As filed with the Securities and Exchange Commission on June 9, 1999.
File 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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UNITED DOMINION REALTY TRUST, INC.
(Exact Name of Issuer as Specified in its Charter)
Virginia 54-0857512
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
10 South 6th Street
Richmond, Virginia 23219
(804)780-2691
(Address, including zip code, and telephone number of Principal
Executive Offices)
United Dominion Realty Trust, Inc. 1999 Open Market Purchase Program
(Full Titles of the Plan)
KATHERYN E. SURFACE Copy to:
Senior Vice President and General Counsel JAMES W. FEATHERSTONE
United Dominion Realty Trust, Inc. Hunton & Williams
10 South 6th St. Riverfront Plaza, East Tower
Richmond, Virginia 23219 951 East Byrd Street
(804) 780-2691 Richmond, Virginia 23219-4074
(Name, address, including zip code, and (804) 788-8200
telephone number, including area code, of
agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Securities Aggregate Maximum Maximum Amount of
to be Registered Amount to Offering Price Aggregate Registration
be Registered Per Unit Offering Price Fee (2)
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<S> <C>
Common Stock $12,000,000 (1) $12,000,000 $3,336
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Rights to Purchase N/A N/A N/A N/A
Series C
Junior Participating
Redeemable Preferred
Stock, no par value (3)
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</TABLE>
(1) Omitted pursuant to Rule 457(o) under the Securities Act of 1933.
(2) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933.
(3) The rights will be attached to and trade with the common stock.
<PAGE>
PART I INFORMATION REQUIRED IN The Section 10(a) Prospectus
(a) The documents constituting Part I of this Registration Statement
will be sent or given to participants in the Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended.
(b) Upon written or oral request, the Company will provide, without
charge, the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above-mentioned information should be
directed to Katheryn E. Surface, Corporate Secretary, 10 South 6th Street,
Richmond, Virginia, 23219, telephone (804) 780-2691.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by United Dominion Realty Trust,
Inc. (the "Company") (File No. 1-10524) with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and are deemed to be a part hereof from the
date of the filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999;
(3) Current Report on Form 8-K dated September 11, 1998, filed on October
23, 1998, as amended by Amendment No. 1 on Form 8-K/A dated and filed on
December 21, 1998; Current Report on Form 8-K dated November 2, 1998, filed on
November 6, 1998; Current Report on Form 8-K dated December 7, 1998, filed on
December 21, 1998; Current Report on Form 8-K dated and filed on January 20,
1999; Current Report on Form 8-K dated and filed March 29, 1999;
(4) The description of the common stock and preferred stock contained in
the Company's Registration Statements on Form 8-A dated April 9, 1990, May 1,
1995, June 10, 1997 and February 4, 1998, filed under the Exchange Act,
including any amendments or reports filed for the purpose of updating such
descriptions; and
(5) All other 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 to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed incorporated
herein by reference shall be deemed to be modified or superseded for the purpose
of this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is, or is deemed to be,
incorporated herein by reference modifies or supersedes such statement. Any such
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.
II-2
<PAGE>
Item 6. Indemnification of Directors and Officers
Directors and officers of United Dominion may be indemnified against
liabilities, fines, penalties, and claims imposed upon or asserted against them
as provided in the Virginia Stock Corporation Act and the Restated Articles of
Incorporation of the Company (the "Articles"). Such indemnification covers all
costs and expenses reasonably incurred by a director or officer. The Board of
Directors, by a majority vote of a quorum of disinterested directors or, under
certain circumstances, independent counsel appointed by the Board of Directors,
must determine that the director or officer seeking indemnification was not
guilty of willful misconduct or a knowing violation of the criminal law. In
addition, the Virginia Stock Corporation Act and the Articles may under certain
circumstances eliminate the liability of directors and officers in a shareholder
or derivative proceeding.
If the person involved is not a director or officer of United Dominion,
the Board of Directors may cause United Dominion to indemnify, to the same
extent allowed for directors and officers of United Dominion, such person who
was or is a party to a proceeding, by reason of the fact that he is or was an
employee or agent of United Dominion, or is or was serving at the request of
United Dominion as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise.
Item 7. Exemption from Registration Claimed. Not Applicable.
II-3
<PAGE>
Item 8. Exhibits
Exhibit Number Description
4.1 Restated Articles of Incorporation of United Dominion,
dated January 21, 1999 (filed as Exhibit 4(a) (ii) to
the Company's Form S-3 Registration Statement, filed
with the Commission on February 24, 1999 (File No.
333-72885), and incorporated by reference herein)
4.2 Restated Bylaws of the Company (filed as Exhibit 3(b)
to the Company's Annual Report on Form 10-K for the
year ended December 31, 1998 (File No. 1-10524), and
incorporated by reference herein)
4.3 Specimen United Dominion common stock certificate
(filed as Exhibit 4(i) to United Dominion's Annual
Report on Form 10-K for the year ended December 31,
1993 (File No. 1-10524), and incorporated by reference
herein)
4.4 Rights Agreement dated as of January 27, 1998, between
United Dominion and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent (filed as Exhibit 1 to United
Dominion's Form 8-A Registration Statement dated
February 4, 1998 (File No. 1-10524) and incorporated
by reference herein)
4.5 Form of Rights Certificate (included in Exhibit 4.4)
4.6 Note Purchase Agreement dated as of January 15, 1993,
between United Dominion and CIGNA Property and
Casualty Insurance Company, Connecticut General Life
Insurance Company, Connecticut General Life Insurance
Company on behalf of one or more separate accounts,
Insurance Company of North America, Principal Mutual
Life Insurance Company, and Aid Association for
Lutherans (filed as Exhibit 6(c)(5) to United
Dominion's Form 8-A Registration Statement dated April
19, 1990 (File No. 1-10524), and incorporated by
reference herein)
5.1 Opinion of Hunton & Williams
23.1 Consent of Hunton & Williams (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on signature page)
Item 9. Undertakings
(a) The undersigned Company hereby undertakes:
II-4
<PAGE>
(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;
(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)(1)(i) and (a)(1)(ii) above do not
apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3, and
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 Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities being 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 Company hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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 this
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 for liabilities arising under the
Securities Act of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
(signatures on following page)
II-5
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Richmond, Commonwealth of Virginia on the 25th day of
May, 1999.
UNITED DOMINION REALTY TRUST, INC.
By /s/ John P. McCann
---------------------------------------------
John P. McCann
Chief Executive Officer
Power of Attorney
Know All Men and Women By These Presents that each individual whose
signature appears below constitutes and appoints John P. McCann and Katheryn E.
Surface, and each of them, such individual's true and lawful attorneys-in-fact
and agents with full power of substitution, for such individual and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this registration statement
and any registration statement related to the offering contemplated by this
registration statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act of 1933, as amended, and to file the same, with
all exhibits thereto, and all 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 in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his or her 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 has been signed by the following persons in the
capacities indicated on May 25, 1999.
Signature Title & Capacity
/s/ John P. McCann Chairman, Chief Executive Officer
- ------------------------------------------ (Principal Executive Officer) and
John P. McCann Director
/s/ John S. Schneider President and Director
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John S. Schneider
Vice President, Finance (Principal
/s/ Kevin W. Walsh Financial Officer)
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Kevin W. Walsh
II-6
<PAGE>
Assistant Vice President, Corporate
Controller (Principal Accounting
/s/ Robin R. Flanagan Officer)
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Robin R. Flanagan
/s/ Jeff C. Bane Director
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Jeff C. Bane
/s/ R. Toms Dalton, Jr. Director
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R. Toms Dalton, Jr.
/s/ Robert P. Freeman Director
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Robert P. Freeman
/s/ Jon A. Grove Director
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Jon A. Grove
/s/ Barry M. Kornblau Director
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Barry M. Kornblau
- ------------------------------------------ Director
James D. Klingbeil
/s/ Lynne B. Sagalyn Director
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Lynne B. Sagalyn
/s/ Mark J. Sandler
- ------------------------------------------ Director
Mark J. Sandler
II-7
<PAGE>
/s/ Robert W. Scharar
- ------------------------------------------- Director
Robert W. Scharar
II-8
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
Restated Articles of Incorporation of United Dominion,
4.1 dated January 21, 1999 (filed as Exhibit 4(a) (ii) to
the Company's Form S-3 Registration Statement, filed
with the Commission on February 24, 1999 (File No.
333-72885), and incorporated by reference herein).
4.2 Restated Bylaws of the Company (filed as Exhibit 3(b)
to the Company's Annual Report on Form 10-K for the
year ended December 31, 1998 (File No. 1-10524), and
incorporated by reference herein)
4.3 Specimen United Dominion common stock certificate
(filed as Exhibit 4(i) to United Dominion's Annual
Report on Form 10-K for the year ended December 31,
1993 (File No. 1-10524), and incorporated by reference
herein)
4.4 Rights Agreement dated as of January 27, 1998, between
United Dominion and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent (filed as Exhibit 1 to United
Dominion's Form 8-A Registration Statement dated
February 4, 1998 (File No. 1-10524) and incorporated
by reference herein)
4.5 Form of Rights Certificate (included in Exhibit 4.4)
4.6 Note Purchase Agreement dated as of January 15, 1993,
between United Dominion and CIGNA Property and
Casualty Insurance Company, Connecticut General Life
Insurance Company, Connecticut General Life Insurance
Company on behalf of one or more separate accounts,
Insurance Company of North America, Principal Mutual
Life Insurance Company, and Aid Association for
Lutherans (filed as Exhibit 6(c)(5) to United
Dominion's Form 8-A Registration Statement dated April
19, 1990 (File No. 1-10524), and incorporated by
reference herein)
5.1 Opinion of Hunton & Williams
23.1 Consent of Hunton & Williams (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on signature page)
Exhibit 5.1
June 9, 1999
Board of Directors
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Registration Statement on Form S-8
Shares of Common Stock
Gentlemen:
We are acting as counsel for United Dominion Realty Trust, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933,
as amended, of certain shares of Common Stock, $1 par value, of the Company
(the "Shares") and related rights to purchase Series C Junior Participating
Redeemable Preferred Stock, no par value (the "Rights"). The Shares and Rights
are described in the Registration Statement on Form S-8 of the Company (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") on June 9, 1999, relating to the Company's 1999
Open Market Purchase Program, which contemplates that the Shares will be
purchased in open market transactions. In connection with the filing of the
Registration Statement, you have requested our opinion concerning certain
corporate matters.
We are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the Commonwealth of Virginia.
2. Shares have been legally issued and are fully paid and nonassessable.
We consent to the filing of this opinion with the Commission as an exhibit
to the Registration Statement and to any references to us in the Prospectus
included therein.
Very truly yours,
/s/ Hunton & Williams
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333-000000) pertaining to the 1999 Open Market Purchase Program of
United Dominion Realty Trust, Inc. of our report dated January 27, 1999, with
respect to the consolidated financial statements and schedule of United Dominion
Realty Trust, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Richmond, Virginia
June 7, 1999
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 on American Apartment
Communities II, Inc., dated February 27, 1998, and our report on American
Apartment Communities II, L.P., dated February 12, 1998, included in the
Company's Current Report on Form 8-K, filed with the SEC on October 23, 1998,
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
San Francisco, California
June 7, 1999
