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As filed with the Securities and Exchange Commission on April 4, 1996
Registration No. 33-___________
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
________________________________________________________________________________
BRE PROPERTIES, INC.
(Exact name of issuer as specified on its charter)
________________________________________________________________________________
Maryland 94-1722214
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Montgomery Street
Telesis Tower, Suite 2500
San Francisco, CA 94104-5525
(Address of Principal Executive Offices and Zip Code)
___________
BRE AMENDED AND RESTATED NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
ASSUMED REAL ESTATE INVESTMENT TRUST OF CALIFORNIA
1991 STOCK OPTION PLAN
(Full title of plans)
LeRoy E. Carlson
BRE Properties, Inc.
One Montgomery Street
Telesis Tower, Suite 2500
San Francisco, CA 94104-5525
(415) 445-6530
(Name and address, and telephone number,
including area code, of agent for service)
___________
Copy to:
Morgan P. Guenther, Esq.
Farella, Braun & Martel
235 Montgomery Street
San Francisco, CA 94104-3159
Calculation of Registration Fee
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<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed Proposed maximum Amount of
be registered registered maximum offering aggregate offering registration fee
price per share price
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par
value, issuable pursuant
to Amended and Restated
Non-Employee Director 400,000 shares (1) $35.625 (2) $ 9,796,875 (2) $3,378.23
Stock Option Plan
- -----------------------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par
value, issuable pursuant
to Assumed Stock Option
Plan of Real Estate
Investment Trust of 190,950 shares $22.81 to $29.39 $ 4,918,159.50 $1,695.92
California
TOTAL REGISTRATION FEE 590,950 shares $22.81 to $35.25 $ 14,611,909.50 $5,074.15
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------
1 Because 125,000 of these shares were registered by registrant's
predecessor, BRE Properties, Inc., a Delaware corporation, in Registration
Statement No. 33-61209, the fee herein is based on the 275,000 additional
shares.
2 Pursuant to Rule 457(h), the proposed maximum offering price (where
unknown) is estimated, solely for the purpose of determining the
registration fee, on the basis of the closing price of a share of Class A
Common Stock as reported on the New York Stock Exchange on March 29, 1996.
In accordance with the subject plan, the actual issuance price will be
equal to the fair market value of the shares on the date options are
granted under the plan.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
BRE Properties, Inc., a Maryland corporation (the "Company"), hereby
incorporates by reference in this Registration Statement the following
documents:
(a) Annual Report on Form 10-K for the fiscal year ended July 31, 1995, as
amended by Form 10-K/A dated November 28, 1995.
(b) Quarterly Reports on Form 10-Q for the quarters ended October 31, 1995
and January 31, 1996; and Current Reports on Form 8-K dated October 11, 1995 and
March 15, 1996.
(c) The description of BRE Capital Stock contained in Item 5 of the
Company's Report on Form 8-K dated March 15, 1996.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, are hereby deemed to be
incorporated by reference in this Registration Statement and part hereof from
the date of the filing of such documents. As used herein, "Company" includes
BRE Properties, Inc., a Delaware corporation, which was merged into BRE
Properties, Inc., a Maryland corporation, on March 15, 1996, for the purpose of
changing the Company's domicile.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements and schedules of the Company incorporated by
reference in this Registration Statement from the Company's Annual Report on
Form 10-K for the fiscal year ended July 31, 1995, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such financial statements are
incorporated herein by reference in reliance upon such report given upon the
authority of such firm as experts in accounting and auditing.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon by Farella, Braun & Martel, counsel to the Company.
Members of that firm beneficially owned approximately 4,000 shares of Common
Stock of the Company at
February 29, 1996.
3
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 2-418 of the General Corporation Law of the State
of Maryland (the "Maryland Corporation Law"), Article VI of the Company's By-
Laws provides that each director and officer of the Company shall be indemnified
by the Company against expenses (including attorney's fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred in connection with
the defense or settlement of any threatened, pending or completed legal
proceedings in which he is involved by reason of the fact that he is or was a
director or officer of the Company. If the legal proceeding, however, is by or
in the right of the Company, the director or officer may not be indemnified in
respect of any claim, issue or matter as to which he shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to the
Company unless a court determines otherwise. Where the director or officer is
successful on the merits or settles such proceeding, the defendant need not also
show that he acted in good faith and in a manner not opposed to the best
interests of the Company in order to obtain such indemnification.
The Company has entered into indemnification agreements with each of its
directors and executive officers. In addition, the Company maintains a
directors' and officers' liability policy.
Article VII of the Articles of Incorporation of the Company (Exhibit 4.1 to
this Registration Statement) provides that, to the fullest extent permitted by
law, directors and officers of the Company will not be liable for monetary
damages to the Company or its stockholders for breaches of their fiduciary
duties.
ITEM 8. EXHIBITS.
5 Opinion and Consent of Farella, Braun & Martel regarding the
legality of the securities being registered.
24 Consent of Independent Auditors
25 Power of attorney (contained on page 7 hereof).
4
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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)93) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent post-
effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company's
Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in to 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
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
5
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against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
6
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Frank C. McDowell and LeRoy E. Carlson, and each
of them, to act as his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all post-effective amendments
to this Registration Statement, and to file the same with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done,. as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes or all of them
may lawfully do or cause to be done by virtue hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California, on the 29th day
of March, 1996.
BRE PROPERTIES, INC.
By
-------------------------------------
Frank C. McDowell
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities indicated on the 29th day of March, 1996.
Signature Title
--------- -----
Director, Chairman of the Board
- -----------------------------------
Arthur G. von Thaden
President, Chief Executive Officer and
- ----------------------------------- Director (Principal Executive Officer)
Frank C. McDowell
Executive Vice President, Chief
- ----------------------------------- Financial Officer and Secretary
LeRoy E. Carlson (Principal Financial Officer and
Principal Accounting Officer)
7
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Director
- --------------------------------------------------
William E. Borsari
Director
- --------------------------------------------------
C. Preston Butcher
Director
- --------------------------------------------------
L. Michael Foley
Director
- --------------------------------------------------
Roger P. Kuppinger
Director
- --------------------------------------------------
John McMahan
Director
- --------------------------------------------------
Malcom R. Riley
Director
- --------------------------------------------------
Gregory M. Simon
8
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Exhibit 5
March 29, 1996
BRE Properties, Inc.
One Montgomery Street, Suite 2500
Telesis Tower
San Francisco, California 94104
Re: BRE Amended and Restated Non-Employee Director Stock Option Plan and
Assumed Real Estate Investment Trust of California 1991 Stock Option Plan
-------------------------------------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration
Statement on Form S-8 (the "Registration Statement") registering a total of
590,950 shares of Common Stock of BRE Properties, Inc. (the "Company") under the
subject plans.
We are of the opinion that, subject to the effectiveness of the
Registration Statement, the shares of Common Stock of the Company to be sold
pursuant to the above plans will be legally and validly issued, fully paid and
non-assessable. In giving this opinion, we assume that the shares of Common
Stock to be sold pursuant to such plans will be issued in accordance with the
terms of the applicable plan.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
FARELLA, BRAUN & MARTEL
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Exhibit 24
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (on Form S-8) pertaining to the Amended and Restated
Non- Employee Director Stock Option Plan of BRE Properties, Inc. and the
Assumed Real Estate Investment Trust of California 1991 Stock Option Plan and
to the incorporation by reference therein of our report dated August 28,
1995, with respect to the financial statements and schedules of BRE
Properties, Inc. included in its Annual Report (Form 10-K) and Amendment No.
1 to the Annual Report (Form 10-K/A) for the year ended July 31, 1995, filed
with the Securities and Exchange Commission.
San Francisco, California
March 28, 1996
