As filed with the Securities and Exchange Commission on April 15, 1999
Registration Statement No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
VININGS INVESTMENT PROPERTIES TRUST
-----------------------------------
(Exact name of Registrant as specified in its charter)
Massachusetts 13-6850434
------------------------
(State of organization) (I.R.S. Employer Identification Number)
3111 Paces Mill Road
Suite A-200
Atlanta, GA 30339
(770) 984-9500
--------------------
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
VININGS INVESTMENT PROPERTIES TRUST
1997 STOCK OPTION AND INCENTIVE PLAN
------------------------------------
(Full Title of the Plans)
----------------------------
Peter D. Anzo
3111 Paces Mill Road
Suite A-200
Atlanta, GA 30339
(770) 984-9500
----------------------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------
With copies to:
GILBERT G. MENNA, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------ ------------------------- ---------------------- -------------------------- -----------------
Title of Securities Being Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Price Registration Fee
Share
============================== ========================= ====================== ========================== =================
<S> <C> <C> <C> <C>
Shares of Beneficial 81,250 $4.00 (2) $325,000.00 $154.90
Interest, no par value per share 1,500 4.75 (2) 7,125.00
26,000 5.00 (2) 130,000.00
25,555 3.72 (3) 95,065.00
------ ---------
134,305 Total Shares $557,190.00
============================== ========================= ====================== ========================== =================
<FN>
(1) Plus such additional number of shares as may be required pursuant to the
1997 Stock Option and Incentive Plan in the event of a stock dividend,
reverse stock split, split-up, recapitalization or other similar event.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for purposes of determining
the registration fee and is based upon the price at which outstanding
options may be exercised.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act, solely for purposes of determining the registration fee based on the
average of the bid and asked prices of the Registrant's Shares of
Beneficial Interest reported on the OTC Bulletin Board on April 12, 1999.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
- -------------------------------------------------------------
Vinings Investment Properties Trust (the "Trust") hereby incorporates by
reference the documents listed in (a) through (c) below, which have previously
been filed with the Securities and Exchange Commission:
(a) The Trust's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) all other reports filed with the Securities and Exchange
Commission by the Trust pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 since December 31, 1998; and
(c) the description of the Trust's Shares of Beneficial Interest, no par
value per share, contained in the Trust's Registration Statement on Form S-11
filed with the Securities and Exchange Commission on or about January 31, 1985
(File No. 2-94776), at page 32, "Description of Shares," and at pages 33-34,
"Summary of Declaration of Trust -- Redemption and Restrictions on Transfers of
Shares," and any amendments and reports filed for the purpose of updating such
description; provided, however, that such description is qualified in its
entirety to the provisions of the Second Amended and Restated Declaration of
Trust of the Trust, dated as of February 6, 1985, as amended by Amendments Nos.
1 and 2 thereto, each of which is incorporated by reference herein.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document 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 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, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
- ---------------------------------------
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
- -----------------------------------------------------
Not Applicable.
ITEM 6. INDEMNIFICATION OF TRUSTEES AND OFFICERS.
- -------------------------------------------------------
Section 1 of Chapter 182 of the Massachusetts General Laws provides that a
Massachusetts business trust operates under a written instrument or declaration
of trust. The Trust operates as a Massachusetts business trust under the Second
Amended and Restated Declaration of Trust dated as of February 15, 1985, as
amended by Amendment No. 1 thereto dated as of March 13, 1996 and as further
amended by Amendment No. 2 thereto dated as of June 25, 1996, in each case filed
with the Secretary of the Commonwealth of the Commonwealth of Massachusetts (as
so amended, the "Declaration"). Section 8.4 of the Declaration provides that the
Trust may indemnify a trustee or officer against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement in respect of or in
successful defense of any action, suit or proceeding if he gives prompt notice
thereof to the Trust and takes such actions as will permit the Trust to conduct
the defense or settlement thereof and cooperates therein; provided, however,
that no such person shall be so indemnified for any such claim arising out of
his bad faith, willful misfeasance, gross negligence or reckless disregard of
his duties to the Trust. The standard of conduct for purposes of determining the
right to such indemnification shall be determined by counsel to the Trust,
except to the extent that there is a judicial determination thereof. Such rights
of indemnification and reimbursement shall be satisfied only out of the assets
of the Trust estate.
The Declaration further provides, in Section 8.4 thereof, that the Trust
shall have the power to purchase and maintain liability insurance on behalf of
any person entitled to indemnity as a trustee or officer, whether or not the
Trust would have the power to indemnify against that liability. Accordingly, the
Trust has obtained trustees' and officers' insurance providing benefits
aggregating $3 million. In addition, Section 8.4 of the Declaration provides
that the indemnification rights provided by such provision shall not be deemed
exclusive of any other rights to which trustees and officers may be lawfully
entitled, nor shall anything in the Declaration restrict the right of the Trust
to indemnify or reimburse such person in any proper case even though not
specifically provided for therein, nor shall any provision in the Declaration
restrict such right of a trustee to contribution as may be available under
applicable law.
The Declaration further provides that any indemnification extended to a
trustee or officer pursuant to Section 8.4 thereof may include the reimbursement
of expenses by the Trust prior to the final disposition of the proceeding upon
the receipt of an undertaking by such indemnified person to repay such payment
unless it is determined that such indemnified person is entitled to such
indemnification by the Trust as provided by the terms and provisions of the
Declaration.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- --------------------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
- -----------------------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit Description
------- -----------
- -------------------------- -----------------------------------------------------
4.1 The description of the Trust's Shares of Beneficial
Interest (incorporated by reference to the Trust's
Registration Statement on Form S-11, filed on or
about January 31, 1985, No. 2-94776, "Description of
Shares," at page 32, and "Summary of Declaration of
Trust -- Redemption and Restrictions on Transfers of
Shares," at pages 33-34).
- -------------------------- -----------------------------------------------------
4.2 Second Amended and Restated Declaration of Trust
of the Trust (incorporated by reference to
Exhibit 3.1 to the Trust's Annual Report on Form
10-K for the fiscal year ended December 31, 1998,
No. 0-13693).
- -------------------------- -----------------------------------------------------
4.3 Amendment No. 1 to Second Amended and Restated
Declaration of Trust of the Trust (incorporated by
reference to Exhibit 3.2 to the Trust's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1998, No. 0-13693)
- -------------------------- -----------------------------------------------------
4.4 Amendment No. 2 to Second Amended and Restated
Declaration of Trust of the Trust (incorporated by
reference to Exhibit 3.3 to the Trust's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1998, No. 0-13693)
- -------------------------- -----------------------------------------------------
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered.
- -------------------------- -----------------------------------------------------
23.1 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto).
- -------------------------- -----------------------------------------------------
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
- -------------------------- -----------------------------------------------------
24.1 Powers of Attorney (included in signature page on
page 5 of this registration statement).
- -------------------------- -----------------------------------------------------
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;
(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 and 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 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(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) herein
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
undersigned 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 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 offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration, by means of a
post-effective amendment, any of the securities being registered
that remain unsold at the termination of the offering.
(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 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 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.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to trustees,
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 trustee, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such trustee, 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia, on this 15 day of April,
1999.
VININGS INVESTMENT PROPERTIES TRUST
By: /s/ Stephanie A. Reed
- -------------------------
Stephanie A. Reed
Vice President and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
trustees hereby severally constitute Peter D. Anzo and Stephanie A. Reed , and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement filed herewith and any and all amendments to
said Registration Statement, and generally to do all such things in our names
and in our capacities as trustees and officers to enable Vinings Investment
Properties Trust to comply with the provisions of the Securities Act of 1933 and
all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Capacity Date
--------- -------- ----
Chief Executive Officer, March 29, 1999
/s/ Peter D. Anzo President, and Chairman of
- ----------------------- of the Board of Trustees
(Principal Executive Officer)
Vice President, Secretary, March 29, 1999
/s/ Stephanie A. Reed Treasurer and Trustee
- ------------------------- (Principal Financial and
Accounting Officer)
/s/ Phill D. Greenblatt Trustee March 29, 1999
- ---------------------------
/s/ Henry Hirsch Trustee March 29, 1999
- --------------------------
/s/Martin H. Petersen Trustee March 29, 1999
- --------------------------
/s/ James D. Ross Trustee March 29, 1999
- --------------------------
/s/ Gilbert H. Watts, Jr. Trustee March 29, 1999
- --------------------------
Exhibit Description
------- -----------
- -------------------------- -----------------------------------------------------
4.1 The description of the Trust's Shares of Beneficial
Interest (incorporated by reference to the Trust's
Registration Statement on Form S-11, filed on or
about January 31, 1985, No. 2-94776, "Description of
Shares," at page 32, and "Summary of Declaration of
Trust -- Redemption and Restrictions on Transfers of
Shares," at pages 33-34).
- -------------------------- -----------------------------------------------------
4.2 Second Amended and Restated Declaration of Trust
of the Trust (incorporated by reference to
Exhibit 3.1 to the Trust's Annual Report on Form
10-K for the fiscal year ended December 31, 1998,
No. 0-13693).
- -------------------------- -----------------------------------------------------
4.3 Amendment No. 1 to Second Amended and Restated
Declaration of Trust of the Trust (incorporated by
reference to Exhibit 3.2 to the Trust's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1998, No. 0-13693)
- -------------------------- -----------------------------------------------------
4.4 Amendment No. 2 to Second Amended and Restated
Declaration of Trust of the Trust (incorporated by
reference to Exhibit 3.3 to the Trust's Annual
Report on Form 10-K for the fiscal year ended
December 31, 1998, No. 0-13693)
- -------------------------- -----------------------------------------------------
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered.
- -------------------------- -----------------------------------------------------
23.1 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1 hereto).
- -------------------------- -----------------------------------------------------
23.2 Consent of Arthur Andersen LLP, Independent Public
Accountants.
- -------------------------- -----------------------------------------------------
24.1 Powers of Attorney (included in signature page on
page 5 of this registration statement).
- -------------------------- -----------------------------------------------------
April 14, 1999
Vinings Investment Properties Trust
3111 Paces Mill Road
Suite A-200
Atlanta, GA 30339
Re: Legality of Securities to be Registered Under
Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished in connection with the filing of a
Registration Statement on Form S-8 (the "Registration Statement"), pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), of
134,305 shares (the "Shares") of beneficial interest, no par value per
share (the "Stock"), of Vinings Investment Properties Trust, a
Massachusetts business trust (the "Trust").
In connection with rendering this opinion, we have examined the
Trust's Second Amended and Restated Declaration of Trust dated as of
February 15, 1985, as amended by Amendment No. 1 thereto dated as of March
13, 1996 and as further amended by Amendment No. 2 thereto dated as of June
25, 1996, in each case filed with the Secretary of the Commonwealth of The
Commonwealth of Massachusetts; the Amended and Restated By-Laws of the
Trust dated as of January 15, 1985; such records of the trustee proceedings
of the Trust as we deem appropriate for the purposes of this opinion; the
Registration Statement; and the Vinings Investment Properties Trust 1997
Stock Option and Incentive Plan (the "Plan"). In our examination, we have
assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as certified,
photostatic or facsimile copies, the authenticity of the originals of such
copies and the authenticity of telephonic confirmations of public officials
and others. As to facts material to our opinion, we have relied upon
certificates or telephonic confirmations of public officials and
certificates, documents, statements and other information of the Trust or
representatives or officers thereof.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any
jurisdictions other than the laws of the United States of America and the
laws of The Commonwealth of Massachusetts.
Based upon the foregoing, we are of the opinion that when the
Shares have been issued and paid for in accordance with the terms of the
Plan and all applicable Trustee approvals, such Shares will be duly
authorized, validly issued, fully paid and non-assessable.
The foregoing assumes that all requisite steps will be taken to
comply with the requirements of the Securities Act and applicable
requirements of state laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February
26, 1999 on the consolidated financial statements and schedule of Vinings
Investment Properties Trust and Subsidiaries included in Vinings Investment
Properties Trust's Annual Report on Form 10-K for the year ended December
31, 1998 and to all references to our Firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Atlanta, Georgia
April 14, 1999
