As Filed With the Securities and Exchange Commission on August 14, 2002
Registration No.333-____________
.................................................................................
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
.................................................................................
MID-AMERICA APARTMENT COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 62-1543819
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6584 Poplar Avenue, Suite 300
Memphis, Tennessee 38138
(901) 682-6600 (Zip Code)
(Address of Principal Executive Offices)
Fourth Amended and Restated 1994 Restricted Stock and Stock Option Plan
(Full title of the plan)
Simon R.C. Wadsworth
6584 Poplar Avenue, Suite 300
Memphis, Tennessee 38138
(Name and address of agent for service)
(901) 682-6600
(Telephone number, including area code, of agent for service)
Copy to:
John A. Good, Esq.
Bass, Berry & Sims PLC
100 Peabody Place, Suite 950
Memphis, TN 38103
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Proposed Proposed
Title of securities Amount maximum maximum
to be registered to be offering aggregate Amount of
registered price offering registration
per share* price* fee
================================================================================
Common Stock, 850,000 shares $ 24.39 $ 20,731,500 $1,907.30
par value
$.01 per share
* The offering price is estimated solely for the purpose of determining the
amount of the registration fee. Such estimate has been calculated in accordance
with Rule 457(c) and Rule 457(h) and is based upon the average of the high and
low prices per share of the Registrant's common stock as reported on the New
York Stock Exchange on August 8, 2002.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference as of their respective
dates:
a. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, as amended and restated;
b. All other reports of the Registrant filed pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 2001; and
c. The description of the Common Stock contained in the effective registration
statement filed by the Registrant to register such securities under the
Exchange Act, including all amendments and reports filed for the purpose of
updating such description prior to the termination of the offering of the
Common Stock offered hereby.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and
15(d) of the Exchange Act after the date hereof and prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is a Tennessee corporation. Sections 48-18-501 through 48-18-509
of the Tennessee Business Corporation Act contain detailed provisions on
indemnification of directors and officers of a Tennessee corporation.
The Registrant's restated charter provides that no director of the Registrant
shall be personally liable to the Registrant or its shareholders for monetary
damages for breach of fiduciary duty as a director, except: (i) for any breach
of the director's duty of loyalty to the Registrant or its shareholders; (ii)
for acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law; or (iii) for unlawful distributions under Section
48-18-304 of the Tennessee Business Corporation Act.
The Registrant's bylaws provide that the Registrant shall indemnify any person
who is made a party to a suit by or in the right of the Registrant to procure a
judgment in its favor by reason of the fact that he, his testator or intestate
is or was a director or officer of the Registrant, against amounts paid in
settlement and reasonable expenses including attorneys' fees actually and
necessarily incurred as a result of such suit or proceeding or any appeal
therein to the extent permitted by and in the manner provided by the laws of
Tennessee. The Registrant shall indemnify any person made or threatened to be
made a party to a suit or proceeding other than by or in the right of any
company of any type or kind, domestic or foreign, which any director or officer
of the Registrant, by reason of the fact that he, his testator or intestate, was
a director or officer of the Registrant or served such other company in any
capacity, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees actually and necessarily incurred as a
result of such suit or proceeding, or any appeal therein, if such director or
officer acted in good faith for a purpose which he reasonably believed to be in
the best interest of the Registrant and, in criminal actions or proceedings, had
no reasonable cause to believe that this conduct was unlawful, and to the extent
permitted by, and in the manner provided by, the laws of Tennessee.
The directors and officers of the Registrant are covered by an insurance policy
indemnifying them against certain civil liabilities, including liabilities under
the federal securities laws, which might be incurred by them in such capacity.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Index to Exhibits following the signature pages hereof.
Item 9. Undertakings.
A. The 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, as amended (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; (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
clauses (i) and (ii) of this paragraph do not apply if the information
required to be included in a post-effective amendment by those clauses
is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to
Section 13 or 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, 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 hereof.
(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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and 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 this 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 may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, 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 Securities 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 director, officer, or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, 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 Securities 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 of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Memphis, State of Tennessee, on this 25th day of
July, 2002.
MID-AMERICA APARTMENT COMMUNITIES, INC.
By: /s/ H. Eric Bolton, Jr.
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby
constitutes and appoints H. Eric Bolton, Jr. and Simon R. C. Wadsworth, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place, and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their 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 on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated:
Signature Title Date
/s/ George E. Cates Chairman of the Board July 26, 2002
- -------------------------- and Director
George E. Cates
/s/ H. Eric Bolton, Jr. President and Chief Executive July 25, 2002
- -------------------------- Officer (Principal Executive
H. Eric Bolton, Jr. Officer) and Director
/s/ Simon R.C. Wadsworth Chief Financial Officer July 22, 2002
- -------------------------- (Principal Financial and
Simon R. C. Wadsworth Accounting Officer) and Director
/s/ John F. Flournoy Director July 24, 2002
- --------------------------
John F. Flournoy
/s/ Robert F. Fogelman Director August 2, 2002
- --------------------------
Robert F. Fogelman
/s/ Alan B. Graf, Jr. Director July 24, 2002
- --------------------------
Alan B. Graf, Jr.
/s/ John S. Grinalds Director July 26, 2002
- --------------------------
John S. Grinalds
/s/ Ralph Horn Director July 31, 2002
- --------------------------
Ralph Horn
/s/ Michael S. Starnes Director July 24, 2002
- --------------------------
Michael S. Starnes
INDEX TO EXHIBITS
Exhibit
Number Description
- -------- -------------------------------------------------------------------
4.1 Amended and Restated Charter of Mid-America Apartment Communities,
Inc. dated as of January 10, 1994, as filed with the Tennessee
Secretary of State on January 25, 1994 (filed as an exhibit to the
1997 Annual Report of the Registrant on Form 10-K for the year ended
December 31, 1997 and incorporated herein by reference)
4.2 Articles of Amendment to the Charter of Mid-America Apartment
Communities, Inc. dated as of January 28, 1994, as filed with the
Tennessee Secretary of State on January 28, 1994
(filed as an exhibit to the 1996 Annual Report of the Registrant on
Form 10-K for the year ended December 31, 1996 and incorporated
herein by reference)
4.3 Mid-America Apartment Communities, Inc. Articles of Amendment to the
Amended and Restated Charter Designating and Fixing the Rights and
Preferences of a Series of Preferred Stock dated as of October 9,
1996, as filed with the Tennessee Secretary of State on October 10,
1996 (filed as Exhibit 1 to the Registrant's Registration Statement
on Form 8-A filed with the Commission on October 11, 1996 and
incorporated herein by reference)
4.4 Mid-America Apartment Communities, Inc. Articles of Amendment to the
Amended and Restated Charter dated November 17, 1997, as filed with
the Tennessee Secretary of State on November 18, 1997 (filed as an
exhibit to the 1997 Annual Report of the Registrant on Form 10-K for
the year ended December 31, 1997 and incorporated herein by
reference)
4.5 Mid-America Apartment Communities, Inc. Articles of Amendment to the
Amended and Restated Charter Designating and Fixing the Rights and
Preferences of a Series of Preferred Stock dated as of November 17,
1997, as filed with the Tennessee Secretary of State on November 18,
1997 (filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form 8-A filed with the Commission on November 19, 1997
and incorporated herein by reference)
4.6 Mid-America Apartment Communities, Inc. Articles of Amendment to the
Amended and Restated Charter dated December 15, 1997, as filed with
the Tennessee Secretary of State on December 31, 1997 (filed as an
exhibit to the 1997 Annual Report of the Registrant on Form 10-K for
the year ended December 31, 1997 and incorporated herein by
reference)
4.7 Mid-America Apartment Communities, Inc. Articles of Amendment to the
Amended and Restated Charter dated June 25, 1998, as filed with the
Tennessee Secretary of State on June 30, 1998 (filed as Exhibit 4.3
to the Registrant's Registration Statement on Form 8-A filed with
the Commission on June 26, 1998 and incorporated herein by reference)
4.8 Mid-America Apartment Communities, Inc. Articles of Amendment to the
Amended and Restated Charter dated December 28, 1998, as filed with
the Tennessee Secretary of State on December 28, 1998 (filed as an
exhibit to the 1998 Annual Report of the Registrant on Form 10-K for
the year ended December 31, 1998 and incorporated herein by
reference)
4.9 Bylaws of Mid-America Apartment Communities, Inc. (filed as an
exhibit to the Registrant's Registration Statement on Form S-11/A
filed on January 21, 1994 and incorporated herein by reference)
4.10 Mid-America Apartment Communities, Inc. Fourth Amended and Restated
1994 Restricted Stock and Stock Option Plan (filed as Exhibit A to
the Registrant's Proxy Statement for the Annual Meeting of
Shareholders held on June 10, 2002 and incorporated herein by
reference)
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of KPMG LLP
23.2 Consent of Bass, Berry & Sims PLC (contained in Exhibit 5)