As Filed with the Securities and Exchange Commission on August 12, 1997
Registration No. 333-07415
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BODDIE-NOELL PROPERTIES, INC.
(Exact name of registrant as specified in charter)
MARYLAND
(State or other jurisdiction of incorporation or
organization of each registrant)
56-1574675
(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 registrants' principal executive offices)
D. Scott Wilkerson, President
Boddie-Noell Properties, Inc.
3710 One First Union Center
Charlotte, North Carolina 28202
(704) 333-1367
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Brad S. Markoff, Esq.
Smith Helms Mulliss & Moore, L.L.P.
2800 Two Hannover Square
Raleigh, North Carolina 27601
(919) 755-8700
<PAGE>
This Post-Effective Amendment No. 1 to the Form S-3 Registration
Statement (File No. 333-07415) of Boddie-Noell Properties, Inc., a Delaware
corporation (the "Delaware Company"), which Registration Statement registers
securities issued pursuant to the Boddie-Noell Properties, Inc. Dividend
Reinvestment and Stock Purchase Plan, is filed pursuant to Rule 414 promulgated
under the Securities Act of 1933, as amended (the "1933 Act"), by Boddie-Noell
Properties, Inc., a Maryland corporation (the "Maryland Company"). In connection
with the Reincorporation Merger (as defined below), the Maryland Company hereby
adopts this Registration Statement as its own for all purposes of the 1933 Act
and the Securities Exchange Act of 1934, as amended.
DESCRIPTION OF TRANSACTION
Pursuant to an Agreement and Plan of Merger between the Delaware
Company and the Maryland Company dated as of July 22, 1997 (the "Plan of
Merger"), on July 31, 1997 (the "Effective Time"), the Delaware Company merged
with and into the Maryland Company, with the Maryland Company as the surviving
corporation (the "Reincorporation Merger"). As a result of the Reincorporation
Merger, each share of the Delaware Company's common stock, par value $0.01 per
share, issued and outstanding immediately prior to the Effective Time was
converted into one validly issued, fully paid and nonassessable share of common
stock, par value $0.01 per share, of the Maryland Company.
The Reincorporation Merger and related transactions are described in
the proxy statement of the Delaware Company dated April 30, 1997 and were
approved by the Delaware Company's shareholders at an annual meeting on June 5,
1997.
<PAGE>
Item 15. Indemnification of Directors and Officers
The Company's officers and directors are, and will be, indemnified
against certain liabilities in accordance with the Maryland General Corporation
Law ("Maryland law"), the Articles of Incorporation and bylaws of the Company.
The Articles of Incorporation require the Company to indemnify its directors and
officers to the fullest extent permitted from time to time by Maryland law.
Maryland 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 reasons of their service in those or other
capacities unless it is established that the act or omission of the director or
officer was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty, or
the director or officer actually received an improper personal benefit in money,
property or services, or in the case of any criminal proceeding, the director or
officer had reasonable cause to believe that the act or omission was unlawful.
Insofar as indemnification for liabilities arising under 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.
Item 16. Exhibits
Exhibit No. Description
4.1(1) Amended and Restated Articles of Incorporation
4.2(1) Bylaws
5.1 Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding the
legality of the shares of Common Stock being registered
8.1(2) Opinion of Smith Helms Mulliss & Moore, L.L.P. regarding
tax matters
23.1(2) Consent of Arthur Andersen LLP
23.2(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)
- --------------------
(1) Previously filed. See quarterly report on Form 10-Q of Boddie-Noell
Properties, Inc. for the quarter ended June 30, 1997.
(2) Previously filed. See Registration Statement No. 333-07415.
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;
<PAGE>
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.
(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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, 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 August 12, 1997.
BODDIE-NOELL PROPERTIES, INC.
By: /s/ D. Scott Wilkerson
D. Scott Wilkerson
President and Chief Executive officer
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 our capacities as officers and
directors to enable Boddie-Noell Properties, Inc. to comply with the provisions
of the Securities Act, 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, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ B. Mayo Boddie Chairman of the Board of August 12, 1997
B. Mayo Boddie Directors
/s/ Nicholas B. Boddie Vice Chairman of the Board August 12, 1997
Nicholas B. Boddie of Directors
/s/ Donald R. Pesta, Jr. Director August 12, 1997
Donald R. Pesta, Jr.
/s/ William H. Stanley Director August 12, 1997
William H. Stanley
/s/ Richard A. Urquhart, Jr. Director August 12, 1997
Richard A. Urquhart, Jr.
/s/ D. Scott Wilkerson President and Chief Executive August 12, 1997
D. Scott Wilkerson Officer
/s/ Philip S. Payne Executive Vice President, August 12, 1997
Philip S. Payne Treasurer and Chief Financial Officer
/s/ Pamela B. Novak Vice President, Controller and August 12, 1997
Pamela B. Novak Chief Accounting Officer
</TABLE>
<PAGE>
Exhibit 5.1
SMITH HELMS MULLISS & MOORE, L.L.P.
ATTORNEYS AT LAW
RALEIGH, NORTH CAROLINA
August 12, 1997
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 up to
300,000 shares (the "Shares") of common stock, par value $.01 per share, of
Boddie-Noell Properties, Inc., a Maryland 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 post-effective amendment to the Form S-3 registration statement (File No.
333-07415) 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 validly 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.
/s/ Smith Helms Mulliss & Moore, L.L.P.
