UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 1)
EVANS WITHYCOMBE RESIDENTIAL, INC.
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
299212 10 0
(CUSIP Number)
J. Grant Monahon, Esq.
Aldrich, Eastman & Waltch
225 Franklin Street
Boston, Massachusetts 02110
(617) 261-9000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
May 21, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box | |.
Check the following box if a fee is being paid with the statement | |. (A fee is
not required only if the reporting person (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
CUSIP No. 299212 10 0 Page 2 of 11 Pages
- ---------------------------------- -------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AEW Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 100%
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING NONE
PERSON
WITH 9 SOLE DISPOSITIVE POWER
100%
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,447,900
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* | |
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.7%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 299212 10 0 Page 3 of 11 Pages
- ---------------------------------- -------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AEW/L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 100%
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING None
PERSON
WITH 9 SOLE DISPOSITIVE POWER
100%
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,447,900
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* | |
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.7%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 299212 10 0 Page 4 of 11 Pages
- ---------------------------------- -------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AEW, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
7 SOLE VOTING POWER
NUMBER OF
SHARES 100%
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING None
PERSON
WITH 9 SOLE DISPOSITIVE POWER
100%
10 SHARED DISPOSITIVE POWER
None
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,447,900
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES* |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
10.7%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 299212 10 0 Page 5 of 11 Pages
- ---------------------------------- ------------------------------
Item 1. Security and issuer.
This statement relates to the common stock, $.01 par value per share
(the "Common Stock"), of Evans Withycombe Residential, Inc., a Maryland
corporation (the "Issuer"). The principal executive office of the Issuer is 6991
East Camelback Road, Scottsdale, Arizona 85018.
Item 2. Identify and background.
This statement is filed pursuant to Reg. ss.13(d)-1(f)(1) by AEW
Partners, L.P., a Delaware limited partnership (the "Partnership"), AEW/L.P., a
Delaware limited partnership ("AEWLP"), the general partner of the Partnership,
and AEW, Inc., a Massachusetts corporation (the "AEW Corp"), the general partner
of AEWLP.
The principal offices and the principal business address of the
Partnership, AEWLP and AEW Corp are c/o Aldrich, Eastman & Waltch, 225 Franklin
Street, Boston, MA 02110.
The Partnership has been formed for the purpose of acquiring, holding,
disposing of, managing, selling, exchanging and otherwise dealing in investments
and assets. AEWLP is the sole general partner of the Partnership and has been
formed for such purpose. AEW Corp is the sole general partner of AEWLP and has
been formed for such purpose.
AEW Corp has no controlling shareholder. The business of AEW Corp is
managed by its Board of Directors. The names, business addresses and present
principal occupations or employment of the officers and directors of AEW Corp
are shown on Exhibit C to this Schedule 13D. Officers and directors of AEW Corp
who are also shareholders of AEW Corp are identified on Exhibit C. All of the
officers and directors of AEW Corp are citizens of the United States of America.
During the last five years, none of the Partnership, AEWLP or AEW Corp
nor any officer or director of AEW Corp has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and amount of funds or other consideration.
In connection with the initial public offering of the Common Stock of
the Issuer in August 1994, the Partnership entered into a Property Contribution
Agreement with the Issuer, whereby the Partnership agreed to contribute 17
apartment communities and certain incidental rights to the Issuer in exchange
for 4,314,844 shares of Common Stock (with a value of $86.3 million) and $55.2
million in cash. This was a part of a series of "Formation Transactions" with
respect to the Issuer. A more detailed description of the "Formation
Transactions" is set forth in Exhibit D to this Schedule 13D filed on August 24,
1994. The initial public offering of the Common Stock of the Issuer was
consummated on August 17, 1994, at which time the Partnership contributed the
properties and incidental rights to the Issuer and the Issuer delivered the cash
and Common Stock described in the preceding sentences to the Partnership.
Item 4. Purpose of transaction.
The transactions requiring the filing of this statement were the
disposition of 1,787,500 shares and 79,444 shares of Common Stock by AEW
Partners, L.P., a Delaware limited partnership (the "Partnership"). The
transactions were entered into principally for investment purposes. The
Partnership granted to the underwriters of the public offering, pursuant to
which the Partnership sold 1,787,500 shares of Common Stock, an over-allotment
option to acquire up to 482,625 shares of Common Stock, of which 79,444 shares
have been sold as indicated.
Except as noted below, none of the Partnership, AEW/LP, a Delaware
limited partnership ("AEWLP"), the general partner of the Partnership, or AEW,
Inc., a Massachusetts corporation ("AEW Corp"), the general partner of AEWLP,
has any current plans to acquire additional securities of the Issuer or to
dispose of the Common Stock, although they may, in the future, do so, depending
on their analysis of the Issuer's business, prospects and financial condition,
the market for such stock, other available investment and business
opportunities, general economic conditions and other factors. The Partnership,
AEWLP and AEW Corp intend to monitor closely the investment of the Partnership
and may from time to time take advantage of opportunities presented to them.
None of the Partnership, AEWLP or AEW Corp. has any current plans or
proposals which would result in the acquisition by any such person of additional
securities of the Issuer, or, except as noted below, the disposition of
securities of the Issuer (Joseph F. Azrack, a shareholder, officer and director
of AEW Corp, however, also serves as a director of the Issuer and, in such
capacity, has an option to acquire 5,000 shares of Common Stock under the Stock
Option Plan which is exercisable within 60 days).
Item 5. Interest in securities of the issuer.
(a) The Partnership, AEWLP and AEW Corp own 2,447,900 shares of Common
Stock in the aggregate (10.7%). None of the Partnership, AEWLP or AEW Corp are
members of a group.
(b) The Partnership, AEWLP and AEW Corp have sole voting and
dispositive power with respect to the 2,447,900 shares of the Common Stock.
(c) Except as reported herein, to the best knowledge of the
Partnership, AEWLP and AEW Corp, none of the Partnership, AEWLP and AEW Corp nor
any officer or director of AEW Corp beneficially owns any Common Stock or has
effected any transactions in the Common Stock during the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, arrangements, understandings or relationships
with respect to securities of the issuer.
The Partnership has agreed, with certain exceptions, not to offer,
sell, contract to sell or otherwise dispose of any Common Stock for a period
expiring September 25, 1996, except pursuant to the over-allotment option
referred to in Item 4. The Issuer has granted certain demand and piggyback
registration rights to the Partnership.
<PAGE>
SCHEDULE 13D
CUSIP No. 299212 10 0 Page 6 of 11 Pages
- ---------------------------------- -------------------------------
The Partnership has agreed not to exercise such demand rights prior to January
31, 1997 or, at the Issuer's election and subject to certain conditions, March
31, 1997.
Item 7. Material to be filed as exhibits.
The following documents are filed as exhibits to this statement:
Exhibit A: Registration Rights Agreement.*
Exhibit B: Director Designation Agreement.*
Exhibit C: Officers and Directors of AEW, Inc.*
Exhibit D: Formation Transactions.*
Exhibit E: Agreement Concerning Joint Filing.*
Exhibit F: Amendment to Registration Rights Agreement.
- ------------
* Filed with original Schedule 13D, dated August 24, 1994.
<PAGE>
SCHEDULE 13D
CUSIP No. 299212 10 0 Page 7 of 11 Pages
- ---------------------------------- -------------------------------
SIGNATURES
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: June 25, 1996 AEW PARTNERS, L.P.
By: AEW/L.P., general partner
By: AEW, Inc., general partner
By: /s/ J. Grant Monahon
Name: J. Grant Monahon
Title: Vice President
Dated: June 25, 1996 AEW/L.P.
By: AEW, Inc., general partner
By: /s/ J. Grant Monahon
Name: J. Grant Monahon
Title: Vice President
Dated: June 25, 1996 AEW, INC.
By: /s/ J. Grant Monahon
Name: J. Grant Monahon
Title: Vice President
EXHIBIT 99.F
March 27, 1996
Evans Withycombe Residential, Inc.
6991 East Camelback Road, Suite A-200
Scottsdale, Arizona 85125
Re: Registration Rights and Related Matters
Gentlemen:
Reference is made to that certain Registration Rights Agreement, dated
as of August 17, 1994 (the "Registration Rights Agreement"), by and among Evans
Withycombe Residential, Inc. (the "Company"), AEW Partners, L.P. ("AEW"), CIIF
Associates II Limited Partnership ("Copley"), Stephen O. Evans ("Evans") and F.
Keith Withycombe ("Withycombe"). In connection with the proposed public offering
(the "Offering") of Common Stock of the Company, par value $.01 per share (the
"Common Stock"), of approximately 4,500,000 shares and in which the undersigned
have proposed to sell to the public certain shares of Common Stock held by them,
we confirm the following agreements and modifications of our rights and
obligations under the Registration Rights Agreement.
1. 1996 Public Offering. It is understood and agreed that a
Registration Statement on Form S-3, a draft of which has been previously
delivered to AEW and Copley, is expected to be filed by the Company with the
Securities and Exchange Commission (the "SEC") on or about March 29, 1996 for
the purpose of registering an aggregate of 4,500,000 shares of Common Stock (not
including up to an additional 675,000 shares to cover over-allotments, if any),
of which it is contemplated that (a) 2,000,000 shares will be sold by the
Company, (b) 1,787,500 shares will be sold by AEW and (c) 712,500 shares will be
sold by Copley. In the event that Merrill Lynch & Co., in its capacity as lead
managing underwriter of the Offering ("Merrill Lynch"), advises the Company that
the size of the Offering can be increased without having an adverse effect on
the success of the Offering, the Company, AEW and Copley will each be entitled
to increase the number of shares to be sold by them on a pro rata basis in an
aggregate amount designated by Merrill Lynch. In the event that the Company
elects not to increase the number of shares to be sold by it in the Offering,
AEW and Copley will be afforded the opportunity to further increase the number
of shares to be sold by them on a pro rata basis.
2. Lock Up. In connection with the request of Merrill Lynch, AEW and
Copley hereby agree and covenant that they will not offer, sell, contract to
sell, or otherwise dispose of or distribute (including by means of a
distribution to participants in the AEW and/or Copley funds or to beneficial
holders thereof (a "Share Distribution")) any shares of Common Stock of the
Company or any securities convertible into or exercisable or exchangeable for
shares of Common Stock for a period of 120 days after the closing of the
Offering.
3. Demand Registration. Notwithstanding anything to the contrary in the
Registration Rights Agreement or in this Agreement, each of AEW and Copley
hereby covenants and agrees not to demand further registration pursuant to the
Registration Rights Agreement prior to January 31, 1997 (the "Lock-out Date") so
long as the Offering is successfully completed on or before June 30, 1996;
provided, however, that in the event that the Company advises AEW and Copley
that it is in the process of preparing a Registration Statement which covers
primary shares as well as secondary shares to be sold by AEW and Copley and that
the Company reasonably expects to file such Registration Statement with the SEC
on or before March 31, 1997, then the Lock-out Date shall be extended to the
earlier to occur of (a) March 31, 1997 or (b) the date on which the Company
abandons the contemplated follow-on offering or otherwise elects not to file the
Registration Statement relating to such offering prior to March 31, 1997.
4. Over-Allotment Option. AEW and Copley hereby covenant and agree (i)
to grant to the underwriters an option to purchase an additional number of
shares of Common Stock equal to 15% of the total number of shares to be sold by
the Company, AEW and Copley in the Offering, to cover over-allotments, if any,
and (ii) the number of shares of Common Stock to be sold to the underwriters
pursuant to any exercise of such over-allotment option will be sold by the
Company and/or AEW and Copley in the relative amounts determined by the Company
(provided that the relative amounts to be sold by AEW and Copley will be pro
rata with the number of shares sold by them in the Offering); provided, however,
that the maximum number of shares that the Company may elect to sell pursuant to
the over-allotment option shall not exceed the product of (i) a fraction
determined by dividing the total number of shares sold by the Company in the
Offering by the total number of shares sold in the Offering and (ii) 15% of the
total number of shares sold in the Offering.
5. Waiver of Notice. Each of AEW and Copley hereby waives any notice
that may be required pursuant to the Registration Rights Agreement with respect
to the filing of the registration statement in connection with the Offering.
6. Further Assurances. Each of AEW and Copley hereby covenants and
agrees to take such additional actions and execute and deliver such additional
documents as may reasonably be required to complete the Offering, including,
without limitation, a "lock-up" letter addressed to the underwriters, the
underwriting agreement prepared in connection with the Offering, and a custody
agreement and power of attorney; provided, however, that none of such documents
shall contain provisions with respect to lock-ups more onerous than those set
forth herein.
7. Controlling Document. In the event that any provisions hereof are
deemed to be inconsistent with, or conflict with, the provisions of the
Registration Rights Agreement, the provisions of this Agreement shall control.
Except as otherwise provided herein, the Registration Rights Agreement shall
remain in full force and effect.
<PAGE>
If the foregoing correctly sets forth your understanding of the matters
described, please execute and return the enclosed copy of this Agreement.
AEW PARTNERS, L.P.
By: AEW/L.P., as General Partner
By: AEW, Inc., as General Partner
By: /s/ Thomas H. Nolan, Jr.
Name: Thomas H. Nolan, Jr.
Title: Vice President
CIIF Associates II Limited Partnership
By: Copley Advisors, Inc., its General Partner
By: /s/ Timothy B. Fraser
Name: Timothy B. Fraser
Title: Managing Director
Accepted and Agreed to as of the date first set forth above:
EVANS WITHYCOMBE
RESIDENTIAL, INC.
By: /s/ Stephen O. Evans
Name: Stephen O. Evans
Title: Chief Executive Officer
STEPHEN O. EVANS
Steven O. Evans
F. KEITH WITHYCOMBE
F. Keith Withycombe
