<PAGE> 1
As filed with the Securities and Exchange Commission on June 26, 1997
Registration Statement No. 333-16837
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------------
BAY APARTMENT COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
MARYLAND 77-0404318
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4340 STEVENS CREEK BOULEVARD, SUITE 275
SAN JOSE, CA 95129
(Address of Principal Executive Offices)
1996 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan)
---------------------------------------
GILBERT M. MEYER
CHAIRMAN OF THE BOARD AND PRESIDENT
BAY APARTMENT COMMUNITIES, INC.
4340 STEVENS CREEK BOULEVARD, SUITE 275
SAN JOSE, CA 95129
(408) 983-1500
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
---------------------------------------
copy to:
DAVID W. WATSON, ESQ.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MA 02109
(617) 570-1000
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
Bay Apartment Communities, Inc. (the "Company") hereby incorporates by
reference the documents listed in (a) through (d) below, which have previously
been filed with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997;
(c) Current Report on Form 8-K dated January 21, 1997 and Current
Report on Form 8-K dated April 18, 1997, as amended by Current
Reports on Form 8-K/A dated April 18, 1997, as filed on April 21,
1997 and June 16, 1997, respectively; and
(d) The description of the Company's Common Stock contained in its
registration statement on Form 8-A, dated December 7, 1993 filed
with the Commission pursuant to Section 12 of the Exchange Act
and any amendments or reports filed for the purpose of updating
such description.
In addition, all documents subsequently filed by the Company with the
Commission pursuant to Sections 13(a) and (c), Section 14 and Section 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment hereto which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. 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 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5.1* Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
2
<PAGE> 3
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants
23.2* Consent of Goodwin, Procter & Hoar LLP
24.1* Powers of Attorney
99.1 Bay Apartment Communities, Inc. - 1996 Non-Qualified Employee
Stock Purchase Plan
99.2 Bay Apartment Communities, Inc. - 1996 Non-Qualified Employee
Stock Purchase Plan - Plan Information Statement
- --------------------
* Previously filed
Item 9. 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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such indemnification is against
public policy as expressed in the Securities Act 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 and will be governed by
the final adjudication of such issue.
3
<PAGE> 4
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-8 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 26th day of
June, 1997.
BAY APARTMENT COMMUNITIES, INC.
By: /s/ Gilbert M. Meyer
-------------------------------------
Gilbert M. Meyer
Chairman of the Board and President
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 date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Gilbert M. Meyer Chairman of the Board and June 26, 1997
- -------------------------------------------- President (Principal Executive Officer)
Gilbert M. Meyer
* Executive Vice President, Chief June 26, 1997
- -------------------------------------------- Operating Officer and Director
Max L. Gardner
* Vice President, Chief Development June 26, 1997
- -------------------------------------------- and Acquisition Officer and Director
Geoffrey L. Baker
* Director June 26, 1997
- --------------------------------------------
Bruce A. Choate
* Director June 26, 1997
- --------------------------------------------
Brenda J. Mixson
* Director June 26, 1997
- --------------------------------------------
Thomas H. Nielsen
* Director June 26, 1997
- --------------------------------------------
John J. Healy, Jr.
* Vice President and Chief Financial June 26, 1997
- -------------------------------------------- Officer (Principal Financial and
Jeffrey B. Van Horn Accounting Officer)
</TABLE>
* By: /s/ Gilbert M. Meyer
--------------------
Gilbert M. Meyer
Attorney-in-Fact
4
<PAGE> 5
Pursuant to the requirements of the Securities Act, the undersigned
directors who constitute all of the members of the Compensation Committee who
administer the 1996 Non-Qualified Employee Stock Purchase Plan (or other persons
who administer the employee benefit plan) have duly caused this registration
statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of San Jose, State of California, on June 26, 1997.
By: /s/ Gilbert M. Meyer
-------------------------------------
Gilbert M. Meyer
Chairman of the Board and President
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 date indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
* Member of Compensation Committee June 26, 1997
- --------------------------------------------
Bruce A. Choate
/s/ John J. Healy, Jr. Member of Compensation Committee June 26, 1997
- --------------------------------------------
John J. Healy, Jr.
* Member of Compensation Committee June 26, 1997
- --------------------------------------------
Brenda J. Mixson
* Member of Compensation Committee June 26, 1997
- --------------------------------------------
Thomas H. Nielsen
</TABLE>
* By: /s/ Gilbert M. Meyer
---------------------
Gilbert M. Meyer
Attorney-in-Fact
5
<PAGE> 6
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
5.1* Opinion of Goodwin, Procter & Hoar LLP as to the legality
of the securities being registered
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants
23.2* Consent of Goodwin, Procter & Hoar LLP
24.1* Powers of Attorney
99.1 Bay Apartment Communities, Inc. - 1996 Non-Qualified
Employee Stock Purchase Plan
99.2 Bay Apartment Communities, Inc. - 1996 Non-Qualified
Employee Stock Purchase Plan - Plan Information Statement
- ------------
* Previously filed.
6
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Bay Apartment Communities, Inc. on Form S-8 (File No. 333-16837) of our report
dated January 24, 1997, except for note 14 for which the date is March 7, 1997,
on our audits of the consolidated financial statements and financial statement
schedule of Bay Apartment Communities, Inc. as of December 31, 1996 and 1995,
and for the two years in the period ended December 31, 1996, 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 1996 Annual
Report on Form 10-K, of our reports dated March 18, 1997, on our audits of the
Historical Summary of Revenues and Direct Operating Expenses of Rancho
Penasquitos Racquet Club for the year ended December 31, 1996, the Historical
Summary of Revenues and Direct Operating Expenses of The Village Apartments for
the year ended December 31, 1996, the Historical Summary of Revenues and Direct
Operating Expenses of Banbury Cross Apartments for the year ended December 31,
1996, and the Historical Summary of Revenues and Direct Operating Expenses of
Villa Serena Apartments for the year ended December 31, 1996, which are included
in the Current Report on Form 8-K dated April 18, 1997, and of our report dated
March 18, 1997, on our audit of the Historical Summary of Revenues and Direct
Operating Expenses of Genesee Gardens Apartments for the year ended December 31,
1996, which is included in the Current Report on Form 8-K/A dated April 18,
1997.
/s/ COOPERS & LYBRAND L.L.P.
San Francisco, California
June 26, 1997
<PAGE> 1
Exhibit 99.1
BAY APARTMENT COMMUNITIES, INC.
1996 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
JUNE 26, 1997
<PAGE> 2
TABLE OF CONTENTS
Section Page
- ------- ----
1. Purpose............................................................A-1
2. Definitions........................................................A-1
2.1 Account......................................................A-1
2.2 Bay..........................................................A-1
2.3 Beneficiary..................................................A-1
2.4 Board........................................................A-1
2.5 Closing Price................................................A-1
2.6 Committee....................................................A-1
2.7 Election Form................................................A-1
2.8 Election Period..............................................A-1
2.9 Eligible Director............................................A-1
2.10 Eligible Employee............................................A-2
2.11 Participant..................................................A-2
2.12 Participating Employer.......................................A-2
2.13 Plan.........................................................A-2
2.14 Plan Administrator...........................................A-2
2.15 Purchase Period..............................................A-2
2.16 Purchase Price...............................................A-2
2.17 Stock........................................................A-2
3. Stock Issuable.....................................................A-2
4. Administration.....................................................A-3
5. Participation......................................................A-3
6. Contributions......................................................A-3
(a) Initial Contributions...............................A-3
(b) Changes in Contributions and Withdrawals............A-4
(c) Section 401(k) Hardship Withdrawals.................A-4
(d) Account Credits, General Assets and Taxes...........A-4
(e) Automatic Refunds...................................A-4
7. Purchase of Stock..................................................A-5
8. Delivery...........................................................A-5
9. Designation of Beneficiary.........................................A-5
(i)
<PAGE> 3
Section Page
- ------- ----
10. Transferability....................................................A-6
11. Amendment or Termination...........................................A-6
12. Notices............................................................A-6
13. Employment.........................................................A-6
14. Employment Transfers...............................................A-7
15. Shareholder Approval...............................................A-7
16. Headings, References and Construction..............................A-7
(ii)
<PAGE> 4
1. Purpose
The primary purpose of this Plan is to encourage Stock ownership by
each Eligible Director and each Eligible Employee in the belief that such
ownership will increase his or her interest in the success of Bay.
2. Definitions
2.1 Account shall mean the separate bookkeeping account which shall be
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 the Plan.
2.2 Bay shall mean Bay Apartment Communities, Inc., a corporation
incorporated under the laws of the State of Maryland, and any successor to Bay.
2.3 Beneficiary shall mean the person designated as such in accordance
with Section 9.
2.4 Board shall mean the Board of Directors of Bay.
2.5 Closing Price (a) for the first day of any Purchase Period shall
mean the closing price for a share of Stock as reported for such day on the New
York Stock Exchange or, if no such closing price is so reported for such day,
the first 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 of the first day of such Purchase Period by the Committee and (b)
for the last day of a Purchase Period shall mean the closing price for a share
of Stock as reported for such day on the New York Stock Exchange 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.
2.6 Committee shall mean the Compensation Committee of the Board.
2.7 Election Form shall mean the form which an Eligible Director or
Eligible Employee shall be required to properly complete in writing and timely
file in order to make any of the elections available to an Eligible Director or
Eligible Employee under this Plan.
2.8 Election Period shall mean a period which (a) shall come before a
related Purchase Period and (b) shall continue for two calendar months (or such
other period as may be set by the Committee).
2.9 Eligible Director shall mean a person (other than an officer or
employee of Bay or a Participating Employer) who has been a member of the Board
for at least one full calendar month.
A-1
<PAGE> 5
2.10 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 full-time employee and has completed at least one full calendar
month of employment with a Participating Employer; or
(b) who has performed one "year of service," defined as any
twelve-month period beginning on such employee's first day of employment or on
any anniversary thereof in which he or she is credited with at least 1,000 hours
of service.
2.11 Participant shall mean (a) for each Purchase Period an Eligible
Director or Eligible Employee who has elected to purchase Stock in accordance
with Section 5 in such Purchase Period and (b) for any period any person for
whom Stock is held pending delivery under Section 8.
2.12 Participating Employer shall mean Bay Apartment Communities, Inc.
and any organization owned in whole or in part, directly or indirectly, by Bay
Apartment Communities, Inc., which is designated as such by the Committee.
2.13 Plan shall mean the Bay Apartment Communities, Inc. - 1996 Non-
Qualified Employee Stock Purchase Plan, as amended and restated, as originally
effective as of October 29, 1996 and as thereafter amended from time to time.
2.14 Plan Administrator shall mean Bay or Bay's delegate.
2.15 Purchase Period shall mean a period of six months beginning each
January 1 and July 1 or such other period set by the Committee before the
beginning of the related Election Period which shall begin on a date which
follows the end of such Election Period and which shall run for no more than one
year.
2.16 Purchase Price for each Purchase Period shall mean a price which
is equal to the lesser of 85% of the Closing Price for a share of Stock on the
first day of such period or 85% of the Closing Price on the last day of such
period.
2.17 Stock shall mean the $.01 par value common stock of Bay.
3. Stock Issuable.
The maximum number of shares of Stock reserved and available for
purchase under the Plan shall be 1,000,000 shares. The shares available for
purchase under the Plan may be authorized but unissued shares of Stock,
shares held in the treasury of Bay, or from any other proper source. In the
event of a stock dividend, stock split or similar capitalization affecting the
Stock, the Committee shall make appropriate adjustments in the number of shares
of Stock available for issuance under the Plan and the Purchase Price.
A-2
<PAGE> 6
4. Administration
Except for the exercise of those powers expressly granted to the
Committee to determine the Closing Price and who is a Participating Employer and
to set the Election Period and 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 Director, each
Eligible Employee, each Participant and on each other person who makes a claim
under this Plan based on the rights, if any, of any such Eligible Director,
Eligible Employee or Participant under this Plan.
5. Participation
Each person who is an Eligible Director or an Eligible Employee on the
last day of an Election Period shall be a Participant in this Plan for the
related Purchase Period if he or she properly completes and files an Election
Form with the Plan Administrator on or before such date to elect to participate
in this Plan. An Election Form may require an Eligible Employee to provide such
information and to agree to take such action (in addition to the action required
under Section 6) as the Plan Administrator deems necessary or appropriate in
light of the purpose of this Plan or for the orderly administration of this
Plan. By completing and filing an Election Form, each Participant thereby
agrees that after acquiring Stock pursuant to Section 7 hereof, such Stock will
not be sold, transferred or otherwise disposed of by such Participant within
six (6) months of the date of such purchase without the prior written consent
of Bay. Any request for such consent shall be made in writing addressed to Bay
at the following address: 4340 Stevens Creek Blvd., Suite 275, San Jose, CA
95129, Attention: Chief Financial Officer.
6. Contributions
(a) Initial Contributions. Each Participant's Election Form
under Section 5 shall specify the contributions which he or she proposes to make
for the related Purchase Period by means of payroll deduction and shall indicate
whether he or she proposes to make cash contributions. Contributions by means of
payroll deduction shall be expressed as a specific dollar amount or a percentage
of the Participant's compensation that his or her Participating Employer is
authorized to deduct from his or her compensation each pay day during the
Purchase Period, provided
(1) the minimum payroll deduction for a Participant for
each pay period for purchases under this Plan shall be $10.00, and
(2) the maximum payroll contribution and cash contribution
which a Participant can make for purchases under this Plan for any calendar year
shall be $100,000.
A-3
<PAGE> 7
Any contributions which a Participant elects to make in cash may be
made at any time during a Purchase Period, up through the last day of the
Purchase Period.
(b) Changes in Contributions and Withdrawals. A Participant
shall have the right to amend his or her Election Form after the end of an
Election Period to change or to stop his or her payroll contributions, and such
election shall be effective as soon as practicable after the Plan Administrator
actually receives such amended Election Form. A Participant also shall have the
right at any time on or before 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 on or before 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.
(c) Section 401(k) Hardship Withdrawals. If an Eligible
Employee makes a hardship withdrawal from an employee benefit plan maintained by
Bay or any Participating Employer and the Plan Administrator determines that
such withdrawal requires a suspension of contributions under this Plan in order
for such other plan to continue to satisfy the requirements of Section 401(k) of
the Internal Revenue Code of 1986, as amended, the Plan Administrator shall have
the right unilaterally to suspend such contributions.
(d) Account Credits, General Assets and Taxes. All payroll
deductions made for a Participant shall be credited to his or her Account as of
the pay day on 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 Bay or by such Participant's Participating Employer, as agent
for Bay. All such contributions shall be held as part of the general assets of
Bay and shall not be held in trust or otherwise segregated from Bay'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 Bay. 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 Stock made
under this Plan. If a Participant elects to withdraw all of his or her Account
under Section 6(b), his or her status as a Participant shall terminate as of the
date the Plan Administrator receives such election.
(e) Automatic Refunds. 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, and 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 a Participating Employer 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. A person's
A-4
<PAGE> 8
status as a Participant under this Plan shall terminate at the same time as his
or her status as an Eligible Director or Eligible Employee terminates.
7. Purchase of Stock
If a Participant is an Eligible Director or an Eligible Employee
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
in full to purchase Stock at the Purchase Price for such Stock for such Purchase
Period. Such Stock shall be purchased on behalf of the Participant by operation
of this Plan in whole shares and in any fraction of a whole share (computed to
the number of decimal places set by the Plan Administrator) which can be
purchased with the remaining balance credited to the Participant's Account.
8. Delivery
Unless otherwise requested by the Participant, shares of Stock
purchased under the Plan will be held in the name of Bay's transfer agent or its
nominees. The number of shares credited to a Participant's account under the
Plan will be shown on his or her statement of accounts. Upon the written request
of a Participant, a stock certificate representing any shares of Stock purchased
under this Plan shall be delivered to a Participant registered in his or her
name or, if the Participant so elects on such Election Form and if 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 all of the shares of Stock held for such Participant)
in lieu of such fractional share and (c) the Plan Administrator shall have the
right to charge a Participant for registering Stock in the name of a 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 the certificate for such shares of Stock has been
delivered to such person or such shares have been credited to a brokerage
account maintained for the benefit of such person.
9. 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 Stock has 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
A-5
<PAGE> 9
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 are unknown, then the Participant's
estate shall be treated as his or her designated Beneficiary under this Section
9.
10. Transferability
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 designated Beneficiary
or by any other person during his or her lifetime, and any attempt to do so
shall be without effect.
11. 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 Bay's shareholders to the extent such approval is
required under the laws of the State of Maryland; provided, however, no
amendment shall be retroactive unless the Board in its discretion determines
that such amendment is in the best interest of Bay 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
elections) 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 of this Plan.
12. 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.
13. 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 Director or
Eligible Employee shall be induced to participate in this Plan, or shall
participate
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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.
14. Employment Transfers
No Eligible Employee's employment shall be treated as terminated under
this Plan as a result of a transfer between, or among, Participating Employers.
15. Headings, References and Construction
The headings to sections in this Plan have been included for
convenience of reference only. Except as otherwise expressly indicated, all
references to sections (Section) made herein shall be to sections (Section) of
this Plan. This Plan shall be interpreted and construed in accordance with the
laws of the State of Maryland.
BAY APARTMENT COMMUNITIES, INC.
/s/ Gilbert M. Meyer
By:_____________________________________
President
Title:__________________________________
Date of approval of initial Plan by
Board of Directors: October 29, 1996
Date of approval of amended and restated
Plan by Board of Directors: April 25, 1997
Effective date of April 1997 amendments: October 29, 1996
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Exhibit 99.2
BAY APARTMENT COMMUNITIES, INC.
1,000,000 Shares of Common Stock
Offered in Connection with the
BAY APARTMENT COMMUNITIES, INC.
1996 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING
SECURITIES THAT HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933
The information set forth herein relates to an aggregate of 1,000,000
shares of common stock,par value $0.01 per share ("Common Stock"), of Bay
Apartment Communities, Inc. (the "Company"), which have been reserved for
issuance to employees and directors of the Company or its subsidiaries under
the Bay Apartment Communities, Inc. - 1996 Non-Qualified Employee Stock
Purchase Plan (the "Plan") and interests in such Plan. The information
contained herein also relates to such additional shares of Common Stock as may
be issuable under the Plan in the event of a stock dividend, stock-split,
split-up, recapitalization or other similar event. See "Administration of the
Plan."
The Company's Common Stock is listed on the New York Stock Exchange and
the Pacific Exchange under the symbol "BYA".
The date of this Plan Information Statement is June 26, 1996.
<PAGE> 2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company has filed with the Securities and Exchange Commission a
registration statement on Form S-8 under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the shares described herein (the
"Registration Statement"). For further information, reference is made to the
Registration Statement, including the documents incorporated by reference
therein, which documents are also incorporated by reference in the Prospectus
under the Securities Act. Statements contained herein concerning the provisions
of certain documents are not necessarily complete and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement, each statement being qualified in all respects by such
reference.
The Company will provide without charge to each participant in the
Plan, on the written or oral request of such person, a copy of (i) any or all of
the documents which have been or may be incorporated by reference in Item 3 of
the Registration Statement relating to the shares described herein, other than
exhibits to such documents unless such exhibits are specifically incorporated by
reference into such documents, including, without limitation, the Company's
annual report on Form 10-K and the Company's quarterly reports for the current
fiscal year and (ii) any other documents required to be delivered to
participants pursuant to Rule 428(b) under the Securities Act. Requests for such
copies, as well as additional information about the Plan and its administrators,
should be directed to: Chief Financial Officer, Bay Apartment Communities, Inc.,
4340 Stevens Creek Boulevard, Suite 275, San Jose, CA 95129
(Tel.#408-983-1500).
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the statement contained herein to the extent that a statement
contained herein or in any subsequently filed document which 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 to
constitute a part of the information contained herein, except as so modified or
superseded.
DESCRIPTION OF THE PLAN
THE PLAN
The Plan was adopted by the Board of Directors on October 29, 1996 and
became effective as of such date (the "Effective Date"). The Plan was
subsequently amended and restated on April 25, 1997, and such amendments became
effective retroactively as of October 29, 1996. The aggregate maximum number of
shares available for purchase under the Plan is 1,000,000 shares of Common
Stock, subject to adjustments for changes in the Company's capitalization.
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The Plan is not subject to the provisions of the Employee Retirement
Income Security Act of 1974 and is not a qualified plan under Section 401(a) of
the Internal Revenue Code of 1986, as amended (the "Code"). The Plan is governed
by Maryland law except to the extent such law is preempted by federal law.
PURPOSE
The purpose of the Plan is to provide eligible employees and directors
of the Company and certain of its subsidiaries with opportunities to purchase
shares of Common Stock, upon favorable terms, directly from the Company.
ADMINISTRATION OF THE PLAN
The Plan provides that it may be administered by the Board of Directors
of the Company or by a committee (the "Committee") appointed by the Board of
Directors. The Plan is currently administered by the Compensation Committee of
the Board of Directors, the members of which are listed in the Appendix to this
Plan Information Statement. Subject to the terms of the Plan, the Board of
Directors or the Committee has authority to make rules and regulations for the
administration of the Plan; its interpretations and decisions with regard
thereto shall be final and conclusive. The Committee has appointed American
Stock Transfer and Trust Company, New York, New York as its agent in
administering the Plan.
In the event of a subdivision of outstanding shares of Common Stock, or
the payment of a dividend in Common Stock, the number of shares approved for
this Plan shall be increased proportionately, and such other adjustment shall
be made as may be deemed equitable by the Committee. In the event of any other
change affecting the Common Stock, such adjustment shall be made as may be
deemed equitable by the Committee to give proper effect to such event.
All funds received or held by the Company under the Plan may be
combined with other corporate funds and may be used for any corporate purpose.
PURCHASE PERIODS
The Plan provides for a series of "Purchase Periods." A Purchase Period
is a period of six months beginning each January 1 and July 1 and ending each
June 30 and December 31, respectively. The initial Purchase Period will begin on
January 1, 1997 and will end on June 30, 1997. Eligible employees and directors
may contribute to the Plan during a Purchase Period and purchase Common Stock at
the end thereof.
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<PAGE> 4
ELIGIBILITY
All full-time employees of the Company, and all full-time employees of
subsidiaries and affiliates of the Company designated by the Committee from time
to time and listed in the Appendix to this Plan Information Statement (a
"Participating Employer"), are eligible to participate in any one or more of the
Purchase Periods under the Plan, provided that as of the last day of the
applicable Election Period (as defined below) they have been employed by the
Company or a Participating Employer for at least one month. All other employees
of the Company and the Participating Employers are eligible to participate,
provided that as of the applicable Election Period they have performed one "year
of service," defined as any twelve-month period beginning on their first day of
employment or any anniversary thereof in which they are credited with at least
1,000 hours of service. All non-employee directors of the Company are eligible
to participate in any one or more of the Purchase Periods under the Plan,
provided that as of the last day of the applicable Election Period they have
been members of the Board of Directors of the Company for at least one month.
PARTICIPATION IN PURCHASE PERIODS
Eligible employees and directors may elect to participate in the Plan
by completing and submitting an election form to the Plan Administrator any time
during the Election Period, which starts one month before the first day of the
Purchase Period and ends one month after the first day of the Purchase Period.
The form will state a specific dollar amount or a percentage of compensation to
be deducted from the participant's compensation each pay period (which amount
shall be at least $10.00 per pay period) during such Purchase Period. Eligible
employees and directors may also indicate on the election form whether or not
they plan to make additional cash contributions. Cash contributions may be made
at any time, but must be completed before the end of the Purchase Period. The
election form will also authorize the purchase of Common Stock under the Plan
and, if the participant elects, will authorize the delivery of certificates
representing the shares purchased to the participant and specify the name or
names in which such stock certificates are to be issued (see "Delivery of
Shares"). The maximum contribution that a participant may make during a calendar
year is $100,000.
The Company or its agent will maintain book accounts showing the amount
of cash contributions and payroll deductions made by each participant for each
Purchase Period. No interest will accrue on any contributions to the Plan.
PAYROLL DEDUCTION CHANGES; WITHDRAWAL FROM PLAN
A participant may increase, reduce or stop his payroll deductions at
any time during a Purchase Period by filing an amended election form with the
Plan
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Administrator. Such a change will be effective as soon as practicable after the
Plan Administrator receives the amended election form.
A participant may withdraw all or any part of the contributions
credited to his account for the Purchase Period by delivering an amended
election form to the Plan Administrator on or before the last day of such
Purchase Period. The participant's withdrawal will be effective as of the day
the Plan Administrator receives the amended election form. Following a
participant's complete withdrawal, the Company will promptly refund to him his
entire account balance under the Plan.
PURCHASE OF STOCK
If an eligible employee or director continues to be a participant in
the Plan through the end of the Purchase Period, the accumulated cash
contributions and payroll deductions credited to his account during such
Purchase Period shall be applied in full to purchase whole and fractional shares
of Common Stock at the applicable Purchase Price. The purchase price for each
share purchased during a Purchase Period will be 85% of the Closing Price for a
share of Common Stock on the first day of the Purchase Period or the last day of
the Purchase Period, whichever is less. For these purposes, the "Closing Price"
means the closing price of the Common Stock as reported on the New York Stock
Exchange on a given day or, if no sales of Common Stock were made on that day,
the last reported sale price of the Common Stock on the next preceding day on
which sales were made.
If the remaining shares of Common Stock reserved for the purposes of
the Plan are insufficient to satisfy all purchase requirements, the available
shares shall be apportioned among participants in proportion to the amount of
cash contributions and payroll deductions accumulated on behalf of each
participant that would otherwise be used to purchase stock at the end of such
Purchase Period. Any excess contributions will be refunded to the participants.
The Company will issue to each participant after the end of each
Purchase Period a statement showing the total amount of cash contributions and
payroll deductions credited during such Purchase Period and the total number of
shares of Common Stock purchased by such employee or director in such Purchase
Period.
REQUIRED HOLDING PERIOD
As a condition of participating in the Plan, each Participant agrees
that after acquiring shares of Common Stock pursuant to the Plan, such shares
of Common Stock will not be sold, transferred or otherwise disposed of by such
Participant within six (6) months of the date of such purchase without the
prior written consent of the Company. Any request for such consent shall be
made in writing addressed to the Company at the following address: 4340
Stevens Creek Blvd., Suite 275, San Jose, California 95129, Attention: Chief
Financial Officer.
DELIVERY OF SHARES
Unless requested by the participant, certificates for shares of Common
Stock purchased under the Plan will not be issued. Shares will be held by the
Company or an agent of the Company and the number of shares credited to a
participant's account under the Plan will be shown on the participant's
statement. Certificates for any number of whole shares credited to a
participant's account under the Plan will be issued upon the written request of
a participant on an election form. The remaining
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whole shares and fractional shares, if any, will continue to be credited to the
participant's account. Certificates may be issued in the name of the
participant, or in the name of the participant and another person of legal age
as joint tenants with rights of survivorship. Shares may be issued from
authorized but unissued Common Stock, from shares held in the treasury of the
Company, or from any other proper source.
NON-ASSIGNMENT OF INTEREST; LIENS
A participant's rights under the Plan may not be transferred other than
by will or the laws of descent and distribution, and are exercisable during the
participant's lifetime only 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 may pledge shares that have been issued in his name.
There is no provision under the Plan, or pursuant to any contract in connection
therewith, that would permit any person to create a lien on any participant's
account.
RIGHTS ON RETIREMENT, DEATH OR OTHER TERMINATION OF EMPLOYMENT
If a participant's employment or status as a member of the Board of
Directors terminates for any reason during a Purchase Period, no payroll
deduction will be taken from any compensation due and owing to the participant
and the balance in the participant's account and any shares of stock held by the
Company due to prior purchases under the Plan will be paid to the participant
or, in the case of the participant's death, to the participant's designated
beneficiary. An eligible employee also will be deemed to have terminated
employment, for this purpose, if the corporation that employs the employee
ceases to be a Participating Employer or if the employee is transferred to any
corporation other than the Company or a Participating Employer.
DISPOSITION OF STOCK
Once the stock certificate has been issued to a participant, the
participant may sell, pledge, transfer, hypothecate or otherwise dispose of his
or her shares of Common Stock acquired pursuant to the Plan in any manner
permitted under federal and state securities laws.
The Registration Statement relating to the shares described herein does
not apply to reoffers or resales by "affiliates" of the Company of shares of
Common Stock acquired by them under the Plan. Rule 405 under the Securities Act
provides that an "affiliate" of the Company is "a person that directly, or
indirectly through one or more intermediaries, controls, or is controlled by, or
is under common control with" the Company. Affiliates must effect such reoffers
or resales either pursuant to an exemption from registration under the
Securities Act (such as an exemption obtained through compliance with Rule 144)
or pursuant to a separate prospectus covering such
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reoffer or resale. Persons who are not affiliates of the Company generally are
entitled to make such reoffers or resales without restrictions.
In addition, every person who is directly or indirectly the beneficial
owner of more than ten percent (10%) of the outstanding shares of Common Stock,
every director and every person who is an officer (within the meaning of Rule
16a-1) of the Company or, in certain circumstances, a subsidiary of the Company,
is subject to Sections 16(a) and 16(b) of the Exchange Act, which provide for,
respectively, (i) the reporting to the Securities and Exchange Commission of
purchases and sales of the equity and derivative securities of the Company, and
(ii) the recovery of the difference between the prices of any purchase and sale
or any sale and purchase of an equity or derivative security of the Company
within a six-month period, without regard to offsetting losses, unless such
purchase or sale is exempt. The rules are applied mechanically to maximize
recoverable "profits" and may result in liability even though the overall
trading actually resulted in a loss. Purchases of stock under the Plan will be
exempt from the reporting and liability provisions, while sales of stock
purchased under the Plan will generally not be exempt.
To avoid short-swing profits liabilities, a participant in the Plan who
is subject to Section 16(a) and Section 16(b) of the Exchange Act should keep in
mind the following: (a) sales of stock purchased under the Plan should be
reported on Form 4 within ten (10) days after the end of the month in which the
stock is sold; and (b) stock purchased under the Plan generally should not be
sold within six (6) months before or after any non-exempt purchase of the
Company's equity or derivative securities.
The "inside information" provisions of the federal securities laws
impose further restrictions on resales by any individual, whether or not the
individual is an affiliate or an officer or a director of the Company or any of
its subsidiaries.
A discussion of the tax consequences involved in the sale of stock
acquired under the Plan is contained below in the "Federal Income Tax
Consequences of the Plan" section.
TAX WITHHOLDING
Employee participants in the Plan are subject to any required tax
withholding on compensation earned under the Plan. The Company will have the
right to deduct any such taxes, in its sole discretion, from any amount payable
to the employee participants or from any payment of any kind otherwise due to
such participants. Employee participants who wish to avoid the withholding of
shares otherwise issuable to them under the Plan should arrange with the Company
to pay the amount of taxes required to be withheld.
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PLAN AMENDMENT AND TERMINATION
This Plan and/or a Purchase Period may be terminated at any time by the
Company's Board of Directors. Upon termination of this Plan all amounts in the
accounts of participants shall be promptly refunded.
The Board of Directors may at any time, and from time to time, amend
this Plan in any respect.
FEDERAL INCOME TAX CONSEQUENCES OF THE PLAN
The following is a brief discussion of certain federal tax consequences
of participation in the Plan. Under the current provisions of the Code, the
purchase of shares of Common Stock under the Plan will generally result in the
following federal income tax consequences:
(a) The Plan is not an "employee stock purchase plan" within the
meaning of Section 423(b) of the Code. Therefore, an eligible employee or
director participating in the Plan will have taxable compensation income equal
to the difference between the fair market value of the shares of Common Stock
purchased by the eligible employee or director on the applicable purchase date
and the Purchase Price for such shares.
(b) A participant's tax basis in the shares of Common Stock acquired
under the Plan will be equal to the fair market value of the shares on the
applicable purchase date. The participant's holding period for shares of Common
Stock acquired on any purchase date will start on such date.
(c) The Company generally will be entitled to a tax deduction equal to
the amount includable in the income of the participant.
(d) A participant will not realize any taxable income upon the receipt
of a certificate for full shares. A participant will recognize gain or loss when
a fractional share is liquidated or when the participant sells or exchanges
shares received under the Plan. Such gain or loss will equal the difference
between the amount which the participant receives for such fractional share or
such shares and the tax basis therefor.
The above is intended only as a general discussion of the federal
income tax consequences of participation in the Plan. Participants should
consult their own tax advisors regarding these and other federal tax
consequences (including the effects of any change in law) of their individual
participation in the Plan. In addition, state, local and foreign tax
consequences vary from jurisdiction to jurisdiction, and each participant should
consult his own tax adviser as to the effect of these taxes in his or her own
particular case.
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APPENDIX TO PLAN INFORMATION STATEMENT
BAY APARTMENT COMMUNITIES, INC.
1996 NON-QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
Plan Administrators
The Plan is currently being administered by the Compensation Committee
of the Board of Directors. The Compensation Committee, comprised of four
non-employee directors of the Company, exercises all powers of the Board of
Directors in connection with compensation matters, including incentive
compensation and benefit plans. The members of the Compensation Committee, as
well as all members of the Board of Directors, are elected at each annual
meeting of the stockholders (the "Annual Meeting") to serve until the next
Annual Meeting, at which time they may or may not be reelected. The names and
addresses of the current members of the Compensation Committee are as follows:
Bruce A. Choate
John J. Healy, Jr.
Brenda J. Mixson
Thomas H. Nielsen
Bay Apartment Communities, Inc.
4340 Stevens Creek Boulevard
Suite 275
San Jose, California 95129
(408) 983-1500
Participating Employers
Employees of the Company and any organization owned in whole or in
part, directly or indirectly, by the Company, which is designated as such by the
Compensation Committee, are eligible to participate in the Plan if they meet
the eligibility requirements under the Plan.
9
