-----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, Vkt562pg+oPMO7hGAvuiJ77zSS5THtKwNuE0pAlb2Sn6+8DZPx+G0mU6hUD+nggO Qqkac4vRIhD14IjW5MIgkA== 0001047469-98-038479.txt : 19981029 0001047469-98-038479.hdr.sgml : 19981029 ACCESSION NUMBER: 0001047469-98-038479 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19981028 EFFECTIVENESS DATE: 19981028 SROS: NYSE 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-8 SEC ACT: SEC FILE NUMBER: 333-66257 FILM NUMBER: 98732338 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-8 1 S-8 As filed with the Securities and Exchange Commission on October 28, 1998 File No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 EQUITY RESIDENTIAL PROPERTIES TRUST (Exact name of Registrant as specified in its charter) Maryland 13-3675988 (State or other jurisdiction of (I.R.S. Employer Incorporation of Organization) Identification No.) Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606 (312) 474-1300 (Address of Principal Executive Offices) MERRY LAND SUBSTITUTE OPTIONS (Full Title of the Plan) Douglas Crocker II President and Chief Executive Officer Two North Riverside Plaza, Suite 400 Chicago, Illinois 60606 (Name and Address of Agent for Service) (312) 474-1300 (Telephone Number, Including Area Code, of Agent for Service) Copies to: William C. Hermann, Esq. Rosenberg & Liebentritt, P.C. Two North Riverside Plaza, Suite 1600 Chicago, Illinois 60606 CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- Proposed Maximum Proposed Maximum Amount to be Aggregate Price Aggregate Amount of Title of Securities to be Registered Registered Per Share (1) Offering Price (1) Registration Fee - ----------------------------------------------------------------------------------------------------------------------- Common Shares of Beneficial Interest, $.01 par value . . . . . . . . . . . 921,780 $38.70 $35,672,886 $9,918 - ----------------------------------------------------------------------------------------------------------------------- - -----------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for purposes of calculating the amount of the registration fee based upon the weighted average price at which the options may be exercised, pursuant to Rule 457(h)(1). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents, which have heretofore been filed by the Registrant with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act"), and the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this Registration Statement and shall be deemed to be a part hereof: (a) Annual Report on Form 10-K for the year ended December 31, 1997; (b) Quarterly Reports on Form 10-Q for the quarterly periods ending March 31, 1998 and June 30, 1998; (c) Current Reports on Form 8-K dated January 21, 1998, February 12, 1998, February 18, 1998, March 25, 1998, April 23, 1998, June 25, 1998, July 8, 1998, July 23, 1998, August 11, 1998, October 19, 1998, March 12, 1997, March 17, 1997, May 20, 1997, August 15, 1997, September 10, 1997, September 17, 1997, October 9, 1997 and December 23, 1997 and the Company's Current Reports on Form 8-K/A dated July 23, 1998 and October 9, 1997; and (d) Report on Form 8-A/A dated August 10, 1993 (File No. 1-12252). All documents subsequently filed by the Registrant with the Commission pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Sheli Z. Rosenberg, of counsel to Rosenberg & Liebentritt, P.C., is a trustee of the Registrant. The Registrant incurred legal fees to Rosenberg & Liebentritt, P.C. of approximately $1.4 million in 1997. Attorneys of Rosenberg & Liebentritt, P.C. beneficially own less than 1% of the outstanding Common Shares of Beneficial Interest of the Registrant, either directly or upon the exercise of options. ITEM 6. INDEMNIFICATION OF DIRECTORS 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 Corporate Law ("MGCL") for directors and officers of Maryland corporations. In accordance with 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 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 or payment or reimbursement of expenses to a present or former trustee, officer or shareholder who served a predecessor of the Registrant and to any employee or agent of the Registrant or a predecessor of the Registrant (y) provide that any indemnification or 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. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act") may be permitted to trustees and officers of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that, although the validity and scope of the governing statute have not been tested in court, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In addition, indemnification may be limited by state securities laws. The partnership agreements of the Operating Partnership, of which the Registrant is the general partner, and Equity Residential Properties Management Limited Partnership (the "Management Partnership") of which the Operating Partnership is general partner, also provide for indemnification of the Registrant and its officers and trustees to the same extent 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 Partnership and their respective partners to the same extent 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 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See Exhibit Index which is incorporated herein by reference. ITEM 9. 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 Offered Shares (if the total dollar value of Offered Shares 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 the 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 and 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 Offered Shares offered herein, and the offering of such Offered Shares 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 Offered Shares 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 Offered Shares offered herein, and the offering of such Offered Shares 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. 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-8 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 October 28, 1998. EQUITY RESIDENTIAL PROPERTIES TRUST By: /s/ Douglas Crocker II ------------------------------------------------------ Douglas Crocker II, President, Chief Executive Officer and Trustee POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby constitutes and appoints Douglas Crocker II and Sheli Z. Rosenberg, or either 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 and on the dates indicated:
Name Title Date - ---- ----- ---- /s/ Samuel Zell Chairman of the Board of Trustees October 28, 1998 - ---------------------------------- Samuel Zell /s/ Douglas Crocker II President, Chief Executive Officer and Trustee October 28, 1998 - ---------------------------------- Douglas Crocker II /s/ David J. Neithercut Executive Vice President and Chief Financial October 28, 1998 - ---------------------------------- Officer David J. Neithercut /s/ Michael J. McHugh Executive Vice President, Chief Accounting Officer October 28, 1998 - ---------------------------------- and Treasurer Michael J. McHugh /s/ Gerald A. Spector Executive Vice President, Chief Operating Officer October 28, 1998 - ---------------------------------- and Trustee Gerald A. Spector /s/ Sheli Z. Rosenberg Trustee October 28, 1998 - ---------------------------------- Sheli Z. Rosenberg /s/ James D. Harper, Jr. Trustee October 28, 1998 - ---------------------------------- James D. Harper, Jr. /s/ Errol R. Halperin Trustee October 28, 1998 - ---------------------------------- Errol R. Halperin /s/ John Alexander Trustee October 28, 1998 - ---------------------------------- John Alexander /s/ Barry S. Sternlicht Trustee October 28, 1998 - ---------------------------------- Barry S. Sternlicht /s/ B. Joseph White Trustee October 28, 1998 - ---------------------------------- B. Joseph White /s/ Henry H. Goldberg Trustee October 28, 1998 - ---------------------------------- Henry H. Goldberg /s/ Edward Lowenthal Trustee October 28, 1998 - ---------------------------------- Edward Lowenthal /s/ Jeffrey H. Lynford Trustee October 28, 1998 - ---------------------------------- Jeffrey H. Lynford /s/ Stephen O. Evans Trustee October 28, 1998 - ---------------------------------- Stephen O. Evans /s/ Boone A. Knox Trustee October 28, 1998 - ---------------------------------- Boone A. Knox /s/ Michael N. Thompson Trustee October 28, 1998 - ---------------------------------- Michael N. Thompson
EXHIBIT INDEX
Sequentially Exhibit Exhibit Numbered Number Description Page ------ ----------- ------------ 4.1 * Second Amended and Restated Declaration of Trust, as amended 4.2 ** Second Amended and Restated Bylaws 5 Opinion of Rosenberg & Liebentritt, P.C. 23.1 Consent of Grant Thornton LLP 23.2 Consent of Ernst & Young LLP 23.3 Consent of Arthur Andersen LLP 23.4 Consent of Rosenberg & Liebentritt, P.C. (included in Exhibit 5) 24 Power of Attorney (filed as part of the signature page to the Registration Statement)
- ------------------ * Included as Exhibit 3.1 to the Registrant's Current Report on Form 8-K dated May 30, 1997 and incorporated herein by reference. ** Included as Exhibit 99.2 to the Registrant's Registration Statement on Form S-4, File No. 333-24653, and incorporated herein by reference. EX-5 2 EXHIBIT 5 [LETTERHEAD OF ROSENBERG & LIEBENTRITT, P.C.] October 28, 1998 Board of Trustees Equity Residential Properties Trust Two North Riverside Plaza Suite 400 Chicago, Illinois 60606 Re: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We are acting as counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with the issuance by the Company of options to purchase 921,780 common shares (the "Shares") of beneficial interest, $.01 par value per share, of the Company ("Common Shares") covered by the above-referenced Registration Statement, and all amendments thereto (the "Registration Statement"), filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "1933 Act"). The Shares are to be issued by the Company upon the exercise of options to purchase Common Shares ("EQR Options") that were converted from options to purchase shares of common stock ("Merry Land Options") of Merry Land Merger Subsidiary, Inc., a Maryland corporation ("Merry Land"), in the merger of Merry Land with and into the Company (the "Merger"), pursuant to the Agreement and Plan of Merger, dated as of July 8, 1998, by and between the Company and Merry Land & Investment Company, Inc., a Georgia corporation ("Merry Land Parent"), as amended by the First Amendment to Agreement and Plan of Merger, dated as of September 4, 1998, by and among the Company, Merry Land Parent, Merry Land and Merry Land LLC, a Georgia limited liability company (as amended, the "Merger Agreement"). This opinion letter is furnished to you at your request to enable the Company to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (Section ) 229.601(b)(5), in connection with the Registration Statement. Capitalized terms used but not defined herein shall have the meanings given to them in the Registration Statement. In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the "Documents"): 1. An executed copy of the Registration Statement; 2. The Second Amended and Restated Declaration of Trust of the Company, as amended (the "Declaration of Trust"), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the "SDAT") and by the Secretary of the Company on the date hereof as then begin complete, accurate and in effect; 3. The Second Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect; 4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date; Board of Trustees Equity Residential Properties Trust October 28, 1998 Page 2 5. Resolutions adopted by the Board of Trustees of the Company relating to the issuance and registration of the Shares (the "Resolutions"), as certified by the Secretary of the Company on the date hereof as then being complete, accurate and in effect; 6. The Merger Agreement; 7. The Articles of Merger relating to the Merger and providing for the conversion of the Merry Land Options outstanding at the effective time of the Merger into EQR Options, certified as of a recent date by the SDAT; 8. A specimen of the certificate evidencing Common Shares, as certified by the Secretary of the Company as of the date hereof as then being complete, accurate and in effect; 9. A certificate executed by the Secretary of the Company, dated the date hereof; and 10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth in this letter, subject to the assumptions, limitations and qualifications stated herein. In expressing the opinion set forth below, we have assumed, and so far as is known to us there are no facts inconsistent with, the following: 1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so. 2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so. 3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms. 4. Any Documents submitted to us as originals are authentic. Any Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise. 5. The Shares will not be issued in violation of any restriction or limitation contained in the Declaration of Trust. Board of Trustees Equity Residential Properties Trust October 28, 1998 Page 3 The phrase "known to us" is limited to the actual knowledge, without independent inquiry, of the lawyers at our firm who have performed legal services in connection with the issuance of this opinion. We call your attention to the fact that our firm only requires lawyers to be qualified to practice law in the State of Illinois and, in rendering the opinions set forth herein, we express no opinion with respect to any laws relevant to this opinion other than the laws and regulations identified herein. With respect to the opinion below that relates to the laws of the State of Maryland, with your consent, we rely solely on the opinion of Ballard Spahr Andrews & Ingersoll, LLP, a copy of which is attached hereto as EXHIBIT A. Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that: 1. The Company is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT. 2. The Shares have been duly authorized for issuance and, when and if issued and delivered against payment therefore in accordance with the Resolutions, will be (assuming that upon any such issuance the total number of Common Shares issued and outstanding will not exceed the total number of Common Shares that the Company is then authorized to issue under the Declaration of Trust) validly issued, fully paid and nonassessable under Title 8 of the Corporations and Associations Articles of the Annotated Code of Maryland. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter. This opinion letter has been prepared solely for your use in connection with the filing of the Registration Statement on the date of this opinion letter and should not be quoted in whole or in part or otherwise be referred to, nor filed with or furnished to any governmental agency or other person or entity, without the prior written consent of this Firm. We hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. Very truly yours, ROSENBERG & LIEBENTRITT, P.C. EXHIBIT A [LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP] FILE NUMBER 867646 October 28, 1998 Rosenberg & Liebentritt, P.C. Suite 1600 Two North Riverside Plaza Chicago, Illinois 60606 Re: EQUITY RESIDENTIAL PROPERTIES TRUST: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have served as Maryland counsel to Equity Residential Properties Trust, a Maryland real estate investment trust (the "Company"), in connection with certain matters of Maryland law arising out of the registration of 921,780 common shares (the "Shares") of beneficial interest, $.01 par value per share, of the Company ("Common Shares") covered by the above-referenced Registration Statement, and all amendments thereto (the "Registration Statement"), filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "1933 Act"). The Shares are to be issued by the Company upon the exercise of options to purchase Common Shares ("EQR Options") that were converted from options to purchase shares of common stock ("Merry Land Options") of Merry Land Merger Subsidiary, Inc., a Maryland corporation ("Merry Land"), in the merger of Merry Land with and into the Company (the "Merger"), pursuant to the Agreement and Plan of Merger, dated as of July 8, 1998, by and between the Company and Merry Land & Investment Company, Inc., a Georgia corporation ("Merry Land Parent"), as amended by the First Amendment to Agreement and Plan of Merger, dated as of September 4, 1998, by and among the Company, Merry Land Parent, Merry Land and Merry Land LLC, a Georgia limited liability company (as amended, the "Merger Agreement"). Capitalized terms used but not defined herein shall have the meanings given to them in the Registration Statement. In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the "Documents"): 1. The Registration Statement; Rosenberg & Liebentritt, P.C. October 28, 1998 Page 2 2. The Second Amended and Restated Declaration of Trust of the Company (the "Declaration of Trust"), certified as of a recent date by the State Department of Assessments and Taxation of Maryland (the "SDAT"); 3. The Bylaws of the Company, certified as of the date hereof by its Secretary; 4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date; 5. Resolutions adopted by the Board of Trustees of the Company relating to the issuance and registration of the Shares (the "Resolutions"), certified as of the date hereof by the Secretary of the Company; 6. The Merger Agreement; 7. The Articles of Merger relating to the Merger and providing for the conversion of the Merry Land Options outstanding at the effective time of the Merger into EQR Options, certified as of a recent date by the SDAT; 8. A specimen of the certificate evidencing Common Shares, certified as of the date hereof by the Secretary of the Company; 9. A certificate executed by the Secretary of the Company, dated the date hereof; and 10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth in this letter, subject to the assumptions, limitations and qualifications stated herein. In expressing the opinion set forth below, we have assumed, and so far as is known to us there are no facts inconsistent with, the following: 1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so. 2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so. 3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a Rosenberg & Liebentritt, P.C. October 28, 1998 Page 3 signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms. 4. Any Documents submitted to us as originals are authentic. Any Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise. 5. The Shares will not be issued in violation of any restriction or limitation contained in the Declaration of Trust. The phrase "known to us" is limited to the actual knowledge, without independent inquiry, of the lawyers at our firm who have performed legal services in connection with the issuance of this opinion. Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that: 1. The Company is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT. 2. The Shares have been duly authorized for issuance and, when and if issued and delivered against payment therefor in accordance with the Resolutions, will be (assuming that upon any such issuance the total number of Common Shares issued and outstanding will not exceed the total number of Common Shares that the Company is then authorized to issue under the Declaration of Trust) validly issued, fully paid and nonassessable. The foregoing opinion is limited to the substantive laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof. Rosenberg & Liebentritt, P.C. October 28, 1998 Page 4 This opinion is being furnished to you to be attached as an exhibit to your opinion for submission to the Commission as an exhibit to the Registration Statement and, accordingly, may not be relied upon by, quoted in any manner to, or delivered to any other person or entity (except the Company) without, in each instance, our prior written consent. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act. Very truly yours, Ballard Spahr Andrews & Ingersoll, LLP EX-23.1 3 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We have issued our report dated February 14, 1996, accompanying the consolidated financial statements of Equity Residential Properties Trust for the year ended December 31, 1995. We consent to the incorporation by reference of the above report in the Registration Statement of Equity Residential Properties Trust on Form S-8. GRANT THORNTON LLP Chicago, Illinois October 26, 1998 EX-23.2 4 EXHIBIT 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Substitute Options of Equity Residential Properties Trust of our reports indicated below with respect to the financial statements indicated below included in the Company's filings as indicated below, filed with the Securities and Exchange Commission. - -------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - -------------------------------------------------------------------------------- Consolidated financial statements February 26, 1997 Annual and schedule of Equity Residential 1998 except Report on Form Properties Trust at December 31, for Note 24, 10-K, as amended 1997 and 1996 and for the years as to which by Form 10-K/A then ended the date is March 12, 1998 Statement of Revenue and Certain April 30, 1998 Current Report on Expenses of Sonterra at Foothill Form 8-K dated Ranch for the year ended December June 25, 1998 31, 1997 Combined Statement of Revenue and April 30, 1998 Current Report on Certain Expenses of the Lincoln Form 8-K dated Property Company Probable June 25, 1998 Properties for the year ended December 31, 1997 Statement of Revenue and Certain May 1, 1998 Current Report on Expenses of The Emerson Place Form 8-K dated Apartments for the year ended June 25, 1998 December 31, 1997 Combined Statement of Revenue and May 1, 1998 Current Report on Certain Expenses of The Magnum Form 8-K dated Probable Properties for the year June 25, 1998 ended December 31, 1997 Combined Statement of Revenue and May 29, 1998 Current Report on Certain Expenses of the Frederick Form 8-K dated Probable Properties for the year June 25, 1998 ended December 31, 1997 Statement of Revenue and Certain June 2, 1998 Current Report on - -------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - -------------------------------------------------------------------------------- Expenses of Harbor Pointe for the Form 8-K dated year ended December 31, 1997 June 25, 1998 Statement of Revenue and Certain June 4, 1998 Current Report on Expenses of The Fairfield for the Form 8-K dated year ended December 31, 1997 June 25, 1998 Combined Statement of Revenue and June 4, 1998 Current Report on Certain Expenses of the Lakes at Form 8-K dated Vinings Apartments and Martins June 25, 1998 Landing Apartments Probable Properties for the year ended December 31, 1997 Statement of Revenue and Certain June 9, 1998 Current Report on Expenses of The Northridge Form 8-K dated Apartments for the year ended June 25, 1998 December 31, 1997 Combined Statement of Revenue and June 10, 1998 Current Report on Certain Expenses of TCRS Form 8-K dated Properties for the year ended June 25, 1998 December 31, 1997 Statement of Revenue and Certain June 11, 1998 Current Report on Expenses of the Portside Towers Form 8-K dated Apartments for the year ended June 25, 1998 December 31, 1997 Statement of Revenue and Certain June 11, 1998 Current Report on Expenses of The Coconut Palm Club Form 8-K dated Apartments for the year ended June 25, 1998 December 31, 1997 Combined Statement of Revenue and June 18, 1998 Current Report on Certain Expenses of The Focus Form 8-K dated Group Properties for the year June 25, 1998 ended December 31, 1997 Combined Statement of Revenue and November 12, Current Report on Certain Expenses of the CAPREIT 1997 Form 8-K, as Acquired and Probable Properties amended by Form for the year ended December 31, 8-K/A dated 1996 October 9, 1997 - -------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - -------------------------------------------------------------------------------- Combined Statement of Revenue and August 15, Current Report on Certain Expenses of the Ameritech 1997 Form 8-K, dated Pension Trust Probable Properties September 17, for the year ended December 31, 1997 1996 Combined Statement of Revenue and September 5, Current Report on Certain Expenses of Paces on the 1997 Form 8-K dated Green and Paces Station for the September 17, year ended December 31, 1996 1997 Statement of Revenue and Certain July 17, 1997 Current Report on Expenses of Cascade at Landmark Form 8-K dated for the year ended December 31, August 15, 1997 1996 Statement of Revenue and Certain July 2, 1997 Current Report on Expenses of Sabal Palm Club Form 8-K dated (formerly known as Post Crossing August 15, 1997 (Pompano)) for the year ended December 31, 1996 Statement of Revenue and Certain July 23, 1997 Current Report on Expenses of Wood Creek (Pleasant Form 8-K dated Hill) for the year ended December August 15, 1997 31, 1996 Statement of Revenue and Certain July 25, 1997 Current Report on Expenses of LaMirage for the year Form 8-K dated ended December 31, 1996 August 15, 1997 Statement of Revenue and Certain May 16, 1997 Current Report on Expenses of Harborview for the Form 8-K dated year ended December 31, 1996 May 20, 1997 Statement of Revenue and Certain May 6, 1997 Current Report on Expenses of Trails at Dominion Form 8-K dated for the year ended December 31, May 20, 1997 1996 Statement of Revenue and Certain May 7, 1997 Current Report on Expenses of Rincon for the year Form 8-K dated ended December 31, 1996 May 20, 1997 Statement of Revenue and Certain May 12, 1997 Current Report on Expenses of Waterford at the Form 8-K dated Lakes for the - -------------------------------------------------------------------------------- Date of Auditors' Financial Statements Report Filing - -------------------------------------------------------------------------------- year ended December 31, 1996 May 20, 1997 Statement of Revenue and Certain May 16, 1997 Current Report on Expenses of Lincoln Harbour for Form 8-K dated the year ended December 31, 1996 May 20, 1997 Combined Statement of Revenue and May 9, 1997 Current Report on Certain Expenses of Knights Form 8-K dated Castle and Club at the Green for May 20, 1997 the year ended December 31, 1996 Combined Statements of Revenue March 25, 1997 Current Report on and Certain Expenses of the Form 8-K dated Zell/Merrill Properties for each May 20, 1997 of the three years in the period ended December 31, 1996 Consolidated financial statements February 10, Current Report on and schedule of Wellsford 1997 except Form 8-K dated Residential Property Trust at for Note 13, March 17, 1997 December 31, 1996 and 1995 and as to which for each of the three years in the date is the period ended December 31, February 28, 1996 1997 Consolidated financial statements January 31, Current Report on and schedule of Evans Withycombe 1997 Form 8-K dated Residential, Inc. and September 10, subsidiaries at December 31, 1996 1997 and 1995 and for each of the three years in the period ended December 31, 1996 ERNST & YOUNG LLP Chicago, Illinois October 26, 1998 EX-23.3 5 EXHIBIT 23.3 Consent of the Independent Public Accountants As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated January 16, 1998 included in Equity Residential Properties Trust's Form 8-K (No. 001-12252) dated July 23, 1998. Arthur Andersen LLP Atlanta, Georgia October 26, 1998 -----END PRIVACY-ENHANCED MESSAGE-----