As filed with the Securities and Exchange Commission on May 15,
1997
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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Colonial Properties Trust
(Exact name of Registrant as specified in its charter)
Alabama 59-7007599
(State or other (IRS Employer
jurisdiction of Identification
incorporation or 2101 Sixth Avenue North Number)
organization) Suite 750
Birmingham, Alabama 35202
(205) 250-8700
(Address of Principal Executive
Offices) (Zip Code)
Colonial Properties Trust Employee Share Purchase 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
(202) 637-5600
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------===========
Title of Amount to be Proposed Proposed Amount of
securities registered maximum maximum registration
to be offering aggregate fee
registered price per offering price
share(1) (1)
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Common
shares of 150,000 $ 26.94 $4,041,000.00 $ 1224.55
beneficial
interest,
par value
$.01 per
share
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(1)Estimated pursuant to Rule 457(c) and (h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee, based on the
average of the high and low prices per share of Colonial Properties Trust's
common shares of beneficial interest, 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 required to be provided in
this Part I will be sent or given to employees participating in the Colonial
Properties Trust Employee Share Purchase Plan (the "Plan"), 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 under the Securities Act. These documents and
the documents incorporated by reference in the Registration Statement pursuant
to Item 3 of Part II of this form, taken together, constitute a prospectus that
meets the requirements of 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:
(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 Directors 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 the
signature page).
99.1 Colonial Properties Trust Employee Share
Purchase 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 Employee Share Purchase 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
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 150,000 common shares of beneficial interest, par
value $.01 per share (the "Shares"), issuable in connection with the
Registrant's Employee Share Purchase 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 April 24, 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.
<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 Employee Share Purchase
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
Employee Share Purchase 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
Employee Share Purchase Plan
<PAGE>
COLONIAL PROPERTIES TRUST
EMPLOYEE SHARE PURCHASE PLAN
This Colonial Properties Trust Employee Share Purchase Plan (the
"Plan") was approved and adopted on April 24, 1997, by the Board of Trustees of
Colonial Properties Trust (the "Company") and the Board of Directors of Colonial
Properties Holding Company, Inc. ("CPHC"), as general partner of Colonial Realty
Limited Partnership (the "Operating Partnership"). Set forth below are all of
the terms of the two plans comprising the Plan, one for the benefit of the
employees of the Company (the "Company Plan"), and one for the benefit of
employees of the Operating Partnership and any Affiliate of the Operating
Partnership (the "Operating Partnership Plan"). The purpose of the Plan is to
advance the interests of the Company and the Operating Partnership and its
Affiliates by providing eligible employees with the opportunity, through payroll
deductions, to purchase shares of the Company's common shares of beneficial
interest, par value $.01 per share ("Shares"), thus increasing eligible
employees' interest in the growth and success of the Company and the Operating
Partnership and its affiliates. The provisions of the Plan are set forth below:
1. Definitions. For purposes of administering and
interpreting the Plan, the following definitions shall apply:
(a) An "Affiliate" of an entity shall include any partnership,
corporation, company or other trade or business that is controlled by or under
common control with such entity (determined in accordance with the principles of
Sections 414(b) and 414(c) of the Internal Revenue Code and the regulations
thereunder) or that is an affiliate of such entity within the meaning of Rule
405 of Regulation C under the Securities Act of 1933.
(b) "Agent" shall have the meaning set forth in
Section 11 below.
(c) "Applicable Committee" means, with respect to the Company Plan,
the Company Committee, and means, with respect to the Operating Partnership
Plan, the CPHC Committee.
(d) "Board of Directors" means the Board of Directors
of CPHC.
(e) "Board of Trustees" means the Board of Trustees of
the Company.
(f) "Company" means Colonial Properties Trust.
(g) "Company Account" means an unsegregated account
maintained by the Company for the purpose of holding deductions from
Participant's Eligible Compensation pending the use of such deducted amounts to
purchase Shares pursuant to the Plan.
(h) "Company Committee" means the Executive
Compensation Committee of the Board of Trustees.
(i) "Company Plan" means the Plan as administered pursuant to Section
3(a) hereof for the benefit of employees of the Company.
(j) "CPHC" means Colonial Properties Holding Company, Inc., the
general partner of the Operating Partnership.
(k) "CPHC Committee" means the Executive Compensation
Committee of the Board of Directors.
(l) "Eligible Compensation" includes salary, bonus, commissions,
wages and overtime pay of a Participant paid to a Participant by any Employer.
(m) "Employer" means the Company, CPHC, the Operating
Partnership, Colonial Properties Services Limited Partnership,
Colonial Properties Services, Inc. or an Affiliate of any such
entity, in its capacity as an Employer of persons eligible to
participate in the Plan.
(n) "Enrollment Date" means, initially, a date selected by the Plan
Administrator in its discretion, and thereafter each January 1, April 1, July 1
and October 1 of each year.
(o) "Operating Partnership" means Colonial Realty
Limited Partnership.
(p) "Operating Partnership Plan" means the Plan as administered
pursuant to Section 3(b) hereof for the benefit of the employees of CPHC, the
Operating Partnership and their respective Affiliates.
(q) "Participant" means (i) an eligible employee of the Company who
becomes a participant in the Company Plan, and (ii) an eligible employee of
CPHC, the Operating Partnership, or an Affiliate of either who becomes a
participant in the Operating Partnership Plan. A Participant may, if eligible,
participate in both the Company Plan and the Operating Partnership Plan.
(r) "Payroll Deduction Period" means the payroll period of the
applicable Employer or such other period as the Plan Administrator shall
determine; provided, however, that the first Payroll Deduction Period under the
Plan shall commence on a date determined by the Chief Financial Officer of the
applicable Employer and end on the last day of the then current payroll period
of such applicable Employer.
(s) "Plan" means the Colonial Properties Trust Employee Share
Purchase Plan (which encompasses the Company Plan and the Operating Partnership
Plan), as the same may be hereafter amended from time to time.
(t) "Plan Administrator" means, with respect to the Company Plan, the
Board of Trustees, the Company Committee or the designee of either; and means,
with respect to the Operating Partnership Plan, the Board of Directors, the CPHC
Committee, or the designee of either.
(u) "Purchase Date" shall have the meaning set forth
in Section 8 below.
(v) "Purchase Price" shall have the meaning set forth
in Section 7 below.
(w) "Reporting Period" shall have the meaning set
forth in Section 10 below.
(x) "Shares" means the common shares of beneficial interest, par
value $.01 per share, of the Company.
(y) "Subsidiary" means any "subsidiary corporation" of the Company
within the meaning of Section 425(f) of the Code.
2. Shares Subject to the Plan. Subject to appropriate adjustment upon a
recapitalization, reclassification, reorganization, share split, reverse split,
share dividend or other transaction or event resulting in an increase or
decrease in such Shares without receipt of consideration by the Company (which
adjustment shall be determined by the Applicable Committee, whose determination
shall be final and conclusive), the aggregate number of Shares that will be made
available for purchase by Participants under the Plan is the number of Shares
which can be purchased with the payroll deductions elected by Participants in
accordance with the terms of the Plan. The Shares issuable under the Plan may,
in the discretion of the Applicable Committee, be purchased either directly from
the Company (to the extent available) or in the open market.
3. Administration and Interpretation. The Plan shall be
administered as follows:
(a) Company Plan. The Company Plan shall be administered by the Board
of Trustees, the Company Committee or the designee of either. The Plan
Administrator shall have such powers and authorities related to the
administration of the Company Plan as are consistent with the Company's
Declaration of Trust and By-laws and applicable law. The Plan Administrator
shall have the full power and authority (subject to any restrictions imposed by
the Board of Trustees, the Company's Declaration of Trust or By-laws, or
applicable law) to take all actions and to make all determinations required or
provided for under the Company Plan, and shall have full power and authority to
take all such other actions and to make all such determinations not inconsistent
with the specific terms and provisions of the Company Plan that the Plan
Administrator deems to be necessary or appropriate to the administration of the
Company Plan. The interpretation and construction by the Plan Administrator of
any provision of the Company Plan shall be final and conclusive. The Plan
Administrator shall have the power and authority to delegate the duty to perform
such administrative functions as the Plan Administrator deems appropriate under
the circumstances. Any person to whom the duty to perform an administrative
function under the Company Plan is delegated by the Plan Administrator shall act
on behalf of and shall be responsible to the Plan Administrator for such
function. Neither the Board of Trustees, the Company Committee nor the designee
of either shall be liable for any action or determination made in good faith
with respect to the Company Plan.
(b) Operating Partnership Plan. The Operating Partnership Plan shall
be administered by the Board of Directors, the CPHC Committee or the designee of
either. The Plan Administrator shall have such powers and authorities related to
the administration of the Operating Partnership Plan as are consistent with the
agreement of limited partnership of the Operating Partnership and applicable
law. The Plan Administrator shall have the full power and authority (subject to
any restrictions imposed by the agreement of limited partnership of the
Operating Partnership or applicable law) to take all actions and to make all
determinations required or provided for under the Operating Partnership Plan,
and shall have full power and authority to take all such other actions and to
make all such determinations not inconsistent with the specific terms and
provisions of the Operating Partnership Plan that the Plan Administrator deems
to be necessary or appropriate to the administration of the Operating
Partnership Plan. The interpretation and construction by the Plan Administrator
of any provision of the Operating Partnership Plan shall be final and
conclusive. The Plan Administrator shall have the power and authority to
delegate the duty to perform such administrative functions as the Plan
Administrator deems appropriate under the circumstances. Any person to whom the
duty to perform an administrative function under the Operating Partnership Plan
is delegated by the Plan Administrator shall act on behalf of and shall be
responsible to the Plan Administrator for such function. Neither the Board of
Directors, the CPHC Committee, nor the designee of either shall be liable for
any action or determination made in good faith with respect to the Operating
Partnership Plan.
4. Eligible Employees. Any employee of the Company may participate in the
Company Plan and any Employee of the Operating Partnership or any of its
Affiliates may participate in the Operating Partnership Plan, except in both
cases the following, who are ineligible to participate: (a) an employee who has
been employed by the Employer or any of its Affiliates for less than one year as
of the beginning of a Payroll Deduction Period; (b) an employee whose customary
employment is for less than 1,000 hours in any calendar year; (c) an employee
who has not attained the age of 19; and (d) an employee who, after purchasing
Shares under the Plan, would own Shares (including Shares that may be acquired
under any outstanding options) representing five percent or more of the total
combined voting power of all classes of the Company's outstanding equity
securities. The Applicable Committee may at any time in its sole discretion, if
it deems it advisable to do so, terminate the participation of the employees of
a particular Employer.
5. Participation in the Plan. An eligible employee may become a
Participant by completing an election to participate in the Plan on an
enrollment form provided by the Plan Administrator and submitting that
enrollment form to the Plan Administrator. Enrollment will become effective upon
the first Enrollment Date following the Plan Administrator's receipt of the
enrollment form.
6. Payroll Deductions. At the time an eligible employee submits his or her
election to participate in the Plan as provided in Section 5 above, the employee
shall elect to have deductions made from his or her pay, on each pay day
following his or her enrollment in the Plan (until he or she shall cease to
participate in the Plan) of a specified dollar amount or a whole percentage
amount of not less than one percent of Eligible Compensation which the employee
is entitled to receive on such pay day. The deductions will be credited to the
employee and held in the Company Account along with the deductions of other
Participants in the Plan. If funds held in the Company Account are to be used to
purchase newly issued Shares directly from the Company, such funds shall be
released to the Company on the Purchase Date in the month following the month in
which the applicable Payroll Deduction Period ends. If Shares are to be
purchased in the open market, all funds held in the Company Account (together
with any funds required to be contributed to the Plan by the applicable
Employer) shall, no later than the last day of the month in which the applicable
Payroll Deduction Period ends, be transferred to the Plan Administrator, who
will credit the Plan account of each Participant with the proportionate amount
of such funds to which such Participant is entitled. A Participant may increase
or decrease his or her payroll deduction percentage by completing and submitting
to the Plan Administrator a new payroll deduction authorization form, but such
change will become effective only upon the first Enrollment Date after such form
is received by the Plan Administrator. An employee may not during any Payroll
Deduction Period change his or her percentage or amount of payroll deduction for
that Payroll Deduction Period. An employee may not contribute amounts to
purchase Shares under the Plan other than through payroll deductions.
7. Purchase Price. Unless otherwise determined by the Applicable
Committee, the purchase price of each Share purchased under the Plan (the
"Purchase Price") shall be (i) in the case of newly issued Shares purchased from
the Company, 95% of the closing price of the Shares as reported on the New York
Stock Exchange (or such other exchange or market quotation system that serves as
the primary market for the Shares) for the trading day immediately preceding the
Purchase Date or (ii) in the case of Shares purchased in the open market, 95% of
the weighted average price per Share of all Shares purchased under the Plan in
the open market for the applicable Payroll Deduction Period. If Shares are
purchased in the open market, the applicable Employer shall contribute to the
Plan the amounts necessary to permit the Plan Administrator to purchase Shares
on behalf of participating employees of such Employer in accordance with the
terms of the Plan.
8. Purchase of Shares. Unless a Participant has given prior written notice
terminating such Participant's participation in the Plan, or his or her
participation in the Plan has otherwise been terminated as provided in Section
14 below, the accumulated funds in or held for the Participant's account on the
first day of each month will automatically be applied in full to the purchase of
Shares at the Purchase Price. If newly issued Shares are to be purchased from
the Company, such Shares shall be deemed purchased by the Plan Administrator on
the first trading day of the month following the month in which the applicable
Payroll Deduction Period ended (the "Purchase Date"). If Shares are to be
purchased in the open market, the Plan Administrator shall purchase Shares as
promptly as practicable, in all events within ten trading days following the end
of the month in which the applicable Payroll Deduction Period ended. Shares will
be allocated to a Participant's account, and such Participant will be deemed the
owner of Shares purchased for his or her account with respect to a Payroll
Deduction Period, (i) on the Purchase Date if such Shares are newly issued
Shares acquired from the Company, and (ii) on the last day on which a purchase
of Shares is made with respect to such Payroll Deduction Period if Shares are
purchased in the open market.
9. Dividend Reinvestment. Dividends paid on Shares held in a Participant's
Plan account will be reinvested in Shares pursuant to the Company's Dividend
Reinvestment and Share Purchase Plan unless the Participant elects on his or her
enrollment form submitted to the Plan Administrator to have his or her dividends
transmitted to him or her. Unless a Participant otherwise elects, the Plan
Administrator shall, with respect to Shares held in such Participant's Plan
account, make an appropriate election with the administrator of the Company's
Dividend Reinvestment and Share Purchase Plan to effect the reinvestment of
dividends paid on such Shares.
10. Account Statements. The Plan Administrator will deliver to each
Participant a statement on a quarterly or other periodic basis (each such
quarterly or other period being referred to as a "Reporting Period"), as
determined by the Plan Administrator, reflecting information regarding such
Participant's purchases under the Plan.
11. Issuance of Share Certificates; Transfer Restrictions. Shares
purchased under the Plan will be held in the custody of the Plan Administrator,
or such other entity as the Plan Administrator shall designate as agent (the
"Agent"). The Agent may hold the Shares purchased under the Plan in book entry
form or in share certificates in nominee names, and may commingle Shares held in
its custody in a single account or share certificate, without identification as
to individual employees. A Participant may by written notice instruct the Plan
Administrator to have all or part of the whole Shares in his or her Plan account
reissued in the Participant's own name and have the share certificate delivered
to the Participant; provided, that share certificates representing fractional
share interests shall not be issued in a Participant's name, and in lieu thereof
a check in an amount equal to the fair market value (based on the closing price
of the Shares on the New York Stock Exchange or other primary trading market on
the immediately preceding trading day) of any fractional share interest credited
to the Participant's Plan account be issued in his or her name and delivered to
the Participant; provided further, that Shares purchased for Participant's
account may not be sold, pledged, hypothecated, or otherwise transferred by such
Participant during the six months following the allocation of such Shares to the
Participant's account, other than by will, in accordance with the laws of
descent and distribution, or pursuant to a domestic relations order, and any
share certificate issued to a Participant during such six-month period will bear
an appropriate legend restricting its transfer.
12. Withholding of Taxes. To the extent that a Participant realizes
ordinary income in connection with a purchase of any Shares under the Plan or a
sale or other transfer of any Shares purchased under the Plan, such
Participant's Employer may withhold amounts needed to cover such taxes from any
payments otherwise due and owing to the participant or from Shares that would
otherwise be issued to the Participant hereunder.
13. Participation Adjustment. If for any Payroll Deduction Period the
number of Shares that may be made available for purchase under the Plan is
insufficient to permit exercise of all rights deemed exercised by all
Participants with respect to such Payroll Deduction Period, a participation
adjustment will be made, and the number of Shares purchasable by all
Participants will be reduced proportionately. Any funds then remaining in a
Participant's account after the purchase of all purchasable Shares will be
refunded to the Participant.
14. Termination of Participation. A Participant will be refunded all
monies in his or her account, and his or her participation in the Plan will be
terminated, if: (a) the Participant elects to terminate participation in a
writing delivered to the Plan Administrator; (b) the Participant ceases to be
employed by such Participant's Employer or an Affiliate of such Employer; (c)
the Plan is terminated as provided in Section 18 below; or (d) the Participant
ceases to be eligible to participate in the Plan under Section 4 above. A
Participant may terminate participation in the Plan at any time; provided,
however, that a notice of termination will be effective as of the first day of
the next Payroll Deduction Period following the Payroll Deduction Period in
which the termination notice is received by the Plan Administrator. Temporary
disability or an approved leave of absence will not result in termination of
employment within the meaning of the Plan. As soon as practicable following
termination of a Participant's participation in the Plan, the Plan Administrator
will deliver to the Participant (i) a check representing any uninvested
contributions to which the Participant is entitled plus the fair market value of
any fractional share interest credited to such Participant's account and (ii) at
the Participant's request, a share certificate representing the number of whole
Shares held in the Participant's account. Once terminated, participation may not
be reinstated for the then current Payroll Deduction Period, but, if otherwise
eligible, the employee may elect to participate in any subsequent Payroll
Deduction Period.
15. Assignment. No Participant may assign his or her rights to purchase
Shares under the Plan, whether voluntarily, by operation of law or otherwise.
Any payment of cash or issuance of Shares under the Plan may be made only to the
Participant's (or, in the event of the Participant's death, to the Participant's
estate). Subject to Section 11 hereof, once a share certificate has been issued
to the Participant or for his or her account, such certificate may be assigned
the same as any other share certificate.
16. Application of Funds. All funds received or held in the Company
Account under the Plan may be used for any corporate or partnership purpose
until applied to the purchase of Shares and/or refunded to Participants.
Participants' accounts will not be segregated. Interest will not be paid on
funds held pursuant to the Plan.
17. No Right to Continued Employment. Neither the Plan nor any right to
purchase Shares under the Plan confers upon any Participant any right to
continued employment with the Company, CPHC, the Operating Partnership or any of
their respective Affiliates, nor will an employee's participation in the Plan
restrict or interfere in any way with the right of the applicable Employer to
terminate the Participant's employment at any time.
18. Amendment and Termination of the Plan. The Board of Trustees, may, at
any time and from time to time, amend, suspend, or terminate the Plan as to
Shares that have not yet been purchased under the Plan; provided, however, that
no amendment, suspension or termination shall be effective with respect to the
Operating Partnership Plan without the approval of the Board of Directors in its
capacity as general partner of the Operating Partnership. In connection with any
termination of the Company Plan or the Operating Partnership Plan, the
Applicable Committee may determine to refund all Participant contributions to
the Plan that have not yet been expended to purchase Shares. Any termination or
suspension of the Plan shall not impair any rights of Participants with respect
to Shares previously purchased for their accounts.
19. Effective Date. The Plan shall be effective as of April 24, 1997, the
date of final approval of the Company Plan by the Board of Trustees and of the
Operating Partnership Plan by the Board of Directors.
20. Payment of Plan Expenses. Each Employer will bear its
allocable share of costs of administering and carrying out the
Plan.
21. Governmental Regulation. The obligation of the Company, the Operating
Partnership, or any Affiliate of the Operating Partnership to purchase and
deliver 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. The Company will deliver to each participant who
purchases 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 shareholders. Any Shares held by the
Plan Administrator for a Participant's account will be voted in accordance with
the Participant's duly delivered and signed proxy instructions. There will be no
charge to Participants in connection with such notices, proxies and other
materials.
* * *
The Colonial Properties Trust Employee Share Purchase Plan was duly
adopted and approved by the Board of Trustees of Colonial Properties Trust and
the Board of Directors of Colonial Properties Holding Company, Inc., as general
partner of Colonial Realty Limited Partnership, on April 24, 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.
