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As filed with the Securities and Exchange Commission on June 24, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
(Exact name of Registrant as specified in its charter)
Maryland 84-1259577
(State of incorporation) (I.R.S. employer
identification no.)
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
(Address of principal executive offices, including zip code)
Apartment Investment and Management Company
401(k) Retirement Plan
(Full title of the plan)
Terry Considine
Chairman of the Board of Directors
Apartment Investment and Management Company
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
(303) 757-8101
(Name, address and telephone number, including area code,
of agent for service)
Copies to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Jonathan L. Friedman
CALCULATION OF REGISTRATION FEE
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Title of Amount to Proposed Maximum Proposed Maximum Amount of
Securities be Offering Price Aggregate Registration
to be Registered Per Share (1)(2) Offering Price Fee (3)
Registered (1)(2)
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Class A Common
Stock,
par value $.01
per share 500,000(4) $38.00 $19,000,000 $5,605
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(1) Calculated pursuant to Rules 457 (c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), on the basis of the average of
the high and low sale prices for a share of Class A Common Stock of
Apartment Investment and Management Company on June 23, 1998.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act as follows: .0295% of the Proposed Maximum Aggregate
Offering Price of the shares of Class A Common Stock registered hereby.
(4) Pursuant to Rule 416(c) under the Securities Act, this registration
statement also covers an indeterminate number of additional shares of Class
A Common Stock that may become issuable pursuant to the Apartment
Investment and Management Company 401(k) Retirement Plan (the "Plan").
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of the Form
S-8 have been or will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed with the Securities and
Exchange Commission (the "Commission") by Apartment Investment and Management
Company ("AIMCO"), pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated by reference in this
registration statement.
(1) AIMCO's Annual Report on Form 10-K/A for the year ended December 31,
1997;
(2) AIMCO's Quarterly Report on Form 10Q/A for the quarter ended March
31, 1998;
(3) AIMCO's Current Reports on Form 8-K dated December 23, 1997 (and
Amendment No. 1 thereto filed February 6, 1998 and Amendment No. 2 thereto
filed May 22, 1998), January 31, 1998 and March 17, 1998 (and Amendment No. 1
thereto filed April 3, 1998 and Amendment No. 2 thereto filed June 22, 1998);
and
(4) The description of the Class A Common Stock contained in AIMCO's
Registration Statement on Form 8-A (File No. 1-13232) filed July 19, 1994,
including any amendment or report filed for the purpose of updating such
information.
All documents subsequently filed by AIMCO pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is
incorporated or 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 Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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AIMCO's Charter limits the liability of AIMCO's directors and officers
to AIMCO and its stockholders to the fullest extent permitted from time to
time by Maryland law. Maryland law presently permits the liability of
directors and officers to a corporation or its stockholders for money damages
to be limited, except (i) to the extent that it is proved that the director
or officer actually received an improper benefit or profit in money, property
or services for the amount of the benefit or profit in money, property or
services actually received, or (ii) if a judgment or other final adjudication
is entered in a proceeding based on a finding that the director's or
officer's action, or failure to act, was the result of active and deliberate
dishonesty and was material to the cause of action adjudicated in the
proceeding. This provision does not limit the ability of AIMCO or its
stockholders to obtain other relief, such as an injunction or recission.
AIMCO's Charter and Bylaws require AIMCO to indemnify its directors,
officers and certain other parties to the fullest extent permitted from time
to time by Maryland law. The Maryland General Corporation Law permits a
corporation to indemnify its directors, officers and certain other parties
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 service to or at the request of the
corporation, unless it is established that (i) the act or omission of the
indemnified party was material to the matter giving rise to the proceeding
and (x) was committed in bad faith or (y) was the result of active and
deliberate dishonesty, (ii) the indemnified party actually received an
improper personal benefit in money, property or services or (iii) in the case
of any criminal proceeding, the indemnified party had reasonable cause to
believe that the act or omission was unlawful. Indemnification may be made
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by the director or officer in connection with the
proceeding; provided however, that if the proceeding is one by or in the
right of the corporation, indemnification may not be made with respect to any
proceeding in which the director or officer has been adjudged to be liable to
the corporation. In addition, a director or officer may not be indemnified
with respect to any proceeding charging improper personal benefit to the
director or officer in which the director or officer was adjudged to be
liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction, or upon a plea of nolo
contendere or its equivalent, or an entry of any order of probation prior to
judgment, creates a rebuttable presumption that the director or officer did
not meet the requisite standard or conduct required for indemnification to be
permitted. It is the position of the Securities and Exchange Commission that
indemnification of directors and officers for liabilities arising under the
Securities Act is against public policy and is unenforceable pursuant to
Section 14 of the Securities Act.
AIMCO has entered into agreements with certain of its officers, pursuant
to which AIMCO has agreed to indemnify such officers to the fullest extent
permitted by applicable law.
The Second Amended and Restated Agreement of Limited Partnership of
AIMCO Properties, L.P., a Delaware limited partnership (the "Operating
Partnership"), as amended through and in effect on the date hereof (the
"Operating Partnership Agreement"), also provides for indemnification of
AIMCO, or any director or officer of AIMCO, in its capacity as the
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previous general partner of the Operating Partnership, from and against all
losses, claims, damages, liabilities, joint or several, expenses (including
legal fees), fines, settlements and other amounts incurred in connection with
any actions relating to the operations of the Operating Partnership, as set
forth in the Operating Partnership Agreement.
Section 6.7 of the 1996 Stock Incentive Plan for Officers, Directors
and Key Employees of Ambassador Apartments, Inc., Ambassador Apartments, L.P.
and Subsidiaries (as amended, the "1996 Plan"), and Section 6.7 of the 1994
Stock Incentive Plan for Officers, Directors and Key Employees of Ambassador
Apartments, Inc., Ambassador Apartments, L.P. and Subsidiaries (the "1994
Plan") specifically provide that, to the fullest extent permitted by law,
each of the members of the Board of Directors of AIMCO (the "Board"), the
Compensation Committee of the Board and each of the directors, officers and
employees of AIMCO, any AIMCO subsidiary, the Operating Partnership and any
subsidiary of the Operating Partnership shall be held harmless and
indemnified by AIMCO for any liability, loss (including amounts paid in
settlement), damages or expenses (including reasonable attorney's fees)
suffered by virtue of any determinations, acts or failures to act, or alleged
acts or failures to act, in connection with the administration of the 1996
Plan or the 1994 Plan, as the case may be, so long as such person is not
determined by a final adjudication to be guilty of willful misconduct with
respect to such determination, action or failure to act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
4.1 Specimen certificate for Class A Common Stock (incorporated by
reference from AIMCO's registration statement on Form 8-A filed on
July 19, 1994).
23.1 Consent of Ernst & Young LLP, Dallas, Texas.
23.2 Consent of Ernst & Young LLP, Chicago, Illinois.
23.3 Consent of Ernst & Young LLP, Greenville, South Carolina.
24.1 Power of Attorney (included on page II-6).
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned registrant hereby undertakes to remove from registration
by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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(a) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act, (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange Act)
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes to submit, or has
submitted, the Plan and any amendments thereto to the Internal Revenue
Service ("IRS") in a timely manner and will make all changes required by the
IRS in order to qualify the Plan.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on this 24th day of
June, 1998.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By /s/ TERRY CONSIDINE
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Name: Terry Considine
Title: Chairman and Chief Executive Officer
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POWER OF ATTORNEY
KNOWN TO ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Terry Considine and Peter K.
Kompaniez, jointly and severally, his attorneys-in-fact, each with the power
of substitution, for him in any and all capacities, to sign any amendments to
this registration statement (including post-effective amendments), and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
SIGNATURE TITLE DATE
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/s/ TERRY CONSIDINE Chairman of the Board and Chief June 24, 1998
- ---------------------- Executive Officer
Terry Considine (Principal Executive Officer)
/s/ PETER K. KOMPANIEZ Vice Chairman, President and June 24, 1998
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Peter K. Kompaniez
/s/ TROY D. BUTTS Senior Vice President and June 24, 1998
- ---------------------- Chief Financial Officer
Troy D. Butts (Principal Financial Officer and
Principal Accounting Officer)
/s/ RICHARD S. ELLWOOD Director June 24, 1998
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Richard S. Ellwood
/s/ J. LANDIS MARTIN Director June 24, 1998
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J. Landis Martin
/s/ THOMAS L. RHODES Director June 24, 1998
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Thomas L. Rhodes
/s/ JOHN D. SMITH Director June 24, 1998
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John D. Smith
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Pursuant to the requirements of the Securities Act of 1933, the trustee (or
other person who administers the employee benefit plan) has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Denver, state of Colorado, on
June 24, 1998.
Apartment Investment and Management
Company 401(k) Retirement Plan
By: /s/ MARY AKERS
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Mary Akers
Plan Administrator
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
4.1 Specimen certificate for Class A Common Stock (incorporated by
reference from AIMCO's registration statement on Form 8-A filed on
July 19, 1994).
23.1 Consent of Ernst & Young LLP, Dallas, Texas.
23.2 Consent of Ernst & Young LLP, Chicago, Illinois.
23.3 Consent of Ernst & Young LLP, Greenville, South Carolina.
24.1 Power of Attorney (included on page II-6).
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Apartment Investment and Management Company for the
registration of 500,000 shares of Class A Common Stock in connection with the
Apartment Investment and Management Company 401(k) Retirement Plan of our
report dated March 6, 1998, except for Note 25, as to which the date is March
17, 1998, with respect to the consolidated financial statements and schedule
of Apartment Investment and Management Company included in its Annual Report
(Form 10-K/A) for the year ended December 31, 1997, filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
June 18, 1998
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) related to the 401(k) Retirement Plan of Apartment Investment and
Management Company (AIMCO) of our report dated January 30, 1998 (except for
Note 19, as to which the date is March 5, 1998), with respect to the
consolidated financial statements and schedule of Ambassador Apartments, Inc.
(Ambassador) as of December 31, 1997 and 1996, and for each of the three
years in the period ended December 31, 1997, incorporated by reference in
AIMCO's Current Report on Form 8-K/A dated March 17, 1998, and our report
dated January 27, 1997 (except for Note 15, as to which the date is March 13,
1997 and Note 2(J), as to which the date is March 31, 1997), with respect to
the consolidated financial statements and schedule of Ambassador as of
December 31, 1996 and 1995, and for each of the three years in the period
ended December 31, 1996, incorporated by reference in AIMCO's Current Report
on Form 8-K/A dated December 23, 1997, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
June 18, 1998
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EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in Apartment Investment and
Management Company's Registration Statement (Form S-8) pertaining to the
Apartment Investment and Management Company 401(k) Retirement Plan of our
report dated February 13, 1998, except for Note 20, as to which the date is
March 19, 1998, with respect to the consolidated financial statements of
Insignia Financial Group, Inc. for the year ended December 31, 1997 included
as exhibit 99.2 in Apartment Investment and Management Company's Current
Report on Form 8-K dated March 17, 1998 (and Amendment No.1 thereto filed
April 3, 1998 and Amendment No. 2 thereto filed June 22, 1998), filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Greenville, South Carolina
June 22, 1998
