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As filed with the Securities Exchange Commission on September 18, 1997
Registration No.1-13106
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESSEX PROPERTY TRUST, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland
(State or Other Jurisdiction of Incorporation or Organization)
77-0369576
(I.R.S. Employer Identification Number)
777 California Avenue
Palo Alto, California 94304
(650) 494-3700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Keith R. Guericke
President and Chief Executive Officer
777 California Avenue
Palo Alto, California 94304
(650) 494-3700
(Name, address, including zip code, and telephone number, including area
code, of Agent for Service of Process)
Copies to:
Stephen J. Schrader, Esq.
Christopher S. Dewees, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, California 94304
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
|X|
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |_|
If this Form is filed 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. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, 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. |_|
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Price Aggregate Registra-
Per Unit (1) Offering Price tration Fee
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Common Stock,
par value $.0001
per share 750,000 $ 31.781 $23,835,750.00 $7,223.00
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) which is based on the average of the high and low prices
for common stock of the Registrant for September 18, 1997, as reported on the
New York Stock Exchange.
(2) The proposed maximum offering price per unit will be determined, from
time to time, by the Registrant in connection with the issuance by the
Registrant of the securities hereunder.
PROSPECTUS
ESSEX PROPERTY TRUST, INC.
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN
COMMON STOCK
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The Dividend Reinvestment and Share Purchase Plan (the "Plan") of Essex
Property Trust, Inc., a Maryland corporation (the "Company"), provides current
holders of the Company's common stock, $.0001 par value (the "Common Stock"),
and other interested investors with a convenient and efficient method to invest
funds and reinvest dividends in shares of Common Stock ("Plan Shares") at
limited fees (see Section 13 below). Plan Shares will be purchased directly from
the Company or, at the Company's discretion, from shares of Common Stock
purchased by the Agent (as hereinafter defined) on the open market or directly
from other stockholders.
All of the 750,000 shares of Common Stock offered hereby are being
offered by the Company. To ensure that the Company maintains its qualification
as a real estate investment trust ("REIT"), the charter of the Company (the
"Charter") provides that no person, with certain exceptions, may own more than
6.0% of the value of the outstanding shares of Common Stock. Accordingly, all
purchases of Plan Shares will be limited by and subject to the ownership
limitations in the Charter.
Current stockholders and other interested investors may participate in
the Plan by completing an Enrollment Form and returning it to BankBoston, N.A.,
P.O. Box 8040, Boston, Massachusetts 02266-8040.
Current stockholders and other interested investors who elect to
participate in the Plan may make optional cash payments for purchases of Plan
Shares at any time of not less than $100 per payment nor more than $20,000 per
month. In addition, Registered Stockholders (as defined in Section 4 below) who
elect to participate in the Plan have the following additional option: automatic
reinvestment of cash dividends on all or a portion of the shares of Common Stock
registered in their names.
The price of Plan Shares purchased with reinvested dividends or
optional cash payments will be either (i) the average of the high and low sales
price for the Common Stock on the New York Stock Exchange on the Investment Date
(as defined in Section 2 below) (if the Company elects to sell shares directly
pursuant to this Prospectus) or (ii) the weighted average price paid by the
Agent for shares on the Investment Date (if the Company elects to have shares
purchased on the open market). See Section 12 below.
Cash dividends on Plan Shares (whether purchased with reinvested
dividends or with optional cash payments) will be automatically reinvested to
purchase additional Plan Shares.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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All current stockholders and other interested investors may participate
in the optional cash payment portion of the Plan by completing and delivering an
Enrollment Form. Stockholders of record may participate in the reinvestment of
cash dividends on shares of Common Stock that are not Plan Shares. Stockholders
whose shares are currently registered in a name other than the name of such
stockholder, such as in the name of such stockholder's broker or bank nominee,
should consult directly with the entity holding such stockholder's shares to
determine how to enroll in the Plan. If the entity holding such stockholder's
shares does not provide for participation in the Plan, such stockholder may
request to have some or all of its shares registered in its own name in order to
participate directly.
A description of the Plan is set forth in this Prospectus under the
caption "Dividend Reinvestment and Share Purchase Plan." A Participant in the
Plan may withdraw at any time with proper advance notice. Participation in the
Plan is strictly voluntary. Stockholders who do not wish to participate in the
Plan need do nothing and will continue to receive cash dividends as declared and
paid. The Company reserves the right to modify or terminate the Plan at any
time. The Plan does not represent a change in the Company's dividend policy or a
guarantee of future dividends. Dividends will continue to depend on earnings,
financial requirements and other factors.
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The date of this Prospectus is September 18, 1997.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith the Company files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed can be inspected and
copied at the Commission's Public Reference Section, 450 Fifth Street, N.W.,
Washington, D.C., 20549, and at the following regional offices of the
Commission: Seven World Trade Center, 13th Floor, New York, New York 10048 and
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of
such material can be obtained from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates.
The Commission also maintains a site on the World Wide Web at http://www.sec.gov
that contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. In addition,
the Common Stock is listed on the New York Stock Exchange and similar
information concerning the Company can be inspected and copied at the offices of
the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement"), of which this Prospectus is a part,
under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Plan Shares offered hereby. This Prospectus does not contain all
of the information set forth in the Registration Statement, certain portions of
which have been omitted as permitted by the rules and regulations of the
Commission. Statements contained in this Prospectus as to the contents of any
contract or other documents are not necessarily complete, and in each instance
reference is made to the copy of such contract or other document filed as an
exhibit to the Registration Statement, each such statement being qualified in
all respects by such reference and the exhibits and schedules thereto. For
further information regarding the Company and the Plan Shares offered hereby,
reference is hereby made to the Registration Statement and such exhibits and
schedules which may be obtained from the Commission at its principal office in
Washington, D.C. upon payment of the fees prescribed by the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company under the
Exchange Act with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996 (including relevant portions of the Company's
definitive proxy statement for the 1997 annual meeting of stockholders
specifically incorporated by reference in Part III of such Form 10-K);
b. The Company's Quarterly Report on Form 10-Q for the Quarters ended
March 31, 1997, and June 30, 1997;
c. Report on Form 8-K filed with respect to the Company dated April 3,
1997;
d. Report on Form 8-K filed with respect to the Company dated June 20,
1997;
e. Report on Form 8-K filed with respect to the Company dated August
29, 1997;
f. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 1-13106).
Each document filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of all shares of Common Stock to which
this Prospectus relates shall be deemed to be incorporated by reference in this
Prospectus and to be part hereof from the date of filing such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein (or in the applicable Prospectus Supplement) or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered upon written or oral request. Requests should be
directed to the Investor Relations Manager of the Company at 777 California
Avenue, Palo Alto, California 94304, telephone number: (650) 494-3700.
THE COMPANY
The Company is a self-administered and self-managed equity REIT that
was formed in 1994 to continue and expand the real estate investment and
management operations conducted by Essex Property Company since 1971. The
Company conducts substantially all of its activities through Essex Portfolio,
L.P. (the "Operating Partnership") in which the Company owns a general
partnership interest. As the sole general partner of the Operating Partnership,
the Company has control over the management of the Operating Partnership and
over each of the properties owned by the Operating Partnership.
The Company's Common Stock is listed on the New York Stock Exchange
under the Symbol "ESS." The Company is a Maryland corporation. The Company's
executive offices are located at 777 California Avenue, Palo Alto, California
94304, and its telephone number is (650) 494-3700.
DIVIDEND REINVESTMENT AND SHARE PURCHASE
PLAN
What is the purpose of the Plan?
1. The purpose of the Plan is to provide current stockholders of the
Company and other interested investors with a convenient and economic
method of investing funds and reinvesting cash dividends ("cash
dividends") in shares of Common Stock with limited fees (see Section
13 below). In addition, the Plan provides a low-cost method of
generating capital for the Company through the sale of the shares of
Common Stock offered hereby.
What are the advantages and limitations of the Plan to Participants?
2. (a) Advantages to Participants (as defined in Section 4 below) in
the Plan include the following:
A. Participants are afforded a convenient means to initially invest in
Common Stock or to increase their holdings of Common Stock, while
incurring limited fees (see Section 13 below).
B. Participants can acquire shares of Common Stock by making optional
cash payments at any time of not less than $100 per payment nor more
than $20,000 per month.
C. At the option of Participants, the Plan permits optional cash
payment purchases to be made by convenient direct monetary deductions
from such Participants' bank checking or savings accounts (see Section
9 below).
D. Participants who are Registered Stockholders may have cash
dividends on all or a portion of the shares of Common Stock registered
in their names that are not Plan Shares ("Certificate Shares")
automatically reinvested in Plan Shares.
E. Participants' cash dividends or optional cash payments are promptly
invested in Plan Shares. Plan Shares purchased with reinvested
dividends will be purchased on each date on which cash dividends on
the Common Stock are paid (each such date, a "Cash Dividend Payment
Date"). Plan Shares purchased with optional cash payments will
generally be purchased on Friday of each week (see Section 10 below).
Each date on which dividends are reinvested in Plan Shares or optional
cash payments are invested in Plan Shares is sometimes referred to
herein as the "Investment Date."
F. The Plan permits investments in fractions of shares as well as
whole shares, providing the ability to fully invest the total amount
of any cash dividends or optional cash payments.
G. The Agent provides regular account statements and safekeeping for
all Plan Shares, simplifying recordkeeping and protecting Participants
against loss, theft or destruction of certificates.
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(b) Some of the primary limitations of the Plan are:
A. The date by which Participants must decide to make optional cash
payments is prior to the date on which such payments are invested.
Accordingly, Participants' investments may be exposed to changes in
market conditions. See Section 10 below.
B. The price for Plan Shares is based on either the average high and
low sales prices for shares of Common Stock on the Investment Date, or
the weighted average price paid by the Agent for all Plan Shares
purchased on the Investment Date. As a result, the price for Plan
Shares may exceed (or be less than) the price to a Participant of
directly acquiring shares of Common Stock on the open market. See
Section 12 below.
C. There may be delays between a Participant's instruction to sell
Plan Shares and the sale date. There may also be delays in receiving
Plan Shares withdrawn from the Plan. See Sections 16, 17 and 21 below.
D. No interest will be paid on funds held by the Agent pending
investment. See Section 10 below.
E. Reinvested cash dividends will be treated for Federal income tax
purposes as taxable income to the Participant on the dividend payment
date, giving rise to a tax payment obligation without providing the
Participant with immediate cash to pay such tax when it becomes due.
See Section 22.
F. Plan Shares may not be pledged. See Section 21.
G. Although Participants pay only limited fees on purchases and sales
of Plan Stock, there is no assurance that such fees are the lowest
available fees or that shares of Common Stock are not available for
purchase at lower fees.
NEITHER THE COMPANY NOR THE ADMINISTRATOR CAN ASSURE A PROFIT OR
PROTECT AGAINST A LOSS ON SHARES PURCHASED UNDER THE PLAN.
What are the sources of Plan Shares?
3. Plan Shares will be purchased either from the 750,000 shares of
Common Stock offered hereby or, at the Company's discretion, from
shares of Common Stock purchased by the Agent on any securities
exchange where such shares are traded, in the over-the-counter market
or in negotiated transactions, on such terms as the Agent may
determine. All sources of Plan Shares, other than the 750,000 shares
of Common Stock offered hereby, are collectively referred to as the
"Market." The Plan, accordingly, has the added benefit that Plan
Shares purchased directly from the 750,000 shares of Common Stock
offered hereby will provide the Company with additional funds to make
investments in real estate and for other corporate purposes. The
Company will not receive any additional funds with respect to Plan
Shares purchased from the Market, as the proceeds therefrom will
offset the costs incurred by the Company to acquire such Plan Shares.
The Company may not change its election with respect to the source of
Plan Shares more than once in any calendar quarter.
Who is eligible to participate in the Plan?
4. All current stockholders and other interested investors may
participate in the optional cash payment portion of the Plan by
completing and delivering an Enrollment Form. Stockholders of record
may participate in the reinvestment of cash dividends on shares of
Common Stock that are not Plan Shares. Stockholders whose shares are
currently registered in a name other than the name of such
stockholder, such as in the name of such stockholder's broker or bank
nominee, should consult directly with the entity holding such
stockholder's shares to determine how to enroll in the Plan. If the
entity holding such stockholder's shares does not provide for
participation in the Plan, such stockholder may request to have some
or all of its shares registered in its own name in order to
participate directly. All stockholders of record and all beneficial
owners of Common Stock held by brokers or other nominees having a
separate account registered in such beneficial owners' names on the
Company's stockholder records are referred to herein as "Registered
Stockholders". All persons and entities participating in the Plan are
referred to herein as "Participants."
Confirmations of purchases and statements of account under the Plan,
annual and other reports, and other communications from the Company
will be directed to the registered stockholder at the address shown on
the Company's records. The Company may also elect to send additional
copies of reports and various stockholder communications to the
underlying beneficial owners.
How will the Plan affect participants in the Company's current
dividend reinvestment plan?
5. Participants in the Company's current dividend reinvestment plan
need do nothing to participate in the Plan.
The Company currently maintains a dividend reinvestment plan for its
stockholders, pursuant to which eligible stockholders may elect to
cause all or any portion of their cash dividends to be reinvested in
Common Stock and may also elect to invest optional cash payments in
Common Stock, subject to certain limitations (the "Original Plan").
Concurrently with the establishment of the Plan, the Company is
merging the Original Plan into the Plan, and modifying the Original
Plan such that the Plan amends, restates and replaces the Original
Plan in its entirety. Consequently, (i) all participants in the
Original Plan are automatically Participants under the Plan, (ii) the
accounts established under the Original Plan are transferred to the
Plan, and (iii) the terms and conditions of the Plan replace all of
the terms and conditions of the Original Plan.
Any participant in the Original Plan who does not wish to participate
in the Plan may terminate such participant's participation in
accordance with Section 17 hereof.
What options are available under the Plan?
6. By marking the appropriate spaces on the Enrollment Form (see
Section 9 below), the Participant may choose among the following
investment options:
A. To invest by making optional cash payments at any time in any
amount not less than $100 per payment nor more than $20,000 per month.
B. To cause monthly optional cash payment investments to be made from
funds automatically deducted from a Participant's bank checking or
savings account in the amount specified by the Participant.
C. If the Participant is a Registered Stockholder, to reinvest cash
dividends automatically on all or a portion of the Certificate Shares
(provided a number of full shares is specified) now and subsequently
registered in the Participant's name, and to continue to receive cash
dividends on that portion of Certificate Shares for which dividends
are not reinvested.
CASH DIVIDENDS ON ALL WHOLE AND FRACTIONAL PLAN SHARES WILL BE
REINVESTED IN PLAN SHARES UNTIL THE PARTICIPANT WITHDRAWS FROM THE
PLAN OR UNTIL THE PLAN IS TERMINATED.
How will the Plan be Administered?
7. The Company has appointed BankBoston, N.A., P.O. Box 1681, Boston,
Massachusetts 02105-1681, which serves as transfer agent for the
Company's Common Stock, as agent (the "Agent") to administer the Plan.
The Agent will establish on its books a separate account for each
Participant to which will be credited (i) as of the close of business
on each Cash Dividend Payment Date, the number of Plan Shares
purchased with the cash dividend which the Participant who is a
Registered Stockholder has elected to have reinvested, and (ii) on or
prior to the close of business on the third (3rd) business day after
each date on which optional cash payments are invested in Plan Shares,
with respect to the receipt of an optional cash payment permitted
hereby, the number of Plan Shares purchased with such optional cash
payment. Plan Shares will be held by the Agent, as agent for the
Participants, and will be registered in the name of the Agent or its
nominee, unless and until a Participant requests that a stock
certificate for his or her shares be issued. The Agent will not issue
any certificates for Plan Shares unless specifically requested in
writing by the Participant (see Section 15 below) or upon the
Participant's withdrawal from the Plan (see Section 16 below) or upon
the termination of the Plan (see Section 26 below).
All inquiries regarding the Plan or its administration should be
directed to the Agent.
How do stockholders and other investors participate in the Plan?
8. Any current stockholder or other interested investor may join the
Plan at any time by completing and signing an Enrollment Form and
returning it to the Agent; provided, however, that the Company has
reserved the right to limit participation in the Plan and to terminate
and modify the Plan as set forth in Sections 23 and 26 below. With
respect to current stockholders of record, when stock is registered in
more than one name (i.e., joint tenants, trustees, etc.), all
registered holders must sign. When completing the Enrollment Form, a
Participant should be careful to include his or her social security
number or taxpayer identification number. Failure to supply this
information will result in backup withholding of 31% of payments owed
to a Participant.
An Enrollment Form either accompanies this Prospectus or may be
received from the Agent at the following address:
BankBoston, N.A.
P.O. Box 8040
Boston, Massachusetts 02266-8040
Attention: Customer Service
Telephone (Registered Stockholders): (800) 730-6001
Telephone (investors other than Registered Stockholders):
(800) 945-8245
If the signed Enrollment Form evidencing an election by a Registered Stockholder
to participate in the reinvestment of cash dividends is received by the Agent on
or prior to the record date for the next cash dividend payment, reinvestment of
cash dividends will begin with the next Cash Dividend Payment Date. If the
Enrollment Form is received after that date, reinvestment of cash dividends will
begin with the Cash Dividend Payment Date following the next Cash Dividend
Payment Date. The Company expects the record date for the payment of cash
dividends on the Common Stock to be in March, June, September and December of
each year.
Once a Registered Stockholder, electing to make a full dividend reinvestment or
a partial dividend reinvestment, has enrolled in the Plan, cash dividend
reinvestment continues automatically unless and until the Plan is terminated or
the Agent receives written notification from the Participant to terminate such
reinvestment, which notice must be received no later than five (5) business days
prior to the record date for the next cash dividend payment to be effective with
respect to such cash dividend payment. If such notice is received after such
time, the Participant's termination will be effective with respect to the cash
dividend payment after the next cash dividend payment. If there is any
subsequent change in the manner in which a Participant's name appears on his
Certificate Shares, the Participant must sign another Enrollment Form to
continue participation under the new registration.
Subject to the deadlines described above, Participants may change their
investment options at any time by requesting a new Enrollment Form. The Agent
must receive notice on or before the record date for the cash dividend payable
on a Cash Dividend Payment Date in order for a change in a Registered
Stockholder Participant's dividend reinvestment option to be effective for that
cash dividend. If such request is received after the record date for such cash
dividend, then such Participant's request will not be effective until the
succeeding Cash Dividend Payment Date.
What is contained in an Enrollment Form?
9.
A. If the "Optional Cash Payments" box on the Enrollment Form is
checked, the Agent will apply any optional cash payment received
with the Enrollment Form or with a subsequent similarly completed
Enrollment Form to the purchase of Plan Shares. If the
Participant is a Registered Stockholder and the "Optional Cash
Payments" box on the Enrollment Form is checked, but no other box
on the Enrollment Form is checked, the Participant will continue
to receive cash dividends on shares of Common Stock held by the
Participant (other than Plan Shares) in the usual manner, but the
Agent will apply any optional cash payment received with the
Enrollment Form or with a subsequent similarly completed
Enrollment Form to the purchase of Plan Shares.
B. If the Participant is a Registered Stockholder and checks the
appropriate box on the Enrollment Form, the Participant may elect
"Full Dividend Reinvestment" and the Agent will apply all cash
dividends on all Certificate Shares then or subsequently
registered in the Participant's name, together with any optional
cash payments, toward the purchase of Plan Shares.
C. If the Participant is a Registered Stockholder and elects to
reinvest dividends on only a portion of the Certificate Shares
then or subsequently registered in the Participant's name, the
Participant should check the "Partial Dividend Reinvestment" box
on the Enrollment Form and the Agent will reinvest cash dividends
on only the number of whole Certificate Shares the Participant
specifies on the Enrollment Form, together with any optional cash
payments, toward the purchase of Plan Shares and will pay cash
dividends on the rest of the shares of Common Stock held by the
Participant.
D. If a Participant elects "Automatic Bank Account Deduction,"
funds in the amount specified by the Participant will be
automatically withdrawn from the Participant's bank account on
the twentieth (20th) day of each month (or if such day is not a
business day, the first business day thereafter) and the Agent
will invest such funds to purchase Plan Shares on the first
Friday following such withdrawal date. For withdrawals to
commence in a particular month, the Agent must receive a properly
completed Automatic Investment Application no later than the date
that is thirty (30) days prior to the scheduled withdrawal date
for such month. With respect to Automatic Investment Applications
received by the Agent thereafter, withdrawals shall commence on
the scheduled withdrawal date for the succeeding month.
How may optional cash payments be made?
10. Each Participant in the Plan may invest in additional shares
of Common Stock by making optional cash payments at any time.
Participants in the Plan have no obligation to make any optional
cash payments. Optional cash payments may be made at irregular
intervals and the amount of each optional payment may vary, but
no optional payment may be less than $100 and the total optional
payments invested by each holder of shares of Common Stock may
not exceed $20,000 per month. The Company reserves the right to
return to any Participant any amounts that exceed the monthly
maximum amount. For the purpose of the investment limitations
discussed above, the Company may aggregate all optional cash
payments for Participants with more than one account using the
same Social Security or Taxpayer Identification Number. However,
if such Participant has multiple holdings in its own name and
through nominees, a separate Enrollment Form must be submitted
for each holding.
For the purpose of such limitations, all Plan accounts which the
Company believes to be under common control or management or to
have common ultimate beneficial ownership may be aggregated.
Unless the Company has determined that optional cash payments for
each such account would be consistent with the purposes of the
Plan, the Company will have the right to aggregate all such
accounts and to return, without interest, within thirty (30) days
of receipt, any amounts in excess of the investment limitations
applicable to a single account received in respect of all such
accounts.
An optional cash payment may be made by enclosing a check or
money order with the Enrollment Form when enrolling; and
thereafter by forwarding a check or money order to the Agent with
a payment form which will be attached to each statement of
account. Checks and money orders must be in United States dollars
and should be made payable to "BankBoston, N.A."
Optional cash payments will be invested on Friday of each week,
provided that the Agent receives such payments no later than two
(2) business days preceding such Friday. Optional cash payments
received thereafter will not be invested until the Friday
following such Friday. If any Friday does not fall on a day which
is a business day in Massachusetts, then the Agent will make the
investment on the next succeeding business day. NO INTEREST WILL
BE PAID ON OPTIONAL CASH PAYMENTS. IT IS THEREFORE SUGGESTED THAT
ANY OPTIONAL CASH PAYMENTS A PARTICIPANT WISHES TO MAKE BE SENT
SO AS TO REACH THE AGENT AS CLOSE AS POSSIBLE TO (BUT ON OR PRIOR
TO) TWO (2) BUSINESS DAYS PRECEDING A FRIDAY. The same amount of
money need not be sent each month, and there is no obligation to
make an optional cash payment each month. Optional cash payments
will be refunded if a written request for a refund is received by
the Agent no later than two (2) days prior to the Investment Date
for such optional cash payment.
A Registered Stockholder may participate through the investment
of optional cash payments without the necessity of reinvesting
cash dividends by checking only the "Optional Cash Payments" box
on the Enrollment Form. However, even if only the "Optional Cash
Payments" box is checked, all dividends payable on shares
purchased with optional cash payments and retained in the
Participant's Plan account will be reinvested automatically in
additional shares of Common Stock.
In the event that any check is returned unpaid for any reason,
the Agent will consider the request for investment null and void
and shall immediately remove from the Participant's account
shares, if any, purchased upon credit of such money. The Agent
shall thereupon be entitled to sell such shares to satisfy
uncollected amounts. If the net proceeds of the sale of such
shares are insufficient to satisfy the balance of such
uncollected amounts, the Agent shall be entitled to sell such
additional shares from the Participant's account as needed to
satisfy the uncollected balance
How many Plan Shares will be purchased with each investment?
11. Purchases of Plan Stock will be made for a Participant's
account from the 750,000 shares of Common Stock offered hereby
or, at the Company's discretion, from Common Stock purchased by
the Agent from the Market. The number of shares purchased will
depend on the amount of a Participant's cash dividends or
optional cash payment and the purchase price per share (see
Section 12 below). A Participant's account will be credited with
that number of shares, including fractions, computed to three
decimal places, equal to a Participant's total amount to be
invested divided by the applicable purchase price per share.
What is the price of Plan Shares?
12. The price of Plan Shares purchased from the 750,000 shares of
Common Stock offered under this Prospectus with reinvested cash
dividends or optional cash payments will be the average of the
high and low sales prices for the Common Stock on the New York
Stock Exchange on each Investment Date. For Plan Shares purchased
from the Market with reinvested cash dividends or optional cash
payments, the purchase price will be the weighted average price
paid by the Agent for all shares purchased by it for Participants
with the invested funds on the Investment Date.
Limited fees will be charged to Participants in connection with
each purchase and sale of Plan Shares made on behalf of such
Participant by the Agent. See Section 13 below.
Since the dates by which Participants must elect to make
investments are prior to the dates on which the Agent makes
investments, a Participant loses any advantages otherwise
available from being able to select the timing of investments.
Participant's should recognize that neither the Company nor the
Agent assures a profit or protects against a loss on shares of
Common Stock purchased under the Plan.
Will Participants incur any costs in connection with the Plan?
13. In connection with the following transactions, Participants
will be assessed the following charges:
All optional cash payment investments will have a $5.00
service charge deducted from the cash to be invested whether
through automatic bank withdrawal or by check.
Sales processed through the Plan will have a $10.00 fee
deducted from the net proceeds, after the brokerage
commissions calculated as provided below.
Participants are responsible for all commission costs
associated with sales (but not purchases). In addition to
the transaction charges outlined above, Participants will be
assessed per share processing fees which include brokerage
commissions at a rate of $0.15 per share sold.
Will Participants receive statements regarding their Plan accounts?
14. Participants will be sent a statement of their accounts
following each purchase of shares. These statements of account
will show any cash dividends and optional cash payments received,
the number of shares purchased, the purchase price for the
shares, the number of Plan shares held for the Participant by the
Agent, the number of enrolled shares registered in the name of
the Participant, and an accumulation of the transactions for the
calendar year to date. Statements will be mailed as soon as
practicable after each transaction. These statements are a
Participant's continuing record of the cost of his or her
purchases and should be retained for income tax purposes.
In addition, each Participant will receive the most recent
Prospectus constituting the Plan and copies of the same
communications sent to every other holder of shares of Common
Stock, including the Company's Annual Report, Notice of Annual
Meeting and Proxy Statement and income tax information for
reporting distributions (including dividends) paid by the
Company.
Will certificates be issued for Plan Shares?
15. Certificates will not be issued to Participants for Plan
Shares credited to their account unless the Participant requests
the Agent in writing to do so or unless the Participant withdraws
from the Plan. The number of Plan Shares credited to a
Participant's account under the Plan will be shown on the
statements of the Participant's account. This service eliminates
the need for safekeeping by a Participant to protect against
loss, theft, or destruction of stock certificates.
At any time a Participant may request in writing that the Agent
send a certificate for or sell all or part of the Plan Shares
credited to such Participant's account. This request should be
mailed to the Agent at the address indicated in Section 8 above.
Any remaining whole shares and fractions of shares will continue
to be credited to the Participant's account. The Company will pay
all fees in connection with sending a certificate. If Plan Shares
are sold by the Agent at the request of a Participant, the
Participant must pay any broker's commission and any transaction
fee of the Agent, as they appear in Section 13 above.
Certificates for fractional shares will not be issued under any
circumstances. Cash dividends on Plan Shares shall be credited to
the Participant's account and automatically reinvested in Plan
Shares.
Accounts under the Plan are maintained in the name in which
Certificate Shares are registered at the time a Participant
enters the Plan. Consequently, certificates for whole shares
purchased under the Plan will be similarly registered when issued
to a Participant upon request. A Participant who wants these
shares registered and issued in a different name, must so
indicate in a written request to the Agent at the address
indicated in Section 8 above. The Participant will be responsible
for any transfer taxes that may be due and for compliance with
any applicable transfer requirements in connection with such
registration.
How may Participants withdraw from the Plan?
16. A Participant may withdraw from the Plan at any time upon
written notice to the Agent. Such notice should be addressed to
the Agent at the address indicated in Section 8 above. In order
to withdraw from the cash dividend reinvestment portion of the
Plan, a Participant must notify the Agent in writing prior to the
record date for the next cash dividend payment.
Upon withdrawal, a Participant will receive a stock certificate
for all whole shares held for a Participant's account in the
Plan, plus a check for the value of any fractional shares. The
value of a fractional share will be based upon the average of the
high and low sales prices for the Common Stock on the New York
Stock Exchange as of the trading date prior to the date of
issuance of the check. See Section 21 below for a discussion of
how a Participant may sell shares in his or her Plan account
through the Agent rather than first withdrawing shares from the
Plan and then selling them on the open market through a broker.
May Participants terminate their participation in the Plan?
17. A Participant may terminate participation in the Plan by
written notice to the Agent. When a Participant terminates his or
her participation in the Plan (or upon termination of the Plan by
the Company), certificates for whole shares in his or her account
under the Plan are issued and a cash payment is made for any
fraction of a share in such account.
If the written termination notice is received by the Agent before
the record date for a cash dividend, the termination will be duly
processed and such cash dividend will not be reinvested on the
next Cash Dividend Payment Date. Any written notice of
termination received after a cash dividend record date will not
be effective until cash dividends for such record date have been
invested and the shares have been allocated to the account of the
respective Participant. After such cash dividends are invested
and allocated to the Participants' accounts, termination requests
will be processed. Allocations may take up to two (2) weeks after
cash dividend payment. Neither the Agent nor the Company is
responsible for losses during such periods. Any optional cash
payment received by the Agent prior to the receipt of a
termination notice will be invested in shares of Common Stock
unless the Participant expressly requests in writing that the
optional cash payment be returned and the Agent receives the
Participant's written request two (2) business days before the
date on which the Agent invests optional cash payments (see
Section 10 above).
A Participant may re-enroll in the Plan at any time by submitting
an Enrollment Form.
A Participant who is a stockholder of record who terminates the
reinvestment of dividends paid on shares registered in his or her
name may leave in the Plan the shares previously purchased for
his or her account in the Plan. Dividends paid on shares left in
the Plan continue to be reinvested automatically for his or her
account.
Will cash dividends be paid on Plan Shares?
18. Cash dividends will be automatically reinvested on all Plan
Shares that have been purchased under the Plan and credited to a
Participant's account; provided, however, that no dividends will
be earned on such shares purchased under the Plan until the
dividend payment for the first dividend record date that follows
the date of purchase of such shares. On shares of Common Stock
for which a Participant, who is a stockholder of record, has
directed that dividends be reinvested, cash dividends will
automatically be credited to a Participant's account and
reinvested in additional shares of Common Stock. On shares of
Common Stock for which a Participant, who is a stockholder of
record, has not directed that dividends be reinvested and on
shares owned by stockholders who are not participating in the
Plan, cash dividends, if and as declared, will be received by
them by check as usual.
How will Plan Shares be affected by stock dividends, splits or rights
offerings?
19. Any stock dividend or split shares distributed by the Company
on Plan Shares will be reflected on Participants' accounts and
will appear on their quarterly statements. Stock dividends or
split shares distributed on other shares of Common Stock held by
the Participant will be mailed directly to the Participant.
As soon as practicable after effectiveness of a stock dividend or
a stock split, the Company will send statements to all
Participants indicating the number of shares of Common Stock
credited to their account under the Plan as a result of the stock
dividend or stock split. Participants may receive a certificate
for such shares (other than fractional shares) at any time by
sending a written request to the Agent at the address indicated
in Section 8 above.
In the event of a rights offering, a Participant will receive
rights based upon the total number of whole shares owned, both
Certificate Shares and Plan Shares.
May Plan Shares be voted?
20. All Plan Shares held by the Company as well as Certificate
Shares will be voted as each Participant directs. A proxy card
will be sent to each Participant in connection with the annual or
any special meeting of stockholders. This proxy will apply to all
Certificate Shares registered in each Participant's name, if any,
as well as to all whole Plan Shares credited to each
Participant's account. If properly signed, all shares will be
voted in accordance with the instructions that each Participant
gives on the proxy card.
If no instructions are indicated on a properly signed and
returned proxy card, all Certificate Shares, if any, and all
whole Plan Shares, will be voted in accordance with the
recommendations of the Company's management. If the proxy card is
not returned or is returned unsigned, a Participant's shares will
be voted only if the Participant votes in person or through some
other duly authorized representative at the meeting of
stockholders.
What happens when Plan Shares are sold?
21. Following the sale by a Participant of all Certificate
Shares, there will be no cash dividends to be reinvested for such
Participant with respect to such Certificate Shares. However, the
cash dividends on any existing Plan Shares will continue to be
reinvested in additional Plan Shares until the Agent receives
notice acceptable to the Agent from the Participant to terminate
the reinvestment account. See Section 17 above.
If a Participant sells part of the Certificate Shares registered
in the Participant's name, cash dividends on all remaining
Certificate Shares participating in the Plan will continue to be
reinvested for the Participant's account.
EXAMPLE: A Participant owns 500 shares of Common Stock and
directs the Company to reinvest the cash dividends of only 250.
Cash dividends on 250 shares will be sent to the Participant
directly, and cash dividends on 250 shares will be reinvested.
The Participant then sells 100 shares of Common Stock. The
Participant will now receive cash dividends directly on 150
shares and cash dividends on the 250 shares will continue to be
reinvested.
A Participant who desires to sell shares of Common Stock in a
Plan account must request that certificates for such shares be
issued in the Participant's name or, as an alternative, may
request the Agent to sell whole shares credited to his or her
account under the Plan. If a Participant requests that the Agent
sell shares credited to his or her Plan account, the Agent will
use its best efforts to make the sale in the open market within
ten (10) trading days after receipt of the written request, and
the Participant will receive the proceeds of the sale minus any
brokerage commissions and transfer taxes. No Participant has the
authority or power to direct the date or sale price at which the
Common Stock may be sold by Agent under this alternative.
Any written instructions that do not clearly indicate the whole
number of shares to be sold, or that "all" Plan shares are to be
sold, will be returned to the Participant with no action taken.
A participant who wishes to sell some or all of his or her shares
in the Plan should be aware of the risk that the price of the
Common Stock may decrease between the time that the Participant
determines to sell shares in the Plan and the time that the sale
is completed. This risk is borne solely by the Participant. No
check for the proceeds of such sale will be mailed prior to the
settlement of funds from the brokerage firm through which shares
in the Plan are sold. Settlement is normally three (3) business
days after the sale of the shares.
All information relating to the sale of shares in the Plan will
be reported to the Internal Revenue Service pursuant to
applicable legal requirements.
A Participant may not pledge or assign shares credited to a Plan
account. Any such purported pledge or assignment will be void. If
a Participant wants to pledge or assign such shares, the
Participant must request that certificate for such shares be
issued in the Participant's name.
What are the federal income tax consequences of Plan participation?
A stockholder who participates in the Plan will have somewhat
different federal income tax obligations for cash dividends
reinvested under the Plan than for cash dividends received
directly in cash. Upon a Cash Dividend Payment Date, a
Participant will (i) be treated as having received a cash
dividend equal to the fair market value of the Plan Shares
purchased on such date, and (ii) recognize taxable income for the
stockholder's pro rata share of brokerage commissions paid by the
Company, if any, for the purchase of such Plan Shares. Although
Plan Shares will be purchased for 100% of their market price, the
Company will pay all brokerage commissions incurred, if any, on
the purchase of Plan Shares. Accordingly, the taxable income of
Participants will be greater than the taxable income that would
have resulted from the receipt of the dividend in cash. A
Participant's tax basis in the dividend shares will be equal to
the fair market value of the cash dividend shares credited to the
Participant's account plus any additional taxable income
recognized with respect to brokerage commissions paid by the
Company. So long as the Company continues to qualify as a REIT
under the Internal Revenue Code of 1986, as amended (the "Code"),
all dividends paid by the Company, including dividends reinvested
under the Plan, will be taxable under the provisions of the Code
applicable to REITs and their stockholders, pursuant to which (i)
dividends will be taxable to stockholders as ordinary income to
the extent of the current or accumulated earnings and profits of
the Company, (ii) dividends which are designated as capital gain
dividends by the Company will be taxed as long-term capital gains
to stockholders to the extent they do not exceed the Company's
net long-term capital gains for the taxable year, (iii) dividends
which are not designated as capital gain dividends and which are
in excess of the Company's current or accumulated earnings and
profits will be treated as a return of capital to the
stockholders and reduce the adjusted tax basis of a stockholder's
shares (but not below zero), and (iv) distributions treated as a
return of capital in excess of a stockholder's adjusted tax basis
in its shares will be treated as gain from the sale or exchange
of such shares.
EXAMPLE: The Company makes a quarterly cash dividend which would
amount to $100 if the stockholder received it in cash. The
stockholder is instead a Participant in the Plan. The average of
the daily average of the high and low sales prices of the
Company's Common Stock on the New York Stock Exchange on the Cash
Dividend Payment Date is $14. The $100 cash dividend is
reinvested for the Participant in Plan Shares acquired in the
open market with a $3 brokerage commission paid the Company at
$14 per share (100% of $14). Accordingly, 7.143 Plan Shares ($100
divided by $14) would be credited to the Participant's account.
The fair market value of these 7.143 shares is $14 each, or $100.
For federal income tax purposes, assuming the Company has
sufficient earnings and profits, the Company is deemed to have
distributed to the Participant and the Participant is deemed to
have received $100, and the Participant will further recognize $3
of taxable income for brokerage commissions paid by the Company.
The Participant will therefore obtain a $103 tax basis ($100
dividend plus $3 for brokerage commissions) for the 7.143
dividend shares.
When a Participant receives certificates for Plan Shares
previously credited to the Participant's account under the Plan,
the Participant will not recognize any taxable income; provided,
however, that a Participant who receives a cash adjustment for a
fraction of a share may recognize a gain or loss with respect to
such fraction. A gain or loss may also be recognized by the
Participant when Plan Shares are sold by the Participant. The
amount of such taxable gain or loss will be the difference
between the amount which the Participant receives for the shares
(including fractions of a share) and the tax basis of the
Participant in the shares. In some circumstances, the amount of
loss recognized may be partially or fully disallowed.
The Company will comply with all applicable Internal Revenue
Service ("IRS") requirements concerning the filing of information
returns, and such information will be provided to the Participant
by a duplicate of that form or a final statement of account for
each calendar year. With respect to Participants whose dividends
are subject to federal income tax withholding, the Company will
comply with all applicable IRS requirements concerning the
withholding of such tax, and the amount of any cash dividend
reinvested will, in each case, be after any reduction necessary
to comply with the applicable withholding.
THE FOREGOING IS ONLY A SUMMARY OF THE FEDERAL INCOME TAX CONSEQUENCES OF
PARTICIPATING IN THE PLAN AND DOES NOT CONSTITUTE TAX ADVICE. SPECIFIC QUESTIONS
SHOULD BE REFERRED TO THE PARTICIPANT'S TAX ADVISOR.
May the Company limit participation in the Plan?
23. The Company has authority under the Charter to prevent
transfer of shares to any person if the concentration of stock
ownership resulting therefrom might jeopardize the continued
qualification of the Company as a REIT. In this regard, the
Charter provides, among other things, that no person, with
certain exceptions, may own more than 6.0% of the value of the
outstanding shares of Equity Stock (as defined in the Charter).
Accordingly, the Company reserves the right not to sell shares
under the Plan to any shareholder holding 6% or more in value of
Equity Stock, subject to any exceptions provided in the Charter.
The decision of the Company in this regard is final and the
particular shareholders' only right shall be the return of any
optional cash payment and the return of dividends in cash.
What are the responsibilities of the Company and the Agent under the
Plan?
24. Neither the Company nor the Agent nor its nominees, in
administering the Plan, will be liable or responsible for any act
done in good faith or for any good faith omission to act,
including, without limitation, any claim of liability arising our
of failure to terminate a Participant's account upon such
Participant's death prior to receipt of notice in writing of such
death.
NEITHER THE COMPANY NOR THE AGENT CAN ASSURE YOU OF A PROFIT OR PROTECT YOU
AGAINST A LOSS ON SHARES PURCHASED UNDER THE PLAN.
Are there any restrictions on the resale of Plan Shares?
25. Employees who are not "affiliates" of the Company are free to
sell Plan Shares acquired under the Plan. Employees who are
"affiliates" of the Company, as that term is defined in Rule 405
promulgated by the Commission under the Securities Act, may not
publicly reoffer Plan Shares except pursuant to Rule 144 of the
Commission or pursuant to an effective registration statement.
Rule 405 defines an "affiliate" as a person who directly, or
indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the Company.
Directors and certain officers of the Company may be "affiliates"
of the Company under this definition.
Directors and certain executive officers of the Company
participating in the Plan are also subject to the reporting
obligation of Section 16(a) and the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act with respect to
purchases of the Common Stock made under the Plan with optional
cash payments. Although such directors and officers are not
subject to the short-swing profit recovery provisions of Section
16(b) of the Exchange Act with respect to purchases of Common
Stock made under the Plan with reinvested dividends, such
purchases must be disclosed on annual reports filed pursuant to
Section 16(a) of the Exchange Act.
May the Company terminate or modify the Plan?
26. The Company reserves the right to terminate the Plan in its
entirety or modify the Plan at any time with respect to the price
to be charged for shares and the minimum and maximum amount to be
sold to any Participant or Participants, specifically reserving
the right to exclude any Participant for any reason. The Company
will ordinarily give each Participant at least thirty (30) days'
notice of such termination or modification of the price or other
substantive provisions of the Plan. The Company also reserves the
right to waive the requirements of the Plan, in some cases
without waiving such requirement generally. The Company also
reserves the right to adopt, and from time to time change, such
administrative rules and regulations (not inconsistent in
substance with the basic provisions of the Plan then in effect)
as it deems desirable or appropriate for the administration of
the Plan. The Agent reserves the right to resign at any time upon
reasonable written notice to the Company.
The purpose of the Plan is to provide investors with a
systematic, efficient and convenient method of investing in the
Common Stock of the Company and reinvesting dividends and
optional cash payments in the Common Stock for long-term
investment. Use of the Plan for any other purposes is prohibited.
The Company reserves the right to return optional cash payments
to Participants if, in the Company's opinion, the investment is
not consistent with the purposes of the Plan. Participants who
establish multiple accounts to circumvent the $20,000 per month
limit on optional cash investment are subject to the Company's
right to return all optional cash payments and/or to terminate
such Participant's right to participate in the Plan.
Upon termination of the Plan, no further investment of cash
dividends will be made for a Participant's account and no further
optional cash payments will be accepted by the Company for the
purchase of Plan Shares, and Participants will receive stock
certificates for whole Plan Shares held in their accounts and
checks for the net proceeds from the sale of any fractional
shares, as in the case of a voluntary withdrawal by a Participant
from the Plan. No modification of the Plan will affect a
Participant's right to receive such stock certificate for the
Participant's whole Plan Shares (and appropriate proceeds for any
fractional share) upon a Participant's withdrawal from the Plan.
The Company will also terminate the Plan when participation in
the Plan is below a minimum level of investment that the Company
may, from time to time, establish a being uneconomic or
inefficient to administer.
How will the Plan be interpreted?
27. All questions of interpretation arising under the plan will
be determined by the Company, in its sole discretion, and any
such determination will be final.
What law will govern the Plan?
28. The Plan will be governed by and construed in accordance with
the laws of the State of Maryland.
USE OF PROCEEDS
The Company has no basis for estimating either the number of shares of Common
Stock offered hereby that will ultimately be sold pursuant to the Plan or the
prices at which such shares will be sold. The Company intends to contribute any
net proceeds it receives from sales of shares of Common Stock offered hereby to
the Operating Partnership, of which the Company is the sole general partner, to
purchase additional general partnership interests in the Operating Partnership.
The Operating Partnership will use such net proceeds to fund the acquisition and
development of properties, the reduction of debt and for general corporate
purposes. The Company is unable to estimate the amount of the net proceeds that
will be devoted to any specific purpose.
EXPERTS
The consolidated financial statements and financial statements schedule of Essex
Property Trust, Inc. (the "Company") as of December 31, 1996 and 1995, and for
the years ended December 31, 1996 and 1995 and for the period June 13, 1994
through December 31, 1994 and of Essex Partners Properties (the "Predecessor")
for the period January 1, 1994 through June 12, 1994, have been incorporated by
reference herein and in the registration statement in reliance upon the reports
of KPMG Peat Marwick LLP, independent certified accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
LEGAL MATTERS
The validity of the Common Stock offered hereby will be passed upon for the
Company by Morrison & Foerster llp, Palo Alto, California.
<PAGE>
============================================ ==================================
No person has been authorized to give
any information or to make any
representations other thanthose
contained in this Prospectus and, if ESSEX PROPERTY TRUST, INC.
given or made, such information or
representations must not be relied upon
as having been authorized. This DIVIDEND REINVESTMENT AND
Prospectus does not constitute an offer SHARE PURCHASE PLAN
to sell or a solicitation of an offerto
buy any securities other than the
securities to which this Prospectus
relates or an offer to sell or the
solicitation of an offer to buy such 750,000 Shares
securities in any circumstances in which of
such offer or solicitation is unlawful. Common Stock
Neither the delivery of this Prospectus
nor 750,000 Shares any sale made
hereunder shall, under any
circumstances, of create any implication
that there has been no change in Common
Stock the affairs of the Company since -------------
the datehereof or that the information Prospectus
contained herein or therein is correct -------------
as of any time subsequent to its date.
September 18, 1997
TABLE OF CONTENTS
Page
Available Information.............................. 4
Incorporation of Certain Documents by
Reference.......................................... 4
The Company........................................ 5
Dividend Reinvestment and Share Purchase Plan...... 5
Use of Proceeds.................................... 20
Experts............................................ 20
Legal Matters...................................... 20
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
SEC Registration Fee.................................................. $ 7,223
Cost of printing...................................................... 10,000
Accounting fees....................................................... 10,000
Legal Fees............................................................ 25,000
Miscellaneous......................................................... 5,000
Total........................................................ $ 57,223
All expenses in connection with the issuance and distribution of the securities
being offered shall be borne by the Company.
Item 15..Indemnification of Directors and Officers
The Maryland General Company Law (the "MGCL") permits a
Maryland corporation to include in its charter a provision
limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except
for (i) actual receipt of an improper benefit or profit in
money, property or services or (ii) active and deliberate
dishonesty established by a final judgment as being material
to the cause of action. The Charter contains such a
provision which limits such liability to the maximum extent
permitted by the MGCL.
The Charter authorizes the Company to obligate itself to indemnify its
present and former officers and directors and to pay or reimburse
reasonable expenses for such individuals in advance of the final
disposition of a proceeding to the maximum extent permitted from time to
time by the laws of Maryland. The Bylaws of the Company obligate it to
indemnify, and advance expenses to present, former and proposed directors
and officers to the maximum extent permitted by Maryland law. The MGCL
permits a corporation to indemnify its present and former directors and
officers, among others, against judgments, penalties, fines, settlements
and reasonable expenses actually incurred by them in connection with any
proceeding to which they may be made a party by reason of their services in
those or other capacities unless it is established that (a) the act or
omission of the director or officer was material to the matter giving rise
to the proceeding and (i) was committed in bad faith or (ii) was the result
of active and deliberate dishonesty, (b) the director or officer actually
received an improper personal benefit in money, property or services, or
(c) in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful. However,
a corporation may not indemnify for an adverse judgment in a suit by or in
the right of the corporation. In addition, the MGCL requires the Company,
as conditions to advancing expenses, to obtain (i) a written affirmation by
the director or officer of his good-faith belief that he has met the
standard of conduct necessary for indemnification by the Company as
authorized by the applicable Bylaws and (ii) a written statement by him or
on his behalf to repay the amount paid or reimbursed by the Company if it
shall ultimately be determined that the standard of conduct was not met.
The Bylaws of the Company also permit the Company to provide
indemnification and advance or expenses to a present or former director or
officer who served a predecessor of the Company in such capacity, and to
any employee or agent of the Company or a predecessor of the Company.
Finally, the MGCL requires a corporation (unless its charter provides
otherwise, which the Company's charter does not) to indemnify a director or
officer who has been successful, on the merits or otherwise, in the defense
of any proceedings to which he is made a party by reason of his service in
that capacity.
The Company has entered into indemnification agreements with each of the
directors and executive officers of the Company to provide them with
indemnification to the full extent permitted by the Charter and Bylaws of
the Company.
The Company maintains an insurance policy which provides liability coverage
for directors and officers of the Company.
Item 16. Exhibits
Exhibit Number Description of Exhibits
- --------------------------------------------------------------------------------
4(c) Specimen Enrollment Form
5.1 Opinion of Morrison & Foerster llp
8.1 Opinion of Morrison & Foerster llp relating to certain
tax matters
23.1 Consent of KPMG Peat Marwick llp, independent auditors
23.2 Consent of Morrison & Foerster llp (included in
Exhibit 5.1 and 8.1)
24.1 Power of Attorney (included on page II-4)
Item 17. Undertakings.
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 of 1933;
(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;
(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 subparagraphs (i) and (ii) 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 Registrant pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the 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 post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further undertakes 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 therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
The undersigned Registrant undertakes that insofar as indemnification
for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise (other than insurance), such
Registrant has been advised that in the opinion of the Securities and
Exchange Commission 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 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, 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.
<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 of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Palo Alto, State of California, on the 18th day of
September , 1997.
ESSEX PROPERTY TRUST, INC.
(Registrant)
By: /s/ Keith R. Guericke
-------------------------
Keith R. Guericke
President and
Chief Executive Officer
We, the undersigned officers and directors of Essex Property Trust, Inc. do
hereby constitute and appoint George M. Marcus, Keith R. Guericke and Michael J.
Schall, and each of them, our true and lawful attorneys-in-fact and agents, each
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ George M. Marcus Chairman of the Board 9/18/97
George M. Marcus
/s/ William A. Millichap Director 9/18/97
WILLIAM A. MILLICHAP
/s/ Keith R. Guericke Chief Executive Officer 9/18/97
KEITH R. GUERICKE and President(Principal
Executive Officer)
/s/ Michael J. Schall Director, Executive Vice 9/18/97
MICHAEL J. SCHALL President and Financial
Officer (Principal Financial
Officer)
/s/ Mark J. Mikl Controller (Principal 9/18/97
MARK J. MIKL Accounting Officer)
/s/ David W. Brady Director 9/18/97
DAVID W. BRADY
/s/ Robert E. Larson Director 9/18/97
ROBERT E. LARSON
/s/ Gary P. Martin Director 9/18/97
GARY P. MARTIN
/s/ Issie N. Rabinovitch Director 9/18/97
ISSIE N. RABINOVITCH
/s/ Thomas E. Randlett Director 9/18/97
THOMAS E. RANDLETT
/s/ Willard H. Smith, Jr. Director 9/18/97
WILLARD H. SMITH, JR
/s/ Gregory J. Hartman Director 9/18/97
GREGORY J. HARTMAN
/s/ Anthony Downs Director 9/18/97
ANTHONY DOWNS
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------------- ----------------------------------------------------------------
4(c) Specimen Enrollment Form
5.1 Opinion of Morrison & Foerster llp
8.1 Opinion of Morrison & Foerster llp relating to certain tax
matters
23.1 Consent of KPMG Peat Marwick llp, independent auditors
23.2 Consent of Morrison & Foerster llp (included in Exhibit 5.1 and
8.1)
24.1 Power of Attorney (included on page II-4)
<PAGE>
Exhibit 4(C)
Specimen Enrollment Form
ESSEX PROPERTY TRUST, INC. DIVIDEND REINVESTMENT AND
C/O BANK BOSTON, any questions, please SHARE PUCHASE PLAN ENROLLMENT FORM
P.O. BOX 8040 call toll free:
BOSTON, MA 02266 1-(800)-730-6001
================================================================================
Enrolling I wish to enroll in the Essex Property Trust, Inc., Dividend
in the Reinvestment and Share Purchase Plan ("Plan") available to
Plan interested investors of Essex Property Trust, Inc., ("the
Company") by making an Initial Investment. Enclosed is a check
or money order for $_______ ($100 minimum/$20,000 maximum monthly
) payble to "BankBoston". Check must be received at least two
business days prior to an Investment Date to be invested
beginning on that Investment Date.
________________________________________
| Please note any address corrections
| directly on this form to the left.
| Please provide your day and evening
| phone numbers to assist us in
processing your enrollment.
| Daytime Phone: ____________________
________________________________________ Evening Phone: ____________________
================================================================================
Account |_|check here if registration desired matches mailing information
Registra- above. Social Security Number:_____-_______-_____
tion
|_| INDIVIDUAL OR JOINT. Joint accounts will be presumed to be
joint tenants unless restricted by applicable state law or
otherwise indicated. Only one Social Security Number is required
for tax reporting.
Please
Check one _________________________________________________________________
box and Owner's First Name M.I. Last Name Social Security Number
provide all _________________________________________________________________
requested Joint Owner's First Name M.I. Last Name
informa-
tion. |_| CUSTODIAL. A minor is the beneficial owner of the account
Please with an adult Custodian managing the account until the minor
print becomes of age, as specified in the Uniform Gifts/Transfers to
clearly. Minors Act in the minor's state of residence.
_________________________________________________________________
Custodian's First Name M.I. Last Name
________________________________________________________________________________
Minor's First Name M.I. Last Name Minor's Social Minor's State of Resi-
Security Number dence
|_|TRUST.Account is established in accordance with provisions of
trust agreement.
________________________________________________________________________________
Trustee Name Name of Trust Trust Date Tax ID Number Beneficiary
================================================================================
Dividend You may choose to reinvest all, some or none of the dividends
Election paid on Company Common Shares registed in your name in certif-
cate form. In either option, dividends on shares held in your
Please plan account will be reinvested.
check one
box and |_| FULL DIVIDEND REINVESTMENT I wish to reinvest all of my divi-
provide the dends in additional Common Shares. I may also make optional pay-
requested ments to the Plan. (You will not receive a dividend check).
inform-
ation |_| PARTIAL DIVIDEND REINVESTMENT I wish to reinvest all divi-
dends payable to me/us on _______ Common Shares registered in my/
our name(s). I may also make optional payments to the Plan.
|_| CASH INVESTMENTS I wish to make only optional cash payments to the Plan. (I
wish to reinvest dividends on shares held in the plan only).
================================================================================
Signatures
By signing this form, I request enrollment, certify that I have
received and read the Prospectus and agreee to abide by the terms and conditions
of the Plan. I hereby appoint BankBoston, N.A., as my agent to apply dividends
and any investments I may make to the purchase of shares under the Plan. I
understand that I may revoke this authorization at any time by written notice to
BankBoston, N.A.
All joint owners must sign.
Under penalties of perjury, I also certify that: A. The number shown on
this form is my/our correct Social Security Number or Taxpayer ID Number.
B. I am not subject to backup withholding either because (1) I have not
been notified by the Internal Revenue Service (IRS) that I am subject to
backup withholding as a result of a failure to report all interest or
dividends, or (2) the IRS has notified me that I am no longer subject to
backup withholding. (Check here___if you have been notified by the IRS that
you are subject to backup withholding because of underreporting of interest
or dividends on your tax returns).
- --------------------------------------------------------------------------------
Signature Date Signature
================================================================================
Automatic Investment
Automatic Investment You may authorize automatic monthly deductions from your
personal bank account. BankBoston, N.A., will invest these deductions in Company
stock and credit the account established pursuant to this application. To
initiate these deductions, please complete the reverse side of this form and
check this box. Your authorized monthly deduction from your bank account must be
for at least $100 and cannot exceed $20,000 monthly.|_|
<PAGE>
Automatic Investment Application
Please complete the information below to commence automatic withdrawals from
your Bank account to purchase additional shares. Deductions investments will
continue until you notify BankBoston, N.A., to change or discontinue them. You
must notify the Bank at least four business days prior to the date of debit (see
Prospectus) for any change to be effective. Should your Bank account contain
insufficient funds to cover the authorized deduction, no investment will occur.
In such event, you may be charged a fee by your bank for insufficient funds.
Please see sample below illustrating where these numbers can be found.
ABA Routing Number Checking or Money Market Savings
|_||_||_||_||_||_||_||_||_| |_| |_|
Bank Account Number
|_||_||_||_||_||_||_||_||_||_||_||_||_||_||_||_| ------------------------------
Name on Account (Please Print)
Amount to be Withdrawn
|_||_|,|_||_|.|_||_|
(MINIMUM $100.00)
I hereby authorize -----------------------------
to make monthly automatic Name of Financial Institution
transfers of funds from my savings/
checking account in the amount indicated _____________________________
on this form. These funds will be used Mailing Address of Financial
to purchase shares of Common Stock for Institution
my account. Note: If Joint Account, both
holders must sign. -----------------------------
City State Zip
- --------------------------------------------------------------------------------
Signature Date Signature Date
- --------------------------------------------------------------------------------
John Smith 63-85
123 Your Street 670 000
Anywhere, USA 12345
__________________________ 19______
PAY TO THE
ORDER OF _____________________________________________________________$
_______________________________________________________________________ DOLLARS
100-001
BANK 123 Main Street
Anywhere, USA 12345
FOR ______________________________________ SAMPLE (NON-NEGOTIABLE)
063000047 1234567890
ABA NUMBER ACCOUNT NUMBER
- --------------------------------------------------------------------------------
<PAGE>
(FRONT OF CARD)
Essex Property Trust, Inc.
Please enroll my account in the Plan as indicated on this form. CHECK ONE OPTION
ONLY
OPTION 1
|_|FULL DIVIDEND REINVESTMENT
I/We wish to reinvest all dividends due this accounts.
OPTION 2 |_| PARTIAL DIVIDEND REINVESTMENT
I/We wish to reinvest dividends on only_____shares registered in my name and
want my cash dividends on the rest of my shares. I understand that dividends on
all shares held for me by the plan administrator will be reivested.
OPTION 3
|_|OPTIONAL PAYMENTS ONLY
I wish to make only Optional Payments for the purchase of additional shares
without reivesting dividends on any shares.
Participants can send optional cash investments of not less then $100.00 and not
more than $20,000 monthly Amount enclosed, if any: $________ regardless of which
option is selected. This authorization can be changed or terminated at any time
by written notice.
Sign this card only after reading the reverse side.
__________________________________________________
Shareholder Signature
__________________________________________________
Shareholder Signature
________________________ ________________________
Date 19
|_|Mark here for address change and note above THIS IS NOT A PROXY
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN AUTHORIZATION CARD
ESSEX PROPERTY TRUST, INC.
Please enroll my account in the Plan as indicated on this form. CHECK ONLY ONE
OPTION
OPTION 1
|_| FULL DIVIDEND REINVESTMENT
I/We wish to reinvest all dividends due this account.
OPTION 2
|_| PARTIAL DIVIDEND REINVESTMENT
I/We wish to reinvest dividends on only______ shares registered in my name and
want my cash dividends on the rest of my shares. I understand that dividends on
all shares held for me by the plan administrator will be reinvested.
OPTION 3
|_|OPTIONAL PAYMENTS ONLY
I wish to make only Optional Payments for the purchase of additional shares
without reinvesting dividends on any shares.
Sign this card only after reading the reverse side.
__________________________________________________
Shareholder Signature
__________________________________________________
Shareholder Signature
________________________ ________________________
Date 19
|_|Mark here for address change and note above THIS IS NOT A PROXY
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN AUTHORIZATION CARD
ESSEX PROPERTY TRUST, INC.
Please enroll my account in the Plan as indicated on this form. CHECK ONLY ONE
OPTION
OPTION 1
|_|FULL DIVIDEND REINVESTMENT
I/We wish to reinvest all dividends due this account.
OPTION 2
|_| PARTIAL DIVIDEND REINVESTMENT
I/We wish to reinvest dividends on only______ shares registered in my name and
want my cash dividends on the rest of my shares. I understand that dividends on
all shares held for me by the plan administrator will be reinvested.
OPTION 3
|_|OPTIONAL PAYMENTS ONLY
I wish to make only Optional Payments for the purchase of additional shares
without reinvesting dividends on any shares.
Sign this card only after reading the reverse side.
__________________________________________________
Shareholder Signature
__________________________________________________
Shareholder Signature
________________________ ________________________
Date 19
|_|Mark here for address change and note above THIS IS NOT A PROXY
DIVIDEND REINVESTMENT AND SHARE PURCHASE PLAN AUTHORIZATION CARD
ESSEX PROPERTY TRUST, INC.
Please enroll my account in the Plan as indicated on this form. CHECK ONLY ONE
OPTION
<PAGE>
(BACK OF CARD)
By signing this form (see reverse), I/we understand that all purchases and other
transactions will be made under the Terms and Conditions of the Plan as set
forth in the Prospectus, reciept of which is herby acknowledged.
I/We wish to join the Essex Property Trust, Inc. Dividend Reinvestment and Share
Purchase Plan, and by signing the reverse side of thsi form, hereby authorize
the purchase of Essex Property Truts, Inc. Common Stock pursuant to the option
selected.
================================================================================
You may terminate particiapation in the Plan at any time by written notice,
signed by all registered owners, to BankBoston, N.A.
Please address all inquiries concerning the plan to BankBoston, N.A., Mail Stop:
45-01-06, P.O. Box 1681, Boston, MA 02105-1681.
Do not return this card unless you intend to participate in the Plan, as this
card authorizes the Bank to enroll your account in the Plan.
By signing this form (see reverse), I/we understand that all purchases and other
transactions will be made under the Terms and Conditions of the Plan as set
forth in the Prospectus, receipt of which is hereby acknoledged.
I/We wish to join the Essex Property Trust, inc. Dividend Reinvestment and Share
Purchase Plan, and by signing the reverse side of thsi form, hereby authorize
the purchase of Essex Property Trust, Inc. Common Stock pursuant to the option
selected.
================================================================================
You may terminate particiapation in the Plan at any time by written notice,
signed by all registered owners, to BankBoston, N.A.
Please address all inquiries concerning the plan to BankBoston, N.A., Mail Stop:
45-01-06, P.O. Box 1681, Boston, MA 02105-1681.
Do not return this card unless you intend to participate in the Plan, as this
card authorizes the Bank to enroll your account in the Plan.
By signing this form (see reverse), I/we understand that all purchases and other
transactions will be made under the Terms and Conditions of the Plan as set
forth in the Prospectus, receipt of which is hereby acknoledged.
I/We wish to join the Essex Property Trust, inc. Dividend Reinvestment and Share
Purchase Plan, and by signing the reverse side of thsi form, hereby authorize
the purchase of Essex Property Trust, Inc. Common Stock pursuant to the option
selected.
================================================================================
You may terminate particiapation in the Plan at any time by written notice,
signed by all registered owners, to BankBoston, N.A.
Please address all inquiries concerning the plan to BankBoston, N.A., Mail Stop:
45-01-06, P.O. Box 1681, Boston, MA 02105-1681.
Do not return this card unless you intend to participate in the Plan, as this
card authorizes the Bank to enroll your account in the Plan.
By signing this form (see reverse), I/we understand that all purchases and other
transactions will be made under the Terms and Conditions of the Plan as set
forth in the Prospectus, receipt of which is hereby acknoledged.
I/We wish to join the Essex Property Trust, inc. Dividend Reinvestment and Share
Purchase Plan, and by signing the reverse side of thsi form, hereby authorize
the purchase of Essex Property Trust, Inc. Common Stock pursuant to the option
selected.
<PAGE>
Exhibit 5.1
August 26, 1997
Essex Property Trust, Inc.
777 California Avenue
Palo Alto, CA 94043
Re: Registration Statement on Form S-3
Ladies & Gentlemen:
We are acting as counsel for Essex Property Trust, Inc. a Maryland
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act") pursuant to which the Company
proposes to offer, from time to time, up to 750,000 Shares of Common Stock,
$0.001 par value (the "Common Stock") of the Company under the Company's
Dividend Reinvestment and Share Purchase Plan (the "Plan").
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken and proposed to be taken by the
Company in connection with the authorization and issuance of the Common Stock,
and for the purposes of this opinion, have assumed such proceedings will be
timely completed in the manner presently proposed. In addition, we have made
such legal and factual examinations and inquiries, including an examination of
originals or copies certified or otherwise identified to our satisfaction of
such documents, corporate records and instruments, as we have deemed necessary
or appropriate for purposes of this opinion.
In our examination of documents, instruments and other papers, we have
assumed the genuineness of all signatures on original and certified documents
and the conformity to original and certified documents of all copies submitted
to us as conformed, photostatic or other copies.
As to matters of fact which have not been independently established, we
have relied upon representations of officers of the Company.
Based upon and subject to the foregoing, it is our opinion that (a) the
Company has authority pursuant to its Articles of Incorporation to issue the
shares of Common Stock to be registered under the Registration Statement, and
(b) upon compliance with the applicable provisions of the Act and such state
"blue sky" or securities laws as may be applicable and upon issuance and
delivery of and payment for such shares in the manner contemplated by the
Registration Statement and the Plan, such shares of Common Stock will be legally
issued, fully paid, and nonassessable.
We hereby consent to the reference to our firm in the Registration
Statement under the Prospectus caption "Legal Matters" and to the inclusion of
this opinion as an exhibit to the Registration Statement, the Prospectus
constituting a part thereof and any amendments thereto. In giving this consent,
we do not hereby admit that we come within the category of persons whose consent
is required under Section 7 of the Act, as amended, or the rules or regulations
thereunder.
Very truly yours,
/S/ Morrison & Foerster, LLP
MORRISON & FOERSTER llp
<PAGE>
August 26, 1997
EXHIBIT 8.1
Essex Property Trust, Inc.
777 California Avenue
Palo Alto, California 94304
Ladies and Gentlemen:
We are acting as counsel to Essex Property Trust, Inc., a
Maryland corporation (the "Company"), general partner of Essex Portfolio, L.P.,
in connection with the registration by the Company of 750,000 shares of its
common stock, par value $.0001 per share (the "Common Stock"), which are the
subject of a Registration Statement (the "Registration Statement") filed by the
Company with the Securities and Exchange Commission on Form S-3 under the
Securities Act of 1933. We have been requested to provide you with our opinion
as to whether, as the date hereof, the Company has been operated in a manner
that has qualified it as a real estate investment trust ("REIT"), within the
meaning of Section 856(a) of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Company has so qualified for each of the past three taxable
years. Capitalized terms not otherwise defined herein shall have the meaning
given to them in the Registration Statement.
For purposes of the opinion set forth below, we have relied,
with your consent, upon the accuracy and completeness of the statements and
representations contained in the certificate of the Company dated August 26,
1997 (the "Certificate"). We have neither investigated nor verified any of the
statements and representations in the Certificate. We have also relied upon the
accuracy of the Registration Statement.
Based upon such statements, representations and assumptions,
and subject to the next two succeeding paragraphs, we are of the opinion that,
as of the date hereof and for its taxable years ended December 31, 1994,
December 31, 1995 and December 31, 1996, the Company has operated in a manner
that has qualified it as a REIT under the Code, and if it continues to operate
in the same manner, it will continue to so qualify.
Our opinion is based upon the documents referred to above and
the current provisions of the Code, Treasury Regulations promulgated thereunder,
published pronouncements of the Internal Revenue Service and case law, any of
which may be changed at any time, possibly with retroactive effect. You should
also be aware that opinions of counsel are not binding upon the Internal Revenue
Service or the courts. Any change in applicable law, or any inaccuracy in the
statements, representations and assumptions on which we have relied may affect
the continuing validity of the opinion set forth herein.
This opinion only addresses the operation of the Company with
respect to its qualification as a REIT as of the date hereof and during each of
the past three taxable years. We undertake no obligation to update this opinion,
or to ascertain after the date hereof whether circumstances occurring after such
date may affect the conclusions set forth herein.
Very truly yours,
Exhibit 23.1
[KPMG Peat Marwick LLP Letterhead]
Consent of Independent Certified Public Accountants
The Board of Directors
Essex Property Trust, Inc.:
We consent to incorporation by reference in the registration statement
and related prospectus dated September 18, 1997 on Form S-3 of Essex
Property Trust, Inc. of our report dated January 31, 1997, relating to the
consolidated balance sheets of Essex Property Trust, Inc. and subsidiaries
as of December 31, 1996 and 1995, and the related consolidated statements
of operations, stockholders equity and cash flows of Essex Property Trust,
Inc. and subsidiaries for the years ended December 31, 1996 and 1995, and
for the period June 13, 1994 through December 31, 1994 and of Essex
Partners Properties (the Predecessor) for the period January 1, 1994
through June 12, 1994 and the related financial statement schedule, which
report appears in the December 31, 1996, annual report on Form 10-K of
Essex Property Trust, Inc.
We also consent to the reference to our firm under the heading
Experts in the prospectus.
/s/ KPMG Peat Marwick LLP
San Francisco, California
September 16, 1997
