As Filed with the Securities and Exchange Commission on May 15,
1997
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
Colonial Properties Trust
(Exact name of Registrant as specified in its charter)
Alabama 59-7007599
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
(205) 250-8700
(Address of Principal Executive Offices) (Zip Code)
Colonial Properties Trust Non-Employee Trustee Share Plan
(Full title of the plan)
Thomas H. Lowder
President and Chief Executive Officer
Colonial Properties Trust
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
(Name and address of agent for service)
(205) 250-8700
(Telephone number, including area code, of agent for service)
- --------------------------------------------------------------------
Copy to:
Alan L. Dye
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5600
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CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------===========
Title of Amount to Proposed Proposed Amount of
securities be maximum maximum registration
to be registered offering aggregate fee
registered price per offering price
share (1) (1)
- -=---------------------------------------------------------===========
- -----------------------------------------------------------===========
Common shares of
benefi- 50,000 $ 26.94 $ 1,347,000.00 $ 408.18
cial interest,
par value
$.01 per share
- -----------------------------------------------------------===========
(1) Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the registration fee, based on
the average of the high and low prices per share of the common shares of
beneficial interest of Colonial Properties Trust, par value $.01 per share, on
May 8, 1997, as reported on the New York Stock Exchange.
The Exhibit Index is on Page 7.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to directors as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with the instructions
to Part I of Form S-8, such documents will not be filed with the Securities and
Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of
the Securities Act. These documents and the documents incorporated by reference
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Colonial Properties Trust (the "Company") hereby incorporates by
reference into this Registration Statement the following documents filed by it
with the Commission:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996;
(b) All reports filed by the Company with the Commission under
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since December 31, 1996,
including the Company's report on Form 10-Q filed for the period
ending March 31, 1997; and
(c) The description of the Company's common shares of
beneficial interest, $.01 par value per share
("Common Shares"), contained in the Company's
Registration Statement on Form 8-A filed with the
Commission on September 23, 1993 pursuant to
Section 12 of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as supplemented
by the description of the Common Shares contained
in the Company's Proxy Statement dated September
1, 1995.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered 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 part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such prior statement. The documents required to be so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
Item 4. Description of Securities.
A description of the Company's Common Shares is incorporated by
reference under Item 3.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Trustees and Officers.
(a) Sections 8.2 and 8.4 of the Company's Declaration of Trust and
Article XII of the Company's Bylaws are set forth as Exhibits 3.1 and 3.2,
respectively, to this Registration Statement and incorporated herein by
reference.
(b) Sections 10-2B-8.50 to 10-2B-8.58, inclusive, Code of Alabama,
1975, are set forth as Exhibit 99.2 to this Registration Statement and
incorporated herein by reference.
(c) Section 10-13-19, Code of Alabama, 1975, is set forth as Exhibit
99.3 to this Registration Statement and incorporated herein by reference.
(d) The Company has in effect a policy of liability
insurance covering its trustees and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
3.1 Sections 8.2 and 8.4 of the Company's Declaration of Trust
(filed as Annex II to the Company's Proxy Statement, dated
September 1, 1995 and incorporated herein by reference).
3.2 Article XII of the Company's Bylaws (filed as Annex III to
the Company's Proxy Statement, dated September 1, 1995 and
incorporated herein by reference).
5 Opinion of Hogan & Hartson L.L.P. regarding
the legality of the securities being
registered.
15 Letter from Coopers & Lybrand L.L.P.
regarding unaudited interim financial
information.
23.1 Consent of Hogan & Hartson L.L.P. (included
as part of Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included as part of
signature page).
99.1 Colonial Properties Trust Non-Employee
Trustee Share Plan.
99.2 Sections 10-2B-8.50 to 10-2B-8.58 of the Code
of Alabama, 1975.
99.3 Section 10-13-19 of the Code of Alabama, 1975.
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 the 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;
(iii)To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (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 this 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the Act and therefore
is unenforceable. In the event that a claim for indemnification against such
liabilities (other than for the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of the issue.
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Birmingham, State of Alabama on April 24, 1997.
Colonial Properties Trust
By: /s/ Thomas H. Lowder
Thomas H. Lowder
President, Chief Executive
Officer and Chairman of the
Board
POWER OF ATTORNEY
We, the undersigned trustees and officers of Colonial Properties
Trust, do hereby constitute and appoint Thomas H. Lowder and Douglas B.
Nunnelley, jointly and severally, each in his own capacity, as true and lawful
attorneys-in-fact and agents, to do any and all acts and things in our names and
our behalf in our capacities as trustees and officers and to execute any and all
instruments for us and in our name in the capacities indicated below, which said
attorneys and agents, or either of them, may deem necessary or advisable to
enable said Company to comply with the Securities Act of 1933 and any rules,
regulations and requirements of the Securities and Exchange Commission, in
connection with this registration statement, or any registration statement for
this offering that is to be effective upon filing pursuant to Rule 462(b) under
the Securities Act of 1933, including specifically, but without limitation, any
and all amendments (including post-effective amendments) hereto; and we hereby
ratify and confirm all that said attorneys and agents, or either of them, shall
do or cause to be done by virtue thereof.
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 dates indicated:
SIGNATURE TITLE DATE
/s/ Thomas H. Lowder President, Chief Executive Officer April 24, 1997
Thomas H. Lowder and Chairman of the Board
(Principal Executive Officer)
/s/ Douglas B. Nunnelley Senior Vice President and April 24, 1997
Douglas B. Nunnelley Chief Financial Officer
(Principal Financial Officer)
<PAGE>
/s/ Kenneth E. Howell Vice President and Controller April 24, 1997
Kenneth E. Howell (Principal Accounting Officer)
/s/ James K. Lowder Trustee April 24, 1997
James K. Lowder
/s/ Carl F. Bailey Trustee April 24, 1997
Carl F. Bailey
/s/ M. Miller Gorrie Trustee April 24, 1997
M. Miller Gorrie
/s/ Donald T. Senterfitt Trustee April 24, 1997
Donald T. Senterfitt
/s/ Claude B. Nielsen Trustee April 24, 1997
Claude B. Nielsen
/s/ Harold W. Ripps Trustee April 24, 1997
Harold W. Ripps
/s/ Herbert A. Meisler Trustee April 24, 1997
Herbert A. Meisler
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
3.1 Sections 8.2 and 8.4 of the Company's Declaration of Trust (filed as
Annex II to the Company's Proxy Statement, dated September 1, 1995 and
incorporated herein by reference).
3.2 Article XII of the Company's Bylaws (filed as Annex III to the
Company's Proxy Statement, dated September 1, 1995 and incorporated
herein by reference).
5 Opinion of Hogan & Hartson L.L.P. regarding the
legality of the securities being registered.
15 Letter from Coopers & Lybrand L.L.P., regarding
unaudited interim financial information.
23.1 Consent of Hogan & Hartson L.L.P. (included as
part of Exhibit 5).
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included as part of signature
page).
99.1 Colonial Properties Trust Non-Employee Trustee
Share Plan.
99.2 Sections 10-2B-8.50 to 10-2B-8.58 of the Code of
Alabama, 1975.
99.3 Section 10-13-19 of the Code of Alabama, 1975.
Exhibit 5
Legal Opinion of Hogan & Hartson L.L.P.
<PAGE>
May 14, 1997
Board of Trustees
Colonial Properties Trust
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
Ladies and Gentlemen:
This firm has acted as counsel to Colonial Properties Trust, an
Alabama real estate investment trust (the "Registrant"), in connection with its
registration statement on Form S-8 (the "Form S-8"), filed with the Securities
and Exchange Commission, of 50,000 common shares of beneficial interest, par
value $.01 per share (the "Shares"), issuable in connection with the
Registrant's Non-Employee Trustee Share Plan (the "Plan"). This letter is
furnished to you pursuant to the requirements of Item 601(b)(5) of Regulation
S-K, 17 C.F.R. ss. 229.601(b)(5), in connection with such registration.
For purposes of this opinion, we have examined copies of the
following documents:
1. An executed copy of the Form S-8.
2. A copy of the Plan, as certified on the date hereof by the
Assistant Secretary of the Registrant as being complete,
accurate and in effect.
3. The Declaration of Trust of the Registrant, dated April 21,
1995, as certified by the Secretary of State of the State of
Alabama on May 13, 1997, and as certified on the date hereof by
the Assistant Secretary of the Registrant as being complete,
accurate and in effect.
4. The Bylaws of the Registrant, as certified on the date hereof by
the Assistant Secretary of the Registrant as being complete,
accurate and in effect.
5. Resolutions of the Board of Trustees of the Registrant adopted
at a meeting held on January 23, 1997, as certified by the
Assistant Secretary of the Registrant on the date hereof as
being complete, accurate and in effect, relating to
authorization of the Plan.
6. A certificate of the Inspectors of Election dated April 24,
1997, as certified by the Assistant Secretary of the Company on
the date hereof as being complete, accurate and in effect,
certifying that the Plan was approved by the Company's
shareholders at the annual meeting held on April 24, 1997.
<PAGE>
Board of Trustees
Colonial Properties Trust
May 14, 1997
Page 2
In our examination of the aforesaid documents, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
accuracy and completeness of all documents submitted to us, the authenticity of
all original documents and the conformity to authentic original documents of all
documents submitted to us as copies (including telecopies). This opinion letter
is given, and all statements herein are made, in the context of the foregoing.
This opinion is based as to matters of law solely on the Alabama
Business Corporation Act, and we express no opinion as to any other laws,
statutes, regulations or ordinances.
Based upon, subject to, and limited by the foregoing, we are of the
opinion that the Shares, when issued and delivered in the manner and on the
terms described in the Form S-8 and the Plan (with the Company having received
the consideration therefor, the form of which is in accordance with applicable
law), will be legally issued, fully paid and non-assessable.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for you use in connection with the filing of the Form S-8 on the
date of this letter, and should not be quoted in whole or in part or otherwise
be referred to, nor be filed with or furnished to any governmental agency or
other person or entity, without the prior written consent of the firm.
We hereby consent to the filing of this opinion letter as an exhibit
to the Form S-8. In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
Exhibit 15
Letter from Coopers & Lybrand L.L.P.
Regarding Unaudited Interim
Financial Information
<PAGE>
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Colonial Properties Trust
Registration on Form S-8
We are aware that our report dated April 18, 1997 on our review of interim
financial information of Colonial Properties Trust (the Company) for the period
ended March 31, 1997 and included in the Company's quarterly report on Form 10-Q
for the quarter then ended, is incorporated by reference in this registration
statement on Form S-8 of the Colonial Properties Trust Non-Employee Trustee
Share Plan. Pursuant to Rule 436(c) under the Securities Act of 1933, this
report should not be considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of that Act.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
May 9, 1997
Exhibit 23.2
Consent of Coopers & Lybrand L.L.P.
<PAGE>
Consent of Independent Accountants
We consent to the incorporation by reference in this registration statement
of Colonial Properties Trust on Form S-8 of the Colonial Properties Trust
Non-Employee Trustee Share Plan, of our report, dated January 24, 1997, on our
audits of the consolidated financial statements of Colonial Properties Trust as
of December 31, 1996 and 1995, and for the years ended December 31, 1996, 1995,
and 1994 which report is included in the 1996 Annual Report incorporated by
reference on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
Birmingham, Alabama
May 9, 1997
Exhibit 99.1
Colonial Properties Trust
Non-Employee Trustee Share Plan
<PAGE>
COLONIAL PROPERTIES TRUST
NON-EMPLOYEE TRUSTEE SHARE PLAN
The Board of Trustees of Colonial Properties Trust (the "Company") has
adopted this Non-Employee Trustee Share Plan (the "Plan") to enable individuals
who serve as trustees of the Company and who are not employees of the Company
("Non-Employee Trustees"), through the retention by the Company of fees to be
paid to such Non-Employee Trustees for services as Trustees, to purchase of the
Company's common shares of beneficial interest, par value $0.01 per share (the
"Common Shares"). The purpose of the Plan is to benefit the Company by
increasing the Non-Employee Trustees' proprietary interest in the Company's
growth and success and enabling the Company to continue to attract highly
qualified persons to serve as Non-Employee Trustees. The provisions of the Plan
are set forth below:
1. COMMON SHARES SUBJECT TO THE PLAN.
Subject to adjustment as provided in Section 20 below, an aggregate of
50,000 Common Shares will be made available for purchase by participants under
the Plan. The shares issuable under the Plan may, in the discretion of the Board
of Trustees of the Company (the "Board"), be either authorized but unissued
shares or treasury shares.
2. ADMINISTRATION.
The Plan shall be administered by the Board. The Board's actions under the
Plan shall be limited to taking all actions authorized by this Plan or otherwise
reasonably necessary to effect the purposes hereof.
3. INTERPRETATION.
Subject to the express provisions of the Plan, the Board shall have
authority to interpret the Plan, to prescribe, amend and rescind rules relating
to it, and to make all other determinations necessary or advisable in
administering the Plan, all of which determinations will be final and binding
upon all persons.
4. ELIGIBILITY TO PARTICIPATE.
The only persons eligible to participate in the Plan shall be trustees of
the Company who are not employees of the Company.
5. PARTICIPATION IN THE PLAN.
A Non-Employee Trustee may become a participant in the Plan by completing
an election to participate in the Plan on an authorization form provided by the
Company and submitting that form to the Chief Financial Officer of the Company.
The form will authorize the Company to retain a whole percentage amount of not
less than one percent (the "Stated Percentage") of the Non-Employee Trustee's
eligible fees (as defined in Section 6 below) and authorize the purchase of
Common Shares for the Non-Employee Trustee's account in accordance with the
terms of the Plan. Enrollment will become effective upon the first day of the
first Accumulation Period (as defined in Section 7 below) that commences after
the Chief Financial Officer's receipt of the form.
6. FEE RETENTION.
From and after the effective date of a Non-Employee Trustee's enrollment
in the Plan (as provided in Section 5 above), the Company shall withhold, on
each Fee Payment Date (as defined below), an amount equal to the Stated
Percentage of eligible fees payable to such Non-Employee Trustee on such date.
For purposes of this Plan, "eligible fees" include all fees which the
Non-Employee Trustee is entitled to receive from the Company for his or her
service as a trustee, including annual trustee fees and per-meeting fees payable
in connection with meetings of the Board or committees of the Board. All fee
retentions will be credited to the Non-Employee Trustee's account under the
Plan. A Non-Employee Trustee may not contribute amounts to purchase Common
Shares under the Plan other than through retention of eligible fees. As used
herein, the term "Fee Payment Date" means, for each Non-Employee Trustee, each
date on which an eligible fee is payable to such Non-Employee Trustee. A
Non-Employee Trustee may not during any Accumulation Period change his or her
Stated Percentage of eligible fees to be retained for that Accumulation Period,
nor may a Non-Employee Trustee withdraw any contributed funds other than by
terminating participation in accordance with Section 14 below.
7. ACCUMULATION PERIODS.
The first Accumulation Period under the Plan shall commence on July 1,
1997 (or such other date as may be approved by the Board) and end on September
30, 1997 (the "Initial Accumulation Period"). Subsequent Accumulation Periods
will be the three-month periods corresponding to the calendar quarters beginning
on October 1, January 1, April 1, and July 1 of each year.
8. PURCHASE AMOUNT.
Non-Employee Trustees who elect to have the Company retain a Stated
Percentage shall receive Common Shares having a fair market value equal to 125%
of the amount of fees retained; provided, however, that in no event shall the
resulting price per share of the Common Shares so purchased (the "Purchase
Price") be less than the par value of the Common Shares. For purposes of the
Plan, "fair market value" means the average of the closing prices per Common
Share for the last five trading days of the Accumulation Period on which trades
actually occurred, as reflected on the principal consolidated transaction
reporting system for the national securities exchange or other market quotation
system on which the Common Shares may be principally listed or quoted.
9. TIMING OF PURCHASE.
Unless a participating Non-Employee Trustee's participation in the Plan
has been terminated as provided in Section 14 below, Common Shares will be
purchased for such Non-Employee Trustee's account automatically on the last day
of each Accumulation Period (except as provided in Section 14 below). Common
Shares may not be purchased at any other time under the Plan. Effective upon the
last day of each Accumulation Period, each participating Non-Employee Trustee's
account will be credited with the number of whole Common Shares and any
fractional share interest which the accumulated funds in such Non-Employee
Trustee's account at that time will purchase at the Purchase Price.
10. ISSUANCE OF STOCK CERTIFICATES; TRANSFER RESTRICTIONS
Common Shares purchased under the Plan will be held in the custody of the
Company or such other entity as the Board shall designate, as agent (the
"Agent"). The Agent may hold the shares purchased under the Plan in stock
certificates in nominee names and may commingle shares held in its custody in a
single account or stock certificate without identification as to individual
participating Non-Employee Trustee. A participating Non-Employee Trustee may, at
any time following his or her purchase of shares under the Plan, by written
notice instruct the Agent to have all or part of such shares reissued in the
participating Non-Employee Trustee's own name and have the stock certificate
delivered to the Non-Employee Trustee, provided, however, that shares purchased
for a Non-Employee Trustee's account many not be sold, pledged, hypothecated or
otherwise transferred by such Non-Employee Trustee during the six months
following the allocation of such shares to the Non-Employee Trustee's account.
Any fractional interest withdrawn will be liquidated by the Agent on the basis
of the then current market value of the Common Shares and a check issued
promptly for the proceeds thereof. In no case will certificates representing a
fractional interest be issued.
11. WITHHOLDING OF TAXES.
To the extent that a participating Non-Employee Trustee realizes ordinary
income in connection with the Plan (including, without limitation, as a result
of the accrual of fees or the purchase, issuance, sale or other transfer of
Common Shares under the Plan) and the Company is required to withhold taxes with
respect thereto, the Company may withhold amounts needed to cover such taxes
from any payments otherwise due and owing to the Non-Employee Trustee or from
shares that would otherwise be credited or issued to the Non-Employee Trustee
hereunder.
12. ACCOUNT STATEMENTS.
The Company will deliver, or cause the Agent to deliver, to each
participating Non-Employee Trustee a statement for each Accumulation Period
during which the Non-Employee Trustee purchases Common Shares under the Plan.
Each statement will reflect the amount of fee retentions accumulated during the
Accumulation Period, the number of shares, including any fractional share
interest, purchased for the Non-Employee Trustee's account, the price per share
of the shares purchased for the Non-Employee Trustee's account, and the number
of shares, including any fractional share interest, held for the Non-Employee
Trustee's account at the end of the Accumulation Period.
13. PARTICIPATION ADJUSTMENT.
If in any Accumulation Period the number of unsold shares that may be made
available for purchase under the Plan pursuant to Section 1 above is
insufficient to permit the crediting of shares to the accounts of all
participating Non-Employee Trustees pursuant to Section 9 above, a participation
adjustment will be made, and the number of shares purchasable by all
participating Non-Employee Trustees will be reduced proportionately. Any funds
then remaining in a participating Non-Employee Trustee's account after such
exercise will be promptly refunded to the Non-Employee Trustee.
14. TERMINATION OF PARTICIPATION.
A participating Non-Employee Trustee will be refunded all monies in his or
her account, and his or her participation of the Plan will be terminated, if:
(a) the Non-Employee Trustee elects to terminate participation in a writing
delivered to the Chief Financial Officer of the Company; (b) the Non-Employee
Trustee ceases to be a trustee of, or becomes an employee of, the Company; or
(c) the Board elects to terminate the Plan as provided in Section 19 below. As
soon as practicable following the effective date of termination of a
Non-Employee Trustee's participation in the Plan, the Company will deliver to
the Non-Employee Trustee a check representing any uninvested contributions to
which the Non-Employee Trustee is entitled. Once terminated, participation may
not be reinstated for the then current Accumulation Period, but, if otherwise
eligible, the Non-Employee Trustee may elect to participate in any subsequent
Accumulation Period.
15. ASSIGNMENT.
No participating Non-Employee Trustee may assign his or her rights to
purchase Common Shares under the Plan, whether voluntarily, by operation of law
or otherwise. Any payment of cash or issuance of Common Shares under the Plan
may be made only to the participating Non-Employee Trustee (or, in the event of
the Non-Employee Trustee's death, to the Non-Employee Trustee's estate). Once a
share certificate has been issued to the Non-Employee Trustee or for his or her
account, such certificate may be assigned the same as any other share
certificate.
16. APPLICATION OF FUNDS.
All funds retained by the Company under the Plan may be used by the
Company or any subsidiary of the Company for any proper purpose until applied to
the purchase of Common Shares and/or refunded to participating Non-Employee
Trustees. Participating Non-Employee Trustees' accounts will not be segregated.
Interest will not be paid on funds held by the Company pursuant to the Plan.
17. NO RIGHT TO CONTINUED MEMBERSHIP ON THE BOARD.
Neither the Plan nor any right to purchase Common Shares under the Plan
confers upon any Non-Employee Trustee any right to continued membership on the
Board, nor will a Non-Employee Trustee's participation in the Plan create any
obligation on the part of the Board to nominate any trustee for re-election by
the Company's stockholders.
18. AMENDMENT OF PLAN.
The Board may, at any time, amend the Plan in any respect, subject to any
shareholder approval requirements imposed by law or the applicable rules of a
national securities exchange, and provided that no amendment may impair the
vested rights of participating Non-Employee Trustees.
19. EFFECTIVE DATE; TERM AND TERMINATION OF THE PLAN.
The Plan shall be effective as of the date of adoption by the Board, which
date is set forth below, subject to approval of the Plan by a majority of the
votes cast on the matter at a duly held meeting of the shareholders of the
Company at which more than 50% of the Common Shares outstanding are voted on the
matter; provided, however, that upon approval of the Plan by the shareholders of
the Company as set forth above, all rights to purchase shares granted under the
Plan on or after the effective date shall be fully effective as if the
shareholders of the Company had approved the Plan on the effective date. If the
shareholders fail to approve the Plan on or before one year after the effective
date, the Plan shall terminate, any rights to purchase shares granted hereunder
shall be null and void and of no effect, and all contributed funds shall be
refunded to participating Non-Employee Trustees. The Board may terminate the
Plan at any time and for any reason or for no reason, provided that such
termination shall not impair any rights of participating Non-Employee Trustees
that have vested at the time of termination. In any event, the Plan shall,
without further action of the Board, terminate at such time as all Common Shares
that may be made available for purchase under the Plan pursuant to Section 1
above have been issued.
20. EFFECT OF CHANGES IN CAPITALIZATION.
(a) Changes in Common Shares.
If the number of outstanding Common Shares is increased or decreased or
the Common Shares are changed into or exchanged for a different number or kind
of shares or other securities of the Company by reason of any recapitalization,
reclassification, stock split, reverse split, combination of shares, exchange of
shares, stock dividend, or other distribution payable in capital stock, or other
increase or decrease in such shares effected without receipt of consideration by
the Company occurring after the effective date of the Plan, the number and kinds
of shares that may be purchased under the Plan shall be adjusted proportionately
and accordingly by the Company. In addition, the number and kind of shares for
which rights are outstanding shall be similarly adjusted so that the
proportionate interest of a participating Non-Employee Trustee immediately
following such event shall, to the extent practicable, be the same as
immediately prior to such event. Any such adjustment in outstanding rights shall
not change the aggregate Purchase Price payable by a participating Non-Employee
Trustee with respect to shares subject to such rights, but shall include a
corresponding proportionate adjustment in the Purchase Price per share.
(b) Reorganization in Which the Company Is the Surviving
Entity.
Subject to Subsection (c) of this Section 20, if the Company shall be the
surviving entity in any reorganization, merger or consolidation of the Company
with one or more other entities, all outstanding rights under the Plan shall
pertain to and apply to the securities to which a holder of the number of Common
Shares subject to such rights would have been entitled immediately following
such reorganization, merger or consolidation, with a corresponding proportionate
adjustment of the Purchase Price per Common Share so that the aggregate Purchase
Price thereafter shall be the same as the aggregate Purchase Price of the shares
subject to such rights immediately prior to such reorganization, merger or
consolidation.
(c) Reorganization in Which the Company Is Not the
Surviving Entity or Sale of Assets or Shares.
Upon any dissolution or liquidation of the Company, or upon a merger,
consolidation or reorganization of the Company with one or more other entities
in which the Company is not the surviving entity, or upon a sale of all or
substantially all of the assets of the Company to another entity, or upon any
transaction (including, without limitation, a merger or reorganization in which
the Company is the surviving entity) approved by the Board that results in any
person or entity owning more than 50 percent of the combined voting power of all
classes of stock of the Company, the Plan and all rights outstanding hereunder
shall terminate, except to the extent provision is made in writing in connection
with such transaction for the continuation of the Plan and/or the assumption of
the rights theretofore granted, or for the substitution for such rights of new
rights covering the stock of a successor entity, or a parent or subsidiary
thereof, with appropriate adjustments as to the number and kinds of shares and
exercise prices, in which event the Plan and rights theretofore granted shall
continue in the manner and under the terms so provided. In the event of any such
termination of the Plan, the Accumulation Period during which such termination
occurs shall be deemed to have ended on the date of such termination, and the
accumulated fees of each participating Non-Employee Trustee shall be deemed to
have been used to purchase Common Shares in accordance with Section 9 above
immediately prior to the event that results in such termination. The Board shall
send written notice of an event that will result in such a termination to all
participating Non-Employee Trustees not later than the time at which the Company
gives notice thereof to its stockholders.
(d) Adjustments.
Adjustments under this Section 20 related to stock or securities of the
Company shall be made by the Board, whose determination in that respect shall be
final, binding, and conclusive. No fractional Common Shares or units of other
securities shall be issued pursuant to any such adjustment, and any fractions
resulting from any such adjustment shall be eliminated in each case by rounding
downward to the nearest whole share or unit.
(e) No Limitations on Company.
The grant of a right pursuant to the Plan shall not affect or limit in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge,
consolidate, dissolve or liquidate, or to sell or transfer all or any part of
its business or assets.
21. GOVERNMENTAL REGULATION.
The Company's obligation to issue, sell and deliver Common Shares pursuant
to the Plan is subject to such approval of any governmental authority and any
national securities exchange or other market quotation system as may be required
in connection with the authorization, issuance or sale of such shares.
22. SHAREHOLDER RIGHTS.
Any dividends paid on shares held for a participating Non-Employee
Trustee's account will be transmitted to the Non-Employee Trustee. The Company
will deliver to each participating Non-Employee Trustee who purchases Common
Shares under the Plan, as promptly as practicable by mail or otherwise, all
notices of meetings, proxy statements, proxies and other materials distributed
by the Company to its stockholders. Any Common Shares held for a Non-Employee
Trustee's account will be voted in accordance with the Non-Employee Trustee's
duly delivered and signed proxy instructions. There will be no charge to
participating Non-Employee Trustees in connection with such notices, proxies and
other materials.
23. PAYMENT OF PLAN EXPENSES.
The Company will bear all costs of administering and carrying out the
Plan.
* * *
This Plan was duly adopted and approved by the Board of Trustees of the
Company by resolution at a meeting held on the 23rd of January, 1997.
/s/ Douglas B. Nunnelley
Douglas B. Nunnelley
Assistant Secretary
Exhibit 99.2
Sections 10-2B-8.50 to 10-2B-8.58 of the Code of Alabama, 1975
<PAGE>
Section 10-2B-8.50 Definitions.
In Division E of this Article 8:
(1) "Corporation" includes any domestic or foreign predecessor
entity of a corporation in a merger or other transaction in
which the predecessor's existence ceased upon consummation of
the transaction.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a
corporation, is or was serving at the corporation's request as a
director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee benefit plan at
the corporation's request if his or her duties to the
corporation also impose duties on, or otherwise involve services
by, the director to the plan or to participants in or
beneficiaries of the plan. "Director" includes, unless the
context requires otherwise, the estate or personal
representative of a director.
(3) "Expenses" include counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to
an employee benefit plan), or reasonable expenses incurred with
respect to a proceeding.
(5) "Official capacity" means (i) when used with respect to a
director, the office of director in a corporation; and (ii) when
used with respect to an individual other than a director, as
contemplated in Section 10-2B-8.56, the office in a corporation
held by an officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the
corporation. "Official capacity" does not include service for
any other foreign or domestic corporation or any partnership,
joint venture, trust, employee benefit plan, or other
enterprise.
(6) "Party" includes an individual who was, is or is threatened to
be made a named defendant or respondent in a proceeding.
(7) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Section 10-2B-8.51 Indemnification of directors.
(a) Except as provided in subsection (d), a corporation may
indemnify an individual made a party to a proceeding because he
or she is or was a director against liability incurred in the
proceeding if:
(1) The individual conducted himself or herself
in good faith; and
(2) The individual reasonably believed:
(i) In the case of conduct in his or her
official capacity with the corporation,
that the conduct was in its best
interests; and
(ii) In all other cases, that the conduct was
at least not opposed to its best
interests; and
(3) In the case of any criminal proceeding, the individual had
no reasonable cause to believe his or her conduct was
unlawful.
(b) A director's conduct with respect to an employee benefit plan
for a purpose he or she reasonably believed to be in the
interests of the participants in, and beneficiaries of the plan
is conduct that satisfies the requirement of subsection
(a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent
is not, of itself, determinative that the director did not meet
the standard of conduct described in this section.
(d) A corporation may not indemnify a director under
this section:
(1) In connection with a proceeding by or in the
right of the corporation in which the
director was adjudged liable to the
corporation; or
(2) In connection with any other proceeding charging improper
personal benefit to the director, whether or not involving
action in his or her official capacity, in which the
director was adjudged liable on the basis that personal
benefit was improperly received by him or her.
(e) Indemnification permitted under this section in connection with
a proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 10-2B-8.52 Successful defense by director.
A corporation shall indemnify a director who was successful, on the
merits or otherwise, in the defense of any proceeding, or of any claim, issue or
matter in such proceeding, where he or she was a party because he or she is or
was a director of the corporation, against reasonable expenses incurred in
connection therewith, notwithstanding that he or she was not successful on any
other claim, issue or matter in any such proceeding.
Section 10-2B-8.53 Payment of director's expenses in advance of final
disposition.
(a) A corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance
of final disposition of the proceeding if:
(1) The director furnishes the corporation a written
affirmation of good faith belief that he or she has met the
standard of conduct described in Section 10-2B-8.51;
(2) The director furnishes the corporation a written
undertaking, executed personally or on the director's
behalf, to repay the advance if it is ultimately determined
that the director did not meet the standard of conduct, or
is not otherwise entitled to indemnification under Section
10-2B-8.51(d), unless indemnification is approved by the
court under Section 10-2B-8.54;
(3) A determination is made that the facts then known to those
making the determination would not preclude indemnification
under Division E of this article.
(b) The undertaking required by subsection (a)(2) must be an
unlimited general obligation of the director but need not be
secured and may be accepted without reference to financial
ability to make repayment.
(c) Determinations and authorizations of payments under this section
shall be made in the manner specified in Section 10-2B-8.55.
Section 10-2B-8.54 Mandatory indemnification.
A director of the corporation who is a party to a proceeding may
apply for indemnification to the court conducting the proceeding, or may file an
action therefor in another court of competent jurisdiction if such court has
jurisdiction over the corporation and the corporation is a party to the
proceeding. On receipt of such an application or the filing of such an action,
the court after giving any notice it considers necessary may order
indemnification if it determines:
(1) The director is entitled to mandatory indemnification under
Section 10-2B-8.52, in which case the court shall also order the
corporation to pay the director's reasonable expenses incurred
to obtain court-ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances,
whether or not he or she met the standard of conduct set forth
in Section 10-2B-8.51 or was adjudged liable as described in
Section 10-2B-8.51(d), but if he or she was adjudged so liable
the indemnification is limited to reasonable expenses incurred.
Section 10-2B-8.55 Determinations required for indemnification.
(a) A corporation may not indemnify a director under Section
10-2B-8.51 unless authorized in the specific case after a
determination has been made that indemnification of the director
is permissible in the circumstances because the director has met
the standard of conduct set forth in Section 10-2B-8.51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of
a quorum consisting of directors not at the
time parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision (1), by
majority vote of a committee duly designated by the board
of directors (in which designation directors who are
parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(3) By special legal counsel;
(i) Selected by the board of directors or
its committee in the manner prescribed
in subdivision (1) or (2); or
(ii) If a quorum of the board of directors cannot be
obtained under subdivision (1) and a committee cannot
be designated under subdivision (2), selected by
majority vote of the full board of directors (in which
selection directors who are parties may participate);
or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination. A
majority of the shares that are entitled to vote on the
transaction by virtue of not being owned by or under the
control of such directors constitutes a quorum for the
purpose of taking action under this section.
(c) Authorization of indemnification and evaluation as
to reasonableness of expenses shall be made in the
same manner as the determination that
indemnification is permissible, except that if the
determination is made by special legal counsel,
authorization of indemnification and evaluation as
to reasonableness of expenses shall be made by
those entitled under subsection (b)(3) to select
counsel.
Section 10-2B-8.56 Indemnification of officers.
(a) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Section 10-2B-8.52, and is
entitled to apply for court-ordered indemnification under
Section 10-2B-8.54, in each case to the same extent as a
director.
(b) A corporation may indemnify and may advance expenses under
Division E of this article to an officer, employee, or agent of
the corporation who is not a director to the same extent as to a
director.
Section 10-2B-8.57 Liability insurance for directors, officers, employees and
agents.
A corporation may purchase and maintain insurance, or furnish similar
protection (including but not limited to trust funds, self-insurance reserves,
or the like), on behalf of an individual who is or was a director, officer,
employee, or agent of the corporation, or who, while a director, officer,
employee, or agent of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of
another foreign or domestic corporation, partnership, joint venture trust,
employee benefit plan, or other enterprise, against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
a director, officer, employee, or agent, whether or not the corporation would
have power to indemnify him or her against the same liability under Section
10-2B-8.51 or 10-2B-8.52.
Section 10-2B-8.58 Advance for expenses.
(a) Any indemnification, or advance for expenses, authorized under
Division E of this article shall not be deemed exclusive of and
shall be in addition to that which may be contained in a
corporation's articles of incorporation, bylaws, a resolution of
its shareholders or board of directors, or in a contract or
otherwise.
(b) Division E of this article does not limit a corporation's power
to pay or reimburse expenses incurred by a director in
connection with the director's appearance as a witness in a
proceeding at a time when he or she has not been made a named
defendant or respondent to the proceeding.
Exhibit 99.3
Section 10-13-19 of the Code of Alabama, 1975
<PAGE>
Section 10-13-19 Liability of trustees or officers
(a) Subject to the provisions of subsection (b), a trustee of a real
estate investment trust is not personally liable for the
obligations of the real estate investment trust.
(b) If a trustee otherwise would be liable, the provisions of this
subsection do not relieve the trustee from any liability to the
trust or its security holders for any act that constitutes
(1) Bad faith.
(2) Willful misfeasance.
(3) Gross negligence.
(4) Reckless disregard of the trustee's duties.
(c) (1) Except as provided in paragraph (2), the
declaration of trust of a real
estate investment trust may include any provision expanding
or limiting the liability of its trustees and officers to
the trust or its shareholders for money damages.
(2) The declaration of trust of a real estate investment trust
may not include any provision that restricts or limits the
liability of its trustees or officers to the trust or its
shareholders:
a. To the extent that it is proven that the person
actually received an improper benefit or profit in
money, property, or services, for the amount of the
benefit or profit in money, property, or services
actually received.
b. To the extent that a judgment or other
final adjudication adverse to the person
is entered in a proceeding based on a
finding in the proceeding that the
person's action or failure to act was
the result of active and deliberate
dishonesty and was material to the cause
of action adjudicated in the proceeding.
(3) This subsection may not be construed to affect the
liability of a person in any capacity other than the
person's capacity as a trustee or officer of a real estate
investment trust.
