As filed with the Securities and Exchange Commission on November 13, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MERRY LAND & INVESTMENT COMPANY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Georgia 58-0961876
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
624 Ellis Street
Augusta, Georgia
(706) 722-6756 30901
(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
W. Hale Barrett
Secretary
Hull, Towill, Norman & Barrett, P.C.
7th Floor, SunTrust Bank Building
P. O. Box 1564
Augusta, Georgia 30903-1564
(Name and Address of Agent for Service)
706/722-4481
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Amount to Proposed Maximum Proposed Maximum Amount of
securities be Offering Price Per Aggregate Offering Registration
to be registered registered Share(1) Price(1) Fee
<S> <C> <C> <C> <C>
Common Stock, without par value 2,133,700 $21.5313 $45,941,334 $13,921
(1)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
$21.5313 based on the average of the high ($21.75) and low ($21.3125) sales
prices for the Common Stock as traded on the New York Stock Exchange on
November 7, 1997.
<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, 1996;
(b)all other reports filed pursuant to <section> 13(a) or <section> 15(d)
since the end of the fiscal year covered by the most recent 10-K,
including (i) the registrant's quarterly reports on Form 10-Q for the
quarters ended March 31, 1997, June 30, 1997, and September 30,
1997; and (ii) the registrant's current reports on Form 8-K filed on
(A)July 29, 1997;
(B)August 6, 1997(2);
(C)September 15, 1997;
(D)September 22, 1997;
(E)October 8, 1997(2); and
(F)October 31, 1997;
(c)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;
(d)the registrant's definitive proxy statement dated March 24, 1997 relating
to the annual meeting of shareholders held on April 21, 1997.
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.
Certain legal opinions relating to the Shares offered hereby will be passed
upon for the Company by Hull, Towill, Norman & Barrett, P.C., Augusta, Georgia.
W. Hale Barrett, a member of the firm of Hull, Towill, Norman & Barrett, P.C.,
is a director and secretary of the Company and is also a Selling Shareholder.
He and members of his firm own 35,290 shares of Common Stock. Mr. Barrett is
eligible to receive awards of Stock Loan Rights under the Company's Stock
Option and Incentive Plan.
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 or 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 - Amended and Restated Articles of Incorporation (incorporated
herein by reference to Exhibit 4(a) to the Company's Shelf
Registration Statement of Form S-3 filed December 15, 1995,
file number 33-65067), as amended by Articles of Amendment to
Articles of Incorporation re Series D Preferred Stock
(incorporated herein by reference to Exhibit 4 to the Company's
current report on Form 8-K filed December 11, 1996)
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 (1)(i) and (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
Securities Exchange Act of 1934 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 November 7, 1997.
MERRY LAND & INVESTMENT COMPANY, INC.
/s/ 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 BOONE A. KNOX 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
/s/
______________(L.S.) Chairman of the Board Nov. 10, 1997
BOONE A. KNOX
/s/
______________(L.S.) President and Nov. 10, 1997
W. TENNENT HOUSTON Chief Executive Officer
/s/
______________(L.S.) Secretary and Director Nov. 11, 1997
W. HALE BARRETT
/s/
______________(L.S.) Director Nov. 11, 1997
ROBERT P. KIRBY
/s/
______________(L.S.) Director Nov. 11, 1997
PAUL S. SIMON
/s/
______________(L.S.) Director Nov. 12, 1997
MICHAEL N. THOMPSON Executive Vice President
and Chief Operating Officer
/s/
______________(L.S.) Director Nov. 11, 1997
HUGH CALVIN LONG II
/s/
______________(L.S.) Vice-President Nov. 11, 1997
RONALD J. BENTON
<PAGE>
EXHIBIT INDEX
(EXHIBITS DESCRIBED IN ITEM 8 AND NOT LISTED IN THIS INDEX ARE INCORPORATED BY
REFERENCE.)
</TABLE>
<TABLE>
<CAPTION>
EXHIBIT DOCUMENT Sequentially Numbered
PAGE
<S> <C> <C>
4.1.1 Articles of Incorporation (filed as Exhibit 3(i) to the N/A
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 N/A
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 N/A
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) N/A
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) N/A
</TABLE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference of our reports dated May 28, 1997 and May 30, 1997 included in
the Company's Form 8-K filed on August 6, 1997, the incorporation by
reference of our reports dated August 12, 1997, August 14, 1997, and August
30, 1997 included in the Company's Form 8-K filed on September 15, 1997,
the incorporation by reference of our reports dated September 22, 1997 and
September 29, 1997 included in the Company's Form 8-K filed on October 8,
1997, the incorporation by reference of our reports dated January 17, 1997
included in the Company's Form 10-K for the year ended December 31, 1996,
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
November 13, 1997
November 13, 1997
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
Re: Registration with the Securities and Exchange Commission of
2,133,700 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 2,133,700 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.
HULL, TOWILL, NORMAN &
BARRETT, P.C.
