As filed with the Securities and Exchange Commission on February 6, 2004
File No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BNP RESIDENTIAL PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Maryland 56-1574675
(State of incorporation) (I.R.S. Employer
Identification No.)
301 South College Street, Suite 3850
Charlotte, North Carolina 28202
(704) 944-0100
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
With Copies to:
Philip S. Payne, Chairman, Chief Robert H. Bergdolt, Esq.
Financial Officer and Treasurer Alston & Bird LLP
BNP Residential Properties, Inc. 3201 Beechleaf Court, Suite 600
301 South College Street, Suite 3850 Raleigh, North Carolina 27604
Charlotte, North Carolina 28202 (919) 862-2200
(704) 944-0100
(Address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.[X]
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. [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
Calculation of Registration Fee
---------------------- -------------------- --------------------- --------------------- ----------------------
Title of each class Proposed Proposed
of Amount to be maximum offering maximum aggregate Amount of
securities to be Registered price per unit offering price registration fee
registered
---------------------- -------------------- --------------------- --------------------- ----------------------
Common stock 1,000,000 $11.82 (1) $11,820,000 $1,497.59
---------------------- -------------------- --------------------- --------------------- ----------------------
(1) Calculated pursuant to Rule 457 (c) of the Securities Act of 1933, based on
the average of the high and low prices reported on the American Stock
Exchange on February 2, 2004.
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.
Prospectus
1,000,000 Shares Common Stock
BNP Residential Properties, Inc.
Dividend Reinvestment And Stock Purchase Plan
We offer you the opportunity to participate in our Dividend
Reinvestment and Stock Purchase Plan, or "DRIP." The DRIP, which we created in
1988 under the name "Automatic Dividend Reinvestment Service," provides a simple
and convenient method for our stockholders to invest cash dividends and optional
cash payments in shares of our common stock, without payment of any brokerage
commissions, fees, or service charges. If your shares are registered in your
name, you may enroll in the plan by simply completing and returning an
authorization card. If your shares are not registered in your name, for example,
if they are registered in the name of a brokerage firm or bank, you will need to
have the shares re-registered in your name before you can participate in the
plan, or you can request that the brokerage firm or bank join the DRIP.
You may purchase shares of common stock by:
o having the cash dividends on all or part of your shares of
common stock automatically reinvested;
o receiving directly, as usual, cash dividends, if and when
declared, on your shares of common stock and investing in the
DRIP by making optional cash payments of $25 to $25,000 per
calendar quarter; or
o investing both your cash dividends and your optional cash
payments.
You may participate in the DRIP by completing an authorization card and
returning it to Wachovia Bank, N. A., Shareholder Services, 1525 West W. T.
Harris Boulevard - 3C3, Charlotte, North Carolina, 28288-1153. Stockholders who
are participants in the DRIP may terminate their participation at any time.
Stockholders who are not participants in the DRIP and who do not want to become
participants need do nothing and will continue to receive their cash dividends,
if and when declared, as usual.
Neither the SEC nor any state securities commission has approved or disapproved
of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
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The date of this Prospectus is February 6, 2004.
Table of Contents
Where You Can Find More Information.........................................3
Incorporation of Certain Documents by Reference.............................3
Description of the DRIP.....................................................5
Purpose..................................................................5
Advantages to Participants...............................................5
Administration...........................................................6
Participation............................................................6
Costs....................................................................8
Purchases................................................................9
Reports to Participants.................................................11
Dividends...............................................................11
Certificates for Shares.................................................11
Sale or Other Disposition of DRIP Shares................................12
Withdrawal of Shares in DRIP Accounts...................................13
Termination of Participation............................................13
Tax Consequences of Participation in the DRIP...........................14
Other Information.......................................................15
Resale Restrictions.....................................................17
Limitations on Participation............................................17
Use of Proceeds............................................................17
Common Stock...............................................................18
Common Stock Price.........................................................18
Commission Position on Indemnification for Securities Act Liabilities......18
Experts....................................................................19
Legal Matters..............................................................19
Where You Can Find More Information
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy the reports, statements or
other information we file at the SEC's Public Reference Room at 450 Fifth
Street, N.W., in Washington, D.C. 20549. You can request copies of these
documents, upon payment of photocopying fees, by writing to the SEC. Please call
the SEC at 1-800-SEC-0330 for further information on the operation of the Public
Reference Room. In addition, the SEC maintains an Internet site
(http://www.sec.gov) that contains reports, proxy and information statements and
other information regarding issuers like the company that file electronically.
These documents are also available for viewing at the offices of the American
Stock Exchange in New York. For more information, you may call the viewing room
of the American Stock Exchange at (212) 306-1292.
We filed with the Commission a registration statement on Form S-3 under
the Securities Act of 1933 with respect to the common stock we are selling under
the DRIP. This prospectus, which is a part of the registration statement, does
not contain all of the information in the registration statement and in the
exhibits and schedules to the registration statement. For further information
with respect to our company and the common stock, you should read the
registration statement, exhibits, and schedules. You may obtain the registration
statement as indicated in the preceding paragraph. Any statements contained in
this prospectus concerning a provision of any document are not necessarily
complete, and, in each instance, we refer you to the copy of such document filed
as an exhibit to the registration statement or otherwise filed with the SEC.
Each such statement is qualified in its entirety by such reference.
Incorporation of Certain Documents by Reference
We have filed the following documents with the SEC pursuant to the
Exchange Act and incorporate them by reference into this prospectus:
o Our Annual Report on Form 10-K for the year ended December 31,
2002;
o Our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003, June 30, 2003, and September 30, 2003;
o Our Current Reports on Form 8-K (not including information
furnished under Item 9, which information is not incorporated
by reference in this prospectus) dated March 13, 2003, dated
June 27, 2003, dated August 28, 2003, dated September 5, 2003,
and dated January 12, 2004; and
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o The description of our common stock included in our
registration statement on Form 8-A dated April 27, 1987.
All documents we file with the SEC pursuant to Sections 13(a) and 13(c)
of the Exchange Act, any definitive proxy statements we file pursuant to Section
14 of the Exchange Act, and any reports we file pursuant to Section 15(d) of the
Exchange Act after the date of this prospectus and before the termination of the
offering of the common stock to which this prospectus relates shall be deemed to
be incorporated by reference into this prospectus and to be a part of it from
the date of filing of such documents. Any statement contained in a document
incorporated by reference into this prospectus shall be deemed to be modified or
superseded for the purposes of this prospectus to the extent that a statement
contained herein or in any other subsequently filed document that is
incorporated by reference into this prospectus modifies or supersedes such
earlier statement. Any such statements modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We will furnish without charge to each person, including any beneficial
owner, to whom a copy of this prospectus is delivered, copies of any or all of
the documents specifically incorporated into this prospectus by reference (not
including the exhibits to such documents, unless such exhibits are specifically
incorporated by reference in such documents). To obtain such copies, please make
a written or oral request to: BNP Residential Properties, Inc., 301 S. College
Street, Suite 3850, Charlotte, NC 28202-6024, Attn: Investor Relations.
BNP Residential Properties, Inc.
We are a self-administered and self-managed real estate investment
trust with operations in North Carolina, South Carolina, and Virginia. Our
primary activity is the ownership and operation of apartment communities. As of
the date of this prospectus, we manage 28 multi-family communities containing
6,920 units. Of these, we own 20 apartment communities containing 4,859 units.
Third parties own the remaining eight communities, containing 2,061 units, and
we manage them on a contract basis. In addition to our apartment communities, we
own 40 restaurant properties that we lease to a third party under a master lease
on a triple-net basis.
We are structured as an UpREIT, or umbrella partnership real estate
investment trust. The company is the sole general partner and owns a controlling
interest in BNP Residential Properties Limited Partnership, through which we
conduct all of our operations. We refer to this partnership as the Operating
Partnership. We refer to the limited partners of the Operating Partnership as
minority unitholders or as the minority interest.
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Description of the DRIP
The terms of our DRIP are set forth below in question and answer format.
Purpose
1. What is the purpose of the DRIP?
The purpose of the DRIP is to provide holders of our common stock with
a simple and convenient method of investing cash dividends or optional cash
payments in shares of common stock, without paying any brokerage commissions,
fees, or service charges. Shares of common stock purchased under the DRIP will
either be original issue shares or shares purchased in the open market by the
DRIP administrator, Wachovia Bank, N. A. The DRIP accordingly has the added
benefit of providing us with additional funds for general corporate purposes
when we elect to sell shares of our common stock under the DRIP.
Advantages to Participants
2. What are the options available to stockholders?
You may purchase shares of common stock by:
o having the cash dividends on all or part of your shares of
common stock automatically reinvested;
o receiving directly, as usual, cash dividends, if and when
declared, on your shares of common stock and investing in the
DRIP by making optional cash payments of $25 to $25,000 per
calendar quarter; or
o investing both your cash dividends and your optional cash
payments.
Beneficial owners of common stock whose shares are registered in names
other than their own also may utilize these options by having the shares they
wish to enroll in the DRIP transferred to their own name or arranging for the
holder of record to join the DRIP on such beneficial owners' behalf.
3. What are the advantages of the DRIP?
Participants do not pay any brokerage commissions, fees or service
charges in connection with purchases under the DRIP. However, if shares are
registered in the name of a nominee or broker, such nominee or broker may charge
a commission or fee. Full investment of dividends is possible under the DRIP
because the DRIP permits fractions of shares, as well as whole shares, to be
purchased and credited to your account. Regular
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statements of account provide simplified record keeping. In addition, the free
custodial services provided in connection with the DRIP serve to protect against
loss, theft or destruction of certificates. At a Participant's request, the DRIP
administrator will also hold certificates representing shares for which a
Participant has elected dividend reinvestment.
Administration
4. Who administers the DRIP?
Wachovia Bank, N. A., or such other bank or trust company as we may
from time to time designate as DRIP administrator, administers the DRIP for
participants, keeping records, sending statements of account to participants and
performing other duties relating to the DRIP. Shares of common stock purchased
under the DRIP are held by the DRIP administrator as agent for you and are
registered in the name of the DRIP administrator or its nominee, unless and
until you request that a stock certificate for your shares be issued as
described in Question 17, or otherwise terminate your participation in the DRIP
as described in Question 20.
We have directed the DRIP administrator to process all purchases and
sales for the DRIP through Wachovia Securities. Wachovia Securities has agreed
to process all purchases and sales of stock for the DRIP on a non-profit basis
and will charge fees only to the extent necessary to cover its cost in effecting
the trade. In addition, no minimum fee will be applied to any transaction.
You should address any questions or correspondence for the administrator to:
Wachovia Bank, N. A.
Shareholder Services
1525 West W. T. Harris Boulevard - 3C3
Charlotte, North Carolina 28288-1153
(800) 829-8432
Participation
5. Who is eligible to participate?
Any person or entity currently a registered holder of our common stock
is eligible to participate in the DRIP. In order to be eligible to participate,
beneficial owners of shares of common stock whose shares are registered in names
other than their own (for example, shares registered in the name of a broker,
bank nominee or trustee) must either have the shares they wish to enroll in the
DRIP transferred to their own names or arrange for the holder of record to join
the DRIP.
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6. How do I participate in the DRIP?
You may join the DRIP by completing and signing an authorization card
and returning it to the DRIP administrator. When completing the authorization
card, you should be careful to include your social security number or taxpayer
identification number. Failure to supply this information will result in backup
withholding of 28% of payments owed to you. Once enrolled in the DRIP, you will
continue to be enrolled without further action on your part.
You may change your investment options at any time by completing,
signing and returning to the DRIP administrator a new authorization card. If
your shares are registered in more than one name (e.g., joint tenants, trustees,
etc.), all registered owners must sign the authorization card exactly as their
names appear on the account registration.
Additional authorization cards and additional copies of this prospectus
may be obtained at any time by written request to the DRIP administrator at the
address set forth in Question 4 above.
7. When may I join the DRIP?
You may join the DRIP at any time.
If you elect to reinvest your dividends, dividend reinvestment
commences with the first dividend paid after you join the DRIP, provided that
the DRIP administrator receives an authorization card for you before the record
date for such dividend. If you deliver an authorization card specifying
reinvestment of dividends to the DRIP administrator on or after the record date
established for payment of a particular dividend on the common stock,
reinvestment will commence with the dividend payment date following the next
record date.
See Question 13 below for information concerning the investment of
optional cash payments.
8. What does the authorization card say about dividends and optional cash
payments?
The authorization card allows you to decide the extent to which you wish to
participate in the DRIP through any of the following investment options:
Full Dividend Reinvestment. If you check the "Full Dividend
Reinvestment" box, the DRIP administrator will purchase additional shares of
common stock for your account using:
o cash dividends on all shares of common stock registered in
your name;
o cash dividends on any shares of common stock credited to your
DRIP account; and
o any optional cash payments received from you.
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Partial Dividend Reinvestment. If you check the "Partial Dividend
Reinvestment" box, the DRIP administrator will purchase additional shares of
common stock for your account using:
o cash dividends on such number of shares of common stock
registered in your name as you specify on the authorization
card;
o cash dividends on all shares of common stock credited to your
DRIP account; and
o any optional cash payments received from you.
Optional Cash Payments Only. If you check the "Optional Cash Payments
Only" box, the DRIP administrator will purchase additional shares of common
stock for your account using only:
o optional cash payments received from you; and
o cash dividends on all shares credited to your DRIP account
only. Cash dividends on shares of common stock registered in
your name, other than in your DRIP account, will be paid to
you in the usual manner.
9. How may I change my investment options?
You may change your investment option at any time by signing a new
authorization card and returning it to the DRIP administrator. A change in
investment option will be effective on the next dividend payment date if the
DRIP administrator receives the authorization card six or more business days
before the related dividend record date. If the DRIP administrator receives the
authorization card on or after five business days before the related dividend
record date, the change will be effective on the dividend payment date following
the next record date.
Costs
10. Are there any expenses to me if I participate in the DRIP?
You incur no brokerage fees with respect to purchases under the DRIP,
and we pay all other costs of administering the DRIP. If your shares are
registered in the name of a nominee or broker, the nominee or broker may charge
you a commission or fee in connection with purchases under the DRIP. Those
commissions or fees are your responsibility. If you request that the DRIP
administrator sell shares credited to your account under the DRIP as described
in Question 18 below, you may have to pay brokerage commissions and transfer
taxes in connection with that sale.
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Purchases
11. How many shares of common stock will be purchased for me under the DRIP?
The number of shares to be purchased for your account under the DRIP
will depend upon the amount of your dividend being reinvested, the amount of any
optional cash payments and the effective purchase price of the common stock.
Your account is credited with the number of shares, including fractions computed
to four decimal places, equal to the total amount invested by you divided by the
applicable purchase price.
12. At what price and when will common stock be purchased under the DRIP?
Shares purchased for your account under the DRIP will be effective as
of the close of business on the dividend payment date. The DRIP administrator
will purchase shares directly from us or in the open market. Each time we make a
dividend or other distribution, we will decide how the DRIP administrator will
purchase common stock under the DRIP. We do not have to provide you with any
written notice about the source of the common stock to be purchased, but you may
obtain current information regarding the source of the common stock by calling
Investor Relations at (704) 944-2012.
The price of shares of common stock purchased under the DRIP with
reinvested cash dividends or optional cash payments will have a purchase price
equal to 100% of the average closing price for the common stock on the American
Stock Exchange for the five trading days immediately before the dividend payment
date.
If we do not elect to sell shares of common stock under the DRIP on a
dividend payment date, the DRIP administrator will purchase shares of common
stock on the dividend payment date on any securities exchange where such shares
are traded, in the over-the-counter market, or in negotiated transactions. For
such open market purchases, the purchase price will be the weighted average
price paid by the DRIP administrator for all shares purchased by it for
participants with the proceeds of the cash dividend and optional cash payments
being invested on the applicable dividend payment date.
Since purchase prices for the common stock are established on the
applicable payment date, you lose any advantages otherwise available from being
able to select the timing of investments. You should recognize that neither we
nor the DRIP administrator can assure a profit or protect against a loss on
shares of common stock purchased under the DRIP.
13. How are optional cash payments made?
Optional cash payments may be made at any time and in varying amounts
of not less than $25 per payment nor more than $25,000 per calendar quarter. You
may make an optional cash payment when enrolling in the DRIP by enclosing a
check (made payable
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to the DRIP administrator) with the authorization card. Thereafter, optional
cash payments may be made through the use of optional cash payment forms, which
will be sent to you by the DRIP administrator.
If a broker, bank nominee or trustee holds your shares in the name of a
major securities depository, you may only make optional cash payments on a
Broker and Nominee Form. The Broker and Nominee Form is the sole means by which
a broker, bank nominee, or trustee holding your shares in the name of a major
securities depository may invest optional cash payments on your behalf. In such
a case, the broker, bank nominee or trustee must use the Broker and Nominee Form
for transmitting optional cash payments. A Broker and Nominee Form must be
delivered to the DRIP administrator each time a broker, bank nominee or trustee
transmits optional cash payments on your behalf. Broker and Nominee Forms will
be furnished at any time upon written request to the DRIP administrator.
Optional cash payments, like dividends, will be invested on the
dividend payment date. However, payments must be received at least three
business days and no more than 30 days before the applicable dividend payment
date in order to be invested on that dividend payment date. Otherwise, payments
will be returned to you. No interest will be paid on optional cash payments. We
therefore suggest that if you wish to make an optional cash payment, you send
the payment to the DRIP administrator so it reaches the DRIP administrator as
close as possible to three business days before the dividend payment date. The
same amount of money need not be sent each quarter, and there is no obligation
to make an optional cash payment each quarter. Optional cash payments will be
refunded if you make a written request for a refund to the DRIP administrator no
later than two days before the related dividend payment date.
You may participate through the investment of optional cash payments
without the necessity of reinvesting cash dividends by checking the "Optional
Cash Payments Only" box on the authorization card. However, even if the
"Optional Cash Payments Only" box is checked, all dividends payable on shares
purchased with optional cash payments and retained in your DRIP account will be
reinvested automatically in additional shares of common stock.
In the event that any check is returned unpaid for any reason, the DRIP
administrator will consider the request for investment null and void and shall
immediately remove from your account shares, if any, purchased upon credit of
such money. The DRIP administrator shall then be entitled to sell such shares to
satisfy uncollected amounts. If the net proceeds of the sale of such shares are
insufficient to satisfy the balance of such uncollected amounts, the DRIP
administrator shall be entitled to sell such additional shares from your account
as needed to satisfy the uncollected balance.
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Reports to Participants
14. What kind of reports will I receive?
You will be sent a quarterly statement of your account. These
statements of account will show any cash dividends and optional cash payments
received, the number of shares purchased, the purchase price for the shares, the
number of DRIP shares held for you by the DRIP administrator, the number of
enrolled shares registered in your name and an accumulation of the transactions
for the calendar year to date. Quarterly statements will be mailed as soon as
practicable after each dividend payment date. These statements are your
continuing record of the cost of your purchases, and you should retain them for
income tax purposes.
In addition, you will receive the most recent prospectus constituting
the DRIP and copies of the same communications sent to every other holder of
shares of common stock, including our annual report, proxy statement and income
tax information for reporting distributions (including dividends) paid by us.
Dividends
15. How are dividends credited to my account under the DRIP?
You will receive directly, as usual, cash dividends, if and when
declared, on all shares of common stock for which you have directed that
dividends not be reinvested. On all other shares, cash dividends will
automatically be credited to your account and reinvested in additional shares of
common stock. This means that cash dividends will be automatically reinvested on
all shares that have been purchased under the DRIP and credited to your account.
However, no dividends will be earned on such shares purchased under the DRIP
until the dividend payment for the first dividend record date that follows the
date of purchase of such shares.
16. Will I be credited with dividends on fractions of shares?
Yes. Account balances will be computed to at least four decimal places
and dividends will be paid on the fractional shares.
Certificates for Shares
17. Will certificates be issued for shares of Common Stock purchased under the
DRIP?
Unless you request otherwise, certificates for shares of common stock
purchased under the DRIP will not be issued. Shares will be held in the name of
the DRIP administrator or its nominee. The number of shares credited to your
account under the
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DRIP will be shown on your statement of account. Certificates for any number of
whole shares credited to an account under the DRIP will be issued upon your
written request. The remaining whole shares and fractions of shares, if any,
will continue to be credited to your account.
Requesting the DRIP administrator to issue a certificate in your name
representing all of the shares in your DRIP account will not constitute a
termination of participation in the DRIP. Certificates for fractional shares are
not issued under any circumstances.
Sale or Other Disposition of DRIP Shares
18. How may I sell, pledge or assign shares held in the DRIP?
If you desire to sell shares of common stock in your DRIP account, you
must request that certificates for such shares be issued in your name or, as an
alternative, you may request the DRIP administrator to sell whole shares
credited to your account under the DRIP. If you request that the DRIP
administrator sell shares credited to your DRIP account, the DRIP administrator
will use its best efforts to make the sale in the open market within 10 trading
days after receipt of the written request, and you will receive the proceeds of
the sale minus any brokerage commissions, transaction fees and transfer taxes.
You do not have the authority or power to direct the date or sale price at which
the common stock may be sold by the DRIP administrator under this alternative.
Any written instructions that do not clearly indicate the whole number
of shares to be sold, or that "all" DRIP shares are to be sold, will be returned
to you with no action taken.
If you wish to sell some or all of your shares in the DRIP, you should
be aware of the risk that the price of the common stock may decrease between the
time that you determine to sell shares in the DRIP and the time that the sale is
completed. This risk is borne solely by you. No check for the proceeds of such
sale will be mailed prior to the settlement of funds from the brokerage firm
through which shares in the DRIP are sold. Settlement is normally three business
days after the sale of the shares.
All information relating to the sale of shares in the DRIP will be
reported to the IRS pursuant to applicable legal requirements.
You may not pledge or assign shares credited to a DRIP account. Any
such purported pledge or assignment will be void. If you want to pledge or
assign any shares, you must request that a certificate for such shares be issued
in your name.
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Withdrawal of Shares in DRIP Accounts
19. How may I withdraw shares from my DRIP account?
You may at any time withdraw all or any portion of the full shares of
common stock held in your account. A request for withdrawal should be in writing
and sent to the DRIP administrator. Certificates for the full shares so
withdrawn will be issued in your name and mailed to you. Any fractional share
interest will be liquidated and a check for the market value of the fractional
share interest (without deducting any expense or commission) will be mailed to
you. See Question 18 above for a discussion of how you may sell shares in your
DRIP account through the DRIP administrator rather than first withdrawing shares
from the DRIP and then selling them on the open market through a broker.
Termination of Participation
20. When and how may I terminate my participation in the DRIP?
You may terminate your participation in the DRIP by providing written
notice to the DRIP administrator. When you terminate your participation in the
DRIP (or upon our termination of the DRIP), the DRIP administrator will issue
certificates for whole shares in your account and make a cash payment for any
fraction of a share remaining in your account.
If the DRIP administrator receives the written termination notice five
business days before the record date for a dividend, the termination will be
duly processed and such dividend will not be reinvested on the next dividend
payment date. If the DRIP administrator does not receive the written termination
notice by that deadline, dividends applicable to the shares in the DRIP will be
reinvested and the shares purchased by the DRIP administrator or issued by us
will be allocated to the DRIP participants' accounts. After such dividends are
invested and allocated to the participants' accounts, the DRIP administrator
will process termination requests. Allocations may take up to two weeks after
dividend payment. Neither we nor the DRIP administrator is responsible for
losses during such periods. Any optional cash payment received by the DRIP
administrator before the receipt of a termination notice will be invested in
shares of common stock unless the participant expressly requests in writing that
the optional cash payment be returned and the DRIP administrator receives your
written request two days before the applicable dividend payment date.
If you terminate your participation in the DRIP, you may re-enroll in
it at any time by submitting an authorization card as described in Question 6
above.
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21. May I terminate the reinvestment of dividends on shares held in my name and
still remain in the DRIP?
Yes. If you terminate the reinvestment of dividends paid on shares
registered in your name, you may leave in the DRIP the shares you previously
purchased for your account in the DRIP. Dividends paid on shares left in the
DRIP continue to be reinvested automatically for your account.
Tax Consequences of Participation in the DRIP
22. What are the federal income tax consequences of participation in the DRIP?
Our distributions to stockholders constitute dividends for federal
income tax purposes up to the amount of our positive current and accumulated
earnings and profits and, to that extent, will be taxable as ordinary income
(unless designated as a "capital gain" dividend pursuant to applicable federal
income tax rules). To the extent that we make a distribution in excess of such
earnings and profits, the distribution will be treated first as a tax-free
return of capital, reducing the tax basis in your common stock, and then the
distribution in excess of such basis will be taxable as a gain realized from the
sale of your common stock. These same tax consequences will apply where your
distributions are used to purchase additional common stock pursuant to the DRIP.
Therefore, cash distributions reinvested under the DRIP will be taxed as
outlined above. In addition, the amount of any brokerage commissions, mark-ups,
and other fees or expenses incurred by us on your behalf in connection with
purchases on the open market, whether as reinvested distributions or optional
cash payments, also will be treated as distributions to you that are taxed as
outlined above.
Distributions paid to corporate stockholders, including amounts taxable
as dividends to corporate stockholders, will not be eligible for the corporate
dividends-received deduction.
Your tax basis in additional shares of common stock acquired under the
DRIP with reinvested cash distributions will be equal to the fair market value
of such shares as of the date of distribution. Your tax basis in additional
shares of common stock acquired under the DRIP with optional cash payments will
be equal to the amount of such optional cash payments. Your holding period for
shares of common stock acquired with reinvested distributions generally will
commence on the day after the dividend payment date. If, however, the shares are
acquired with optional cash payments or are purchased with reinvested
distributions in the open market, the holding period will commence on the day
after the date of purchase.
14
You will not realize any taxable income upon the receipt of a certificate
representing full shares previously credited to your account. However, you will
recognize gain or loss when you sell or exchange shares received from the DRIP
or when a fractional share interest is liquidated. Such gain or loss will equal
the difference between the amount that you receive for such fractional share
interest or such shares and your tax basis in such fractional share interest or
shares.
In the case of participating stockholders whose distributions are
subject to withholding of federal income tax, distributions will be reinvested
less the amount of tax required to be withheld.
The above is intended only as a general discussion of the current
federal income tax consequence of participation in the DRIP. You should consult
your own tax advisers regarding the federal and state income tax consequences
(including the effects of any changes in law) of your individual participation
in the DRIP.
Other Information
23. What happens when I sell or transfer all of the shares registered in my
name other than shares under the DRIP?
If you dispose of all of the shares of common stock registered in your
name other than shares purchased for your account under the DRIP, the DRIP
administrator, until it is otherwise instructed, will continue to reinvest the
dividends on the shares of common stock in your DRIP account. In the event of
your death or incapacity, the personal representative of your estate may provide
the DRIP administrator with a written request of withdrawal of your DRIP shares.
We reserve the right not to reinvest any additional dividends if you have only a
fractional share of stock credited to your account under the DRIP on the record
date for any cash dividend on the common stock. If we exercise this right, you
will receive a cash adjustment representing the fractional share and a cash
payment for the dividend. The cash payment for the fractional share will be
based on the closing price of the common stock on the American Stock Exchange on
the date on which we exercise this right.
24. What happens in the event of a stock dividend, split, or rights offering?
Any shares representing stock dividends (payable in common stock) or
stock splits distributed by us on shares of common stock credited to your
account under the DRIP will be added to your account. Shares representing stock
dividends payable other than in common stock on shares of common stock credited
to your account under the DRIP will be paid to the DRIP administrator, which
will then distribute the shares in accordance with the interests of participants
in the DRIP. Shares representing stock dividends or split shares distributed on
shares registered in your name will be mailed directly to you in the same manner
as to stockholders who are not participating in the DRIP.
15
If we make available rights or warrants to purchase additional shares
or other securities, such rights or warrants will be made available to you based
on the number of shares (including fractional share interests to the extent
practicable) held in your account on the record date established for determining
the stockholders entitled to such rights or warrants.
25. How will my DRIP shares be voted at a stockholders' meeting?
All shares in a DRIP account will be added to the shares registered in
your name on our stockholder records and you will receive one proxy for all such
shares. This proxy will be voted as you direct or you may vote all shares in
person at the stockholders' meeting.
26. What are your (the company's) responsibilities and the responsibilities of
the DRIP administrator under the DRIP?
Neither we nor the DRIP administrator will be liable for any act either
does in good faith or for any good faith omission to act, including, without
limitation: any liability claims arising out of a failure to terminate your
account upon your death or adjudicated incompetency before we receive written
notice of such death or adjudicated incompetency; the prices at which shares are
purchased for your account; the times when purchases are made; or fluctuations
in the market value of the common stock. Neither we nor the DRIP administrator
have any duties, responsibilities, or liabilities except those expressly set
forth in the DRIP.
You should recognize that neither we nor the DRIP administrator can
assure a profit or protect against loss on the shares purchased under the DRIP.
27. May the DRIP be changed or discontinued?
Although the DRIP is intended to continue indefinitely, we reserve the
right to suspend or terminate the DRIP at any time. We also reserve the right to
make modifications to the DRIP. Notice of such suspension, termination or
modification will be sent to all participants.
We intend to use our best efforts to maintain the effectiveness of the
registration statement filed with the SEC covering the offer and sale of common
stock under the DRIP. However, we have no obligation to offer, issue or sell
common stock under the DRIP if, at the time of the offer, issuance or sale, such
registration statement is for any reason not effective. Also, we may elect not
to offer or sell common stock under the DRIP to stockholders residing in any
jurisdiction or foreign country where, in our judgment, the burden or expense of
compliance with applicable blue sky or securities laws makes such offer or sale
there impracticable or inadvisable. In any of these circumstances, dividends, if
and when declared, will be paid in the usual manner and any optional cash
payments received from you will be returned to you.
16
Resale Restrictions
28. Are there any restrictions on reselling the common stock I acquire under the
DRIP?
If you own shares of our common stock acquired under the DRIP and are
not an affiliate, you are free to sell those shares at any time. If you are an
affiliate, as that term is defined in Rule 405 under the Securities Act, you may
not publicly reoffer shares acquired under the DRIP except pursuant to Rule 144
of the Securities Act. Rule 405 defines an "affiliate" as a person who directly,
or indirectly through one or more intermediaries, controls, is controlled by, or
is under common control with us. Directors and some of our executive officers
may be our affiliates under this definition.
Directors and some of our executive officers participating in the DRIP
are also subject to the reporting obligation of Section 16(a) and the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act with
respect to purchases of the common stock made under the DRIP with optional cash
payments. Although such directors and officers are not subject to the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act with
respect to purchases of common stock made under the DRIP with reinvested
dividends, such purchases must be disclosed on annual reports filed pursuant to
Section 16(a) of the Exchange Act.
Limitations on Participation
29. Are there limitations on participation in the DRIP other than those
described above?
We reserve the right to limit participation in the DRIP for any reason,
even if you are otherwise eligible to participate. In order to enable us to meet
one of the requirements for continued qualification as a real estate investment
trust, our Articles of Incorporation limit ownership by any one person to no
more than 9.8% of our outstanding capital stock.
No stockholder may acquire any shares pursuant to the DRIP that exceed
this limit. Some stockholders may be residents of jurisdictions in which we
determine that we may not legally or economically offer our shares under the
DRIP. Accordingly, we may preclude residents of such jurisdictions from
participating in the DRIP. We have no present plans to limit participation in
the DRIP by any stockholder of record for reasons other than those set forth
above. But we reserve that right if we determine in our sole discretion that
such limitation may be in our company's best interests.
Use of Proceeds
The DRIP will raise additional capital for us to the extent that the
DRIP purchases newly issued shares of common stock from us (rather than
acquiring shares in the open
17
market). We do not know the number of shares of common stock that will
ultimately be purchased pursuant to the DRIP, or the prices at which the shares
will be purchased. We intend to use the net proceeds, if any, from the sale of
common stock for general corporate purposes, including repayment of
indebtedness, investment in new properties and new developments and maintenance
of currently owned property.
Common Stock
Our common stockholders are entitled to share equally, share for share,
in dividends payable in cash, stock, or other property, as and if declared by
our Board of Directors. In the event of any liquidation, dissolution, or
winding-up, our common stockholders are entitled to receive, on a share for
share basis, any assets or funds that are distributable to the common
stockholders upon such events. Common stockholders are entitled to one vote for
each share held on all matters voted upon by stockholders. They are not entitled
to preemptive rights or to cumulative voting rights. The shares of common stock
we will issue upon receipt of payment in accordance with the terms set forth in
the DRIP will be validly issued, fully paid, and non-assessable.
Our Articles of Incorporation provide that no stockholders may
beneficially own more than 9.8% of our outstanding capital stock unless certain
conditions are met. Any attempted transfer or acquisition of capital stock that
would create a direct or indirect ownership of capital stock in excess of this
limit or otherwise result in our disqualification as a real estate investment
trust will be null and void. Our Articles of Incorporation provide that capital
stock subject to this limitation is subject to various rights we have to enforce
the ownership limitation, including redemption. The above summary of the
ownership limitation is qualified in its entirety by reference to the our
Articles of Incorporation, as amended from time to time. We reserve the right to
invalidate any purchases made under the DRIP that, in our sole discretion, may
violate the ownership limit.
Common Stock Price
Our common stock is listed on the American Stock Exchange under the
symbol "BNP." On February 3, 2004, the last reported sale price of our common
stock on the American Stock Exchange was $11.95.
Commission Position on Indemnification for Securities Act Liabilities
Our officers and directors are and will be indemnified against certain
liabilities in accordance with the Maryland General Corporation Law ("MGCL"),
our Articles of Incorporation and bylaws, and the limited partnership agreement
of the Operating Partnership through which we conduct substantially all of our
business. The Articles
18
of Incorporation require the company to indemnify its directors and officers to
the fullest extent permitted from time to time by the MGCL. The MGCL permits a
corporation to indemnify its directors and officers, among others, against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reasons of their service in those or other capacities unless it is
established that 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, or the director or officer
actually received an improper personal benefit in money, property or services,
or in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling the company
pursuant to the foregoing provisions, we have been informed that 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.
Experts
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our Annual report on form 10-K for
the year ended December 31, 2002, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
Legal Matters
The validity of the shares of common stock offered with this prospectus
have been previously passed upon for us by Alston & Bird LLP, Raleigh, North
Carolina.
No dealer, salesperson, or other individual has been authorized to give
any information or make any representations not contained 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 the Company. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any of the securities covered by this
Prospectus in any jurisdiction where, or to any person to whom, it is unlawful
to make such offer or solicitation. Neither the delivery of this Prospectus nor
any 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 the affairs of the Company since the date hereof.
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TABLE OF CONTENTS
Page
Where You Can Find More Information..................3
Incorporation of Certain Documents by Reference......3
BNP Residential Properties, Inc......................4
Description of the DRIP..............................5
Purpose........................................5
Advantages to Participants.....................5
Administration.................................6
Participation..................................6
Costs..........................................8
Purchases......................................9
Reports to Participants.......................11
Dividends.....................................11
Certificates for Shares.......................11
Sale or Other Disposition of DRIP Shares......12
Withdrawal of Shares in DRIP Accounts.........13
Termination of Participation..................13
Tax Consequences of Participation in the DRIP.14
Other Information.............................15
Resale Restrictions...........................17
Limitations on Participation..................17
Use of Proceeds.....................................17
Common Stock........................................18
Common Stock Price..................................18
Commission Position on Indemnification for Securities
Act Liabilities.....................................18
Experts.............................................19
Legal Matters.......................................19
BNP Residential Properties, Inc.
1,000, 000 Shares of
Common Stock
Dividend Reinvestment and
Stock Purchase Plan
Prospectus
February 6, 2004
You should rely only on the information contained in this document or to which
we have referred you. We have not authorized anyone to provide you with
information that is different. The information in this prospectus may only be
accurate on the date of this prospectus. This prospectus may be used only where
it is legal to sell these securities.
20
PART II. Information Not Required In Prospectus
ITEM 14. Other Expenses of Issuance and Distribution
The following table sets forth estimates of the various expenses to be
paid by the company in connection with the registration of the common stock
offered pursuant to this registration statement.
Securities and Exchange Commission Registration Fee .............$ 1,497.59
Legal Fees ......................................................$ 25,000.00
Accounting Fees .................................................$ 8,500.00
Total ........................................................$ 34,997.59
ITEM 15. Indemnification of Directors and Officers
The company's officers and directors are and will be indemnified
against certain liabilities in accordance with the Maryland General Corporation
Law ("MGCL"), the charter and bylaws of the company and the operating
partnership agreement. The charter requires the company to indemnify its
directors and officers to the fullest extent permitted from time to time by the
MGCL. The MGCL permits a corporation to indemnify its directors and officers,
among others, against judgments, penalties, fines, settlements and reasonable
expenses actually incurred by them in connection with any proceeding to which
they may be made a party by reasons of their service in those or other
capacities unless it is established that 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, or
the director or officer actually received an improper personal benefit in money,
property or services, or in the case of any criminal proceeding, the director or
officer had reasonable cause to believe that the act or omission was unlawful.
The company also carries insurance for our directors and officers for
liabilities they may incur as a result of their service to the company.
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ITEM 16. EXHIBITS
Exhibit Index
EXHIBIT NO. DESCRIPTION
---------- -------------------------------------------------------------
4.1 * Articles of Incorporation of Registrant as amended by Articles
Supplementary for Series A Junior Participating Preferred
Stock (filed as exhibit 3(i) to the Registrant's Current
Report on Form 8-K, dated as of March 17, 1999)
4.2 * Articles Supplementary, Classifying and Designating 909,090
Shares of Series B Cumulative Convertible Preferred Stock,
dated December 28, 2001 (filed as Exhibit 3.1 to the
Registrant's Current Report on Form 8-K, dated as of December
28, 2001).
4.3* Amended and Restated Bylaws of Registrant (filed as Exhibit
3.2 to the Registrant's Current Report on Form 8-K, dated as
of December 28, 2001)
4.4* Rights Agreement, dated as of March 18, 1999, between
Registrant and First Union National Bank, including the form
of Articles Supplementary for Series A Junior Participating
Preferred Stock on Exhibit A, form of Right Certificate on
Exhibit B and the Summary of Rights to Purchase Preferred
Shares on Exhibit C (filed as exhibit to the Registrant's
Current Report on Form 8-K, dated as of March 17, 1999)
5.1 Opinion of Alston & Bird LLP regarding the legality of the
shares being registered
8.1 Opinion of Alston & Bird LLP regarding tax matters
23.1 Consent of Alston & Bird LLP (included as part of exhibit 5.1
and exhibit 8.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page hereof)
99.1* Form of Second Amended and Restated Agreement of Limited
Partnership of BNP Residential Properties Limited Partnership
(filed as exhibit 10.1 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1998)
99.2* Form of Registration Rights Agreement (filed as exhibit 10.11
to the Registrant's Registration Statement on Form S-2 filed
with the SEC on December 16, 1997 (Reg. No. 333-39803))
99.3* Registration Rights Agreement by and between Registrant and
Preferred Investment I, LLC, dated December 28, 2001 (filed as
Exhibit 4 to the Registrant's Current Report on Form 8-K,
dated as of December 28, 2001)
99.4* Amendment to Second Amended and Restated Agreement of Limited
Partnership of BNP Residential Properties Limited Partnership
(filed as Exhibit 10.1 to the Registrant's Current Report on
Form8-K dated as of December 28, 2001)
* Incorporated herein by reference.
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ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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 the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% 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 to such information in the
registration statement.
Provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained
in 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 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.
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(b) The undersigned registrant hereby undertakes that, for 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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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
of the requirements for filing on Form S-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina, on February
6, 2004.
BNP RESIDENTIAL PROPERTIES, INC.
February 6, 2004
_______________________________________
/s/ D. Scott Wilkerson
D. Scott Wilkerson
President and Chief Executive Officer
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.
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Pursuant to the requirements of the Securities Act of 1933, this
amendment to 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 of Directors, February 6, 2004
-------------------
Philip S. Payne Treasurer and Chief Financial Officer
/s/ D. Scott Wilkerson President and Chief Executive Officer February 6, 2004
----------------------
D. Scott Wilkerson and Director
/s/ B. Mayo Boddie Director February 5, 2004
------------------
B. Mayo Boddie
/s/ Stephen R. Blank Director February 6, 2004
--------------------
Stephen R. Blank
/s/ Paul G. Chrysson Director February 6, 2004
--------------------
Paul G. Chrysson
/s/ Pamela B. Bruno Vice-President and Chief Accounting February 6, 2004
-------------------
Pamela B. Bruno Officer
26