SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
Registration Statement
Under the
Securities Act of 1933
---------------------------
BODDIE-NOELL PROPERTIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 56-1574675
(State of Incorporation) (I.R.S. Employer
Identification No.)
---------------------------
3710 One First Union Center
Charlotte, North Carolina 28202
(704) 333-1367
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Copies to:
D. Scott Wilkerson, President Brad S. Markoff
Boddie-Noell Properties, Inc. Smith Helms Mulliss & Moore, L.L.P.
3710 One First Union Center 316 W. Edenton Street
Charlotte, North Carolina 27604 Raleigh, North Carolina 27603
(704) 333-1367 (919) 755-8731
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent For Service)
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |X|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Amount being Proposed Maximum Proposed Maximum Amount of
being Registered Registered Offering Price Per Share(1) Aggregate Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value....... 300,000 $12.563 $3,768,750 $1,300
<FN>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) on the basis of the high and low sale price
of the Common Stock on the American Stock Exchange on June 25, 1996.
</FN>
</TABLE>
<PAGE>
PROSPECTUS
300,000 SHARES COMMON STOCK
BODDIE-NOELL PROPERTIES, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
Boddie-Noell Properties, Inc. (the "Company") hereby offers holders of
its shares of common stock, par value $.01 per share (the "Common Stock"), the
opportunity to participate in the Company's Dividend Reinvestment and Stock
Purchase Plan (the "Plan"). The Plan, which was created in 1988 under the name
"Automatic Dividend Reinvestment Service," will allow stockholders to invest
cash dividends and optional cash payments in shares of Common Stock of the
Company, without brokerage commissions or service charges. The Company has
amended the Plan effective July 26, 1996. A summary of the changes to the Plan
is set forth in this Prospectus.
All stockholders of record are eligible to join the Plan. Beneficial
owners of shares of Common Stock whose shares are registered in names other than
their own, by brokers, banks or other nominees, may join the Plan by having the
shares they wish to enroll in the Plan transferred to their own names or
arranging for the holders of record to join the Plan with respect to the shares
held for such beneficial owners.
Stockholders may purchase additional shares of Common Stock (i) by
having the cash dividends on all, or part, of their shares of Common Stock
automatically reinvested, (ii) by receiving directly, as usual, their cash
dividends, if and as declared, on their shares of Common Stock and investing in
the Plan by making cash payments of not less than $25 per payment nor more than
$10,000 per calendar quarter ("optional cash payments"), or (iii) by investing
both their cash dividends and such optional cash payments.
A stockholder of record who does not already participate in the Plan,
may join the Plan by completing an Authorization Card and returning it to First
Union National Bank of North Carolina, Shareholder Services Group, Dividend
Reinvestment Area, Two First Union Center, Charlotte, North Carolina,
28288-1153. Stockholders who are participants in the Plan may terminate their
participation at any time. Stockholders who are not participants in the Plan and
who do not want to become participants need do nothing and will continue to
receive their cash dividends, if and as declared, as usual.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
The date of this Prospectus is July 2, 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith the Company files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information may be inspected and copied, at
prescribed rates, at the public reference facilities of the Commission at 450
Fifth Street, N.W., Washington, DC 25049, Room 1024, and at the Commission's New
York regional office at Seven World Trade Center, New York, New York 10048 and
at the Commission's Chicago regional office at Northwest Atrium Center, 500 W.
Madison Street, Chicago, Illinois 60661. Copies of such material can also be
obtained at prescribed rates by writing to the public reference section of the
Commission at 450 Fifth Street, N.W., Washington, DC 20549. In addition, the
Common Stock of the Company is listed on the American Stock Exchange, and
similar information concerning the Company can be inspected and copied at the
offices of the American Stock Exchange, 86 Trinity Place, New York, New York
10006-1881.
The Company has filed with the Commission a registration statement on
Form S-3 (the "Registration Statement") under the Securities Act, with respect
to the Common Stock. This prospectus ("Prospectus"), which constitutes a part of
the Registration Statement, does not contain all of the information set forth in
the Registration Statement and in the exhibits and schedules thereto. For
further information with respect to the Company and the Common Stock, reference
is hereby made to such Registration Statement, exhibits and schedules. The
Registration Statement may be inspected without charge at, or copies obtained
upon payment of prescribed fees from, the Commission and its regional offices at
the locations listed above. Any statements contained herein concerning a
provision of any document are not necessarily complete, and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference and made a
part hereof:
a. The Company's Annual Report on Form 10-K for the year ended
December 31, 1995;
b. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996;
c. The description of the Common Stock of the Company included in
the Company's Registration Statement on Form 8-A, dated April
27, 1987; and
d. The Company's Current Report on Form 8-K, dated April 29,
1996.
All documents filed by the Company with the Commission pursuant to
Sections 13(a) and 13(c) of the Exchange Act and any definitive proxy statements
so filed pursuant to Section 14 of the Exchange Act and any reports filed
pursuant to Section 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of the offering of the Securities to which this
Prospectus relates shall be deemed to be
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incorporated by reference into this Prospectus 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 the purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document that is incorporated by
reference herein modifies or supersedes such earlier statement. Any such
statements modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Copies of any or all of the documents specifically incorporated herein
by reference (not including the exhibits to such documents, unless such exhibits
are specifically incorporated by reference in such documents) will be furnished
without charge to each person, including any beneficial owner, to whom a copy of
this Prospectus is delivered upon written or oral request. Requests should be
made to: Boddie-Noell Properties, Inc., 3710 One First Union Center, Charlotte,
North Carolina 28202.
THE COMPANY
Boddie-Noell Properties, Inc. (the "Company"), a Delaware corporation,
is the issuer of the shares of Common Stock, par value $.01 per share, offered
hereunder. The principal executive office of the Company is located at 3710 One
First Union Center, Charlotte, North Carolina 28202; telephone number (704)
333-1367.
DESCRIPTION OF THE DIVIDEND
REINVESTMENT AND STOCK PURCHASE PLAN
The terms of the Company's Dividend Reinvestment and Stock Purchase
Plan (the "Plan"), as amended effective July 26, 1996, are set forth below in
question and answer format.
Purpose
1. What is the purpose of the Plan?
The purpose of the Plan is to provide holders of shares of Common Stock
with a simple and convenient method of investing cash dividends or optional cash
payments in shares of Common Stock without payment of any brokerage commissions,
fees or service charges. Shares of Common Stock purchased under the Plan will
either be original issue shares or shares purchased in the open market by the
Plan administrator, First Union National Bank of North Carolina (the "Bank").
The Plan accordingly has the added benefit of providing the Company with
additional funds for general corporate purposes when the Company elects to sell
shares of its Common Stock under the Plan.
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Advantages to Participants
2. What are the options available to stockholders?
Holders of record of shares of Common Stock who participate in the Plan
(each, a "Participant") may purchase additional shares of Common Stock (i) by
having the cash dividends on all, or part, of their shares of Common Stock
automatically reinvested, (ii) by receiving directly, as usual, their cash
dividends, if and as declared, on their shares of Common Stock and investing in
the Plan by making cash payments of not less than $25 nor more than $10,000 per
calendar quarter per beneficial owner, or (iii) by investing both their cash
dividends and such optional cash payments. Such options are also available to
beneficial owners of Common Stock whose shares are registered in names other
than their own by having the shares they wish to enroll in the Plan transferred
to their own name or arranging for the holder of record to join the Plan on such
beneficial owners' behalf.
3. What are the advantages of the Plan?
No brokerage commissions, fees or service charges are paid by
stockholders in connection with purchases under the Plan; provided, however,
that if shares are registered in the name of a nominee or broker, such nominee
or broker may charge a commission or fee. Full investment of dividends is
possible under the Plan because the Plan permits fractions of shares, as well as
whole shares, to be purchased and credited to Participants' accounts. Regular
statements of account provide simplified record keeping. In addition, the Bank's
safekeeping of the shares purchased for a Participant's account will protect
against loss, theft or destruction of certificates. At a Participant's request,
the Bank will also hold certificates representing shares for which a Participant
has elected dividend reinvestment.
The price of shares of Common Stock purchased under the Plan from the
Company with reinvested cash dividends or optional cash payments will have a
purchase price equal to 100% of the average closing price for the Common Stock
on the American Stock Exchange for the five trading days immediately preceding
the dividend payment date. For open market purchases, the purchase price will be
the weighted average price paid by the Bank for all shares purchased by it for
Participants with the proceeds of the cash dividend and optional cash payments
being invested on the applicable dividend payment date.
Administration
4. Who administers the Plan for Participants?
First Union National Bank of North Carolina, or such other bank or
trust company as the Company may from time to time designate as Plan
administrator for the participating stockholders, administers the Plan for
Participants, keeping records, sending statements of account to Participants and
performing other duties relating to the Plan. Shares of Common Stock purchased
under the Plan are held by the Bank as agent for the Participants and are
registered in the name of the Bank or its nominee, unless and until a
Participant requests that a stock certificate for his or her shares be issued,
as more fully described in Question 17.
The Company has directed the Bank to process all purchases and sales
for the Plan through First Union Brokerage Services, Inc. First Union Brokerage
Services, Inc. has agreed to process all purchases and
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sales of stock for the Plan on a non-profit basis and will charge fees only to
the extent necessary to cover its cost in effecting the trade. In addition, no
minimum fee will be applied to any transaction.
Any questions or correspondence should be directed to:
First Union National Bank of North Carolina
Shareholder Services Group
Dividend Reinvestment Area
Two First Union Center
Charlotte, North Carolina 28288-1153
(800) 829-8432
Participation
5. Who is eligible to participate?
All holders of record of shares of Common Stock are eligible to
participate in the Plan ("Eligible Stockholders"). In order to be eligible to
participate, beneficial owners of shares of Common Stock whose shares are
registered in names other than their own (for example, shares registered in the
name of a broker, bank nominee or trustee) must either have the shares they wish
to enroll in the Plan transferred to their own names or arrange for the holder
of record to join the Plan with respect to the shares of such beneficial owners.
6. How does an Eligible Stockholder participate?
An Eligible Stockholder may join the Plan by completing and signing an
Authorization Card and returning it to the Bank. When completing the
Authorization Card, an Eligible Stockholder should be careful to include his or
her social security number or taxpayer identification number. Failure to supply
this information will result in backup withholding of 31% of payments owed to a
Participant for payment of taxes. Once enrolled in the Plan, Participants will
continue to be enrolled without further action on their part. Participants may
change their investment options at any time by completing, signing and returning
to the bank a new Authorization Card. If a Participant's shares are registered
in more than one name (e.g., joint tenants, trustees, etc.), all registered
owners must sign the Authorization Card exactly as their names appear on the
account registration.
Additional Authorization Cards and additional copies of this Prospectus
may be obtained at any time by written request to the Bank at the address set
forth in Question 4 above.
7. When may an Eligible Stockholder join the Plan?
An Eligible Stockholder may join the Plan at any time.
Reinvestment of dividends commences, for any stockholder electing such
option, with the first dividend paid after such stockholder joins the Plan,
provided that an Authorization Card is received for such stockholder by the Bank
before the record date for such dividend. If any Eligible Stockholder delivers
an Authorization Card specifying reinvestment of dividends paid on such holder's
shares of Common Stock to
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the Bank on or after the record date established for payment of a particular
dividend on the Common Stock, reinvestment will commence with the dividend
payment date following the next record date.
See Question 13 below for information concerning the investment of
optional cash payments.
8. What does the Authorization Card say about dividends and optional cash
payments?
The Authorization Card allows each Eligible Stockholder to decide the
extent to which he or she wishes to participate in the Plan through any of the
following investment options:
(a) Full Dividend Reinvestment. If the "Full Dividend Reinvestment" box
is checked, the Bank will purchase additional shares of Common Stock for the
account of the Participant using (i) cash dividends on all shares of Common
Stock registered in the Participant's name, (ii) cash dividends on all shares of
Common Stock credited to the Participant's Plan account, and (iii) any optional
cash payments received from the Participant.
(b) Partial Dividend Reinvestment. If the "Partial Dividend
Reinvestment" box is checked, the Bank will purchase additional shares of Common
Stock for the account of the Participant using (i) cash dividends on such number
of shares of Common Stock registered in the Participant's name as specified by
the Participant on the Authorization Card, (ii) cash dividends on all shares of
Common Stock credited to the Participant's Plan account, and (iii) any optional
cash payments received from the Participant.
(c) Optional Cash Payments Only. If the "Optional Cash Payments Only"
box is checked, the Bank will purchase additional shares of Common Stock for the
account of the Participant using only (i) optional cash payments received from
the Participant and (ii) cash dividends on all shares credited to the
Participant's Plan account. Cash dividends on shares of Common Stock registered
in the Participant's name, other than in his or her Plan account, will be paid
to the Participant in the usual manner.
9. How may Participants change their investment options?
A Participant may change his or her investment option at any time by
signing a new Authorization Card and returning it to the Bank. A change in
investment option will be effective on the next dividend payment date if the
Authorization Card is received by the Bank five business days before the related
dividend record date. If the Authorization Card is received by the Bank on or
after the related dividend record date, the change will be effective on the
dividend payment date following the next record date.
Costs
10. Are there any expenses to stockholders in connection with participation
under the Plan?
Participants incur no brokerage fees with respect to the purchases
under the Plan, and the Company pays all other costs of administering the Plan.
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If a stockholder's shares are registered in the name of a nominee or
broker, such nominee or broker may charge a commission or fee in connection with
purchases under the Plan. Any such commissions or fees will be the
responsibility of such stockholder.
If a Participant requests that the Bank sell shares credited to his or
her account under the Plan (as described at Question 18 below), the Participant
may have to pay brokerage commissions and transfer taxes in connection with such
sale.
Purchases
11. How many shares of Common Stock will be purchased for each Participant?
The number of shares to be purchased for a Participant's account under
the Plan will depend upon the amount of the Participant's dividend being
reinvested, the amount of any optional cash payments and the effective purchase
price of the Common Stock. Each Participant's account is credited with the
number of shares, including fractions computed to at least four decimal places,
equal to the total amount invested by him or her divided by the applicable
purchase price.
12. At what price and when will Common Stock be purchased under the Plan?
Shares purchased from the Company will be made for a Participant's
account effective as of the close of business on the dividend payment date. The
price of shares of Common Stock purchased under the Plan from the Company with
reinvested cash dividends and optional cash payments will have a purchase price
equal to 100% of the average closing price for the Common Stock on the American
Stock Exchange for the five trading days immediately preceding the dividend
payment date.
If the Company does not elect to sell shares of Common Stock under the
Plan on a dividend payment date, the Bank will purchase shares of Common Stock
on such dividend payment date on any securities exchange where such shares are
traded, in the over-the-counter market or in negotiated transactions, on such
terms as the Bank may determine. For such open market purchases, the purchase
price will be the weighted average price paid by the Bank for all shares
purchased by it for Participants with the proceeds of the cash dividend and
optional cash payments being invested on the applicable dividend payment date.
Since purchase prices for the Common Stock are established on the
applicable dividend payment date, a stockholder loses any advantages otherwise
available from being able to select the timing of investments. Stockholders
should recognize that neither the Company nor the Bank can assure a profit or
protect against a loss on shares of Common Stock purchased under the Plan.
13. How are optional cash payments made?
Optional cash payments may be made at any time and in varying amounts
of not less than $25 per payment nor more than $10,000 per calendar quarter. A
stockholder may make an optional cash payment when enrolling in the Plan by
enclosing a check (made payable to First Union National Bank of North Carolina)
with the Authorization Card. Thereafter, optional cash payments may be made
through the use of optional cash payment forms which will be sent to
Participants by the Bank.
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In the event a broker, bank nominee or trustee holds shares of a
beneficial owner in the name of a major securities depository, optional cash
payments must be made on a Broker and Nominee Form (a "B&N Form"). The B&N Form
is the sole means by which a broker, bank nominee or trustee holding shares of a
beneficial owner in the name of a major securities depository may invest
optional cash payments on behalf of such beneficial owner. In such a case, the
broker, bank nominee or trustee must use the B&N Form for transmitting optional
cash payments on behalf of the beneficial owner. A B&N Form must be delivered to
the Bank each time that such broker, bank nominee or trustee transmits optional
cash payments on behalf of a beneficial owner. B&N Forms will be furnished at
any time upon written request to the Bank.
Optional cash payments, like dividends, will be invested on the
dividend payment date. However, payments must be received at least three
business days and no more than 30 days prior to the applicable dividend payment
date in order to be invested on such dividend payment date; otherwise, payments
will be returned to the Participant. NO INTEREST WILL BE PAID ON OPTIONAL CASH
PAYMENTS. IT IS THEREFORE SUGGESTED THAT ANY OPTIONAL CASH PAYMENTS A
PARTICIPANT WISHES TO MAKE BE SENT SO AS TO REACH THE BANK AS CLOSE AS POSSIBLE
TO THREE BUSINESS DAYS BEFORE THE DIVIDEND PAYMENT DATE. The same amount of
money need not be sent each quarter, and there is no obligation to make an
optional cash payment each quarter. Optional cash payments will be refunded if a
written request for a refund is received by the Bank no later than two days
prior to the related dividend payment date.
An Eligible Stockholder may participate through the investment of
optional cash payments without the necessity of reinvesting cash dividends by
checking the "Optional Cash Payments Only" box on the Authorization Card.
However, even if the "Optional Cash Payments Only" box is checked, all dividends
payable on shares purchased with optional cash payments and retained in the
Participant's Plan account will be reinvested automatically in additional shares
of Common Stock.
In the event that any check is returned unpaid for any reason, the Bank
will consider the request for investment null and void and shall immediately
remove from the Participant's account shares, if any, purchased upon credit of
such money. The Bank shall hereupon be entitled to sell these shares to satisfy
uncollected amounts. If the net proceeds of the sale of such shares are
insufficient to satisfy the balance of such uncollected amounts, the Bank shall
be entitled to sell such additional shares from the Participant's account as
needed to satisfy the uncollected balance.
Reports to Participants
14. What kind of reports are sent to Participants in the Plan?
Participants will be sent a quarterly statement of their accounts.
These statements of account will show any cash dividends and optional cash
payments received, the number of shares purchased, the purchase price for the
shares, the number of Plan shares held for the Participant by the Bank, the
number of enrolled shares registered in the name of the Participant, and an
accumulation of the transactions for the calendar year to date. Quarterly
statements will be mailed as soon as practicable after each dividend payment
date. These statements are a Participant's continuing record of the cost of his
or her purchases and should be retained for income tax purposes.
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In addition, each Participant will receive the most recent Prospectus
constituting the Plan and copies of the same communications sent to every other
holder of shares of Common Stock, including the Company's annual report, notice
of annual meeting and proxy statement and income tax information for reporting
distributions (including dividends) paid by the Company.
Dividends
15. How are dividends credited to Participants' accounts under the Plan?
On shares of Common Stock for which a Participant has directed that
dividends be reinvested, cash dividends will automatically be credited to a
Participant's account under the Plan and reinvested in additional shares of
Common Stock. Cash dividends also will be automatically reinvested on all shares
that have been purchased under the Plan and credited to a Participant's Plan
account; provided, however, that no dividends will be earned on such shares
purchased under the Plan until the dividend payment for the first dividend
record date that follows the date of purchase of such shares. On shares of
Common Stock for which a Participant has not directed that dividends be
reinvested and on shares owned by stockholders who are not participating in the
Plan, cash dividends, if and as declared, will be received by them by check as
usual.
16. Will Participants be credited with dividends on fractions of shares?
Yes. Account balances will be computed to at least four decimal places
and dividends will be paid on the fractional shares.
Certificates for Shares
17. Will certificates be issued for shares of Common Stock purchased under
the Plan?
Unless requested by a Participant, certificates for shares of Common
Stock purchased under the Plan will not be issued. Shares will be held in the
name of the Bank or its nominees. The number of shares credited to a
Participant's account under the Plan will be shown on his or her statement of
account. Certificates for any number of whole shares credited to an account
under the Plan will be issued upon the written request of a Participant.
The remaining whole shares and fractions of shares, if any, will
continue to be credited to the Participant's account. A request for issuance of
Plan shares, including issuance of all of the shares in a Participant's account,
will not constitute a termination of participation in the Plan by the
Participant.
Certificates for fractional shares are not issued under any
circumstances.
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Sale or Other Disposition of Plan Shares
18. How may a Participant sell, pledge or assign shares held in the Plan?
A Participant who desires to sell shares of Common Stock in a Plan
account must request that certificates for such shares be issued in the
Participant's name or, as an alternative, may request the Bank to sell whole
shares credited to his or her account under the Plan. If a Participant requests
that the Bank sell shares credited to his or her Plan account, the Bank will use
its best efforts to make the sale in the open market within 10 trading days
after receipt of the written request, and the Participant will receive the
proceeds of the sale minus any brokerage commissions and transfer taxes. No
Participant has the authority or power to direct the date or sale price at which
the Common Stock may be sold by the Bank under this alternative.
Any written instructions that do not clearly indicate the whole number
of shares to be sold, or that "all" Plan shares are to be sold, will be returned
to the Participant with no action taken.
A Participant who wishes to sell some or all of his or her shares in
the Plan should be aware of the risk that the price of the Common Stock may
decrease between the time that the Participant determines to sell shares in the
Plan and the time that the sale is completed. This risk is borne solely by the
Participant. No check for the proceeds of such sale will be mailed prior to the
settlement of funds from the brokerage firm through which shares in the Plan are
sold. Settlement is normally three business days after the sale of the shares.
All information relating to the sale of shares in the Plan will be
reported to the Internal Revenue Service pursuant to applicable legal
requirements.
A Participant may not pledge or assign shares credited to a Plan
account. Any such purported pledge or assignment will be void. If a Participant
wants to pledge or assign such shares, the Participant must request that a
certificate for such shares be issued in the Participant's name.
Withdrawal of Shares in Plan Accounts
19. How may a Participant withdraw from the Plan?
A Participant may at any time withdraw all or any portion of the full
shares of Common Stock held in the Participant's Plan account. A request for
withdrawal should be in writing and sent to the Bank. Certificates for the full
shares so withdrawn will be issued in the name of and mailed to the Participant.
Upon a request to withdraw all shares from a Participant's Plan account, any
fractional share interest will be liquidated and a check for the market value of
the fractional share interest (without deducting any expense or commission) will
be mailed to the Participant. See Question 18 above for a discussion of how a
Participant may sell shares in his or her Plan account through the Bank rather
than first withdrawing shares from the Plan and then selling them on the open
market through a broker.
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Termination of Participation
20. When and how may participation in the Plan be terminated?
A Participant may terminate participation in the Plan by written notice
to the Bank. When a Participant terminates his or her participation in the Plan
(or upon termination of the Plan by the Company), certificates for whole shares
in his or her account under the Plan are issued and a cash payment is made for
any fraction of a share in such account.
If the written termination notice is received by the Bank five business
days before the record date for a dividend, the termination will be duly
processed and such dividend will not be reinvested on the next dividend payment
date. Any written notice of termination which is not received within five
business days before a dividend record date will not be effective until
dividends for such record date have been invested and the shares have been
allocated to the account of the respective Participant. After such dividends are
invested and allocated to the Participants' accounts, termination requests will
be processed. Allocations may take up to two weeks after dividend payment.
Neither the Bank nor the Company is responsible for losses during such periods.
Any optional cash payment received by the Bank prior to the receipt of a
termination notice will be invested in shares of Common Stock unless the
Participant expressly requests in writing that the optional cash payment be
returned and the Bank receives the Participant's written request two days before
the applicable dividend payment date.
A Participant may re-enroll in the Plan at any time by submitting an
Authorization Card as described in Question 6.
21. May a Participant terminate the reinvestment of dividends on shares
held in his or her name and still remain in the Plan?
Yes. A Participant who terminates the reinvestment of dividends paid on
shares registered in his or her name may leave in the Plan the shares previously
purchased for his or her account in the Plan. Dividends paid on shares left in
the Plan continue to be reinvested automatically for his or her account.
Tax Consequences of Participation in the Plan
22. What are the federal income tax consequences of participation in the
Plan?
Under the current provisions of the Internal Revenue Code of 1986, as
amended (the "Code"), the purchase of shares of Common Stock under the Plan will
generally result in the following federal income tax consequences:
(a) A dividend on shares of Common Stock will be treated for federal
income tax purposes as a dividend received by the stockholder notwithstanding
that it is used to purchase additional Common Stock pursuant to the Plan. The
full amount of cash dividends reinvested under the Plan represents dividend
income to participating stockholders. In addition, the amount of any brokerage
commissions, mark-ups and other fees or expenses incurred by the Company on
behalf of a participating stockholder in connection with purchases on the open
market will also constitute a dividend to such stockholder for federal income
tax purposes.
11
<PAGE>
(b) Dividends paid to corporate stockholders, including amounts taxable
as dividends to corporate stockholders under (a) above, will not be eligible for
the corporate dividends-received deduction under the Code.
(c) A stockholder's tax basis in additional shares of Common Stock
acquired under the Plan with reinvested dividends will be equal to the fair
market value of such shares as of the date of distribution. A stockholder's tax
basis in additional shares of Common Stock acquired under the Plan with optional
cash payments will be equal to the amount of the optional cash payments plus the
excess, if any, of the fair market value of the shares, on the date such shares
were acquired, over the amount of such optional cash payments. The stockholder's
holding period for Common Stock purchased under the Plan will commence on the
day after the dividend payment date.
(d) A stockholder will not realize any taxable income upon the receipt
of a certificate for full shares credited to the stockholder's account. A
stockholder will, however, recognize gain or loss when the stockholder sells or
exchanges shares received from the Plan or when a fractional share interest is
liquidated. Such gain or loss will equal the difference between the amount that
the stockholder receives for such fractional share interest or such shares and
the tax basis therefor.
In the case of participating stockholders whose dividends are subject
to withholding of federal income tax, dividends will be reinvested less the
amount of tax required to be withheld.
The above is intended only as a general discussion of the current
federal income tax consequence of participation in the Plan. Stockholders should
consult their own tax advisers regarding the federal and state income tax
consequences (including the effects of any changes in law) of their individual
participation in the Plan.
Other Information
23. What happens when a Participant sells or transfers all of the shares
registered in his or her name other than shares under the Plan?
If a Participant disposes of all of the shares of Common Stock
registered in his or her name other than shares purchased for the Participant's
account under the Plan, the Bank, until it is otherwise instructed, continues to
reinvest the dividends on the shares of Common Stock in the Participant's Plan
account. In the event of a Participant's death or incapacity, the personal
representative of his or her estate may provide the Bank with a written request
of withdrawal of the Participant's Plan shares. The Company reserves the right
not to reinvest any additional dividends if a Participant has only a fractional
share of stock credited to his or her account under the Plan on the record date
for any cash dividend on the Common Stock. If the Company exercises this right,
the Participant will receive a cash adjustment representing the fractional share
and a cash payment for the dividend. The cash payment for the fractional share
will be based on the closing price of the Common Stock on the American Stock
Exchange on the date on which the Company exercises this right.
12
<PAGE>
24. What happens in the event of a stock dividend, stock split or rights
offering?
Any shares representing stock dividends (payable in Common Stock) or
stock splits distributed by the Company on shares of Common Stock credited to
the account of a Participant under the Plan will be added to the Participant's
account. Shares representing stock dividends payable other than in Common Stock
on shares of Common Stock credited to the account of a Participant under the
Plan shall be paid to the Bank, which shall distribute the shares in accordance
with the interests of Participants in the Plan. Shares representing stock
dividends or split shares distributed on shares registered in the name of the
Participant will be mailed directly to such Participant in the same manner as to
stockholders who are not participating in the Plan.
If the Company makes available rights or warrants to purchase
additional Company shares or other securities, such rights or warrants will be
made available to Participants based on the number of shares (including
fractional share interests to the extent practicable) held in their accounts on
the record date established for determining the stockholders entitled to such
rights or warrants.
25. How will a Participant's Plan shares be voted at a stockholders
meeting?
All shares in a Plan account will be added to the shares registered in
the Participant's name on the stockholder records of the Company and the
Participant will receive one proxy for all such shares which proxy will be voted
as the Participant directs or the Participant may vote all shares in person at
the stockholders' meeting.
26. What are the responsibilities of the Company and the Bank under the
Plan?
Neither the Company nor the Bank will be liable for any act done in
good faith or for any good faith omission to act, including, without limitation,
any claims of liability arising out of a failure to terminate a Participant's
account upon such Participant's death or adjudicated incompetency prior to the
receipt of notice in writing of such death or adjudicated incompetency, the
prices at which shares are purchased for the Participant's account, the times
when purchases are made or fluctuations in the market value of the Common Stock.
Neither the Company nor the Bank has any duties, responsibilities or liabilities
except those expressly set forth in the Plan.
STOCKHOLDERS SHOULD RECOGNIZE THAT NEITHER THE COMPANY NOR THE BANK
CAN ASSURE A PROFIT OR PROTECT AGAINST LOSS ON THE SHARES PURCHASED UNDER
THE PLAN.
27. May the Plan be changed or discontinued?
Although the Plan is intended to continue indefinitely, the Company
reserves the right to suspend or terminate the Plan at any time. The Company
also reserves the right to make modifications to the Plan. Notice of such
suspension, termination, or modification will be sent to all Participants.
The Company intends to use its best efforts to maintain the
effectiveness of the Registration Statement filed with the Commission covering
the offer and sale of Common Stock under the Plan. However,
13
<PAGE>
the Company has no obligation to offer, issue or sell Common Stock under the
Plan if, at the time of the offer, issuance or sale, such Registration Statement
is for any reason not effective. Also, the Company may elect not to offer or
sell Common Stock under the Plan to stockholders residing in any jurisdiction or
foreign country where, in the judgment of the Company, the burden or expense of
compliance with applicable blue sky or securities laws makes such offer or sale
there impracticable or inadvisable. In any of these circumstances, dividends, if
and as declared, will be paid in the usual manner to the stockholders and any
optional cash payments received from such stockholder will be returned to him or
her.
Resale Restrictions
28. Are there any restrictions on the resale of Common Stock acquired under
the Plan?
Beneficial owners of shares of Common Stock acquired under the Plan are
free to sell at any time such shares unless such owners are "affiliates" of the
Company. Beneficial owners who are "affiliates" of the Company, as that term is
defined in Rule 405 promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), may not publicly reoffer shares acquired under the Plan except pursuant
to Rule 144 of the Commission or pursuant to an effective Registration
Statement. Rule 405 defines as "affiliate" as a person who directly, or
indirectly through one or more intermediaries, controls, is controlled by or is
under common control with the Company. Directors and certain officers of the
Company may be "affiliates" of the Company under this definition.
Directors and certain executive officers of the Company participating
in the Plan are also subject to the reporting obligation of Section 16(a) and
the short-swing profit recovery provisions of Section 16(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with respect to purchases
of the Common Stock made under the Plan with optional cash payments. Although
such directors and officers are not subject to the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act with respect to purchases of
Common Stock made under the Plan with reinvested dividends, such purchases must
be disclosed on annual reports filed pursuant to Section 16(a) of the Exchange
Act.
Limitations on Participation
29. Are there limitations on participation in the Plan other than those
described above?
The Company reserves the right to limit participation in the Plan for
any reason, even if a stockholder is otherwise eligible to participate. In order
to enable the Company to meet one of the requirements for continued
qualification as a real estate investment trust, the Company's Articles of
Incorporation limit ownership by any one person to no more than 9.8% of the
Company's outstanding capital stock. No stockholder may acquire any shares
pursuant to the Plan that exceed this limit. Some stockholders may be residents
of jurisdictions in which the Company determines that it may not legally or
economically offer its shares under the Plan, and accordingly residents of such
jurisdictions may be precluded from participating in the Plan. The Company has
no present plans to limit participation in the Plan by any stockholder of record
for reasons other that those set forth above, but it reserves such right if it
determines in its sole discretion that such limitation may be in the best
interests of the Company.
14
<PAGE>
Summary of Changes to the Plan
30. What are the principal changes to the Plan caused by the amendment
effective July 26, 1996?
The principal differences between the Plan as originally adopted and
the Plan as amended effective July 26, 1996 are summarized below:
TYPE OF PURCHASE
Original Plan
Purchases were made solely on the open market.
Amended Plan
Company has option of issuing stock to Participants or causing purchases to
be made on the open market.
BROKERAGE FEES
Original Plan
Brokerage fees were paid by Participants.
Amended Plan
The Company will pay all brokerage fees.
PARTICIPANT OPTIONS REGARDING EXTENT OF PARTICIPATION
Original Plan
Participants must have all cash dividends on all shares owned reinvested
and may make optional cash payments from $25 to $3,000 per quarter for
additional shares.
Amended Plan
Participants may have the cash dividends on all, or part, of their shares
reinvested and/or may make optional cash payments from $25 to $10,000 per
quarter for additional shares.
SELLING SHARES IN A PLAN ACCOUNT
Original Plan
To sell shares in a Plan account, Participants had to withdraw the shares
and sell them without assistance from the Bank.
Amended Plan
Participants may request the Bank to sell whole shares credited to their
accounts (see "Sale of Other Disposition of Plan Shares" above) or they may
sell their shares without assistance from the Bank after requesting that
certificates for their shares be issued in their names.
TREATMENT OF RIGHTS OFFERINGS
Original Plan
If the Company made available to its shareholders rights to purchase
additional shares or other securities, the Bank would sell such rights (if
transferable under the securities laws) accruing to shares held by the Bank
for the Participant. The Bank would combine the resulting funds with any
other Participant account funds for reinvestment at the next purchase date.
Amended Plan
If the Company makes available to its shareholders rights to purchase
additional shares or other securities, the Bank will distribute such rights
to Participants based on the number of shares held in their accounts on the
record date established for determining the stockholders entitled to such
rights.
15
<PAGE>
USE OF PROCEEDS
The Company intends to use proceeds from the sale of its Common Stock
for general corporate purposes, including repayment of indebtedness, investment
in new properties and new developments and maintenance of currently owned
property. The Company has no basis for estimating either the number of shares of
Common Stock that ultimately will be sold pursuant to the Plan or the prices at
which such shares will be sold.
COMMON STOCK
Holders of the Common Stock of the Company are entitled to share
equally, share for share, in dividends payable in cash, stock or other property,
as and if declared by the Company's Board of Directors. In the event of any
liquidation, dissolution or winding-up, the holders of the Common Stock are
entitled to receive, on a share for share basis, any assets or funds of the
Company that are distributable to its holders of Common Stock upon such events.
Holders of Common Stock are entitled to one vote for each share held on all
matters voted upon by stockholders. Holders of Common Stock are not entitled to
preemptive rights or to cumulative voting rights. The shares of Common Stock
issued or to be issued upon receipt of payment therefor by the Company in
accordance with the terms set forth in the Plan will be validly issued, fully
paid and non-assessable.
The Company's Articles of Incorporation provide that no stockholders
may beneficially own more than 9.8% of the Company's outstanding capital stock.
Any attempted transfer or acquisition of capital stock that would create a
direct or indirect ownership of capital stock in excess of this limit or
otherwise result in disqualification of the Company as a real estate investment
trust will be null and void. The Company's Articles of Incorporation provide
that capital stock subject to this limitation is subject to various rights of
the Company to enforce the ownership limitation, including redemption by the
Company. The above summary of the ownership limitation is qualified in its
entirety by reference to the Company's Articles of Incorporation, as amended
from time to time. The Company reserves the right to invalidate any purchases
made under the Plan that, in the Company's sole discretion, may violate the
ownership limit.
COMMON STOCK PRICE
The Common Stock is listed on the American Stock Exchange under the
symbol "BNP." On June 25, 1996, the last reported sale price of the Company's
Common Stock on the American Stock Exchange was $125/8.
COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
The Company's officers and directors are and will be indemnified
against certain liabilities in accordance with the Delaware General Corporation
Law of the State of Delaware ("Delaware Law") and the Articles of Incorporation
of the Company. The Articles of Incorporation require the Company to indemnify
16
<PAGE>
its directors and officers to the fullest extent permitted from time to time by
Delaware Law. Delaware Law permits a corporation to indemnify its directors and
officers, among others, against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by them in connection with any proceeding
to which they may be made a party by reason of their service if they acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal proceeding,
the director or officer had no reasonable cause to believe that the act or
omission was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed 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.
EXPERTS
The financial statements included in the Company's Annual Report on
Form 10-K and the statement of revenue and certain expenses (as defined) of
Paces Villages Apartments for the year ended December 31, 1995 included in the
Company's Current Report on Form 8-K, dated April 29, 1996, incorporated by
reference in this Prospectus have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing in giving said reports.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby and the
statements in this Prospectus under the caption "Description of the Dividend
Reinvestment and Stock Purchase Plan--Tax Consequences of Participation in the
Plan" have been passed upon for the Company by Smith Helms Mulliss & Moore,
L.L.P., Raleigh, North Carolina.
17
<PAGE>
No dealer, salesperson or other individual has been authorized to give any
information or make any representations not contained in this Prospectus in
connection with the offering covered by this Prospectus. If given or made, such
information or representations must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any of the securities covered by this
Prospectus in any jurisdiction where, or to any person to whom, it is unlawful
to make such offer or solicitation. Neither the delivery of this Prospectus nor
any sale made hereunder shall, under any circumstances, create an implication
that there has not been any change in the facts set forth in this Prospectus or
in the affairs of the Company since the date hereof.
-------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information.............................2
Incorporation of Certain Documents by
Reference.......................................2
The Company.......................................3
Description of the Dividend
Reinvestment and Stock Purchase Plan.............3
Purpose..........................................3
Advantages to Participants.......................4
Administration...................................4
Participation....................................5
Costs............................................6
Purchases........................................7
Reports to Participants..........................8
Dividends........................................9
Certificates for Shares..........................9
Sale or Other Disposition of Plan
Shares........................................10
Withdrawal of Shares in Plan Accounts...........10
Termination of Participation....................11
Tax Consequences of Participation in
the Plan.....................................11
Other Information..............................12
Resale Restrictions............................14
Limitations on Participation...................14
Summary of Changes to the Plan.................15
Use of Proceeds .................................16
Common Stock.....................................16
Common Stock Price...............................16
Commission Position on Indemnification
for Securities Act Liabilities.................16
Experts..........................................17
Legal Matters....................................17
</TABLE>
BODDIE-NOELL
PROPERTIES, INC.
300,000 Shares of
Common Stock
DIVIDEND REINVESTMENT
AND
STOCK PURCHASE PLAN
------------
PROSPECTUS
------------
July 2, 1996
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the estimated expenses incurred by the
Company in connection with the offering of the shares of the Common Stock
registered hereby.
<TABLE>
<CAPTION>
Item Amount
<S> <C>
Registration fee -- Securities and Exchange Commission........................... $ 1,300
American Stock Exchange listing fee.............................................. 6,000
Printing and duplicating expenses................................................ 3,500
Legal fees and expenses (other than blue sky).................................... 10,000
Accounting fees and expenses..................................................... 1,000
Blue sky fees and expenses....................................................... 1,000
Miscellaneous expenses........................................................... 2,200
------
Total................................................................... $ 25,000
=======
</TABLE>
Item 15. Indemnification of Directors and Officers.
Under Section 145 of the General Corporation Law of the state of
Delaware ("Delaware Law"), a corporation may indemnify its directors, officers,
employees and agents and its former directors, officers, employees and agents
and those who serve, at the corporation's request in such capacities with
another enterprise, against expenses (including attorney's fees), as well as
judgments, fines and settlements in nonderivative lawsuits, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. Delaware Law provides, however, that such person must have acted
in good faith and in a manner he or she reasonably believed to be in (or not
opposed to) the best interests of the corporation and, in the case of a criminal
action, such person must have had no reasonable cause to believe his or her
conduct was unlawful. In addition, Delaware Law does not permit indemnification
of any action or suit by or in the right of the corporation, where such person
has been adjudged liable to the corporation, unless, and only to the extent
that, a court determines that such person fairly and reasonably is entitled to
indemnity for costs the court deems proper in light of liability adjudication.
The Company's Certificate of Incorporation provides for the
indemnification to the fullest extent authorized by Delaware Law of the
Company's present or former directors and officers and persons who, at the
request of the Company, are or were serving as a director, officer, employee or
agent for another corporation or entity.
II-1
<PAGE>
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1* Articles of Incorporation (incorporated by reference to Exhibit 3(a) to registration statement
on Form S-11 (file no. 33-13155))
4.2* Bylaws of Registrant (incorporated by reference to Exhibit 3.2 to Annual Report on Form
10-K for year ended December 31, 1995)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding the legality of the shares of
Common Stock being registered
8.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding tax matters
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included in the signature page hereof)
- --------------------
<FN>
* Previously filed.
</FN>
</TABLE>
Item 17. 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;
(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% 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;
Provided, however, that the undertakings set forth in paragraphs (i)
and (ii) shall 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 the registration statement.
II-2
<PAGE>
(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 herein, 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 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 any
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offering therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on July 2, 1996.
BODDIE-NOELL PROPERTIES, INC.
By: /s/ D. Scott Wilkerson
----------------------------------
D. Scott Wilkerson, President
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Boddie-Noell Properties, Inc., hereby severally constitute D. Scott
Wilkerson and Philip S. Payne 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 officers
and directors to enable Boddie-Noell Properties, Inc. 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 signature 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 by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ B. Mayo Boddie Chairman of the Board of Directors July 2, 1996
- -----------------------------------------
B. Mayo Boddie
/s/ Nicholas B. Boddie Vice Chairman of the Board of Directors July 2, 1996
- -----------------------------------------
Nicholas B. Boddie
/s/ Donald R. Pesta, Jr. Director July 2, 1996
- -----------------------------------------
Donald R. Pesta, Jr.
/s/ William H. Stanley Director July 2, 1996
- -----------------------------------------
William H. Stanley
/s/ Richard A. Urquhart, Jr. Director July 2, 1996
- -----------------------------------------
Richard A. Urquhart, Jr.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ D. Scott Wilkerson President and Chief Executive Officer July 2, 1996
- -----------------------------------------
D. Scott Wilkerson
/s/ Philip S. Payne Executive Vice President, Chief July 2, 1996
- -----------------------------------------
Philip S. Payne Financial Officer and Treasurer
/s/ Pamela B. Novak Vice President, Controller July 2, 1996
- -----------------------------------------
Pamela B. Novak
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1* Articles of Incorporation (incorporated by reference to Exhibit 3(a) to registration statement
on Form S-11 (file no. 33-13155))
4.2* Bylaws of Registrant (incorporated by reference to Exhibit 3.2 to Annual Report on Form
10-K for year ended December 31, 1995)
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding the legality of the shares of
Common Stock being registered
8.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding tax matters
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Smith Helms Mulliss & Moore, L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included in the signature page hereof)
- --------------------
<FN>
* Previously filed.
</FN>
</TABLE>
Exhibit 5.1
SMITH HELMS MULLISS & MOORE, L.L.P.
ATTORNEYS AT LAW
RALEIGH, NORTH CAROLINA
July 2, 1996
Boddie-Noell Properties, Inc.
3710 One First Union Center
Charlotte, North Carolina 28202
Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), of 300,000
shares (the "Shares") of common stock, par value $.01 per share, of Boddie-Noell
Properties, Inc., a Delaware corporation (the "Company").
In connection with rendering this opinion, we have examined the
Articles of Incorporation and Bylaws of the Company, each as amended to date;
such records of the corporate proceedings of the Company as we deemed material;
a registration statement on Form S-3 under the Securities Act relating to the
Shares, and the prospectus contained therein (the "Prospectus"), and such other
certificates, receipts, records and documents as we considered necessary for the
purposes of this opinion.
We are attorneys admitted to practice in the State of North Carolina.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America and the State of North Carolina.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued in accordance with the terms of the Prospectus, the Shares will
be legally issued, fully paid and nonassessable shares.
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 also consent to the use of our name under the caption "Legal
Matters" in the Prospectus.
Very truly yours,
SMITH HELMS MULLISS & MOORE, L.L.P.
Exhibit 8.1
SMITH HELMS MULLISS & MOORE, L.L.P.
ATTORNEYS AT LAW
RALEIGH, NORTH CAROLINA
July 2, 1996
Boddie-Noell Properties, Inc.
3710 One First Union Center
Charlotte, North Carolina 28202
Re: Registration Statement on Form S-3
Boddie-Noell Properties, Inc. Automatic Dividend Reinvestment Service
Ladies and Gentlemen:
We have acted as counsel to Boddie-Noell Properties, Inc. (the
"Company") in connection with its Registration Statement on Form S-3 to be filed
with Securities and Exchange Commission on July 2, 1996 (the "Registration
Statement"). This opinion relates to the accuracy of the federal income tax
consequences discussed in the Registration Statement.
For the purpose of rendering our opinion, we have examined and are
relying upon the truth, accuracy and completeness, at all relevant times, of the
statements and representations contained in the Registration Statement.
In connection with rendering this opinion, we have assumed to be true
and are relying upon, without any independent investigation or review thereof,
the following:
1. The authenticity of all documents submitted to us as
originals, the conformity to original documents of all
documents submitted to us as copies, and authenticity of the
originals of such documents.
2. The genuineness of all signatures, the due authorization,
execution and delivery of all documents by all parties thereto
and the due authority of all persons executing such documents.
3. The truth, accuracy, and completeness of all responses made to
our requests to disclose any material information that has
bearing on the Company's ability to qualify as a real estate
investment trust ("REIT").
<PAGE>
Boddie-Noell Properties, Inc.
July 2, 1996
Page 2
4. That the Company filed a proper election to be taxed as a REIT
with its timely filed federal income tax return for the
taxable year ended December 31, 1987, and that the Company has
not caused such election to be terminated or revoked.
Based on our examination of the foregoing items and our review of such
other documents and information pertaining to the Company as we have deemed
appropriate, subject to the assumptions, limitations and qualifications set
forth herein, we are of the opinion that the information in the prospectus
included in the Registration Statement regarding the federal income tax
consequences of the Plan (as defined in the Registration Statement), to the
extent it constitutes matters of law or legal conclusions, is correct in all
material respects.
In addition to the matters set forth above, this opinion is subject to
the following exceptions, limitations and qualifications:
1. Our opinion expressed herein is based upon our interpretation
of the existing provisions of the Internal Revenue Code of
1986, as amended, and existing judicial decisions,
administrative regulations and published revenue rulings
(including private letter rulings) and revenue procedures. Our
opinion is not binding upon the Internal Revenue Service or
courts and there is no assurance that the Internal Revenue
Service will not challenge the conclusions set forth herein.
No assurance can be given that future legislative, judicial or
administrative changes, on either a prospective or retroactive
basis, would not adversely affect the accuracy of the
conclusions stated herein. We undertake no obligation to
advise you of changes in law which may occur after the date
hereof.
2. Our opinion is limited to the United States federal income tax
matters addressed herein, and no other opinions are rendered
with respect to any other matter not specifically set forth in
the foregoing opinion.
In the event any one of the statements, representations, or assumptions
we have relied upon to issue this opinion is incorrect in a material respect,
our opinion might be adversely affected and may not be relied upon.
<PAGE>
Boddie-Noell Properties, Inc.
July 2, 1996
Page 3
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
SMITH HELMS MULLISS & MOORE, L.L.P.
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this prospectus of our report dated January 31, 1996, included in
Boddie-Noell Properties, Inc. Form 10-K for the year ended December 31, 1995,
and our report dated March 20, 1996, included in Boddie-Noell Properties, Inc.
Current Report on Form 8-K dated April 29, 1996, and to all references to our
firm included in this prospectus.
ARTHUR ANDERSEN LLP
Charlotte, North Carolina,
July 2, 1996.
