<PAGE>
As filed with the Securities and Exchange Commission on December 4, 1997
REGISTRATION STATEMENT NO. 333-22281
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
AVALON PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
MARYLAND 06-1379111
(State of incorporation) (I.R.S. Employer Identification Number)
15 RIVER ROAD
WILTON, CONNECTICUT 06897
(203) 761-6500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
_______________________________
THOMAS J. SARGEANT
CHIEF FINANCIAL OFFICER, TREASURER AND SECRETARY
AVALON PROPERTIES, INC.
15 RIVER ROAD
WILTON, CONNECTICUT 06897
(203) 761-6500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________________________
With copies to:
GILBERT G. MENNA, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box.[_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.[X]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.[X] 333-22281
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box.[X]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Amount of
Registered (1) Registered (2) Price Per Share (3) Aggregate Offering Price Registration Fee (2)
(2)(3)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities..................
Preferred Stock (4)..............
Common Stock (7).................
Common Stock Warrants (8) $21,000,000 (5) $21,000,000 $6,195
Total........................
==================================================================================================================================
</TABLE>
(1) The Securities registered hereunder may be sold separately, together or as
units with other Securities registered hereunder.
(2) In U.S. Dollars or the equivalent thereof denominated in one or more foreign
currencies or units of two or more foreign currencies or composite
currencies.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933, as amended. No
separate consideration will be received for Preferred Stock or Common Stock
issued from time to time upon conversion or exchange of Debt Securities or
Preferred Stock or upon exercise of the Warrants registered hereby. The
aggregate maximum public offering price of all Securities issued pursuant to
this Registration Statement will not exceed $21,000,000.
(4) Including such indeterminate number of shares of Preferred Stock as may be
issued from time to time at indeterminate prices or upon conversion of Debt
Securities registered hereby or upon exercise of Warrants registered hereby,
as the case may be.
(5) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(6) Calculated in accordance with Rule 457(o) under the Securities Act of 1933,
as amended.
(7) Including such indeterminate number of shares of Common Stock as may be
issued from time to time at indeterminate prices or upon conversion of Debt
Securities or Preferred Stock registered hereby or upon exercise of Warrants
registered hereby, as the case may be.
(8) Including such indeterminate number of Warrants or other rights, including
without limitation stock purchase or subscription rights, as may be issued
from time to time at indeterminate prices.
THE REGISTRANT HEREBY REQUEST THE SECURITIES AND EXCHANGE COMMISSION TO DECLARE
THIS REGISTRATION STATEMENT EFFECTIUVE IMMEDIATELY UPON FILING PURSUANT TO RULE
462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
================================================================================
<PAGE>
INCORPORATION BY REFERENCE
The Registrant's registration statement on Form S-3, Registration No. 333-
22281, previously filed by the Registrant with the Commission pursuant to the
Securities Act of 1933, as amended, is hereby incorporated by reference.
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
EXHIBIT NO DESCRIPTION
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered.*
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.*
12.1 Statements re: computation of ratios.*
23.1 Consent of Coopers & Lybrand L.L.P.*
23.2 Consents of Goodwin, Procter & Hoar LLP. (Included in Exhibits
5.1 and 8.1 hereto).
_________________
* Filed herewith
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Avalon
Properties, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing this post-effective amendment to its
Registration Statement on Form S-3 and has duly caused this post-effective
amendment to its Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Alexandria, Virginia, on
the 4th day of December, 1997
Avalon Properties, Inc.
By: /s/ Thomas J. Sargeant
------------------------------------
Thomas J. Sargeant, Chief Financial
Officer, Treasurer and Secretary
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.
SIGNATURE CAPACITY DATE
*Richard L. Michaux Chairman of the Board, Chief December 4, 1997
- -------------------------- Executive Officer and Director
RICHARD L. MICHAUX (Principal Executive Officer)
*Charles H. Berman President, Chief Operating December 4, 1997
- -------------------------- Officer and Director
CHARLES H. BERMAN
*Michael A. Futterman Director December 4, 1997
- --------------------------
MICHAEL A. FUTTERMAN
*Christopher B. Leinberger Director December 4, 1997
- --------------------------
CHRISTOPHER B. LEINBERGER
*Allan D. Schuster Director December 4, 1997
- --------------------------
ALLAN D. SCHUSTER
Director
- --------------------------
RICHARD W. MILLER
/s/ Thomas J. Sargeant Chief Financial Officer, December 4, 1997
- -------------------------- Treasurer and Secretary
THOMAS J. SARGEANT (Principal Financial Officer
and Principal Accounting Officer)
*by /s/ Thomas J. Sargeant December 4, 1997
- --------------------------
THOMAS J. SARGEANT
ATTORNEY-IN-FACT
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Securities being registered.*
8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.*
12.1 Statements re: computation of ratios.*
23.1 Consent of Coopers & Lybrand L.L.P.*
23.2 Consents of Goodwin, Procter & Hoar LLP. (Included in
Exhibits 5.1 and 8.1 hereto).
- -------------------
* Filed herewith.
<PAGE>
Exhibit 5.1
[LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP]
December 4, 1997
Avalon Properties, Inc.
5904 Richmond Highway
Alexandria, VA 22303
Re: Legality of Securities to be Registered Under
Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Avalon Properties,
Inc., a Maryland corporation (the "Company"), in connection with the Company's
post-effective amendment to its registration statement on Form S-3, File No.
333-22281 (the "Registration Statement") filed with the Securities and Exchange
Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Securities Act"), relating to an indeterminate amount of Debt Securities,
Preferred Stock, Common Stock and Warrants (as such terms are defined in the
Registration Statement) authorized for issuance under the Company's Amended and
Restated Articles of Incorporation (the "Charter"), with an aggregate public
offering price of up to $21,000,000 (collectively, the "Securities"). The
Registration Statement provides that the Securities may be offered separately or
together, in separate series, in amounts, at prices and on terms to be set forth
in one or more prospectus supplements (each a "Prospectus Supplement") to the
Prospectus contained in the Registration Statement.
In connection with rendering this opinion, we have examined the Charter of
the Company, as amended to the date hereof and on file with the Maryland State
Department of Assessments and Taxation; the Amended and Restated Bylaws of the
Company; such records of corporate proceedings of the Company as we deem
appropriate for the purposes of this opinion; and the Registration Statement and
the exhibits thereto.
We express no opinion concerning the laws of any jurisdictions other than
the laws of the United States of America and The Commonwealth of Massachusetts
and the Maryland General Corporation Law.
Based upon the foregoing, we are of the opinion that, when specifically
authorized for issuance by the Company's Board of Directors or an authorized
committee thereof (the "Authorizing Resolution") and when issued as described in
the Registration Statement and a
<PAGE>
Avalon Properties, Inc.
December 4, 1997
Page 2
Prospectus Supplement that is consistent with the Authorizing Resolution, and
upon receipt by the Company of the consideration provided for in the Authorizing
Resolution (which consideration is not less than the $.01 par value per share in
the case of Common Shares or Preferred Shares), the Securities will be legally
issued, fully paid and nonassessable, and in the case of Debt Securities and
Warrants binding obligations of the Company.
The foregoing assumes that all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the references therein to our firm under the caption
"Legal Matters" and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
<PAGE>
[LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP]
Exhibit 8.1
December 4, 1997
Avalon Properties, Inc.
15 River Road
Wilton, CT 06897
Ladies and Gentlemen:
These opinions are delivered to you in our capacity as counsel to Avalon
Properties, Inc. (the "Company") in connection with a post-effective amendment
to the Form S-3 Registration Statement, File No. 333-22281 (the "Registration
Statement") filed today by the Company with the Securities and Exchange
Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
relating to up to $21,000,000 of the Company's Debt Securities, Preferred Stock,
Common Stock and Warrants registered pursuant to Rule 462(b). These opinions
relate to the Company's qualification for federal income tax purposes as a real
estate investment trust (a "REIT") under the Internal Revenue Code of l986, as
amended (the "Code"), for taxable years commencing with the Company's taxable
year ending December 31, l993.
In rendering the following opinions, we have examined the Articles of
Incorporation and Bylaws of the Company and such other records, certificates and
documents as we have deemed necessary or appropriate for purposes of rendering
the opinions set forth herein.
We have reviewed the Registration Statement and the descriptions set forth
therein of the Company and its investments and activities. We have relied upon
the representations of officers of the Company that the Company has been and
will be owned and operated in such a manner that the Company has and will
continue to satisfy the requirements for qualification as a REIT under the Code.
We have neither independently investigated nor verified such representations,
and we assume that such representations are true, correct and complete, and that
all representations made "to the best knowledge and belief of any person(s) or
party(ies) are and will be true, correct and complete as if made without such
qualification. We assume that the Company has been and will be operated in
accordance with applicable laws and the terms and conditions of applicable
documents. In addition, we have relied on certain additional facts and
assumptions described below.
<PAGE>
Avalon Properties, Inc.
December 4, 1997
Page 2
In rendering the opinions set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the conformity
to the original documents of all documents submitted to us as copies, (iv) the
conformity of final documents to all documents submitted to us as drafts, (v)
the authority and capacity of the individual or individuals who executed any
such documents on behalf of any person, (vi) the accuracy and completeness of
all records made available to us and (vii) the factual accuracy of all
representations, warranties and other statements made by all parties. We have
also assumed, without investigation, that all documents, certificates,
representations, warranties and covenants on which we have relied in rendering
the opinions set forth below and that were given or dated earlier than the date
of this letter continue to remain accurate, insofar as relevant to the opinions
set forth herein, from such earlier date through and including the date of this
letter.
The conclusions set forth below are based upon the Code, the Income Tax
Regulations and Procedure and Administration Regulations promulgated thereunder
and existing administrative and judicial interpretations thereof, all of which
are subject to change. No assurance can therefore be given that the federal
income tax consequences described below will not be altered in the future.
Based upon and subject to the foregoing, we are of the opinion that (i)
commencing with the Company's taxable year ending December 31, 1993, the Company
has been organized in conforming with the requirements for qualification as a
real estate investment trut under the Code, (ii) the form of organization of the
Company, its operations through the date hereof and its proposed operations for
future periods, are such as to enable the Company to qualify as a REIT under the
Code for subsequent taxable years provided that in each such year the Company
meets the applicable asset composition, source of income, shareholder
diversification, distribution, recordkeeping and other requirements of the Code
necessary for a corporation to qualify as a REIT, and (iii) the statements in
the Registration Statement set forth under the caption "Federal Income Tax
Considerations," to the extent such information constitutes matters of law,
summaries of legal matters, or legal conclusions, have been reviewed by us and
are accurate in all respects.
We express no opinion with respect to the transactions described herein and
in the Registration Statement other than those expressly set forth herein. You
should recognize that our opinions are not binding on the Internal Revenue
Service ("the IRS") and that the IRS may disagree with the opinions contained
herein. Although we believe that our opinions will be sustained if challenged,
there can be no assurance that this will be the case. Except as specifically
discussed above, the opinions expressed herein are based upon the law as it
currently exists. Consequently, future changes in the law may cause the federal
income tax treatment of the transactions described herein to be materially and
adversely different from that described above.
<PAGE>
Avalon Properties, Inc.
December 4, 1997
Page 3
We consent to being named as Counsel to the Company in the Registration
Statement, to the references in the Registration Statement to our firm and to
the inclusion of this opinion letter as an exhibit to the Registration
Statement.
Very truly yours,
Goodwin, Procter & Hoar LLP
<PAGE>
EXHIBIT 12.1
AVALON PROPERTIES, INC.
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
<TABLE>
<CAPTION>
For nine months ended For the year ended
September 30, 1997 December 31, 1996
---------------------- ------------------
<S> <C> <C>
Net income (loss) before extraordinary items and gain
on sale of communities $47,301,000 $46,157,000
Add:
Portion of rents representative of the interest
factor 129,018 150,083
Interest on indebtedness 11,850,000 9,545,000
Amortization of deferred financing costs 712,000 1,842,000
Preferred stock dividends 14,742,000 10,422,000
----------- -----------
Adjusted net income $74,734,018 $68,116,083
=========== ===========
Fixed Charges:
Interest on indebtedness $11,850,000 $ 9,545,000
Capitalized interest 7,092,000 12,883,000
Amortization of deferred financing costs 712,000 1,842,000
Portion of rents representative of the interest
factor 129,018 150,083
Preferred stock dividends 14,742,000 10,422,000
----------- -----------
Total fixed charges $34,525,018 $34,842,083
=========== ===========
Ratio of earnings to combined fixed charges 2.16 1.95
<CAPTION>
Year ended December 31,
---------------------------------------------------------------------------
1993
----
1995 1994 11/18-12/31 1/1-11/17 1992
---- ---- ----------- --------- ----
Net income (loss) before extraordinary items and gain
on sale of communities $32,095,000 $28,016,000 $2,783,000 $(5,774,000) $(6,798,000)
Add:
Portion of rents representative of the interest
factor 117,248 67,593 8,048 62,812 40,418
Interest on indebtedness 11,056,000 5,687,000 632,000 24,557,000 23,092,000
Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291
Preferred stock dividends - - - - -
---------------------------------------------------------------------------
Adjusted net income $45,137,248 $34,861,186 $3,543,388 $19,550,101 $17,230,709
===========================================================================
Fixed Charges:
Interest on indebtedness $11,056,000 $ 5,687,000 $ 632,000 $24,557,000 $23,092,000
Capitalized interest 6,004,502 2,831,000 317,000 1,585,000 2,600,000
Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291
Portion of rents representative of the interest
factor 117,248 67,593 8,048 62,812 40,418
Preferred stock dividends - - - - -
---------------------------------------------------------------------------
Total fixed charges $19,046,750 $ 9,676,186 $1,077,388 $26,909,101 $26,628,709
===========================================================================
Ratio of earnings to combined fixed charges 2.37 3.60 3.29 0.73 0.65
</TABLE>
<PAGE>
AVALON PROPERTIES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
For nine months ended For the year ended
September 30, 1997 December 31, 1996
---------------------- ------------------
<S> <C> <C>
Net income (loss) before extraordinary items and gain
on sale of communities $47,301,000 $46,157,000
Add:
Portion of rents representative of the interest
factor 129,018 150,083
Interest on indebtedness 11,850,000 9,545,000
Amortization of deferred financing costs 712,000 1,842,000
----------- -----------
Adjusted net income $59,992,018 $57,694,083
=========== ===========
Fixed Charges:
Interest on indebtedness $11,850,000 $ 9,545,000
Capitalized interest 7,092,000 12,883,000
Amortization of deferred financing costs 712,000 1,842,000
Portion of rents representative of the interest
factor 129,018 150,083
----------- -----------
Total fixed charges $19,783,018 $24,420,083
=========== ===========
Ratio of earnings to combined fixed charges 3.03 2.36
<CAPTION>
Year ended December 31,
---------------------------------------------------------------------------
1993
----
1995 1994 11/18-12/31 1/1-11/17 1992
---- ---- ----------- --------- ----
Net income (loss) before extraordinary items and gain
on sale of communities $32,095,000 $28,016,000 $2,783,000 $(5,774,000) $(6,798,000)
Add:
Portion of rents representative of the interest
factor 117,248 67,593 8,048 62,812 40,418
Interest on indebtedness 11,056,000 5,687,000 632,000 24,557,000 23,092,000
Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291
---------------------------------------------------------------------------
Adjusted net income $45,137,248 $34,861,186 $3,543,388 $19,550,101 $17,230,709
===========================================================================
Fixed Charges:
Interest on indebtedness $11,056,000 $ 5,687,000 $ 632,000 $24,557,000 $23,092,000
Capitalized interest 6,004,502 2,831,000 317,000 1,585,000 2,600,000
Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291
Portion of rents representative of the interest
factor 117,248 67,593 8,048 62,812 40,418
---------------------------------------------------------------------------
Total fixed charges $19,046,750 $ 9,676,186 $1,077,388 $26,909,101 $26,628,709
===========================================================================
Ratio of earnings to combined fixed charges 2.37 3.60 3.29 0.73 0.65
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this post-effective amendment to
the registration statement on Form S-3, File No. 333-22281, of (i) our report
dated January 16, 1997 on our audits of the consolidated financial statements
and financial statement schedule of Avalon Properties, Inc. as of December 31,
1996 and 1995, and for each of the three years ended December 31, 1996 and (ii)
our reports dated September 22, 1997 and November 20, 1997 on our audits of the
combined statements of revenue and certain operating expenses of the Acquired
Communities for the year ended December 31, 1996. In addition, we consent to
the reference to our Firm under the caption "experts."
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
New York, New York
December 4, 1997
