As filed with the Securities and Exchange Commission on September 29, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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Registration Statement
Under the
Securities Act of 1933
MERRY LAND & INVESTMENT COMPANY, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-0961876
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation Organization) Identification No.)
624 Ellis Street
Augusta, Georgia
706/722-6756 30901
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(Address of Principal Executive Offices) (Zip Code)
1995 STOCK OPTION AND INCENTIVE PLAN
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(Full Title of the Plan)
W. Hale Barrett
Secretary
Hull, Towill, Norman & Barrett, P.C.
7th Floor, Trust Company Bank Building
P.O. Box 1564
Augusta, Georgia 30903-1564
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(Name and Address of Agent For Service)
(706)722-4481
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(Telephone Number, Including Area Code, of Agent For Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Offering Aggregate
Securities Amount Price Offering Amount of
to be to be Per Share Price Registration
Registered Registered <F1> <F1> Fee
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<S> <C> <C> <C> <C>
Common Stock,
without par value 1,299,000 $21.5625 $28,009,688 $9,659
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<FN>
<F1> Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the amount of the registration fee. The price per share is
estimated to be $21.5625 based on the average of the high ($21.75) and
low ($21.375) sales prices for the Common Stock as traded on the New
York Stock Exchange on September 26, 1995.
===========================================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) the registrant's annual report on Form 10-K for the fiscal
year ended December 31, 1994;
(b) the registrant's current reports on Form 8-K/A filed on
(i) January 24, 1995 amending the Company's
current report on Form 8-K filed on
November 3, 1994;
(ii) February 7, 1995 amending the Company's
current report on Form 8-K filed on
August 15, 1994;
(iii) June 21, 1995 amending the Company's current
report on Form 8-K filed on June 19, 1995;
and
(iv) September 18, 1995 amending the Company's
current report on Form 8-K filed on April 28,
1995.
(c) the registrant's current reports on Form 8-K filed on
(i) February 14, 1995;
(ii) March 13, 1995;
(iii) June 8, 1995;
(iv) June 19, 1995;
(v) June 23, 1995;
(vi) July 14, 1995;
(vii) September 1, 1995; and
(viii) September 14, 1995.
(d) the registrant's quarterly reports on Form 10-Q for the
quarters ended March 31, 1995 and June 30, 1995; and
(e) the description of the registrant's Common Stock contained
in its registration statement on Form 8-A filed under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendment or report filed for the
purpose of updating such description.
All 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 that indicates that all securities offered have
been sold or that deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this registration statement
and to be part hereof from the date of filing of such documents.
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's Articles of Incorporation contain the following
provisions:
(a) No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of his duty
of care or other duty as a director, provided that this provision shall
eliminate or limit the liability of a director only to the maximum extent
permitted by the Georgia Business Corporation Code or any successor law.
(b) Any repeal or modification of Section 11 by the shareholders of
the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
The Registrant's By-laws include the following indemnification
provisions:
(a) The corporation shall indemnify any person who was or is
threatened to be made a party to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (by reason of the fact that he is or was a director of the
corporation (as used in this Article VII, "director" shall have the meaning
set forth in O.C.G.A. (S) 14-2-850(2)), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
person did not act in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and with respect to any
criminal action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
No indemnification under this subsection (a) shall be made:
(i) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(ii) In connection with any other proceeding in which he was
adjudged liable on the basis that personal benefit was
improperly received by him.
(b) The corporation shall indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact he is or was a director, against
expenses, (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit, if
he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the corporation; no indemnification
under this subsection (b) shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation, or is subjected to injunctive relief in favor of the
corporation:
(i) For any appropriation, in violation of his duties, of
any business opportunity of the corporation;
(ii) For acts or omissions which involve intentional
misconduct or a knowing violation of law;
(iii) For the types of liability set forth in Code Section
14-2-832; or
(iv) For any transaction from which he received an improper
personal benefit, unless and only to the extent that
the court in which such action or suit was brought
shall determine upon application that, despite
adjudication of liability but in view of all the
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses
which the court shall deem proper (see amendment to
articles of incorporation dated May 3, 1988).
(c) To the extent that a director of the corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraphs (a) and (b) of this Article, or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under paragraphs (a) and (b) of this Article,
unless ordered by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if a quorum cannot be obtained under
paragraph (1) of this subsection, by majority vote of a committee duly
designated by the board of directors (in which designation directors who
are parties may participate), consisting solely of two or more directors
not at the time parties to the proceeding; (3) by special legal counsel:
(a) selected by the board of directors of its committee in the manner
prescribed in paragraph (1) or (2) of this subsection; or (b) if a quorum
of the board of directors cannot be obtained under paragraph (1) of this
subsection and a committee cannot be designated under paragraph (2) of this
subsection, selected by majority vote of the full board of directors (in
which selection directors who are parties may participate); or (4) by the
shareholders, but shares owned by or voted under the control of directors
who are at the time parties to the proceeding may not be voted on the
determination; (5) authorization of indemnification or an obligation to
indemnify and evaluation as to reasonableness or expenses shall be made in
the same manner as the determination that indemnification is permissible;
except that if the determination is made by special legal counsel,
authorization or indemnification and evaluation as to reasonableness of
expenses shall be made by those entitled under paragraph (3) above to
select counsel.
(e) Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding only if:
(i) The director furnishes the corporation a written affirmation
of his good faith belief that his conduct does not
constitute behavior of the kind described in subsection (b)
of this Code section; and
(ii) The director furnishes the corporation a written
undertaking, executed personally or on his behalf, to repay
any advances if it is ultimately determined that he is not
entitled to indemnification under this Code section.
(f) If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the
shareholders or by an insurance carrier pursuant to insurance maintained by
the corporation, the corporation shall, not later than the next annual
meeting of the shareholders, unless such meeting is held within three (3)
months from the date of such payment, and, in any event, within fifteen
(15) months from the date of such payment, send (by personal delivery or
first class mail, or such other means as is authorized by O.C.G.A. Section
14-2-113) to its shareholders of record at the time entitled to vote for
the election of directors, a statement specifying the persons paid, the
amounts paid, and the nature and status at the time of such payment of the
litigation or threatened litigation.
(g) For purposes of this Article, reference to "the corporation"
shall be as defined in Section 14-2-850 O.C.G.A.
(h) The indemnification and advancement of expenses provided by or
granted pursuant to this Article shall, unless otherwise provided when a
director's term is terminated, continue as to a person who has ceased to be
a director, and shall inure to the benefit of the heirs, executors and
administrator of such a person.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1.1 -- Articles of Incorporation (filed as Exhibit 3(i) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1993 and incorporated by reference herein)
4.1.2 -- Articles of Amendment to Articles of Incorporation (filed
as Exhibit 1 to the registrant's report on Form 8-K/A
filed January 24, 1995 amending the Company's report on
Form 8-K filed on November 3, 1994, and incorporated by
reference herein)
4.2 -- Bylaws (filed as Exhibit 3(ii) to the Company's Annual
Report on Form 10-K for the year ended December 31, 1993
and incorporated by reference herein)
4.3 -- Specimen Common Stock Certificate (filed as Exhibit 4(f)
to the registrant's shelf registration statement on Form
S-3 filed February 9, 1995, registration number 33-57453,
and incorporated by reference herein)
5 -- Opinion of Hull, Towill, Norman & Barrett, P.C.
23.1 -- Consent of Arthur Andersen LLP
23.2 -- Consent of Hull, Towill, Norman & Barrett, P.C. (included
in Exhibit 5)
24 -- Power of Attorney (see signature page)
Item 9. Undertakings.
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 (the "Securities Act"); and
(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 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and 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
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for 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 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.
The undersigned 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 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefits
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus to each person to whom the prospectus is sent
or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the Prospectus, to deliver or cause to
be delivered to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
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.
==============================
Signature Blocks on
Following Page
==============================
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Augusta, State of Georgia, on
September 26, 1995.
MERRY LAND & INVESTMENT
COMPANY, INC.
BY: /S/
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W. Tennent Houston
As Its President
<PAGE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the date indicated. Each of the undersigned officers and directors of the
Registrant hereby constitutes PETER S. KNOX III and W. TENNENT HOUSTON,
either of whom may act, his true and lawful attorneys-in-fact with full
power to sign for him and in his name in the capacities indicated below and
to file any and all amendments to the Registration Statement filed
herewith, making such changes in the Registration Statement as the
registrant deems appropriate, and generally to do all such things in his
name and behalf in his capacity as an officer and director to enable the
registrant to comply with the provisions of the Securities Act and all
requirements of the Securities and Exchange Commission.
SIGNATURE TITLE AND CAPACITY DATE SIGNED
--------- ------------------ -----------
Chairman of the
Board and
Chief Executive
/S/ (L.S.) Officer
- -------------------------------- 9/26/95
Peter S. Knox III
President and
Chief Financial
/S/ (L.S.) Officer
- -------------------------------- 9/26/95
W. Tennent Houston
Secretary and
/S/ (L.S.) Director
- -------------------------------- 9/26/95
W. Hale Barrett
/S/ (L.S.) Director
- -------------------------------- 9/26/95
Pierce Merry, Jr.
/S/ (L.S.) Director
- -------------------------------- 9/26/95
Hugh Calvin Long II
/S/ (L.S.) Controller
- -------------------------------- 9/26/95
Ronald J. Benton
<PAGE>
EXHIBIT INDEX
(Exhibits described in Item 8 and not listed in this index are incorporated
by reference.)
<TABLE>
<CAPTION>
Sequentially
Numbered
Exhibit Document Page
------- -------- ------------
<S> <C> <C>
4.1.1 Articles of Incorporation (filed as Exhibit 3(i) N/A
to the Company's Annual Report on Form 10-K for
the year ended December 31, 1993 and incorporated
by reference herein)
4.1.2 Articles of Amendment to Articles of Incorporation N/A
(filed as Exhibit 1 to the registrant's report on
Form 8-K/A filed January 24, 1995 amending the
Company's report on Form 8-K filed on November 3, 1994,
and incorporated by reference herein)
4.2 Bylaws (filed as Exhibit 3(ii) to the Company's N/A
Annual Report on Form 10-K for the year ended
December 31, 1993 and incorporated by reference
herein)
4.3 Specimen Common Stock Certificate (filed as N/A
Exhibit 4(f) to the registrant's shelf
registration statement on Form S-3 filed
February 9, 1995, registration number 33-57453,
and incorporated by reference herein)
5 Opinion of Hull, Towill, Norman & Barrett, P.C.
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Hull, Towill, Norman & Barrett, P.C.
(included in Exhibit 5)
24 Power of Attorney (see signature page)
</TABLE>
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
September 29, 1995
MERRY LAND & INVESTMENT COMPANY, INC.
P.O. Box 1417
Augusta, GA 30913
RE: Registration with the SECURITIES AND EXCHANGE COMMISSION of
1,299,000 shares of the common stock of
MERRY LAND & INVESTMENT COMPANY, INC.
Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc. in
connection with its Registration Statement on Form S-8, of the proposed
offering of 1,299,000 shares of its common stock, without par value.
We are familiar with the articles of incorporation and by-laws of
Merry Land & Investment Company, Inc., and we have examined such additional
records and public documents as we deem necessary for the opinion
hereinafter expressed.
Based upon the foregoing, we are of the opinion that:
1. Merry Land & Investment Company, Inc. is a corporation duly organized
and existing under the laws of the State of Georgia and is in good
standing under the laws of that state.
2. All proceedings necessary to authorize the stock offering have been
taken.
3. The common stock has been duly authorized and, when sold and paid for
in accordance with the Registration Statement, will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to references to this opinion in the
Registration Statement filed by Merry Land & Investment Company, Inc. in
connection with the registration of its common stock.
/S/
Hull, Towill, Norman
& Barrett, P.C.
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our report dated September 16, 1994 included in the Company's
Form 8-K/A filed on February 7, 1995, the incorporation by reference of our
report dated January 13, 1995 included in the Company's Form 8-K filed on
February 14, 1995, the incorporation by reference of our report dated May 24,
1995 included in the Company's Form 8-K filed on June 19, 1995, the
incorporation by reference of our report dated May 24, 1995 included in the
Company's Form 8-K/A filed on June 21, 1995, the incorporation by reference of
our reports dated May 24, 1995 and August 4, 1995 included in the Company's
Form 8-K/A filed on September 18, 1995, the incorporation by reference of our
reports dated January 13, 1995 included in the Company's Form 10-K for the
year ended December 31, 1994, and to all references to our firm included in
or made a part of this Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
ATLANTA, GEORGIA
September 29, 1995
