-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PwNmPe5xyH6QeK8lGvniMwznEyjwtC2iCPjEdiCPN2Ct19gfRS+YSc3MzLtTMKtD sK6QpkEQmLVlV4UeOYiimw== 0000912595-02-000044.txt : 20020814 0000912595-02-000044.hdr.sgml : 20020814 20020814103337 ACCESSION NUMBER: 0000912595-02-000044 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020814 EFFECTIVENESS DATE: 20020814 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MID AMERICA APARTMENT COMMUNITIES INC CENTRAL INDEX KEY: 0000912595 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 621543819 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-98065 FILM NUMBER: 02732171 BUSINESS ADDRESS: STREET 1: 6584 POPLAR AVE STREET 2: STE 340 CITY: MEMPHIS STATE: TN ZIP: 38138 BUSINESS PHONE: 9016826600 MAIL ADDRESS: STREET 1: 6584 POPLAR AVE STREET 2: SUITE 340 CITY: MEMPHIS STATE: TN ZIP: 38138 S-8 1 s8.txt 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) EX-5 3 s8ex5.txt EXHIBIT 5 BASS, BERRY & SIMS PLC A PROFESSIONAL LIMITED LIABILITY COMPANY ATTORNEYS AT LAW Reply To: THE TOWER AT PEABODY PLACE 100 PEABODY PLACE, SUITE 950 MEMPHIS, TN 38103-2625 (901) 543-5900 www.bassberry.com KNOXVILLE OFFICE DOWNTOWN OFFICE: 900 SOUTH GAY STREET, SUITE 1700 AMSOUTH CENTER KNOXVILLE, TN 37902 315 DEADERICK STREET, SUITE 2700 (865) 521-6200 NASHVILLE, TN 37238-3001 (615) 742-6200 MEMPHIS OFFICE THE TOWER AT PEABODY PLACE MUSIC ROW OFFICE: 100 PEABODY PLACE, SUITE 950 29 MUSIC SQUARE EAST MEMPHIS, TN 38103-2625 NASHVILLE, TN 37203-4322 (901) 543-5900 (615) 255-6161 The Board of Directors of Mid-America Apartment Communities, Inc. 6584 Poplar Avenue, Suite 300 Memphis, TN 38138 RE: Registration Statement on Form S-8 Relating to the Employee Benefit Plan Listed on Exhibit A hereto Ladies and Gentlemen: We have acted as counsel to Mid-America Apartment Communities, Inc., a Tennessee corporation ("MAAC"), in connection with the preparation and filing of a Registration Statement on Form S-8 (the "Registration Statement") relating to certain shares of common stock, par value $.01 per share, of MAAC (the "Common Stock") to be issued pursuant to the above referenced plan (the "Plan"). In our capacity as such counsel, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records of MAAC, such agreements and instruments, such certificates of public officials, officers of MAAC and other persons, and such other documents as we have deemed necessary or appropriate as a basis for the opinions hereinafter expressed. In such examinations, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity and completeness of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies, and the authenticity of the originals of such copies, and we have assumed all certificates of public officials to have been properly given and to be accurate. As to factual matters relevant to this opinion letter, we have relied upon the representations and warranties as to factual matters contained in certificates and statements of officers of MAAC and certain public officials. Except to the extent expressly set forth herein, we have made no independent investigations with regard thereto, and, accordingly, we do not express any opinion as to matters that might have been disclosed by independent verification. On the basis of the foregoing, and subject to the limitations set forth herein, we are of the opinion that the shares of Common Stock issuable in connection with the Plan have been duly authorized and, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. We consent to the filing of this opinion letter as an exhibit to the Registration Statement and to any related registration statement subsequently filed by MAAC pursuant to Rule 462(b) promulgated under the Securities Act of 1933, as amended (the "Act"), and to the use of our name under the heading "Legal Opinions" in any prospectus constituting a part thereof. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission (the "Commission") thereunder. This opinion letter is being furnished by us to MAAC and the Commission solely for the benefit of MAAC and the Commission in connection with the Registration Statement and is not to be used, circulated, quoted or otherwise relied upon by any other person, or by MAAC or the Commission for any other purpose, without our express written consent. The only opinion rendered by us consists of those matters set forth in the fourth paragraph hereof, and no opinion may be implied or inferred beyond those expressly stated. This opinion letter is rendered as of the date hereof, and we have no obligation to update this opinion letter. Sincerely, BASS, BERRY & SIMS PLC By: /s/ John A. Good ---------------------------- EXHIBIT A Mid-America Apartment Communities, Inc. Fourth Amended and Restated Restricted Stock and Stock Option Plan EX-23 4 s8ex23.txt EXHIBIT 23.1 Independent Auditors' Consent The Board of Directors Mid-America Apartment Communities: We consent to the use of our report incorporated herein by reference. KPMG LLP Memphis, Tennessee August 13, 2002 -----END PRIVACY-ENHANCED MESSAGE-----