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As filed with the Securities and Exchange Commission on August 28, 1998.
File No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IRT PROPERTY COMPANY
(Exact Name of Registrant as Specified in its Charter)
GEORGIA 58-1366611
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
200 GALLERIA PARKWAY, SUITE 1400
ATLANTA, GEORGIA 30339
(770) 955-4406
(Address, including zip code, and telephone number of
Principal Executive Offices)
IRT PROPERTY COMPANY
1998 LONG-TERM INCENTIVE PLAN
(Full Title of the Plan)
W. BENJAMIN JONES III
IRT PROPERTY COMPANY
200 GALLERIA PARKWAY, SUITE 1400
ATLANTA, GEORGIA 30339
(770) 955-4406
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
RALPH F. MACDONALD, III
ALSTON & BIRD LLP
ONE ATLANTIC CENTER
1201 WEST PEACHTREE STREET
ATLANTA, GEORGIA 30309-3424
TELEPHONE: (404) 881-7970
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered (1) Per Share (2) Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00
par value, and
related Common
Stock Purchase
Rights 1,625,000 $9.84 $15,990,000.00 $4,717.05
- ----------------------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also covers any additional shares that
may hereafter become issuable as a result of the adjustment and
anti-dilution provisions of the registrant's 1998 Long-Term
Incentive Plan.
(2) The offering price for the shares covered by this Registration
Statement is estimated solely for purposes of calculating the
registration fee in accordance with Rule 457(h), based on the
average of the high and low sales price of the Common Stock
reported on the New York Stock Exchange on August 24, 1998.
(3) No separate consideration will be received for the Rights, which
initially will trade together with the Common Stock pursuant to the
Shareholder Protection Rights Agreement dated as of August 21,
1998.
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PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
(2) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1997.
(3) The description of Common Stock contained in the Registrant's
Registration Statement filed under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating such description.
All other documents subsequently filed by the Registrant pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered 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
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement. Subject to the foregoing, all information appearing in this
Registration Statement is qualified in its entirety by the information appearing
in the documents incorporated by reference.
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 Georgia Business Corporation Code (the "GBCC") permits, under
certain circumstances, the indemnification of officers, directors, employees and
agents of a corporation with respect to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, to which such person was or is a party or is threatened to be
made a party by reason of his or her action in such capacity for, or at the
request of, such
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corporation. To the extent that such person is successful in defending any such
suit, Georgia law provides that he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her in
connection therewith.
The Company's By-Laws provide for the indemnification of the Company's
directors, officers, employees and agents in accordance with the GBCC. Georgia
law also provides that, with certain exceptions, the above rights will not be
deemed exclusive of other rights of indemnification contained in any bylaw,
resolution or agreement approved by the holders of a majority of the stock. The
Company's By-Laws provide that the Company may purchase and maintain insurance
on behalf of directors, officers, employees and agents, as well as others
serving at their request, against any liabilities asserted against such persons
whether or not the Company would have the power to indemnify such persons
against such liability under the GBCC. The Company has purchased and maintains
such insurance.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Amended and Restated Articles of Incorporation of IRT Property Company
(Incorporated by reference from the Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997, Commission File Number 1-7859).
4.2 By-Laws of IRT Property Company, as Amended (Incorporated by reference
from the Company's Quarterly Report of Form 10-Q for the quarter ended
March 31, 1995, Commission File Number 1-7859, and the Company's Current
Report on Form 8-K, dated August 10, 1998).
5.1 Opinion of Alston & Bird LLP
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1)
</TABLE>
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<TABLE>
<S> <C>
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (contained on the signature pages of this Registration Statement)
</TABLE>
ITEM 9. 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 this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities being 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 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the Registrant's Articles of
Incorporation, By-laws or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a 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 Act and
will be governed by the final adjudication of such issue.
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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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 28th day of
August, 1998.
IRT PROPERTY COMPANY
(Registrant)
By: /s/ Mary M. Thomas
------------------------------------
Mary M. Thomas
Chief Financial Officer and
Executive Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each of the undersigned officers
and directors of IRT Property Company (the "Company"), a Georgia corporation,
for himself and not for one another, does hereby constitute and appoint Thomas
H. McAuley, W. Benjamin Jones III and Mary M. Thomas, and each of them, a true
and lawful attorney in his name, place and stead, in any and all capacities, to
sign his name to any and all amendments, including post-effective amendments, to
this Registration Statement, and to sign a Registration Statement pursuant to
Section 462(b) of the Securities Act of 1933, and to cause the same (together
with all Exhibits thereto) to be filed with the Securities and Exchange
Commission, granting unto said attorneys and each of them full power and
authority to do and perform any act and thing necessary and proper to be done in
the premises, as fully to all intents and purposes as the undersigned could do
if personally present, and each of the undersigned for himself hereby ratifies
and confirms all that said attorneys or any one of them shall lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Thomas H. McAuley President, Chief Executive Officer, and August 28, 1998
- ------------------------------------ Chairman of the Board of Directors
Thomas H. McAuley (Principal Executive Officer)
/s/ Mary M. Thomas Chief Financial Officer, August 28, 1998
- ------------------------------------ Executive Vice President, and Director
Mary M. Thomas (Principal Financial and Accounting Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Patrick L. Flinn Director August 28, 1998
- ------------------------------------
Patrick L. Flinn
/s/ Homer B. Gibbs, Jr. Director August 28, 1998
- ------------------------------------
Homer B. Gibbs, Jr.
/s/ Samuel W. Kendrick Director August 28, 1998
- ------------------------------------
Samuel W. Kendrick
/s/ Donald W. MacLeod Director August 28, 1998
- ------------------------------------
Donald W. MacLeod
/s/ Bruce A. Morrice Director August 28, 1998
- ------------------------------------
Bruce A. Morrice
</TABLE>
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of IRT
Property Company (Incorporated by reference from the
Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997, Commission File Number
1-7859).
4.2 By-Laws of IRT Property Company, as Amended
(Incorporated by reference from the Company's
Quarterly Report of Form 10-Q for the quarter ended
March 31, 1995, Commission File Number 1-7859, and
the Company's Current Report on Form 8-K, dated
August 10, 1998).
5.1 Opinion of Alston & Bird LLP
23.1 Consent of Alston & Bird LLP (included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (contained on the signature pages
of this Registration Statement)
</TABLE>
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EXHIBIT 5.1
[Letterhead of Alston & Bird LLP]
August 26, 1998
IRT Property Company
200 Galleria Parkway, Suite 1400
Atlanta, Georgia 30339
Re: Form S-8 Registration Statement
IRT Property Company 1998 Long-Term Incentive Plan
Ladies and Gentlemen:
The undersigned has acted as special counsel for IRT Property Company,
a Georgia corporation (the "Company"), in connection with the above-referenced
Registration Statement on Form S-8 (the "Registration Statement") being filed by
the Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, and covering 1,625,000 shares of the Company's common
stock, $1.00 par value per share ("Company Stock"), that may be issued pursuant
to the IRT Property Company 1998 Long-Term Incentive Plan (the "Plan"). In
connection therewith, we have examined originals or copies of corporate records,
certificates of public officials and of officers of the Company and other
instruments as we have deemed relevant and necessary for the opinion hereinafter
expressed.
On the basis of the foregoing, it is our opinion that the 1,625,000
shares of Company Stock to be issued pursuant to the Plan, when issued in
accordance with the terms and conditions of the Plan, will be legally and
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing therein.
Sincerely,
ALSTON & BIRD LLP
By: /s/ Ralph F. MacDonald, III
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 30, 1998 included in IRT Property Company's Form 10-K for the year ended
December 31, 1997 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
AURTHUR ANDERSEN LLP
Atlanta, Georgia
August 27, 1998
