As filed with the Securities and Exchange Commission on July 6, 2005.
File No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BNP RESIDENTIAL PROPERTIES, INC.
(Exact Name of Issuer as Specified in its Charter)
Maryland 56-1574675
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
301 S. College Street, Suite 3850
Charlotte, North Carolina 28202
Telephone: (704) 944-0100
(Address, including zip code, and telephone number of
Principal Executive Offices)
Amended and Restated 1994 Stock Option and Incentive Plan
(Full Title of the Plan)
With Copies to:
Eric S. Rohm Robert H. Bergdolt, Esq.
Vice President, General Counsel and Secretary DLA Piper Rudnick Gray Cary US LLP
BNP Residential Properties, Inc. 4700 Six Forks Road, Suite 200
301 S. College Street, Suite 3850 Raleigh, North Carolina 27609
Charlotte, North Carolina 28202 (919) 786-2000
(704) 944-0100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Title of Shares Amount To Be Maximum Offering Aggregate Offering Amount of
To Be Registered Registered Price Per Share (2) Price (2) Registration Fee (2)
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Common Shares of Beneficial 690,000 (1) $16.00 $11,040,000 $1,300
Interest, par value $0.01 per
share
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(1) Plus such additional number of shares as may be required by reason of the
anti-dilution provisions of the Amended and Restated 1994 Stock Option and
Incentive Plan. An aggregate of 1,260,000 shares of common stock may be offered
or issued pursuant to the Amended and Restated 1994 Stock Option and Incentive
Plan, 570,000 of which were previously registered on Form S-8 (File No.
333-119623) and 690,000 of which are registered on this Form S-8.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h) of the Securities Act of 1933. The proposed maximum
offering price per share, proposed maximum aggregate offering price and the
amount of the registration fee are based on the average of the high and low
prices of BNP Residential Properties, Inc.'s common stock as reported on the
American Stock Exchange on July 1, 2005.
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PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(a) The documents constituting Part I of this Registration Statement will
be sent or given to participants in the Plan as specified by Rule 428(b)(1)
under the Securities Act of 1933, as amended.
(b) Upon written or oral request, the Company will provide, without charge,
the documents incorporated by reference in Item 3 of Part II of this
Registration Statement. The documents are incorporated by reference in the
Section 10(a) prospectus. The Company will also provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b). Requests for the above-mentioned information should be
directed to Eric S. Rohm at the address and telephone number on the cover of
this Registration Statement.
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") are incorporated herein by reference and are deemed to be a
part hereof from the date of the filing of such documents:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004;
(2) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2004;
(3) The description of Common Stock contained in the Company's Registration
Statement filed under Section 12 of the Exchange Act, including all amendments
or reports filed for the purpose of updating such description; and
(4) All other documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment to this Registration Statement that indicates that all
securities offered have been sold or that deregisters all securities that remain
unsold.
Any statement contained in a document incorporated or deemed incorporated
herein by reference shall be deemed to be modified or superseded for the purpose
of this Registration Statement to the extent that a statement contained herein
or in any subsequently filed document which also is, or is deemed to be,
incorporated herein by reference modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel. Not applicable.
Item 6. Indemnification of Directors and Officers.
Maryland corporation law and our charter exculpate each director and
officer in actions by the company or by stockholders in derivative actions from
liability unless the director or officer has received an improper personal
benefit in money, property or service or he has acted dishonestly, as
established by a final judgment of a court.
Our charter also provides that the company will indemnify a present or
former director or officer against expense or liability in an action to the
fullest extent permitted by Maryland law. Maryland law permits a corporation to
indemnify its present and former directors and officers, among others, against
judgments, penalties, fines, settlements and reasonable expenses they incur in
connection with any proceeding to which they are a party because of their
service as an officer, director or other similar capacity. However, Maryland law
prohibits indemnification if a court establishes that: (i) the act or omission
of the director or officer 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) the director or officer actually received an
improper personal benefit in money, property or services; or (iii) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. The exculpation and
indemnification provisions in the charter have been adopted to help induce
qualified individuals to agree to serve on behalf of the company by providing a
degree of protection from liability for alleged mistakes in making decisions and
taking actions. You should be aware, however, that these provisions in our
charter and Maryland law give you a more limited right of action than you
otherwise would have in the absence of such provisions. We also maintain a
policy of directors and officers liability insurance covering certain
liabilities incurred by our directors and officers in connection with the
performance of their duties.
Item 7. Exemption from Registration Claimed. Not applicable.
Item 8. Exhibits.
See Exhibit Index, which is incorporated here by reference.
Item 9. Undertakings.
(a) The undersigned Company 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
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effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement. Notwithstanding
the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change in such information in the registration
statement.
Provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) above do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned issuer hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to Item 6 of this Part II, or otherwise, the Company has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling
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person in connection with the securities being registered, the Company will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(signatures on following page)
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on the 6th day of
July, 2005.
BNP RESIDENTIAL PROPERTIES, INC.
/s/ D. Scott Wilkerson
D. Scott Wilkerson
President and Chief Executive Officer
POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned
officers and directors of BNP Residential Properties, Inc. hereby severally
constitute D. Scott Wilkerson and Philip S. Payne, and each of them singly, our
true and lawful attorney with full power to them, and each of them singly, to
sign for us and in our names in the capacities indicated below, the registration
statement filed herewith and any and all amendments to said registration
statement, and generally to do all such things in our names and our capacities
as officers and directors to enable BNP Residential Properties, Inc. to comply
with the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signature as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
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/ Philip S. Payne Chairman of the Board, Director and July 6, 2005
Philip S. Payne Chief Financial Officer
/s/ D. Scott Wilkerson President and Chief Executive Officer July 6, 2005
D. Scott Wilkerson and Director
/s/ Stephen R. Blank Director July 6, 2005
Stephen R. Blank
/s/ Paul G. Chrysson Director July 6, 2005
Paul G. Chrysson
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Name Title Date
/s/ W. Michael Gilley Director July 6, 2005
W. Michael Gilley
/s/ Peter J. Weidhorn Director July 6, 2005
Peter J. Weidhorn
/s/ Pamela B. Bruno Vice-President, Treasurer and Chief July 6, 2005
Pamela B. Bruno Accounting Officer
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit No. Description
4.1* Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Current Report on Form 8-K filed by the Company on March 23,
1999)
4.2* Articles Supplementary Classifying and Designating 909,090
Shares of the Series B Cumulative Convertible Preferred
Stock (incorporated by reference from Exhibit 3.1 to the
Company's Current Report on Form 8-K filed by the Company
on January 11, 2002)
4.3* Amended and Restated By-laws of the Company (incorporated by
reference from Exhibit 3.1 to the Company's Current
Report on Form 8-K filed by the Company on July 14, 2004)
5 Opinion of DLA Piper Rudnick Gray Cary US LLP
23.1 Consent of DLA Piper Rudnick Gray Cary US LLP (included in
Exhibit 5)
23.2 Consent of Ernst & Young LLP, an independent registered
public accounting firm
23.3 Consent of Ernst & Young LLP, an independent auditor
23.4 Consent of Reznick Fedder & Silverman, an independent auditor
23.5 Consent of Sharrard, McGee & Co., P.A., an independent auditor
24 Power of Attorney (included as part of signature page)
99.1* Amended and Restated 1994 Stock Option and Incentive Plan
(incorporated by reference from Exhibit 10.1 to the Company's
Current Report on Form 8-K filed by the Company on May 31,
2005)
* incorporated herein by reference
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