease of entry and exit, and that may be readily adaptable over time to
expansion, renovation and redevelopment.
The Retail Properties are strategically located neighborhood shopping
centers principally anchored by well known tenants such as Giant Food, Safeway,
Shoppers Food Warehouse, Food Lion, A&P Superfresh, Winn Dixie, Weis Markets,
Acme Market, Dominick's Supermarket, CVS/Pharmacy and Rite Aid. Neighborhood
shopping centers are typically open-air centers ranging in size from 50,000 to
150,000 square feet of GLA and anchored by supermarkets and/or drug stores. The
Retail Properties range in size from approximately 3,000 square feet of GLA to
approximately 335,000 square feet of GLA, and average approximately 106,000
square feet of GLA. The anchor tenants typically offer daily necessity items
rather than specialty goods. Nine of the Retail Properties are relatively small
in size, with less than 50,000 square feet of GLA. Such properties do not have a
large supermarket or drug store anchor tenant, and as such may be subject to
greater variability in consumer traffic and operating performance.
The Company's assets are held by, and all its operations are conducted
through, the Operating Partnership and the Management Company. Certain of the
Properties are owned by partnerships (or limited liability companies) in which
the Operating Partnership, the Company or a subsidiary of the Company acts as
general partner (or managing member) and owns a controlling interest (the "Lower
Tier Partnerships"). The Company is the sole general partner of the Operating
Partnership and the Company currently owns approximately 75% of the partnership
interests in the Operating Partnership. The limited partners are individuals,
partnerships and others who have contributed their properties in exchange for
partnership interests ("Units"). The limited partners may exchange their Units
for cash, or at the option of the Company, for stock of the Company on a
one-for-one basis. The Operating Partnership owns 100% of the non-voting
preferred stock of the Management Company, and is entitled to 99% of the cash
flow from the Management Company.
The Company was formed in April 1994 to continue and expand the
neighborhood shopping center acquisition, management and renovation strategies
of First Washington Management, Inc. ("FWM"), which has been engaged in the
business since 1983. FWM was founded by Stuart D. Halpert, the Company's
Chairman, William J. Wolfe, President and Chief Executive Officer, and Lester
Zimmerman, an Executive Vice President (the "Principals").
The Company has approximately 73 employees, including a team of asset and
property managers and leasing agents and in-house legal, architectural,
engineering, accounting, marketing and computer specialists. The Company's
executive and principal property management office is located at 4350 East-West
Highway, Suite 400, Bethesda, Maryland 20814 and its telephone number is (301)
907-7800. The Company has regional property management offices located in North
Carolina, Pennsylvania and Virginia.
USE OF PROCEEDS
The Company will not realize any proceeds from the sale of the Common Stock
which may be sold under this Prospectus for the respective accounts of each of
the Selling Security Holders. The Company, however, will derive proceeds from
exercise of the Options. Such proceeds will be available to the Company for
working capital and general corporate purposes. No assurance can be given,
however, as to when or if any or all of the Options will be exercised.
SELLING SECURITY HOLDERS
The following table sets forth the name of each Selling Security
Holder, the amount of Common Stock owned by such Selling Security Holder as of
May 31, 1998, the amount of Common Stock to be resold, the amount and (if one
percent or more) the percentage of Common Stock owned by such Selling Security
Holder after such resale.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Maximum
Number Amount and Percentage
of Shares of Common
Selling Security Number of Shares which may be Stock Owned After Resale(3)
Holder (1) Owned (2) Sold Hereunder Amount Percentage
Stuart D. Halpert
Chairman of the Board 184,056 118,747 184,056 2.5%
William J. Wolfe
President and
Chief Executive Officer 184,056 118,747 184,056 2.5%
Lester Zimmerman
Executive Vice President 91,653 52,714 91,655 1.2%
James G. Blumenthal
Executive Vice President 9,653 9,652 9,653 0.1%
Jeffrey S. Distenfeld
Senior Vice President 9,653 9,652 9,653 0.1%
James G. Pounds
Senior Vice President 9,653 9,653 9,653 0.1%
</TABLE>
1The nature of any position, office or other material relationship which
each Selling Security Holder has had with the Company or any of its predecessors
or affiliates has not changed as disclosed in this table for the past three
years.
2Ownership as of May 31, 1998.
3Assumes sale of the maximum number of shares of Common Stock which may be
sold hereunder, although Selling Security Holders are under no obligation known
to the Company to sell any shares of Common Stock. Percentages are based upon
7,399,916 shares of Common Stock outstanding as of May 31, 1998.
PLAN OF DISTRIBUTION
The Selling Security Holders may sell shares of Common Stock in any of
the following ways: (i) through dealers; (ii) through agents; or (iii) directly
to one or more purchasers. The distribution of the shares of Common Stock may be
effected from time to time in one or more transactions (which may involve
crosses or block transactions) (A) on the NYSE (or on such other national stock
exchanges on which the shares of Common Stock may be traded from time to time)
in transactions which may include special offerings, exchange distributions
and/or secondary distributions pursuant to and in accordance with the rules of
such exchanges, (B) in the over-the-counter market, or (C) in transactions other
than on such exchanges or in the over-the-counter market, or a combination of
such transactions. Any such transaction may be effected at market price
prevailing at the time of sale, at prices related to such prevailing market
prices, at negotiated prices or at fixed prices. The Selling Security Holders ma
effect such transaction by selling shares of Common Stock to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the Selling Security Holders and/or
commissions from purchasers of shares of Common Stock from who they may act as
agent. The Selling Security Holders and any broker-dealers or agents that
participate in the distribution of shares of Common Stock by them might be
deemed to be underwriters, and any discounts, commissions or concessions
received by any such broker-dealers or agents might be deemed to be underwriting
discounts and commissions, under the Securities Act.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1997 and
1996 and the consolidated statements of operations, stockholders' equity and
cash flows for each of the three years in the period ended December 31, 1997,
the financial statement schedules of the Company as of and for each of the three
years in the period ended December 31, 1997, included in the Company's 1997 Form
10-K, have been incorporated herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm as
experts in accounting and auditing.
LEGAL MATTERS
The legality of the Common Stock which is registered for issuance
pursuant to the 1996 Restricted Stock Plan and the Amended and Restated 1996
Contingent Stock Agreements will be passed upon for the Company by Ballard Spahr
Andrews & Ingersoll, LLP, Baltimore, Maryland.
<PAGE>
No dealer, salesperson or any other person has been authorized to give any
information or to make any representations not contained in this Prospectus. If
given or made, such information or representations must not be relied upon as
having been authorized by the Company or any underwriter. This Prospectus does
not constitute an offer to sell or a solicitation of an offer to buy any
securities in any jurisdiction in which such offer or solicitation would be
unlawful or to any person to whom it is unlawful. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Company
since the date hereof or that any information contained herein is correct as of
any time subsequent to its date.
FIRST WASHINGTON REALTY TRUST INC.
888,400 shares of Common Stock
TABLE OF CONTENTS
Page
Available Information....................................2
Incorporation of Certain Documents
by Reference .....................................2
The Company..............................................3
Use of Proceeds..........................................4
Selling Security Holder..................................4
Plan of Distribution.....................................4
Experts..................................................5
Legal Matters............................................5
PROSPECTUS
June 19, 1998
<PAGE>
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have previously been filed by the Company
with the Commission are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1997 filed with the Commission on March 31, 1998;
(2) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998 filed with the Commission on May 15, 1998;
(3) the Company's current report on Form 8-K dated June 17, 1998 filed with
the Commission on June 17, 1998;
(4) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on August
9, 1996;
(5) the Company's Proxy Statement with respect to its Annual Meeting of
Shareholders held on May 8, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Common Stock made hereby shall be deemed
to be incorporated in this Prospectus by reference and to be a part hereof from
the date of filing of such documents. Any statement contained herein, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, on the written
request of any such person, a copy of any or all of the documents incorporated
herein by reference, except the exhibits to such documents (unless such exhibits
are specifically incorporated by reference in such documents). Requests for such
copies should be directed to the Company, at 4350 East-West Highway, Suite 400,
Bethesda, MD 20814, Attention: Investor Relations; telephone number (301)
907-7800.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Maryland General Corporation Law (the "MGCL") permits a Maryland
corporation to include in its charter a provision eliminating the liability of
its directors and officers to the corporation and its stockholders for money
damages except for liability resulting from (a) actual receipt of an improper
benefit or profit in money, property or services or (b) active and deliberate
dishonesty established by a final judgment as being material to the cause of
action. The charter of the Company (the " Charter") contains such a provision
which eliminates such liability to the maximum extent permitted by the MGCL.
This provision does not limit the ability of the Company or its stockholders to
obtain other relief, such as an injunction or rescission.
The Charter authorizes the Company, to the maximum extent permitted by
Maryland law, to obligate itself to indemnify and to pay or reimburse reasonable
expenses in advance of final disposition of a proceeding to any present or
former director or officer from and against any claim or liability to which such
person may become subject or which such person may incur by reason of his status
as a present or former director or officer of the Company. The bylaws of the
Company (the "Bylaws") obligate th Company, to the maximum extent permitted by
Maryland law, to indemnify and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to (a) any present or former
director or officer who is made a party to the proceeding by reason of his
service in that capacity or (b) any individual who, while a director of the
Company and at the request of the Company, serves or has served another
corporation, partnership, joint venture, trust, employee benefit plan or any
other enterprise a director, officer, partner or trustee of such corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise and
who is made a party to the proceeding by reason of his service in that capacity.
The Bylaws also permit the Company to indemnify and advance expenses to any
person who served a predecessor of the Company in any of the capacities
described above and to any employee or agent of the Company or a predecessor of
the Company.
The MGCL requires a corporation (unless its charter provides otherwise,
which the Charter does not) to indemnify a director or officer who has been
successful, on the merits or otherwise, in the defense of any proceeding to
which he is made a party by reason of his service in that capacity. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service in those or other
capacities unless it is established that (a) the act or omission of the director
or officer was material to the matter giving rise to the proceeding and (i) was
committed in bad faith or (ii) was the result of active and deliberate
dishonesty, (b) the director or officer actually received an improper personal
benefit in money, property or services or (c) in the case of any criminal
proceeding, the director or officer had reasonable cause to believe that the act
or omission was unlawful. However, under the MGCL, a Maryland corporation may
not indemnify for an adverse judgment in a suit by or in the right of the
corporation or for a judgment of liability on the basis that personal benefit
was improperly received, unless in either case a court orders indemnification
and then only for expenses. In addition, the MGCL requires the Company to
advance expenses to a director or officer upon the corporations receipt of (a) a
written affirmation by the director or officer of his good faith belief that he
has met the standard of conduct necessary for indemnification by the corporation
and (b) a written undertaking by him or on his behalf to repay the amount paid
or reimbursed by the corporation if it shall ultimately be determined that the
standard of conduct was not met. The termination of any proceeding by
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
any order of probation prior to judgment, creates a rebuttable presumption that
the director or officer did not meet the requisite standard of conduct required
for indemnification to be permitted.
The Partnership Agreement also provides for indemnification of the Company,
as general partner, and its officers and directors generally to the same extent
as permitted by the MGCL for a corporation's officers and directors and limits
the liability of the Company to the Operating Partnership and its partners in
the case of losses sustained, liabilities incurred or benefits not derived as a
result of errors in judgment or mistakes of fact or law or any act or omission
if the Company acted in good faith.
It is the position of the Commission that indemnification of directors
and officers for liabilities arising under the Securities Act is against public
policy and is unenforceable pursuant to Section 14 of the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
The restricted securities to be reoffered and resold pursuant to
this Registration Statement were issued under the 1994 Contingent Stock Awards,
the 1996 Restricted Stock Plan, and the Amended and Restated 1996 Contingent
Stock Agreements and in transactions exempt from registration pursuant to
Section 4(2) of the Securities Act. Each such transaction involved the issuance
of shares of Common Stock pursuant to the 1994 Contingent Stock Awards, the 1996
Restricted Stock Plan or the Amended and Restated 1996 Contingent Stock
Agreements to persons who were officers, employees or directors of the Company.
ITEM 8. EXHIBITS
Exhibits
4.1 Amended and Restated Articles of Incorporation*
4.2 Bylaws**
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23(a) Consent of Ballard Spahr Andrews & Ingersoll, LLP
(included in Exhibit 5)
23(b) Consent of Coopers & Lybrand L.L.P.
* Included as an exhibit to the Company's Form 10-K for the fiscal year
ended December 31, 1996, and incorporated herein by reference.
**Included as an exhibit to the Company's Registration Statement on Form
S-11, file No. 33-83960, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(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 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.
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 Act of 1934 that is incorporated 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.
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 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 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 such Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Bethesda, State of Maryland on June 19, 1998.
FIRST WASHINGTON REALTY
TRUST, INC.
By: /s/ William J. Wolfe
William J. Wolfe
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below hereby constitutes and
appoints William Wolfe as his attorney-in-fact and agent, with full power of
substitution and resubstitution for him in any and all capacities, to sign any
or all amendments or post-effective amendments to this Registration Statement,
or any Registration Statement for the same offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933, and to file the
same, with exhibits thereto and other documents in connection therewith or in
connection with the registration of the Securities under the Securities Exchange
Act of 1934, as amended, with the Securities and Exchange Commission, granting
unto such attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that such attorney-in-fact and
agent or his substitutes may do or cause to be done by virtue hereof.
Signature Title Date
/s/ Stuart D. Halpert Chairman of the Board of Directors June 19, 1998
Stuart D. Halpert
/s/ William J. Wolfe President, Chief Executive
William J. Wolfe Officer, Director June 19, 1998
/s/ Lester Zimmerman Executive Vice President, Director June 19, 1998
Lester Zimmerman
/s/ James G. Blumenthal Executive Vice President and
James G. Blumenthal Chief Financial Officer June 19, 1998
/s/ Stanley T. Burns Director June 19, 1998
Stanley T. Burns
/s/ Matthew J. Hart Director June 19, 1998
Matthew J. Hart
/s/ William M. Russell Director June 19, 1998
William M. Russell
/s/ Heywood Wilansky Director June 19, 1998
Heywood Wilansky
<PAGE>
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
June 19, 1998
First Washington Realty Trust, Inc.
4350 East-West Highway
Suite 400
Bethesda, Maryland 20814
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to First Washington Realty Trust, Inc.,
a Maryland corporation (the "Company"), in connection with certain matters of
Maryland law arising out of the registration of up to (a) 367,658 shares (the
"Restricted Shares") of Common Stock, $.01 par value per share, of the Company
(the "Common Stock") issuable in connection with the Company's 1996 Restricted
Stock Plan, as amended (the "Plan"), and (b) 200,000 shares (the "Contingent
Shares") of Common Stock issuable in connection with the Company's Amended and
Restated 1996 Contingent Stock Agreements (the "Agreements"). The Restricted
Shares and the Contingent Shares (collectively, the "Shares") are covered by the
above-referenced Registration Statement, and all amendments thereto (the
"Registration Statement"), under the Securities Act of 1933, as amended (the
"1933 Act"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Registration Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement, including the related form of prospectus
included therein, in the form in which it was transmitted by the Company to the
Securities and Exchange Commission (the "Commission") under the 1933 Act;
<PAGE>
First Washington Realty Trust, Inc.
June 19, 1998
Page 2
2. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company (the "Bylaws"), certified as the date hereof
by its Senior Vice President and Secretary;
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 Directors of the Company relating to
the issuance of certain of the Shares (the "Adopted Resolutions"), certified as
of the date hereof by the Senior Vice President and Secretary of the Company;
6. The Plan, certified as of the date hereof by the Senior Vice President
and Secretary of the Company;
7. The Agreements, certified as of the date hereof by the Senior Vice
President and Secretary of the Company;
8. A form of certificate representing shares of the Common Stock, certified
as of the date hereof by the Senior Vice President and Secretary of the Company;
9. A certificate executed by the Senior Vice President and Secretary of the
Company, dated the date hereof; and
10. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinions set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
<PAGE>
First Washington Realty Trust, Inc.
June 19, 1998
Page 3
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding and are enforceable in accordance with all stated
terms.
4. Any Documents submitted to us as originals are authentic. The form and
content of any Documents submitted to us as unexecuted drafts do not differ in
any respect relevant to this opinion from such Documents as executed and
delivered. 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 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. The Shares will not be transferred in violation of any restriction or
limitation contained in Section 4.5.5 of the Charter.
6. Prior to the issuance of any of the Shares, the Board of Directors of
the Company will adopt resolutions authorizing the issuance of the Shares (the
"Additional Resolutions," together with the Adopted Resolutions, collectively
referred to as the "Resolutions").
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by
virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
First Washington Realty Trust, Inc.
June 19, 1998
Page 4
2. The Restricted Shares are duly authorized and, when and if delivered
against payment therefor in accordance with the Resolutions and the Plan, will
be (assuming that the sum of (i) all shares of Common Stock issued and
outstanding on the date hereof, (ii) all shares of Common Stock issued between
the date hereof and the date on which the Restricted Shares are issued (not
including any Restricted Shares) and (iii) the Restricted Shares will not exceed
the number of shares of Common Stock that the Company is then authorized to
issue) validly issued, fully paid and nonassessable.
3. The Contingent Shares are duly authorized and, when and if delivered
against payment therefor in accordance with the Resolutions and the Agreements,
will be (assuming that the sum of (i) all shares of Common Stock issued and
outstanding on the date hereof, (ii) all shares of Common Stock issued between
the date hereof and the date on which the Contingent Shares are issued (not
including any Contingent Shares) and (iii) the Contingent Shares will not exceed
the number of shares of Common Stock that the Company is then authorized to
issue) validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the State of
Maryland and we do not express any opinion herein concerning any other law. We
express no opinion as to the applicability or effect of any 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 any
matter as to which our opinion is expressed herein would be governed by 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 the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely 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 without, in each instance, our prior written consent.
First Washington Realty Trust, Inc.
June 19, 1998
Page 5
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, L.L.P.
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
of First Washington Realty Trust, Inc. (the "Company") on Form S-8, of our
report dated January 31, 1998, except for Note 16, as to which the date is
March 26, 1998, on our audits of the consolidated financial statements and
financial statement schedules of the Company as of December 31, 1997 and 1996,
and for each of the three years in the period ended December 31, 1997, which
report is included in the Company's 1997 Form 10-K. We also consent to the
reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Washington, D.C.
June 16, 1998
<PAGE>
