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As filed with the Securities and Exchange Commission on January 7, 1998
REGISTRATION STATEMENT NO. 333-42519
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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:
JOHN O. NEWELL
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. [_]
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. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================================
Proposed Maximum
Title of Securities Being Amount to be Proposed Maximum Offering Aggregate Offering Price Amount of
Registered (1) Registered (2) Price Per Share (3) (2)(3) Registration Fee(2)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities..................
Preferred Stock (4).............. $397,243,562 (5) $397,243,562 $112,143
Common Stock (7).................
Common Stock Warrants (8)
Total........................
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</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. Pursuant to Rule 429, $17,099,375 is being carried forward from
Registration Statement No. 333-22281. The amount of the filing fee
previously paid in connection with such securities is $5,044.
(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 $400,000,000.
(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 AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee are estimated):
<TABLE>
<CAPTION>
<S> <C>
Registration fee $112,143
Blue Sky fees and expenses 2,000
Legal fees and expenses 25,000
Accounting fees and expenses 15,000
Printing and engraving expenses 20,000
Miscellaneous 1,857
--------
TOTAL $176,000
</TABLE>
- - --------------------------
All expenses in connection with the issuance and distribution of the
securities being offered will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation and Bylaws, each as amended and
restated, provide certain limitations on the liability of the Company's
directors and officers for monetary damages to the Company. The Articles of
Incorporation and the Bylaws obligate the Company to indemnify its directors and
officers, and permit the Company to indemnify its employees and other agents,
against certain liabilities incurred in connection with their service in such
capacities. These provisions could reduce the legal remedies available to the
Company and the stockholders against these individuals.
The Company's Bylaws generally require it to indemnify its officers,
directors and certain other parties to the fullest extent permitted from time to
time by Maryland law, subject to certain limitations. The Maryland General
Corporation Law ("MGCL") permits a corporation to indemnify (a) any present or
former director or officer who has been successful, on the merits or otherwise,
in the defense of a proceeding to which he was made a party by reason of his
service in that capacity, against reasonable expenses incurred by him in
connection with the proceeding and (b) any present or former director or officer
against any claim or liability unless it is established that (i) his act or
omission was committed in bad faith or was the result of active or deliberate
dishonesty, (ii) he actually received an improper personal benefit in money,
property or services or (iii) in the case of a criminal proceeding, he had
reasonable cause to believe that his act or omission was unlawful. The MGCL
also permits the Company to provide indemnification and advance expenses to a
present or former director or officer who served a predecessor of the Company in
such capacity, and to any employee or agent of the Company or a predecessor of
the Company.
The stockholders of the Company have approved, and the Company has entered
into, indemnification agreements with each of the Company's officers and
directors. The indemnification agreements generally require, subject to certain
limitations, that the Company indemnify its officers and directors to the
fullest extent permitted by law and advance to the officers and directors all
related expenses, subject to reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also indemnify and advance
all expenses incurred by officers and directors seeking to enforce their rights
under the indemnification agreements and cover officers and directors under the
Company's directors' and officers' liability insurance. Although the form of
indemnification agreement offers substantially the same scope of coverage
afforded by law, it provides assurance to directors and officers that
indemnification will be available because such contracts cannot be modified
unilaterally in the future by the Board of Directors or the Stockholders to
eliminate the rights they provide.
II-1
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ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
1.1 Form of Underwriting Agreement.**
4.1 Amended and Restated Articles of Incorporation. (Incorporated by
reference to Exhibit 3.1 of the Current Report on Form 8-K of Avalon
Properties, Inc., filed on October 23, 1996.)
4.2 Amended and Restated Bylaws. (Incorporated by reference to Exhibit
3(ii) of the Current Report on Form 8-K of Avalon Properties, Inc., filed on
December 4, 1996.)
4.3 Form of Senior Indenture. (Incorporated by reference to the
corresponding exhibit to the Registration Statement on Form S-3 of Avalon
Properties, Inc., Registration No. 33-94512.)
4.4 Form of Subordinated Indenture. (Incorporated by reference to the
corresponding exhibit to the Registration Statement on Form S-3 of Avalon
Properties, Inc., Registration No. 33-94512.)
4.5 Form of Preferred Stock Certificate.**
4.6 Form of Warrant Agreement.**
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 Calculation of Ratios of Earnings to Fixed Charges. (Incorporated by
reference to the corresponding exhibit to Post-Effective Amendment No. 1 to
the Registration Statement on Form S-3 of Avalon Properties, Inc.,
Registration No. 333-22281 filed pursuant to Rule 462(b) on December 4, 1997.)
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).
24.1 Power of Attorney. (See page II-5.)
25.1 Statement of Eligibility and Qualification of Senior Trustee. (Incorporated by
reference to the corresponding exhibit to the Registration Statement on Form S-3
of Avalon Properties, Inc., Registration No. 33-94512.)
25.2 Statement of Eligibility and Qualification of Subordinated Trustee.**
</TABLE>
_________________
* Previously filed.
** To be filed by amendment
ITEM 17. UNDERTAKINGS.
(a) 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;
(ii) To reflect in the prospectus any acts 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 the 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 offering
range may be reflected in the form of 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%
II-2
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change in the maximum aggregate offering price set forth in
"Calculation of Registration Fee" table in the effective
registration statement; and
(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 the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein 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 undersigned registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference
in the registration statement;
(2) 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 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; and
(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 registrant hereby undertakes that, for 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 15(d) of the
Securities Exchange Act of 1934 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) The registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to securityholders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) 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 the provisions
described under Item 15 above, 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 of 1933 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
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, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
(e) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission
under Section 305(b)(2) of the Act.
II-3
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(f) The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to set
forth the results of the subscription offer, the transactions by the
underwriters during the subscription period, the amount of
unsubscribed securities to be purchased by the underwriters, and the
terms of any subsequent reoffering thereof. If the public offering by
the underwriters is to be made on terms differing from those set forth
on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
(g) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
II-4
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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 on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Alexandria, Virginia, on the 6th day of
January, 1998.
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.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C> <C>
* Chairman of the Board, Chief
- - ----------------------------- Executive Officer and Director
RICHARD L. MICHAUX (Principal Executive Officer)
* President, Chief Operating Officer
- - ----------------------------- and Director
CHARLES H. BERMAN
* Director
- - -----------------------------
MICHAEL A. FUTTERMAN
* Director
- - -----------------------------
CHRISTOPHER B. LEINBERGER
* Director
- - -----------------------------
RICHARD W. MILLER
* Director
- - -----------------------------
ALLAN D. SCHUSTER
/s/ Thomas J. Sargeant Chief Financial Officer, January 6, 1998
- - ----------------------------- Treasurer and Secretary
THOMAS J. SARGEANT (Principal Financial Officer
and Principal Accounting Officer)
*by:/s/ Thomas J. Sargeant January 6, 1998
- - -----------------------------
THOMAS J. SARGEANT
Attorney-in-Fact
</TABLE>
