S-3: Registration statement under Securities Act of 1933
Published on
As filed with the Securities and Exchange Commission on February 25, 1999
Registration No. 333-
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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:
William C. Hermann, Esq.
Rosenberg & Liebentritt, P.C.
Two North Riverside Plaza, Suite 1600
Chicago, Illinois 60606
(312) 466-3612
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. / /
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.
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(footnote from previous page)
(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 February 19, 1999.
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 FEBRUARY 25, 1999
PROSPECTUS
1,262,264 SHARES
EQUITY RESIDENTIAL PROPERTIES TRUST
COMMON SHARES OF BENEFICIAL INTEREST
The persons listed below, who may become shareholders of Equity
Residential Properties Trust, may offer and sell from time to time up to
1,262,264 of our common shares of beneficial interest under this prospectus.
In this prospectus we refer to these persons as the selling shareholders. We
may issue up to 1,262,264 common shares to the selling shareholders, upon
their request, in exchange for their 1,262,264 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. We will
receive no proceeds from any sale of common shares by a selling shareholder.
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.
The common shares are listed on the New York Stock Exchange under the
symbol "EQR".
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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.
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The date of this prospectus is February __, 1999.
TABLE OF CONTENTS
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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 Current Report on Form 8-K dated
February 24, 1999, 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 Section of the Commission at Room 1024,
450 Fifth Street, N.W., 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, 1997, as
amended.
b. Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998.
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.
d. Second Amended and Restated Bylaws (the "Bylaws"), filed as Exhibit
3.2 to our Current Report on Form 8-K, dated May 30, 1997.
e. Definitive Proxy Statement relating to our Annual Meeting of
Shareholders dated March 30, 1998.
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f. Joint Proxy Statement/Prospectus dated April 25, 1997.
g. Joint Proxy Statement/Prospectus/Information Statement dated
September 14, 1998.
h. Description of our common shares contained in our registration
statement on Form 8-A/A dated August 10, 1993.
i. Description of certain risk factors relating to an investment in our
securities contained in our Current Report on Form 8-K dated
February 24, 1999.
j. Current Reports on Form 8-K dated March 12, 1997, March 17, 1997,
May 20, 1997, August 15, 1997, September 10, 1997, September 17, 1997,
October 9, 1997, December 23, 1997, June 25, 1998, July 8, 1998,
July 23, 1998, August 11, 1998 and October 19, 1998, and our Current
Reports on Form 8-K/A dated October 9, 1997 and July 23, 1998.
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).
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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 its 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. 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.
SELLING SHAREHOLDERS
We may issue up to 1,262,264 of common shares to the selling
shareholders who currently hold 1,262,264 units of limited partnership
interest in our operating partnership, if and to the extent that the selling
shareholders 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. The
following table provides the name of each selling shareholder, the number of
common shares to be owned upon exchange of such 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. Assuming the redemption of all units of limited
partnership held 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. 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. There is no assurance that the selling
shareholders will sell any of the offered common shares. The common shares
covered by this prospectus represent approximately 0.96% of the total common
shares (assuming exchange of all outstanding units of limited partnership
interest for common shares) outstanding as of January 31, 1999.
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(1) Does not include 23,378 shares that may be owned upon an exchange of units
by the J. Ronald Terwilliger Grantor Trust, of which Mr. Terwilliger is the
trustee, or 14,245 shares that may be owned upon an exchange of units by
JRT Holdings, Inc., of which Mr. Terwilliger is the President. Also does
not include an aggregate of 129,381 shares that may be owned upon an
exchange of units by any of Plum Tree Limited Partnership, TCR-Plum Tree
Phase III Limited Partnership, TCR-Brookfield Limited Partnership, TCR-
Ravinia Limited Partnership, TCR-Bloomingdale Limited Partnership, TCR-
Carlson Lakes Limited Partnership or TCR-Glenlake Club Limited Partnership,
of which Mr. Terwilliger is the President of the general partner.
(2) The general partner of both TCF Residential Partnership, Ltd. and Plum Tree
Limited Partnership is Mill Spring Holdings, Inc. The general partner of
CFP Residential, L.P. is Crow Family, Inc. Harlan R. Crow is the Chief
Executive Officer of each of Mill Spring Holdings, Inc. and Crow Family,
Inc.
(3) Does not include 8,796 shares that may be owned upon an exchange of units
by LWW Holdings, Inc. Leonard W. Wood is the President of each of the
general partner of the Leonard W. Wood Family Limited Partnership and LWW
Holdings, Inc.
(4) Does not include 142,139 shares that may be owned upon an exchange of units
by J. Ronald Terwilliger, who is the trustee of the J. Ronald Terwilliger
Grantor Trust.
(5) Does not include 142,139 shares that may be owned upon an exchange of units
by J. Ronald Terwilliger, who is the President of JRT Holdings, Inc.
(6) Does not include 87,705 shares that may be owned upon an exchange of units
by the Leonard W. Wood Family Limited Partnership. Leonard W. Wood is the
President of each of the general partner of the Leonard W. Wood Family
Partnership and LWW Holdings, Inc.
(7) Mr. Karpf has informed us that he also owns an additional 762 of our common
shares.
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FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following discussion summarizes all of the federal income tax
considerations material to a holder of common shares. It is not exhaustive
of all possible tax considerations. For example, it does not give a detailed
discussion of any state, local or foreign tax considerations. The following
discussion also does not address all tax matters that may be relevant to
prospective shareholders in light of their particular circumstances.
Moreover, it does not address all tax matters that may be relevant to
shareholders who are subject to special treatment under the tax laws, such as
insurance companies, tax-exempt entities, financial institutions or
broker-dealers, foreign corporations and persons who are not citizens or
residents of the United States. The specific tax attributes of a particular
shareholder could have a material impact on the tax considerations associated
with the purchase, ownership and disposition of common shares. Therefore, it
is essential that each prospective shareholder consult with his or her own
tax advisors with regard to the application of the federal income tax laws to
the shareholder's personal tax situation, as well as any tax consequences
arising under the laws of any state, local or foreign taxing jurisdiction.
OUR TAXATION
We elected REIT status beginning with the year that ended December 31,
1992. In any year in which we qualify as a REIT, we generally will not be
subject to federal income tax on the portion of our REIT taxable income or
capital gain that we distribute to our shareholders. This treatment
substantially eliminates the double taxation that applies to most
corporations, which pay a tax on their income and then distribute dividends
to shareholders who are in turn taxed on the amount they receive. However,
we will be subject to federal income tax at regular corporate rates upon our
REIT taxable income or capital gain that we do not distribute to our
shareholders. We also may be subject to the corporate "alternate minimum
tax" on items of preference under this alternative tax regime. In addition,
we will be subject to a 4% excise tax if we do not satisfy specific REIT
distribution requirements. Moreover, we may be subject to taxes in certain
situations and on certain transactions that we do not presently contemplate.
If we fail to qualify for taxation as a REIT in any taxable year, we
will be subject to tax on our taxable income at regular corporate rates. We
also may be subject to the corporate "alternate minimum tax." As a result,
our failure to qualify as a REIT would significantly reduce the cash we have
available to distribute to our shareholders. Unless entitled to statutory
relief, we would be disqualified from qualification as a REIT for the four
taxable years following the year during which qualification was lost. It is
not possible to state whether we would be entitled to statutory relief.
Our qualification and taxation as a REIT depend on our ability to
satisfy various requirements under the Internal Revenue Code. We are
required to satisfy these requirements on a continuing basis through actual
annual operating and other results. These requirements relate to the sources
of our gross income, the composition of our assets, the amount of dividends
we pay to shareholders, the diversity of our share ownership, and other
aspects of our operations. The purpose of these requirements is to allow the
tax benefit of REIT status only to companies that:
(i) primarily own, and primarily derive income from, real estate-related
assets and certain other assets which are passive in nature, and
(ii) distribute 95% of their taxable income, computed without regard
to net capital gain, to shareholders.
We believe that we have qualified as a REIT for all of our taxable years
beginning with 1992. We also believe that our current structure and method
of operation is such that we will continue to qualify as a REIT. However, we
cannot guarantee that the actual results of our operations have satisfied or
will satisfy the requirements under the Internal Revenue Code.
Hogan & Hartson L.L.P., our special tax counsel, has provided an opinion
to the effect that we were organized and have operated in conformity with the
requirements for qualification and taxation as a REIT under the Internal
Revenue Code for each of our taxable years beginning in 1992. The opinion
also provides that our current organization and method of operation should
enable us to continue to meet the requirements for qualification and taxation
as a REIT. It must be emphasized that the opinion is based on various
assumptions and factual representations relating to our organization and our
prior and expected operations. In each case, these representations include
representations about our predecessors. Hogan & Hartson L.L.P. will not
review our compliance with these requirements on a continuing basis.
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TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
GENERAL. If we qualify as a REIT, distributions made to our taxable
domestic shareholders with respect to their common shares, other than capital
gain distributions, will be treated as ordinary income to the extent that the
distributions come out of earnings and profits. These distributions will not
be eligible for the dividends received deduction for shareholders that are
corporations. In determining whether distributions are out of earnings and
profits, we will allocate our earnings and profits first to preferred shares
and second to the common shares. We cannot guarantee that we will have
sufficient earnings and profits to cover distributions on the preferred
shares.
Distributions made by us that we properly designate as capital gain
dividends will be taxable to taxable domestic shareholders as gain from the
sale or exchange of a capital asset held for more than one year. This
treatment applies only to the extent that the designated distributions do not
exceed our actual net capital gain for the taxable year. It applies
regardless of the period for which a domestic shareholder has held his or her
common shares. Despite this general rule, corporate shareholders may be
required to treat up to 20% of certain capital gain dividends as ordinary
income.
On November 10, 1997, the IRS issued IRS Notice 97-64, which provides
generally that we may classify portions of our designated capital gains
dividend as a 20% rate gain distribution, an unrecaptured Section 1250 gain
distribution, or a 28% rate gain distribution. If no designation is made,
the notice provides that the entire designated capital gain dividend will be
treated as a 28% rate gain distribution. As the names suggest, a 20% rate
gain distribution would be taxable to taxable domestic shareholders who are
individuals, estates or trusts at a maximum rate of 20% and a 28% rate gain
distribution would be taxable to taxable domestic shareholders who are
individuals, estates or trusts at a maximum rate of 28%. An unrecaptured
Section 1250 gain distribution would be taxable to taxable domestic
shareholders who are individuals, estates or trusts at a maximum rate of 25%.
On July 22, 1998, as part of the IRS Restructuring Act, the holding period
requirement for the application of the 20% and 25% capital gain tax rates was
reduced to 12 months from 18 months for sales of capital gain assets on or
after January 1, 1998. This change effectively eliminated the 28% capital
gain tax bracket. It is expected that the IRS will issue clarifying
guidance, most likely applying the same principles set forth in Notice 97-64,
regarding a REIT's designation of capital gain dividends in light of the new
holding period requirements.
If, for any taxable year, we elect to designate as capital gain
dividends any portion of the dividends paid or made available for the year to
holders of all classes of shares of beneficial interest, then the portion of
the capital gains dividends that will be allocable to the holders of common
shares will be the total capital gain dividends multiplied by a fraction.
The numerator of the fraction will be the total dividends paid or made
available to the holders of the common shares for the year. The denominator
of the fraction will be the total dividends paid or made available to holders
of all classes of shares of beneficial interest. To the extent we make
distributions in excess of earnings and profits, these distributions will be
treated first as a tax-free return of capital to the shareholder, reducing
the tax basis of a shareholder's common shares by the amount of the
distribution. Distributions in excess of the shareholder's tax basis taxable
will be treated as capital gains if the common shares are held as a capital
asset. In addition, any dividend we declare in October, November or December
of any year and payable to a shareholder of record on a specific date in one
of these months will be treated as both paid by us and received by the
shareholder on December 31 of that year, provided that we actually pay the
dividend during January of the following year. Shareholders may not include
in their individual income tax returns any of our net operating losses or
capital losses.
In general, a shareholder will recognize gain or loss for federal income
tax purposes on the sale or other disposition of common shares in an amount
equal to the difference between:
(i) the amount of cash and the fair market value of any property received
in the sale or other disposition, and
(ii) the shareholder's adjusted tax basis in the common shares.
The gain or loss will be capital gain or loss if the common shares were held
as a capital asset. Generally, the capital gain or loss will be long-term
capital gain or loss if the common shares were held for more than one year.
The Taxpayer Relief Act of 1997 allows the IRS to issue regulations relating
to the manner in which capital gain rates will apply to sales of capital
assets by REITs and to sales of interests in REITs. The IRS has not issued
these regulations. However, if the IRS does issue these regulations, they
could affect the taxation of gain and loss realized on the disposition of
common shares. Shareholders are urged to consult with their own tax advisors
with respect to the rules contained in the Taxpayer Relief Act.
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In general, a loss recognized by a shareholder upon the sale of common
shares that were held for six months or less, determined after applying
certain holding period rules, will be treated as long-term capital loss to
the extent that the shareholder received distributions that were treated as
long-term capital gains. For shareholders who are individuals, trusts and
estates, the long-term capital loss will be apportioned among the applicable
long-term capital gain rates to the extent that distributions received by the
shareholder were previously so treated.
We may elect to require shareholders to include our undistributed net
capital gains in their income. If we make this election, shareholders will
include in their income as long-term capital gains their proportionate share
of these gains. Shareholders will be treated as having paid their
proportionate share of the tax paid by us on these gains. Accordingly, they
will receive a credit or refund for the amount. Shareholders will increase
the basis in their common shares by the difference between the amount of
capital gain included in their income and the amount of the tax they are
treated as having paid. Our earnings and profits will be adjusted
appropriately.
TAXATION OF TAX-EXEMPT SHAREHOLDERS
Most tax-exempt organizations are not subject to federal income tax
except to the extent of their unrelated business taxable income, which is
often referred to as UBIT. Unless a tax-exempt shareholder holds its common
shares as debt financed property or uses the common shares in an unrelated
trade or business, distributions to the shareholder should not constitute
UBIT. Similarly, if a tax-exempt shareholder sells common shares, the income
from the sale should not constitute UBIT unless the shareholder held the
shares as debt financed property or used the shares in a trade or business.
However, for tax-exempt shareholders that are social clubs, voluntary
employee benefit associations, supplemental unemployment benefit trusts, and
qualified group legal services plans, income from owning or selling common
shares will constitute UBIT unless the organization is able to properly
deduct amounts set aside or placed in reserve so as to offset the income
generated by its investment in common shares. These shareholders should
consult their own tax advisors concerning these set aside and reserve
requirements which are set forth in the Internal Revenue Code.
In addition, certain pension trusts that own more than 10% of a
pension-held REIT must report a portion of the distributions that they
receive from the REIT as UBIT. We have not been and do not expect to be
treated as a pension-held REIT for purposes of this rule.
TAXATION OF FOREIGN SHAREHOLDERS
The following is a discussion of certain anticipated United States federal
income tax consequences of the ownership and disposition of common shares
applicable to a foreign shareholder. It is based on current law and is for
general information only. A "foreign shareholder" is any person other than:
(i) a citizen or resident of the United States,
(ii) a corporation or partnership created or organized in the United
States or under the laws of the United States or of any state
thereof, or
(iii) an estate or trust whose income is includable in gross income for
United States federal income tax purposes regardless of its source.
DISTRIBUTIONS BY US. Distributions by us to a foreign shareholder that
are neither attributable to gain from sales or exchanges by us of United
States real property interests nor designated by us as capital gains
dividends will be treated as dividends of ordinary income to the extent that
they are made out of our earnings and profits. These distributions
ordinarily will be subject to withholding of United States federal income tax
on a gross basis at a 30% rate, or a lower treaty rate, unless the dividends
are treated as effectively connected with the conduct by the foreign
shareholder of a United States trade or business. Please note that under
certain treaties lower withholding rates generally applicable to dividends do
not apply to dividends from REITs. Dividends that are effectively connected
with a United States trade or business will be subject to tax on a net basis
at graduated rates, and are generally not subject to withholding. Certification
and disclosure requirements must be satisfied before
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a dividend is exempt from withholding under this exemption. A foreign
shareholder that is a corporation also may be subject to an additional branch
profits tax at a 30% rate or a lower treaty rate.
We expect to withhold United States income tax at the rate of 30% on any
distributions made to a foreign shareholder unless:
(i) a lower treaty rate applies and any required form or certification
evidencing eligibility for that reduced rate is filed with us, or
(ii) the foreign shareholder files an IRS Form 4224 with us claiming that
the distribution is effectively connected income.
A distribution in excess of our current or accumulated earnings and profits
will not be taxable to a foreign shareholder to the extent that the distribution
does not exceed the adjusted basis of the shareholder's common shares. Instead,
the distribution will reduce the adjusted basis of the common shares. To the
extent that the distribution exceeds the adjusted basis of the common shares, it
will give rise to gain from the sale or exchange of the shareholder's common
shares. The tax treatment of this gain is described below.
As a result of a legislative change made by the Small Business Job
Protection Act of 1996, it appears that we will be required to withhold 10% of
any distribution in excess of our earnings and profits. Consequently, although
we intend to withhold at a rate of 30%, or a lower applicable treaty rate, on
the entire amount of any distribution, to the extent that we do not do so,
distributions will be subject to withholding at a rate of 10%. However, a
foreign shareholder may seek a refund of the withheld amount from the IRS if it
subsequently determined that the distribution was, in fact, in excess of our
earnings and profits, and the amount withheld exceeded the foreign shareholder's
United States tax liability with respect to the distribution.
Distributions to a foreign shareholder that we designate at the time of the
distributions as capital gain dividends, other than those arising from the
disposition of a United States real property interest, generally will not be
subject to United States federal income taxation unless:
(i) the investment in the common shares is effectively connected with the
foreign shareholder's United States trade or business, in which case
the foreign shareholder will be subject to the same treatment as
domestic shareholders, except that a shareholder that is a foreign
corporation may also be subject to the branch profits tax, as
discussed above, or
(ii) the foreign shareholder is a nonresident alien individual who is
present in the United States for 183 days or more during the taxable
year and has a "tax home" in the United States, in which case the
nonresident alien individual will be subject to a 30% tax on the
individual's capital gains.
Under the Foreign Investment in Real Property Tax Act, which is known as
FIRPTA, distributions to a foreign shareholder that are attributable to gain
from sales or exchanges of United States real property interests will cause the
foreign shareholder to be treated as recognizing the gain as income effectively
connected with a United States trade or business. This rule applies whether or
not a distribution is designated as a capital gain dividend. Accordingly,
foreign shareholders generally would be taxed on these distributions at the same
rates applicable to U.S. shareholders, subject to a special alternative minimum
tax in the case of nonresident alien individuals. In addition, a foreign
corporate shareholder might be subject to the branch profits tax discussed
above. We are required to withhold 35% of any these distributions. The
withheld amount can be credited against the foreign shareholder's United States
federal income tax liability.
Although the law is not entirely clear on the matter, it appears that
amounts we designate as undistributed capital gains in respect of the common
shares held by U.S. shareholders would be treated with respect to foreign
shareholders in the same manner as actual distributions of capital gain
dividends. Under that approach, foreign shareholders would be able to offset as
a credit against the United States federal income tax liability their
proportionate share of the tax paid by us on these undistributed capital gains.
In addition, foreign shareholders would be able to receive from the IRS a refund
to the extent their proportionate share of the tax paid by us were to exceed
their actual United States federal income tax liability.
11
SALES OF COMMON SHARES. Gain recognized by a foreign shareholder upon the
sale or exchange of common shares generally will not be subject to United States
taxation unless the shares constitute a "United States real property interest"
within the meaning of FIRPTA. The common shares will not constitute a United
States real property interest so long as we are a domestically controlled REIT.
A domestically controlled REIT is a REIT in which at all times during a
specified testing period less than 50% in value of its stock is held directly or
indirectly by foreign shareholders. We believes that we are a domestically
controlled REIT. Therefore, we believe that the sale of common shares will not
be subject to taxation under FIRPTA. However, because common shares and
preferred shares are publicly traded, we cannot guarantee that we will continue
to be a domestically controlled REIT. In any event, gain from the sale or
exchange of common shares not otherwise subject to FIRPTA will be taxable to a
foreign shareholder if either:
(i) the investment in the common shares is effectively connected with the
foreign shareholder's United States trade or business, in which case
the foreign shareholder will be subject to the same treatment as
domestic shareholders with respect to the gain, or
(ii) the foreign shareholder is a nonresident alien individual who is
present in the United States for 183 days or more during the taxable
year and has a tax home in the United States, in which case the
nonresident alien individual will be subject to a 30% tax on the
individual's capital gains.
Even if we do not qualify as or cease to be a domestically controlled REIT,
gain arising from the sale or exchange by a foreign shareholder of common shares
still would not be subject to United States taxation under FIRPTA as a sale of a
United States real property interest if:
(i) the class or series of shares being sold is "regularly traded," as
defined by applicable IRS regulations, on an established securities
market such as the New York Stock Exchange, and
(ii) the selling foreign shareholder owned 5% or less of the value of the
outstanding class or series of shares being sold throughout the five-
year period ending on the date of the sale or exchange.
If gain on the sale or exchange of common shares were subject to taxation
under FIRPTA, the foreign shareholder would be subject to regular United States
income tax with respect to the gain in the same manner as a taxable U.S.
shareholder, subject to any applicable alternative minimum tax, a special
alternative minimum tax in the case of nonresident alien individuals and the
possible application of the branch profits tax in the case of foreign
corporations. The purchaser of the common shares would be required to withhold
and remit to the IRS 10% of the purchase price.
OTHER TAX CONSIDERATIONS
CLINTON ADMINISTRATION PROPOSAL. The Clinton Administration's fiscal
year 2000 budget proposal was announced on February 1, 1999. One part of the
proposed budget would amend the tax rules relating to the composition of a
REIT's assets. Under current law, a REIT is precluded from owning more than
10% of the outstanding voting securities of any one issuer, other than a
wholly-owned subsidiary or another REIT. Under to the Clinton administration
proposal, a REIT would remain subject to the current restriction and would be
precluded from owning more than 10% of the VALUE of all classes of stock of
any covered issuer.
The Clinton proposal also contains an exception to both the 10% asset test
described above and a second REIT asset test which precludes any one issuer's
securities owned by a REIT to exceed 5% of the REIT's total assets. This
exception would allow a REIT to have "qualified independent contractor
subsidiaries," which could perform services for tenants and other customers that
a REIT currently cannot perform, and "qualified business subsidiaries," which
could undertake third-party management and development activities as well as
other non-real estate related activities. Collectively, these two types of
entities are called "taxable REIT subsidiaries." Under the proposal, no more
than 15% of a REIT's total assets could consist of taxable REIT subsidiaries and
no more than 5% of a REIT's total assets could consist of qualified independent
contractor subsidiaries. In addition, a taxable REIT subsidiary would not be
entitled to deduct any interest on debt funded directly or indirectly by the
REIT. If the proposal is enacted, a REIT could combine and convert existing
corporate subsidiaries into taxable REIT subsidiaries tax-free for a limited
period of time. After the effective date of the proposal and any applicable
transition period, the 10% vote or value test would apply to our corporate
subsidiaries, other than wholly owned corporate subsidiaries, that do not
12
convert into "taxable REIT subsidiaries." It is presently uncertain whether
this proposal, or any other proposal regarding REIT subsidiaries, will be
enacted.
OUR MANAGEMENT COMPANY SUBSIDIARIES. A portion of the cash to be used by
our operating partnership to fund distributions to us is expected to come from
payments of dividends on non-voting stock of management companies held by the
operating partnership. The management companies pay federal and state income
tax at the full applicable corporate rates. They will attempt to minimize the
amount of these taxes, but we cannot guarantee whether or the extent to which
measures taken to minimize these taxes will be successful. To the extent that
the management companies are required to pay taxes, the cash available for
distribution by us to shareholders will be reduced accordingly.
STATE AND LOCAL TAXES. We and our shareholders may be subject to state or
local taxation in various jurisdictions, including those in which it or they
transact business or reside. The state and local tax treatment of us and our
shareholders may not conform to the federal income tax consequences discussed
above. Consequently, prospective shareholders should consult their own tax
advisors regarding the effect of state and local tax laws on an investment in
common shares.
13
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 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 have agreed to pay all costs and expenses incurred in connection with
the registration under the Securities Act of the offered common shares,
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 appearing in our Annual Report on Form 10-K
for the year ended December 31, 1997, as amended by Form 10-K/A, at December
31, 1997 and 1996 and for each of the two years in the period ended December
31, 1997; the consolidated financial statements of Evans Withycombe
Residential, Inc. and its subsidiaries appearing in our Current Report on
Form 8-K, dated September 10, 1997; the consolidated financial statements of
Wellsford Residential Property Trust and its subsidiaries incorporated by
reference in our Joint Proxy Statement/Prospectus dated April 25, 1997; and
the Statements of Revenue and Certain Expenses of certain properties that were
14
acquired or were expected to be acquired in 1997 or 1998, appearing in our
Current Reports on Form 8-K or 8-K/A dated May 20, 1997, August 15, 1997,
September 17, 1997, October 9, 1997 and June 25, 1998; as set forth in their
reports which are incorporated in this prospectus by reference. Our
consolidated financial statements, the consolidated financial statements of
Evans Withycombe Residential, Inc. and Wellsford Residential Property Trust
and the statements of revenue and certain expenses are incorporated by
reference in reliance on their reports, given on their authority as experts
in accounting and auditing.
The consolidated financial statements of Merry Land & Investment Company,
Inc. appearing in our Current Report on Form 8-K, dated July 23, 1998 were
audited by Arthur Andersen LLP, independent public accountants, as indicated in
their report with respect thereto, and are incorporated in this Registration
Statement in reliance upon the authority of said firm as experts in accounting
and auditing.
Our consolidated financial statements appearing in our Annual Report (on
Form 10-K for the year ended December 31, 1997) for the year ended December 31,
1995 incorporated herein by reference have been audited by Grant Thornton LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated in this Registration Statement in reliance upon
the authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
The legality of the offered common shares has been passed upon for us by
Rosenberg & Liebentritt, P.C., Chicago, Illinois. Certain tax matters have been
passed upon by Hogan & Hartson L.L.P., our special tax counsel. Rosenberg &
Liebentritt, P.C. will rely on Hogan & Hartson L.L.P. as to certain matters of
Maryland law.
15
===============================================================================
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.
-----------------
1,262,264 SHARES
EQUITY RESIDENTIAL PROPERTIES TRUST
COMMON SHARES OF BENEFICIAL INTEREST
-----------------
PROSPECTUS
-----------------
FEBRUARY ___, 1999
===============================================================================
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.
___________
* 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 peson 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 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.
Insofar as indemnification for liabilities arising under 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 Securities and Exchange 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 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
____________________
* 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 as Exhibit 3.2 to the Company's Current Report on Form 8-K dated
May 30, 1997 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 (if the total dollar
value of Securities 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 herein, and the
offering of such Securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the Securities being registered which remain unsold at the termination of
the offering.
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 herein, 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.
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
February 25, 1999.
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 February 25, 1999:
II-4
EXHIBIT INDEX
____________________
* 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 as Exhibit 3.2 to the Company's Current Report on Form 8-K dated
May 30, 1997 and incorporated herein by reference.