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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 6, 1997
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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JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 58-1468053
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3340 PEACHTREE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
(Address, Including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
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J. DONALD NICHOLS
JDN REALTY CORPORATION
3340 PEACHTREE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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Copies of communications to:
E. MARLEE MITCHELL
WALLER LANSDEN DORTCH & DAVIS,
A PROFESSIONAL LIMITED LIABILITY COMPANY
2100 NASHVILLE CITY CENTER
NASHVILLE, TENNESSEE 37219-1760
(615) 244-6380
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement as determined by market conditions.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. [ ]
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. [x]
If this form is used to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [x] 33-91222
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If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
-------
If delivery of the Prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Maximum Amount of
Title of Each Class of Securities Aggregate Offering Registration
to be Registered Price Fee
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock (par value $.01 per share) . . . . . . . . . $5,884,912(1) $1,784
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</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The information in the Registration Statement filed on Form S-3, as
amended to the date hereof, by JDN Realty Corporation with the Securities and
Exchange Commission (File No. 33-91222) pursuant to the Securities Act of 1933,
as amended, is incorporated by reference into this Registration Statement.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant 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
Amendment to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Nashville, State of
Tennessee, on the 5th day of March, 1997.
JDN REALTY CORPORATION
By: /s/ J. Donald Nichols
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J. Donald Nichols,
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints J. Donald Nichols and William J. Kerley, and
each or either of them, his true and lawful attorney-in-fact, as agent and with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacity, to sign any or all amendments to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as they might do in person, hereby ratifying and confirming all that
said attorney-in-fact and agents, and their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Amendment to
the Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ J. Donald Nichols Chairman and Chief March 5, 1997
- --------------------------------------- Executive Officer (Principal
J. Donald Nichols Executive Officer)
/s/ Elizabeth L. Nichols President and Director March 5, 1997
- ---------------------------------------
Elizabeth L. Nichols
/s/ William J. Kerley Chief Financial Official March 5, 1997
- --------------------------------------- (Principal Financial Officer)
William J. Kerley
/s/ John D. Harris, Jr. Controller March 5, 1997
- ---------------------------------------
John D. Harris, Jr.
/s/ Craig Macnab Director March 5, 1997
- ---------------------------------------
Craig Macnab
/s/ Robert P. Corker, Jr. Director March 5, 1997
- ---------------------------------------
Robert P. Corker, Jr.
Director
- ---------------------------------------
Haywood D. Cochrane, Jr.
Director
- ---------------------------------------
William B. Greene
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- --- -----------
<S> <C>
1 Form of Underwriting Agreement. (To be filed by amendment or incorporated by reference when required in
connection with the offering of Securities.)
4.1 Articles of Restatement of the Registrant. (Previously filed as Exhibit 99.1 to the Registrant's Current
Report on Form 8-K, dated November 7, 1996, and incorporated herein by this reference.)
4.2 Bylaws of the Registrant. (Previously filed as Exhibit 99.2 to the Registrant's Current Report on Form 8-K,
dated November 7, 1996, and incorporated herein by this reference.)
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability Company.
8 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability Company, regarding tax matters.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Waller Lansden Dortch & Davis, A Professional Limited Liability Company (contained in opinions filed
as Exhibit 5 and Exhibit 8).
</TABLE>
<PAGE> 1
EXHIBIT 5
[WALLER LANSDEN LETTERHEAD]
March 6, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, DC 20549
Re: JDN Realty Corporation - Rule 462(b) Registration Statement
Ladies and Gentlemen:
We are acting as counsel to JDN Realty Corporation, a Maryland
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of 202,928 shares of
the Company's Common Stock, $.01 par value per share (the "Shares"), pursuant
to the above-captioned Registration Statement (the "Registration Statement").
As such counsel and in connection with the foregoing, we have examined and
relied upon such records, documents and other instruments as in our judgment
are necessary or appropriate in order to express the opinions hereinafter set
forth, and have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity to original
documents of all documents submitted to us as certified or photostatic copies.
Based upon and subject to the foregoing and such other matters as we
have deemed relevant, we are of the opinion that the Shares, when issued and
delivered upon payment therefor in the manner and on the terms described in or
incorporated by reference into the Registration Statement (after the same is
effective), will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the prospectus incorporated by reference into the
Registration Statement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS
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A PROFESSIONAL LIMITED LIABILITY
COMPANY
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EXHIBIT 8
[WALLER LANSDEN LETTERHEAD]
March 6, 1997
JDN Realty Corporation
3340 Peachtree Road
Suite 1530
Atlanta, Georgia 30326
Re: JDN Realty Corporation -
Rule 462(b) Registration Statement
Ladies and Gentlemen:
We have acted as special tax counsel to JDN Realty Corporation, a
Maryland corporation (the "Company"), in connection with a registration
statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of 202,928 shares of the Company's Common
Stock, $.01 par value per share (the "Shares"). In connection with the
Registration Statement, you have requested our opinion whether the Company is
presently qualified as a real estate investment trust ("REIT") under Sections
856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code").
All capitalized terms in this opinion which are defined in the Registration
Statement shall have the same respective meanings as set forth in the
Registration Statement pertaining to the offering.
In rendering our opinion, we have examined and relied upon the
following documents and other materials:
1. Schedules prepared or delivered by officials of the Company
setting forth:
(a) REIT taxable and gross income for the short taxable year
ended December 31, 1994 and for the full years ended December 31, 1995
and 1996, together with a schedule of actual dividends distributed and
projected dividends to be distributed in accordance with Code Section
858 and compliance with the distribution requirements of Code Section
857(a);
(b) Compliance with the applicable REIT ratios or tests for
the fiscal year ended December 31, 1996, including:
Income tests:
(1) 95% gross income test for the year;
(2) 75% gross income test for the year;
(3) 30% gross income test for the year;
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Asset tests:
(1) 75% asset test at the end of each quarter;
(2) 25% asset test at the end of each quarter;
(3) 10% asset test at the end of each quarter;
(4) 5% asset test at the end of each quarter; and
2. The Company's certificate, dated as of March 6, 1997.
In addition, we have examined such additional records, documents,
certificates and other instruments and made such investigations of fact and law
as in our judgement are necessary or appropriate to enable us to render the
opinion expressed below.
In rendering our opinion, we have made the following assumptions:
1. The shares of the Company's capital stock have been and will
continue to be beneficially owned by over 100 shareholders, as defined under
Section 856(a)(5) of the Code since the completion of the initial public
offering; and five or fewer shareholders have not owned, directly or indirectly
under the rules of Section 544 as modified by Section 856(h) of the Code, at
any time since the completion of the initial public offering, over 50% in value
of the stock of the Company; and no shareholder will own, directly or
indirectly, over 8% in number of shares or value of the outstanding stock of
the Company; provided, however, that "Excluded Holders" may hold up to the
"Excluded Holder Ownership Limit," as such terms are defined in the Company's
Charter.
2. The Company has and will comply with any and all procedural
requirements for REIT status set forth in Sections 856 through 860 of the Code
and the regulations thereunder, including the timely making of such elections
and the obtaining and disclosing of such information as is required on the
federal tax return to be filed by the Company.
3. Additional properties acquired will constitute "real estate
assets" and any other investments made by the REIT will be made in a manner to
satisfy the asset tests of Section 856(c) of the Code.
4. The income from existing and additional leases entered into or
acquired and the income from other investments will not cause the Company to
fail to satisfy the income tests of Section 856(c) of the Code.
5. The Company will actually operate in accordance with its past
and proposed method of operation as described in its filings with the
Securities and Exchange Commission under the Securities Act of 1933 and the
Securities Exchange Act of 1934.
6. The Company had no undistributed "C" corporation earnings and
profits at December 31, 1996.
7. The representations contained in the Company's certificate,
dated as of March 6, 1997, are accurate.
8. All partnerships in which the Company may have an ownership
interest will own only "real estate assets" and cash reserves. All activities
of those partnerships will consist of
<PAGE> 3
activities permitted to be undertaken by a REIT and income, other than interest
income on cash reserves, shall be "rents from real property."
9. Each corporation in which the Company has acquired or acquires
an equity interest shall either be a "Qualified REIT Subsidiary" under Section
856(i) of the Code or the Company will not own over ten percent of the
outstanding voting securities of such corporation or other issuer and the
securities owned of such issuer will not be greater in value than five percent
(5%) of the value of the total assets of the Company.
On the basis of and in reliance of the foregoing, we wish to advise you
that under current law, including relevant statutes, regulations and judicial
and administrative precedent (which law is subject to change on a retroactive
basis), in our opinion the Company has been organized in conformity with the
requirements for qualification as a REIT under the Code and, in accordance with
the assumptions stated herein, its method of operation enables it to meet the
requirements for qualification and taxation as a REIT under the Code at this
time.
Since actual qualification as a REIT is dependent upon future facts and
circumstances, it is possible that future events, operations, distributions or
other actions will cause the Company not to qualify or continue to qualify as a
REIT.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS
---------------------------------
A PROFESSIONAL LIMITED LIABILITY
COMPANY
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-3 No. 33-91222), and the related Registration Statement on
Form S-3 filed pursuant to Rule 462(b) under the Securities Act of 1933, of JDN
Realty Corporation of our report dated January 30, 1996, except for Note 14 as
to which the date is February 27, 1996, with respect to the consolidated
financial statements and schedule of JDN Realty Corporation for the year ended
December 31, 1995.
/s/ ERNST & YOUNG LLP
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Atlanta, Georgia
March 5, 1997
