A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses), may compel Brandywines Board of Trustees to call a special meeting of shareholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the trust may itself present the question at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement as required by the statute, then, subject to certain conditions and limitations, the trust may redeem any or all of the control shares, except those for which voting rights have previously been approved, for fair value determined, without regard to the absence of voting rights for the control shares, as of the date of the last control share acquisition by the acquirer or of any meeting of shareholders at which the voting rights of such shares are considered and not approved. If voting rights for control shares are approved at a shareholders meeting and the acquirer becomes entitled to vote a majority of the shares entitled to vote, all other shareholders may exercise appraisal rights. The fair value of the shares as determined for
purposes of such
appraisal rights may not be less than the highest price per share paid by the acquirer in the control share acquisition, and certain limitations and restrictions otherwise applicable to the exercise of dissenters rights do not apply in the context of a control share acquisition.
Brandywines Bylaws contain a provision exempting from the control share acquisition statute any and all acquisitions by any person of our shares. There can be no assurance that this provision will not be amended or eliminated at any time in the future.
Amendment to the Declaration of Trust
Brandywines Declaration of Trust may be amended only by the affirmative vote of the holders of not less than a majority of the shares then outstanding and entitled to vote thereon, except for the provisions of Brandywines Declaration of Trust relating to (1) increases or decreases in the aggregate number of shares of any class, which may generally be made by the Board of Trustees without shareholder approval subject to approval rights of holders of the Series C Preferred Shares and the Series D Preferred Shares with respect to issuances of preferred shares that would rank senior as to distributions or in liquidation and (2) the Maryland General Corporation Law provisions on business combinations, amendment of which requires the affirmative vote of the holders of not less than 80% of the shares then outstanding and entitled to vote. In additi
on, if Brandywines
Board of Trustees determines, with the advice of counsel, that any one or more of the provisions of its Declaration of Trust conflict with the Maryland REIT Law, the Code or other applicable Federal or state law(s), the conflicting provisions of Brandywines Declaration of Trust shall be deemed never to have constituted a part of its Declaration of Trust, even without any amendment thereof.
Termination of Brandywine Realty Trust and REIT Status
Subject to the rights of any outstanding preferred shares and to the provisions of the Maryland REIT Law, Brandywines Declaration of Trust permits its Board of Trustees to terminate Brandywines existence and to discontinue its election to be taxed as a REIT.
Transactions between Brandywine Realty Trust and its Trustee or Officers
Brandywines Declaration of Trust provides that any contract or transaction between it and one or more of its trustees, officers, employees or agents must be approved by a majority of Brandywines trustees who have no interest in the contract or transaction.
Limitation of Liability and Indemnification
The Maryland REIT Law permits a Maryland REIT to include in its Declaration of Trust a provision limiting the liability of its trustees and officers to the trust and its shareholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty established by a final judgment as being material to the cause of action. Brandywines
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Declaration of Trust contains a provision which eliminates such liability to the maximum extent permitted by the Maryland REIT Law.
The Maryland REIT Law permits a Maryland REIT to indemnify and advance expenses to its trustees and officers to the same extent as permitted for directors and officers of a Maryland corporation under the Maryland General Corporation Law. In the case of directors and officers of a Maryland corporation, the Maryland General Corporation Law permits a Maryland corporation to indemnify present and former directors and officers 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 such service, unless it is established that either: (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and either (a) was committed in bad faith or (b) was the result of active and deliberate dishonesty
; (2) the director or
officer actually received an improper personal benefit in money, property or services; or (3) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
Brandywines Bylaws require Brandywine to indemnify, without a preliminary determination of the ultimate entitlement to indemnification: (1) any present or former trustee, officer or shareholder who has been successful, on the merits or otherwise, in the defense of a proceeding to which he was made a party by reason of such status, against reasonable expenses incurred by him in connection with the proceeding; (2) any present or former trustee or officer against any claim or liability to which he may become subject by reason of such status unless it is established that (a) his act or omission was committed in bad faith or was the result of active and deliberate dishonesty, (b) he actually received an improper personal benefit in money, property or services or (c) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission
was unlawful; and (3)
each shareholder or former shareholder against any claim or liability to which he may be subject by reason of such status as a shareholder or former shareholder.
In addition, Brandywines Bylaws require Brandywine to pay or reimburse, in advance of final disposition of a proceeding, reasonable expenses incurred by a present or former trustee, officer or shareholder made a party to a proceeding by reason of his status as a trustee, officer or shareholder provided that, in the case of a trustee or officer, Brandywine shall have received (1) a written affirmation by the trustee or officer of his good faith belief that he has met the applicable standard of conduct necessary for indemnification by Brandywine as authorized by the Bylaws and (2) a written undertaking by him or on his behalf to repay the amount paid or reimbursed by Brandywine if it shall ultimately be determined that the applicable standard of conduct was not met. The Bylaws also (1) permit Brandywine, with the approval of its trustees, to provide i
ndemnification and payment
or reimbursement of expenses to a present or former trustee, officer or shareholder who served Brandywines predecessor in such capacity, and to any of Brandywines employees or agents of its predecessor, (2) provide that any indemnification or payment or reimbursement of the expenses permitted by its Bylaws shall be furnished in accordance with the procedures provided for indemnification and payment or reimbursement of expenses under Section 2-418 of the Maryland General Corporation Law for directors of Maryland corporations and (3) permit Brandywine to provide such other and further indemnification or payment or reimbursement of expenses as may be permitted by the Maryland General Corporation Law for directors of Maryland corporations.
The limited partnership agreement of the Operating Partnership also provides for indemnification by the Operating Partnership of Brandywine, as general partner, for any costs, expenses or liabilities incurred by it by reason of any act performed by it for or on behalf of the Operating Partnership; provided that such persons actions were taken in good faith and in the belief that such conduct was in the best interests of the Operating Partnership and that such person was not guilty of fraud, willful misconduct or gross negligence.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our trustees and officers pursuant to the foregoing provisions or otherwise, we have been advised that, although the validity and scope of the governing statute has not been tested in court, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In addition, state securities laws may limit indemnification.
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INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our Declaration of Trust and Bylaws contain provisions to indemnify our trustees and officers against liability incurred by them as a result of their services as trustees and officers. We have been informed that in the opinion of the Securities and Exchange Commission, our indemnification of our trustees, officers or controlling persons for liabilities arising under the Securities Act of 1933, as amended, is against public policy as expressed in the Securities Act, and therefore is unenforceable.
SELLING SHAREHOLDER
We are registering 343,006 Common Shares for resale by the Selling Shareholder if and to the extent the Selling Shareholder elects to redeem all or a portion of its Class A units of the Operating Partnership issued to it and we elect to satisfy the redemption obligation by issuing Common Shares. Following any issuance of Common Shares upon such redemption, the Selling Shareholder may resell the Common Shares covered by this Prospectus as provided under the section entitled Plan of Distribution and in any applicable Prospectus supplement.
The following table provides the name of, and the number of Common Shares beneficially owned by, the Selling Shareholder as of March 15, 2005.
Name
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|
Number of Common Shares Beneficially Owned Prior to Offering
|
|
Number of Common Shares Offered Hereby
|
|
Number of Common Shares Beneficially Owned After the Offering
|
|
Percentage of Common Shares Beneficially Owned After the Offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TRC Associates Limited Partnership (1)
|
|
|
343,006
|
(2)
|
|
343,006
|
|
|
0
|
(3)
|
|
0
|
%(3)
|
(1)
|
The address of TRC Associates Limited Partnership is c/o TRC Realty, Inc.-GP, 4100 One Commerce Square, 2005 Market Street, Philadelphia, Pennsylvania 19103-7041.
|
|
|
(2)
|
Assumes that all of the Class A Units of the Operating Partnership owned by the Selling Shareholder are redeemed for Common Shares.
|
|
|
(3)
|
Because the Selling Shareholder may sell all, some or none of its Common Shares, no estimate can be made of the aggregate number of Common Shares that are to be offered and sold hereunder or that will be owned by the Selling Shareholder upon completion of the offering to which this Prospectus relates.
|
PLAN OF DISTRIBUTION
This Prospectus relates to the offer and sale from time to time of up to 343,006 Common Shares that may be issued to the Selling Shareholder upon redemption of Class A Units of the Operating Partnership. We will not receive any proceeds from the sale of the Common Shares by the Selling Shareholder.
The securities covered by this Prospectus may be sold or transferred from time to time by the Selling Shareholder:
|
|
directly to one or more purchasers;
|
|
|
|
|
|
to or through underwriters, brokers or dealers;
|
|
|
|
|
|
through agents on a best-efforts basis or otherwise;
|
|
|
|
|
|
by gift to a third party or donation to a charitable or other non-profit entity; or
|
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|
|
through a combination of the above methods of sale or transfer.
|
If the securities covered by this Prospectus are sold through underwriters, brokers or dealers, the Selling Shareholder will be responsible for underwriting discounts or commissions or agents commissions. These securities may be sold:
|
|
in one or more transactions at a fixed price or prices, which may be changed;
|
|
|
|
|
|
at prevailing market prices at the time of sale or at prices related to such prevailing prices;
|
|
|
|
|
|
at varying prices determined at the time of sale; or
|
|
|
|
|
|
at negotiated prices.
|
There is no assurance that the Selling Shareholder will sell any or all of the shares offered by them. The securities covered by this Prospectus may be offered and sold at various times by the Selling Shareholder. The Selling Shareholder will act independently of us in making decisions with respect to the securities covered by this Prospectus and may offer these securities in one or more of the following transactions:
· on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
|
|
in the over-the-counter market;
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|
|
|
|
|
in transactions other than on such exchange or in the over-the-counter market;
|
|
|
|
|
|
in brokerage transactions;
|
|
|
|
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|
in block trades;
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|
|
|
|
|
through put or call options;
|
|
|
|
|
|
in privately negotiated transactions;
|
|
|
|
|
|
in connection with short sales;
|
|
|
|
|
|
through underwriters, brokers or dealers (who may act as agent or principal);
|
|
|
|
|
|
by pledge to secure debts and other obligations;
|
|
|
|
|
|
in open market sales in reliance upon Rule 144, Rule 144A or any other available exemption under the Securities Act;
|
|
|
|
|
|
in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or
|
|
|
|
|
|
in a combination of any of the above transactions.
|
The Selling Shareholder and any underwriters, broker-dealers or agents that participate in the sale of the securities covered by this Prospectus may be deemed to be underwriters within the meaning of Section 2(11) of the Securities Act, in which event any discount, concession or commissions received by them, which are not expected to exceed those customary in the types of transactions involved, or any profit on resales of these securities by them, may be deemed to be underwriting commissions or discounts under the Securities Act. Any discounts, commissions, concessions or profit the any broker-dealers or agents earn on any resale of the securities covered by this Prospectus may be underwriting discounts and commissions under the Securities Act. Broker-dealers may act
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either as agent of the Selling Shareholder or as a principal for the broker-dealers own account. These transactions may include transactions in which the same broker-dealer acts as an agent on both sides of the trade.
If the Selling Shareholder is deemed to be an underwriter within the meaning of Section 2(11) of the Securities Act, they will be subject to the prospectus delivery requirements of the Securities Act. The Selling Shareholder has acknowledged that it understands its obligations to comply with the provisions of the Exchange Act and the rules thereunder relating to stock manipulation including, but not limited to, Regulation M, and have agreed that they will not engage in any transaction in violation of such provisions. To our knowledge, there are currently no plans, arrangements or understandings between the Selling Shareholder and any underwriter, broker, dealer or agent regarding the sale of the securities covered by this Prospectus.
If required, the specific securities to be sold, the names of the Selling Shareholder, the respective purchase prices and public offering prices, the names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement of which this prospectus is a part.
Under an agreement with the Selling Shareholder, we have agreed to pay the costs and expenses incident to the registration of the resale of the securities covered by this Prospectus. Underwriters, broker-dealers and agents may be entitled, under agreements entered into with the Company or the Selling Shareholder, to indemnification against and contribution toward certain civil liabilities, including liabilities under the Securities Act.
EXPERTS
The financial statements and financial statement schedules of Brandywine Realty Trust as of December 31, 2004 and 2003 and for each of the three years ended December 31, 2004 incorporated in this Prospectus by reference to Brandywine Realty Trusts Annual Report on Form 10-K for the year ended December 31, 2004 have been so incorporated in reliance on the report of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm, given on the authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the securities offered has been passed upon for us by Pepper Hamilton LLP, Philadelphia, Pennsylvania.
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PROSPECTUS
BRANDYWINE REALTY TRUST
343,006 Common Shares
April 22, 2005
No dealer, salesperson or other individual has been authorized to give any information or to make any representations not contained in this Prospectus in connection with the offering covered by this Prospectus. If given or made, such information or representations must not be relied upon as having been authorized by us or the Selling Shareholder. This Prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, the Common Shares, in any jurisdiction where, or to any person to whom, it is unlawful to make any such offer or solicitation. Neither the delivery of this Prospectus nor any offer or sale made hereunder shall, under any circumstances, create an implication that there has not been any change in the facts set forth in this Prospectus or in our affairs since the date hereof.