<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 22, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BAY APARTMENT COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
MARYLAND 77-0404318
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
4340 STEVENS CREEK BOULEVARD, SUITE 275
SAN JOSE, CALIFORNIA 95129
(Address of Principal Executive Offices)
GILBERT M. MEYER
CHAIRMAN OF THE BOARD AND PRESIDENT
BAY APARTMENT COMMUNITIES, INC.
4340 STEVENS CREEK BOULEVARD, SUITE 275
SAN JOSE, CALIFORNIA 95129
(408) 983-1500
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
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copy to:
DAVID W. WATSON, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MA 02109
(617) 570-1000
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Approximate date of commencement of proposed sale to public: As soon as
practicable 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.
[X]
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. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
PROPOSED MAXIMUM
AGGREGATE PROPOSED MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SHARES AMOUNT TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value............. 1,000,000 $31.625 $31,625,000 $9,584
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</TABLE>
(1) Plus such additional number of shares as may be required in the event of a
stock dividend, reverse stock split, split-up, recapitalization or other
similar event.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to rule 457(c) and (h) under the Securities Act of 1933, as
amended, the offering price and registration fee are computed on the basis
of the average of the high and low sales prices of the Common Stock reported
on the New York Stock Exchange on November 15, 1996.
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<PAGE> 2
PROSPECTUS
LOGO
1,000,000 SHARES
BAY APARTMENT COMMUNITIES, INC.
COMMON STOCK
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DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
------------------------
Bay Apartment Communities, Inc. (the "Company") hereby offers to the
holders of its shares of common stock, par value $.01 per share (the "Common
Stock"), and preferred stock, par value $.01 per share (the "Preferred Stock"
and together with the Common Stock, the "Capital Stock"), the opportunity to
participate in the Company's Dividend Reinvestment and Stock Purchase Plan (the
"Plan"). The Plan provides a simple and convenient method for stockholders to
invest cash dividends and optional cash payments in shares of Common Stock of
the Company. All holders of Capital Stock are eligible to participate in the
Plan including stockholders whose shares of Capital Stock are held in the name
of a nominee or broker (each, a "Participant").
Participants may purchase additional shares of Common Stock by (i) having
the cash dividends on all, or part, of their shares of Capital Stock
automatically reinvested, (ii) by receiving directly, as usual, their cash
dividends, if, as and when declared, on their shares of Capital Stock and
investing in the Plan by making cash payments of not less than $100 or more than
$25,000 (or such larger amount as the Company may approve) per quarter
("optional cash payments"), or (iii) by investing both their cash dividends and
such optional cash payments.
A stockholder may begin participating in the Plan by completing an
Authorization Card and returning it to American Stock Transfer & Trust Company,
as plan administrator. Participants may terminate their participation in the
Plan at any time. Stockholders who do not wish to participate in the Plan need
take no action and will continue to receive their cash dividends, if, as and
when declared, as usual. It is suggested that this Prospectus be retained for
future reference.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
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The date of this Prospectus is November 22, 1996
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Commission. Proxy
statements, reports and other information concerning the Company can be
inspected and copied at the facilities maintained by the Commission's office at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and
the Commission's Regional Offices in New York (7 World Trade Center, 13th Floor,
New York, New York 10048), and Chicago (Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511), and copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. In
addition, the Company's Common Stock is listed on the New York Stock Exchange
(the "NYSE") and the Pacific Stock Exchange (the "PSE"), and such materials can
be inspected and copied at the NYSE, 20 Broad Street, New York, New York 10005,
and at the PSE, 301 Pine Street, San Francisco, California 94104. In addition,
the Company is required to file electronic versions of these documents with the
Commission through the Commission's Electronic Data Gathering, Analysis and
Retrieval (EDGAR) system, and such electronic versions are available to the
public at the Commission's World-Wide Web Site, http://www.sec.gov.
Statements contained in this Prospectus as to the contents of any contract
or other document referred to are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference. This Prospectus does not contain all information
set forth in the Registration Statement and exhibits thereto which the Company
has filed with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"), and to which reference is hereby made, which may be obtained
via EDGAR or by mail from the Public Reference Section of the Commission at its
principal office, at 450 Fifth Street, N.W., Washington, D.C. 20549, upon
payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
(i) Annual Report on Form 10-K for the fiscal year ended December 31, 1995, (ii)
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996, (iii) Current Report on Form 8-K dated May
6, 1996, (iv) Current Report on Form 8-K, dated May 23, 1996, as amended by the
Current Report on Form 8-K/A, dated May 23, 1996, (v) Current Report on Form
8-K, dated July 5, 1996, (vi) Current Report on Form 8-K, dated July 26, 1996,
and (vii) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated December 7, 1993.
All other documents filed with the Commission by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Prospectus and prior to the termination of this offering of the Common
Stock are to be incorporated herein by reference and such documents shall be
deemed to be a part hereof from the date of filing of such documents. Any
statement contained in this Prospectus or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
ANY PERSON RECEIVING A COPY OF THIS PROSPECTUS MAY OBTAIN, WITHOUT CHARGE,
UPON WRITTEN OR ORAL REQUEST, A COPY OF ANY OF THE DOCUMENTS INCORPORATED BY
REFERENCE HEREIN, EXCEPT FOR THE EXHIBITS TO SUCH DOCUMENTS. WRITTEN REQUESTS
SHOULD BE MAILED TO: CHIEF FINANCIAL OFFICER, BAY APARTMENT COMMUNITIES, INC.,
4340 STEVENS CREEK BOULEVARD, SUITE 275, SAN JOSE, CALIFORNIA 95129. TELEPHONE
REQUESTS MAY BE DIRECTED TO (408) 983-1500.
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<PAGE> 4
THE COMPANY
The Company has engaged in apartment community acquisition, development,
construction, reconstruction, marketing, leasing and management since 1978 and
is one of the most experienced developers and operators of upscale apartment
communities in the San Francisco Bay Area. As a self-administered and self-
managed real estate investment trust ("REIT"), the Company owns and manages
apartment communities located in Northern California (principally in the San
Francisco Bay Area) and in Orange County, California.
The Company is a fully-integrated real estate organization with in-house
development, construction, acquisition, reconstruction, financing, marketing,
leasing and management expertise. This in-house expertise has allowed the
Company to maintain its reputation for developing and constructing apartment
communities on time and on budget. The Company has elected to qualify as a REIT
for Federal income tax purposes.
The Company was incorporated under the laws of the State of California in
1978 and reincorporated under the laws of the State of Maryland, pursuant to a
reincorporation merger, in July 1995. Its executive offices are located at 4340
Stevens Creek Boulevard, Suite 275, San Jose, California 95219, and its
telephone number is (408) 983-1500.
DESCRIPTION OF THE DIVIDEND REINVESTMENT
AND STOCK PURCHASE PLAN
The terms of the Company's Plan are set forth below in question and answer
format.
PURPOSE
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to provide holders of record of shares of
Capital Stock with a simple and convenient method of investing in additional
shares of Common Stock, without paying any brokerage commissions, fees or
service charges, as more fully described below in Question 10. In addition to
reinvesting cash dividends, Participants may purchase shares of Common Stock
through quarterly optional cash payments. At the Company's election, shares of
Common Stock purchased under the Plan will be either original issue shares or
shares purchased in the open market by the Plan administrator, American Stock
Transfer & Trust Company ("American Stock Transfer"). The Plan also has the
added benefit of providing the Company with additional funds for general
corporate purposes when the Company elects to sell shares of its Common Stock to
Participants in the Plan.
ADVANTAGES TO PARTICIPANTS
2. WHAT ARE THE OPTIONS AVAILABLE TO STOCKHOLDERS?
Participants in the Plan may purchase additional shares of Common Stock by
(i) having the cash dividends on all or part of their shares of Capital Stock
automatically reinvested, (ii) receiving directly, as usual, their cash
dividends, if, as and when declared, on their shares of Capital Stock and
investing in the Plan by making cash payments of not less than $100 or more than
$25,000 (or such larger amount as the Company
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<PAGE> 5
may approve) per quarter, or (iii) investing both their cash dividends and such
optional cash payments in shares of Common Stock.
3. WHAT ARE THE ADVANTAGES OF THE PLAN?
No brokerage commissions, fees or service charges are paid by Participants
in connection with purchases under the Plan; provided, however, that if shares
are registered in the name of a nominee or broker, such nominee or broker may
charge a commission or fee. Full investment of dividends is possible under the
Plan because the Plan permits fractions of shares, as well as whole shares, to
be purchased and credited to Participants' accounts. Regular statements of
account provide simplified record keeping. In addition, the free custodial
services provided in connection with the Plan serve to protect against loss,
theft or destruction of certificates.
The price of shares of Common Stock purchased under the Plan from the
Company with reinvested cash dividends or optional cash payments will be 97% of
the closing price on the New York Stock Exchange for such shares either on (a)
the dividend payment date, or (b) the applicable Investment Date (as defined in
Question 12), whichever is higher. For open market purchases, the purchase price
will be the weighted average price paid by American Stock Transfer for all
shares purchased by it for Participants in the Plan with the proceeds of the
cash dividend and/or optional cash payments being invested on the applicable
Investment Date.
ADMINISTRATION
4. WHO ADMINISTERS THE PLAN FOR PARTICIPANTS?
American Stock Transfer & Trust Company, or such other bank or trust
company as the Company may from time to time designate as plan administrator for
the participating stockholders, administers the Plan for Participants, maintains
records, delivers statements of account to Participants and performs other
duties relating to the Plan. Shares of Common Stock purchased under the Plan are
held by American Stock Transfer as agent for the Participants and are registered
in the name of American Stock Transfer or its nominee, unless and until a
Participant requests that a stock certificate for his or her shares be issued,
as more fully described below in Question 17.
All communications regarding the Plan should be sent to American Stock
Transfer at the following address:
American Stock Transfer & Trust Company
Attention: Dividend Reinvestment Department
40 Wall Street
New York, NY 10005
If you have any questions, please call toll free: 1-800-278-4353
PARTICIPATION
5. WHO IS ELIGIBLE TO PARTICIPATE?
All holders of record of shares of Capital Stock are eligible to
participate in the Plan ("Eligible Stockholders"). Beneficial owners of shares
of Capital Stock whose shares are registered in names other than their own (for
example, shares registered in the name of a broker, bank nominee or trustee) may
be able to arrange for the entity in whose name the shares are registered to
handle the reinvestment of dividends. If not,
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<PAGE> 6
they must have the shares they wish to enroll in the Plan transferred from the
current registered owner to their own names.
6. HOW DOES AN ELIGIBLE STOCKHOLDER PARTICIPATE?
An Eligible Stockholder may join the Plan by completing and signing an
Authorization Card and returning it to American Stock Transfer. If shares are
registered in the name of a nominee or broker, Eligible Stockholders must have
the nominee or broker sign the Authorization Card and return it to American
Stock Transfer. When completing the Authorization Card, an Eligible Stockholder
should be careful to include his or her social security number or taxpayer
identification number. Failure to supply this information will result in backup
withholding of 31% of payments owed to a Participant. Once enrolled in the Plan,
Participants will continue to be enrolled without further action on their part.
Participants may change their investment options at any time by completing,
signing and returning to American Stock Transfer a new Authorization Card. If a
Participant's shares are registered in more than one name (e.g., joint tenants,
trustees, etc.), all registered owners must sign the Authorization Card.
Additional Authorization Cards and additional copies of this Prospectus may
be obtained at any time by written request to American Stock Transfer at the
address set forth in Question 4 above.
7. WHEN MAY AN ELIGIBLE STOCKHOLDER JOIN THE PLAN?
An Eligible Stockholder may join the Plan at any time.
Reinvestment of dividends commences, for any Participant electing such
option, with the first dividend paid after such Participant joins the Plan,
provided that an Authorization Card is received for such Participant by American
Stock Transfer at least one business day before the record date for such
dividend. For purposes of the Plan, a "business day" shall mean a day other than
a Saturday or Sunday or a day on which banking institutions in the City of New
York, New York, are authorized or obligated by law or executive order to close.
If any Participant delivers an Authorization Card specifying reinvestment of
dividends paid on such Participant's shares of Capital Stock to American Stock
Transfer on or after the record date established for payment of a particular
dividend on the Capital Stock, reinvestment will commence with the dividend
payment date following the next such record date. See Question 13 below for
information concerning the investment of optional cash payments.
8. WHAT DOES THE AUTHORIZATION CARD SAY ABOUT DIVIDENDS AND OPTIONAL CASH
PAYMENTS?
Except with respect to dividends on shares of Common Stock in a
Participant's Plan account, which are reinvested automatically, a Participant
may elect to reinvest the dividends on all or part of the shares of Capital
Stock registered in his or her name by choosing one of the following options on
the Authorization Card.
(a) Full Dividend Reinvestment. If the "Full Dividend Reinvestment" box is
checked, American Stock Transfer will apply cash dividends on all shares of
Capital Stock registered in the Participant's name, as well as on all shares of
Common Stock credited to the Participant's Plan account, to the purchase of
additional shares of Common Stock.
(b) Partial Dividend Reinvestment Only. If the "Partial Dividend
Reinvestment Only" box is checked, American Stock Transfer will apply cash
dividends on such number and such class or series of shares of Capital Stock as
specified by the Participant on the Authorization Card, as well as on all shares
of Common Stock credited to the Participant's Plan account, to the purchase of
additional shares of Common Stock.
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(c) Dividend Reinvestment and Optional Cash Payments. If the "Dividend
Reinvestment and Optional Cash Payments" box is checked, American Stock Transfer
will apply cash dividends on such number and such class or series of shares of
Capital Stock as specified by the Participant on the Authorization Card, as well
as on all shares of Common Stock credited to the Participant's Plan account, and
any optional cash payments, to the purchase of additional shares of Common
Stock.
(d) Optional Cash Payments Only. If the "Optional Cash Payments Only" box
is checked, American Stock Transfer will apply only optional cash payments and
cash dividends on all shares of Common Stock credited to the Participant's Plan
account to the purchase of additional shares of Common Stock. Cash dividends on
shares of Capital Stock registered in the Participant's name, other than the
Common Stock in his or her Plan account, will be paid to the Participant in the
usual manner.
If a Participant signs and returns an Authorization Form without checking
the desired option, the Participant will be deemed to have selected to invest
all cash dividends on all Capital Stock registered in the Participant's name.
If a stockholder elects to participate in the Plan, regardless of the
method of participation selected, all cash dividends paid on whole or fractional
shares of Common Stock in the Participant's Plan account will be automatically
reinvested in shares of Common Stock.
9. HOW MAY PARTICIPANTS CHANGE THEIR INVESTMENT OPTIONS?
A Participant may change his or her investment option at any time by
signing a new Authorization Card and returning it to American Stock Transfer. A
change in investment option will be effective on the next dividend payment date
if the Authorization Card is received by American Stock Transfer at least one
business day before the related dividend record date. If the Authorization Card
is received by American Stock Transfer on or after the related dividend record
date, the change will be effective on the dividend payment date for the
following quarter.
COSTS
10. ARE THERE ANY EXPENSES TO PARTICIPANTS IN CONNECTION WITH PARTICIPATION
UNDER THE PLAN?
Participants incur no brokerage fees or other transaction costs with
respect to the purchase of original issue shares from the Company. The Company
will also pay all brokerage fees and transaction costs in connection with the
purchase of shares in the open market using dividend reinvestments to the extent
that such brokerage fees and transaction fees do not exceed 5% of the aggregate
amount of the dividends reinvested. Participants will be responsible for paying
their pro rata share of any brokerage fees in connection with open market
purchasing using dividend reinvestment only to the extent that such brokerage
fees, together with any other transaction costs, exceed 5% of the aggregate
amount of the dividends reinvested.
Participants will be responsible for paying their pro rata share of the
brokerage fees in connection with open market share purchases using optional
cash payments. However, Participants generally will pay a reduced brokerage cost
as a result of the larger bulk purchase made on behalf of all Participants.
If a Participant's shares are registered in the name of a nominee or
broker, such nominee or broker may charge a commission or fee for both shares
purchased in the open market and original issue shares. Any such commissions or
fees will be the responsibility of the Participant.
The Company pays all fees of American Stock Transfer for administering the
Plan.
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PURCHASES
11. HOW MANY SHARES OF COMMON STOCK WILL BE PURCHASED FOR EACH PARTICIPANT?
The number of shares to be purchased for a Participant's account under the
Plan will depend upon the amount of the Participant's dividend being reinvested,
the amount of any optional cash payments and the effective purchase price of the
Common Stock. Each Participant's account is credited with the number of shares,
including fractions computed to at least three decimal places, equal to the
total amount invested by him or her divided by the applicable purchase price.
12. AT WHAT PRICE AND WHEN WILL COMMON STOCK BE PURCHASED UNDER THE PLAN?
The price of shares of Common Stock purchased under the Plan from the
Company with reinvested cash dividends or optional cash payments will be 97% of
the closing price on the New York Stock Exchange for such shares either on (a)
the dividend payment date, or (b) the applicable Investment Date, whichever is
higher. For open market purchases, the purchase price will be the weighted
average price paid by American Stock Transfer for all shares purchased by it for
Participants in the Plan with the proceeds of the cash dividend and/or optional
cash payments being invested on the applicable Investment Date.
Shares purchased from the Company with reinvested dividends will be made on
or promptly following the dividend payment date or, if the Common Stock is not
traded on such day, the next trading day (the "Investment Date"). Shares
purchased from the Company with optional cash payments received at least two
business days prior to an Investment Date will be invested on or promptly
following such Investment Date. For purposes of the Plan, a "business day" shall
mean a day other than a Saturday, a Sunday or a day on which banking
institutions in the City of New York, New York are authorized or obligated by
law or executive order to close. Shares of Common Stock purchased in the open
market with either reinvested cash dividends or optional cash payments will be
invested as soon as practicable after the dividend payment date. See Question 13
below for additional details on the investment of optional cash payments. No
interest will be paid on funds held by American Stock Transfer pending
investment of dividends or optional cash payments.
It is within the Company's discretion to determine whether it will sell new
shares or require open market purchases in connection with each investment under
the Plan. If the Company does not elect to sell shares of Common Stock to
Participants in the Plan for a particular Investment Date, American Stock
Transfer shall purchase shares of Common Stock on or as soon as practicable
after such Investment Date on any securities exchange where such shares are
traded, in the over-the-counter market or in negotiated transactions, on such
terms as American Stock Transfer may determine.
Since purchase prices for the Common Stock are established on the
applicable Investment Date or dividend payment date, as the case may be, a
Participant loses any advantages otherwise available from being able to select
the timing of investments. Participants should recognize that neither the
Company nor American Stock Transfer can assure a profit or protect against a
loss on shares of Common Stock purchased under the Plan.
13. HOW MUCH CAN BE INVESTED THROUGH OPTIONAL CASH PAYMENTS AND HOW ARE THEY
MADE?
Optional cash payments may be made at any time and in varying amounts of
not less than $100 or more than $25,000 per quarter. Optional cash payments in
excess of $25,000 per quarter may be made by a Participant only upon the
acceptance by the Company of a written Request for Waiver from the Participant.
Optional cash payments of less than $100 and that portion of any optional cash
payment which exceeds the maximum quarterly purchase limit, unless such limit
has been waived by the Company, are subject to return to the Participant,
without interest.
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Optional cash payments in excess of $25,000 may be made by a Participant
only upon acceptance by the Company of a written Request for Waiver from such
Participant. No pre-established maximum limit applies to optional cash payments
that may be made pursuant to a Request for Waiver. A Request for Waiver must be
obtained each calendar quarter prior to the respective Investment Date on which
a Participant would like to invest more than $25,000 per quarter. Participants
interested in obtaining a Request for Waiver should contact the Company's Chief
Financial Officer at (408) 983-1500.
A Request for Waiver will be considered on the basis of a variety of
factors, which may include: the Company's current and projected capital needs,
the alternatives available to the Company to meet those needs, prevailing market
prices for the Common Stock and other Company securities, general economic and
market conditions, expected aberrations in the price or trading volume of
Company securities, the number of shares of Capital Stock held by the
Participant submitting the Request for Waiver, the aggregate amount of optional
cash payments for which such waivers have been submitted and the administrative
constraints associated with granting such waivers. Grants of waivers will be
made in the absolute discretion of the Company.
Unless it waives its rights to do so, the Company may establish for each
Investment Date a minimum price (the "Threshold Price") which applies only to
the investment of optional cash payments made pursuant to written Requests for
Waiver, as described above. The Threshold Price will initially be established by
the Company at least five business days prior to the Investment Date; provided,
however, that the Company reserves the right to change the Threshold Price at
any time. The Threshold Price will be established in the Company's sole
discretion after a review of current market conditions and other relevant
factors. Participants may obtain the Threshold Price applicable to the next
Investment Date by telephoning the Company's Chief Financial Officer at (408)
983-1500. The Threshold Price will be a stated dollar amount that the closing
price of the Common Stock on the New York Stock Exchange for the respective
Investment Date must equal or exceed. In the event that the Threshold Price is
not satisfied for the respective Investment Date, at the Company's discretion
each Participant's optional cash payments made pursuant to a written Request for
Waiver may be returned, without interest, to such Participant by check. This
return procedure will apply regardless of whether shares are purchased by the
Agent in the open market or directly from the Company. For any Investment Date,
the Company may waive its right to set a Threshold Price for optional cash
payments in excess of $25,000. Setting a Threshold Price for an Investment Date
shall not affect the setting of a Threshold Price for any subsequent Investment
Date. Only optional cash payments in excess of $25,000 are affected by the
return procedure and the Threshold Price provision described in this paragraph.
All other optional cash payments and all dividend reinvestments will be made
without regard to the Threshold Price provision.
A stockholder may make an optional cash payment when enrolling in the Plan
by enclosing a check (made payable to American Stock Transfer & Trust Company)
with the Authorization Card. Thereafter, optional cash payments may be made
through the use of optional cash payment forms which will be sent to
Participants by American Stock Transfer.
In the event a broker, bank nominee or trustee holds shares of a beneficial
owner in the name of a major securities depository, optional cash payments must
be made on a Broker and Nominee Form (a "B & N Form"). The B & N Form is the
sole means by which a broker, bank nominee or trustee holding shares of a
beneficial owner in the name of a major securities depository may invest
optional cash payments on behalf of such beneficial owner. In such a case, the
broker, bank nominee or trustee must use the B & N Form for transmitting
optional cash payments on behalf of the beneficial owner. A B & N Form must be
delivered to American Stock Transfer each time that such broker, bank nominee or
trustee transmits optional cash payments on behalf of a beneficial owner. B & N
Forms will be furnished at any time upon written request to American Stock
Transfer at the address specified in question 4.
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Optional cash payments received by the Company at least two business days
prior to an Investment Date will be invested on or promptly following the
Investment Date, if the shares will be purchased from the Company, or as soon as
practicable after the dividend payment date if the shares will be purchased in
the open market. However, optional cash payments received after the second
business day preceding the related quarterly Investment Date will not be
invested until after the following quarterly Investment Date. NO INTEREST WILL
BE PAID ON OPTIONAL CASH PAYMENTS. IT IS THEREFORE SUGGESTED THAT ANY OPTIONAL
CASH PAYMENTS A PARTICIPANT WISHES TO MAKE BE SENT SO AS TO REACH AMERICAN STOCK
TRANSFER AS CLOSE AS POSSIBLE TO THE SECOND BUSINESS DAY PRECEDING THE QUARTERLY
INVESTMENT DATE. The same amount of money need not be sent each quarter, and
there is no obligation to make an optional cash payment each quarter.
A Participant may participate through the investment of optional cash
payments without the necessity of reinvesting cash dividends by checking the
"Optional Cash Payments Only" box on the Authorization Card. However, even if
the "Optional Cash Payments Only" box is checked, all dividends payable on
shares purchased with optional cash payments and retained in the Participant's
Plan account will be reinvested automatically in additional shares of Common
Stock.
REPORTS TO PARTICIPANTS
14. WHAT KIND OF REPORTS ARE SENT TO PARTICIPANTS IN THE PLAN?
After an investment is made for a Participant's account, whether by
reinvestment of dividends or by optional cash payment, the Participant will be
sent a statement of his or her account quarterly. These statements of account
will show any cash dividends and optional cash payments received, the number of
shares purchased, the purchase price for the shares, the number of Plan shares
held for the Participant by American Stock Transfer, the number of enrolled
shares registered in the name of the Participant, and an accumulation of the
transactions for the calendar year to date. Quarterly statements will be mailed
as soon as practicable after each dividend payment date. These statements are a
Participant's continuing record of the cost of his or her purchases and should
be retained for income tax purposes.
In addition, each Participant will receive the most recent Prospectus
constituting the Plan and copies of the same communications sent to every other
holder of shares of Common Stock, including the Company's Annual Report, Notice
of Annual Meeting and Proxy Statement, and income tax information for reporting
distributions (including dividends) paid by the Company.
DIVIDENDS
15. HOW ARE DIVIDENDS CREDITED TO PARTICIPANTS' ACCOUNTS UNDER THE PLAN?
On shares of Capital Stock for which a Participant has directed that
dividends be reinvested, cash dividends will automatically be credited to a
Participant's account and reinvested in additional shares of Common Stock. Cash
dividends also will be automatically reinvested on all shares which have been
purchased under the Plan and credited to a Participant's account; provided,
however, that no dividends will be earned on such shares purchased under the
Plan until the dividend payment for the first dividend record date which follows
the date of purchase of such shares. On shares of Capital Stock for which a
Participant has not directed that dividends be reinvested and on shares owned by
stockholders who are not participating in the Plan, cash dividends, if, as and
when declared, will be received by them by check as usual.
Stock dividends or stock splits distributed by the Company on the shares
purchased for and credited to the account of a Participant under the Plan will
be added to the Participant's account. Stock dividends or stock
9
<PAGE> 11
splits distributed on shares owned and held outside the Plan by a Participant
(including shares for which a Participant has directed that cash dividends be
reinvested) will be mailed directly to such Participant.
16. WILL PARTICIPANTS BE CREDITED WITH DIVIDENDS ON FRACTIONS OF SHARES?
Yes. Account balances will be computed to three decimal places and
dividends will be paid on the fractional shares.
CERTIFICATES FOR SHARES
17. WILL CERTIFICATES BE ISSUED FOR SHARES OF COMMON STOCK PURCHASED UNDER THE
PLAN?
Unless requested by a Participant, certificates for shares of Common Stock
purchased under the Plan will not be issued. Shares will be held in the name of
American Stock Transfer or its nominees. The number of shares credited to a
Participant's account under the Plan will be shown on his or her quarterly
statement of account. Certificates for any number of whole shares credited to an
account under the Plan will be issued upon the written request of a Participant.
The remaining whole shares and fractions of shares, if any, will continue
to be credited to the Participant's account. A request for issuance of Plan
shares, including issuance of all of the shares in a Participant's account, will
not constitute a termination of participation in the Plan by the Participant.
A Participant's rights under the Plan and shares credited to the account of
a Participant under the Plan may not be pledged. A Participant who wishes to
pledge such shares must request that certificates for such shares be issued in
his or her name.
Certificates for fractional shares are not issued under any circumstances.
18. IN WHOSE NAME ARE ACCOUNTS MAINTAINED AND CERTIFICATES REGISTERED WHEN
ISSUED?
Accounts in the Plan are maintained in the names in which the certificates
of Participants were registered at the time they entered the Plan. When issued
out of the Plan, certificates for whole shares are similarly registered. Upon
written request, certificates may also be registered and issued in names other
than the name of the Participant, subject to compliance with any applicable laws
and the payment of any applicable taxes. Any such request must be made in
writing, signed by the Participant, and the Participant's signature must be
guaranteed by a qualified medallion guarantee member.
SALE OF PLAN SHARES
19. WHEN AND HOW MAY A PARTICIPANT SELL SHARES HELD IN THE PLAN?
Any Participant, including a Participant who is withdrawing from the Plan,
may sell some or all of his or her shares in the Plan in either of the following
ways.
A Participant may choose to sell all or a portion of his or her shares in
the Plan on the open market through the Participant's broker. If a Participant
elects to sell through a broker, he or she must first request American Stock
Transfer to send the Participant a certificate or certificates representing the
requested number of shares in the Plan credited to the Participant's account. As
soon as practicable after receipt of such request, American Stock Transfer will
issue a certificate or certificates representing the number of shares in the
Participant's Plan account for which the Participant has requested certificates,
unless other instructions are provided in writing as described in Question 18.
As an alternative, during any calendar quarter a Participant may request
American Stock Transfer to sell up to 1,000 whole shares credited to his or her
account under the Plan. American Stock Transfer will use its best efforts to
make the sale in the open market within ten trading days after receipt of the
written request, and
10
<PAGE> 12
the Participant will receive the proceeds of the sale less any brokerage
commissions, transfer taxes and other fees incurred by American Stock Transfer
that are allocable to the sale of such Common Stock. A Participant who requests
American Stock Transfer to sell up to 1,000 shares in a calendar quarter and
wishes to have additional shares sold during such calendar quarter through his
or her broker will receive a certificate in his or her name representing the
whole shares that he or she wishes to sell through a broker.
Any written instructions that do not clearly indicate the whole number of
shares to be sold, or that "all" Plan shares are to be sold, will be returned to
the Participant with no action taken. If all shares of Common Stock held in a
Participant's Plan account are sold, the account will be terminated and the
Participant will have to complete a new Authorization Card (see Question 6) in
order to again participate in the Plan.
A Participant who wishes to sell some or all of his or her shares in the
Plan should be aware of the risk under either selling option that the price of
the Common Stock may decrease between the time that the Participant determines
to sell shares in the Plan and the time that the sale is completed. This risk is
borne solely by the Participant. No check for the proceeds of such sale will be
mailed prior to the settlement of funds from the brokerage firm through which
shares in the Plan are sold. Settlement is three business days after the sale of
the shares.
All information relating to the sale of shares in the Plan will be reported
to the Internal Revenue Service pursuant to applicable legal requirements.
WITHDRAWAL FROM THE PLAN
20. WHEN AND HOW MAY A PARTICIPANT WITHDRAW FROM THE PLAN?
A Participant may withdraw from the Plan by giving written notice to
American Stock Transfer that he or she wishes to withdraw. When a Participant
withdraws from the Plan (or upon termination of the Plan by the Company)
certificates for whole shares in his or her account under the Plan are issued
and a cash payment is made for any fraction of a share in such account.
If the written request to withdraw is received by American Stock Transfer
at least five business days before the record date for the next dividend, the
withdrawal will be duly processed and such dividend will not be reinvested on
the next dividend payment date. Any written notice of termination received fewer
than five business days before a dividend record date will not be effective
until dividends for such record date have been invested and the shares have been
allocated to the account of the respective Participant. After such dividends are
invested and allocated to the Participants' accounts, withdrawal requests will
be processed. Allocations may take up to two weeks after dividend payment.
Neither American Stock Transfer nor the Company is responsible for losses during
such periods. Any optional cash payment sent to American Stock Transfer prior to
the request to withdraw will be invested in shares of Common Stock unless the
Participant expressly requests in writing that the optional cash payment be
returned and American Stock Transfer receives the Participant's written request
at least five business days before the next Investment Date.
A Participant may re-enroll in the Plan at any time by submitting an
Authorization Card as described in Question 6 above.
21. MAY A PARTICIPANT TERMINATE THE REINVESTMENT OF DIVIDENDS ON SHARES HELD IN
HIS OR HER NAME AND STILL REMAIN IN THE PLAN?
Yes. A Participant who terminates the reinvestment of dividends paid on
shares registered in his or her name may leave in the Plan the shares previously
purchased for his or her account in the Plan. Dividends paid on the shares left
in the Plan continue to be reinvested automatically for his or her account.
11
<PAGE> 13
TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN
22. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE PLAN?
Under the current provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), the purchase of shares of Common Stock under the Plan will
generally result in the following federal income tax consequences:
(a) A dividend on shares of Capital Stock will be treated for federal
income tax purposes as a dividend received by the Participant
notwithstanding that it is used to purchase additional Common Stock
pursuant to the Plan. The full amount of cash dividends reinvested under
the Plan plus the 3% purchase discount (described in Question 12) on
reinvested dividends and optional cash payments used to purchase shares
from the Company represent dividend income to Participants. In addition,
the amount of any brokerage commissions, mark-ups, and other fees or
expenses incurred by the Company on behalf of a Participant in connection
with purchases on the open market will also constitute a dividend to such
Participant for federal income tax purposes.
(b) Dividends paid to corporate Participants, including amounts
taxable as dividends to corporate Participants under (a) above, will not be
eligible for the corporate dividends-received deduction under the Code.
(c) A Participant's tax basis in additional shares of Common Stock
acquired under the Plan with reinvested dividends will be equal to the
amount treated as a dividend for federal income tax purposes. A
Participant's tax basis in additional shares of Common Stock acquired under
the Plan with optional cash payments will be equal to the amount of the
optional cash payments. The Participant's holding period for shares of
Common Stock acquired with reinvested dividends or optional cash payments
will commence on the day after the Investment Date.
(d) A Participant will not realize any taxable income upon the receipt
of a certificate for full shares credited to the Participant's account. A
Participant will recognize gain or loss when a fractional share interest is
liquidated or when the Participant sells or exchanges shares received from
the Plan. Such gain or loss will equal the difference between the amount
which the Participant receives for such fractional share interest or such
shares and the tax basis therefor.
In the case of Participants whose dividends are subject to withholding of
federal income tax, dividends will be reinvested less the amount of tax required
to be withheld.
The above is intended only as a general discussion of the current federal
income tax consequences of participation in the Plan and is not tax advice.
Participants should consult their own tax advisers regarding the federal and
state income tax consequences (including the effects of any changes in law) of
their individual participation in the Plan.
OTHER INFORMATION
23. WHAT HAPPENS WHEN A PARTICIPANT SELLS OR TRANSFERS ALL OF THE SHARES
REGISTERED IN HIS OR HER NAME OTHER THAN SHARES UNDER THE PLAN?
If a Participant disposes of all of the shares of Capital Stock registered
in his or her name other than shares purchased for the Participant's account
under the Plan, American Stock Transfer, until it is otherwise instructed,
continues to reinvest the dividends on the shares of Common Stock in the
Participant's Plan account. In the event of a Participant's death or incapacity,
the personal representative of his or her estate may provide American Stock
Transfer with a written request of withdrawal of the Participant's Plan shares.
The Company reserves the right not to reinvest any additional dividends if a
Participant has only a fractional share of stock credited to his or her account
under the Plan on the record date for any cash dividend on the Capital
12
<PAGE> 14
Stock. If the Company exercises this right, the Participant will receive a cash
payment representing the fractional share and a cash payment for the dividend.
The cash payment for the fractional share will be based on the closing price of
the Common Stock on the New York Stock Exchange on the date on which the Company
exercises this right.
24. IF THE COMPANY ISSUES RIGHTS TO PURCHASE SECURITIES TO THE HOLDERS OF COMMON
STOCK, HOW WILL THE RIGHTS ON PLAN SHARES BE HANDLED?
In the event that the Company makes available to the holders of its Common
Stock rights to purchase additional shares of Common Stock or any other
securities, American Stock Transfer will sell such rights (if such rights are
saleable and detachable from the Common Stock) accruing to shares of Common
Stock held by American Stock Transfer for Participants and invest the proceeds
in additional shares of Common Stock on the next dividend payment date for the
Common Stock. In the event that such rights are not saleable or detachable, the
Plan will hold such rights for the benefit of Participants. A Participant who
wishes to receive directly any such rights may do so by sending to American
Stock Transfer, at least five business days before the rights offering record
date, a written request that certificates for shares in his or her account be
sent to him or her.
25. WHAT HAPPENS IF THE COMPANY ISSUES A STOCK DIVIDEND OR DECLARES A STOCK
SPLIT?
Any shares representing stock dividends (payable in Common Stock) or stock
splits distributed by the Company on shares of Common Stock credited to the
account of a Participant under the Plan will be added to the Participant's
account. Shares representing stock dividends payable other than in Common Stock
or stock splits distributed by the Company on shares of Common Stock credited to
the account of a Participant under the Plan shall be paid to American Stock
Transfer, which shall distribute the shares in accordance with the interests of
Participants in the Plan. Shares representing stock dividends or split shares
distributed on shares registered in the name of the Participant will be mailed
directly to such Participant in the same manner as to stockholders who are not
participating in the Plan.
26. HOW ARE A PARTICIPANT'S SHARES HELD UNDER THE PLAN TO BE VOTED AT MEETINGS
OF STOCKHOLDERS?
All shares of Common Stock credited to the account of a Participant under
the Plan are voted by American Stock Transfer as record holder in accordance
with instructions of the Participant given to American Stock Transfer on an
instruction form or proxy furnished to the Participant. If the Participant
desires to vote in person at a meeting, a proxy to vote the number of shares
credited to his or her account under the Plan may be obtained upon written
request received by American Stock Transfer at least 15 business days before the
meeting.
27. WHAT ARE THE RESPONSIBILITIES OF THE COMPANY AND AMERICAN STOCK TRANSFER
UNDER THE PLAN?
Neither the Company nor American Stock Transfer will be liable for any act
done in good faith or for any good faith omission to act, including, without
limitation, any claims of liability arising out of a failure to terminate a
Participant's account upon such Participant's death or adjudicated incompetency
prior to the receipt of notice in writing of such death or adjudicated
incompetency, the prices at which shares are purchased for the Participant's
account, the times when purchases are made or fluctuations in the market value
of the Common Stock. Neither the Company nor American Stock Transfer has any
duties, responsibilities or liabilities except those expressly set forth in the
Plan.
THE PARTICIPANT SHOULD RECOGNIZE THAT THE COMPANY CANNOT ASSURE A PROFIT OR
PROTECT AGAINST A LOSS ON THE SHARES PURCHASED BY A PARTICIPANT UNDER THE PLAN.
13
<PAGE> 15
28. MAY THE PLAN BE AMENDED, SUSPENDED OR TERMINATED?
While the Plan is intended to continue indefinitely, the Company reserves
the right to amend, suspend or terminate the Plan at any time, but such action
shall have no retroactive effect that would prejudice the interests of the
Participants. To the extent practicable, notice of such suspension, termination
or amendment will be sent to all Participants at least 30 days prior to its
effective date.
The Company intends to use its best efforts to maintain the effectiveness
of the Registration Statement filed with the Securities and Exchange Commission
(the "Commission") covering the offer and sale of Common Stock under the Plan.
However, the Company has no obligation to offer, issue or sell Common Stock to
Participants under the Plan if, at the time of the offer, issuance or sale, such
Registration Statement is for any reason not effective. Also, the Company may
elect not to offer or sell Common Stock under the Plan to Participants residing
in any jurisdiction or foreign country where, in the judgment of the Company,
the burden or expense of compliance with applicable blue sky or securities laws
makes such offer or sale there impracticable or inadvisable. In any of these
circumstances, dividends, if, as and when declared, will be paid in the usual
manner to the stockholders and any optional cash payments received from any such
stockholder will be returned to him or her.
29. WHO INTERPRETS AND REGULATES THE PLAN?
The Company is authorized to issue such interpretations, adopt such
regulations and take such action as it may deem reasonably necessary to
effectuate the Plan. Any action to effectuate the Plan taken by the Company or
American Stock Transfer in the good faith exercise of its judgment will be
binding on Participants.
RESALE RESTRICTIONS
30. ARE THERE ANY RESTRICTIONS ON THE RESALE OF COMMON STOCK ACQUIRED UNDER THE
PLAN?
Participants who are not "affiliates" of the Company are free to sell at
any time the Common Stock acquired under the Plan. Participants who are
"affiliates" of the Company, as that term is defined in Rule 405 promulgated by
the Commission under the Securities Act, may not publicly reoffer shares
acquired under the Plan except pursuant to Rule 144 of the Securities Act or
pursuant to an effective Registration Statement. Rule 405 defines an "affiliate"
as a person who directly, or indirectly through one or more intermediaries,
controls, is controlled by or under common control with the Company. Directors
and certain officers of the Company may be "affiliates" of the Company under
this definition.
Directors and certain executive officers of the Company participating in
the Plan are also subject to the reporting obligations of Section 16(a) and the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act with
respect to purchases of the Common Stock made under the Plan with optional cash
payments. While such directors and officers are not subject to the short-swing
profit recovery provisions of Section 16(b) of the Exchange Act with respect to
purchases of Common Stock made under the Plan with reinvested dividends, such
purchases must be disclosed on annual reports filed pursuant to Section 16(a) of
the Exchange Act.
LIMITATIONS ON PARTICIPATION
31. ARE THERE LIMITATIONS ON PARTICIPATION IN THE PLAN OTHER THAN THOSE
DESCRIBED ABOVE?
The Company reserves the right to limit participation in the Plan for any
reason, even if a stockholder is otherwise eligible to participate. In order to
enable the Company to meet one of the requirements for continued qualification
as a REIT, the Company's Articles of Incorporation limit ownership by any one
person to no more than 9.0% of any class or series of the Company's outstanding
Capital Stock. No stockholder may
14
<PAGE> 16
acquire any shares pursuant to the Plan that exceed this limit. Some
stockholders may be residents of jurisdictions in which the Company determines
that it may not be legally or economically feasible to offer its shares under
the Plan, and accordingly residents of such jurisdictions may be precluded from
participating in the Plan. The Company has no present plans to limit
participation in the Plan by any stockholder of record for reasons other than
those set forth above, but it reserves such right in the event that it
determines in its sole discretion that such limitation may be in the best
interests of the Company.
32. WHAT LAW GOVERNS THE PLAN?
The terms and conditions of the Plan and its operation shall be governed by
the laws of the State of Maryland.
USE OF PROCEEDS
The Company will receive proceeds from the sale of Common Stock purchased
by American Stock Transfer directly from the Company. The Company intends to use
the proceeds from the sale of its Common Stock for general corporate purposes,
including the repayment of indebtedness, the acquisition and development of
additional apartment home communities, and the repositioning of currently owned
apartment communities.
The Company has no basis for estimating either the number of shares of
Common Stock that ultimately will be sold pursuant to the Plan or the prices at
which such shares will be sold. The Company will not receive any proceeds under
the Plan from the purchase of shares of Common Stock in the open market by
American Stock Transfer.
COMMON STOCK
The Common Stock is listed on the New York Stock Exchange and the Pacific
Stock Exchange under the symbol "BYA." The shares of Common Stock issued or to
be issued upon receipt of payment therefor by the Company in accordance with the
terms set forth in the Plan will be validly issued, fully paid and non-
assessable.
Holders of the Common Stock of the Company are entitled to share equally,
share for share, in dividends payable on shares of Common Stock in cash, stock
or other property, when, as and if declared by the Company's Board of Directors.
In the event of any liquidation, dissolution or winding-up of the Company, the
holders of the Common Stock are entitled to receive, on a share for share basis,
any assets or funds of the Company that are distributable to its holders of
Common Stock upon such events. Holders of Common Stock are entitled to one vote
for each share held on all matters voted upon by stockholders. Holders of Common
Stock are not entitled to preemptive rights or to cumulative voting rights.
The Company's Articles of Incorporation provide that no stockholder may
beneficially own more than 9.0% of any class or series of the Company's
outstanding Capital Stock. Any attempted transfer or acquisition of Capital
Stock that would create a direct or indirect ownership of Capital Stock in
excess of this limit or otherwise result in disqualification of the Company as a
REIT will be null and void. The Company's Articles of Incorporation provide that
Capital Stock subject to this limitation is subject to various rights of the
Company to enforce this limitation, including conversion of the shares into
nonvoting stock and transfer to a trust. The above summary of the ownership
limitation is qualified in its entirety by reference to the Company's Articles
of Incorporation, as amended from time to time. The Company reserves the right
to invalidate any purchases made under the Plan that, in the Company's sole
discretion, may violate the 9.0% ownership limit.
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<PAGE> 17
EXPERTS
The financial statements and schedule thereto incorporated by reference in
this Prospectus or elsewhere in the Registration Statement, to the extent and
for the periods indicated in their report, have been audited by Coopers &
Lybrand L.L.P., independent accountants, and are incorporated herein in reliance
upon the authority of said firm as experts in giving said reports.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Goodwin, Procter & Hoar LLP, Boston, Massachusetts.
CORRESPONDENCE
All correspondence concerning the Plan should be addressed to:
American Stock Transfer & Trust Company
Attention: Dividend Reinvestment Department
40 Wall Street
New York, NY 10005
(Tel. 1-800-278-4353)
16
<PAGE> 18
===============================================================================
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 2
Incorporation of Certain Documents by
Reference............................ 2
The Company............................ 3
Description of the Dividend
Reinvestment and Stock Purchase
Plan................................. 3
Purpose.............................. 3
Advantages to Participants........... 3
Administration....................... 4
Participation........................ 4
Costs................................ 6
Purchases............................ 7
Reports to Participants.............. 9
Dividends............................ 9
Certificates for Shares.............. 10
Sale of Plan Shares.................. 10
Withdrawal from the Plan............. 11
Tax Consequences of Participation in
the Plan.......................... 12
Other Information.................... 12
Resale Restrictions.................. 14
Limitations on Participation......... 14
Use of Proceeds........................ 15
Common Stock........................... 15
Experts................................ 16
Legal Matters.......................... 16
Correspondence......................... 16
</TABLE>
---------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFER MADE
BY THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
===============================================================================
===============================================================================
[BAY APARTMENT COMMUNITIES, INC. LOGO]
1,000,000 SHARES OF
COMMON STOCK
DIVIDEND REINVESTMENT
AND
STOCK PURCHASE PLAN
-------------------------
PROSPECTUS
-------------------------
NOVEMBER 22, 1996
===============================================================================
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated fees and expenses payable by
the Company in connection with the issuance and distribution of the shares of
Common Stock registered hereby:
<TABLE>
<S> <C>
Registration fee................................................ 9,584
NYSE/PSE listing fees........................................... 6,000
Printing expenses............................................... 5,000
Legal fees and expenses......................................... 20,000
Accounting fees and expenses.................................... 2,000
Blue sky fees and expenses...................................... 2,000
Miscellaneous................................................... 2,416
-------
Total........................................................... $47,000
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation and Bylaws, each as amended,
provide certain limitations on the liability of the Company's directors and
officers for monetary damages to the Company. The Articles of Incorporation and
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. The
Company has entered into indemnification agreements with certain of its
executive officers and members of the Board of Directors who are not officers of
the Company, pursuant to which the Company has agreed to indemnify them against
certain liabilities incurred in connection with their service as executive
officers and/or directors. These provisions and contracts could reduce the legal
remedies available to the Company and its stockholders against these
individuals.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
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
23.1 Consent of Coopers & Lybrand LLP, Independent Auditors
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto)
24.1 Powers of Attorney (included on the signature page of this registration statement)
99.1 Form of Authorization Card relating to participation in the Plan
</TABLE>
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 facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration
II-1
<PAGE> 20
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% change in the maximum aggregate offering
price set forth in the "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 undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of any employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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.
II-2
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Act, Bay Apartment
Communities, 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 San Jose, California, on this 31st day of
October, 1996.
BAY APARTMENT COMMUNITIES, INC.
By: /s/ GILBERT M. MEYER
....................................
GILBERT M. MEYER
Chairman of the Board and President
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Bay Apartment Communities, Inc. hereby severally constitute Gilbert
M. Meyer and Max L. Gardner, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Bay Apartment Communities, Inc. to comply with the
provisions of the Securities Act and all requirements of the Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ GILBERT M. MEYER Chairman of the Board, October 29, 1996
.................................... President and Chief Executive
GILBERT M. MEYER Officer (Principal Executive
Officer)
/s/ MAX L. GARDNER Chief Operating Officer and October 29, 1996
.................................... Director
MAX L. GARDNER
/s/ GEOFFREY L. BAKER Chief Development and October 29, 1996
.................................... Acquisitions Officer and
GEOFFREY L. BAKER Director
/s/ BRUCE A. CHOATE Director October 29, 1996
....................................
BRUCE A. CHOATE
/s/ BRENDA J. MIXSON Director October 29, 1996
....................................
BRENDA J. MIXSON
/s/ THOMAS H. NIELSEN Director October 29, 1996
....................................
THOMAS H. NIELSEN
/s/ JOHN J. HEALY, JR. Director October 29, 1996
....................................
JOHN J. HEALY, JR.
/s/ JEFFREY B. VAN HORN Chief Financial Officer October 31, 1996
.................................... (Principal Financial and
JEFFREY B. VAN HORN Accounting Officer)
</TABLE>
II-3
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------------------------------------------------------------------------
<C> <S>
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
23.1 Consent of Coopers & Lybrand LLP, Independent Auditors
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto)
24.1 Powers of Attorney (included in Part II of this Registration Statement)
99.1 Form of Authorization Card relating to participation in the Plan
</TABLE>
<PAGE> 1
EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 583-1231
November 22, 1996
Bay Apartment Communities, Inc.
4340 Stevens Creek Blvd., Suite 275
San Jose, CA 95129
Ladies and Gentlemen:
This opinion is furnished in connection with the registration, pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), of 1,000,000
shares of common stock, $.01 par value (the "Common Stock"), of Bay Apartment
Communities, Inc., a Maryland corporation (the "Company"), pursuant to the
Company's Dividend Reinvestment and Stock Purchase Plan (the "Plan").
In connection with rendering this opinion, we have examined the Articles of
Incorporation and the Bylaws of the Company, each as amended to date; such
records of the proceedings of the Company as we deemed material; a registration
statement on Form S-3 under the Securities Act relating to the Common Stock (the
"Registration Statement") and the prospectus relating to the Common Stock
contained therein (the "Prospectus"), the Plan and such other certificates,
receipts, records and documents as we considered necessary for the purposes of
this opinion.
We are attorneys admitted to practice in the Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdictions other than the
laws of the United States of America and the Maryland General Corporation Law.
Based upon the foregoing, we are of the opinion that, when the Common Stock
has been issued and paid for in accordance with the terms of the Plan, the
Common Stock will be legally issued, fully paid and nonassessable.
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, as to which we express no opinion.
<PAGE> 2
Bay Apartment Communities, Inc.
November 22, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
-------------------------------
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 8.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 583-1231
November 21, 1996
Bay Apartments Communities, Inc.
4340 Stevens Creek Blvd. - Suite 275
San Jose, CA 95129
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as counsel to Bay
Apartment Communities, Inc. (the "Company") in connection with the registration,
pursuant to the Securities Act of 1933, as amended (the "Securities Act"), of
1,000,000 shares of common stock, $.01 par value (the "Common Stock"), of the
Company, pursuant to the Company's Dividend Reinvestment and Stock Purchase Plan
(the "Plan"). This opinion relates to the Company's qualification for federal
income tax purposes as a real estate investment trust (a "REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"), for taxable years
commencing with the Company's taxable year ended December 31, 1994.
We have relied upon the representations of an officer of the Company
regarding the manner in which the Company has been and will continue to be owned
and operated and the continued accuracy of such representations through the date
of this letter. We assume that the Company has been and will be operated in
accordance with applicable laws and the terms and conditions of applicable
documents, and that the descriptions of the Company and its investments, and the
proposed investments, activities, operations and governance of the Company set
forth in the Registration Statements continue to be true. Capitalized terms not
otherwise defined herein shall have the meaning ascribed to such terms in the
Registration Statements. In addition, we have relied on certain additional facts
and assumptions described below.
In redering the following opinion, we have examined the Company's Amended
and Restated Articles of Incorporation, the By-Laws of the Company, its federal
income tax returns for the taxable years ended December 31, 1994 and December
31, 1995 on Form 1120-REIT, and such other records, certificates and documents,
each as amended, as we have deemed necessary or appropriate for purposes of
rendering the opinions set forth herein.
<PAGE> 2
GOODWIN, PROCTER & HOAR LLP
Bay Apartment Communities, Inc.
November 21, 1996
Page 2
In rendering the opinion 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 opinion set forth below is based upon the Code, the Income Tax
Regulations and Procedure and Administration Regulations promulgated thereunder,
and the existing administrative and judicial interpretations thereof, all as
they exist at the date of this letter. All of the foregoing statutes,
regulations and interpretations are subject to change, in some circumstances
with retroactive effect; and changes to the foregoing authorities might result
in modifications of our opinions contained herein.
Based upon and subject to the foregoing, and provided that the Company
continues to meet the applicable asset composition, source of income,
shareholder diversification, distribution, record keeping and other
requirements of the Code necessary for a corporation to qualify as a REIT, we
are of the opinion that commencing with the taxable year ending December 31,
1994, the form of organization of the Company and its operations are such as to
enable the Company to qualify as a "real estate investment trust" under the
applicable provisions of the Code.
We express no opinions other than those expressly set forth herein.
Furthermore, the Company's qualification as a REIT will depend on the Company
meeting, in its actual operations, the applicable asset composition, source of
income, shareholder diversification, distribution, record keeping and other
requirements of the Code necessary for a corporation to qualify as a REIT. We
will not review these operations, and no assurance can be given that the actual
operations of the Company and its affiliates will meet these requirements or
the representations made to us with respect thereto. Our opinions are not
binding on the IRS and the IRS may disagree with the opinions contained herein.
Except as specifically discussed above, the opinion expressed herein is 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.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
---------------------------------
Goodwin, Procter & Hoar LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration of Bay
Apartment Communities, Inc. on Form S-3 (File No. 333- ), of our report
dated January 26, 1996, on our audits of the consolidated financial statements
and financial statement schedule of Bay Apartment Communities, Inc. as of
December 31, 1995 and 1994, and for the year ended December 31, 1995, the
period from March 17, 1994 to December 31, 1994, and the period January 1, 1994
to March 16, 1994, for the Greenbriar Group, which report is included in the
Annual Report on Form 10-K, of our reports dated July 3, 1996, on our audits of
the Historical Summary of Gross Income and Direct Operating Expenses of
Countrybrook Apartments for the three months ended March 31, 1996, and the year
ended December 31, 1995, the Historical Summary of Gross Income and Direct
Operating Expenses of Parkside Commons Apartments for the three months ended
March 31, 1996, and the year ended December 31, 1995, the Historical Summary of
Gross Income and Direct Operating Expenses of Villa Marguerite Apartments for
the three months ended March 31, 1996, and the year ended December 31, 1995,
and the Historical Summary of Gross Income and Direct Operating Expenses of
Sunset Towers Apartments for the three months ended March 31, 1996, and the
year ended December 31, 1995, which reports are included in the Current Report
on Form 8-K, dated May 23, 1996, as amended by the Current Report on Form 8-K/A
dated May 23, 1996, and of our report dated July 30, 1996 and September 17,
1996 on our audits of the Historical Summary of Revenues and Direct Operating
Expenses of The Fountains Apartments and Channing Heights Apartments for the
year ended December 31, 1995, respectively, which reports are included in the
Current Report on Form 8-K dated July 26, 1996. We also consent to the
reference to our Firm under the caption "Experts."
Coopers & Lybrand L.L.P.
San Francisco, California
November 21, 1996
<PAGE> 1
EXHIBIT 99.1
BAY APARTMENT COMMUNITIES, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
AUTHORIZATION CARD
------------------
To American Stock Transfer & Trust Company:
I want to participate in the Dividend Reinvestment and Stock Purchase Plan (the
"Plan") and I hereby appoint you as my agent, and authorize Bay Apartment
Communities, Inc. to pay to you, for my account, cash dividends payable to me on
the shares of Common Stock and Preferred Stock of Bay Apartment Communities,
Inc. registered in my name as follows:
(Check: "I", "II", "III" or "IV" below)
[ ] I. FULL DIVIDEND REINVESTMENT - I instruct you to apply all
dividends payable to me on all shares of Common Stock and
Preferred Stock, if any, registered in my name, including all
shares of Common Stock credited to my Plan account, to the
purchase of additional shares of Common Stock.
[ ] II. PARTIAL DIVIDEND REINVESTMENT ONLY - I instruct you
to apply all dividends payable to me on _____________ shares of
Common Stock, ___________ shares of Series A Preferred Stock and
___________ shares of Series B Preferred Stock, as well as on all
shares of Common Stock credited to my Plan account, to the
purchase of additional shares of Common Stock.
[ ] III. DIVIDEND REINVESTMENT AND OPTIONAL CASH PAYMENTS - I instruct
you to apply all dividends payable to me on _________ shares of
Common Stock, ________ shares of Series A Preferred Stock and
_________ shares of Series B Preferred Stock, as well as on all
shares of Common Stock credited to my Plan account, and an
optional cash payment in the amount of $___________, to the
purchase of additional shares of Common Stock.
[ ] IV. OPTIONAL CASH PAYMENTS ONLY - I instruct you to
apply only the enclosed optional cash payment in the amount of
$_______, as well as any dividends on shares of Common Stock
credited to my Plan account to the purchase of additional shares
of Common Stock.
I authorize you to apply all such dividends received by you, less applicable
brokerage fees, to the purchase of full and fractional shares of Common Stock of
Bay Apartment Communities, Inc. Your appointment as my agent is subject to the
additional terms and conditions set forth in the accompanying brochure.
<TABLE>
IF YOUR BAY APARTMENT COMMUNITIES, INC. STOCK IS REGISTERED IN MORE THAN ONE
NAME, BOTH PERSONS SHOULD SIGN BELOW. EACH NAME SHOULD BE BOTH PRINTED AND
SIGNED, AND INCLUDE YOUR SOCIAL SECURITY/TAX IDENTIFICATION NUMBER.
<S> <C>
Name (Printed) Name (Printed)
-------------------------------------- --------------------------------------
Name (Signed) Name (Signed)
-------------------------------------- --------------------------------------
Street Address City, State and Zip Code
-------------------------------------- ----------------------------
Home/Office Phone Social Security/Tax Identification Number
----------------------------------- ------------
</TABLE>
