<PAGE> 1
REGISTRATION NO. _____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TARRAGON REALTY INVESTORS, INC.
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(Exact name of registrant as specified in governing instruments)
Nevada 94-2432628
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3100 Monticello Avenue, Suite 200, Dallas, Texas 75205
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(Address of Principal Executive Offices) (Zip Code)
Amended and Restated Independent Director Share Option Plan
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(Full title of the plan)
William S. Friedman, Esq.
280 Park Avenue, East Building, 20th Floor
New York, New York 10017
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(Name and address of agent for service)
(212) 949-5000 o (212) 949-8001 (Fax)
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(Telephone number, including area code, of agent for service)
With a Copy to:
Steven C. Metzger, Esq.
Prager, Metzger & Kroemer PLLC
2626 Cole Avenue, Suite 900
Dallas, Texas 75204
(214) 969-7600 o (214) 523-3838 (Fax)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered (1) price per units(s) price (2) registration fee (2)
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<S> <C> <C> <C> <C>
Tarragon Realty 191,164 $4.61-$11.00 $1,521,651.76 $401.72
Investors, Inc. Shares
Common Stock, par
value $0.01 per share
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</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate additional amount
of shares of common stock to be offered or sold pursuant to the
anti-dilution provisions of the Amended and Restated Independent
Director Share Option Plan.
(2) Calculated based on 191,164 shares subject to options issued under the
Amended and Restated Independent Director Share Option Plan at exercise
prices ranging from $4.61 to $11.00 per share, and the remaining 72,633
shares at a price per share calculated on the basis of the closing
sales price per share, as reported on NASDAQ on May 5, 2000 of $9.875,
all in accordance with Rule 457(h) promulgated under the Securities Act
of 1933, as amended.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
We incorporate by reference the following documents, which we have
previously filed with the SEC (File No. 0-8003):
1. Tarragon's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999.
2. Description of Tarragon's common stock set forth in a
registration statement on Form 8-B, filed with the SEC on
August 20, 1997 (File No. 000-22999).
3. All reports which we have filed pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended,
since December 31, 1999.
All documents which we subsequently file pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment to this Registration Statement, which indicate that all of the shares
of common stock offered have been sold or which de-registers all of such shares
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Tarragon's Articles of Incorporation provide that it "shall indemnify
to the fullest extent authorized or permitted by law . . . any person made or
threatened to be made a party or witness to any action, suit or proceeding
(whether civil, criminal or otherwise) by reason of the fact that such person is
or was a director, officer, employee or agent" of Tarragon. Further, Tarragon's
Bylaws provide that "[e]ach officer, director or employee . . . shall be
indemnified . . . to the full extent permitted under Chapter 78 of the Nevada
Revised Statutes . . . and other applicable law."
Pursuant to the NRS, a corporation may indemnify persons for expenses
related to an action, suit or proceeding, except an action by or in the right of
the corporation, by reason of the fact that such person is or was a director,
officer, employee or agent, if such person acted in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, if such
person had no reasonable cause to believe his conduct was unlawful. The expenses
indemnified against in this provision include attorneys' fees, judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with the action, suit or proceeding. The NRS further provides that a corporation
may indemnify persons for attorneys' fees related to an action, suit or
proceeding by or in the right of the corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director, officer,
employee or agent, if such person acted in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation. A corporation may also indemnify directors for amounts paid in
judgments and settlements in such a suit, but only if ordered by a court after
determining that the person is "fairly and reasonably" entitled to indemnity.
Under the Management Liability Provision of Tarragon's Articles of
Incorporation, directors do not have personal liability to Tarragon or to its
stockholders for monetary damages for any breach of their fiduciary duties as
directors (including, without limitation, any liability for gross negligence in
the performance of their duties), except
II-i
<PAGE> 4
o for acts or omissions which involve intentional misconduct,
fraud or a knowing violation of law or
o for the payment of dividends in violation of NRS 78.300.
By precluding personal liability for certain breaches of fiduciary
duty, including grossly negligent business decisions made in connection with
evaluating takeover proposals to acquire Tarragon, the Management Liability
Provision supplements indemnification rights afforded under Tarragon's Articles
of Incorporation and Bylaws which provide, in substance, that Tarragon shall
indemnify its directors, officers, employees and agents to the fullest extent
permitted by the NRS and other applicable laws.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling
Tarragon under the foregoing provisions, we have been advised that in the
opinion of the SEC 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 for the payment by Tarragon
of expenses incurred or paid by a director, officer or controlling person in the
successful defense of any action, suit or proceeding) is asserted against
Tarragon by any director, officer or controlling person in connection with the
securities being registered, Tarragon will, unless in the opinion of counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Designation Description
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1.1 Articles of Incorporation of Vinland Property Corporation as
filed with and endorsed by the Secretary of State of
California on July 22, 1997 (incorporation by reference is
made to Exhibit 3.1 to Form 8-K of Tarragon Realty Investors,
Inc. for event reported July 10, 1997).
1.2 Articles of Incorporation of Tarragon Realty Investors, Inc.
filed with and approved by the Secretary of State of Nevada on
April 2, 1997 (incorporation by reference is made to Exhibit
3.2 to Form 8-K of Tarragon Realty Investors, Inc. for event
reported July 10, 1997).
1.3 Bylaws of Tarragon Realty Investors, Inc. as adopted April 3,
1997 (incorporation by reference is made to Exhibit 3.3 to
Form 8-K of Tarragon Realty Investors, Inc. for event reported
July 10, 1997).
1.4 Agreement and Plan of Merger dated July 24, 1997 of Vinland
Property Corporation and Tarragon Realty Investors, Inc.
(incorporation by reference is made to Exhibit 3.4 to Form 8-K
of Tarragon Realty Investors, Inc. for event reported July 10,
1997).
1.5 Articles of Merger of Vinland Property Corporation into
Tarragon Realty Investors, Inc. as filed with and approved
with the Secretary of State of Nevada July 25, 1997
(incorporation by reference is made to Exhibit 3.5 to Form 8-K
of Tarragon Realty Investors, Inc. for event reported July 10,
1997).
1.6 Articles of Incorporation of National Income Realty
Corporation filed with and approved by the Secretary of State
of California on November 23, 1998 (incorporation by reference
is made to Exhibit 3.8) to Form 8-K of Tarragon Realty
Investors, Inc. for event reported November 24, 1998).
1.7 Agreement and Plan of Merger dated June 5, 1998 between
Tarragon Realty Investors, Inc. and National Income Realty
Trust (incorporation by reference is made to Exhibit 2.1 to
Form 8-K of Tarragon Realty Investors, Inc. for event reported
June 5, 1998).
II-ii
<PAGE> 5
Exhibit
Designation Description
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1.8 Articles of Merger of National Income Realty Corporation into
Tarragon Realty Investors, Inc. as filed with and approved by
the Secretary of State of Nevada November 24, 1998
(incorporation by reference is made to Exhibit 3.9 to Form 8-K
of Tarragon Realty Investors, Inc. for event reported November
24, 1998).
4.1 Indenture Agreement dated September 15, 1993 between Vinland
Property Trust and American Stock Transfer and Trust Company
(incorporation by reference is made to Exhibit 4.7 to
Registration Statement No. 33-66294 on Form S-11).
4.2 Amended and Restated Independent Director Share Option and
Incentive Plan, as adopted July 21, 1995 and amended July 25,
1997 and November 24, 1998 (attached to the Prospectus as
Appendix A).
*5.1 Form of opinion of Prager, Metzger & Kroemer PLLC as to the
legality of the securities.
*5.2 Form of opinion of Lewis and Roca, LLP as to the legality of
the securities.
23.1 Consent of Prager, Metzger & Kroemer PLLC (included in Exhibit
5.1)
23.2 Consent of Lewis and Roca, LLP (included in Exhibit 5.2)
*23.3 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (set forth on signature page).
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* Filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
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;
(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 thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this 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 (a)(i) and (a)(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 registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated
by reference in the Registration Statement.
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 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.
To remove from the registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the
termination of the offering.
II-iii
<PAGE> 6
(b) The undersigned Registrant hereby undertakes that for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or 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 Exchange Act)
that is incorporated by reference in the Registration Statement 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.
(c) Insofar as indemnification by the Registrant for liabilities arising
under the Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the provisions
described in the Item 6 or otherwise, the Registrant 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 by the Registrant 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,
subject 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.
II-iv
<PAGE> 7
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 a Form S-8 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on May 8,
2000.
TARRAGON REALTY INVESTORS, INC.
By: /s/ William S. Friedman
----------------------------------
William S. Friedman, President,
Chief Executive Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below on this Registration Statement constitutes and appoints each of William S.
Friedman and Erin D. Davis, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution for him or her and in his or her
name, place and stead, in any and all capacities (until revoked in writing) to
sign any and all amendments (including post-effective amendments thereto) to
this Registration Statement of Tarragon Realty Investors, Inc. and to file same,
with all exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent, or any of them, or their or his or her substitute or substitutes, 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
agent or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Chairman of the Board of Directors
/s/ Carl B. Weisbrod and Director May 2, 2000
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Carl B. Weisbrod
President, Chief Executive Officer and
/s/ William S. Friedman Director (Principal Executive Officer) May 8, 2000
- --------------------------------------------
William S. Friedman
Executive Vice President and Chief
/s/ Erin D. Davis Financial Officer (Principal Financial May 8, 2000
- -------------------------------------------- and Accounting Officer)
Erin D. Davis
/s/ Chester Beck Director May 2, 2000
- --------------------------------------------
Chester Beck
/s/ Willie K. Davis Director May 8, 2000
- --------------------------------------------
Willie K. Davis
/s/ Sally Hernandez-Pinero Director May 8, 2000
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Sally Hernandez-Pinero
/s/ Lance Liebman Director May 2, 2000
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Lance Liebman
/s/ Robert C. Rohdie Director May 4, 2000
- --------------------------------------------
Robert C. Rohdie
/s/ Lawrence G. Schafran Director May 8, 2000
- --------------------------------------------
Lawrence G. Schafran
/s/ Raymond V.J. Schrag Director May 8, 2000
- --------------------------------------------
Raymond V. J. Schrag
/s/ Michael E. Smith Director May 2, 2000
- --------------------------------------------
Michael E. Smith
</TABLE>
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- -------- -----------
<S> <C>
1.1 Articles of Incorporation of Vinland Property Corporation as
filed with and endorsed by the Secretary of State of
California on July 22, 1997 (incorporation by reference is
made to Exhibit 3.1 to Form 8-K of Tarragon Realty Investors,
Inc. for event reported July 10, 1997).
1.2 Articles of Incorporation of Tarragon Realty Investors, Inc.
filed with and approved by the Secretary of State of Nevada on
April 2, 1997 (incorporation by reference is made to Exhibit
3.2 to Form 8-K of Tarragon Realty Investors, Inc. for event
reported July 10, 1997).
1.3 Bylaws of Tarragon Realty Investors, Inc. as adopted April 3,
1997 (incorporation by reference is made to Exhibit 3.3 to
Form 8-K of Tarragon Realty Investors, Inc. for event reported
July 10, 1997).
1.4 Agreement and Plan of Merger dated July 24, 1997 of Vinland
Property Corporation and Tarragon Realty Investors, Inc.
(incorporation by reference is made to Exhibit 3.4 to Form 8-K
of Tarragon Realty Investors, Inc. for event reported July 10,
1997).
1.5 Articles of Merger of Vinland Property Corporation into
Tarragon Realty Investors, Inc. as filed with and approved
with the Secretary of State of Nevada July 25, 1997
(incorporation by reference is made to Exhibit 3.5 to Form 8-K
of Tarragon Realty Investors, Inc. for event reported July 10,
1997).
1.6 Articles of Incorporation of National Income Realty
Corporation filed with and approved by the Secretary of State
of California on November 23, 1998 (incorporation by reference
is made to Exhibit 3.8) to Form 8-K of Tarragon Realty
Investors, Inc. for event reported November 24, 1998).
1.7 Agreement and Plan of Merger dated June 5, 1998 between
Tarragon Realty Investors, Inc. and National Income Realty
Trust (incorporation by reference is made to Exhibit 2.1 to
Form 8-K of Tarragon Realty Investors, Inc. for event reported
June 5, 1998).
1.8 Articles of Merger of National Income Realty Corporation into
Tarragon Realty Investors, Inc. as filed with and approved by
the Secretary of State of Nevada November 24, 1998
(incorporation by reference is made to Exhibit 3.9 to Form 8-K
of Tarragon Realty Investors, Inc. for event reported November
24, 1998).
4.1 Indenture Agreement dated September 15, 1993 between Vinland
Property Trust and American Stock Transfer and Trust Company
(incorporation by reference is made to Exhibit 4.7 to
Registration Statement No. 33-66294 on Form S-11).
4.2 Amended and Restated Independent Director Share Option and
Incentive Plan, as adopted July 21, 1995 and amended July 25,
1997 and November 24, 1998 (attached to the Prospectus as
Appendix A).
*5.1 Form of opinion of Prager, Metzger & Kroemer PLLC as to the
legality of the securities.
*5.2 Form of opinion of Lewis and Roca, LLP as to the legality of
the securities.
23.1 Consent of Prager, Metzger & Kroemer PLLC (included in Exhibit
5.1)
23.2 Consent of Lewis and Roca, LLP (included in Exhibit 5.2)
*23.3 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (set forth on signature page).
</TABLE>
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* Filed herewith.
<PAGE> 1
EXHIBIT 5.1
[PRAGER, METZGER & KROEMER PLLC LETTERHEAD]
May 5, 2000
Tarragon Realty Investors, Inc.
3100 Monticello Avenue
Suite 200
Dallas, Texas 75205
RE: Tarragon Realty Investors, Inc. Original Issuance of up to 191,164
shares of Common Stock, par value $0.01 per share pursuant to Amended
and Restated Independent Director Share Option Plan
Ladies and Gentlemen:
We have acted as counsel for Tarragon Realty Investors, Inc., a Nevada
corporation (the "Company") in connection with the preparation by the Company of
the Registration Statement on Form S-8 (the "Registration Statement") to be
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended covering the offer and sale of up to an aggregate of 191,164
shares of the Company's Common Stock, par value $0.01 per share (the "Shares")
that may be issued from time to time pursuant to Options granted under the
Tarragon Realty Investors, Inc. Amended and Restated Independent Director Share
Option Plan (the "Director Plan").
As counsel rendering the opinions hereinafter expressed, we have been
furnished with and examined the originals or copies certified or otherwise
identified to our satisfaction of the following documents and have made no
independent verification of the factual matters set forth in such documents:
1. Articles of Incorporation of the Company;
2. Bylaws of the Company;
3. Independent Director Share Option Plan as adopted July 21, 1995;
<PAGE> 2
4. Amendment No. 1 dated July 25, 1997 to Independent Director Share
Option Plan;
5. Amendment No. 2 effective November 24, 1998 to Independent Director
Share Option Plan; and
6. Such other documents we have deemed necessary for the expression of
the opinions contained herein.
In making the foregoing examinations, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. As to various questions of fact material to
this opinion, where such facts have not been independently established, we have
relied, to the extent we deem reasonably appropriate, upon representations or
certificates of directors, officers or employees or other authorized
representatives of the Company, public officials and others. In addition, we
have assumed that the Company will receive the full amount and type of
consideration (as specified in the Director Plan and each applicable Option
agreement) for each of the Shares or will have received that consideration based
upon issuance of the Shares pursuant to the applicable Option agreement, that
such consideration will be in cash, personal property or services already
performed, that such consideration will equal or exceed the par value per share
of the Shares, that appropriate certificates evidencing the Shares will be
properly executed upon each issuance of an Option pursuant to the Director Plan
will be duly authorized.
Based upon the foregoing and having due regard for such legal
considerations as we have deemed relevant, we are of the opinion that up to
191,164 shares of Common Stock have been duly and validly authorized and
reserved for issuance and, when issued in the manner contemplated by the
Registration Statement and in accordance with the terms of the Independent
Director Plan and the relevant Option agreement, will be validly issued and
outstanding, fully-paid and non-assessable with no personal liability attaching
to the ownership thereof.
The members of this firm are admitted to practice only in the State of
Texas and are not licensed to practice law in the State of Nevada. Our opinions
expressed herein may address certain matters of Nevada law. With respect to
opinions involving or based upon the interpretation of the laws of the State of
Nevada, we have relied upon, and our opinion is subject to, the limitations and
assumptions set forth in the opinion of Lewis and Roca LLP dated May 5, 2000,
and addressed to the Company and our firm upon which we are authorized to rely
(and which will be filed as Exhibit 5.2 to the Registration Statement). We have
made no independent examination of the laws of the State of Nevada.
<PAGE> 3
Tarragon Realty Investors, Inc.
May 5, 2000
Page 3
This opinion has been furnished to the Company at its request, is rendered
solely for its use and may not be relied upon by any other person or for any
other purpose without our prior written consent and is rendered as of the date
hereof. We do not undertake, and hereby disclaim any obligation to advise anyone
of any changes in or new developments which might affect any matters or opinions
set forth herein. No member of this firm is an officer or director of the
Company.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come into the category of persons whose consent is required under Section 7 of
the Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
PRAGER, METZGER & KROEMER PLLC
By: /s/ Steven C. Metzger
-------------------------------------
Steven C. Metzger, Manager
SCM:ab
<PAGE> 1
EXHIBIT 5.2
[LEWIS AND ROCA LLP LAWYERS LETTERHEAD]
- --------------------------------------------------------------------------------
May 5, 2000
Tarragon Realty Investors, Inc.
3100 Monticello
Suite 200
Dallas TX 75205
Re: Registration Statement on Form S-8
Original Issuance of up to 191,164 shares of Common Stock,
Par Value $.01 per share pursuant to the Amended and Restated
Independent Director Share Option Plan
Ladies and Gentlemen:
You have requested our opinion as special Nevada counsel for Tarragon
Realty Investors, Inc., a Nevada corporation (the "Company") in connection with
the preparation by the Company of the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the 1933 Securities Act, as amended, concerning the offer and
sale of up to an aggregate of 191,164 shares of the Company's common stock, par
value $.01 (the "Shares") that may be issued from time to time pursuant to the
Options granted under the Company's Amended and Restated Independent Director
Share Option Plan (the "Plan"). Any opinions stated herein are expressly limited
to our role as special Nevada counsel for the purposes of this transaction.
In connection with this opinion letter, we have reviewed the following
documents (the "Documents"):
1. A draft of the Registration Statement of the Company
anticipated to be filed with the U. S. Securities Exchange
Commission on May 5, 2000;
2. The Plan as adopted by the Company on July 1, 1995 (the
"Plan");
3. Amendment No. 1 to the Plan dated July 25, 1997;
<PAGE> 2
Page 2
4. Amendment No. 2 to the Plan effective November 24, 1998;
5. Articles of Incorporation of the Company as filed with the
Nevada Secretary of State dated April 2, 1997;
6. Bylaws of the Company certified currently to be in full force
and effect;
7. Unanimous Written Consent of the Board of Directors of the
Company in lieu of organizational meeting dated April 3, 1997;
8. Minutes of the meeting of the Board of Directors of the
Company dated June 21, 1995 authorizing the Plan:
9. Minutes of the meeting of the Board of Directors of the
Company dated December 15, 1997 authorizing Amendment No. 1 to
the Plan;
10. Minutes of the meeting of the Board of Directors of the
Company dated November 24, 1998 authorizing Amendment No. 2 to
the Plan;
11. Minutes of the meeting of the Board of Directors of the
Company dated May 1, 2000 authorizing the Registration
Statement on Form S-8 and the transactions contemplated
thereby;
12. Officer's Certificate of the Company dated May 4, 2000.
In our examination, we have assumed that each Document will be duly
completed (where blanks appear), duly executed and duly delivered, as may be
required. We assume the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to original documents
of all copies. We assume the legal capacity of all natural persons who signed or
who will sign Documents, or documents necessarily contemplated by the
transactions related hereto. We assume that the Documents are the only material
documents governing the transaction and the affairs of the Company in relation
to the above-described transaction.
We assume that any documents necessary to consummate the transactions
contemplated by the Documents have been legally authorized by parties who have
the power to do so, and have been properly executed and delivered by such
parties. We further assume that the Documents are legal, valid, binding and
enforceable obligations of any party other than the Company. We assume that the
Documents have not been amended, modified, or rescinded in any manner whatsoever
as of the date of this opinion letter. As to various question of fact, we have
relied upon statements of the Company, various public officials and others. We
have not independently verified any
<PAGE> 3
Page 3
of the factual matters set forth in any certificate or other document provided
to us in connection with this matter and upon which we may have relied.
We assume that the Company will receive the full amount and type of
consideration (as specified in the Plan, as amended, and each applicable Award
or Option agreement) for each of the Shares or will have received that
consideration based upon issuance of the Shares pursuant to the applicable Award
or Option agreement, that such consideration will be in cash, personal property
or services already performed, that such consideration will equal or exceed the
par value per share of the Shares, that appropriate certificates evidencing the
Shares will be properly executed upon each issuance and that each grant of an
Award or Option pursuant to the Plan will be duly authorized.
Based upon the foregoing, we are of the opinion that up to 191,164
Shares of the Company's common stock have been duly authorized and validly
issued, and reserved for issuance in the manner contemplated by the Registration
Statement and in accordance with the terms and conditions of the Plan and the
relevant Option provisions thereof, will be validly issued and outstanding,
fully paid and non-assessable, with no personal liability attaching to the
ownership thereof.
We are admitted to the bar of the State of Nevada. In rendering our
opinions stated above, we have relied upon the applicable laws of the State of
Nevada as those laws presently exist, and as they have been applied and
interpreted by courts having jurisdiction within the State of Nevada. We express
no opinion as to the laws of any other jurisdiction, or of the interpretation of
Nevada law by courts outside of the state of Nevada, or of the laws of the
United States of America.
The opinions expressed herein are effective as of the date hereof. We
disclaim any responsibility to update this opinion at any time following the
date hereof. No extensions of this opinion may be made by implication or
otherwise. We express no opinion other than as expressly set forth herein. This
opinion is solely for the benefit of the addressee and may be relied upon by
Prager, Metzger & Kroemer PLLC with regard to the issuance of its opinion in
this matter.
We hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Registration Statement and the Prospectus contained
therein and otherwise distributed. By giving such consent, we do not admit
hereby that we are an
<PAGE> 4
Page 4
expert with respect to any part of the Registration Statement, including but not
limited to this exhibit, within the meaning of "expert" as used in the
Securities Act, as amended.
Sincerely,
/s/ Lewis & Roca LLP
Lewis and Roca LLP
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 30, 2000
included in the Tarragon Realty Investors, Inc. Form 10-K for the year ended
December 31, 1999 and to all references to our firm included in or made part of
this registration statement on Form S-8.
/s/ ARTHUR ANDERSEN LLP
Dallas, Texas,
May 8, 2000
