-----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, G/MjhI+QECs4I7GlW9fldbb3ozDPYTYUF+7zD3IrEU9MLJtOZkjMxD/+Je3YJYSC fcaPbI9+0ReV0FTLTIjdlg== 0000927016-97-003288.txt : 19971205 0000927016-97-003288.hdr.sgml : 19971205 ACCESSION NUMBER: 0000927016-97-003288 CONFORMED SUBMISSION TYPE: POS462B PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19971204 EFFECTIVENESS DATE: 19971204 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AVALON PROPERTIES INC CENTRAL INDEX KEY: 0000911536 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 061379111 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: POS462B SEC ACT: SEC FILE NUMBER: 333-22281 FILM NUMBER: 97732601 BUSINESS ADDRESS: STREET 1: 15 RIVER ROAD STREET 2: SUITE 210 CITY: WILTON STATE: CT ZIP: 06897 BUSINESS PHONE: 2037616500 MAIL ADDRESS: STREET 1: 15 RIVER ROAD STREET 2: SUITE 210 CITY: WILTON STATE: CT ZIP: 06897 POS462B 1 POST-EFFECTIVE 462 As filed with the Securities and Exchange Commission on December 4, 1997 REGISTRATION STATEMENT NO. 333-22281 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________________ POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 _________________________ AVALON PROPERTIES, INC. (Exact name of Registrant as specified in its charter) MARYLAND 06-1379111 (State of incorporation) (I.R.S. Employer Identification Number) 15 RIVER ROAD WILTON, CONNECTICUT 06897 (203) 761-6500 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) _______________________________ THOMAS J. SARGEANT CHIEF FINANCIAL OFFICER, TREASURER AND SECRETARY AVALON PROPERTIES, INC. 15 RIVER ROAD WILTON, CONNECTICUT 06897 (203) 761-6500 (Name, address, including zip code, and telephone number, including area code, of agent for service) ____________________________ With copies to: GILBERT G. MENNA, P.C. GOODWIN, PROCTER & HOAR LLP EXCHANGE PLACE BOSTON, MASSACHUSETTS 02109-2881 (617) 570-1000 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 used 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.[X] 333-22281 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.[X]
CALCULATION OF REGISTRATION FEE ================================================================================================================================== Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Amount of Registered (1) Registered (2) Price Per Share (3) Aggregate Offering Price Registration Fee (2) (2)(3) - ----------------------------------------------------------------------------------------------------------------------------------- Debt Securities.................. Preferred Stock (4).............. Common Stock (7)................. Common Stock Warrants (8) $21,000,000 (5) $21,000,000 $6,195 Total........................ ==================================================================================================================================
(1) The Securities registered hereunder may be sold separately, together or as units with other Securities registered hereunder. (2) In U.S. Dollars or the equivalent thereof denominated in one or more foreign currencies or units of two or more foreign currencies or composite currencies. (3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. No separate consideration will be received for Preferred Stock or Common Stock issued from time to time upon conversion or exchange of Debt Securities or Preferred Stock or upon exercise of the Warrants registered hereby. The aggregate maximum public offering price of all Securities issued pursuant to this Registration Statement will not exceed $21,000,000. (4) Including such indeterminate number of shares of Preferred Stock as may be issued from time to time at indeterminate prices or upon conversion of Debt Securities registered hereby or upon exercise of Warrants registered hereby, as the case may be. (5) Omitted pursuant to General Instruction II.D of Form S-3 under the Securities Act of 1933, as amended. (6) Calculated in accordance with Rule 457(o) under the Securities Act of 1933, as amended. (7) Including such indeterminate number of shares of Common Stock as may be issued from time to time at indeterminate prices or upon conversion of Debt Securities or Preferred Stock registered hereby or upon exercise of Warrants registered hereby, as the case may be. (8) Including such indeterminate number of Warrants or other rights, including without limitation stock purchase or subscription rights, as may be issued from time to time at indeterminate prices. THE REGISTRANT HEREBY REQUEST THE SECURITIES AND EXCHANGE COMMISSION TO DECLARE THIS REGISTRATION STATEMENT EFFECTIUVE IMMEDIATELY UPON FILING PURSUANT TO RULE 462 UNDER THE SECURITIES ACT OF 1933, AS AMENDED. ================================================================================ INCORPORATION BY REFERENCE The Registrant's registration statement on Form S-3, Registration No. 333- 22281, previously filed by the Registrant with the Commission pursuant to the Securities Act of 1933, as amended, is hereby incorporated by reference. PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 16. EXHIBITS. EXHIBIT NO DESCRIPTION 5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the Securities being registered.* 8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.* 12.1 Statements re: computation of ratios.* 23.1 Consent of Coopers & Lybrand L.L.P.* 23.2 Consents of Goodwin, Procter & Hoar LLP. (Included in Exhibits 5.1 and 8.1 hereto). _________________ * Filed herewith SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Avalon Properties, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this post-effective amendment to its Registration Statement on Form S-3 and has duly caused this post-effective amendment to its Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Alexandria, Virginia, on the 4th day of December, 1997 Avalon Properties, Inc. By: /s/ Thomas J. Sargeant ------------------------------------ Thomas J. Sargeant, Chief Financial Officer, Treasurer and Secretary 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. SIGNATURE CAPACITY DATE *Richard L. Michaux Chairman of the Board, Chief December 4, 1997 - -------------------------- Executive Officer and Director RICHARD L. MICHAUX (Principal Executive Officer) *Charles H. Berman President, Chief Operating December 4, 1997 - -------------------------- Officer and Director CHARLES H. BERMAN *Michael A. Futterman Director December 4, 1997 - -------------------------- MICHAEL A. FUTTERMAN *Christopher B. Leinberger Director December 4, 1997 - -------------------------- CHRISTOPHER B. LEINBERGER *Allan D. Schuster Director December 4, 1997 - -------------------------- ALLAN D. SCHUSTER Director - -------------------------- RICHARD W. MILLER /s/ Thomas J. Sargeant Chief Financial Officer, December 4, 1997 - -------------------------- Treasurer and Secretary THOMAS J. SARGEANT (Principal Financial Officer and Principal Accounting Officer) *by /s/ Thomas J. Sargeant December 4, 1997 - -------------------------- THOMAS J. SARGEANT ATTORNEY-IN-FACT EXHIBIT INDEX Exhibit No. Description - ---------- ----------- 5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the Securities being registered.* 8.1 Opinion of Goodwin, Procter & Hoar LLP as to certain tax matters.* 12.1 Statements re: computation of ratios.* 23.1 Consent of Coopers & Lybrand L.L.P.* 23.2 Consents of Goodwin, Procter & Hoar LLP. (Included in Exhibits 5.1 and 8.1 hereto). - ------------------- * Filed herewith. EX-5.1 2 OPINION OF GOODWIN, PROCTER & HOAR LLP Exhibit 5.1 [LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP] December 4, 1997 Avalon Properties, Inc. 5904 Richmond Highway Alexandria, VA 22303 Re: Legality of Securities to be Registered Under Registration Statement on Form S-3 ---------------------------------- Ladies and Gentlemen: This opinion is delivered in our capacity as counsel to Avalon Properties, Inc., a Maryland corporation (the "Company"), in connection with the Company's post-effective amendment to its registration statement on Form S-3, File No. 333-22281 (the "Registration Statement") filed with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the "Securities Act"), relating to an indeterminate amount of Debt Securities, Preferred Stock, Common Stock and Warrants (as such terms are defined in the Registration Statement) authorized for issuance under the Company's Amended and Restated Articles of Incorporation (the "Charter"), with an aggregate public offering price of up to $21,000,000 (collectively, the "Securities"). The Registration Statement provides that the Securities may be offered separately or together, in separate series, in amounts, at prices and on terms to be set forth in one or more prospectus supplements (each a "Prospectus Supplement") to the Prospectus contained in the Registration Statement. In connection with rendering this opinion, we have examined the Charter of the Company, as amended to the date hereof and on file with the Maryland State Department of Assessments and Taxation; the Amended and Restated Bylaws of the Company; such records of corporate proceedings of the Company as we deem appropriate for the purposes of this opinion; and the Registration Statement and the exhibits thereto. We express no opinion concerning the laws of any jurisdictions other than the laws of the United States of America and The Commonwealth of Massachusetts and the Maryland General Corporation Law. Based upon the foregoing, we are of the opinion that, when specifically authorized for issuance by the Company's Board of Directors or an authorized committee thereof (the "Authorizing Resolution") and when issued as described in the Registration Statement and a Avalon Properties, Inc. December 4, 1997 Page 2 Prospectus Supplement that is consistent with the Authorizing Resolution, and upon receipt by the Company of the consideration provided for in the Authorizing Resolution (which consideration is not less than the $.01 par value per share in the case of Common Shares or Preferred Shares), the Securities will be legally issued, fully paid and nonassessable, and in the case of Debt Securities and Warrants binding obligations of the Company. The foregoing assumes that all requisite steps will be taken to comply with the requirements of the Securities Act and applicable requirements of state laws regulating the offer and sale of securities. We hereby consent to being named as counsel to the Company in the Registration Statement, to the references therein to our firm under the caption "Legal Matters" and to the inclusion of this opinion as an exhibit to the Registration Statement. Very truly yours, GOODWIN, PROCTER & HOAR LLP EX-8.1 3 OPINION OF GOODWIN PROCTER & HOAR LLP [LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP] Exhibit 8.1 December 4, 1997 Avalon Properties, Inc. 15 River Road Wilton, CT 06897 Ladies and Gentlemen: These opinions are delivered to you in our capacity as counsel to Avalon Properties, Inc. (the "Company") in connection with a post-effective amendment to the Form S-3 Registration Statement, File No. 333-22281 (the "Registration Statement") filed today by the Company with the Securities and Exchange Commission pursuant to Rule 462(b) under the Securities Act of 1933, as amended, relating to up to $21,000,000 of the Company's Debt Securities, Preferred Stock, Common Stock and Warrants registered pursuant to Rule 462(b). These opinions relate to the Company's qualification for federal income tax purposes as a real estate investment trust (a "REIT") under the Internal Revenue Code of l986, as amended (the "Code"), for taxable years commencing with the Company's taxable year ending December 31, l993. In rendering the following opinions, we have examined the Articles of Incorporation and Bylaws of the Company and such other records, certificates and documents as we have deemed necessary or appropriate for purposes of rendering the opinions set forth herein. We have reviewed the Registration Statement and the descriptions set forth therein of the Company and its investments and activities. We have relied upon the representations of officers of the Company that the Company has been and will be owned and operated in such a manner that the Company has and will continue to satisfy the requirements for qualification as a REIT under the Code. We have neither independently investigated nor verified such representations, and we assume that such representations are true, correct and complete, and that all representations made "to the best knowledge and belief of any person(s) or party(ies) are and will be true, correct and complete as if made without such qualification. We assume that the Company has been and will be operated in accordance with applicable laws and the terms and conditions of applicable documents. In addition, we have relied on certain additional facts and assumptions described below. Avalon Properties, Inc. December 4, 1997 Page 2 In rendering the opinions set forth herein, we have assumed (i) the genuineness of all signatures on documents we have examined, (ii) the authenticity of all documents submitted to us as originals, (iii) the conformity to the original documents of all documents submitted to us as copies, (iv) the conformity of final documents to all documents submitted to us as drafts, (v) the authority and capacity of the individual or individuals who executed any such documents on behalf of any person, (vi) the accuracy and completeness of all records made available to us and (vii) the factual accuracy of all representations, warranties and other statements made by all parties. We have also assumed, without investigation, that all documents, certificates, representations, warranties and covenants on which we have relied in rendering the opinions set forth below and that were given or dated earlier than the date of this letter continue to remain accurate, insofar as relevant to the opinions set forth herein, from such earlier date through and including the date of this letter. The conclusions set forth below are based upon the Code, the Income Tax Regulations and Procedure and Administration Regulations promulgated thereunder and existing administrative and judicial interpretations thereof, all of which are subject to change. No assurance can therefore be given that the federal income tax consequences described below will not be altered in the future. Based upon and subject to the foregoing, we are of the opinion that (i) commencing with the Company's taxable year ending December 31, 1993, the Company has been organized in conforming with the requirements for qualification as a real estate investment trut under the Code, (ii) the form of organization of the Company, its operations through the date hereof and its proposed operations for future periods, are such as to enable the Company to qualify as a REIT under the Code for subsequent taxable years provided that in each such year the Company meets the applicable asset composition, source of income, shareholder diversification, distribution, recordkeeping and other requirements of the Code necessary for a corporation to qualify as a REIT, and (iii) the statements in the Registration Statement set forth under the caption "Federal Income Tax Considerations," to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by us and are accurate in all respects. We express no opinion with respect to the transactions described herein and in the Registration Statement other than those expressly set forth herein. You should recognize that our opinions are not binding on the Internal Revenue Service ("the IRS") and that the IRS may disagree with the opinions contained herein. Although we believe that our opinions will be sustained if challenged, there can be no assurance that this will be the case. Except as specifically discussed above, the opinions expressed herein are based upon the law as it currently exists. Consequently, future changes in the law may cause the federal income tax treatment of the transactions described herein to be materially and adversely different from that described above. Avalon Properties, Inc. December 4, 1997 Page 3 We consent to being named as Counsel to the Company in the Registration Statement, to the references in the Registration Statement to our firm and to the inclusion of this opinion letter as an exhibit to the Registration Statement. Very truly yours, Goodwin, Procter & Hoar LLP EX-12.1 4 STATEMENTS RE: COMPUTATION OF RATIOS EXHIBIT 12.1 AVALON PROPERTIES, INC. COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
For nine months ended For the year ended September 30, 1997 December 31, 1996 ---------------------- ------------------ Net income (loss) before extraordinary items and gain on sale of communities $47,301,000 $46,157,000 Add: Portion of rents representative of the interest factor 129,018 150,083 Interest on indebtedness 11,850,000 9,545,000 Amortization of deferred financing costs 712,000 1,842,000 Preferred stock dividends 14,742,000 10,422,000 ----------- ----------- Adjusted net income $74,734,018 $68,116,083 =========== =========== Fixed Charges: Interest on indebtedness $11,850,000 $ 9,545,000 Capitalized interest 7,092,000 12,883,000 Amortization of deferred financing costs 712,000 1,842,000 Portion of rents representative of the interest factor 129,018 150,083 Preferred stock dividends 14,742,000 10,422,000 ----------- ----------- Total fixed charges $34,525,018 $34,842,083 =========== =========== Ratio of earnings to combined fixed charges 2.16 1.95 Year ended December 31, --------------------------------------------------------------------------- 1993 ---- 1995 1994 11/18-12/31 1/1-11/17 1992 ---- ---- ----------- --------- ---- Net income (loss) before extraordinary items and gain on sale of communities $32,095,000 $28,016,000 $2,783,000 $(5,774,000) $(6,798,000) Add: Portion of rents representative of the interest factor 117,248 67,593 8,048 62,812 40,418 Interest on indebtedness 11,056,000 5,687,000 632,000 24,557,000 23,092,000 Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291 Preferred stock dividends - - - - - --------------------------------------------------------------------------- Adjusted net income $45,137,248 $34,861,186 $3,543,388 $19,550,101 $17,230,709 =========================================================================== Fixed Charges: Interest on indebtedness $11,056,000 $ 5,687,000 $ 632,000 $24,557,000 $23,092,000 Capitalized interest 6,004,502 2,831,000 317,000 1,585,000 2,600,000 Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291 Portion of rents representative of the interest factor 117,248 67,593 8,048 62,812 40,418 Preferred stock dividends - - - - - --------------------------------------------------------------------------- Total fixed charges $19,046,750 $ 9,676,186 $1,077,388 $26,909,101 $26,628,709 =========================================================================== Ratio of earnings to combined fixed charges 2.37 3.60 3.29 0.73 0.65
AVALON PROPERTIES, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
For nine months ended For the year ended September 30, 1997 December 31, 1996 ---------------------- ------------------ Net income (loss) before extraordinary items and gain on sale of communities $47,301,000 $46,157,000 Add: Portion of rents representative of the interest factor 129,018 150,083 Interest on indebtedness 11,850,000 9,545,000 Amortization of deferred financing costs 712,000 1,842,000 ----------- ----------- Adjusted net income $59,992,018 $57,694,083 =========== =========== Fixed Charges: Interest on indebtedness $11,850,000 $ 9,545,000 Capitalized interest 7,092,000 12,883,000 Amortization of deferred financing costs 712,000 1,842,000 Portion of rents representative of the interest factor 129,018 150,083 ----------- ----------- Total fixed charges $19,783,018 $24,420,083 =========== =========== Ratio of earnings to combined fixed charges 3.03 2.36 Year ended December 31, --------------------------------------------------------------------------- 1993 ---- 1995 1994 11/18-12/31 1/1-11/17 1992 ---- ---- ----------- --------- ---- Net income (loss) before extraordinary items and gain on sale of communities $32,095,000 $28,016,000 $2,783,000 $(5,774,000) $(6,798,000) Add: Portion of rents representative of the interest factor 117,248 67,593 8,048 62,812 40,418 Interest on indebtedness 11,056,000 5,687,000 632,000 24,557,000 23,092,000 Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291 --------------------------------------------------------------------------- Adjusted net income $45,137,248 $34,861,186 $3,543,388 $19,550,101 $17,230,709 =========================================================================== Fixed Charges: Interest on indebtedness $11,056,000 $ 5,687,000 $ 632,000 $24,557,000 $23,092,000 Capitalized interest 6,004,502 2,831,000 317,000 1,585,000 2,600,000 Amortization of deferred financing costs 1,869,000 1,090,593 120,340 704,289 896,291 Portion of rents representative of the interest factor 117,248 67,593 8,048 62,812 40,418 --------------------------------------------------------------------------- Total fixed charges $19,046,750 $ 9,676,186 $1,077,388 $26,909,101 $26,628,709 =========================================================================== Ratio of earnings to combined fixed charges 2.37 3.60 3.29 0.73 0.65
EX-23.1 5 CONSENTS OF COOPERS & LYBRAND L.L.P. Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this post-effective amendment to the registration statement on Form S-3, File No. 333-22281, of (i) our report dated January 16, 1997 on our audits of the consolidated financial statements and financial statement schedule of Avalon Properties, Inc. as of December 31, 1996 and 1995, and for each of the three years ended December 31, 1996 and (ii) our reports dated September 22, 1997 and November 20, 1997 on our audits of the combined statements of revenue and certain operating expenses of the Acquired Communities for the year ended December 31, 1996. In addition, we consent to the reference to our Firm under the caption "experts." /s/ Coopers & Lybrand L.L.P. Coopers & Lybrand L.L.P. New York, New York December 4, 1997 -----END PRIVACY-ENHANCED MESSAGE-----