<PAGE>
As Filed With The Securities and Exchange Commission on November 17, 1998
Registration No. 333-
------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CHARLES E. SMITH CHARLES E. SMITH
RESIDENTIAL REALTY, INC. RESIDENTIAL REALTY L.P.
(Exact name of co-registrant as (Exact name of co-registrant as
specified in its charter) specified in its charter)
Maryland Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
54-1681655 54-1681657
(IRS employer identification number) (IRS employer identification number)
Ernest A. Gerardi, Jr. Ernest A. Gerardi, Jr.
President and Chief President and Chief
Operating Officer of Operating Officer of
Charles E. Smith Charles E. Smith
Residential Realty, Inc. Residential Realty, Inc.
2345 Crystal Drive, Crystal City 2345 Crystal Drive, Crystal City
Arlington, Virginia 22202 Arlington, Virginia 22202
(Address, including zip code, (Address, including zip code,
and telephone number, and telephone number,
including area code, of including area code, of
co-registrant's principal co-registrant's principal
executive offices and executive offices and
agent for service) agent for service)
------------------------
Charles E. Smith Residential Realty, Inc. 1994 Employee Stock
and Unit Option Plan
(Full title of the Plan)
------------------------
Copy to:
J. Warren Gorrell, Jr., Esq.
Bruce W. Gilchrist, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered registered per unit (1) price (1)(2) fee (2)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 1,400,000 $29.844 $41,781,600 $11,615.28
Units of limited partnership interest 1,400,000 $29.844
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) of the Securities Act of 1933, as amended.
(2) Under the Charles E. Smith Residential Realty, Inc. 1994 Employee Stock and
Unit Option Plan, no more than 1,400,000 additional shares of common stock
or units of limited partnership interest may be issued; therefore, the
proposed maximum aggregate offering price under this Registration Statement
will not exceed $41,781,600.
Pursuant to Rule 429 under the Securities Act of 1933, the information
specified in Part I of this Registration Statement constituting a
prospectus under Section 10(a) of the Securities Act of 1933 also relates
to 1,832,369 shares of common stock of Charles E. Smith Residential Realty,
Inc. and 1,787,369 units of limited partnership interest of Charles E.
Smith Residential Realty L.P. previously registered and remaining under
the Registrants' Registration Statement No. 33-82382 pursuant to which
the Company paid to the SEC a registration fee of $18,284. This
Registration Statement constitutes Post-Effective Amendment No. 1 to the
Registration Statement No. 33-82382, which Post-Effective Amendment shall
become effective upon filing pursuant to Rules 464 and 456 under the
Securities Act of 1933.
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
This Registration Statement relates to an offering of up to 1,400,000 additional
shares of common stock and/or units of limited partnership interest under the
Charles E. Smith Residential Realty, Inc. 1994 Employee Stock and Unit Option
Plan. Upon filing of this registration statement, the total number of authorized
shares and/or units to be issued under the Charles E. Smith Residential Realty,
Inc. 1994 Employee Stock and Unit Option Plan, as amended, the Charles E. Smith
Residential Realty, Inc. 1994 Restricted Stock and Restricted Unit Option Plan,
as amended, and the Charles E. Smith Residential Realty, Inc. Directors Stock
Option Plan, will be 3,510,000. The amendment authorizing the issuance of
1,400,000 additional shares of common stock under the Charles E. Smith
Residential Realty, Inc. 1994 Employee Stock and Unit Option Plan was approved
by the shareholders of Charles E. Smith Residential Realty, Inc. at the Annual
Meeting of Shareholders Charles E. Smith Residential Realty, Inc. on May 7,
1998.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1). In accordance with
the instructions to Part I of Form S-8, such documents will not be filed with
the SEC either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of this form, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933 (the "Securities
Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The SEC allows Charles E. Smith Residential Realty, Inc. (the
"Company") and Charles E. Smith Residential Realty L.P. (the "Operating
Partnership") to "incorporate by reference" the information they file with
the SEC, which means that they can disclose important information to you by
referring you to those documents. The information incorporated by reference
is considered to be part of this Registration Statement, and later
information filed with the SEC will update and supersede this information.
Both the Company and the Operating Partnership incorporate by reference the
documents listed below and any future filings made with the SEC under Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") until all of the securities offered in this Registration
Statement have been sold or until the Company and the Operating Partnership
deregister those securities remaining unsold under this Registration
Statement.
The Company incorporates by reference into this Registration Statement
the following documents it has filed with the SEC:
(a) Annual Report on Form 10-K for the year ended December 31,
1997.
(b) Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998 (as amended on Form 10-Q/A), June 30, 1998, and
September 30, 1998; and Current Reports on Form 8-K dated
April 17, 1998 (as amended on Form 8-K/A) and July 1, 1998.
(c) The description of the Company's common stock contained in
its Registration Statement on Form 8-A declared effective
with the SEC on August 16, 1994 pursuant to Section 12 of the
Exchange Act of 1934.
The Operating Partnership incorporates by reference into this
Registration Statement the following documents it has filed with the SEC:
(a) Annual Report on Form 10-K for the year ended December 31,
1997.
(b) Quarterly Report on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998, and September 30, 1998; and
Current Reports on Form 8-K dated April 17, 1998 and
July 1, 1998.
<PAGE>
(c) The description of the Operating Partnership's units of
limited partnership interest (the "Units") contained in its
Registration Statement on Form 8-A filed with the SEC on
May 1, 1995 pursuant to Section 12 of the Exchange Act.
Item 4. Description of Securities.
(a) A description of the Company's common stock is incorporated
by reference under Item 3.
(b) A description of the Operating Partnership's Units is
incorporated by reference to the Company and Operating
Partnership's Registration Statement on Form S-8 filed with
the SEC on August 3, 1994 (File No. 33-82382).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's officers and directors are and will be indemnified under
Maryland law, the Articles of Incorporation of the Company (the "Charter"), and
the agreement of limited partnership of the Operating Partnership ("Partnership
Agreement") against certain liabilities. The Charter requires the Company to
indemnify its directors and officers to the fullest extent permitted from time
to time by the laws of Maryland. The Company's Charter also provides that, to
the fullest extent permitted under Maryland law, directors and officers of the
Company will not be liable to the Company and its shareholders for money
damages.
Section 2-418 of the Maryland General Corporation Law generally permits
indemnification of any director made a party to any proceedings by reason of
service as a director unless it is established that (i) the act or omission of
such person was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty; or
(ii) such person actually received an improper personal benefit in money
property or services; or (iii) in the case of any criminal proceeding, such
person had reasonable cause to believe that the act or omission was unlawful.
The indemnity may include judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director in connection with the
proceeding; but, if the proceeding is one by or in the right of the corporation,
indemnification is not permitted with respect to any proceeding in which the
director has been adjudged to be liable to the corporation, or if the proceeding
is one charging improper personal benefit to the director, whether or not
involving action in the director's official capacity, indemnification of the
director is not permitted if the director was adjudged to be liable on the basis
that personal benefit was improperly received. The termination of any proceeding
by conviction or upon a plea of nolo contendere or its equivalent, or any entry
of an order of probation prior to judgment, creates a rebuttable presumption
that the director did not meet the requisite standard of conduct required for
permitted indemnification. The termination of any proceeding by judgment, order
or settlement, however, does not create a presumption that the director failed
to meet the requisite standard of conduct for permitted indemnification.
The Partnership Agreement also provides for indemnification of the
Company, or any director or officer of the Company, in its capacity as general
partner of the Operating Partnership, from and against all losses, claims,
damages, liabilities, joint or several, expenses (including legal fees), fines,
settlements and other amounts incurred in connection with any actions relating
to the operations of the Operating Partnership as set forth in the Partnership
Agreement.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
3.1 Amended and Restated Articles of Incorporation of the Company
(Incorporated by reference to Exhibit 3.1 to the Company's
registration statement on Form S-11 (File No. 33-75288)).
3.2 Articles Supplementary relating to Series A Cumulative Convertible
Redeemable Preferred Stock (Incorporated by reference to Exhibit
3.1 to the Company's quarterly report on Form 10-Q for the quarter
ended June 30, 1997 (File No. 1-13174)).
3.3 Articles Supplementary relating to Series B Cumulative Convertible
Redeemable Preferred Stock (Incorporated by reference to Exhibit
4.1 to the Company's current report on Form 8-K dated October 3,
1997 (File No. 1-13174)).
3.4 Certificate of Correction relating to Series B Cumulative
Convertible Redeemable Preferred Stock (Incorporated by reference
to Exhibit 4.2 to the Company's current report on Form 8-K dated
October 3, 1997 (File No. 1-13174)).
3.5 Articles Supplementary relating to Series C Cumulative Redeemable
Preferred Stock (Incorporated by reference to Exhibit 3.5 to the
Company's registration statement on Form S-3 (File No.
333-17053)).
3.6 Certificate of Correction relating to Series C Cumulative
Redeemable Preferred Stock (Incorporated by reference to Exhibit
3.6 to the Company's registration statement on Form S-3 (File No.
333-17053)).
3.7 Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit 3.2 to the Company's registration statement
on Form S-3 (File No. 33-93986)).
4.1 First Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, as amended (Incorporated by reference to
the same titled and numbered exhibit to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 (File No.
1-13174)).
4.2 Certificate of Limited Partnership of the Operating Partnership
(Incorporated by reference to the same titled and numbered exhibit
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (File No. 1-13174)).
4.3 Charles E. Smith Residential Realty, Inc. 1994 Employee Stock and
Unit Option Plan (Incorporated by reference to Exhibit 10.4 to the
Company's registration statement on Form S-11 (File No.
33-75288)).
4.4 Charles E. Smith Residential Realty, Inc. 1994 Restricted Stock
and Restricted Unit Plan (Incorporated by reference to Exhibit
10.5 to the Company's registration statement on Form S-11 (File
No. 33-75288)).
4.5 Charles E. Smith Residential Realty, Inc. Directors Stock Option
Plan (Incorporated by reference to Exhibit 10.6 to the Company's
registration statement on Form S-11 (File No. 33-75288)).
3
<PAGE>
4.6 Charles E. Smith Residential Realty, Inc. First Amended and
Restated 1994 Employee Stock and Unit Option Plan (Incorporated by
reference to Exhibit 10.4 to the Company's Annual Report on Form
10-K for the year ended December 31, 1994 (File No. 1-13174)).
4.7 Charles E. Smith Residential Realty, Inc. First Amended and
Restated 1994 Employee Restricted Stock and Restricted Unit Plan
(Incorporated by reference to Exhibit 10.5 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 (File No.
1-13174)).
4.8 Charles E. Smith Residential Realty, Inc. Directors Stock Option
Plan (Incorporated by reference to Exhibit 10.6 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1994
(File No. 1-13174)).
4.9 Charles E. Smith Residential Realty, Inc. First Amendment to First
Amended and Restated 1994 Employee Stock and Unit Option Plan.
5.1 Opinion of Hogan & Hartson L.L.P. regarding legality of the
securities being registered.
23.1 Consent of Hogan & Hartson L.L.P. (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Altschuler, Melvoin and Glasser LLP
24 Power of Attorney (included on signature pages)
4
<PAGE>
Item 9. Undertakings.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in this registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the Securities
offered herein, and the offering of such Securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the Securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrants hereby further undertake that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrants' annual reports pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the Securities offered herein, and the offering of such
Securities at that time shall be deemed to be the initial bona fide offering
thereof. The undersigned Registrants hereby further undertake that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance under Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be part of this registration statement as of the time it
was declared effective.
5
<PAGE>
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), the Registrants
have been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in such Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrants of expenses incurred or paid by a director, officer
or controlling person of each 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, each 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 such Act and
will be governed by the final adjudication of such issue.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 County of Arlington, Commonwealth of
Virginia, on November 17, 1998.
CHARLES E. SMITH RESIDENTIAL REALTY, INC.
By: /s/ Ernest A. Gerardi, Jr.
--------------------------------------------
Name: Ernest A. Gerardi, Jr.
Title: President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ernest A. Gerardi, Jr. as true and lawful
attorney-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ Robert H. Smith Co-Chairman of the Board, Co-Chief November 17, 1998
- ---------------------------- Executive Officer, and Director
Robert H. Smith
/s/ Robert P. Kogod Co-Chairman of the Board, Co-Chief November 17, 1998
- ---------------------------- Executive Officer, and Director
Robert P. Kogod
/s/ Ernest A. Gerardi, Jr. President, Chief Operating Officer, November 17, 1998
- ---------------------------- and Director
Ernest A. Gerardi, Jr.
/s/ W. D. Minami Senior Vice President and Chief Financial November 17, 1998
- ---------------------------- Officer
W. D. Minami
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Steven E. Gulley Vice President, Controller, and Chief November 17, 1998
- ---------------------------- Accounting Officer
Steven E. Gulley
/s/ Fred J. Brinkman Director November 17, 1998
- ----------------------------
Fred J. Brinkman
/s/ Charles B. Gill Director November 17, 1998
- ----------------------------
Charles B. Gill
/s/ Mandell J. Ourisman Director November 17, 1998
- ----------------------------
Mandell J. Ourisman
/s/ Mallory Walker Director November 17, 1998
- ----------------------------
Mallory Walker
</TABLE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all 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 County of Arlington, Commonwealth of
Virginia, on November 17, 1998.
By: CHARLES E. SMITH RESIDENTIAL REALTY, L.P.
By: CHARLES E. SMITH RESIDENTIAL REALTY, INC.
General Partner
By: /s/ Ernest A. Gerardi, Jr.
---------------------------------------------
Name: Ernest A. Gerardi, Jr.
Title: President and Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ernest A. Gerardi, Jr. as true and lawful
attorney-in-fact, with full power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments), and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, hereby ratifying and confirming all
that said attorney-in-fact may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Name Title Date
<S> <C> <C>
/s/ Robert H. Smith Co-Chairman of the Board, Co-Chief November 17, 1998
- ---------------------------- Executive Officer, and Director
Robert H. Smith
/s/ Robert P. Kogod Co-Chairman of the Board, Co-Chief November 17, 1998
- ---------------------------- Executive Officer, and Director
Robert P. Kogod
/s/ Ernest A. Gerardi, Jr. President, Chief Operating Officer, November 17, 1998
- ---------------------------- and Director
Ernest A. Gerardi, Jr.
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ W. D. Minami Senior Vice President and Chief Financial November 17, 1998
- ---------------------------- Officer
W. D. Minami
/s/ Steven E. Gulley Vice President, Controller, and Chief November 17, 1998
- ---------------------------- Accounting Officer
Steven E. Gulley
/s/ Fred J. Brinkman Director November 17, 1998
- ----------------------------
Fred J. Brinkman
/s/ Charles B. Gill Director November 17, 1998
- ----------------------------
Charles B. Gill
/s/ Mandell J. Ourisman Director November 17, 1998
- ----------------------------
Mandell J. Ourisman
/s/ Mallory Walker Director November 17, 1998
- ----------------------------
Mallory Walker
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
----- ----------- ----
<S> <C>
3.1 Amended and Restated Articles of Incorporation of the Company
(Incorporated by reference to Exhibit 3.1 to the Company's
registration statement on Form S-11 (File No. 33-75288)).
3.2 Articles Supplementary relating to Series A Cumulative Convertible
Redeemable Preferred Stock (Incorporated by reference to Exhibit
3.1 to the Company's quarterly report on Form 10-Q for the quarter
ended June 30, 1997 (File No. 1-13174)).
3.3 Articles Supplementary relating to Series B Cumulative Convertible
Redeemable Preferred Stock (Incorporated by reference to Exhibit
4.1 to the Company's current report on Form 8-K dated October 3,
1997 (File No. 1-13174)).
3.4 Certificate of Correction relating to Series B Cumulative
Convertible Redeemable Preferred Stock (Incorporated by reference
to Exhibit 4.2 to the Company's current report on Form 8-K dated
October 3, 1997 (File No. 1-13174)).
3.5 Articles Supplementary relating to Series C Cumulative Redeemable
Preferred Stock (Incorporated by reference to Exhibit 3.5 to the
Company's registration statement on Form S-3 (File No.
333-17053)).
3.6 Certificate of Correction relating to Series C Cumulative
Redeemable Preferred Stock (Incorporated by reference to Exhibit
3.6 to the Company's registration statement on Form S-3 (File No.
333-17053)).
3.7 Amended and Restated Bylaws of the Company (Incorporated by
reference to Exhibit 3.2 to the Company's registration statement
on Form S-3 (File No. 33-93986)).
4.1 First Amended and Restated Agreement of Limited Partnership of the
Operating Partnership, as amended (Incorporated by reference to
the same titled and numbered exhibit to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 (File No.
1-13174)).
4.2 Certificate of Limited Partnership of the Operating Partnership
(Incorporated by reference to the same titled and numbered exhibit
to the Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (File No. 1-13174)).
4.3 Charles E. Smith Residential Realty, Inc. 1994 Employee Stock and
Unit Option Plan (Incorporated by reference to Exhibit 10.4 to the
Company's registration statement on Form S-11 (File No.
33-75288)).
4.4 Charles E. Smith Residential Realty, Inc. 1994 Restricted Stock
and Restricted Unit Plan (Incorporated by reference to Exhibit
10.5 to the Company's registration statement on Form S-11 (File
No. 33-75288)).
4.5 Charles E. Smith Residential Realty, Inc. Directors Stock Option
Plan (Incorporated by reference to Exhibit 10.6 to the Company's
registration statement on Form S-11 (File No. 33-75288)).
</TABLE>
<PAGE>
<TABLE>
<S> <C>
4.6 Charles E. Smith Residential Realty, Inc. First Amended and
Restated 1994 Employee Stock and Unit Option Plan (Incorporated by
reference to Exhibit 10.4 to the Company's Annual Report on Form
10-K for the year ended December 31, 1994 (File No. 1-13174)).
4.7 Charles E. Smith Residential Realty, Inc. First Amended and
Restated 1994 Restricted Stock and Restricted Unit Plan
(Incorporated by reference to Exhibit 10.5 to the Company's Annual
Report on Form 10-K for the year ended December 31, 1994 (File No.
1-13174)).
4.8 Charles E. Smith Residential Realty, Inc. Directors Stock Option
Plan (Incorporated by reference to Exhibit 10.6 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1994
(File No. 1-13174)).
4.9 Charles E. Smith Residential Realty, Inc. First Amendment to First
Amended and Restated 1994 Employee Stock and Unit Option Plan.
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the
securities being registered.
23.1 Consent of Hogan & Hartson L.L.P. (included as part of Exhibit
5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Altschuler, Melvoin and Glasser LLP
24.0 Power of Attorney (included on signature pages).
</TABLE>
<PAGE>
Exhibit 4.9
FIRST AMENDMENT TO
FIRST AMENDED AND RESTATED AGREEMENT OF
1994 EMPLOYEE STOCK AND UNIT OPTION PLAN OF
CHARLES E. SMITH RESIDENTIAL REALTY, INC.
THIS FIRST AMENDMENT TO FIRST AMENDED AND RESTATED AGREEMENT OF 1994
EMPLOYEE STOCK AND UNIT OPTION PLAN, dated as of May 7, 1998, is entered into by
and among Charles E. Smith Residential Realty, Inc., a Maryland corporation, for
itself and as general partner of Charles E. Smith Residential Realty L.P.
(together the "Company"), and Smith Property Management, Inc., Consolidated
Engineering Services, Inc., and Smith Management Construction, Inc.
(collectively the "Operating Subsidiaries").
WHEREAS, the 1994 Employee Stock and Unit Option Plan (the "Plan") was
approved by the Board of Directors of Charles E. Smith Residential Realty, Inc.,
for itself and as a general partner of the Charles E. Smith Residential Realty
L.P., by unanimous written consents dated May 25, 1994, June 13, 1994, June 22,
1994, and June 23, 1994, and at a meeting held on July 26, 1994, by the
shareholders of Charles E. Smith Residential Realty, Inc., by unanimous written
consents dated June 17, 1994, June 22, 1994, and June 23, 1994, and by the
partners of Charles E. Smith Residential Realty L.P. by unanimous written
consents dated June 17, 1994, and June 23, 1994, and the Plan, together with the
1994 Employee Restricted Stock and Restricted Unit Plan and Directors Stock
Option Plan, was incorporated in a filing on Form S-8 with the Securities and
Exchange Commission (the "SEC"), which became effective on August 8, 1994;
WHEREAS, the Board of Directors of the Company duly adopted and
approved the First Amended and Restated 1994 Employee Stock and Unit Option Plan
on November 8, 1994, which was incorporated in a filing on Form 10-K for the
year ended December 31, 1994 and filed with the SEC on March 31, 1995;
WHEREAS, the Company and its stockholders did adopt the Plan for the
benefit of their employees and the employees of Smith Realty Company (formerly
Smith Property Management, Inc.), Consolidated Engineering Services, Inc., and
Smith Management Construction, Inc.;
WHEREAS, the Board of Directors believes that it would be in the best
interests of the Company to increase the number of available option grants to
permit the continuation of this incentive program and to accommodate newly-hired
employees, while adhering to the guideline that the number of permitted option
grants be limited to approximately 10% of the outstanding securities of the
Company;
WHEREAS, the Board of Directors of the Company did, at its regular
meeting on January 27, 1998, approve a resolution increasing the number of
shares or Units available under the Plan, and submitted such proposal to the
shareholders of the Company for consideration at the 1998 Annual Meeting of the
Company; and
<PAGE>
WHEREAS, the shareholders of the Company did, at their Annual Meeting
held on May 7, 1998, approve a resolution to increase the number of shares or
Units available for grant under the Plan by 1,400,000, to a total of 3,150,000
shares or Units.
NOW, THEREFORE, in consideration of the premises herein set forth and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby amend the Plan, as follows:
1. Section 4 of the Plan is hereby amended and restated in its
entirety as follows:
"The shares of Stock that may be issued pursuant to Incentive
Awards may be (i) issued and outstanding shares of Stock or Units, (ii)
treasury shares of Stock or Units (to the extent permitted by
applicable law), or (iii) authorized but unissued shares. The number of
shares of Stock and Units that may be issued pursuant to Incentive
Awards under the Plan shall not exceed a combined 3,150,000 shares of
Stock and Units. The Board of Directors of the Company shall determine
how many shares of Stock and Units may be issued pursuant to Incentive
Awards to employees of Operating Subsidiaries. If any Incentive Award
expires, terminates, or is terminated or canceled for any reason prior
to exercise or vesting in full, the shares or Units that were subject
to the unexercised, forfeited, or terminated portion of such Incentive
Award shall be available immediately for future grants by the Granting
Employer with respect thereto (subject to Section 12 hereof) of
Incentive Awards under the Plan."
2. All capitalized terms used in this First Amendment and not
otherwise defined shall have the meanings assigned to them in the Plan. Except
as modified herein, all terms and conditions of the Plan shall remain in full
force and effect, which terms and conditions the parties hereto ratify and
affirm.
[Page Break Intentionally Inserted]
2
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this FIRST AMENDMENT
TO FIRST AMENDED AND RESTATED AGREEMENT OF 1994 EMPLOYEE STOCK AND UNIT OPTION
PLAN as of the date first above written.
CHARLES E. SMITH RESIDENTIAL REALTY, INC.,
for itself and as general partner of Charles E. Smith
Residential Realty L.P.
BY: /s/ Ernest A. Gerardi, Jr.
----------------------------------
Ernest A. Gerardi, Jr., President
This First Amendment to the Plan was duly adopted and approved by the Board of
Directors of the Company on the 27th day of January, 1998, and by the
shareholders of the Company at the Annual Meeting held on the 7th day of May,
1998.
/s/ Robert D. Zimet
--------------------------------
Robert D. Zimet
Secretary of the Company
3
<PAGE>
Exhibit 5.1
[Letterhead of Hogan & Hartson L.L.P.]
November 17, 1998
Charles E. Smith Residential Realty, Inc.
Charles E. Smith Residential Realty L.P.
2345 Crystal Drive
Crystal City, Arlington, Virginia 22202
Gentlemen:
We are acting as counsel to Charles E. Smith Residential Realty, Inc.,
a Maryland corporation (the "Company") and Charles E. Smith Residential Realty
L.P. (the "Operating Partnership"), in connection with their co-registration,
pursuant to a registration statement on Form S-8 (the "Registration Statement"),
of up to 1,400,000 additional shares of the Company's common stock, par value
$.01 per share (the "Shares"), and up to 1,400,000 units of limited partnership
interest (the "Units") of the Operating Partnership, issuable upon the exercise
of options granted or to be granted pursuant to the Company's 1994 Employee
Stock and Unit Option Plan, as amended (the "Option Plan"). The Registration
Statement also relates to restricted shares of common stock of the Company or
units of limited partnership interest of the Operating Partnership issuable
pursuant to the Company's 1994 Employee Restricted Stock and Restricted Unit
Plan, as amended, and Non-Employee Directors Stock Option Plan (together with
the Option Plan, the "Plans") previously registered and remaining under an
effective registration statement on Form S-8 (No. 33-82382) and constitutes a
post-effective amendment to such registration statement. This opinion letter is
furnished to you at your request to enable you to fulfill the requirements of
Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(5), in connection
with the Registration Statement.
For purposes of the opinion expressed in this letter, which is set
forth below (the "Opinion"), we have examined copies of the following documents:
1. An executed copy of the Registration Statement.
2. The Amended and Restated Articles of Incorporation of the Company
(the "Amended and Restated Articles"), as certified by the
Department of Assessments and Taxation of the State of Maryland on
October 21, 1998 and by the Secretary of the Company on the date
hereof as then being complete, accurate and in effect.
<PAGE>
Charles E. Smith Residential Realty, Inc.
Charles E. Smith Residential Realty L.P.
November 17, 1998
Page 2
3. The Amended and Restated Bylaws of the Company, as certified by
the Secretary of the Company on the date hereof as then being
complete, accurate and in effect.
4. The Certificate of Limited Partnership of the Operating
Partnership, as amended, as certified by the Secretary of the
State of Delaware on October 20, 1998 and as certified by the
Secretary of the Company, as general partner of the Operating
Partnership, on the date hereof as being complete, accurate and in
effect.
5. The First Amended and Restated Agreement of Limited Partnership of
the Operating Partnership, as amended, as certified by the
Secretary of the Company, as general partner of the Operating
Partnership, on the date hereof as being complete, accurate and in
effect (the "Partnership Agreement").
6. The Plans, as certified by the Secretary of the Company on the
date hereof as then being complete, accurate and in effect.
7. Certain resolutions of the Board of Directors of the Company
adopted on January 27, 1998, as certified by the Secretary of the
Company on the date hereof as then being complete, accurate and in
effect, relating to, among other things, the approval of the
amendment to the Option Plan and the filing of the Registration
Statement relating to the Plans.
8. Certain resolutions of the stockholders of the Company adopted on
May 7, 1998, as certified by the Secretary of the Company on the
date hereof as then being complete, accurate and in effect,
relating to, among other things, the approval of the amendment to
the Option Plan.
In our examination of the aforesaid certificates, documents and
agreements, we have assumed the genuineness of all signatures, the legal
capacity of all natural persons, the accuracy and completeness of all documents
submitted to us, the authenticity of all original documents and the conformity
to authentic original documents of all documents submitted to us as copies
(including telecopies). We also have assumed the authenticity, accuracy and
completeness of the foregoing certifications (of public officials and corporate
officers) and statements of fact, on which
<PAGE>
Charles E. Smith Residential Realty, Inc.
Charles E. Smith Residential Realty L.P.
November 17, 1998
Page 3
we are relying, and have made no independent investigations thereof. This
opinion letter is given, and all statements herein are made, in the context of
the foregoing.
This opinion letter is based as to matters of law solely on
applicable provisions of the Maryland General Corporation Law and the
Delaware Revised Uniform Limited Partnership Act. We express no opinion
herein as to any other laws, statutes, regulations or ordinances or as to
compliance with the securities (or "blue sky") laws or the real estate
syndication laws of Maryland.
Based upon, subject to and limited by the foregoing, we are of the
opinion that (i) the Shares, when issued and delivered in the manner and on
the terms contemplated in the Registration Statement and the Option Plan
(with the Company having received the consideration therefor, the form of
which is in accordance with applicable law), will be validly issued, fully
paid and non-assessable; and (ii) the Units, when issued and delivered in the
manner and on the terms contemplated in the Registration Statement and the
Option Plan (with the Operating Partnership having received the consideration
therefor, the form of which is in accordance with applicable law), will be
legally issued and fully paid under the Delaware Revised Uniform Limited
Partnership Act.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1
to the Registration Statement. In giving this consent, we do not thereby admit
that we are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
---------------------------
HOGAN & HARTSON L.L.P.
<PAGE>
Exhibit 23.2
[Letterhead of Arthur Andersen LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 9, 1998
included in Charles E. Smith Residential Realty, Inc.'s previously filed Form
10-K for the year ended December 31, 1997 and to all references to our Firm
included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Washington, D.C.
November 13, 1998
<PAGE>
Exhibit 23.3
[Letterhead of Altschuler, Melvoin and Glasser LLP]
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this registration
statement of our report dated February 17, 1998, with respect to the
consolidated balance sheets of McClurg Court Associates Limited Partnership as
of December 31, 1997 and 1996, and the related consolidated statements of
income, changes in partners' capital and cash flows for the years then ended,
which report is included in Charles E. Smith Residential Realty, Inc.'s
previously filed Form 8-K/A dated April 17, 1998, and to all references to our
Firm included in this registration statement.
/s/ ALTSCHULER, MELVOIN AND GLASSER LLP
ALTSCHULER, MELVOIN AND GLASSER LLP
Chicago, Illinois
November 16, 1998
