-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N0iEExb5s7GAmd7iN0lsOypB9NN2UBK8Ogi/8n1u/wN5dWT7UCuaRFyARZW2IRLo 3mgPPB5DfMhzW7++tgPnoA== 0000912057-01-520088.txt : 20010618 0000912057-01-520088.hdr.sgml : 20010618 ACCESSION NUMBER: 0000912057-01-520088 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010615 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EQUITY RESIDENTIAL PROPERTIES TRUST CENTRAL INDEX KEY: 0000906107 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 363877868 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-63176 FILM NUMBER: 1661931 BUSINESS ADDRESS: STREET 1: TWO N RIVERSIDE PLZ STREET 2: STE 400 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124741300 MAIL ADDRESS: STREET 1: TWO N RIVERSIDE PLAZA STREET 2: SUITE 450 CITY: CHICAGO STATE: IL ZIP: 60606 S-3 1 a2052043zs-3.txt S-3 As filed with the Securities and Exchange Commission on June 15, 2001 Registration No. 333-_____ ============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EQUITY RESIDENTIAL PROPERTIES TRUST (Exact name of registrant as specified in its governing instrument) Maryland 13-3675988 (State of Organization) (I.R.S. Employer Identification Number) Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (Address of principal executive offices) Douglas Crocker II President and Chief Executive Officer Equity Residential Properties Trust Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (Name and address of agent for service) COPIES TO: Bradley A. Van Auken, Esq. Equity Residential Properties Trust Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (312) 474-1300 Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / / 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. /x/ 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, 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. / / CALCULATION OF REGISTRATION FEE
================================================================= ============= ================== ================= ============= PROPOSED MAXIMUM AMOUNT TO PROPOSED MAXIMUM AGGREGATE AMOUNT OF TITLE OF CLASS BE AGGREGATE PRICE OFFERING PRICE REGISTRATION OF SECURITIES BEING REGISTERED REGISTERED PER SHARE(1) (1) FEE(1) - ----------------------------------------------------------------- ------------- ------------------ ----------------- ------------- Common Shares of Beneficial Interest, $.01 par value per share... 869,760 $54.90 $47,749,824 $11,938 - ----------------------------------------------------------------- ------------- ------------------ ----------------- -------------
(1) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(c) based on the average of the high and low reported sales prices on the New York Stock Exchange on June 11, 2001. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ============================================================================== The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement relating to these securities has been declared effective by the Securities and Exchange Commission. This prospectus is neither an offer to sell nor a solicitation of an offer to buy these securities in any jurisdiction where such offer or sale is unlawful. SUBJECT TO COMPLETION DATED JUNE 15, 2001 PROSPECTUS 869,760 SHARES EQUITY RESIDENTIAL PROPERTIES TRUST COMMON SHARES OF BENEFICIAL INTEREST This prospectus relates to the offer and sale from time to time of up to 809,760 of our common shares of beneficial interest by the persons listed below, who may become shareholders of Equity Residential Properties Trust. In this prospectus we refer to these persons as the selling shareholders. We may issue up to 809,760 common shares to the selling shareholders, upon their request, in exchange for their units of limited partnership interest in ERP Operating Limited Partnership, our operating partnership. Our registration of these common shares is not meant to imply that the selling shareholders will offer or sell any of these common shares. The selling shareholders may offer their common shares through public or private transactions, on or off the New York Stock Exchange, at prevailing market prices, or at privately negotiated prices. The selling shareholders may sell their common shares directly or through agents or broker-dealers acting as principal or agent, or in a distribution by underwriters. This prospectus also relates to the possible issuance by us of up to 60,000 of our common shares of beneficial interest if, and to the extent that, holders of up to 60,000 units of limited partnership interest of ERP exchange those units for our common shares. In this prospectus, we refer to these shares as exchange shares. We are registering the common shares to permit the holders to sell without restriction in the open market or otherwise, but the registration of the common shares does not necessarily mean that any holders will elect to redeem their units. Also, we may elect to pay cash for the units tendered rather than issue common shares. Although we will incur expenses in connection with the registration of the 869,760 common shares, we will not receive any cash proceeds upon their issuance. The common shares are listed on the New York Stock Exchange under the symbol "EQR". ----------------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. ----------------------- The date of this prospectus is June __, 2001. TABLE OF CONTENTS
Page ---- SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS............... 3 AVAILABLE INFORMATION........................................... 3 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................. 3 THE COMPANY..................................................... 5 NO PROCEEDS TO THE COMPANY...................................... 5 SELLING SHAREHOLDERS............................................ 5 EXCHANGE SHARES................................................. 9 ADDITIONAL FEDERAL INCOME TAX CONSIDERATIONS.................... 9 PLAN OF DISTRIBUTION........................................... 10 EXPERTS........................................................ 11 LEGAL MATTERS.................................................. 11
No dealer, salesperson or other individual has been authorized to give any information or to make any representations not contained or incorporated by reference in this prospectus in connection with the offering covered by this prospectus. If given or made, such information or representations must not be relied upon as having been authorized by us. This prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, the common share, in any jurisdiction where, or to any person to whom to whom, it is unlawful to make any such offer or solicitation. Neither the delivery of this prospectus nor any offer or sale made hereunder shall, under any circumstances, create an implication that there has not been any change in the facts set forth in this prospectus or in our affairs since the date hereof. SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS Information contained in or incorporated by reference into this prospectus and any accompanying prospectus supplement contains "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as amended (the "Securities Act"). We intend the forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in that section. These forward-looking statements relate to, without limitation, our anticipated future economic performance, our plans and objectives for future operations and projections of revenue and other financial items, which can be identified by the use of forward-looking words such as "may," "will," "should," "expect," "anticipate," "estimate" or "continue" or the negative thereof or other variations thereon or comparable terms. The cautionary statements under the caption "Risk Factors" contained in our Annual Report on Form 10-K for the year ended December 31, 2000, which is incorporated herein by reference, and other similar statements contained in this prospectus or any accompanying prospectus supplement identify important factors with respect to forward-looking statements, including certain risks and uncertainties, that could cause actual results to differ materially from those in such forward-looking statements. AVAILABLE INFORMATION We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, we are required to file reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). You may inspect and copy these reports, proxy statements and other information at the Public Reference Room of the Commission, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the Commission's regional offices at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300, New York, New York 10048. You may also obtain copies of the reports, proxy statements and other information from the Public Reference Section of the Commission, Washington, D.C. 20549, upon payment of prescribed rates, or in certain cases by accessing the Commission's World Wide Web site at http://www.sec.gov. You may obtain information on the operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. Our common shares are listed on the New York Stock Exchange under the symbol "EQR". Our reports, proxy statements and other information are also available for inspection at the offices of the New York Stock Exchange located at 20 Broad Street, New York, New York 10005. We have 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, with respect to the securities covered by this prospectus. 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 document are not necessarily complete, and in each instance, we refer the reader to the copy of such contract or document filed as an exhibit to the Registration Statement. Each such statement is qualified in all respects by this reference and the exhibits and schedules thereto. For further information about us and the common shares covered by this prospectus, we refer the reader to the Registration Statement and these exhibits and schedules which may be obtained from the Commission. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE We have filed the documents listed below with the Commission under the Exchange Act and these documents are incorporated into this prospectus by reference: a. Annual Report on Form 10-K for the year ended December 31, 2000. b. Quarterly Report on Form 10-Q for the period ended March 31, 2001. c. Second Amended and Restated Declaration of Trust (the "Declaration of Trust"), filed as Exhibit 3.1 to our Current Report on Form 8-K dated May 30, 1997, as amended or supplemented from time to time, including the amendment included in Appendix B to the prospectus contained in our Registration Statement on Form S-4 filed with the Commission on July 23, 1999. d. Third Amended and Restated Bylaws (the "Bylaws"), filed as Exhibit 3.2 to our Quarterly Report on Form 10-Q for the period ended June 30, 1999. 3 e. Definitive Proxy Statement relating to our Annual Meeting of Shareholders dated March 30, 2001. f. Description of our common shares contained in our registration statement on Form 8-A/A dated August 10, 1993. All documents filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination of the offering of all common shares under this prospectus will also be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date of filing those documents. Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference herein will be modified or superseded by inconsistent statements in any document we file in the future that will be deemed incorporated by reference herein, including any prospectus supplement that supplements this prospectus. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or any accompanying prospectus supplement. Subject to the foregoing, all information appearing in this prospectus and each accompanying prospectus supplement is qualified in its entirety by the information appearing in the documents incorporated by reference. We will provide, without charge, copies of all documents that are incorporated herein by reference (not including the exhibits to such information, unless such exhibits are specifically incorporated by reference in such information) to each person, including any beneficial owner, to whom this prospectus is delivered upon written or oral request. Requests should be directed to Equity Residential Properties Trust, Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, Attention: Cynthia McHugh (telephone number: (312) 474-1300). 4 UNLESS OTHERWISE INDICATED, WHEN USED HEREIN, THE TERMS "WE" AND "US" REFER TO EQUITY RESIDENTIAL PROPERTIES TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST, AND ITS SUBSIDIARIES, INCLUDING ERP OPERATING LIMITED PARTNERSHIP, ITS OPERATING PARTNERSHIP. THE COMPANY We are an equity real estate investment trust, or REIT, formed to continue the multifamily property business objectives and acquisition strategies of certain affiliated entities controlled by Mr. Samuel Zell, Chairman of our Board of Trustees. We are the managing general partner of ERP Operating Limited Partnership, our operating partnership. We own, administer and manage all of our assets and conduct substantially all of our business through the operating partnership and its subsidiaries. Our executive offices are located at Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606, and our telephone number is (312) 474-1300. NO PROCEEDS TO THE COMPANY We will not receive any of the proceeds from sales of common shares offered by the selling shareholders or the issuance by us of the exchange shares. We will pay all of the costs and expenses incurred in connection with the registration under the Securities Act of the offering made hereby, other than any brokerage fees and commissions, fees and disbursements of legal counsel for the selling shareholders and share transfer and other taxes attributable to the sale of the offered common shares, which will be paid by the selling shareholders and future holders of the exchange shares. SELLING SHAREHOLDERS We may issue up to 809,760 common shares to the selling shareholders if and to the extent that the selling shareholders who currently hold units of limited partnership interest in our operating partnership exchange their units of limited partnership interest and we issue common shares to them in exchange therefor. Following our issuance of these shares, the selling shareholders may resell the common shares covered by this prospectus as provided under the Plan of Distribution section of this prospectus or as described in an applicable prospectus supplement. In addition, some of the selling shareholders currently hold preference units in our operating partnership which must first be converted into non-preference units in accordance with their terms before they can be exchanged for common shares. The following table provides the name of each selling shareholder, the number of common shares to be owned upon exchange of units of limited partnership interest by each selling shareholder before any offering to which this prospectus relates, and the number of common shares that may be offered by each selling shareholder. All references to the term "selling shareholder" in this prospectus are hereby deemed to include all transferees, assignees, distributees or pledgees of any person identified herein as a selling shareholder. Assuming the redemption for common shares of all units of limited partnership held (or to be held upon conversion of preference units) by each selling shareholder, the number of common shares set forth in the following table is also the number of common shares owned by each selling shareholder prior to the offering, except as otherwise set forth therein. Because the selling shareholders may sell all or some of their offered common shares, no estimate can be made of the number of offered common shares that will be sold by the selling shareholders or that will be owned by the selling shareholders upon completion of the offering. We cannot assure you that the selling shareholders will sell any of the offered common shares. In addition, we may elect to pay cash for any units of limited partnership exchanged, rather than exchanging those units for common shares. The common shares covered by this prospectus represent less than one percent of the total common shares outstanding as of March 31, 2001. 5
NUMBER OF COMMON SHARES NAME OF SELLING SHAREHOLDER OWNED AND OFFERED HEREBY --------------------------- ------------------------ R.E. Jones Management Company (Greenbriar), LLC 184,175 The George Wasserman and Janice Wasserman Goldsten Family Limited Liability Company(1) 82,376 Jerome L. Rappaport 63,133 1997 Vachel Trust 52,014 R.E. Jones Investment Company 48,462 Eleven Kings, Inc. 35,369 Blair D. Neller(2) 34,716 Henry H. Goldberg(3) 29,509 Bread & Butter Trust 25,776 Eight Kings, Inc.(9) 20,161 The Martin & Carol Witte Trust 13,398 Carol B. Goldberg 12,340 JCS II Limited Liability Company 9,502 Robert Unger & Beverly Unger 9,490 Irrevocable Trust for Estelle Gelman 7,271 Sandra Sommer 7,257 Charles Bonan 6,326 Elizabeth Janet Bonan 6,326 Martha Robertson 6,326 Nancy Rappaport 6,326 Phyllis E. Rappaport 6,326 Virginia B. Adelson 6,319 Paul M. Thomas, Jr., Family Trust(4) 6,249 Nine Kings, Inc.(9) 6,133 George & Ethel Hoefler 6,029 James W. Rappaport 5,880 Judy Rapaport Maloney 5,857 Elizabeth Jackson Rappaport 5,582 Jerome L. Rappaport, Jr. 5,210 Kimberlee Spicer Romanov 4,666 Diversified Real Estate Holdings, LLC 3,959 Dr. Peter C. Ross 3,758 Eliot & Marian Mizelle, Trustee 3,758 Amelia Rappaport Arambula 3,635 Estate of Seon P. Bonan 3,252 Theodore J. Shoolman 3,252 Perry Hookman Revocable Trust 3,057
6 Herman Boxer 2,977 Alan Geller(5) 2,761 8 1/2 Kings, LLC(9) 2,285 Green-Solomon, Inc. 2,220 Richard G. Littell, Esq. 2,038 John Creed Bonan 1,879 Barbara B. Zulick 1,879 Jill Rapaport Glist 1,860 Jonathan Rappaport 1,860 Wendy Marlowe Coke 1,711 Tracy Ann Keegan 1,711 Diana Shoolman 1,711 Pines Whisper, Inc. 1,675 Phyllis Rappaport, as Trustee for Carmen Arambula 1,488 Phyllis Rappaport, as Trustee for Diego Arambula 1,488 Phyllis Rappaport, as Trustee for Joaquin Arambula 1,488 Phyllis Rappaport, as Trustee for Miguel Arambula 1,488 Arledge Family Trust(6) 1,443 Steven L. Black 1,404 Delivertech, Inc.(7) 1,360 James W. Rappaport, as Trustee for James W. Rappaport, Jr. 1,116 James W. Rappaport, as Trustee for Jessica Rappaport 1,116 James W. Rappaport, as Trustee for Joshua Ryan Rappaport 1,116 Jerome L. Rappaport, Jr., as Trustee for Elizabeth Rappaport 1,116 Jerome L. Rappaport, Jr., as Trustee for Jennifer Rappaport 1,116 Martha Robertson, Trustee for Colby Robertson 1,116 Nancy Rappaport, Trustee for Cory Flavin 1,116 Nancy Rappaport, Trustee for Lyla Flavin 1,116 Nancy Rappaport, Trustee for Zoe Flavin 1,116 Melvin Gelman Trust 1,104 Louis J. Boland 1,018 Mrs. P. R. Connolly 1,018 Vincent J. Fuller 1,018 Albert Grollman, M.D. 1,018 Harold M. Hagen, M.D. 1,018 Tipton D. Jennings, IV 1,018 Frank J. Krafft 1,018 Arthur K. Mason 1,018
7 John Mendenhall 1,018 J. David Miller 1,018 Donald W. Sigmund 1,018 George A. Solack, M.D. 1,018 Marilyn K. Sloane 1,018 Eunice Taff 1,018 David N. Webster 1,018 9 1/2 Kings, LLC(9) 695 Ambergate, Inc. 675 David E. Gichner 508 Morton Ostrow 508 Michael M. Vlahos, M.D. 508 Cove Investments, Inc. 204 Society Property, Inc. 204 Barbara S. Klein 132 Paul M. Thomas Jr.(8) 7 ------- TOTAL: 809,760 =======
(1) In addition to the common shares set forth above, The George Wasserman and Janice Wasserman Goldsten Family Limited Liability Company is the beneficial owner of 286,178 additional common shares. (2) Mr. Neller is President and Chief Executive Officer of Globe Business Resources, Inc., an affiliate of Equity Residential, and, in addition to the common shares set forth above, is the beneficial owner of 8,402 additional common shares, which are subject to certain ownership restrictions. Mr. Neller has agreed to continue to hold his units of limited partnership interest until at least January 4, 2002. (3) Mr. Goldberg is a member of the Board of Trustees of Equity Residential. In addition to the common shares set forth above, he is the beneficial owner of 174,594 additional common shares, 122,268 additional units of limited partnership interest in the operating partnership and options exercisable within 60 days from the date of this prospectus to acquire 25,601 common shares. (4) In addition to the common shares set forth above, the Paul M. Thomas, Jr., Family Trust is the beneficial owner of 18,898 additional common shares. (5) In addition to the common shares set forth above, Alan Geller is the beneficial owner of 19,663 additional common shares. (6) In addition to the common shares set forth above, the Arledge Family Trust is the beneficial owner of 8,660 additional common shares. (7) In addition to the common shares set forth above, Delivertech, Inc. is the beneficial owner of 8,163 additional common shares. (8) In addition to the common shares set forth above, Paul M. Thomas, Jr. is the beneficial owner of 43 additional common shares. (9) These holders have agreed to continue to hold their units of limited partnership interest until at least July 12, 2001. 8 EXCHANGE SHARES We may also issue up to 60,000 common shares to limited partners of our operating partnership to the extent they have or hereafter become entitled to receive additional units of limited partnership interest in our operating partnership by virtue of the terms of a Conveyance Agreement entered into in April 1998 by and among partnerships that formerly owned Glen Meadow Apartments and Highland Glen Apartments in Massachusetts and Grove Operating, L.P. The terms of the Conveyance Agreement provide for an additional "contingent earnout" payment to the former limited partners which, at the option of former limited partners, may be payable in units of limited partnership interest in our operating partnership, if and to the extent that apartment units included within Glen Meadow Apartments or Highland Glen Apartments become free of maximum rental restrictions imposed by virtue of agreements with the Massachusetts Housing Financing Agency and thereafter are rented to tenants at prevailing market rates free of all restrictions or become eligible for HUD Section 8 Preservation Assistance. Our operating partnership acquired Grove Operating, L.P., in October 2000 and has assumed the contingent earnout payment obligations. As of the date of this prospectus, our operating partnership has issued a total of 3,814 units of limited partnership interest to the partners of the former owner of Glen Meadow Apartments. Accordingly, we have estimated that after the date of this prospectus we will issue not more than 56,186 units of limited partnership interest in our operating partnership in connection with our contingent earn out payment obligations in respect of Glen Meadow Apartments and Highland Glen Apartments. We are registering the exchange shares as the common shares we may issue in the future if and when the holders of units of limited partnership interest in our operating partnership issued in satisfaction of the contingent earn out payment obligations exercise their rights to exchange such units of limited partnership interest into our common shares. No such exchanges are allowed for at least one year following the original issuance of units of limited partnership interest. ADDITIONAL FEDERAL INCOME TAX CONSIDERATIONS The following discussion supplements the discussion under the heading "Federal Income Tax Considerations" in our 2000 annual report, which has been incorporated into this prospectus by reference. The following discussion summarizes the material federal income tax considerations that may be relevant to a selling shareholder who desires to have its units exchanged for common shares. TAX TREATMENT OF AN EXCHANGE OF UNITS. If a selling shareholder exchanges units of limited partnership interest in our operating partnership for common shares, the exchange will be a taxable event and, as a result, the selling shareholder will recognize gain or loss. The determination of the amount of gain or loss that will be recognized by a selling shareholder will be based on the difference between the amount realized for tax purposes and the tax basis in the selling shareholder's units. See "Basis of Units" below. The "amount realized" will be equal to the product of (i) the number of units exchanged, multiplied by the price of the common shares received on the date of the exchange plus (ii) the portion of our operating partnership's nonrecourse liabilities allocable to the units exchanged. To the extent that this amount exceeds the selling shareholder's tax basis in the units exchanged, the selling shareholder will recognize gain. The amount of gain the selling shareholder recognizes could exceed the value of the common shares that the selling shareholder receives if the selling shareholder has a "negative capital account." It is even possible that the tax liability resulting from this gain could exceed the value of the common shares that the selling shareholder receives. Except as described below, any gain recognized upon a sale or other disposition of units, which includes the exchange of units for common shares, will be treated as gain attributable to the sale or disposition of a capital asset. To the extent, however, that the amount realized by a selling shareholder in an exchange of units for common shares attributable to a selling shareholder's share of "unrealized receivables" of our operating partnership exceeds the selling shareholder's basis attributable to the "unrealized receivables", the excess will treated as ordinary income. Unrealized receivables include, to the extent not previously included in our operating partnership's income, any rights to payments for services rendered or to be rendered. Unrealized receivables also include amounts that would be subject to recapture as ordinary income if our operating partnership had sold its assets at their fair market value at the time of the transfer of the units. For individuals, trusts and estates, net capital gain from the sale of an asset held 12 months or less is subject to tax at the applicable rate for ordinary income. For these taxpayers, the maximum rate of tax on the net capital gain from a sale or exchange of an asset held for more than 12 months generally is 20%. An exception to the general 20% rule applies, however, to net capital gains attributable to the sale of depreciable real property. Under the exception, gain attributable to prior depreciation deductions not otherwise recaptured as ordinary income under other depreciation recapture rules is subject to a rate of tax of 25%. The Internal Revenue Service has issued final Treasury regulations providing that the 25% rate applies to sales or exchanges of interests in partnerships that hold depreciable real property. Consequently, any gain on the sale or 9 exchange of a unit held for more than 12 months could be treated partly as gain from the sale of depreciable real property subject to the 25% rate, partly as gain from the sale of a long-term capital asset subject to a 20% tax rate, and to the extent that the gain is attributable to unrealized receivables, partly as ordinary income. TAX TREATMENT OF A REDEMPTION OF UNITS. We have the right to pay to a selling shareholder cash in lieu of issuing common shares in exchange for units. If we elect to redeem units for cash, the tax consequences to a selling shareholder would depend on whether or not the redemption is a redemption of all of a selling shareholder's units. If the redemption is a redemption of all of a selling shareholder's units, the selling shareholder would recognize taxable gain only to the extent that the cash, plus the share of our operating partnership's nonrecourse liabilities allocable to the redeemed units, exceeded the selling shareholder's tax basis in all of the selling shareholder's units immediately before the redemption. On the other hand, the selling shareholder would recognize taxable loss only to the extent that the selling shareholder's tax basis in all of the selling shareholder's units immediately before the redemption exceeded the cash, plus the share of our operating partnership's nonrecourse liabilities allocable to the redeemed units. If the redemption is a redemption of less than all of the selling shareholder's units, the selling shareholder would not be permitted to recognize any loss occurring on the transaction and would recognize taxable gain only to the extent that the cash, plus the share of our operating partnership's nonrecourse liabilities allocable to the redeemed units, exceeded the selling shareholder's tax basis in all of the selling shareholder's units immediately before the redemption. BASIS OF UNITS. In general, a selling shareholder who originally received units in exchange for a contribution of property to our operating partnership had an initial tax basis in the units equal to the selling shareholder's basis in the contributed property. A selling shareholder's tax basis in the units generally is increased by the selling shareholder's share of our operating partnership's taxable income and increases in the selling shareholder's share of liabilities of our operating partnership, including any increase in the selling shareholder's share of nonrecourse liabilities. A selling shareholder's initial tax basis in the units generally is decreased, but not below zero, by the selling shareholder's share of our operating partnership's distributions, decreases in the selling shareholder's liabilities in our operating partnership, including nonrecourse liabilities, the selling shareholder's share of losses of our operating partnership, and the selling shareholder's share of nondeductible expenditures of our operating partnership that are not chargeable to capital. POTENTIAL APPLICATION OF THE DISGUISED SALE RULES TO A REDEMPTION OF UNITS. There is a risk that if a unit is redeemed, particularly if it is redeemed within two years of when it was issued, the IRS might contend that the original transaction pursuant to which the units were issued should be treated as a "disguised sale" of property. Under the disguised sale rules, unless an exception applies, a partner's contribution of property to a partnership and a simultaneous or subsequent transfer of money or other consideration, including the assumption of or taking subject to a liability, from the partnership to the partner may be treated as a sale, in whole or in part, of the property by the partner to the partnership. If money or other consideration is transferred by a partnership to a partner within two years of the partner's contribution of property, the transactions are presumed to be a sale of the contributed property unless the facts and circumstances clearly establish that the transfers do not constitute a sale. If two years have passed between the transfer of money or other consideration and the contribution of property, the transactions will not be presumed to be a sale unless the facts and circumstances clearly establish that the transfers constitute a sale. You are advised to consult with your own tax advisors regarding the specific tax consequences of the exchange or redemption of units, including the federal, state, local, foreign or other tax consequences relating thereto. PLAN OF DISTRIBUTION Any of the selling shareholders may from time to time, in one or more transactions, sell all or a portion of the offered common shares on the New York Stock Exchange, in the over-the-counter market, on any other national securities exchange on which the common shares are listed or traded, in negotiated transactions, in underwritten transactions or otherwise, at prices then prevailing or related to the then current market price or at negotiated prices. The offering price of the offered common shares from time to time will be determined by the selling shareholders and, at the time of such determination, may be higher or lower than the market price of the common shares on the New York Stock Exchange. In connection with an underwritten offering, underwriters or agents may receive compensation in the form of discounts, concessions or commissions from a selling shareholder or from purchasers of offered common shares for whom they may act as agents, and underwriters may sell offered common shares to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agents. Under agreements that may be entered into by us, underwriters, dealers and 10 agents who participate in the distribution of offered common shares may be entitled to indemnification by us against certain liabilities, including liabilities under the Securities Act, or to contribution with respect to payments which such underwriters, dealers or agents may be required to make in respect thereof. The offered common shares may be sold directly or through broker-dealers acting as principal or agent, or pursuant to a distribution by one or more underwriters on a firm commitment or best-efforts basis. The methods by which the offered common shares may be sold include: (a) a block trade in which the broker-dealer so engaged will attempt to sell the offered common shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; (b) purchases by a broker-dealer as principal and resale by such broker-dealer for its account pursuant to this prospectus; (c) ordinary brokerage transactions and transactions in which the broker solicits purchasers; (d) an exchange distribution in accordance with the rules of the New York Stock Exchange; (e) privately negotiated transactions; and (f) underwritten transactions. The selling shareholders and any underwriters, dealers or agents participating in the distribution of the offered common shares may be deemed to be "underwriters" within the meaning of the Securities Act, and any profit on the sale of the offered common shares by the selling shareholders and any commissions received by any such broker-dealers may be deemed to be underwriting commissions under the Securities Act. When a selling shareholder elects to make a particular offer of offered common shares, a prospectus supplement, if required, will be distributed which will identify any underwriters, dealers or agents and any discounts, commissions and other terms constituting compensation from such selling shareholder and any other required information. In order to comply with the securities laws of certain states, if applicable, the offered common shares may be sold only through registered or licensed brokers or dealers. In addition, in certain states, the offered common shares may not be sold unless they have been registered or qualified for sale in such state or an exemption from such registration or qualification requirement is available and is complied with. We will issue the exchange shares if, and to the extent that, holders of up to 60,000 units of limited partnership of our operating partnership exchange those units for the exchange shares not earlier than one year following the date on which the units are originally issued by our operating partnership. Therefore, the holders of the exchange shares will be free at such time to sell the exchange shares in accordance with the methods set forth in the first paragraph of this section. We have agreed to pay all costs and expenses incurred in connection with the registration under the Securities Act of the common shares registered hereunder, including, without limitation, all registration and filing fees, printing expenses and fees and disbursements of our counsel and accountants. The selling shareholders will pay any brokerage fees and commissions, fees and disbursements of their legal counsel and share transfer and other taxes attributable to the sale of the offered common shares. We have also agreed to indemnify each of the selling shareholders and their respective officers, directors and trustees and each person who controls (within the meaning of the Securities Act) such selling shareholder against certain losses, claims, damages, liabilities and expenses arising under the securities laws in connection with this offering. Each of the selling shareholders has agreed to indemnify us and our officers and trustees and each person who controls (within the meaning of the Securities Act) our company against any losses, claims, damages, liabilities and expenses arising under the securities laws in connection with this offering with respect to written information furnished to us by such selling shareholder; PROVIDED, HOWEVER, that the indemnification obligation is several, not joint, as to each selling shareholder. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule included in our Annual Report on Form 10-K for the year ended December 31, 2000, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our consolidated financial statements and schedule are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. LEGAL MATTERS The legality of the offered common shares and the exchange shares has been passed upon for us by Bradley A. Van Auken, our First Vice President-Legal, who is admitted to practice law in the State of Maryland. Certain tax matters have been passed upon for us by Piper Marbury Rudnick & Wolfe, Chicago, Illinois, our special tax counsel. Errol R. Halperin, a partner of Piper Marbury Rudnick & Wolfe, is a member of our Board of Trustees. 11 ============================================================================== 869,760 SHARES EQUITY RESIDENTIAL PROPERTIES TRUST COMMON SHARES OF BENEFICIAL INTEREST ------------ PROSPECTUS ------------ June __, 2001 ================================================================================ PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth those expenses for distribution to be incurred in connection with the issuance and distribution of the securities being registered. Registration Fee............................... $11,938 Printing and Duplicating Expenses*............. 5,000 Legal Fees and Expenses*....................... 30,000 Accounting Fees and Expenses*.................. 6,000 Blue Sky Fees and Expenses*.................... 1,000 Miscellaneous*................................. 1,062 ------- Total*......................................... $55,000 =======
- ----------- * Estimated ITEM 15. INDEMNIFICATION OF TRUSTEES AND OFFICERS Under Maryland law, a real estate investment trust formed in Maryland is permitted to eliminate, by provision in its Declaration of Trust, the liability of trustees and officers to the trust and its shareholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) acts or omissions established by a final judgment as involving active and deliberate dishonesty and being material to the matter giving rise to the proceeding. The Registrant's Declaration of Trust includes such a provision eliminating such liability to the maximum extent permitted by Maryland law. The Maryland REIT law, effective October 1, 1994, permits a Maryland real estate investment trust to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent as permitted by the Maryland General Corporation Law ("MGCL") for directors and officers of Maryland corporations. As permitted by the MGCL, the Registrant's bylaws require it to indemnify (a) any present or former trustee, officer or shareholder or any individual who, while a trustee, officer or shareholder, served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request who has been successful, on the merits or otherwise, in the defense of a proceeding to which he was made a party by reason of service in such capacity, against reasonable expenses incurred by him in connection with the proceeding, (b) any present or former trustee or officer or any individual who, while a trustee or officer served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request against any claim or liability to which he may become subject by reason of service in such capacity unless it is established that (i) his act or omission was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty, (ii) he actually received an improper personal benefit in money, property or services or (iii) in the case of a criminal proceeding, he had reasonable cause to believe that his act or omission was unlawful and (c) any present or former shareholder against any claim or liability to which he may become subject by reason of such status. In addition, the Registrant's bylaws require it to pay or reimburse, in advance of final disposition of a proceeding, reasonable expenses incurred by a present or former trustee, officer or shareholder or any individual who, while a trustee, officer or shareholder, served or is serving as a trustee, officer, director, shareholder or partner of another entity at the Registrant's express request made a party to a proceeding by reason of such status, provided that, in the case of a trustee or officer, the Registrant shall have received (1) a written affirmation by such person of his good faith belief that he has met the standard of conduct necessary for indemnification by the Registrant as authorized or required by the bylaws and (2) a written undertaking by or on his behalf to repay the amount paid or reimbursed by the Registrant if it shall ultimately be determined that the applicable standard of conduct was not met. The Registrant's bylaws also (x) permit the Registrant to provide indemnification and payment or reimbursement of expenses to a present or former trustee, officer or shareholder who served a predecessor of the Registrant or to any employee or agent of the Registrant or a predecessor of the Registrant, (y) provide that any indemnification and payment or reimbursement of the expenses permitted by the bylaws shall be furnished in accordance with the procedures provided for indemnification and payment or reimbursement of expenses under Section 2-418 of the MGCL for directors of Maryland corporations and (z) permit the Registrant to provide to the trustees and officers such other and further indemnification or payment or reimbursement of expenses to the fullest extent permitted by Section 2-418 of the MGCL for directors of Maryland corporations. The Registrant has entered into indemnification agreements with each of its trustees and executive officers. The indemnification agreements require, among other things, that the Registrant indemnify its trustees and executive officers to the fullest extent permitted by law and advance to the trustees and executive officers all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under these agreements, the Registrant must also indemnify and advance all expenses incurred by trustees and executive officers seeking to enforce their rights under the indemnification II-1 agreements and may cover trustees and executive officers under the Registrant's trustees and officers' liability insurance. Although the form of indemnification agreement offers substantially the same scope of coverage afforded by law, as a traditional form of contract it may provide greater assurance to trustees and executive officers that indemnification will be available. The partnership agreements of ERP Operating Limited Partnership and its management subsidiaries also provide for indemnification of the Registrant and its officers and trustees to the same extent that indemnification is provided to officers and trustees of the Registrant in its Declaration of Trust, and limit the liability of the Registrant and its officers and trustees to the Operating Partnership and the Management Partnerships and their respective partners to the same extent that the liability of the officers and trustees of the Registrant to the Registrant and its shareholders is limited under the Registrant's Declaration of Trust. ITEM 16. EXHIBITS 4.1* - Second Amended and Restated Declaration of Trust 4.2** - Amendment to Second Amended and Restated Declaration of Trust 4.3*** - Third Amended and Restated Bylaws 5 - Opinion of Bradley A. Van Auken 8 - Opinion of Piper Marbury Rudnick & Wolfe 23.1 - Consent of Ernst & Young LLP 23.2 - Consent of Bradley A. Van Auken (included in Exhibit 5) 23.3 - Consent of Piper Marbury Rudnick & Wolfe (included in Exhibit 8) 24 - Power of Attorney (filed as part of the signature page to the Registration Statement)
- -------------------- * Included as Exhibit 3.1 to the Company's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. ** Included in Appendix B to the prospectus contained in the Company's Registration Statement on Form S-4 filed with the Commission on July 23, 1999 and incorporated herein by reference. *** Included as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1999 and incorporated herein by reference. 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 this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in this registration statement; PROVIDED, HOWEVER, that subparagraphs (i) and (ii) above do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. II-2 (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is 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. 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 existing provisions or arrangements whereby the registrant may indemnify a trustee, officer or controlling person of the registrant against liabilities arising under the Securities Act of 1933, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange 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 trustee, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, 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 Act and will be governed by the final adjudication of such issue. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing on Form S-3 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on June 15, 2001. EQUITY RESIDENTIAL PROPERTIES TRUST By: /s/ Douglas Crocker II ---------------------------------------------- Douglas Crocker II, President, Chief Executive Officer and Trustee II-4 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Douglas Crocker II, David J. Neithercut and Bruce C. Strohm, or any of them, his attorneys-in-fact and agents, with full power of substitution and resubstitution for him in any and all capacities, to sign any or all amendments or post-effective amendments to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith or in connection with the registration of the Securities under the Exchange Act, with the Securities and Exchange Commission, granting unto each of such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that each of such 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 of 1933, this Registration Statement has been signed by the following persons in the capacities set forth below on June 15, 2001:
Name - ---- /s/ Samuel Zell Chairman of the Board of Trustees - -------------------------------------- Samuel Zell /s/ Douglas Crocker II President, Chief Executive Officer and Trustee - -------------------------------------- Douglas Crocker II /s/ David J. Neithercut Executive Vice President and Chief Financial - -------------------------------------- Officer David J. Neithercut /s/ Michael J. McHugh Executive Vice President, Chief Accounting - -------------------------------------- Officer and Treasurer Michael J. McHugh /s/ Gerald A. Spector Executive Vice President, Chief Operating - -------------------------------------- Officer and Trustee Gerald A. Spector /s/ Sheli Z. Rosenberg Trustee - -------------------------------------- Sheli Z. Rosenberg /s/ James D. Harper, Jr. Trustee - -------------------------------------- James D. Harper, Jr. /s/ John W. Alexander Trustee - -------------------------------------- John W. Alexander /s/ B. Joseph White Trustee - -------------------------------------- B. Joseph White /s/ Henry H. Goldberg Trustee - -------------------------------------- Henry H. Goldberg /s/ Jeffrey H. Lynford Trustee - -------------------------------------- Jeffrey H. Lynford /s/ Edward Lowenthal Trustee - -------------------------------------- Edward Lowenthal /s/ Michael N. Thompson Trustee - -------------------------------------- Michael N. Thompson
EXHIBIT INDEX
Exhibit Exhibit Number Description - ------- ----------- 4.1* Second Amended and Restated Declaration of Trust 4.2** Amendment to Second Amended and Restated Declaration of Trust 4.3*** Third Amended and Restated Bylaws 5 Opinion of Bradley A. Van Auken 8 Opinion of Piper Marbury Rudnick & Wolfe 23.1 Consent of Ernst & Young LLP 23.2 Consent of Bradley A. Van Auken (included in Exhibit 5) 23.3 Consent of Piper Marbury Rudnick & Wolfe (included in Exhibit 8) 24 Power of Attorney (filed as part of the signature page to the Registration Statement)
- -------------------- * Included as Exhibit 3.1 to the Company's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. ** Included in Appendix B to the prospectus contained in the Company's Registration Statement on Form S-4 filed with the Commission on July 23, 1999 and incorporated herein by reference. *** Included as Exhibit 3.2 to the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1999 and incorporated herein by reference. EX-5 2 a2052043zex-5.txt VAN AUKEN OPINION EXHIBIT 5 Bradley A. Van Auken Two North Riverside Plaza Chicago, Illinois 60606 (312) 474-1300 June 15, 2001 EQUITY RESIDENTIAL PROPERTIES TRUST Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 Ladies and Gentlemen: I have acted as Maryland counsel to Equity Residential Properties Trust, a Maryland statutory real estate investment trust (the "Trust"), in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement on Form S-3 of the Trust (the "Registration Statement") to be filed on or about June 15, 2001 with the Securities and Exchange Commission (the "Commission"), of up to 869,760 Common Shares (the "Shares"), par value $.01 per share, (i) to be offered and sold from time to time by certain selling shareholders of the Trust listed in the Registration Statement after issuance by the Trust upon the exchange of common units (including common units which may be issued upon conversion of preference units) of limited partnership interest ("Issued Units") of ERP Operating Limited Partnership (the "Operating Partnership"), an Illinois limited partnership, in accordance with the Fifth Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of August 1, 1998 (the "Partnership Agreement"), and (ii) upon issuance in exchange for common units of limited partnership interest ("Earn-Out Units") of the Operating Partnership that have been and may hereafter be issued by the Operating Partnership pursuant to the terms of that certain Conveyance Agreement dated as of April 22, 1998, as amended, by and among Grove Corporation (predecessor-in-interest to the Operating Partnership) and the twenty-two limited partnerships listed on the signature page thereto (the "Earn-Out Agreement"). This opinion is being furnished to you at your request in connection with the filing of the Registration Statement. In rendering the opinion expressed herein, I have reviewed originals or copies, certified or otherwise identified to my satisfaction, of the Registration Statement, the Declaration of Trust and Bylaws of the Trust, the Partnership Agreement, the Earn-Out Agreements, the proceedings of the Board of Trustees of the Trust or committees thereof relating to the authorization and issuance of the Issued Units, the Earn-Out Units, and the Shares, an Officer's Certificate of the Trust (the "Certificate"), and such other statutes, certificates, instruments, and documents relating to the Trust and matters of law as I have deemed necessary to the issuance of this opinion. In my examination of the aforesaid documents, I have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the aforesaid documents, the authenticity of all documents submitted to me as originals, the conformity with originals of all documents submitted to me as copies (and the authenticity of the originals of such copies), and the accuracy and completeness of all public records reviewed by me. In making my examination of documents executed by parties other than the Trust, I have assumed that such parties had the power, corporate or other, to enter into and perform all obligations thereunder, and I have also assumed the due authorization by all requisite action, trust or other, and the valid execution and delivery by such parties of such documents and the validity, binding effect, and enforceability thereof with respect to such parties. As to any facts material to this opinion which I did not independently establish or verify, I have relied solely upon the Certificate. Based upon the foregoing, having regard for such legal considerations as I deem relevant, and limited in all respects to applicable Maryland law, I am of the opinion and advise you that: (1) The Shares to be issued upon exchange of the Issued Units have been duly authorized and, if and when such Shares are issued and delivered in accordance with the terms of the Partnership Agreement, upon the exchange of the Issued Units as contemplated thereby and as contemplated by the resolutions authorizing their issuance, will be validly issued, fully paid, and non-assessable. (2) The Shares to be issued upon exchange of the Earn-Out Units have been duly authorized and, if and when any such Earn-Out Units not yet issued are issued and delivered in accordance with the terms of the Earn-Out Agreement and as contemplated by the resolutions authorizing their issuance and such Shares are issued and delivered in accordance with the terms of the Partnership Agreement upon the exchange of the Earn-Out Units as contemplated thereby and as contemplated by the resolutions authorizing their issuance, will be validly issued, fully paid, and non-assessable. In addition to the qualifications set forth above, this opinion is subject to the qualification that I express no opinion as to the laws of any jurisdiction other than the State of Maryland. I assume that the issuance of the Shares will not cause (i) the Trust to issue Common Shares in excess of the number of Common Shares authorized by the Trust's Declaration of Trust at the time of their issuance or (ii) any person to violate any of the Ownership Limit or Excepted Holder Limit provisions of the Trust's Declaration of Trust (as defined in Article VII thereof). I also assume that the Issued Units have been, and the Earn-out Units, have been and will be, validly issued under the Partnership Agreement and the laws of the State of Illinois. This opinion concerns only the effect of the laws (exclusive of the securities or "blue sky" laws and the principles of conflict of laws) of the State of Maryland as currently in effect. I assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if any facts or circumstances come to my attention after the date hereof that might change this opinion. To the extent that any documents referred to herein (including, without limitation, the Partnership Agreement and the Earn-Out Agreements) are governed by the laws of a jurisdiction other than the State of Maryland, I have assumed that the laws of such jurisdiction are the same as the laws of the State of Maryland. This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading "Legal Matters" in the Prospectus included in the Registration Statement. Very truly yours, /s/ Bradley A. Van Auken EX-8 3 a2052043zex-8.txt PIPER MARBURY TAX OPINION Exhibit 8 [PIPER MARBURY RUDNICK & WOLFE LETTERHEAD] 203 North LaSalle Street Suite 1800 Chicago, Illinois 60601-1293 www.piperrudnick.com PHONE (312) 368-4000 FAX (312) 236-7516 June 15, 2001 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 Re: TAX OPINION - REIT STATUS Ladies and Gentlemen: We are acting as special tax counsel to Equity Residential Properties Trust, a Maryland real estate investment trust ("EQR"), in connection with the registration statement on Form S-3 to which this opinion is attached as an exhibit (the "Registration Statement"), filed with the Securities and Exchange Commission on June 15, 2001, relating to the issuance and resale of an aggregate of 869,760 common shares of beneficial interest of EQR, as set forth in the prospectus which forms a part of the Registration Statement (the "Prospectus"). In connection with the filing of the Registration Statement, we have been asked to provide an opinion as to certain federal income tax matters described below in order to enable EQR to fulfill the requirements of Item 601(b)(8) of Regulation S-K, 17 C.F.R. Section 229.601(b)(8), in connection with the Registration Statement. In connection with rendering the opinions expressed below, we have examined originals (or copies identified to our satisfaction as true copies of the originals) of the following documents (collectively, the "Reviewed Documents"): (A) The Fifth Amended and Restated Limited Partnership Agreement of ERP Operating Limited Partnership, dated as of August 1, 1998 (the "ERP Operating Limited Partnership Agreement"); (B) The Second Amended and Restated Declaration of Trust of EQR, dated May 30, 1997, as amended (the "EQR Declaration of Trust"); (C) The Third Amended and Restated Bylaws of EQR, adopted June 23, 1999 (the "EQR Bylaws"); (D) The Registration Statement; and (E) Such other documents as may have been presented to us by EQR from time to time. In addition, we have relied upon the factual representations contained in EQR's certificate to us, dated June 15, 2001 (the "EQR Officer's Certificate"), executed by a duly appointed officer of EQR, setting forth certain representations relating to the organization and operation of EQR, ERP Operating Limited Partnership, and their respective subsidiaries. For purposes of our opinion, we have not made an independent investigation of the facts set forth in the documents we reviewed. We consequently have assumed that the information presented in such documents or otherwise furnished to us accurately and completely describes all material facts relevant to our opinion. Any representation or statement in any document upon which we rely that is made "to the best of our knowledge" or otherwise similarly qualified is assumed to be correct. Any alteration of such facts may adversely affect our opinions. In the course of our representation of EQR, no information has come to our attention that would cause us to question the accuracy or completeness of the representations contained in the Officer's Certificate or of the Reviewed Documents in a material way. In our review, we have assumed, with your consent, that all of the representations and statements of a factual nature set forth in the documents we reviewed are true and correct, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. We have also assumed the genuineness of all signatures, the proper execution of all documents, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made. The opinions set forth in this letter are based on relevant provisions of the Internal Revenue Code of 1986, as amended (the "Code"), the regulations promulgated thereunder by the United States Department of the Treasury ("Regulations") (including proposed and temporary Regulations), and interpretations of the foregoing as expressed in court decisions, the legislative history, and existing administrative rulings and practices of the Internal Revenue Service (including its practices and policies in issuing private letter rulings, which are not binding on the Internal Revenue Service ("IRS") except with respect to a taxpayer that receives such a ruling), all as of the date hereof. In rendering these opinions, we have assumed that the transactions contemplated by the Reviewed Documents will be consummated in accordance with the terms and provisions of such documents, and that such documents accurately 2 reflect the material facts of such transactions. In addition, the opinions are based on the correctness of the following specific assumptions: (i) EQR, ERP Operating Limited Partnership and their respective subsidiaries will each be operated in the manner described in the EQR Declaration of Trust, the EQR Bylaws, the ERP Operating Limited Partnership Agreement, the other organizational documents of each such entity, as the case may be, and all terms and provisions of such agreements and documents will be complied with by all parties thereto; (ii) EQR is a duly formed real estate investment trust under the laws of the State of Maryland; (iii) ERP Operating Limited Partnership is a duly organized and validly existing limited partnership under the laws of the state of Illinois; and (iv) There has been no change in the applicable laws of the State of Maryland, or in the Code, the Regulations, and the interpretations of the Code and Regulations by the courts and the IRS, all as they are in effect and exist at the date of this letter. With respect to the last assumption, it should be noted that statutes, regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. A material change that is made after the date hereof in any of the foregoing bases for our opinions could affect our conclusions. Furthermore, if the facts vary from those relied upon (including if any representations, warranties, covenants or assumptions upon which we have relied are inaccurate, incomplete, breached or ineffective), our opinion contained herein could be inapplicable. Moreover, the qualification and taxation of EQR as a real estate investment trust under the Code (a "REIT") depends upon its ability to meet, through actual annual operating results, distribution levels, diversity of share ownership and the various qualification tests imposed under the Code, the results of which will not be reviewed by the undersigned. Accordingly, no assurance can be given that the actual results of the operations of EQR for any one taxable year will satisfy such requirements. Based upon and subject to the foregoing, it is our opinion that: (i) EQR was organized and has operated in conformity with the requirements for qualification as a REIT under the Code for its taxable years ended December 31, 1992 through December 31, 2000, and EQR's organization and proposed method of operation should enable it 3 to continue to satisfy the requirements for qualification and taxation as a REIT under the Code for its taxable years ending after the date of this opinion. (ii) The discussion in each of (1) EQR's Annual Report on Form 10-K for the year ending December 31, 2000, under the heading "Federal Income Tax Considerations," which is incorporated by reference into the Prospectus and (2) the Prospectus included as part of the Registration Statement under the heading "Additional Federal Income Tax Considerations," to the extent that it constitutes matters of federal income tax law or legal conclusions relating thereto, is accurate in all material respects. The foregoing opinion is limited to the matters specifically discussed herein, which are the only matters to which you have requested our opinion. Other than as expressly stated above, we express no opinion on any issue relating to EQR or ERP Operating Limited Partnership, or to any investment therein. For a discussion relating the law to the facts and the legal analysis underlying the opinions set forth in this letter, we incorporate by reference the discussion of federal income tax issues, which we assisted in preparing, in the section of EQR's Annual Report on Form 10-K for the year ended December 31, 2000, under the heading "Federal Income Tax Considerations." We assume no obligation to advise you of any changes in the foregoing subsequent to the date of this opinion letter, and we are not undertaking to update the opinion letter from time to time. You should be aware that an opinion of counsel represents only counsel's best legal judgment, and has no binding effect or official status of any kind, and that no assurance can be given that contrary positions may not be taken by the IRS or that a court considering the issues would not hold otherwise. 4 This opinion is rendered only to you and may not be quoted in whole or in part or otherwise referred to, nor be filed with, or furnished to, any other person or entity in connection with the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement under the Securities Act of 1933, as amended, pursuant to Item 601(b)(8) of Regulation S-K, 17 C.F.R Section 229.601(b)(8), and the reference to Piper Marbury Rudnick & Wolfe contained under the heading "Legal Matters" in the Prospectus included as part of the Registration Statement. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ PIPER MARBURY RUDNICK & WOLFE 5 EX-23.1 4 a2052043zex-23_1.txt CONSENT OF ERNST & YOUNG EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the reference to our firm under the caption "Experts" in the Registration Statement on Form S-3 and related Prospectus of Equity Residential Properties Trust for the registration of 869,760 common shares of beneficial interest and to the incorporation by reference therein of our report dated February 15, 2001, with respect to the consolidated financial statements and schedule of Equity Residential Properties Trust included in its Annual Report on Form 10-K for the year ended December 31, 2000, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Chicago, Illinois June 14, 2001 -----END PRIVACY-ENHANCED MESSAGE-----