<PAGE>
As filed with the Securities and Exchange Commission on April 24, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
EVANS WITHYCOMBE RESIDENTIAL, INC.
(Exact name of registrant as specified in its charter)
----------------------
MARYLAND 86-0766008
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
----------------------
6991 East Camelback Road, Suite A-200
Scottsdale, Arizona 85251
(602) 840-1040
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------
NON-EMPLOYEE DIRECTORS STOCK PLAN
(Full title of the plan)
----------------------
STEPHEN O. EVANS
Chairman of the Board and Chief Executive Officer
EVANS WITHYCOMBE RESIDENTIAL, INC.
6991 East Camelback Road, Suite A-200
Scottsdale, Arizona 85251
(602) 840-1040
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
WITH A COPY TO:
KENNETH M. DORAN, ESQ.
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, California 90071
(213) 229-7000
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to Offering Price per Aggregate Registration
to be Registered be Registered Share (1) Offering Price (1) Fee (1)
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 100,000 shares $20.0625 $2,006,250 $607.95
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Price per share and aggregate offering price are estimated solely for the
purpose of calculating the registration fee pursuant to Rule 457(h) on the
basis of the average of the high and low prices of the Common Stock of
Evans Withycombe Residential, Inc. as reported on the New York Stock
Exchange on April 18, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents heretofore filed by Evans Withycombe
Residential, Inc. (the "Registrant") with the Securities and Exchange Commission
(the "Commission") are by this reference incorporated in and made a part of this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, as amended;
(b) The Registrant's Current Report on Form 8-K, filed with the
Commission on February 13, 1997; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, File No.
1-13256.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") after the date of this Registration
Statement and prior to the filing of a post-effective amendment 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
in this Registration Statement and to be a part hereof from the date of filing
of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Charter limits the liability of the Registrant's
directors and officers to the Registrant and its shareholders 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
shareholders 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 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 the Registrant or its shareholders to obtain other
relief, such as an injunction or rescission.
The Registrant's Charter and Bylaws require the Registrant to indemnify
its directors and officers to the fullest extent permitted from time to time by
Maryland law. The Charter also permits the Registrant to indemnify employees,
agents and other persons acting on behalf of or at the request of the
Registrant. The Maryland General Corporation Law ("MGCL") 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 the act or omission of the indemnified party was material
to the matter giving rise to the proceeding and (i) was committed in bad faith
or was the result of active and deliberate dishonesty, (ii) the indemnified
party actually received an improper personal benefit or (iii) in the case of any
criminal proceeding, the indemnified party had reasonable cause to believe that
the act or omission was
<PAGE>
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 of conduct required for indemnification to be permitted. It
is the position of the Commission that indemnification of directors and officers
for liabilities arising under the Securities Act of 1933 is against public
policy and is unenforceable pursuant to Section 14 of the Securities Act.
The Agreement of Limited Partnership (the "Operating Partnership
Agreement") of Evans Withycombe Residential, L.P., a Delaware limited
partnership (the "Operating Partnership"), also provides for indemnification of
the Registrant, or any director or officer of the Registrant, in its capacity as
general partner of the Operating Partnership, from and against all losses,
claims, damages, liabilities, joint or several, expenses (including legal fees),
fines, settlements and other amounts incurred in connection with any actions
relating to the operations of the Operating Partnership as set forth in the
Operating Partnership Agreement.
The Registrant has entered into indemnification agreements with each of
its executive officers and directors. The indemnification agreements require,
among other things, that the Registrant indemnify its officers and directors to
the fullest extent permitted by the MGCL, and advance to the officers and
directors all related expenses, subject to reimbursement if it is subsequently
determined that indemnification is not permitted. The Registrant must also
indemnify and advance all expenses incurred by officers and directors seeking to
enforce their rights under the indemnification agreements, and cover officers
and directors under the Registrant's directors and officers' liability
insurance. Although the form of indemnification agreement offers substantially
the same scope of coverage afforded by provisions in the Charter and the Bylaws,
it provides greater assurance to directors and officers that indemnification
will be available, because, as a contract, it cannot be modified unilaterally in
the future by the Board of Directors or by the shareholders to eliminate the
rights it provides.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Non-Employee Directors Stock Plan of the Registrant.
4.2 Articles of Amendment and Restatement of the Registrant (filed as an
exhibit to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 and incorporated herein by reference).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in Exhibit
5.1).
24 Power of Attorney (included on Signature Page).
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) 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 (the "Securities Act");
(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 paragraphs (a)(1)(i) and (a)(1)(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 with the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 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 the time shall be deemed to be the initial BONA FIDE offering
thereof.
(c) 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies 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 Scottsdale, State of Arizona, on the 31st day of
March, 1997.
By: /s/ Stephen O. Evans
-------------------------------------
Stephen O. Evans
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen O. Evans, Richard G. Berry and
Paul R. Fannin, and each of them, as his true and lawful attorneys-in-fact and
agents, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full powers and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might, or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their 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 below.
Signature Title Date
--------- ----- ----
/s/ Stephen O. Evans
- ------------------------ Chairman of the Board of Directors March 31, 1997
Stephen O. Evans and Chief Executive Officer
(Principal Executive Officer)
/s/ Paul R. Fannin
- ------------------------ Senior Vice President and Chief March 31, 1997
Paul R. Fannin Financial Officer, Secretary
and Treasurer (Principal
Financial and Accounting Officer)
/s/ Richard G. Berry
- ------------------------ President, Chief Operating Officer March 31, 1997
Richard G. Berry and Director
/s/ F. Keith Withycombe
- ------------------------ Director March 31, 1997
F. Keith Withycombe
- ------------------------ Director April , 1997
Joseph F. Azrack
/s/ G. Peter Bidstrup
- ------------------------ Director April 23, 1997
G. Peter Bidstrup
- ------------------------ Director April , 1997
Joseph W. O'Connor
<PAGE>
- ------------------------ Director April , 1997
John O. Theobald
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
4.1 Non-Employee Directors Stock Plan of the Registrant.
4.2 Articles of Amendment and Restatement of the Registrant (filed as
an exhibit to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and incorporated herein by
reference).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (contained in
Exhibit 5.1)
24 Power of Attorney (included on Signature Page).
<PAGE>
EVANS WITHYCOMBE RESIDENTIAL, INC.
NON-EMPLOYEE DIRECTORS STOCK PLAN
1. PURPOSE OF THE PLAN. Under this Non-Employee Directors Stock
Plan (the "Directors Plan") of Evans Withycombe Residential, Inc., a Maryland
corporation (the "Company"), shares of the Company's Common Stock, $.01 par
value ("Common Stock"), or options to purchase Common Stock may be issued to
participants in partial compensation for their service as directors of the
Company, as set forth in Section 7. This Directors Plan is designed to promote
the long-term growth and financial success of the Company by enabling the
Company to attract, retain and motivate such persons and to more closely align
the directors' compensation to the Company's stock price performance.
2. DEFINITIONS. For purposes of this Directors Plan:
(a) The term "Announcement Date Market Price" shall mean, with
respect to any Payment Date, the average Fair Market Value of the Common Stock
of the Company over the five business days preceding the Payment Date.
(b) The term "Board" shall mean the Company's Board of
Directors.
(c) The term "Fair Market Value" shall mean, as of any date, and
unless the Committee shall specify otherwise, the closing price for the Common
Stock reported for that date on the composite tape for securities listed on the
New York Stock Exchange or, if the Common Stock did not trade on the New York
Stock Exchange on the date in question, then for the next preceding date for
which the Common Stock traded on the New York Stock Exchange.
(d) The term "Options" shall mean the nonqualified stock options
that may be granted under this Plan.
(e) The term "Participant" shall mean any person who on a
Payment Date is a Director on the Board and is not an employee of the Company or
a subsidiary of the Company.
(f) The term "Payment Date" shall mean the date on which
directors' retainer fees are paid by the Company.
(g) The term "Retainer Amount" shall mean the aggregate dollar
amount declared by the Board to be payable as a quarterly directors' fee to each
non-employee director of the Company (including any fees payable to such
director for attendance at meetings of the Board), as determined from time to
time by the Board.
<PAGE>
(h) The term "Shares" shall mean shares of Common Stock that may
granted under this Plan and any shares of Common Stock that may be issued upon
exercise of Options.
(i) The term "Stock Election" shall mean an irrevocable election
delivered by a Participant to the Company at least six months prior to a Payment
Date to receive the Retainer Amount with respect to such Payment Date in the
form of Shares.
(j) The term "Option Election" shall mean an irrevocable
election delivered by a Participant to the Company at least six months prior to
a Payment Date to receive the Retainer Amount with respect to such Payment Date
in the form of Options.
3. EFFECTIVE DATE. This Directors Plan shall be effective for the
Payment Date with respect to the retainer fee payable for the fourth quarter of
1996 and after approval of this Directors Plan by the affirmative vote of the
holders of a majority of the outstanding shares of the Company present, or
represented by proxy, and entitled to vote at a meeting of the Company's
stockholders or by written consent in accordance with the laws of the State of
Maryland; provided, that if such approval by the stockholders of the Company is
not forthcoming, this Directors Plan shall be of no effect. Neither Common
Stock or options may be issued under this Directors Plan after termination of
this Directors Plan by the Committee, after issuance of all of the Shares
authorized for issuance under this Directors Plan or more than ten years after
the date of stockholder approval of this Directors Plan, whichever is earlier,
PROVIDED HOWEVER, that Common Stock may be issued pursuant to the exercise of
Options granted prior to such date for a period of ten years following the
termination of this Directors Plan to the extent that there remain an adequate
number of Shares authorized for issuance under this Directors Plan.
4. PLAN OPERATION. This Directors Plan is intended to operate in a
manner that meets the requirements of a formula plan under Rule 16b-3 (or its
successor) adopted under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and in a manner that does not affect the status of Participants
as "disinterested administrators" under such Rule 16b-3. Accordingly this
Directors Plan is intended to be self-governing and requires no discretionary
action by any administrative body with regard to any transaction under this
Directors Plan. Subject to the foregoing, this Plan shall be administered by
the Compensation Committee of the Board (the "Committee"), and all decisions,
determinations and interpretations by the Committee regarding the Plan shall be
final and binding on all current, future and former Participants. Such
Committee may delegate to one or more of its members or to any person or persons
such ministerial duties as it may deem advisable. To the extent any provision
of this Directors Plan or action taken hereunder fails to so operate under Rule
16b-3, such provision or action shall be deemed null and void and shall be
conformed so as to so operate, to the extent permitted by law and deemed
advisable by the Committee.
5. STOCK SUBJECT TO DIRECTORS PLAN. The maximum number of Shares
that may be issued hereunder shall be 100,000, subject to adjustments under
Section 6.
2
<PAGE>
6. ADJUSTMENTS. If the outstanding securities of the class then
subject to this Plan are increased, decreased or exchanged for or converted into
cash, property or a different number or kind of shares or securities, or if
cash, property or shares or securities are distributed in respect of such
outstanding securities, in either case as a result of a reorganization, merger,
consolidation, recapitalization, restructuring, reclassification, dividend
(other than a regular, quarterly cash dividend) or other distribution, stock
split, reverse stock split, spin-off or the like, or if substantially all of the
property and assets of the Company are sold, then, unless the terms of such
transaction shall provide otherwise, the Committee shall make an appropriate
adjustment (a) in the number and/or type of shares or securities which may
thereafter be issued under this Directors Plan and (b) to the exercise price of
any Options then outstanding.
7. STOCK AND/OR OPTION GRANTS.
(a) Commencing on the first Payment Date for which this
Directors Plan is effective, and on each Payment Date thereafter during the term
of this Directors Plan, each Participant shall be paid the Retainer Amount in
cash unless such Participant shall have made a Stock Election or an Option
Election with respect to such Payment Date.
(b) If the Participant has made a Stock Election with respect to
a Payment Date, then on such Payment Date such Participant shall be granted a
number of Shares equal to the Retainer Amount divided by the Announcement Date
Market Price, rounded up to the nearest whole number of Shares.
(c) If the Participant has made an Option Election with respect
to a Payment Date, then on such Payment Date such Participant shall be granted a
nonqualified option to purchase Shares with the following terms: (i) the Option
shall be immediately exerciseable, (ii) the term of the Option shall be ten
years, (iii) the exercise price of the Shares subject to such Option shall be
equal to 75% of the Announcement Date Market Price; and (iv) the number of
Shares subject to the Option shall be equal to the Retainer Amount divided by a
number equal to 25% of the Announcement Date Market Price, rounded up to the
nearest whole number of Shares.
(d) If on any Payment Date upon which Shares or Options are to
be granted under this Directors Plan the number of Shares remaining available
under the Directors Plan is less than the number of Shares required for all
grants of Shares and Options to be made on such date, then no Shares or Options
shall be granted on such Payment Date and the Retainer Amount shall be paid in
cash.
8. RESTRICTIONS ON SHARES. If and to the extent that such is
necessary in order for the grant of Options and Shares under this Directors Plan
to be exempt from Section 16(b) of the Exchange Act, (a) Shares granted to a
Participant under this Plan shall not be transferable until six months after the
date of grant of such Shares and (b) Shares issued pursuant to the exercise of
an Option shall not be transferable until six months after the date of grant of
the Option.
3
<PAGE>
9. AMENDMENT AND TERMINATION. The Committee may alter, amend,
suspend, or terminate this Directors Plan, provided that no such action shall
deprive any Participant, without his or her consent, of any Options or Shares
theretofore issued under this Directors Plan, and provided further that the
provisions of this Directors Plan designating persons eligible to participate in
the Directors Plan and specifying the Retainer Amount and the amount and timing
of grants under this Directors Plan shall not be amended more than once every
six months other than to comport with changes in the Internal Revenue Code, the
Employee Retirement Income Security Act, or the rules thereunder, unless such
restriction on amendments to this Directors Plan is not necessary in order for
the Participants to remain "disinterested administrators" under Exchange Act
Rule 16b-3 and, PROVIDED FURTHER, that to the extent any amendment is required
by Rule 16b-3 to be approved by stockholders in order for the Plan to continue
to satisfy Rule 16b-3, such amendment to the Plan shall not be made without
approval of the stockholders.
10. TAXES. The Committee may make such provisions or impose such
conditions as it may deem appropriate for the withholding or payment by a
Participant of any taxes which it determines are necessary or appropriate in
connection with any issuance of Options and/or Shares under this Plan, and a
Participant's rights in any Options and/or Shares are subject to satisfaction of
such conditions. The Company and any affiliate of the Company shall not be
liable to a Participant or any other persons as to any tax consequence expected,
but not realized, by any Participant or other person due to the receipt of any
Options and/or Shares granted hereunder.
11. COMPLIANCE WITH LAW. Neither Options nor Shares shall be issued
under this Directors Plan unless and until counsel for the Company shall be
satisfied that any conditions necessary for such issuance to comply with
applicable federal, state or local tax, securities or other laws or rules or
applicable securities exchange requirements have been fulfilled.
12. GOVERNING LAW; MISCELLANEOUS. This Directors Plan and any rights
hereunder shall be interpreted and construed in accordance with the laws of the
State of Maryland and applicable federal law. Neither this Directors Plan nor
any action taken pursuant thereto shall be construed as giving any Participant
any right to be retained in the service of the Company or nominated for re-
election to the Board.
13. ARBITRATION. Any claim, dispute or other matter in question of
any kind relating to this Plan shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association, which proceedings shall
be held in Phoenix, Arizona. Notice of demand for arbitration shall be made in
writing to the opposing party and to the American Arbitration Association within
a reasonable time after the claim, dispute or other matter in question has
arisen. In no event shall a demand for arbitration be made after the date when
the applicable statute of limitations would bar the institution of a legal or
equitable proceeding based on such claim, dispute or other matter in question.
The decision of the arbitrators shall be final and may be enforced in any court
of competent jurisdiction.
4
<PAGE>
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL]
April 17, 1997
Evans Withycombe Residential, Inc.
6991 East Camelback Road
Suite A 200
Scottsdale, Arizona, 85251
Re: Evans Withycombe Residential, Inc., a Maryland corporation, (the
"Company") - Registration Statement on Form S-8 pertaining to One
Hundred Thousand (100,000) shares ("Shares") of common stock, par
value one cent ($0.01) per share ("Common Stock") to be issued as
direct grants or upon exercise of options granted or to be granted,
pursuant to the Company's Non-Employee Directors' Stock Plan (the
"Directors' Plan")
Ladies and Gentlemen:
In connection with the registration of the Shares under the Securities
Act of 1933 as amended (the "Act") by the Company on Form S-8 filed or to be
filed with the Securities and Exchange Commission (the "Commission") on or
about March 4, 1997 (the "Registration Statement"), you have requested our
opinion with respect to the matters set forth below.
We have acted as special Maryland corporate counsel for the Company in
connection with the matters described herein. In our capacity as special
Maryland corporate counsel to the Company, we have reviewed and are familiar
with proceedings taken and proposed to be taken by the Company in connection
with the authorization, and issuance of the Shares. In addition, we have relied
upon certificates and advice from the officers of the Company upon which we
believe we are justified in relying and on various certificates from the
documents recorded with, the State Department of Assessments and Taxation of
Maryland (the "SDAT"), including the charter of the Corporation (the "Charter"),
consisting of Articles of Incorporation filed with the SDAT on May 24, 1994, and
Articles of
<PAGE>
Evans Withycombe Residential, Inc.
April 17, 1997
Page 2
Amendment and Restatement filed with the SDAT on August 11, 1994. We have also
examined the Bylaws of the Company adopted as of May 25, 1994, as amended and
restated on August 4, 1994 (the "Bylaws") and Resolutions of the Board of
Directors of the Company adopted on or before the date hereof and in full force
and effect on the date hereof; and such laws, records, documents, certificates,
opinions and instruments as we deem necessary to render this opinion.
We have assumed the genuineness of all signatures and the authenticity
of all documents submitted to us as originals and the conformity to the
originals of all documents submitted to us as certified, photostatic or
conformed copies. In addition, we have assumed that each person executing any
instrument, document or certificate referred to herein on behalf of any party
is duly authorized to do so. We have also assumed that all certificates
submitted to us are true and correct, both when made and as of the date
hereof and that the Shares will not be issued in violation of the provisions
of Article V, Section 2 of the Charter of the Company captioned "REIT-Related
Restrictions and Limitations on the Equity Shares."
Based on the foregoing, and subject to the assumptions and
qualifications set forth herein, it is our opinion that the Shares have been
duly reserved and authorized by all necessary corporate action on the part of
the Company and, when and to the extent issued and delivered as direct
grants, or upon exercise of options granted and to be granted, pursuant to
the Directors' Plan, against payment therefore (if applicable), in accordance
with and subject to the terms and conditions of the Directors' Plan and
options issued thereunder (if applicable), will be validly issued, fully paid
and non-accessible.
We consent to your filing this opinion as an exhibit to the Registration
Statement, and further consent to the filing of this opinion as an exhibit to
the applications to securities commissioners for the various states of the
United States for registration of the Shares. We also consent to the
identification of our firm as Maryland counsel to the Company in the section
of the Prospectus (which is part of the Registration Statement) entitled
"Legal Matters."
The opinions expressed herein are limited to the laws of the State of
Maryland and we express no opinion concerning any laws of the State of Maryland.
Furthermore, the opinions presented in this letter are limited to the matters
specifically set forth herein and no other opinion shall be inferred beyond the
matters expressly stated.
<PAGE>
Evans Withycombe Residential, Inc.
April 17, 1997
Page 3
The opinions expressed in this letter are solely for your use and may not
be relied upon by any other person without our prior written consent.
Very truly yours,
/s/ Ballard Spahr Andrews
& Ingersoll
<PAGE>
Exhibit (23.1)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Non-Employee Directors Stock Plan of Evans
Withycombe Residential, Inc. of our report dated January 31, 1997, with
respect to the consolidated financial statements and schedule of Evans
Withycombe Residential, Inc. included in Amendment No. 4 to its Annual Report
(Form 10-K/A) for the year ended December 31, 1996, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Phoenix, Arizona
April 22, 1997
