As filed with the Securities and Exchange Commission on March 31, 1999
Registration No. 333-
- -------------------------------------------------------------------------------
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)
INSIGNIA PROPERTIES TRUST 1997 SHARE INCENTIVE 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: Michael V. Gisser
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered Per Share(1) Price(2) Fee (3)
=========================================================================================
Class A Common
<S> <C> <C> <C> <C>
Stock 150,000(4) $35.5625 $5,334,375 $1,483.00
=========================================================================================
</TABLE>
(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 prices reported by the New York Stock Exchange for
March 29, 1999.
(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: .0278% of
$5,334,375, 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
antidilution provisions of the Insignia Properties Trust 1997 Share
Incentive Plan.
INTRODUCTION
Apartment Investment and Management Company, a Maryland
corporation ("AIMCO"), and Insignia Properties Trust, a Maryland real
estate investment trust ("IPT"), entered into the Second Amended and
Restated Agreement and Plan of Merger, dated as of January 22, 1999 (the
"Merger Agreement"), pursuant to which IPT was to be merged with and into
AIMCO, with AIMCO as the surviving corporation (the "Merger").
At 5:00 p.m. EST on February 26, 1999, the effective time of
the Merger (the "Effective Time"), each issued and outstanding common share
of beneficial interest, par value $.01 per share, of IPT (the "IPT Common
Shares"), other than IPT Common Shares owned, directly or indirectly, by
AIMCO, IPT or any of their respective subsidiaries, was converted into and
became the right to receive 0.3601 shares of AIMCO Common Stock.
At the Effective Time, each outstanding and unvested restricted
IPT Common Share ("Restricted Shares") awarded under the Insignia
Properties Trust 1997 Share Incentive Plan (the "Plan") was, by virtue of
the Merger Agreement and without any further action of IPT, AIMCO or the
holder of such Restricted Share, converted into 0.3601 restricted shares of
AIMCO Common Stock ("AIMCO Restricted Shares").
Each AIMCO Restricted Share issued pursuant to this prospectus
shall have, and be subject to, the terms and conditions (including rights
to Dividend Equivalents (as defined in the Plan)) set forth in the Plan and
the applicable restricted share agreement, as in effect immediately prior
to the Effective Time.
The foregoing description of the Merger and the Merger
Agreement is qualified in its entirety by reference to the Merger
Agreement, a copy of which is filed as an exhibit to IPT's Current Report
on Form 8-K, dated February 4, 1999.
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I is included in documents
sent or given to participants in the Insignia Properties Trust 1997 Share
Incentive Plan (the "Plan") pursuant to Rule 428(b)(1) of the Securities
Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
AIMCO is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). The following documents, which are
on file with the Commission, are incorporated in this Registration
Statement by reference:
o AIMCO's Annual Report on Form 10-K for the year ended December
31, 1998;
o All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the document referred to in (a) above.
o the description of AIMCO's stock contained in its Registration
Statement on Form 8-A (File No. 1-13232), filed July 19, 1994,
including any amendments or reports filed for the purpose of
updating such description.
In addition, all documents subsequently filed with the
Commission 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 hereto
which indicates that all securities offered hereby 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
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. It is the position of the 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.
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).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP,
regarding the validity of the shares of AIMCO Common
Stock offered hereby.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(included in their opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Denver, Colorado
24.1 Power of Attorney (included on page II-5).
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.
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.
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 Securities 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.
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 31st day of March, 1999.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By /s/ Terry Considine
------------------------------------
Name: Terry Considine
Title: Chairman and Chief Executive
Officer
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, each of whom may act without joinder of the other, 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 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
--------- ----- -----
/s/ Terry Considine Chairman of the Board and 3/31/99
------------------------ Chief Executive Officer
Terry Considine (Principal Executive Officer)
/s/ Peter K. Kompaniez Vice Chairman, President and 3/31/99
------------------------- Director
Peter K. Kompaniez
/s/ Troy D. Butts Senior Vice President and 3/31/99
------------------------- Chief Financial Officer
Troy D. Butts (Principal Financial Officer)
/s/ Richard S. Ellwood Director 3/31/99
-------------------------
Richard S. Ellwood
/s/ J. Landis Martin Director 3/31/99
--------------------------
J. Landis Martin
/s/ Thomas L. Rhodes Director 3/31/99
--------------------------
Thomas L. Rhodes
/s/ John D. Smith Director 3/31/99
--------------------------
John D. Smith
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).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP, regarding
the validity of the shares of AIMCO Common Stock offered
hereby.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
their opinion filed as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Denver, Colorado
24.1 Power of Attorney (included on page II-5).
EXHIBIT 5.1
LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP
March 30, 1999
Apartment Investment and
Management Company
17th Floor
1873 South Bellaire Street
Denver, Colorado 80222-4348
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as Maryland counsel to Apartment Investment and
Management Company, a Maryland corporation (the "Company"), in connection
with certain matters of Maryland law arising out of the registration of up
to 200,000 shares of Class A Common Stock (the "Shares"), $.01 par value
per share of the Company (the "Common Stock"), covered by the
above-referenced Registration Statement, and all amendments thereto (the
"Registration Statement"), under the Securities Act of 1933, as amended
(the "1933 Act"). The Shares will be issued pursuant to the Insignia
Properties Trust 1997 Share Incentive Plan, as amended and supplemented
from time to time (the "Plan"), in each case in connection with the
transactions contemplated by the Second Amended and Restated Agreement and
Plan of Merger (the "Merger Agreement"), dated as of January 22, 1999, by
and among the Company and Insignia Properties Trust, a Maryland real estate
investment trust. Capitalized terms used but not defined shall have the
meanings assigned to them in the Registration Statement.
In connection with our representation of the Company, and as a basis
for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the
following documents (hereinafter collectively referred to as the
"Documents"):
1. The Registration Statement, including the related form of
prospectus included therein, in the form in which it was transmitted to the
Securities and Exchange Commission under the 1933 Act;
2. The charter of the Company (the "Charter"), certified as of a
recent date by the State Department of Assessments and Taxation of Maryland
(the "SDAT");
3. The Bylaws (the "Bylaws") of the Company, certified as of a recent
date by an officer of the Company;
4. Resolutions adopted by the Board of Directors of the Company
relating to (i) the execution, delivery and performance of the Merger
Agreement and the consummation by the Company of the transactions
contemplated thereby and (ii) the issuance of the Shares (the "Directors'
Resolutions"), certified as of a recent date by an officer of the Company;
5. The form of certificate representing a share of the Common Stock;
6. A certificate of the SDAT as of a recent date as to the good
standing of the Company;
7. A certificate executed by an officer of the Company, dated the
date hereof (the "Officer's Certificate");
8. A fully executed counterpart of the Merger Agreement,
certified as of a recent date by an officer of the Company;
9. A copy of the Plan, certified as of a recent date by an officer of
the Company; and
10. Such other documents and matters as we have deemed necessary or
appropriate to express the opinions set forth in this letter, subject to
the assumptions, limitations and qualifications stated herein.
In expressing the opinions set forth below, we have assumed, and so
far as is known to us there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on behalf
of such individual or any other person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a
party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents
to which such party is a signatory, and such party's obligations set forth
therein are legal, valid and binding and are enforceable in accordance with
all stated terms.
4. Any Documents submitted to us as originals are authentic. The form
and content of any Documents submitted to us as unexecuted drafts do not
differ in any respect relevant to this opinion from the form and content of
such Documents as executed and delivered. Any Documents submitted to us as
certified, facsimile or photostatic copies conform to the original
documents. All signatures on all Documents are genuine. All public records
reviewed or relied upon by us or on our behalf are true and complete. All
statements and information contained in the Documents are true and
complete. There has been no oral or written modification of or amendment to
any of the Documents, and there has been no waiver of any provision of any
of the Documents, by action or omission of the parties or otherwise.
5. All actions taken in connection with the Directors' Resolutions
were taken at a duly called meeting at which a quorum was present and
acting throughout or by unanimous written consent of the directors and
filed with the minutes of the proceedings of the Board of Directors.
6. Upon issuance of any of the Shares, the total number of shares of
Common Stock issued and outstanding will not exceed the total number of
shares of Common Stock that the Company is then authorized to issue and the
Shares will not be issued in violation of any restriction or limitation
contained in the Charter.
7. All certificates and affidavits submitted to us are true, correct
and complete, both when made and as of the date hereof.
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations
and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing
under and by virtue of the laws of the State of Maryland and is in good
standing with the SDAT.
2. Upon the due execution, countersignature and delivery of
certificates representing the Shares, the Shares will by duly authorized
and, when and if delivered in accordance with the Charter, the Merger
Agreement, the Plan and the Directors' Resolutions, will be (assuming that,
upon issuance, the total number of shares of Common Stock issued and
outstanding will not exceed the total number of shares of Common Stock that
the Company is then authorized to issue) validly issued, fully paid and
nonassessable.
The foregoing opinion is limited to the substantive laws of the State
of Maryland and we do not express any opinion herein concerning any other
law. We express no opinion as to the applicability or effect of any federal
or state securities laws, including the securities laws of the State of
Maryland, or as to federal of state laws regarding fraudulent transfers. To
the extent that any matter as to which our opinion is expressed herein
would be governed by any jurisdiction other than the State of Maryland, we
do not express any opinion on such matter.
We assume no obligation to supplement this opinion if any applicable
law changes after the date hereof or if we become aware of any fact that
might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for submission to the
Securities and Exchange Commission as an exhibit to the Registration
Statement and, accordingly, may not be relied upon by, quoted in any manner
to, or delivered to any person or entity (other than Skadden Arps, Slate,
Meagher & Flom LLP, counsel to the Company) without, in each instance, our
prior written consent.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm therein. In
giving this consent, we do not admit that we are within the category of
persons whose consent is required by Section 7 of
the 1933 Act.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of Apartment Investment and Management Company related to the
Insignia Properties Trust 1997 Share Incentive Plan, of our report dated
March 11, 1999, with respect to the consolidated financial statements and
schedules of Apartment Investment and Management Company included in its
Annual Report (Form 10-K) for the year ended December 31, 1998 filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Denver, Colorado
March 29, 1999
