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As filed with the Securities and Exchange Commission on December 18, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BRE PROPERTIES, INC.
(Exact Name of Registrant as Specified on Its Charter)
Maryland 94-1722214
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
44 Montgomery Street, 36th Floor
San Francisco, CA 94104-4809
(Address of Principal Executive Offices and Zip Code)
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AMENDED AND RESTATED 1992 EMPLOYEE STOCK PLAN
AMENDED AND RESTATED NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
CONSULTANT STOCK OPTION DATED MARCH 2, 1998
(Full title of plans)
LeRoy E. Carlson
BRE Properties, Inc.
44 Montgomery Street, 36th Floor
San Francisco, CA 94104-4809
(415) 445-6530
(Name and Address, and Telephone Number,
Including Area Code, of Agent For Service)
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Copy to:
Michael Gettelman, Esq.
Farella Braun & Martel LLP
235 Montgomery Street
San Francisco, CA 94104-3159
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Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price aggregate Amount of
registered registered/1/ per share/2/ offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par
value, issuable pursuant
to Amended and Restated
1992 Employee Stock Plan 1,000,000 shares/3/ $ 24.75 $24,750,000 $6,880.50
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Common Stock, $.01 par
value, issuable pursuant
to Amended and Restated
Non-Employee Director
Stock Option Plan 750,000 shares/4/ $ 24.75 $18,562,500 $5,160.38
- -------------------------------------------------------------------------------------------------------------------
Common Stock, $.01 par
value, issuable pursuant
to Consultant Stock
Option dated March 2, 1998 24,000 shares $26.875 $ 645,000 $ 179.31
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
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/1/ Pursuant to Rule 416(a), also covers additional securities that may be
offered as a result of stock splits, stock dividends or similar transactions.
/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 Common Stock as reported on the New
York Stock Exchange on December 3, 1998. In accordance with the subject plans,
the actual issuance price will be equal to the fair market value of the shares
on the date options are granted under the plan.
/3/ Does not include 750,000 plan shares previously registered on Form S-8,
Commission File No. 33-60082.
/4/ Does not include 800,000 plan shares previously registered on Form S-8,
Commission File No. 333-02257.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
ITEM 1. PLAN INFORMATION.
BRE Properties, Inc., a Maryland corporation (the "Company" or "Registrant"),
will send or give the documents containing the information specified in this
Item 1 to employees, officers and directors or others as specified by Rule 428
(b) (1).
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The Company will send or give the documents containing the information specified
in this Item 2 to employees, officers, directors or others as specified by Rule
428 (b) (1). In accordance with the rules and regulations of the Securities and
Exchange Commission (the "Commission") and the instructions to Form S-8, the
Company is not filing such documents with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference in this Registration Statement
the following documents:
a. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
b. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since December
31, 1997; and
c. The description of the Company's 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 to be part
hereof from the date of the filing of such documents.
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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
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 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.
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The Company has entered into indemnification agreements with its directors
and officers.
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 LLP regarding the
legality of the securities being registered.
23.1 Consent of Independent Auditors.
23.2 Consent of Farella Braun & Martel LLP (contained in Exhibit 5).
24 Power of attorney (contained on signature page hereof).
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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)(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 total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and 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 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 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 with or furnished to the
Commission 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
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in to this Registration Statement shall be deemed to
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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 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 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.
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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 attorney-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
attorney-in-fact and agents, or his substitute or substitutes, or all 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 14th day
of December, 1998.
BRE PROPERTIES, INC.
By /s/ Frank C. McDowell
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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 14th day of December, 1998.
Signature Title
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/s/ John McMahan Director, Chairman of the Board
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John McMahan
/s/ Frank C. McDowell President, Chief Executive Officer
- -------------------------------------- and Director
Frank C. McDowell (Principal Executive Officer)
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/s/ LeRoy E. Carlson Executive Vice President, Chief
- -------------------------------------- Financial Officer and Secretary
LeRoy E. Carlson (Principal Financial Officer
and Principal Accounting Officer)
/s/ William E. Borsari Director
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William E. Borsari
/s/ Robert Fiddaman Director
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Robert Fiddaman
/s/ L. Michael Foley Director
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L. Michael Foley
/s/ Roger Kuppinger Director
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Roger P. Kuppinger
/s/ Edward Mace Director
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Edward Mace
/s/ Gregory M. Simon Director
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Gregory M. Simon
/s/ Arthur G. von Thaden Director
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Arthur G. von Thaden
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EXHIBIT INDEX
Exhibit No. Description
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5 Opinion of Farella Braun & Martel LLP regarding the legality of
the securities being registered.
23.1 Consent of Independent Auditors.
23.2 Consent of Farella Braun & Martel LLP (contained in Exhibit 5).
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EXHIBIT 5
December 14, 1998
BRE Properties, Inc.
44 Montgomery Street, Suite 3600
San Francisco, CA 94104-4809
Re: Amended and Restated 1992 Employee Stock Plan
Amended and Restated Non-Employee Director Stock Option Plan
Consultant Stock Option Dated March 2, 1998
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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
1,774,000 shares of Common Stock of BRE Properties, Inc. (the "Company") under
the subject plans and Consultant Stock Option.
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 and option 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 and option will be issued in
accordance with the terms of the applicable plan or option.
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 LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement (Form
S-8 to be filed on or about December 18, 1998) pertaining to the Amended and
Restated 1992 Employee Stock Plan, the Amended and Restated Non-Employee
Director Stock Option Plan, and the Consultancy and Stock Option Agreement
dated March 2, 1998, of BRE Properties, Inc., and to the incorporation by
reference therein of our report dated January 14, 1998, with respect to the
consolidated financial statements and related schedules of BRE Properties,
Inc. and its subsidiaries included in its Annual Report (Form 10-K) for the
year ended December 31, 1997, filed with the Securities and Exchange
Commission.
San Francisco, California
December 14, 1998
