As filed with the Securities and Exchange Commission on April 1, 1998
Registration No. 333-______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
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
of Incorporation or Organization) Identification No.)
One Lincoln Centre 75240
5400 LBJ Freeway, Suite 400 (Zip Code)
Dallas, Texas
(Address of Principal Executive Offices)
WALDEN RESIDENTIAL PROPERTIES, INC. EMPLOYEE STOCK
PURCHASE PLAN
(Full Title of the Plan)
Mark S. Dillinger
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
<TABLE>
<CAPTION>
Title of Proposed Proposed
Securities Amount Maximum Maximum
to be to be Offering Price Aggregate Amount of
Registered Registered Per Share (1) Offering Price (1) Registration Fee (2)
- ---------- ---------- -------------- ------------------ --------------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 par share 200,000 $24.69 $4,938,000 $1,457
</TABLE>
(1) Estimated solely for the purposes of calculating the
registration fee.
(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as
amended, the registration fee has been calculated based on the
average of the high and low prices of the Registrant's common
stock on March 24, 1998 (as reported on the New York Stock
Exchange).
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.
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 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, 1997; 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 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 ith 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).
99.1 Walden Residential Properties, Inc. Employee Stock
Purchase Plan.
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.
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.
<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 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, 1998.
WALDEN RESIDENTIAL PROPERTIES, INC.
By: /s/ Marshall B. Edwards
-----------------------
Name: Marshall B. Edwards
Title: Chief Executive Officer
and President
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Marshall B.
Edwards 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.
Signature Capacity Date
--------- -------- ----
/s/ Marshall B. Edwards Chief Executive Officer, March 31, 1998
- ------------------------------ President, Chief Acquisitions
Marshall B. Edwards Officer and Director
(Principal Executive Officer)
/s/ Mark S. Dillinger Executive Vice President, March 31, 1998
- ------------------------------ Chief Financial Officer and
Mark S. Dillinger Director (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Michael E. Masterson Chairman of the Board of March 31, 1998
- ------------------------------ Directors and Director
Michael E. Masterson
/s/ Linda Walker Bynoe Director March 31, 1998
- ------------------------------
Linda Walker Bynoe
/s/ Don R. Daseke Director March 31, 1998
- ------------------------------
Don R. Daseke
/s/ Maxwell B. Drever Director March 31, 1998
- ------------------------------
Maxwell B. Drever
/s/ Francesco Galesi Director March 31, 1998
- ------------------------------
Francesco Galesi
/s/ Robert L. Honstein Director March 31, 1998
- ------------------------------
Robert L. Honstein
/s/ Arch K. Jacobson Director March 31, 1998
- ------------------------------
Arch K. Jacobson
/s/ Louis G. Munin Director March 31, 1998
- ------------------------------
Louis G. Munin
/s/ J. Otis Winters Director March 31, 1998
- ------------------------------
J. Otis Winters
DB980750065
033198 v8
111:14199-19
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
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).
99.1 Walden Residential Properties, Inc.
Employee Stock Purchase Plan.
Exhibit 5.1
WINSTEAD SECHREST & MINICK
5400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2199
Direct Dial: (214) 745-5724
[email protected]
March 27, 1998
Walden Residential Properties, Inc.
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 200,000 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 and the 1998
Non-Qualified Employee Stock Purchase Plan (the "Plan"), filed as
an exhibit thereto, against receipt of the purchase price
provided for in the Plan, 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 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
Exhibit 23.1
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 25, 1998, appearing in the Annual Report
on Form 10-K of Walden Residential Properties, Inc. for the year
ended December 31, 1997.
/s/ Deloitte & Touche LLP
- -------------------------
DELOITTE & TOUCHE LLP
Dallas, Texas
March 31, 1998
Exhibit 99.1
WALDEN RESIDENTIAL PROPERTIES, INC.
1998 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
(Effective April 1, 1998)
<PAGE>
Section 1. Purpose
The primary purpose of this Plan is to encourage Stock
ownership by each Eligible Employee and each Eligible Director in
the belief that such Stock ownership will increase his or her
interest in the success of Walden Residential Properties, Inc., a
Maryland corporation (the "Company").
Section 2. Definitions
2.1. The term "Account" shall mean the separate bookkeeping
account established and maintained by the Plan Administrator for
each Participant for each Purchase Period to record the
contributions made on his or her behalf to purchase Stock under
this Plan.
2.2. The term "Beneficiary" shall mean the person designated
as such in accordance with Section 8.
2.3. The term "Board" shall mean the Board of Directors of the
Company.
2.4. The term "Closing Price" for the first business day of
any Purchase Period shall mean the closing price for a share of
Stock as reported for such day in The Wall Street Journal or in any
successor to The Wall Street Journal or, if there is no such
successor, in any publication selected by the Committee or, if no
such closing price is so reported for such day, the first such
closing price which is so reported after such day or, if no such
closing price is so reported during the two week period which
begins on the first day of such Purchase period, the fair market
value of a share of Stock as determined as the first day of such
Purchase Period by the Committee and for the last business day of
a Purchase Period shall mean the closing price for a share of Stock
as reported for such day in The Wall Street Journal or in any
successor to The Wall Street Journal or, if there is no such
successor, in any publication selected by the Committee or, if no
such closing price is so reported for such day, the last such
closing price which is so reported before such day or, if no such
closing price is so reported during the two week period which ends
on the last day of such Purchase Period, the fair market value of
a share of Stock as determined as of the last day of such Purchase
Period by the Committee.
2.5. The term "Committee" shall mean the Compensation
Committee of the Board.
2.6. The term "Company" shall mean the Walden Residential
Properties, Inc., a Maryland corporation.
2.7. The term "Election Form" shall mean the form which an
Eligible Employee or Eligible Director shall be required to
properly complete in writing and timely file at least 15 days prior
to the commencement of any Purchase Period in order to make any of
the elections available to an Eligible Employee or Eligible
Director under this Plan.
2.8. The term "Eligible Director" shall mean a person who has
been a member of the Board for at least six full calendar months.
2.9. The term "Eligible Employee" shall mean each officer or
employee of a Participating Employer:
(a) who is shown on the payroll records of a
Participating Employer as a "benefits eligible" employee; and
(b) who has completed at least six full calendar months
of employment with a Participating Employer.
2.10. The term "Participant" shall mean for each Purchase
Period an Eligible Employee or Eligible Director who has elected to
purchase shares of Stock in accordance with Section 4 in such
Purchase Period and (b) any person for whom a share of Stock is
held pending delivery under Section 7.
2.11. The term "Participating Employer" shall mean the
Company and any affiliated company which is designated as such by
the Committee.
2.12. The term "Pay" means (i) in the case of an Eligible
Employee, all cash compensation paid to him or her for services to
the Participating Employer, including regular straight time
earnings or draw, overtime, commissions, and bonuses, but excluding
amounts paid as living allowance or reimbursement of expenses and
other similar payments; and (ii) in the case of an Eligible
Director, all retainers and meeting and other service fees paid to
him or her by the Participating Employer.
2.13. The term "Pay Day" means the day as of which Pay is
paid to a Participant.
2.14. The term "Plan" shall mean this Walden Residential
Properties, Inc. 1998 Non-Qualified Employee Stock Purchase Plan,
effective as of April 1, 1998, and as thereafter amended from time
to time.
2.15. The term "Plan Administrator" shall mean the Company
or the Company's delegate.
2.16. The term "Purchase Period" shall mean a period set
by the Committee. Unless changed by the Committee, each Purchase
Period shall begin on the first day of a calendar quarter and end
on the last day of such calendar quarter. The first Purchase
Period shall commence on April 1, 1998 and terminate on June 30,
1998.
2.17. The term "Purchase Price" for each Purchase Period
shall mean 85% of the lesser of: the Closing Price for a share of
Stock on the last day of such Purchase Period and the greater of:
(i) the Closing Price for a share of Stock on the first day of such
Purchase Period and (ii) the average Closing Price for a share of
Stock for all of the business days in the Purchase Period.
2.18. The term "Rule 16b-3" shall mean Rule 16b-3
promulgated under Section 16(b) of the Securities Exchange Act of
1934, as amended, or any successor to such rule.
2.19. The term "Stock" shall mean the common stock, par
value $.01 per share, of the Company. The aggregate number of
shares of Stock available for grant under this Plan shall not
exceed 200,000, subject to adjustment pursuant to Section 17
hereof. Shares of Stock subject to the Plan may be either
authorized but unissued shares of Stock, or shares of Stock
hereafter acquired by the Company.
Section 3. Administration
Except for the exercise of those powers expressly granted to
the Committee to determine the Closing Price, who is a
Participating Employer and to set the Purchase Period, the Plan
Administrator shall be responsible for the administration of this
Plan and shall have the power in connection with such
administration to interpret the Plan and to take such other action
in connection with such administration as the Plan Administrator
deems necessary or equitable under the circumstances. The Plan
Administrator also shall have the power to delegate the duty to
perform such administrative functions as the Plan Administrator
deems appropriate under the circumstances. Any person to whom the
duty to perform an administrative function is delegated shall act
on behalf of and shall be responsible to the Plan Administrator for
such function. Any action or inaction by or on behalf of the Plan
Administrator under this Plan shall be final and binding on each
Eligible Employee, each Eligible Director, each Participant and on
each other person who makes a claim under this Plan based on the
rights, if any, of such Eligible Employee, Eligible Director or
Participant under this Plan.
Section 4. Participation
Each person who is an Eligible Employee or an Eligible
Director shall be a Participant in this Plan for the related
Purchase Period if he or she properly completes and timely files an
Election Form with the Plan Administrator to elect to participate
in this Plan. An Election Form may require an Eligible Employee or
Eligible Director to provide such information and to agree to take
such action (in addition to the action required under Section 5) as
the Plan Administrator deems necessary or appropriate in light of
the purpose of this Plan or for the orderly administration of this
Plan.
Section 5. Contributions
5.1. Each Participant's Election Form under Section 4 shall
specify the contributions that he or she proposes to make for the
related Purchase Period. Such contributions shall be expressed as
a specific dollar amount that Participant proposes to contribute in
cash or a percentage of the Participant's Pay that his or her
Participant Employer is authorized to deduct from his or her Pay
each Pay Day during the Purchase Period (or as a combination of
such cash and such payroll deduction contributions); provided,
however:
(a) the minimum payroll deduction for a Participant for
each Pay Day for purposes under this Plan shall be $10.00, and
(b) the maximum contribution which a Participant may
make for purposes under this Plan for any calendar year shall be
$100,000.
5.2. A Participant shall have the right to amend his or her
Election Form at any time to reduce or to stop his or her
contributions, and such election shall be effective immediately for
cash contributions and as soon as practicable after the Plan
Administrator actually receives such amended Election Form for
payroll deductions. A Participant also shall have the right at any
time on or before 15 days prior to the last day of a Purchase
Period to withdraw (without interest) all or any part of the
contributions credited to his or her Account for such Purchase
Period by delivering an amended Election Form to the Plan
Administrator at least 15 days prior to the last day of such
Purchase Period. A withdrawal shall be deducted from the
participant's Account as of the date the plan Administrator
receives such amended Election Form, and the actual withdrawal
shall be effected by the Plan Administrator as soon as practicable
after such date. Officer and Eligible Director Participants who
stop or withhold contributions for any Purchase Period may not
participate again for at least six months.
5.3. All payroll deductions made for a Participant shall be
credited to his or her Account as of the Pay Day as of which the
deduction is made. All contributions made by a Participant under
this Plan, whether in cash or through payroll deductions, shall be
held by the Company or by such Participant's Participating
Employer, as agent for the Company. All such contributions shall
be held as part of the general assets of the Company and shall not
be held in trust or otherwise segregated from the Company's general
assets. No interest shall be paid or accrued on any such
contributions. Each Participant's right to the contributions
credited to his or her Account shall be that of a general and
unsecured creditor of the Company. Each Participating Employer
shall have the right to make such provisions as it deems necessary
or appropriate to satisfy any tax laws with respect to purchases of
shares of Stock made under this Plan.
5.4. The balance credited to the Account of an Eligible
Employee automatically shall be refunded in full (without interest)
if his or her status as an employee of all Participating Employers
terminates for any reason whatsoever during a Purchase Period and
the balance credited to the Account of an Eligible Director
automatically shall be refunded in full (without interest) if his
or her status as a member of the Board terminates for any reason
whatsoever during a Purchase Period. Such refunds shall be made as
soon as practicable after the Plan Administrator has actual notice
of any such termination.
Section 6. Purchase of Shares
6.1. If a Participant is an Eligible Employee or an Eligible
Director through the end of a Purchase Period, the balance which
remains credited to his or her Account at the end of such Purchase
Period automatically shall be applied to purchase Stock at the
Purchase Price for such shares of Stock for such Purchase Period.
Such shares of Stock shall be purchased on behalf of the
Participant by operation of this Plan in whole shares.
6.2. Except as specifically provided herein, the Participants
shall have the same rights and privileges under the Plan. All
rules and determinations of the Board in the administration of the
Plan shall be uniformly and consistently applied to all persons in
similar circumstances.
6.3. If the total shares of Stock to be purchased on any date
in accordance with Section 6(a) exceeds the shares of Stock then
available under the Plan (after deduction of all shares of Stock
that have been purchased under Section 6(a)), the Plan
Administrator shall make a pro rata allocation of the shares of
Stock remaining available in as neatly a uniform manner as shall be
practical and as it shall determine to be equitable.
Section 7. Delivery
A book-entry record of the shares of Stock purchased by each
Participant shall be maintained by the Company's transfer agent and
no certificates shall be issued for such shares of Stock except to
the extent that a Participant specifically so requests.
Notwithstanding the foregoing, when a refund is made to a
participant pursuant to Section 5.4, certificates shall be
delivered to him or her for all shares of Stock then held for the
Participant under the Plan. A Stock certificate delivered to a
Participant shall be registered in his or her name or, if the
Participant so elects and is permissible under applicable law, in
the names of the Participant and one such other person as may be
designated by the Participant, as joint tenants with rights of
survivorship. However, (a) no Stock certificate representing a
fractional share of Stock shall be delivered to a Participant or to
a Participant and any other person, (b) cash which the Plan
Administrator deems representative of the value of a Participant's
fractional share shall be distributed (when a participant requests
a distribution of certificates for all of the shares of Stock held
for him or her) in lieu of such fractional share unless a
Participant in light of Rule 16b-3 waives his or her right to such
cash payment and (c) the Plan Administrator shall have the right to
charge a participant for registering shares of Stock in the name of
the Participant and any other person. No Participant (or any person
who makes a claim for, on behalf of or in place of a participant)
shall have any interest in any shares of Stock under this Plan
until they have been reflected in the book-entry record maintained
by the transfer agent or the certificate for such shares of Stock
has been delivered to such person.
Section 8. Designation of Beneficiary
A Participant may designate on his or her Election Form a
Beneficiary (a) who shall receive the balance credited to his or
her Account if the Participant dies before the end of a Purchase
Period and (b) who shall receive the Stock, if any, purchased for
the Participant under this Plan if the Participant dies after the
end of a Purchase Period but before either the certificate
representing such shares of Stock has been delivered to the
Participant or before such shares of Stock have been credited to a
brokerage account maintained for the Participant. Such designation
may be revised in writing at any time by the participant by filing
an amended Election Form, and his or her revised designation shall
be effective at such time as the Plan Administrator receives such
amended Election Form. If a deceased Participant fails to designate
a Beneficiary or, if no person so designated survives a Participant
or, if after checking his or her last known mailing address, the
whereabouts of the person so designated survives a Participant or,
if after checking his or her last known mailing address, the
whereabouts of the person so designated are unknown, then the
Participant's estate shall be treated as his or her designated
Beneficiary under this Section 8.
Section 9. Transferability and Dispositions
9.1. Neither the balance credited to a Participant's Account
nor any rights to receive shares of Stock under this Plan may be
assigned, encumbered, alienated, transferred, pledged or otherwise
disposed of in any way by a Participant during his or her lifetime
or by his or her Beneficiary or by any other person during his or
her lifetime, and any attempt to do so shall be without effect.
9.2. Except as provided in the last sentence of this Section
9.2 or in Section 7, no sale, transfer or other disposition may be
made of any shares of Stock purchased under the Plan until the
first anniversary of such purchase. If a Participant violates the
foregoing restriction, he or she shall remit to the Company an
amount of cash equal to the difference between the amount he or she
paid for such shares of Stock and the Closing price of such shares
on the date they were purchased. the amount to be remitted for
purposes of the foregoing shall be computed by the Plan
Administrator, in its discretion, using a last-in-first-out basis
of accounting in the event that shares of Stock for more than one
Purchase Period are involved. Notwithstanding the foregoing, if a
Participant, who owns shares of Stock subject to the foregoing
restriction, is determined by the Plan Administrator in its
discretion to have a serious financial need for the proceeds of the
sale of such shares of Stock, then upon application made by the
Participant, the Plan Administrator shall consent to a sale of such
shares of Stock to the extent necessary to satisfy the serious
financial need, and the Participant will not be required to make
the remittance to the Company described in this Section 9.2.
Section 10. Securities Registration
If the Company shall deem it necessary to register under the
Securities Act of 1933, as amended, or any other applicable statute
any shares of Stock purchased under this Plan or to qualify any
such shares of Stock for an exemption from any such statutes, the
Company shall take such action at its own expense. If shares of
Stock are listed on any national securities exchange at the time
any shares of Stock are purchased hereunder, the Company shall make
prompt application for the listing on such national securities
exchange of such shares of Stock, at its own expense. Purchases of
shares of Stock hereunder shall be postponed as necessary pending
any such action.
Section 11. Compliance with Rule 16b-3
All elections and transactions under this Plan by persons
subject to Rule 16b-3 are intended to comply with at least one of
the exemptive conditions under Rule 16b-3. The Plan Administrator
shall establish such administrative guidelines to facilitate
compliance with at least one such exemptive condition under Rule
16b-3 as the Plan Administrator may deem necessary or appropriate.
If any provision of this Plan or such administrative guidelines or
any act or omission with respect to this Plan (including any act or
omission by an Eligible Employee or an Eligible Director) fails to
satisfy such exemptive condition under Rule 16b-3 or otherwise is
inconsistent with such condition, such provision, guidelines or act
or omission shall be deemed null and void.
Section 12. Amendment or Termination
This Plan may be amended by the Board from time to time to the
extent that the Board deems necessary or appropriate, and any such
amendment shall be subject to the approval of the Company's
stockholders to the extent such approval is required under the laws
of the State of Maryland or to the extent such approval is required
to meet the security holder approval requirements under Rule 16b-3;
provided, however, no amendment shall be retroactive unless the
Board in its discretion determines that such amendment is in the
best interest of the Company or such amendment is required by
applicable law to be retroactive. The Board also may terminate
this Plan and any Purchase Period at any time (together with any
related contribution election) or may terminate any Purchase Period
(together with any related contribution elections) at any time;
provided, however, no such termination shall be retroactive unless
the Board determines that applicable law requires a retroactive
termination.
Section 13. Notices
All Election Forms and other communications from a Participant
to the Plan Administrator under, or in connection with, this Plan
shall be deemed to have been filed with the Plan Administrator when
actually received in the form specified by the Plan Administrator
at the location, or by the person, designated by the Plan
Administrator for the receipt of any such Election Form and
communications.
Section 14. Employment
The right to elect to participate in this Plan shall not
constitute an offer of employment or membership on the Board, and
no election to participate in this Plan shall constitute an
employment agreement for an Eligible Employee or an agreement with
respect to Board membership for an Eligible Director. Any such
right or election shall have no bearing whatsoever on the
employment relationship between an Eligible Employee and any other
person or on an Eligible Director's status as a member of the
Board. Finally, no Eligible Employee shall be induced to
participate in this Plan, or shall participate in this Plan, with
the expectation that such participation will lead to employment or
continued employment, and no Eligible Director shall be induced to
participate in this Plan, or shall participate in this Plan, with
the expectation that such participation will lead to continued
membership on the Board.
Section 15. Changes in Capital Structure
15.1. In the event that the outstanding shares of Stock of
the Company are hereafter increased or decreased or changed into or
exchanged for a different number of kind of stock or other
securities of the Company or of another corporation, by reason of
any reorganization, merger, consolidation, recapitalization,
reclassification, stock split-up, combination of shares or dividend
payable in shares of stock, appropriate adjustment shall be made by
the Board in the number or kind of shares as to which an option
granted under this Plan shall be exercisable, to the end that the
option holder's proportionate interest shall be maintained as
before the occurrence of such event. Any such adjustment made by
the Board shall be conclusive.
15.2. If the Company is not the surviving or resulting
corporation in any reorganization, merger, consolidation or
recapitalization, this Plan, and the Company's rights, duties and
obligations hereunder, shall be assumed by the surviving or
resulting corporation and the rights of a Participant to purchase
shares of Stock shall continue in full force and effect.
Section 16. Headings, References and Construction
The headings to sections in this Plan have been included for
convenience of reference only. This Plan shall be interpreted and
construed in accordance with the laws of the State of Maryland.
WALDEN RESIDENTIAL PROPERTIES, INC.
/s/ Mark S. Dillinger
By: Mark S. Dillinger
Title: Executive Vice President and
Chief Financial Officer
