<PAGE>
As filed with the Securities and Exchange Commission on October 1, 1999
File No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITY RESIDENTIAL PROPERTIES TRUST
(Exact name of Registrant as specified in its charter)
Maryland 13-3675988
(State or other jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606 (312) 474-1300
(Address of Principal Executive Offices)
LEXFORD SUBSTITUTE OPTIONS
(Full Title of the Plan)
Douglas Crocker II
President and Chief Executive Officer
Two North Riverside Plaza, Suite 400
Chicago, Illinois 60606
(Name and Address of Agent for Service)
(312) 474-1300
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
William C. Hermann, Esq.
Rudnick & Wolfe
203 North LaSalle Street,
Suite 1800
Chicago, Illinois 60601
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares of Beneficial Interest,
$.01 par value......................... 84,946 $30.72 $2,609,542 $726
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for purposes of calculating the amount of the
registration fee based upon the weighted average price at which the
options may be exercised, pursuant to Rule 457(h)(1).
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have heretofore been filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference in this Registration Statement and shall be deemed to
be a part hereof:
(a) Annual Report on Form 10-K for the year ended December 31, 1998;
(b) Quarterly Reports on Form 10-Q for the quarterly periods
ending March 31, 1999 and June 30, 1999;
(c) Current Reports on Form 8-K dated June 25, 1998, July 23,
1998, (report on Form 8-K and Form 8 K/A), February 24, 1999
and June 30, 1999 (two reports on Form 8-K); and
(d) Report on Form 8-A/A dated August 10, 1993 (File No. 1-12252).
All documents subsequently filed by the Registrant with the Commission
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, shall
be deemed to be incorporated herein by reference and shall be deemed a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Errol R. Halperin, a partner at Rudnick & Wolfe, is a trustee of the
Registrant. Attorneys of Rudnick & Wolfe beneficially own less than 1% of the
outstanding Common Shares of Beneficial Interest of the Registrant, either
directly or upon the exercise of options.
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
Under Maryland law, a REIT organized in Maryland is permitted to
eliminate, by provision in its Declaration of Trust, the liability of its
trustees, officers and shareholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit or profit in money,
property or services or (b) active and deliberate dishonesty established by
final judgment as being material to the cause of action. The Declaration of
Trust of EQR includes such a provision eliminating the liability of its
trustees, officers and shareholders to the maximum extent permitted by Maryland
law.
The Maryland REIT law permits a Maryland real estate investment trust
to indemnify and advance expenses to its trustees, officers, employees and
agents to the same extent as permitted by the Maryland General Corporation Law
for directors and officers of Maryland corporations. The Maryland General
Corporation Law permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements and reasonable expenses actually incurred by them in connection with
any proceeding to which they may be made a party by reason of their service in
those or other capacities unless it is established that (a) the act or omission
of the director or officer was material to the matter giving rise to the
proceeding and (i) was committed in bad faith or (ii) was the result of active
and deliberate dishonesty, (b) the director or officer actually received an
improper personal benefit in money, property or services or (c) in the case of
any criminal proceeding, the director or officer had reasonable cause to believe
that the act or omission was unlawful. However, under the Maryland General
Corporation Law, a Maryland corporation may not indemnify for an adverse
judgment in a suit by or in the right of the corporation or for a judgment of
liability on the basis that personal benefit was improperly received, unless in
either case a court orders indemnification and then only for expenses. In
addition, the Maryland General Corporation Law permits a corporation to advance
reasonable expenses to a director or officer
II-1
<PAGE>
upon the corporation's receipt of (a) a written affirmation by the director or
officer of his good faith belief that he has met the standard of conduct
necessary for indemnification by the corporation and (b) a written undertaking
by him or on his behalf to repay the amount paid or reimbursed by the
corporation if it shall ultimately be determined that the standard of conduct
was not met.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to trustees and
officers of the Registrant pursuant to the foregoing provisions or otherwise,
the Registrant has been advised that, although the validity and scope of the
governing statute have not been tested in court, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In addition, indemnification
may be limited by state securities laws.
The partnership agreements of ERP Operating Limited Partnership, of
which the Registrant is the general partner, and Equity Residential Properties
Management Limited Partnership (the "Management Partnership") of which the
Operating Partnership is general partner, also provide for indemnification of
the Registrant and its officers and trustees to the same extent indemnification
is provided to officers and trustees of the Registrant in its declaration of
trust, and limit the liability of the Registrant and its officers and trustees
to the Operating Partnership and the Management Partnership and their respective
partners to the same extent the liability of the officers and trustees of the
Registrant to the Registrant and its shareholders is limited under the
Registrant's declaration of trust.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index which is incorporated herein by reference.
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the 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. 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
end of the estimated maximum offering range may be reflected
in the form of the prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in this registration statement;
PROVIDED, HOWEVER, that subparagraphs (i) and (ii) above do not apply
if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in the periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this registration statement.
II-2
<PAGE>
(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 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 further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 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 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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to existing provisions or arrangements whereby the
registrant may indemnify a trustee, officer or controlling person of the
registrant against liabilities arising under the Securities Act of 1933, 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 Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a trustee, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, 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,
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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Chicago, State of Illinois, on October 1, 1999.
EQUITY RESIDENTIAL PROPERTIES TRUST
By: /s/ Douglas Crocker II
-----------------------------------------
Douglas Crocker II, President, Chief Executive
Officer and Trustee
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, hereby constitutes and appoints Douglas Crocker II, David
Neithercut and Bruce C. Strohm, or any of them, his attorneys-in-fact and
agents, with full power of substitution and resubstitution for him in any and
all capacities, to sign any or all amendments or post-effective amendments to
this Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith or in connection with the registration
of the Securities under the Exchange Act, with the Securities and Exchange
Commission, granting unto each of such attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary in connection with such matters as fully to all intents and purposes
as he might or could do in person, hereby ratifying and confirming all that each
of such attorneys-in-fact and agents 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 has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
Chairman of the Board of Trustees October 1, 1999
- ------------------------------------
Samuel Zell
/s/ Douglas Crocker II President, Chief Executive Officer and Trustee October 1, 1999
- ------------------------------------
Douglas Crocker II
/s/ David J. Neithercut Executive Vice President and Chief Financial October 1, 1999
- ------------------------------------ Officer
David J. Neithercut
/s/ Michael J. McHugh Executive Vice President, Chief Accounting October 1, 1999
- ------------------------------------ Officer and Treasurer
Michael J. McHugh
/s/ Gerald A. Spector Executive Vice President, Chief Operating October 1, 1999
- ------------------------------------ Officer and Trustee
Gerald A. Spector
/s/ Sheli Z. Rosenberg Trustee October 1, 1999
- ------------------------------------
Sheli Z. Rosenberg
/s/ James D. Harper, Jr. Trustee October 1, 1999
- ------------------------------------
James D. Harper, Jr.
/s/ Errol R. Halperin Trustee October 1, 1999
- ------------------------------------
Errol R. Halperin
/s/ John W. Alexander Trustee October 1, 1999
- ------------------------------------
John Alexander
/s/ B. Joseph White Trustee October 1, 1999
- ------------------------------------
B. Joseph White
/s/ Henry H. Goldberg Trustee October 1, 1999
- ------------------------------------
Henry H. Goldberg
/s/ Edward Lowenthal Trustee October 1, 1999
- ------------------------------------
Edward Lowenthal
<PAGE>
/s/ Jeffrey H. Lynford Trustee October 1, 1999
- ------------------------------------
Jeffrey H. Lynford
/s/ Stephen O. Evans Trustee October 1, 1999
- ------------------------------------
Stephen O. Evans
/s/ Boone A. Knox Trustee October 1, 1999
- ------------------------------------
Boone A. Knox
/s/ Michael N. Thompson Trustee October 1, 1999
- ------------------------------------
Michael N. Thompson
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Exhibit Numbered
Number Description Page
------ ----------- ------------
<C> <S> <C>
4.1 * Second Amended and Restated Declaration of Trust, as amended
4.2 ** Amendment to Second Amended and Restated Declaration of
Trust, as amended
4.3 *** Third Amended and Restated Bylaws
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included
in Exhibit 5)
24 Power of Attorney (filed as part of the signature page to
the Registration Statement)
</TABLE>
- -------------------
* Included as Exhibit 3.1 to the Registrant's Current Report on Form 8-K
dated May 30, 1997 and incorporated herein by reference.
** Included as Exhibit A to Appendix B to the Registrant's Proxy Statement
dated August 27, 1999 and incorporated herein by reference.
*** Included as Exhibit 3.2 to the Registrant's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1999 and incorporated
herein by reference.
<PAGE>
FILE NUMBER
873697
October 1, 1999
Equity Residential Properties Trust
Suite 400
2 North Riverside Plaza
Chicago, Illinois 60606
Re: Equity Residential Properties Trust:
Registration Statement on Form S-8
-------------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Equity Residential
Properties Trust, a Maryland real estate investment trust (the "Company"), in
connection with certain matters of Maryland law arising out of the registration
of 84,946 common shares (the "Shares") of beneficial interest, $.01 par value
per share, of the Company ("Common Shares") covered by the above-referenced
Registration Statement, and all amendments thereto (the "Registration
Statement"), filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933 Act"). The
Shares are issuable by the Company upon the exercise of options ("EQR Options")
to purchase Common Shares that were converted from options ("Lexford Options")
to purchase common shares of beneficial interest, $.01 par value per share, of
Lexford Residential Trust, a Maryland real estate investment trust ("Lexford"),
in the merger of Lexford with and into the Company (the "Merger"), pursuant to
the Agreement and Plan of Merger, dated as of June 30, 1999, by and between the
Company and Lexford (the "Merger Agreement"). Capitalized terms used but not
defined herein shall have the meanings given to them in the Registration
Statement.
In connection with our representation of the Company, and as a
basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement;
<PAGE>
Equity Residential Properties Trust
October 1, 1999
Page 2
2. The Second Amended and Restated Declaration of Trust of the
Company (the "Declaration of Trust") including the Articles of Merger relating
to the Merger and the conversion of Lexford Options into EQR Options in the
Merger, certified as of a recent date by the State Department of Assessments and
Taxation of Maryland (the "SDAT");
3. The Third Amended and Restated Bylaws of the Company,
certified as of the date hereof by its Secretary;
4. A certificate of the SDAT as to the good standing of the
Company, dated as of a recent date;
5. Resolutions adopted by the Board of Trustees of the Company
relating to the issuance and registration of the Shares in connection with the
Merger (the "Resolutions"), certified as of the date hereof by the Secretary of
the Company;
6. The Merger Agreement;
7. A specimen of the certificate evidencing the Common Shares,
certified as of the date hereof by the Secretary of the Company;
8. A certificate executed by the Secretary of the Company,
dated the date hereof; and
9. Such other documents and matters as we have deemed
necessary or appropriate to express the opinion set forth below, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the
following:
1. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of
a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any
of the Documents has duly and validly executed and delivered each of the
Documents to which such party is a signatory, and such party's obligations set
forth therein are legal, valid and binding and are enforceable in accordance
with all stated terms.
<PAGE>
Equity Residential Properties Trust
October 1, 1999
Page 3
4. Any Documents submitted to us as originals are authentic.
Any Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All statements and information contained in the Documents are true and complete.
There has been no oral or written modification of or amendment to any of the
Documents, and there has been no waiver of any provision of any of the
Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued in violation of any
restriction or limitation contained in the Declaration of Trust.
6. All requisite trust action was taken by Lexford to validly
approve the Merger under Maryland law.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The Company is a real estate investment trust duly formed
and existing under and by virtue of the laws of the State of Maryland and is in
good standing with the SDAT.
2. The Shares have been duly authorized for issuance and, when
and if issued and delivered against payment therefor in accordance with the
Resolutions and the Merger Agreement, will be (assuming that upon any such
issuance the total number of Common Shares issued and outstanding will not
exceed the total number of Common Shares that the Company is then authorized to
issue under the Declaration of Trust) validly issued, fully paid and
nonassessable.
The foregoing opinion is limited to the substantive laws of
the State of Maryland and we do not express any opinion herein concerning any
other law. We express no opinion as to compliance with any federal or state
securities laws, including the securities laws of the State of Maryland, or as
to federal or state laws regarding fraudulent transfers. We assume no obligation
to supplement this opinion if any applicable law changes after the date hereof
or if we become aware of any fact that might change the opinion expressed herein
after the date hereof.
This opinion is being furnished to you for submission to the
Commission as an exhibit to the Registration Statement and, accordingly, may not
be relied upon by, quoted in any manner to, or delivered to any other person or
entity (except Rudnick &
<PAGE>
Equity Residential Properties Trust
October 1, 1999
Page 4
Wolfe, counsel to the Company) without, in each instance, our prior written
consent.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of the name of our firm therein. In
giving this consent, we do not admit that we are within the category of persons
whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
<PAGE>
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Equity Residential Properties Trust related to the Lexford Substitute
Options of our reports indicated below with respect to the financial statements
indicated below included in Equity Residential Properties Trust's filings as
indicated below, filed with the Securities and Exchange Commission.
<TABLE>
<CAPTION>
- ------------------------------------------------------- -------------------------- --------------------------
Date of Auditors'
Financial Statements Report Filing
- ------------------------------------------------------- -------------------------- --------------------------
<S> <C> <C>
Consolidated financial statements and schedule of February 17, 1999 1998 Annual
Equity Residential Properties Trust at December 31, except for Note 24, Report on Form 10-K
1998 and 1997 and for each of the three years in as to which the date
the period ended December 31, 1998 is March 5, 1999
Statement of Revenue and Certain Expenses of Sonterra April 30, 1998 Current Report on
at Foothill Ranch for the year ended December 31, 1997 Form 8-K dated June
25, 1998
Combined Statement of Revenue and Certain Expenses of April 30, 1998 Current Report on
the Lincoln Property Company Probable Properties for Form 8-K dated June
the year ended December 31, 1997 25, 1998
Statement of Revenue and Certain Expenses of The May 1, 1998 Current Report on
Emerson Place Apartments for the year ended December Form 8-K dated June
31, 1997 25, 1998
Combined Statement of Revenue and Certain Expenses of May 1, 1998 Current Report on
The Magnum Probable Properties for the year ended Form 8-K dated June
December 31, 1997 25, 1998
Combined Statement of Revenue and Certain Expenses of May 29, 1998 Current Report on
the Frederick Probable Properties for the year ended Form 8-K dated June
December 31, 1997 25, 1998
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------- -------------------------- --------------------------
Date of Auditors'
Financial Statements Report Filing
- ------------------------------------------------------- -------------------------- --------------------------
<S> <C> <C>
Statement of Revenue and Certain Expenses of Harbor June 2, 1998 Current Report on
Pointe for the year ended December 31, 1997 Form 8-K dated June
25, 1998
Statement of Revenue and Certain Expenses of The June 4, 1998 Current Report on
Fairfield for the year ended December 31, 1997 Form 8-K dated June
25, 1998
Combined Statement of Revenue and Certain Expenses of June 4, 1998 Current Report on
the Lakes at Vinings Apartments and Martins Landing Form 8-K dated June
Apartments Probable Properties for the year ended 25, 1998
December 31, 1997
Statement of Revenue and Certain Expenses of The June 9, 1998 Current Report on
Northridge Apartments for the year ended December 31, Form 8-K dated June
1997 25, 1998
Combined Statement of Revenue and Certain Expenses of June 10, 1998 Current Report on
TCRS Properties for the year ended December 31, 1997 Form 8-K dated June
25, 1998
Statement of Revenue and Certain Expenses of the June 11, 1998 Current Report on
Portside Towers Apartments for the year ended Form 8-K dated June
December 31, 1997 25, 1998
Statement of Revenue and Certain Expenses of The June 11, 1998 Current Report on
Coconut Palm Club Apartments for the year ended Form 8-K dated June
December 31, 1997 25, 1998
Combined Statement of Revenue and Certain Expenses of June 18, 1998 Current Report on
The Focus Group Properties for the year ended Form 8-K dated June
December 31, 1997 25, 1998
</TABLE>
/S/ ERNST & YOUNG LLP
Chicago, Illinois
October 1, 1999
<PAGE>
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 January 16, 1998
included in Equity Residential Properties Trust's Form 8-K (No. 001-12252) dated
July 23, 1998.
Arthur Andersen LLP /s/ Arthur Andersen LLP
Atlanta, Georgia
October 1, 1999
