<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 1997
REGISTRATION NO. 333-24915
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
BRE PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 94-1722214
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
ONE MONTGOMERY STREET
TELESIS TOWER, SUITE 2500
SAN FRANCISCO, CA 94104-5525
(415) 445-6530
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
LEROY E. CARLSON
CHIEF FINANCIAL OFFICER
BRE PROPERTIES, INC.
ONE MONTGOMERY STREET
TELESIS TOWER, SUITE 2500
SAN FRANCISCO, CA 94104-5525
(415) 445-6530
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPY TO:
<TABLE>
<S> <C>
MORGAN P. GUENTHER, ESQ. ERIC S. HAUETER, ESQ.
Farella Braun & Martel LLP Brown & Wood LLP
235 Montgomery Street 555 California Street
San Francisco, CA 94104-3159 San Francisco, CA 94104-1715
</TABLE>
------------------------
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, other than securities offered only in connection with dividend or interest
reinvestment plans, 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. /X/
(CONTINUED ON FOLLOWING PAGE)
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED(1) PER UNIT(1) PRICE(1)(2) FEE
<S> <C> <C> <C> <C> <C>
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Primary Offering:
Debt Securities(3)(4)................ -- --
Preferred Stock(5)................... -- --
Depositary Shares(5)(6).............. -- $300,000,000 -- $300,000,000 $90,910(11)
Common Stock Warrants(7)............. -- --
Common Stock(5)(8)(9)................ -- --
- ---------------------------------------
Secondary Offering:
Common Stock(8)(10).................. 650,000 shares --
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</TABLE>
(1) Not specified as to each class of securities to be registered, pursuant to
General Instruction II.D of Form S-3. Securities registered hereby may be
offered for U.S. dollars or the equivalent thereof in foreign currencies,
currency units or composite currencies. Securities registered hereby may be
sold separately, together or in units with other securities registered
hereby.
(2) Estimated solely for purposes of computing the registration fee pursuant to
Rule 457(o) of the Securities Act of 1933, as amended (the "Securities
Act"). The proposed maximum offering price will be determined from time to
time by the Registrant in connection with the offering of the securities
registered hereunder.
(3) If any Debt Securities are issued at an original issue discount, then such
greater amount as may be sold for an aggregate initial offering price of up
to the proposed maximum aggregate offering price set forth above.
(4) In addition to any Debt Securities that may be issued directly under this
Registration Statement, there is being registered hereunder such
indeterminate amount of Debt Securities as may be issued upon conversion or
exchange of other Debt Securities, Preferred Stock or Depositary Shares, for
which no consideration will be received by the Registrant.
(5) Such indeterminate number of shares of Preferred Stock and Common Stock,
and such indeterminate number of Depositary Shares, as may be issued from
time to time at indeterminate prices. In addition to any Preferred Stock,
Depositary Shares and Common Stock that may be issued directly under this
Registration Statement in connection with the Primary Offering, there are
being registered hereunder such indeterminate number of shares of Preferred
Stock and Common Stock, and such indeterminate number of Depositary Shares,
as may be issued upon conversion or exchange of Debt Securities, Preferred
Stock or Depositary Shares, as the case may be, for which no separate
consideration will be received by the Registrant.
(6) Depositary Shares will represent fractional interests in shares of
Preferred Stock registered hereby.
(7) Common Stock Warrants will represent rights to purchase Common Stock
registered hereby in connection with the Primary Offering.
(8) The shares of Common Stock being registered hereunder, if issued prior to
the termination by the Company of its Shareholder Rights Plan, shall include
Common Share Purchase Rights. Prior to the occurrence of certain events, the
Rights will not be exercisable or evidenced separately from the Common
Stock.
(9) The aggregate amount of Common Stock registered hereunder in connection
with the Primary Offering is limited, solely for purposes of any at the
market offerings, to that which is permissible under Rule 415(a)(4) of the
Securities Act.
(10) Such number of shares of Common Stock up to an aggregate of 650,000 shares
as may be offered by a selling shareholder from time to time at
indeterminate prices.
<PAGE>
(11) Registration fee of $90,910 was previously paid on January 13, 1997 in
connection with the filing of Registration Statement No. 333-20251 on Form
S-3 on January 23, 1997.
------------------------
Pursuant to Rule 429 of the Securities Act, the Prospectus contained herein
is a combined Prospectus relating to this Registration Statement and
Registration Statement No. 333-20251.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
<PAGE>
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement is being filed solely for
the purpose of filing the attached exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table is an itemized listing of expenses to be incurred by BRE
Properties, Inc. (the "Company") in connection with the issuance of the Offered
Securities being registered hereby, other than commissions (all amounts, other
than the SEC Registration Fee, are estimates):
<TABLE>
<S> <C>
SEC Registration Fee.............................................. $ 90,910
NYSE Listing Fee.................................................. 28,750
Printing and Engraving Costs...................................... 200,000
Legal Fees and Expenses........................................... 250,000
Blue Sky Fees and Expenses........................................ 20,000
Rating Agency Fees................................................ 25,000
Accounting Fees and Expenses...................................... 180,000
Miscellaneous..................................................... 5,340
---------
Total............................................................. $ 800,000
---------
---------
</TABLE>
ITEM 15. 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 Bylaws
provides that the Company shall indemnify any officer or director who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or investigation, whether civil, criminal or
administrative, and whether external or internal to the Company (other than an
action brought by or in the right of the Company) by reason of the fact that he
or she is or was an officer or director, against all expenses, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) actually and reasonably
incurred by the officer or director in connection with such action, suit,
proceeding or investigation, or any appeal therein. However, there will be no
such indemnification if it is established by adjudication that (i) the act or
omission of the director was material to the matter giving rise to the
proceeding and (A) was committed in bad faith or (B) was the result of active
and deliberate dishonesty; (ii) the officer or director actually received an
improper personal benefit in money, property or services; or (iii) with respect
to any criminal action or proceeding, the officer or director had no reasonable
cause to believe that his or her conduct was unlawful. Notwithstanding the
foregoing, an officer or director may receive indemnification where a court of
appropriate jurisdiction determines that such person is fairly and reasonably
entitled to indemnity for any expense, liability or loss which the court shall
deem proper; provided, however, that no indemnification for any liability or
loss (other than expenses) shall in any event be made to the extent that such
person has been adjudged to have actually received an improper personal benefit.
Article VI of the Articles provides that, to the fullest extent permitted by
law, no director or officer of the Company shall be personally liable to the
Company, any subsidiary thereof or any of its shareholders for money damages.
In addition, Article VI of the Company's Bylaws also provides that the
Company shall indemnify any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed judicial action or suit
brought by or in the right of the Company to procure a judgment in its favor by
reason of the fact that such person is or was an officer or director, against
expenses (including attorneys' fees) and amounts paid in settlement actually and
reasonably incurred by such person in connection with the defense, settlement or
appeal of such action or suit, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Company unless and only to the extent that a court
of appropriate jurisdiction shall determine upon
II-1
<PAGE>
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the court shall deem proper.
The Company maintains a directors' and officers' insurance policy which
insures the directors and officers of the Company from claims arising out of an
alleged wrongful act by such persons in their respective capacities as directors
and officers of the Company, subject to certain exceptions.
The Company has entered into indemnification agreements with its directors
and officers.
ITEM 16. EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<C> <S>
1 Form of Underwriting Agreement (1)
4.1 Amended and Restated Articles of Incorporation (2)
4.2 Articles of Amendment (5)
4.3 Bylaws (3)
4.4 Rights Agreement between the Registrant and Bank of America, N.T. & S.A., dated as of August 14, 1989
(4)
4.5 Supplement to Rights Agreement between the Registrant and Chemical Trust Company of California dated as
of July 30, 1992 (5)
4.6 Form of Senior Indenture (5)
4.7 Form of Subordinated Indenture (5)
4.8 Form of Senior Debt Security (1)
4.9 Form of Subordinated Debt Security (1)
4.10 Form of Common Stock Warrant Agreement and Form of Warrant (1)
4.11 Specimen Certificate for Common Shares (5)
4.12 Form of Certificate for Preferred Shares (1)
4.13 Form of Articles Supplementary for Preferred Shares (1)
4.14 Form of Deposit Agreement and Depositary Receipt (1)
5.1 Opinion of Farella Braun & Martel LLP regarding the validity of the securities being registered (5)
5.2 Opinion of Piper & Marbury L.L.P. regarding the validity of the Common Stock being registered
8 Opinion of Farella Braun & Martel LLP regarding tax matters (5)
12 Computation of Ratio of Earnings to Fixed Charges (5)
23.1 Consent of Farella Braun & Martel LLP (included as part of Exhibits 5.1 and 8)
23.2 Consent of Ernst & Young LLP (5)
23.3 Consent of Piper & Marbury L.L.P. (included as part of Exhibit 5.2)
24 Power of Attorney (5)
25.1 Statement of Eligibility of the Senior Trustee on Form T-1 (6)
25.2 Statement of Eligibility of the Subordinated Trustee on Form T-1 (6)
99 Form of Prospectus Supplement for an offering of Common Stock (5)
</TABLE>
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(1) To be filed by amendment or as an exhibit to a document to be incorporated
by reference herein in connection with an offering of specific Offered
Securities.
(2) Incorporated by reference to Exhibit 3.1 to the Registrant's Current Report
on Form 8-K dated March 15, 1996.
(3) Incorporated by reference to Exhibit 4.5 to the Registrant's Registration
Statement on Form S-4 (No. 33-65365), filed with the Securities and Exchange
Commission on December 22, 1995, as amended.
II-2
<PAGE>
(4) Incorporated by reference to Exhibit 4.1 to the Registrant's Current Report
on Form 8-K dated August 14, 1989.
(5) Filed previously.
(6) To be filed in accordance with Section 305(b)(2) of the Trust Indenture Act
of 1939.
ITEM 17. UNDERTAKINGS
(a) 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, 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the 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; 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 (a)(1)(i) and (a)(1)(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 with or furnished to
the Commission by the Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (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 therein, 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.
(b) 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 into 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.
(c) 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
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
II-3
<PAGE>
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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-4
<PAGE>
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-3 and has duly caused this amendment to the
Registration Statement (the "Amendment") to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Francisco, State of
California, on the 6th day of May, 1997.
BRE PROPERTIES, INC.
By: /s/ LEROY E. CARLSON
-----------------------------------------
LeRoy E. Carlson
EXECUTIVE VICE PRESIDENT, CHIEF FINANCIAL
OFFICER AND SECRETARY
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed by the following persons in the capacities indicated on the 6th
day of May, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------- ----------------------------------------------
<C> <S>
/s/ JOHN MCMAHAN*
----------------------------------
John McMahan Director, Chairman of the Board
/s/ FRANK C. MCDOWELL*
---------------------------------- President, Chief Executive Officer and
Frank C. McDowell Director (Principal Executive Officer)
/s/ LEROY E. CARLSON Executive Vice President, Chief Financial
---------------------------------- Officer and Secretary (Principal Financial
LeRoy E. Carlson Officer and Principal Accounting Officer)
/s/ WILLIAM E. BORSARI*
----------------------------------
William E. Borsari Director
/s/ C. PRESTON BUTCHER*
----------------------------------
C. Preston Butcher Director
/s/ L. MICHAEL FOLEY*
----------------------------------
L. Michael Foley Director
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------- ----------------------------------------------
<C> <S>
/s/ ROGER P. KUPPINGER*
----------------------------------
Roger P. Kuppinger Director
/s/ MALCOM R. RILEY*
----------------------------------
Malcom R. Riley Director
/s/ GREGORY M. SIMON*
----------------------------------
Gregory M. Simon Director
/s/ ARTHUR G. VON THADEN*
----------------------------------
Arthur G. von Thaden Director
</TABLE>
*By: /s/ LEROY E. CARLSON
-------------------------
LeRoy E. Carlson
ATTORNEY-IN-FACT
II-6
<PAGE>
BRE PROPERTIES, INC.
EXHIBIT INDEX
TO AMENDMENT NO. 2 TO REGISTRATION STATEMENT ON FORM S-3
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT LOCATION
- ----------- --------------------------------------------------------------------------------- -------------------
<C> <S> <C>
5.2 Opinion of Piper & Marbury L.L.P. regarding the validity of the Common Stock
being registered............................................................... Contained herein
23.3 Consent of Piper & Marbury L.L.P. (included as part of Exhibit 5.2)
</TABLE>
<PAGE>
[LETTERHEAD]
May 6, 1997
BRE Properties, Inc.
One Montgomery Street
Telesis Tower, Suite 2500
San Francisco, California 94104
Ladies and Gentlemen:
We have acted as special Maryland counsel in connection with the
registration statement on Form S-3 (the "Original Registration Statement")
filed on April 10, 1997, Amendment No. 1 to the Registration Statement filed
on April 28, 1997 ("the "First Amendment") and Amendment No. 2 to the
Registration Statement filed on May 6, 1997 (the "Second Amendment," and
together with the Original Registration Statement and the First Amendment,
the "Registration Statement") by BRE Properties, Inc., a Maryland corporation
(the "Company"), relating to the offering (including an over-allotment
option) of an aggregate of 3,950,000 shares of common stock, $.01 par value
(the "Company Offered Shares"), as well as 650,000 shares of common stock,
$.01 par value, of the Company being sold by a certain shareholder of the
Company (the "Resale Shares").
In our capacity as special Maryland counsel, we have reviewed the
following:
(a) The Charter of the Company, as amended to date (the "Charter"),
certified by the Maryland State Department of Assessments and Taxation
(the "Department");
(b) A copy of the By-laws of the Company certified by an officer of the
Company, as in effect on the date hereof (the "By-laws");
(c) The Registration Statement;
<PAGE>
[LOGO]
BRE Properties, Inc.
One Montgomery Street
Telesis Tower, Suite 2500
San Francisco, California 94104
May 6, 1997
Page 2
(d) Certified resolutions of the Board of Directors of the Company
authorizing the Registration Statement and the issuance of the Company
Offered Shares;
(e) A good standing certificate for the Company, dated April 22, 1997,
issued by the Department;
(f) An Officer's Certificate of the Company dated as of the date hereof as
to certain factual matters (the "Officer's Certificate"); and
(g) Such other documents as we have considered necessary to the rendering
of the opinions expressed below.
In such examination, we have assumed, without independent
investigation, the genuineness of all signatures, the legal capacity of all
individuals who have executed any of the aforesaid documents, the
authenticity of all documents submitted to us as originals, the conformity
with originals of all documents submitted to us as copies and that all public
records received are accurate and complete. As to any facts material to this
opinion which we did not independently establish or verify, we have relied
solely upon the Officer's Certificate.
Based upon the foregoing, we are of the opinion that
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Maryland.
(ii) When issued and paid for in the manner contemplated by the
Registration Statement, the Company Offered Shares will be legally issued,
fully paid and nonassessable.
(iii) The Resale Shares are legally issued, fully paid and
nonassessable.
The opinions expressed above are limited to the law of Maryland,
exclusive of the securities or "blue sky" laws of the State of Maryland. We
hereby consent to the filing of
<PAGE>
[LOGO]
BRE Properties, Inc.
One Montgomery Street
Telesis Tower, Suite 2500
San Francisco, California 94104
May 6, 1997
Page 3
this opinion as Exhibit 5.2 to the Registration Statement and to the
reference to our firm in the Registration Statement.
Very truly yours,
/s/ PIPER & MARBURY L.L.P.
