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As filed with the Securities and Exchange Commission on June 4, 1998
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
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)
AVALON BAY COMMUNITIES, INC. - 1994 STOCK INCENTIVE 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, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MA 02109
(617) 570-1000
____________________
Calculation of Registration Fee
<TABLE>
<CAPTION>
=======================================================================================================================
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price per Share Aggregate Offering Price Registration Fee
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000(3) $ 36.56 $18,281,250 $ 9,437(4)(5)
$.01 par value(2) 2,150,084(3) $ 34.04 $73,184,220
- -----------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
1994 Stock Incentive Plan, as amended and restated (the "Plan"), in the
event of a stock dividend, reverse stock split, split-up, recapitalization
or other similar event.
(2) This registration statement also relates to the rights (the "Rights") to
purchase shares of Series E Junior Participating Cumulative Preferred Stock
of the Registrant which are attached to all shares of the Registrant's
common stock, par value $.01 per share ("Common Stock"), outstanding as of,
and issued subsequent to, March 10, 1998, pursuant to the terms of the
Registrant's Shareholder Rights Agreement, dated March 9, 1998. Until the
occurrence of certain prescribed events, the Rights are not exercisable,
are evidenced by the certificates for Common Stock and will be transferred
with and only with such stock.
(3) This registration statement relates to 500,000 shares of the Registrant's
Common Stock issuable upon exercise of options that may be granted under
the Plan. This registration statement also relates to 2,150,084 shares of
the Registrant's Common Stock that may be issued upon exercise of options
(the "Avalon Options") granted by Avalon Properties, Inc., a Maryland
corporation ("Avalon"), which will be assumed by the Registrant upon
consummation of the merger (the "Merger") of Avalon with and into the
Registrant, with the Registrant as the surviving corporation.
(4) Computed in accordance with Rule 457(h).
(5) In connection with the filing of its Registration Statement on Form S-4
(File No. 333-51821) (the "S-4 Registration Statement"), Bay Apartment
Communities, Inc. paid a registration fee on an aggregate of 34,892,379
shares of Common Stock, calculated in accordance with Rule 457(f)(1),
including 1,747,389 shares of the Registrant's Common Stock issuable upon
exercise of the Avalon Options. Accordingly, the Registrant is applying
$18,996, the portion of the fee paid under the S-4 Registration Statement
for the Common Stock issuable upon exercise of the Avalon Options, against
the fee payable for the securities registered hereunder.
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This Registration Statement on Form S-8 relates to (i) 500,000 additional
shares of Common Stock of Bay Apartment Communities, Inc., a Maryland
corporation (to be renamed "Avalon Bay Communities, Inc." following consummation
of the Merger and hereinafter referred to as the "Company"), which may be issued
under the Plan, and (ii) 2,150,084 shares of Common Stock of the Company that
may be issued under stock options previously granted by Avalon and which shall
be assumed by the Company upon consummation of the Merger. The Company hereby
incorporates by reference the contents of its Registration Statement on
Form S-8, File No. 333-47405, filed with the Commission on March 5, 1998,
covering an aggregate of 2,000,000 shares of Common Stock (including the
Registration Statements on Form S-8 incorporated by reference therein).
PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The Company hereby incorporates by reference the documents listed in (a)
through (c) below, which have previously been filed with the Securities and
Exchange Commission (the "Commission").
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed with the Commission on March 31, 1998, as
amended by Annual Report on Form 10-K/A filed April 16, 1998, pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange
Act");
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1998, filed with the Commission on May 15, 1998, pursuant to the
Exchange Act;
(c) The Company's (i) Current Report on Form 8-K filed January 8, 1998,
(ii) Current Report on Form 8-K filed January 21, 1998, (iii) Current
Report on Form 8-K filed March 11, 1998, (iv) Current Report on Form
8-K filed March 27, 1998, (v) Current Report on Form 8-K filed April
16, 1998 and (vi) Current Report on Form 8-K filed April 22, 1998, each
filed with the Commission pursuant to the Exchange Act; and
(d) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
December 7, 1993, and the description of the Company's Rights contained
in its Registration Statement on Form 8-A, filed with the Commission on
March 11, 1998, each under 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 8. Exhibits.
--------
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 (included in Exhibit 5.1
hereto).
24.1 Power of Attorney (included in Part II of this registration
statement).
99.1 Avalon Bay Communities, Inc. - 1994 Stock Incentive Plan, as amended
and restated. (Incorporated by reference to Exhibit 10.2 to Form S-4
of Bay Apartment Communities, Inc., filed May 5, 1998.)
2
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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, State of California as of this 4th day
of June, 1998.
BAY APARTMENT COMMUNITIES, INC.
By: /s/ Gilbert M. Meyer
--------------------
Gilbert M. Meyer
Chairman of the Board and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Bay Apartment Communities, Inc., hereby severally constitute and
appoint Gilbert M. Meyer and Jeffrey B. Van Horn, and each of them acting
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 as of
the date indicated.
Signature Capacity Date
--------- -------- ----
/s/ Gilbert M. Meyer Chairman of the Board, President June 4, 1998
-------------------- and Chief Executive Officer
Gilbert M. Meyer (Principal Executive Officer)
/s/ Bruce A. Choate Director June 4, 1998
-------------------
Bruce A. Choate
/s/ John J. Healy, Jr. Director June 4, 1998
----------------------
John J. Healy, Jr.
/s/ Brenda J. Mixson Director June 4, 1998
--------------------
Brenda J. Mixson
/s/ Thomas H. Nielsen Director June 4, 1998
---------------------
Thomas H. Nielsen
3
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/s/ Lance R. Primis Director June 4, 1998
-------------------
Lance R. Primis
/s/ Jeffrey B. Van Horn Vice President, Chief
----------------------- Financial Officer, Secretary and June 4, 1998
Jeffrey B. Van Horn Treasurer (Principal
Financial and
Accounting Officer)
4
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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 (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney (included in Part II of this Registration
Statement).
99.1 Avalon Bay Communities, Inc. -- 1994 Stock Incentive Plan, as
amended and restated. (Incorporated by reference to Exhibit 10.2
to Form S-4 of Bay Apartment Communities, Inc., filed May 5,
1998.)
5
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EXHIBIT 5.1
June 4, 1998
Bay Apartment Communities, Inc.
4340 Stevens Creek Boulevard, Suite 275
San Jose, CA 95129
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Bay Apartment
Communities, Inc., a Maryland corporation (the "Company"), in connection with
the registration on Form S-8, pursuant to the Securities Act of 1933, as amended
(the "Securities Act"), of 2,650,084 shares (the "Shares") of the Company's
common stock, par value $.01 per share (the "Common Stock") and an equal number
of associated rights ("Rights") to purchase, under certain circumstances, one
one-thousandth of a share of the Company's Series E Junior Participating
Cumulative Preferred Stock, par value $.01 per share, which may be issued
pursuant to the Avalon Bay Communities, Inc. - 1994 Stock Incentive Plan, as
amended and restated (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 corporate proceedings of the Company as we deemed material; the
registration statement on Form S-8 under the Securities Act relating to the
Shares and associated Rights (the "Registration Statement"); the Plan, the Plan
Information Statement and the Enrollment Form to be used in connection
therewith; 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, upon issuance of the
Shares in accordance with the terms of the Plan and the receipt of full
consideration therefor, such Shares will be validly issued, fully paid and non-
assessable.
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.
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Bay Apartment Communities, Inc.
June 4, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement on
Form S-8 of Bay Apartment Communities, Inc. (the "Company") of our report dated
January 30, 1998, except for Note 14, as to which the date is March 24, 1998, on
our audits of the consolidated financial statements and financial statement
schedule of the Company as of December 31, 1997 and 1996, and for each of the
three years ended December 31, 1997, which report is included in the Company's
1997 Annual Report on Form 10-K, as amended on Form 10-K/A, and of our report
dated March 25, 1998, on our audit of the statement of financial condition as of
December 31, 1997, and the related statement of changes in plan equity for the
year ended December 31, 1997, of the Company's 1996 Non-Qualified Employee Stock
Purchase Plan (the "Plan") included in the Plan's Annual Report on Form 11-K,
and of our report dated December 16, 1997, on our audit of the Historical
Summary of Revenues and Direct Operating Expenses of Laguna Brisas Apartments
for the period March 7, 1997 to November 30, 1997, and of our report dated
February 12, 1998, on our audit of the Historical Summary of Revenues and Direct
Operating Expenses of Cabrillo Square Apartments for the year ended December 31,
1997, which reports are included in the Company's Current Report on Form 8-K
filed March 27, 1998.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Francisco, California
June 4, 1998
