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As filed with the Securities and Exchange Commission on March 31, 1997
Registration 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
WALDEN RESIDENTIAL PROPERTIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 75-2506197
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
ONE LINCOLN CENTRE 75240
5400 LBJ FREEWAY, SUITE 400 (Zip Code)
DALLAS, TEXAS
(Address of Principal Executive Offices)
WALDEN RESIDENTIAL PROPERTIES, INC. 401(K) PLAN
(Full Title of the Plan)
DON R. DASEKE
WALDEN RESIDENTIAL PROPERTIES, INC.
ONE LINCOLN CENTRE
5400 LBJ FREEWAY, SUITE 400
DALLAS, TEXAS 75240
(Name and Address of Agent For Service)
(972) 788-0510
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
KENNETH L. BETTS
WINSTEAD SECHREST & MINICK P.C.
1201 ELM STREET
SUITE 5400
DALLAS, TEXAS 75270
CALCULATION OF REGISTRATION FEE
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<CAPTION>
=============================================================================================================
Proposed Proposed
Title of Amount Maximum Maximum
Securities to be to be Offering Price Aggregate Amount of
Registered(1) Registered Per Share(1) Offering Price(2) Registration Fee(3)
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par N/A N/A $5,000,000 $1,516
value $.01 par share
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended, this registration statement covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated solely for the purposes of calculating the registration fee.
(3) Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as
amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
1. PLAN INFORMATION.*
2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ----------
* Information required by Part I of Form S-8 to be contained in a
prospectus meeting the requirements of Section 10(a) of the Securities
Act of 1933 is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I of
Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below hereby are incorporated by reference into
this registration statement on Form S-8 (the "Registration Statement"). All
documents and reports subsequently filed by Walden Residential Properties, Inc.
(the "Company") pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the
date of this Registration Statement and before the filing of a post-effective
amendment to the Registration Statement which indicates that all shares of the
Company's common stock offered hereunder have been sold or which deregisters
all such shares then remaining unsold shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such documents.
1. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996 and
2. The description of the Company's common stock
contained in the registration statement on Form 8-A
under the Exchange Act filed by the Company with the
Commission on November 19, 1993.
ITEM 4. DESCRIPTION OF SECURITIES
Not required. The Registrant's Common Stock has been registered under
Section 12 of the Exchange Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation, as amended (the "Articles of
Incorporation"), provide certain limitations on the liability of the Company's
directors and officers for monetary damages to the Company. The Articles of
Incorporation 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 Articles of Incorporation require the Company to indemnify (a) the
Company's directors and officers whether serving the Company or at its request
any other entity who have
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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 unless it
is established that (i) his act or omission was material to the matter giving
rise to the proceeding and was committed in bad faith or was the result of
active and 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 and (b) other employees and agents of the Company to such
extent as shall be authorized by the Board of Directors or the Company's Bylaws
and be permitted by law. In addition, the Articles of Incorporation require
the Company to pay or reimburse, in advance of the final disposition of a
proceeding, reasonable expenses incurred by a director or officer who is a
party to a proceeding under procedures provided for under the Maryland General
Corporation Law (the "MGCL"). The Company's Bylaws also permit the Company to
provide such other and further indemnification or payment or reimbursement of
expenses as the Board of Directors deems to be in the interest of the Company
and as may be permitted by the MGCL for directors, officers and employees of
Maryland corporations.
The Company has entered into indemnification agreements with each of
the Company's officers and directors. The indemnification agreements require,
among other things, 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 indemnification agreements offer 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Winstead Sechrest & Minick P.C. regarding the
legality of the securities being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Winstead Sechrest & Minick P.C. (included as part
of Exhibit 5.1).
24.1 Power of Attorney (See Page II-5 of this Registration
Statement).
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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 this Registration Statement (or
the most recent post-effective amendment hereof) 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 and of
the estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities Exchange Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 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 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) 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 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 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.
The undersigned registrant 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 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.
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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 foregoing provisions, 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.
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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 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 Dallas, State of Texas, on March 31, 1997.
WALDEN RESIDENTIAL PROPERTIES, INC.
By: /s/ Don R. Daseke
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Name: Don R. Daseke
Title: Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Don R. Daseke and Mark S.
Dillinger, or either of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and on his behalf and in his name,
place and stead, in any and all capacities, to sign, execute, and file any and
all documents relating to this Registration Statement, including any and all
amendments, post-effective amendments, abbreviated registration statements
pursuant to Rule 462 under the Securities Act of 1933, exhibits and supplements
thereto, with any regulatory authority, granting unto said attorneys, 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 in order to
effectuate the same as fully to all intents and purposes as the undersigned
might or could do if personally present, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done.
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<CAPTION>
Signature Capacity Date
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<S> <C> <C>
/s/ Don R. Daseke Chairman of the Board, March 31, 1997
- ------------------------------------ Chief Executive Officer and
Don R. Daseke Director (Principal Executive Officer)
/s/ Mark S. Dillinger Executive Vice President and March 31, 1997
- ------------------------------------- Chief Financial Officer
Mark S. Dillinger (Principal Financial Officer and
Principal Accounting Officer)
/s/ Marshall B. Edwards President and Chief Acquisitions Officer March 31, 1997
- -----------------------------------
Marshall B. Edwards
/s/ Linda Walker Bynoe Director March 31, 1997
- ---------------------------------
Linda Walker Bynoe
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Francesco Galesi Director March 31, 1997
- -------------------------------------
Francesco Galesi
/s/ Arch K. Jacobson Director March 31, 1997
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Arch K. Jacobson
/s/ Louis G. Munin Director March 31, 1997
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Louis G. Munin
/s/ J. Otis Winters Director March 31, 1997
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J. Otis Winters
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, as amended, the
trustees of the Walden Residential Properties, Inc. 401(k) Plan have duly
caused this Registration Statement to be signed on behalf of the Plan by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on March 31, 1997.
/s/ Don R. Daseke
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Don R. Daseke
/s/ Mark S. Dillinger
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Mark S. Dillinger
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially Numbered
Exhibit Number Description Pages
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<S> <C>
5.1 Opinion of Winstead Sechrest &
Minick P.C. regarding the
validity of the securities being
registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Winstead Sechrest &
Minick P.C. (included as part of
Exhibit 5.1).
24.1 Power of Attorney (See Page II-5
of this Registration Statement).
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Exhibit 5.1
[WINSTEAD SECHREST & MINICK LETTERHEAD]
March 31, 1997
Walden Residential Properties, Inc.
One Lincoln Centre
5400 LBJ Freeway
Suite 400
Dallas, Texas 75240
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Walden Residential Properties, Inc., a
Maryland corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 ("Registration Statement"), filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), and the issuance of up to 5,000,000
of shares of the Company's common stock (the "Securities"), pursuant to the
Registration Statement.
In this capacity, we have examined the Company's charter and bylaws, the
proceedings of the Board of Directors of the Company relating to the issuance
of the Securities and such other statutes, certificates, instruments and
documents relating to the Company and matters of law as we have deemed
necessary to the issuance of this opinion.
Based upon the foregoing, we are of the opinion that the Securities to
be issued by the Company pursuant to the Registration Statement have been duly
authorized and, when issued as contemplated in the Registration Statement
against receipt of the purchase price provided for therein, will be validly
issued, fully paid and nonassessable.
The opinion expressed herein is as of the date hereof and is based on
the assumptions set forth herein and the laws and regulations currently in
effect, and we do not undertake and hereby disclaim any obligations to advise
you of any change with respect to any matter set forth herein. To the extent
that the opinion set forth herein is governed by laws other than the federal
laws of the United States, our opinion is based solely upon our review of the
General Corporation Law of the State of Maryland and upon certificates from
public officials or governmental offices of
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Walden Residential Properties, Inc.
March 31, 1997
Page 2
such state. We express no opinion as to any matter other than as expressly set
forth herein, and no opinion is to, or may, be inferred or implied herefrom.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to us under the heading "Legal
Matters" in the Prospectus contained therein. In giving our consent, we do not
hereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
WINSTEAD SECHREST & MINICK P.C.
By: /s/ Kenneth L. Betts
--------------------------------
KLB/dds
Enclosures
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Walden Residential Properties, Inc. on Form S-8 of our report dated March 3,
1997 (which expresses an unqualified opinion and includes an explanatory
paragraph relating to the change in method of accounting for the cost of
replacement carpets), with respect to the consolidated financial statements and
schedule of Walden Residential Properties, Inc. and our report dated March 3,
1995, with respect to the combined financial statements of Walden Predecessors
included in the Annual Report on Form 10-K of Walden Residential Properties,
Inc. for the year ended December 31, 1996.
DELOITTE & TOUCHE LLP
Dallas, Texas
March 28, 1997
