As filed with the Securities and Exchange Commission on
January 23, 1997 Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
MID-AMERICA APARTMENT COMMUNITIES, INC.
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(Exact name of registrant as specified in its charter)
TENNESSEE 6021 62-1543819
- ------------------ ---------------------------- -------------------
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
6584 Poplar Avenue, Suite 340
Memphis, Tennessee 38138
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(Address of principal executive office)
George E. Cates
6584 Poplar Avenue, Suite 340
Memphis, Tennessee 38138
(901) 682-6600
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(Name and address of agent for service)
Copies to:
John A. Good, Esq.
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, 20th Floor
Memphis, Tennessee 38103
Telephone (901) 577-2148
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X].
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check
the following box and list the Securities Act registration
statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities Being Being Offering Price Aggregate Registration
Registered Registered Per Share (1) OfferingPrice(1) Fee
- ---------------- ---------- -------------- ----------------- ------------
Common Stock, 750,000 $ 28.275 $21,206,250 $6,426.14
$.01 par value Shares
===============================================================================
(1) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(c) based upon the average of the high and low
reported prices of the Common Stock on the New York Stock Exchange
during the week of January 17, 1997.
<PAGE>
PROSPECTUS
MID-AMERICA APARTMENT COMMUNITIES, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
Common Stock, $.01 par value
The Dividend Reinvestment and Stock Purchase Plan (the "Plan")
of Mid-America Apartment Communities, Inc. (the "Company") provides holders
of record and beneficial owners (collectively "Shareholders") of the
Company's common stock, $.01 par value per share (the "Common Stock") and
the Company's 9.5% Series A Cumulative Preferred Stock, $25 Liquidation
Preference per share (the "Preferred Stock") with a simple and convenient
method of acquiring shares of Common Stock either from the Company or
in the open market. Pursuant to the Plan, electing Shareholders
("Participants") may utilize cash dividends and distributions ("dividends")
and optional cash payments to purchase directly from the Company shares of
Common Stock at a 3% discount (subject to change) from the market price
(as determined in accordance with the Plan). In the sole discretion of
the Company, optional cash purchases utilized to acquire Common Stock
directly from the Company may be subject to a threshold price (as determined
in accordance with the Plan). No discount from the market price will be
recognized with respect to Common Stock acquired in open market transactions
under the Plan. Shareholders may acquire Common Stock under the Plan
with optional cash payments regardless of whether they elect to reinvest
dividends under the Plan.
A Shareholder may participate in the Plan by completing an
Authorization Card and returning it to AmSouth Bank of Alabama,
Dividend Reinvestment, P.O. Box 11426, Birmingham, Alabama 35202
(or directing its broker or nominee to complete and return the
Authorization Card and Broker and Nominee Form, if applicable).
Shareholders who are Participants in the Plan may terminate their
participation at any time. Shareholders who are not Participants
in the Plan and who do not want to participate need do nothing
and will continue to receive their cash dividends, if and when
declared, as usual.
To the extent dividends and optional cash payments are
utilized to purchase Common Stock directly from the Company, the
proceeds to the Company from the issuance and sale of such common
stock will be utilized for general corporate purposes, including
the acquisition of additional multifamily residential properties.
This Prospectus relates to 750,000 shares of Common Stock
offered hereby and registered for sale under the Plan. Participants
should retain this Prospectus for future reference.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON
OR ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO
THE CONTRARY IS UNLAWFUL.
The date of this Prospectus is January 23, 1997
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission")
pursuant to the Exchange Act. Such reports, proxy statements and other
information filed by the Company may be examined without charge at, or
copies obtained upon payment of prescribed fees from, the Public Reference
Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and are also available for inspection and copying
at the regional offices of the Commission located at 7 World Trade Center,
13th Floor, New York, New York 10048 and at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511. Such material can also be inspected
and copied at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
The Company has filed with the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder, with respect to the securities offered
pursuant to this Prospectus. This Prospectus, which is part of the
Registration Statement, does not contain all of the information set forth
in the Registration Statement and the exhibits and financial schedules
thereto. For further information concerning the Company and the securities
offered hereby, reference is made to the Registration Statement and the exhibits
and schedules filed therewith, which may be examined without charge at, or
copies obtained upon payment of prescribed fees from, the Commission at the
locations listed above. Any statements contained herein concerning the
provisions of any document are not necessarily complete, and, in each instance,
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by America First REIT, Inc.
(File No. 1-11798), which, by means of a merger with and into a wholly owned
subsidiary of the Company, on June 29, 1995 became a wholly owned subsidiary
of the Company, with the Commission, are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1994; and
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1995.
The following documents heretofore filed by the Company with the
Commission (File No. 1-12762) are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1995;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 30, 1996;
(c) Current Reports on Form 8-K dated February 5, 1996, March 15, 1996,
June 7, 1996, June 12, 1996, August 7, 1996, October 15, 1996 (three
filed), December 18, 1996 and December 26, 1996, respectively;
(d) pages 2 through 10 of the Company's Proxy Statement for its 1996 Annual
Meeting of Shareholders;
(e) the description of the Company's Common Stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission on
December 14, 1993; and
(f) the description of the Company's 9.5% Series A Cumulative Preferred
Stock contained in the Company's Registration Statement on Form 8-A
filed with the Commission on October 4, 1996, as amended by Form 8-A/A
filed with the Commission on October 11, 1996.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus
and prior to the filing of a post-effective amendment which indicates that
all Common Stock offered hereby has been sold or which deregisters all
Common Stock then remaining unsold shall be incorporated by reference in
this Prospectus and made a part hereof from the date of the filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other document subsequently filed with the
Commission which also is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person,
a copy of any or all of the documents incorporated by reference herein
(not including the exhibits to such documents, unless such exhibits are
specifically incorporated by reference in such documents). Request for
such copies should be directed to: Mid-America Apartment Communities, Inc.,
6584 Poplar Avenue, Suite 340, Memphis, Tennessee 38138 Attention:
Lynn A. Johnson, Secretary/Treasurer, telephone (901) 682-6600.
<PAGE>
THE COMPANY
General
The Company, a Tennessee corporation, is a self-administered and
self-managed equity REIT which invests in and operates
multifamily residential properties. As of September 30, 1996,
the Company owned 72 apartment communities containing 18,992 units
in 12 states (the "Properties"), and had grown by 13,412 units
since the Company's initial public offering which was completed
in February 1994 (the "Initial Offering"), an increase of
approximately 240% over the number of apartment units owned at
the time of the Initial Offering.
The Properties are located primarily in the southeastern
United States and Texas, with additional units in Missouri and
Ohio. Since the Initial Offering, the Company has expanded
geographically from owning apartment communities in 4 states to
its current presence in 12 states. Of the Properties, 50 contain
200 or more units, with the largest apartment community containing
1,031 units. The Properties are characterized by amenities
which may include extensive landscaping, swimming pools,
tennis courts, fitness centers, saunas or hot tubs.
The Company's principal executive offices are located at
6584 Poplar Avenue, Suite 340, Memphis, Tennessee, 38138 and its
telephone number is (901) 682-6600.
Tax Status of the Company
The Company elected to be taxed as a REIT for
federal income tax purposes for its taxable year
ended December 31, 1994, and expects to continue
to elect such status. Although the Company believes
that it was organized and has been operating
in conformity with the requirements for qualification
as a REIT under the Internal Revenue Code of 1986, as
amended (the "Code") ("REIT Qualification"), no assurance
can be given that the Company will continue to qualify
as a REIT. REIT Qualification involves application
of highly technical and complex Code provisions
for which there are only limited judicial or
administrative interpretations. If in any
taxable year the Company should fail to qualify as
a REIT, the Company would not be allowed a
deduction for distributions to Shareholders for
computing taxable income and would be subject to
federal taxation at regular corporate rates.
Unless entitled to relief under certain
statutory provisions, the Company would also be
disqualified from treatment as a REIT for the four
taxable years following the year during which REIT
Qualification was lost. As a result, the Company's
ability to make distributions to its Shareholders
would be adversely affected.
To ensure that the Company qualifies as a REIT, transfer
of shares of the Company's capital stock is subject to certain
restrictions, and ownership of the capital stock by any
single person is limited to 9.9% of the total number
of shares of outstanding capital stock, subject to certain
exceptions. As provided in the Company's Charter,
any purported transfer in violation of the
abovedescribed ownership limitations shall be void.
<PAGE>
THE DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
Summary
The Plan provides Shareholders with a
convenient and attractive method of investing cash
dividends and optional cash payments in additional
shares of Common Stock. Only holders of record and
beneficial owners of Common Stock and Preferred
Stock may participate in the Plan. Shareholders who
do not participate in the Plan will receive
dividends, as declared, and paid in the usual manner.
Pursuant to the Plan, Shareholders may acquire
Common Stock directly from the Company at a discount
from the market price (as defined in Question 13)
and without payment of any brokerage commission or
service charge. The price to be paid for shares of
Common Stock purchased under the Plan directly from
the Company will be a price reflecting a
discount of 3% from the Market Price. The discount from
the Market Price is subject to change
(but will not vary from the range of 0% to 5%) from
time to time or may be discontinued at the Company's
discretion after a review of current market
conditions, the level of participation in the Plan
and the Company's current and projected capital
needs. The Company will provide Participants with written
notice of a change in the applicable discount rate at
least 7 days prior to the relevant record date.
Dividends and optional cash payments may, in the
sole discretion of the Company, also be utilized to
acquire Common Stock in open market transactions pursuant
to the Plan. In the event open market purchases are made,
brokerage commissions will be paid by Participants only to
the extent that the Company's payment of such
brokerage commissions in connection with such
purchases would cause the Company to lose its
dividends paid deduction for federal tax purposes
and therefore fail to maintain its REIT
Qualification. No discount from the Market Price
will be recognized with respect to Common Stock
acquired in open market transactions pursuant to
the Plan.
Participants may make optional cash payments
pursuant to the Plan to acquire additional shares of
Common Stock whether or not they elect to reinvest
dividends. Common Stock purchased directly from
the Company with optional cash payments will be
purchased at the same discount (if any) allowed with
respect to reinvested dividends. Participants electing
to make optional cash payments are subject to a minimum
per quarter purchase limit of $500 and a maximum
per quarter purchase limit of $10,000 (subject to
waiver). See Question 18. Optional cash payments of
less than $500 and that portion of any optional
cash payment which exceeds the maximum quarterly
purchase limit of $10,000, unless such limit has
been waived, are subject to return to the Participant
without interest. The Company, in its sole discretion,
has the right under the Plan to fix a Threshold Price
(as defined in Question 13) with respect to optional
cash payments, which would have the effect of raising the
price per share for Common Stock acquired under the Plan
and which could preclude the investment of any optional
cash payments in a particular quarter.
The Company may, in its sole discretion, waive the
maximum limit on optional cash payments. Optional cash
payments in excess of $10,000 may be made only upon acceptance
by the Company of a completed Request for Waiver form
from a Participant. See Question 18.
The Company expects to grant Requests for Waiver
to financial intermediaries, including brokers and dealers,
and other Participants. Grants of Requests for Waiver will be
made in the sole discretion of the Company based on a variety
of factors, which may include: the Company's current and
projected capital needs, the alternatives available to the
Company to meet those needs, prevailing market prices for
Common Stock, general economic and market conditions, past
and anticipated volatility in the price or trading volume of the
Common Stock, the number of shares of Common Stock held by
the Participant submitting the Request for Waiver, the
past actions of a Participant under the Plan, the aggregate
amount of optional cash payments for which such waivers have
been submitted and the administrative constraints associated
with granting such waivers. If such Requests for Waiver are
granted, a portion of the shares available for issuance
under the Plan will be purchased by Participants (including
brokers or dealers) who, in connection with any resales of
such shares, may be deemed to be underwriters within the meaning
of the Securities Act.
Financial intermediaries, including brokers and dealers, may
purchase a significant portion of the shares of Common Stock
issued pursuant to the optional cash payment feature of the Plan. The
Company does not have any formal or informal understanding with any
such organizations and, therefore, the extent of such financial
intermediaries' participation under the Plan cannot be estimated
at this time. From time to time, such financial intermediaries
may engage in positioning transactions in order to benefit from the
discount from the Market Price of the shares of Common Stock offered
under the Plan. Such transactions may cause fluctuations in the
trading volume of the Common Stock. The Plan is intended for
the benefit of bona fide investors in the Company and not for
individuals who engage in transactions which may cause volatility
in the price or trading volume of the Common Stock. The
Company does not currently expect to verify the resale
volume by financial intermediaries who may acquire Common
Stock with optional cash payments under the Plan. Participants
that are financial intermediaries that acquire shares of
Common Stock under the Plan with a view to distribution of such
shares or that offer or sell Shares for the Company in connection
with the Plan may be deemed to be underwriters within the meaning
of the Securities Act.
Subject to the availability of shares of
Common Stock registered for issuance under the Plan,
there is no total maximum number of shares that can
be issued pursuant to the reinvestment of dividends
and no preestablished maximum limit applies to
optional cash payments that may be made pursuant to
Requests for Waiver (see Question 18). As of the
date hereof, 750,000 shares of Common stock have
been registered and are available for sale under the
Plan.
Participants may request that any or all shares
held in the Plan be sold by the Plan Administrator
on behalf of such Participants. See Question 26.
The Plan was adopted by the Board of Directors
of the Company on November 4, 1996. The following
questions and answers explain and constitute the Plan
as in effect for dividends paid and optional cash
payments received on or after the date of this Prospectus.
<PAGE>
Purpose of the Plan and Investment Options
1. What is the purpose of the Plan?
The primary purpose of the Plan is to
provide eligible Shareholders of the Company with a
convenient and simple method of increasing their
investment in the Company by investing cash
dividends and optional cash payments in additional
shares of Common Stock without payment of any
brokerage commission or service charge and, to the
extent shares are purchased directly from the
Company, at a discount from the Market Price. See
Question 5 for a description of Shareholders who are
eligible to participate in the Plan. To the extent
shares of Common Stock are purchased directly
from the Company under the Plan, the Company will
utilize the proceeds received from the issuance and
sale thereof for general corporate purposes,
including the acquisition of additional multifamily
residential properties.
2. What investment options are available to enrolled Participants?
Participants in the Plan have the following options with respect
to investments pursuant to the Plan:
(a) Full dividend reinvestment on all shares of Common Stock;
(b) Full dividend reinvestment on all shares of Preferred Stock;
(c) Partial dividend reinvestment on a specified number of shares
of Common Stock;
(d) Partial dividend reinvestment on a specified number of shares
of Preferred Stock; and/or
(e) Optional cash payment of at least $500 but not more than $10,000
(unless a waiver is granted).
Such options are elected by checking the appropriate box[es] on the
Authorization Card (see Question 7).
Advantages and Disadvantages of the Plan
3. What are the advantages and disadvantages of the Plan?
Advantages:
(a) The Plan provides Participants with the
opportunity to reinvest cash dividends paid on all or
a portion of their shares of Common Stock and/or
Preferred Stock in additional shares of Common
Stock without payment of any brokerage commission
or service charge and, with respect to shares
purchased directly from the Company, at a 3%
discount from the Market Price (subject to change).
(b) The Plan provides Participants with the
opportunity to purchase additional shares of Common
Stock with optional cash payments without payment
of any brokerage commission or service charge and,
with respect to shares purchased directly from the
Company, at a 3% discount from the Market Price
(subject to change).
(c) Subject to the availability of shares of
Common Stock registered for issuance under the Plan, all
cash dividends paid can be fully invested in
additional shares of Common Stock because the Plan
permits fractional shares to be credited to Plan
accounts. Dividends on such fractional shares, as
well as on whole shares, will also be reinvested
in additional shares of Common Stock which will be
credited to Plan accounts.
(d) The Plan Administrator, at no charge to
Participants, provides for the safekeeping of stock
certificates for shares credited to each Plan account.
(e) Periodic statements reflecting all current
activity, including share purchases and latest Plan
account balances, simplify Participants' record
keeping. See Question 21 for information
concerning reports to Participants.
(f) Participants may request that any or all
shares held in the Plan be sold by the Plan
Administrator on behalf of such Participants.
Disadvantages:
(a) No interest will be paid by the Company
or the Plan Administrator on dividends or optional cash
payments held pending reinvestment or investment. See
Questions 12, 18 and 19. This disadvantage is especially
important in respect of reinvestment of dividends paid
on shares of Preferred Stock, which are paid monthly
and, therefore, which will be held without interest in
the electing Participant's Plan account until the
next applicable quarterly Investment Date (as
defined in Question 12). In addition, optional
cash payments may be subject to return to the
Participant without interest in the event that
the Threshold Price, if any, is not met for any
Trading Day (as defined in Question 13) during a
Pricing Period (as defined in Question 13). See
Question 13.
(b) With respect to optional cash payments,
the actual number of shares to be issued to a
Participant's Plan account will not be
determined until the end of the relevant Pricing
Period. Therefore, during the Pricing Period
Participants will not know the actual number of
shares they have purchased.
(c) With respect to optional cash payments used
to purchase Common Stock directly from the Company,
while the Plan currently provides for a 3%
discount from the Market Price (subject to change),
the Market Price, as so discounted, may exceed the
price at which shares of the Common Stock are trading
on the Investment Date when the shares are issued or
thereafter.
(d) Because optional cash payments must be
received by the Plan Administrator prior to
commencement of the related Pricing Period, such
payments may be exposed to changes in market
conditions for a longer period of time than in
the case of typical secondary market transactions.
Optional cash payments will not be returned to the
Participant after receipt by the Plan Administrator
unless the Market Price does not exceed the
Threshold Price for at least one day during a
Pricing Period. See Question 19.
(e) Resales of shares of Common Stock
credited to a Participant's account under the Plan
will involve a nominal fee per transaction paid to
the Plan Administrator (if such resale is made by
the Plan Administrator at the request of a
Participant), a brokerage commission and any
applicable stock transfer taxes on the resales. See
Questions 20 and 26.
(f) With respect to purchases of Common
Stock that the Company, in its sole discretion,
elects to make in the open market, brokerage
commissions will be charged to the
Participants, pro rata, to the extent the
payment of such brokerage commissions by the
Company would cause the Company to lose its
dividends paid deduction for federal tax purposes
with respect to any dividend paid and therefore
jeopardize the Company's REIT Qualification.
Plan Administration
4. Who administers the Plan?
The Company has retained AmSouth Bank,
Birmingham, Alabama, as plan administrator (the
"Plan Administrator"), to administer the Plan, keep
records, send statements of account activity to each
Participant and perform other duties relating to the
Plan. See Question 21 for information concerning
reports to Participants. Shares purchased under the
Plan and held by the Plan Administrator will be registered
in the Plan Administrator's name or the name of its nominee
for the benefit of the Participants. In the event that
the Plan Administrator resigns or otherwise ceases to act
as Plan Administrator, the Company will appoint a
new plan administrator to administer the Plan.
The Plan Administrator also acts as dividend
disbursing agent, transfer agent and registrar for
the Company's Common Stock and Preferred Stock.
Participation in the Plan
Generally, Shareholders are either Record
Owners or Beneficial Owners. A Record Owner is
a Shareholder who owns shares of Common Stock or
Preferred Stock in his or her own name. A Beneficial
Owner is a Shareholder who beneficially owns shares
of Common Stock or Preferred Stock that are
registered in a name other than his or her own name
(for example, the shares are held in the name of
a broker, bank or other nominee, such practice being
commonly referred to as "street name" ownership). A
Record Owner may participate directly in the Plan,
whereas a Beneficial Owner will generally
participate through the broker, bank or other
nominee in whose name the Beneficial Owner's shares
are held. The Company intends to facilitate
participation in the Plan by Beneficial Owners by
providing initial plan documents, including this
Prospectus and Authorization Cards, to brokers,
banks and other record owners, by providing
Plan account statements to those persons and by
otherwise communicating Plan information through
such persons. If a Beneficial Owner who is or
desires to become a Participant encounters any
difficulties in coordinating his or her participation
in the Plan with his or her broker, bank or other
nominee, he or she should call thc Company's
Investor Relations department at (901) 682-6600.
5. Who may participate in the Plan?
All Shareholders owning at least one share of
Common Stock or Preferred Stock are eligible to
participate in the Plan. The Company may terminate,
by written notice, at any time any Participant's
participation in the Plan if such participation (i) is
inconsistent with the purposes of the Plan (e.g. to
promote additional share ownership by bona fide investors),
or (ii) would be in violation of the restrictions contained
in the Charter or Bylaws of the Company. Such restrictions
prohibit any person or group of persons from acquiring
or holding, directly or indirectly, ownership of a number
of shares of capital stock of the Company in excess of
9.9% of the outstanding shares. The meanings ascribed to
the terms "group" and "ownership" may cause a person
who individually owns less than 9.9% of the shares
outstanding to be deemed to be holding shares in excess
of the foregoing limitation. The Charter provides that in
the event a person acquires shares of capital
stock in excess of the foregoing limitation, the
excess shares are deemed tendered for purchase to
the Company at a price calculated pursuant to a
formula set forth in the Charter. Under the
Charter any acquisition of shares of the Company
that would result in the disqualification of the
Company as a real estate investment trust for tax
purposes is void to the fullest extent permitted by
law. Additionally, the Company's Charter and
Bylaws provide that certain "disqualified
organizations," which generally include
governmental entities and other tax-exempt persons
not subject to tax on unrelated business taxable
income, are ineligible to hold the Company's shares.
The Plan is intended for the benefit of bona
fide investors in the Company and not persons who
engage in transactions which may cause volatility
in the price or trading volume of Common Stock.
From time to time, financial intermediaries may
engage in positioning transactions in order to
benefit from the discount from the Market Price
of the shares of Common Stock acquired through the
reinvestment of dividends or optional cash payments
under the Plan. Such transactions may cause
fluctuations in the trading volume of the Common
Stock. The Company reserves the right to modify,
suspend or terminate participation in the Plan by
otherwise eligible holders of Common Stock in
order to eliminate practices which are not
consistent with the purposes of the Plan.
6. How does an eligible shareholder participate?
Shareholders of record may participate in the
Plan by completing and signing the Authorization Card
and returning it to the Plan Administrator. Authorization
Cards may be obtained at any time by written request to
AmSouth Bank, Dividend Reinvestment, P.O. Box 11426,
Birmingham, Alabama 35202, or by telephoning the Plan
Administrator at (205) 581-7557.
Beneficial Owners who wish to participate in the Plan
must instruct their brokers, banks or other nominees to complete
and sign the Authorization Card and return it to the Plan
Administrator. See Question 8 for a discussion of the Broker
and Nominee form (the "B&N Form"), which is required to be used
for optional cash payments of a Beneficial Owner whose broker,
bank or other nominee holds the Beneficial Owner's shares in the
name of a securities depository. See also Question 17.
If a Record Owner or the broker, bank or other
nominee for a Beneficial Owner returns a properly
executed Authorization Card to the Plan
Administrator without electing an investment option,
such Authorization Card will be deemed to indicate
the intention of such Record Owner or Beneficial
Owner, as the case may be, to apply all cash
dividends and optional cash payments, if
applicable, toward the purchase of additional shares
of Common Stock. See Question 7 for investment
options.
7. What does the Authorization Card provide?
The Authorization Card appoints the Plan
Administrator as agent for the Participant and
directs the Company to pay to the Plan Administrator
each Participant's cash dividends on all or a
specified number of shares of Common Stock and/or
Preferred Stock owned by the Participant on the
applicable record date ("Participating Shares), as
well as on all whole and fractional shares of Common
Stock credited to a Participant's Plan account ("Plan
Shares"). The Authorization Card directs the
Plan Administrator to purchase on the Investment Date
additional shares of Common Stock with such
dividends and optional cash payments, if any,
made by the Participant. The Authorization Card
also directs the Plan Administrator to
reinvest automatically all subsequent dividends on
Plan Shares. Dividends will continue to be
reinvested on the number of Participating Shares
and on all Plan Shares until the Participant
specifies otherwise by contacting the Plan
Administrator, withdraws from the Plan (see Question
26), or the Plan is terminated.
The Authorization Card provides boxes to
check for the Participant's election of one or
more of the investment options described in
Question 2 above. Electing Participants may check
one of two boxes on the Authorization Card with
respect to reinvestment of dividends on Common Stock
and/or Preferred Stock and a box with respect
to optional cash payments. If a Participant
owns both Common Stock and Preferred Stock, he should
check no more than three of the five boxes on the
Authorization Card. The Authorization Card must be
duly signed before participation in the Plan will be
effective. The Company and the Plan Administrator
will not return or otherwise assume responsibility
for Authorization Cards that are improperly
completed or not duly signed.
In each case, dividends will be reinvested on
all shares of Common Stock and Preferred Stock for
which valid elections have been made and on all
Plan Shares held in the Plan account, including
dividends on shares of Common Stock purchased with
any optional cash payments, until a Participant
specifies otherwise by contacting the Plan
Administrator, or withdraws from the Plan altogether
(see Question 26), or until the Plan or the
Participants participation in the Plan is
terminated. If a Participant would prefer to
receive cash payments of dividends
paid on Plan Shares rather than reinvest such
dividends, those shares must be withdrawn from the
Plan by written notification to the Plan
Administrator. See Questions 25 and 26
regarding withdrawal of Plan Shares.
Participants may change their investment options
at any time by requesting a new Authorization Card
and returning it to the Plan Administrator at the
address set forth in Question 36. Any change in
an election with respect to reinvestment of cash
dividends must be received by the Plan
Administrator no later than the Record Date for
the next dividend in order to make a change with
respect to that dividend.
8. What does the Broker and Nominee Form provide?
The Broker and Nominee Form (the "B&N
Form") must be submitted for optional cash payments
of a Beneficial Owner whose broker, bank or other
nominee holds the Beneficial Owner's shares in the
name of a registered securities depository. A B&N
Form must be delivered to the Plan Administrator
each time that such broker, bank or other nominee
transmits optional cash payments on behalf of a
Beneficial Owner. B&N Forms will be furnished at any
time upon request to the Plan Administrator at the
address or telephone number specified in Question 36.
Prior to submitting the B&N Form, the broker,
bank or other nominee for a Beneficial Owner
must have established participation in the
Plan by means of a duly completed and executed
Authorization Card on behalf of the Beneficial
owner. See Questions 6 and 7.
THE B&N FORM AND APPROPRIATE INSTRUCTIONS WITH RESPECT
TO ANY OPTIONAL CASH PAYMENT MUST BE RECEIVED BY THE PLAN
ADMINISTRATOR NOT LATER THAN THE APPLICABLE RECORD DATE OR
THE OPTIONAL CASH PAYMENT WILL NOT BE INVESTED UNTIL THE
FOLLOWING INVESTMENT DATE.
9. Is partial participation possible under the Plan?
Yes. Shareholders may designate on the
Authorization Card a number of shares of Common Stock
and/or Preferred Stock for which dividends are to
be reinvested. Dividends will thereafter be
reinvested only on the number of shares of Common
Stock and/or Preferred Stock so specified, and the
Shareholder will continue to receive cash
dividends on the remainder of the shares of Common
Stock and/or Preferred Stock owned by such
Shareholder.
10. When may an eligible shareholder join the Plan?
A Shareholder may join the Plan at any time.
Once in the Plan, a Participant remains in the Plan
until he or she withdraws from the Plan, the Company
terminates his or her participation in the Plan or
the Company terminates the Plan. See Question 26
regarding withdrawal from the Plan.
11. What is the Record Date for dividend reinvestment and
optional cash payments?
The "Record Date" for reinvestment of dividends
and optional cash purchases is the record date fixed
by the Board of Directors in respect of the
declaration of dividends on the Company's Common
Stock. Generally, record dates for quarterly
dividends on the Common Stock will precede the
dividend payment dates by an average of 7 days,
but may vary. Participants who own shares of
Preferred Stock and elect to reinvest dividends
on any such shares should be aware that dividends
on the Company's Preferred Stock are payable monthly
on the 15th day of the month to shareholders of
record on the first day of the month. Such record
dates do not necessarily coincide with the record dates
fixed for payment of regular quarterly dividends of the Company.
The quarterly record and payment dates with respect to
dividends on the Company's Common Stock are expected to occur on
or about the following dates (which dates may vary from year to year):
Record Date Payment Date
------------- ---------------
April 23 April 30
July 24 July 31
October 24 October 31
January 24 January 31
If a Shareholder's Authorization Card is received prior to the
Record Date described above, the election to reinvest dividends will
begin with the dividend payment with respect to which such Record Date
relates. If the Authorization Card is received on or after any such
Record Date, reinvestment of dividends will begin on the dividend payment
date following the next succeeding Record Date if the Participant
is still a Shareholder.
12. What is the Investment Date for reinvested dividends and/or
optional cash payments?
Common Stock acquired directly from the Company
and relating to either dividend reinvestments or
optional cash payments will be acquired on the
dividend payment date (the "Investment Date") fixed
by the Board of Directors with respect to regular
quarterly dividends (if any) on the Company's
Common Stock (unless such date is not a business
day in which case the Investment Date will be the
first business day immediately thereafter).
Shareholders who own Preferred Stock of the Company
and who elect to reinvest dividends thereon
pursuant to the Plan should be aware that
dividends (if any) on such Preferred Stock are paid
monthly on the 15th day of each month to holders of
record on the first day of the month. Such
dividends will be held in such electing
Participants' accounts, without interest, until the
Investment Date.
In the case of open market purchases made
at the sole discretion of the Company pursuant to
the Plan, the Investment Date will be no later
than 10 business days following the dividend
payment date with respect to the Common Stock.
When open market purchases are made by the Plan
Administrator, such purchases may be made on any
securities exchange where the shares are traded, in
the over-the-counter market or by negotiated
transactions, and may be subject to such terms with
respect to price, delivery and other matters as
agreed to by the Plan Administrator. Neither
the Company nor any Participant shall have any
authorization or power to direct the time or price
at which shares will be purchased or the selection of
the broker or dealer through or from whom purchases
are to be made by the Plan Administrator. However,
when open market purchases are made by the Plan
Administrator, the Plan Administrator shall use its
best efforts to purchase the shares at the lowest
possible price.
Shares will be allocated and credited to
Participants' accounts as follows: (i) shares
purchased from the Company will be allocated and
credited on the appropriate Investment Date; and (ii)
shares purchased in open market transactions
will be allocated and credited as of the date
on which the Plan Administrator completes the purchases
of the aggregate number of shares to be purchased on
behalf of all Participants with dividends to be reinvested or
optional cash payments, as the case may be, during the quarter.
NO INTEREST WILL BE PAID ON CASH DIVIDENDS OR OPTIONAL CASH
PAYMENTS PENDING INVESTMENT OR REINVESTMENT UNDER THE TERMS OF
THE PLAN. SINCE NO INTEREST IS PAID ON CASH HELD BY THE PLAN
ADMINISTRATOR, IT NORMALLY WILL BE IN THE BEST INTEREST OF A
PARTICIPANT TO DEFER OPTIONAL CASH PAYMENTS UNTIL SHORTLY BEFORE
COMMENCEMENT OF THE PRICING PERIOD.
Purchases and Prices of Shares
13. What will be the price to Participants of Common Stock
purchased under the Plan?
With respect to reinvested dividends, the price
per share of Common Stock (the "Market Price")
acquired directly from the Company will be 97%
(subject to change) of the greater of (i) the average
of the high and low sales prices, computed to
four decimal places, of the Common Stock on the NYSE
on the Investment Date, or if no trading occurs in the
Common Stock on the Investment Date, the average of the
high and low sales prices for next day for which trades are
reported; or (ii) the average reported closing
sale price on the NYSE for the 10 days ("Trading
Days") immediately preceding the Investment Date for
which trades of Common Stock are reported (the
"Pricing Period").
With respect to optional cash payments, the
price per share of Common Stock acquired directly
from the Company will be 97% (subject to change) of
the greater of the two measurements stated above,
subject to modification in the following manner.
Unless it waives its right to do so, the Company may
establish for any Pricing Period a minimum price
(the "Threshold Price") applicable only to the
investment of optional cash payments in order to
provide the Company with the ability to set a minimum
price at which Common Stock will be sold under the Plan
each quarter to persons making optional cash payments.
A Threshold Price will only be established with respect to
shares of Common Stock sought to be purchased directly
from the Company with optional cash payments on the
applicable Investment Date. Setting a Threshold Price for
a Pricing Period shall not affect the setting of a
Threshold Price for any subsequent Pricing Period. The
Company will, at least three business days prior to each
Record Date, determine whether to establish a Threshold
Price and, if a Threshold Price is established, its
amount, and will notify the Plan Administrator of same.
The determination whether to establish a Threshold Price
and, if a Threshold Price is established, its amount will
be made by the Company at its sole discretion after a
review of current market conditions, the level of
participation in the Plan and the Company's current
and projected capital needs. Neither the Company nor the
Plan Administrator shall be required to provide any written
notice to Participants as to whether a Threshold Price has
been established for any Pricing Period, but current
information regarding the Threshold Price may be
obtained by contacting Lynn A. Johnson, Secretary/Treasurer
of the Company, 6584 Poplar Ave., Suite 340, Memphis,
Tennessee 38138, phone number (901) 682-6600.
The Threshold Price for optional cash payments,
if established for any Pricing Period, will be a
stated dollar amount. In the event that the Market
Price does not exceed the Threshold Price during a
Trading Day in the Pricing Period, then that
Trading Day and the trading prices for that day
will be excluded from the computation of the Market
Price for that Pricing Period. Thus, for example, if
the Market Price is less than the Threshold Price for
three of the ten Trading Days in a Pricing Period, then
the price for purchases with optional cash payments will
be based upon the remaining seven Trading Days for which
the Market Price exceeded the Threshold Price. This
computation will have the effect of raising the
purchase price for shares of Common Stock purchased
with optional cash payments above that for Common
Stock purchased with reinvested dividends or that
would have existed had a Threshold Price not been
fixed. In the event that the Market Price does not
exceed the Threshold Price for any day during a
Pricing Period, then no optional cash payments will
be invested in Common Stock for that quarter, and
optional cash payments will be retained by
the Plan Administrator, without interest, until the next
succeeding quarterly Investment Date or, upon
written request of a Participant, returned to
the Participants making an optional cash payment.
The price per share of Common Stock to be
purchased directly from the Company currently
reflects a discount which is subject to change
(but will not vary from the range of 0% to 5%) from
time to time or discontinuance at the Company's
discretion after a review of current market
conditions, the level of participation in the Plan
and the Company's current and projected capital
needs. The Company will provide Participants with
written notice of a change in the applicable discount
rate at least 7 days prior to the relevant record
date.
14. What will be the price to Participants of Common Stock
purchased in the open market under the Plan?
No discount will be recognized with respect to
Common Stock acquired in open market purchases. The
price per share of Common Stock acquired through open
market purchases will be the weighted average of
the actual prices paid, computed to four decimal
places, for all of the Common Stock purchased
by the Plan Administrator with reinvested
dividends and optional cash payments for the
related quarter. Generally, the Company will pay
all brokerage commissions, fees and other charges
associated with open market purchases. However,
in the event the Company's payment of brokerage
commissions with respect to open market purchases
of Common Stock would adversely affect the Company's
dividends paid reduction for federal tax purposes with
respect to a particular dividend payment or otherwise
adversely affect the Company's REIT Qualification,
then the Company will not pay such brokerage commissions,
fees or other charges, and each Participant will be
charged a pro rata portion of any brokerage commissions
or other fees or charges paid by the Plan Administrator
in connection with such open market purchases. If a
Participant desires to opt out of the dividend
reinvestment feature of the Plan when the Common Stock
relating to dividend reinvestments will be purchased in
the open market, a Participant must notify the Plan
Administrator no later than the Record Date for the
related Investment Date.
Neither the Company nor any Participant
shall have any authorization or power to direct
the time or price at which shares will be
purchased or the selection of the broker or dealer
through or from whom purchases are to be made
by the Plan Administrator. However, when open
market purchases are made by the Plan
Administrator, the Plan Administrator shall use its
best efforts to purchase the shares at the lowest
possible price.
15. How will the number of shares purchased for a Participant be determined?
A Participant's account in the Plan will be
credited with the number of shares, including
fractions computed to four decimal places, equal
to the total amount to be invested on behalf of
such Participant divided by the purchase price per
share as calculated pursuant to the methods
described in Questions 13 and 14, as applicable.
The total amount to be invested will depend on the
amount of any dividends paid on the number of shares
of Common Stock and Preferred Stock participating in
the Plan and Plan Shares in such Participant's Plan
account and available for investment on the related
Investment Date, and the amount of any optional cash
payments made by such Participant and available for
investment on the Investment Date. Subject to the
availability of shares of Common Stock registered for
issuance under the Plan, there is no total maximum
number of shares available for issuance pursuant to
the Plan.
16. What is the source of Common Stock purchased under the Plan?
Plan Shares will be purchased either directly from
the Company, in which event such shares will be either
authorized but unissued shares or shares held in the
treasury, or on the open market, or by a
combination of the foregoing, at the option of
the Company, after a review of current market
conditions and the Company's current and projected
capital needs. The Company will determine the
source of the Common Stock to be purchased under the
Plan at least three business days prior to the
relevant Record Date, and will notify the Plan
Administrator of the same. Neither the Company nor
the Plan Administrator shall be required to provide
any written notice to Participants as to the source
of the Common Stock to be purchased under the
Plan, but current information regarding the
source of the Common Stock may be obtained by
contacting the Company's Secretary/Treasurer at the
address and/or telephone number set forth above.
17. How does the optional cash payment feature of the Plan work?
All Shareholders who have timely submitted duly
signed and completed Authorization Cards indicating their
intention to participate in the optional cash payment feature
of the Plan (except for Beneficial Owners whose brokers,
banks or other nominees hold the shares of the Beneficial Owners
in the name of a registered securities depository), are eligible
to make optional cash payments during any quarter, whether or
not a dividend is declared. If a broker, bank or other nominee
holds shares of a Beneficial Owner in the name of a registered
securities depository, optional cash payments must be made
through the use of the B&N Form. See Question 8. Optional cash
payments and related documentation must be received from
a Participant no later than one business day prior to the
Record Date for the quarter for which investment is desired.
In the event of non-timely submission of funds, such funds will
be held by the Plan Administrator, without interest, until the
Investment Date for the next succeeding quarter or, alternatively,
the Plan Administrator will, upon written request of the
Participant, return such funds to the Participant. See Question 19.
In order for funds to be invested on the next Investment Date,
the Plan Administrator must have received a check, money order or
wire or other funds transfer at least one business day immediately
preceding the Record Date for the quarter for which investment is
desired, and such check, money order or wire or other funds transfer
must have cleared on or before the related Investment Date. Wire or
other funds transfers will be made only pursuant to instructions given
to the Participant by the Plan Administrator. Checks and money orders
are accepted subject to timely collection as good funds and verification
of compliance with the terms of the Plan. Checks or money orders
should be made payable to AmSouth Bank - DRSSP. Checks returned
for any reason will not be resubmitted for collection.
The Company and the Plan Administrator will use their collective
best efforts to facilitate the funding of optional cash payments by means
of automatic funds transfer to or direct deposit of funds with the Plan
Administrator for the account of a Participant where the Participant
designates, in writing, the source of such funds and signs all
documentation necessary for the authorization and effectuation of such
transfer or deposit required by law or the Plan Administrator, in its
absolute discretion.
NO INTEREST WILL BE PAID BY THE COMPANY OR THE PLAN
ADMINISTRATOR ON OPTIONAL CASH PAYMENTS HELD PENDING INVESTMENT. SINCE
NO INTEREST IS PAID ON CASH HELD BY THE PLAN ADMINISTRATOR, IT NORMALLY
WILL BE IN THE BEST INTEREST OF A PARTICIPANT TO DEFER OPTIONAL CASH
PAYMENTS UNTIL SHORTLY BEFORE COMMENCEMENT OF THE PRICING PERIOD.
18. What limitations apply to optional cash payments?
Each optional cash payment is subject to a minimum per quarter
limit of $500 and a maximum per quarter limit of $10,000. For purposes
of these limitations, all Plan accounts under the common control or
management of a Participant will be aggregated. Generally, optional
cash payments of less than $500 and that portion of any optional
cash payment which exceeds the maximum quarterly limit of $10,000,
unless such limit has been waived by the Company, will be retained by
the Plan Administrator until the next Investment Date, or, upon the
written request of the Participant, will be returned to Participant
without interest. See Question 19.
Participants may make optional cash payments of up to $10,000
each quarter without the prior approval of the Company. Optional cash
payments in excess of $10,000 may be made by a Participant only upon
acceptance by the Company of a completed Request for Waiver form properly
submitted by such Participant. There is no pre-established maximum
limit applicable to optional cash payments that may be made pursuant
to accepted Requests for Waiver. A Request for Waiver form must be
properly submitted by the Participant and received and accepted by the
Company each quarter no later than the Record Date for the
applicable Investment Date. Request for Waiver forms will be furnished
at any time upon request to the Plan Administrator at the address or
telephone number specified in Question 36. Participants
interested in obtaining further information about a Request for
Waiver should contact the Company's Secretary/Treasurer at the
address and phone number set forth above.
Requests for Waiver will be considered on the basis of a variety
of factors, which may include the Company's current and projected capital
needs, the alternatives available to the Company to meet those needs,
prevailing market prices for Common Stock and other Company securities,
general economic and market conditions, anticipated volatility in the
price or trading volume of the Common Stock, the number of shares of
Common Stock held by the Participant submitting the waiver request, the past
actions in respect of the Common Stock by a Participant under the Plan, the
aggregate amount of optional cash payments for which such waivers have
been submitted and the administrative constraints associated with granting
such waivers. Grants of waivers will be made in the absolute discretion of
the Company.
PARTICIPANTS IN THE PLAN ARE NOT OBLIGATED TO PARTICIPATE IN THE
OPTIONAL CASH PAYMENT FEATURE OF THE PLAN AT ANY TIME. OPTIONAL
CASH PAYMENTS NEED NOT BE IN THE SAME AMOUNT EACH QUARTER.
19. May optional cash payments be returned?
Except as described below, once an optional cash payment for a
particular quarter has been received by the Plan Administrator, it
will not be returned to the Participant. However, in the event an
optional cash payment is not invested on an Investment Date because
it was not timely received by the Plan Administrator, exceeded or
was less than the limitation on optional cash payments without waiver
by the Company, or because the Market Price did not exceed the
Threshold Price on any Trading Day during the Pricing Period, upon
receipt of a written request by the Participant, such optional cash
payment (or portion thereof, in the case of the foregoing limitation
being exceeded) will be returned to the Participant by check, without
interest, as soon as practicable after the Investment Date.
20. Are there any expenses to Participants in connection with their
participation under the Plan?
Ordinarily, the Company will pay all brokerage
commissions, fees and other charges in connection
with the purchase of Common Stock in the open market
pursuant to the Plan. However, in the event the
Company's payment of such commissions, fees and
expenses would adversely affect the Company's
dividends paid deduction for federal tax purposes
with respect to a particular dividend or otherwise
jeopardize the Company's REIT Qualification,
Participants will be required to pay brokerage fees
or commissions on shares of Common Stock purchased
with reinvested dividends or optional cash payments
in the open market, which sums are not expected to
exceed $.15 per share (subject to change) and
which will be first deducted before determining
the number of shares to be purchased. Participants
will incur no brokerage commissions or service
charges in connection with the reinvestment of
dividends or optional cash payments when shares of
Common Stock are acquired directly from the Company.
The Company will pay all other costs of
administration of the Plan. However, Participants
that request that the Plan Administrator sell all
or any portion of their shares (see Question 26)
must pay a nominal fee per transaction to the Plan
Administrator, any related brokerage commissions and
applicable stock transfer taxes.
Reports to Participants
21. What kind of reports will be sent to Participants in the Plan?
Each Participant in the Plan will receive a
statement of his or her account following each
purchase of additional shares. These statements are
Participants' continuing record of the cost of their
purchases and should be retained for income tax
purposes. In addition, Participants will receive copies
of other communications sent to holders of the Common Stock,
including the Company's annual report to its shareholders,
the notice of annual meeting and proxy statement in connection
with its annual meeting of shareholders and Internal
Revenue Service information for reporting dividends paid.
Dividends on Fractional Shares
22. Will Participants be credited with dividends on fractions of shares?
Yes.
Certificates for Common Stock
23. Will certificates be issued for shares purchased?
No. Common Stock purchased for Participants will be held in the
name of the Plan Administrator or its nominee. No certificates
will be issued to a Participant for shares in the Plan unless the
Participant submits a written request to the Plan Administrator to withdraw
all or part of the shares credited to the Participant's account or until
such Participant's participation in the Plan is terminated. At
any time, a Participant may request the Plan Administrator to send
a certificate for some or all of the whole shares credited to a
Participant's account. This request should be mailed to the Plan
Administrator at the address set forth in the answer to Question 36.
Any remaining whole shares and any fractions of shares will remain credited
to the Plan account. Certificates for fractional shares will not be issued
under any circumstances.
24. In whose name will certificates be registered when issued?
Each Plan account is maintained in the name in which the related
Participant's certificates were registered at the time of enrollment
in the Plan. Stock certificates for whole shares purchased under
the Plan will be similarly registered when issued upon a Participant's
request. If a Participant is a Beneficial Owner, such request should
be placed through such Participant's banker, broker or other nominee.
See Question 6. A Participant who wishes to pledge shares credited to
such Participant's Plan account must first withdraw such shares from the
account.
Withdrawals and Termination
25. When may Participants withdraw from the Plan?
Participants may at any time withdraw from the Plan with
respect to all or a portion of the shares held in his or her
account in the Plan at any time. If the request to withdraw is
received prior to a Record Date, the request will be processed
on the day following receipt of the request by the Plan
Administrator.
If the request to withdraw is received by the Plan
Administrator on or after a Record Date, but before the related
Investment Date, the Plan Administrator, in its sole discretion,
may either pay such dividend in cash or reinvest it in shares for
the Participant's account. The request for withdrawal will then
be processed as promptly as possible following such Investment
Date. All dividends subsequent to such Investment Date will be
paid in cash unless a shareholder re-enrolls in the Plan, which
may be done at any time.
Any optional cash payments which have been sent to the Plan
Administrator prior to a request for withdrawal will also be
invested on the next Investment Date unless a Participant
expressly requests return of that payment in the request for
withdrawal, and the request for withdrawal is received by the
Plan Administrator at least two business days prior to the first
day of the next Pricing Period.
26. How does a Participant withdraw from the Plan?
A Participant who wishes to withdraw from the Plan with respect
to all or a portion of the shares held in his or her account in the
Plan must notify the Plan Administrator in writing at its address set forth
in the answer to Question 36. Upon a Participant's withdrawal from the Plan
or termination of the Plan by the Company, certificates for the appropriate
number of whole shares credited to the Participant's account under the Plan
will be issued. A cash payment will be made for any fraction of a share.
Upon withdrawal from the Plan, a Participant may also request
in writing that the Plan Administrator sell all or part of the shares
credited to his or her account in the Plan. The Plan Administrator will
sell the shares as requested within ten business days after processing the
request for withdrawal. The Participant will receive the proceeds of the
sale, less a nominal fee per transaction paid to the Plan Administrator, any
brokerage fees or commissions and any applicable stock transfer taxes,
generally within five business days of the sale.
27. Are there any automatic termination provisions?
Participation in the Plan will be terminated
if the Plan Administrator receives written notice
of the death or adjudicated incompetency of a
Participant, together with satisfactory
supporting documentation of the appointment of
a legal representative, at least five business
days before the next Record Date. In the event
written notice of death or adjudicated incompetency
and such supporting documentation is received by the
Plan Administrator less than five business days
before the next Record Date, shares will be
purchased for the Participant with the related cash
dividend or optional cash payment and
participation in the Plan will not terminate until
after such dividend or payment has been
reinvested. Thereafter, no additional purchase of
shares will be made for the Participant's account
and the Participant's shares and any cash dividends
paid thereon will be forwarded to such
Participant's legal representative.
28. What happens if a Participant sells or transfers all of the shares
registered in the Participant's name?
If a Participant disposes of all shares
registered in his or her name, and is not shown as
a Record Owner on a Record Date, the Participant's
participation in the Plan shall be terminated as of
such date and such termination treated as
though a withdrawal notice had been received prior
to the Record Date.
29. What happens if the Company declares a dividend payable in shares
or declares a stock split?
Any dividend payable in shares and any
additional shares distributed by the Company in
connection with a stock split in respect of shares
credited to a Participant's Plan account will be
added to that account. Stock dividends or split
shares which are attributable to shares registered in
a Participant's own name and not in his or her Plan
account will be mailed directly to the Participant
as in the case of shareholders not participating in
the Plan.
30. How will shares held by the Plan Administrator be voted at meetings
of shareholders?
If the Participant is a Record Owner, the
Participant will receive a proxy card covering
both directly held shares and shares held in the Plan.
If the Participant is a Beneficial Owner, the Participant
will receive a proxy covering shares held in the Plan through
his or her broker, bank or other nominee.
If a proxy is returned properly signed and
marked for voting, all the shares covered by the
proxy will be voted as marked. If a proxy is
returned properly signed but no voting instructions
are given, all of the Participant's shares will be
voted in accordance with recommendations of the
Board of Directors of the Company, unless applicable
laws require otherwise. If the proxy is not
returned, or if it is returned unexecuted or
improperly executed, shares registered in a
Participant's name may be voted only by the
Participant in person.
31. What are the responsibilities of the Company and the Plan
Administrator under the Plan?
The Company and the Plan Administrator will not
be liable in administering the Plan for any act done
in good faith or required by applicable law or
for any good faith omission to act including,
without limitation, any claim of liability arising
out of failure to terminate a Participant's account
upon his or her death, with respect to the prices
at which shares are purchased and/or the times when
such purchases are made or with respect to any
fluctuation in the market value before or after
purchase or sale of shares. Notwithstanding the
foregoing, nothing contained in the Plan is intended
to limit any liability which the Company may be
finally determined by courts of competent
jurisdiction to have under the federal securities
laws.
The Company and the Plan Administrator shall be
entitled to rely on completed forms and the proof
of due authority to participate in the Plan,
without further responsibility of investigation or
inquiry.
32. May the Plan be changed or discontinued?
Yes. The Company may suspend, terminate, or
amend the Plan at any time. Notice will be sent
to Participants of any suspension or termination,
or of any amendment that alters the Plan terms
and conditions, as soon as practicable after such
action by the Company.
The Company may substitute another administrator
or agent in place of the Plan Administrator at any
time. Participants will be promptly informed of any
such substitution.
Any question of interpretation arising under
the Plan will be determined by the Company and any
such determination will be final.
33. What are the federal income tax consequences of
Participation in the Plan?
The following summary is based upon an
interpretation of current federal tax law.
Participants should consult their own tax advisers
to determine particular tax consequences, including
state income tax (and non-income tax, such as stock
transfer tax) consequences, which vary from state to
state and which way result from participation in
the Plan and subsequent disposition of shares
acquired pursuant to the Plan. Income tax
consequences to Participants residing outside the
United States will vary from jurisdiction to
jurisdiction.
Participants in the Plan will be treated for federal
income tax purposes as having received, on the dividend
payment date, a distribution in an amount equal to
the fair market value on that date of the shares
acquired with reinvested dividends, plus brokerage
commissions paid by the Company with respect thereto.
Such shares will have a tax basis equal to the same
amount. For federal income tax purposes, the fair
market value of shares acquired with reinvested
dividends under the Plan will be equal to 100% of
the average of the high and low sale prices of shares
on the related Investment Date.
Such distribution will be taxable to
Participants as a dividend to the extent of the
Company's current or accumulated earnings and
profits. To the extent the distribution is in
excess of the Company's current or accumulated
earnings and profits, the distribution will be
treated first as a tax-free return of capital,
reducing the tax basis in a Participants' shares,
and the distribution in excess of a Participants'
tax bases will be taxable as gain realized from the
sale of shares.
The following example may be helpful to illustrate the federal
income tax consequences of the reinvestment of dividends under the Plan:
Example 1:
Cash Dividends reinvested...................................$100.00
Assumed fair market value at Investment Date.....$20.00
Less 3% discount per share....................... (.60)
Net purchase price per share..................... 19.40
Number of shares purchased ($100.00/$19.40)...... 5.1546
Total taxable dividend resulting from
transaction ($20.00 x 5.1546)....................$103.09
The purchase of shares of Common Stock
under the Plan utilizing optional cash payments
will result in a distribution to Participants for
federal income tax purposes, constituting a
dividend to the same extent as reinvested dividends,
in an amount equal to the excess of the fair
market value of the shares purchased on the
Investment Date, plus applicable brokerage
commissions, over the amount of the optional cash
payments made.
Example 2:
The following example may be helpful to illustrate the federal
income tax consequences of the optional cash payment feature at a 3%
discount from the Market Price when shares of Common Stock are purchased
directly from the Company.
Optional Cash Payment......................................$100.00
Assumed fair market value on Investment Date.....$20.00
Less 3% discount per share....................... (0.60)
Net purchase price per share..................... 19.40
Number of shares purchased ($100.00/$19.40)...... 5.1546
Total taxable dividend resulting from
transaction (5.1546 x $20.00 - $100.00)..........$ 3.09
A Participant's holding period for all shares acquired pursuant
to the Plan will begin on the day following the Investment Date.
A Participant will not realize any taxable income upon receipt
of certificates for whole shares credited to the Participant's account,
either upon the Participant's request for certain of those shares or upon
termination of participation in the Plan. A Participant will realize gain
or loss upon the sale or exchange of shares acquired under the Plan. A
Participant will also realize gain or loss upon receipt, following
termination of participation in the Plan, of a cash payment for any
fractional share equivalent credited to the Participant's account. The
amount of any such gain or loss will be the difference between the
amount that the Participant received for the shares or fractional share
equivalent and the tax basis thereof.
The foregoing discussion is based on the assumption that newly
issued shares will be purchased directly from the Company. No discount will
be available for shares purchased on the open market. Accordingly, the
tax consequences will be different from those set forth in Examples 1 and 2.
34. How are income tax withholding provisions applied to shareholders
who participate in the Plan?
If a Participant fails to provide certain
federal income tax certifications in the manner
required by law, dividends on shares of Common
Stock, proceeds from the sale of fractional shares
and proceeds from the sale of shares held for a
Participant's account will be subject to federal
income tax withholding at the rate of 31%. If
withholding is required for any reason, the
appropriate amount of tax will be withheld. Certain
shareholders (including most corporations) are,
however, exempt from the above withholding
requirements.
If a Participant is a foreign shareholder
whose dividends are subject to federal income tax
withholding at the 30% rate or a lower treaty rate),
the appropriate amount will be withheld and the
balance in shares will be credited to such
Participant's account.
35. Who bears the risk of market fluctuations in the Company's Common Stock?
A Participant's investment in shares held
in the Plan account is no different from his or
her investment in directly held shares. The
Participant bears the risk of any loss and enjoys
the benefits of any gain from market price changes
with respect to such shares.
36. Who should be contacted with questions about the Plan?
All correspondence regarding the Plan should be directed to:
AMSOUTH BANK
DIVIDEND REINVESTMENT
P.O. Box 11426
BIRMINGHAM, ALABAMA 35202
TELEPHONE (205)581-7557
Please mention this Plan in all correspondence.
37. How is the Plan interpreted?
Any question of interpretation arising under
the Plan will be determined by the Company and any
such determination will be final. The Company may
adopt rules and regulations to facilitate the
administration of the Plan. The terms and conditions
of the Plan and its operation will be governed by
the laws of the State of Tennessee.
38. What are some of the Participant responsibilities under the Plan?
Plan Shares are subject to escheat to the state
in which the Participant resides in the event that
such shares are deemed, under such state's
laws, to have been abandoned by the Participant.
Participants, therefore, should notify the Plan
Administrator promptly in writing of any change
of address. Account statements and other communications
to Participants will be addressed to them at the last
address of record provided by Participants to the Plan
Administrator.
Participants will have no right to draw checks
or drafts against their Plan accounts or to instruct
the Plan Administrator with respect to any shares of
Common Stock or cash held by the Plan Administrator
except as expressly provided herein.
DIVIDENDS
The Company has paid dividends on its Common
Stock each quarter since its initial public
offering in February 1994. In order to
accommodate the provisions of this Plan, the
Company anticipates that dividends will be payable
during the months of January, April, July and
October. Dividends with respect to the Preferred
Stock are paid monthly on the 15th day of each month.
PLAN OF DISTRIBUTION
Except to the extent the Plan Administrator
purchases Common Stock in open market
transactions, the Common Stock acquired under the
Plan will be sold directly by the Company through
the Plan. The Company may sell Common Stock to
owners of shares (including brokers or dealers)
who, in connection with any resales of such
shares, may be deemed to be underwriters. Such
shares, including shares acquired pursuant to
waivers granted with respect to the optional cash
payment feature of the Plan, may be resold in
market transactions (including coverage of short
positions) on any national securities exchange on
which shares of Common Stock trade or in privately
negotiated transactions. The Common Stock is
currently listed on the NYSE. Under certain
circumstances, it is expected that a portion of
the shares of Common Stock available for issuance
under the Plan will be issued pursuant to such waivers.
The difference between the price such owners pay to
the Company for shares of Common Stock acquired under
the Plan, after deduction of the applicable discount
from the Market Price, and the price at which such
shares are resold, may be deemed to constitute underwriting
commissions received by such owners in connection
with such transactions.
Subject to the availability of shares of
Common Stock registered for issuance under the Plan,
there is no total maximum number of shares that can
be issued pursuant to the reinvestment of dividends.
From time to time, financial intermediaries may
engage in positioning transactions in order to
benefit from the discount from the Market Price of
Common Stock acquired through the reinvestment of
dividends under the Plan.
With respect to open market purchases of
Common Stock generally the Company will pay
brokerage commissions with respect thereto except
to the extent the Company's payment of such
brokerage commissions would cause the Company
to lose its dividends paid deduction for
federal tax purposes and/or jeopardize its
REIT Qualification, in which event each
Participant will be charged a pro rata portion of
any brokerage commissions or other fees or charges
paid by the Company in connection with such open
market purchases the payment of which by the
Company would result in the above-described adverse
consequences. Upon withdrawal by a Participant from
the Plan by the sale of Common Stock held under
the Plan, the Participant will receive the
proceeds of such sale less a nominal fee per
transaction paid to the Plan Administrator (if such
resale is made by the Plan Administrator at the
request of a Participant), any related brokerage
commissions and any applicable transfer taxes.
Common Stock may not be available under the
Plan in all states. This Prospectus does not
constitute an offer to sell, or a solicitation of
an offer to buy, any Common Stock or other
securities in any state or any other jurisdiction to
any person to whom it is unlawful to make such offer
in such jurisdiction.
USE OF PROCEEDS
The net proceeds from the purchase of the Common
Stock under the Plan from the Company directly and
not in the open market are expected to be used for
general corporate purposes, including the acquisition
of additional multifamily residential properties.
The Company has no basis for estimating either the
number of shares of Common Stock that will ultimately
be purchased pursuant to the Plan or the prices at which
the shares will be purchased.
DESCRIPTION OF THE COMMON STOCK
General
Subject to such preferential rights as may be
granted by the Board of Directors in connection
with the future issuance of preferred stock,
holders of shares of Common Stock are entitled to
one vote per share on all matters to be voted
on by shareholders and are entitled to receive
ratably such dividends as may be declared in respect
of the Common Stock by the Board of Directors in
its discretion from funds legally available
therefor. ln the event of the liquidation,
dissolution or winding up of the Company, holders of
Common Stock are entitled to share ratably in all
assets remaining after payment of all debts and
other liabilities and any liquidation preference of
the holders of preferred stock. Holders of
Common Stock have no subscription, redemption,
conversion or preemptive rights. Matters submitted
for shareholder approval generally require a majority
vote of the shares present and voting thereon. The
outstanding shares of Common Stock are fully paid and
nonassessable.
Restrictions on Transfer
Ownership Limits. The Company's Charter
contains certain restrictions on the number of
shares of Common Stock that an individual
shareholder may own. For the Company to qualify as
a REIT under the Code, no more than 50% in value of
its outstanding shares of Common Stock may be owned,
directly or indirectly, by five or fewer
individuals (as defined in the Code to include
certain entities) during the last half of a taxable
year (other than the first taxable year) or during a
proportionate part of a shorter taxable year. The
Common Stock must also be beneficially owned by 100
or more persons during at least 335 days of a
taxable year or during a proportionate part of a
shorter taxable year. Because the Company expects
to continue to qualify as a REIT, the Charter of
the Company contains restrictions on the
acquisition of Common Stock intended to ensure
compliance with these requirements.
Subject to certain exceptions specified in the
Charter, no holder may own, or be deemed to own by
virtue of the attribution provisions of the Code, more
than 9.9% (the "Ownership Limit") of the issued and
outstanding shares of Common Stock. Although the Board
of Directors presently has no intention of doing so,
the Board of Directors could increase the Ownership
Limit from time to time, but may not do so to the
extent that after giving effect to such increase
five beneficial owners of shares could
beneficially own in the aggregate more than
49.5% of the outstanding shares of Common Stock.
The Board of Directors may, with a ruling from the
IRS or an opinion of counsel satisfactory to it,
waive the Ownership Limit with respect to a holder if
such holder's ownership will not then or in the
future jeopardize the Company's status as a REIT.
If any shareholder purports to transfer shares
to a person and either the transfer would result in
the Company's failing to qualify as a REIT, or the
transfer would cause the transferee to hold more
than the applicable Ownership Limit, the purported
transfer shall be void. In addition, if any person
holds shares of Common Stock in excess of the
applicable Ownership Limit, such person will be
deemed to hold the shares that cause the Ownership
Limit to be exceeded in trust, and will not receive
distributions with respect to such shares and will
not be entitled to vote such shares. At the
Company's option, the person will be required to
sell such shares. At the Company's option, the
person will be required to sell such shares on
terms determined by and at the direction of the
Company or the Company will redeem such shares for
the lesser of the amount paid for the shares and the
closing price on the date the Company exercises its
right to redeem. If the Company redeems such shares,
it may pay for the shares with Units, which are
non transferrable except in very limited circumstances.
All certificates representing shares of Common Stock
will bear a legend referring to the restrictions described above.
Every owner of more than 5% (or such lower
percentage as required by the Code or regulations
thereunder) of the issued and outstanding shares of
Common Stock must file a written notice with the
Company containing the information required by
applicable Treasury Regulations no later than January
30 of each year. In addition, each shareholder
shall upon demand be required to disclose to the
Company in writing such information as the Company
may request in good faith in order to determine the
Company's status as a REIT.
The foregoing ownership limitations may have the effect
of precluding acquisition of control of the Company without
the consent of the Board of Directors.
Other Matters
The transfer agent and registrar for the Company's Common Stock
is AmSouth Bank of Alabama, Birmingham, Alabama.
Pursuant to the TBCA, the Company cannot merge
with or sell all or substantially all of the assets
of the Company, except pursuant to a resolution
approved by the affirmative vote of a majority of
the outstanding shares of Common Stock entitled to
vote on the resolution. In addition, the
Partnership Agreement requires that any merger or
sale of all or substantially all of the assets of
or dissolution of the Operating Partnership be
approved by the affirmative vote of a majority of the
outstanding Units.
EXPERTS
The Consolidated Financial Statements
incorporated in this Prospectus by reference to the
Annual Report on Form 10-K for the year ended
December 31, 1995, have been so incorporated in
reliance on the report of KPMG Peat Marwick LLP,
independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The Consolidated Financial Statements of America
First REIT, Inc. incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the
year ended December 31, 1994, have been so
incorporated in reliance on the report of Coopers
& Lybrand L.L.P., independent accountants, given
on the authority of said firm as experts in auditing
and accounting.
LEGAL MATTERS
The validity of the issuance of the Offered
Securities offered pursuant to this Prospectus or
any Prospectus Supplement will be passed upon for the
Company by Baker, Donelson, Bearman & Caldwell,
Memphis, Tennessee. In addition, the description
of federal income tax consequences contained in the
section of the Prospectus entitled "Federal Income
Tax Considerations" is based on the opinion of
Baker, Donelson, Bearman & Caldwell.
INDEMNIFICATION
Insofar as indemnification for liabilities
arising under the Securities Act of 1933, as
amended, may be permitted to directors,
officers or persons controlling First Tennessee
pursuant to the foregoing provisions, First
Tennessee has been informed that in the opinion of
the SEC such indemnification is against public
policy as expressed in the Act and is therefore
unenforceable.
<PAGE>
[Back Cover of Propectus]
No person has been authorized to give any information or to
make any representations, other than those contained in this
Prospectus, in connection with the offering made by this
Prospectus, and if given or made, such information or
representations must not be relied upon. This Prospectus
does not constitute an offering of any securities other than
those to which it relates, or an offering of those to which
it relates to any person in any jurisdiction in which such
offering may not lawfully be made. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no
change in the affairs of Mid-America Apartment Communities,
Inc. since the date hereof.
TABLE OF CONTENTS:
Available Information
Incorporation of Certain Documents by Reference
The Company
The Dividend Reinvestment and Stock Purchase Plan
Use of Proceeds
Description of the Common Stock
Experts
Legal Matters
Indemnification
MID-AMERICA APARTMENT COMMUNITIES, INC.
Dividend Reinvestment and Stock Purchase Plan
Common Stock (Par Value $.01 Per Share)
PROSPECTUS January 23, 1997
<PAGE>
[AUTHORIZATION CARD]
MID-AMERICA APARTMENT COMMUNITIES, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
I hereby appoint AmSouth Bank of Alabama (or any successor) as my
agent to receive cash dividends that may hereafter become payable to me on
shares of Common Stock and/or 9.5% Series A Cumulative Preferred Stock of
Mid-America Apartment Communities Inc. registered in my name as set forth
below, and authorize AmSouth Bank of Alabama to apply such dividends,
together with any optional cash payment I may properly make, to the purchase
of full shares of Common Stock of the Company.
I understand that the purchases will be made under the terms and
conditions of the Dividend Reinvestment and Stock Purchase Plan as
described in the Prospectus and that I may revoke this authorization
at any time by notifying AmSouth Bank of Alabama, in writing, of my
desire to terminate my participation.
Please indicate your participation below:
[ ] Full dividend reinvestment on all shares of Common Stock.
[ ] Full dividend reinvestment on all shares of Preferred Stock.
[ ] Partial dividend reinvestment on ____ shares of Common Stock only.
[ ] Partial dividend reinvestment on ____ shares of Preferred Stock only.
[ ] Optional cash investment (enclosed: $_______
(Must be at least $500 and not more than $10,000, except with
waiver of limit)
Please Print Name(s) as Shown on Stock Certificates:
_____________________________________
_____________________________________
Signature(s)
_____________________________________
Signature(s)
_______________________
Date
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Registration fee to the SEC.................$ 6,426.14
Printing expense............................ 5,000.00
Accounting fees and expenses................ 1,200.00
Legal fees and expenses..................... 4,000.00
NYSE Listing fee and Estimated Blue Sky fees 2,125.00
----------
Total.......................................$18,751.14
==========
All fees and expenses are estimates except for the
registration fee to the SEC.
Item 15. Indemnification of Directors and Officers.
The Charter of the Company, generally, limits the
liability of the Company's directors and officers to the
Company and the shareholders for money damages to the
fullest extent permitted from time to time by the laws of
Tennessee. The Charter also provides, generally, for the
indemnification of directors and officers, among others,
against judgments, settlements, penalties, fines, and
reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by
reason of their service in those or other capacities except
in connection with a proceeding by or in the right of the
Company in which the director was adjudged liable to the
Company or in connection with any other proceeding charging
a personal benefit was improperly received by him. Insofar
as indemnification for liabilities arising under the
Securities Act of 1933 (the "Securities Act") may be
permitted to directors and officers of the Company pursuant
to the foregoing provisions or otherwise, the Company has
been advised that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act, and is,
therefore, unenforceable.
The Company intends to purchase director and officer
liability insurance for the purpose of providing a source of
funds to pay any indemnification described above.
Item 16. Exhibits.
Exhibits
Number Description
- -------- --------------------------------------------------
4.1 Form of Common Shares Certificate, incorporated by
reference to Exhibit 3(B) to the Company's registration
statement on Form S-11 filed August 2, 1994
5.1 Opinion Regarding Legality
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Baker, Donelson (Included in Exhibit 5.1)
Item 17. 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 of 1933;
(ii) to reflect in the Prospectus any facts or events
arising after the effective date of the Registration
Statement (or most recent post-effective amendment thereof)
which, individually, or in the aggregate, represent a
fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) (230.424(b) of that
chapter) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(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 Securities Exchange Act
of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(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 of 1933, each filing of the Registrant's
annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
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 Securities and Exchange Commission, such
indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other
than the payment by the Registrant for 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 whether such indemnification by it is against
public policy as expressed in the Act and will be governed
by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of
1933, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused the Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Memphis, State of
Tennessee, on January 23, 1997.
MID-AMERICA APARTMENT COMMUNITIES, INC.
By: /s/ George E. Cates
------------------------------------
George E. Cates, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints
George E. Cates, Simon R.C. Wadsworth and Lynn A. Johnson,
or any of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing
requisite and necessary to be done as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
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/ George E. Cates President and Chief Executive November 4, 1996
- ------------------------ Officer
George E. Cates (principal executive officer)
/s/ Simon R.C. Wadsworth Chief Financial Officer November 4, 1996
- ------------------------ (principal accounting and
Simon R.C. Wadsworth financial officer)
/s/ John J. Byrne, III Director November 4, 1996
- ------------------------
John J. Byrne, III
/s/ Robert F. Fogelman Director November 4, 1996
- ------------------------
Robert F. Fogelman
/s/ O. Mason Hawkins Director November 4, 1996
- ------------------------
O. Mason Hawkins
/s/ Michael B. Yanney Director November 4, 1996
- ------------------------
Michael B. Yanney
EXHIBIT 5.1
BAKER, DONELSON, BEARMAN & CALDWELL
165 Madison Avenue, Suite 2000
Memphis, Tennessee 38103
January 17, 1997
Board of Directors
Mid-America Apartment Communities, Inc.
6584 Poplar Avenue, Suite 340
Memphis, TN 38138
Gentlemen:
You have requested our opinion in
connection with the registration on Form S-3,
Registration Statement No. 333-____ (the
"Registration Statement") under the Securities Act of
1933, as amended, of up to an aggregate of 750,000
shares of common stock, par value $.01 per share
(the "Offered Securities") as defined in the
Registration Statement of Mid-America Apartment
Communities, Inc., a Tennessee corporation (the
"Company") to be sold by the Company from time
to time as described in the Registration
Statement.
We have acted as counsel for the Company in
connection with the proposed offering of the Offered
Securities and have assisted with the preparation
of the Registration Statement and various corporate
documents related thereto. We have examined and
relied upon the following documents and instruments
for the purpose of giving this opinion, which ,
to our knowledge and in our judgment, are all
of the documents and instruments that are
necessary for us to examine for such purpose:
1. The Registration Statement and the prospectus filed
therewith (the "Prospectus") and all exhibits thereto;
2. A copy of the Company's Charter certified by the
Tennessee Secretary of State;
3. A copy of the Company's Bylaws, as amended, certified
by the Secretary of the Company; and
4. The minute book of the Company.
In giving our opinion, we have assumed without investigation
the authenticity of any document or instrument submitted to us as
an original, the conformity to the authentic original of any
document or instrument submitted to us as a certified, conformed
or photostatic copy and the genuineness of all signatures on such
originals or copies.
Based upon the foregoing and having regard for such legal
considerations as we deem relevant, we are of the opinion that
the Offered Securities, when issued in accordance with the
Registration Statement, will be validly issued, fully paid and
nonassessable.
Our opinion subject to the following qualifications and
limitations:
i. The opinions expressed herein are subject to
the effect of applicable bankruptcy, insolvency,
reorganization or similar laws affecting the
enforcement of creditors' rights and equitable
principles limiting the availability of equitable
remedies on the enforceability of contracts, agreements
and instruments.
ii. Members of our firm are qualified to practice law in the
State of Tennessee and nothing contained herein shall be deemed
to be an opinion as to any law, rule or regulation other than
those of the federal law of the United States.
iii. The opinions set forth herein are expressed as of
the date hereof and we disclaim any undertaking to advise
you of any changes which may subsequently be brought to
our attention in the facts and the law upon which such
opinions are based.
This opinion is furnished by us solely for your benefit
and is intended to be used as an exhibit to the
Registration Statement filed with the Securities and
Exchange Commission. Except for such use, neither this
opinion nor copies hereof may be relied upon by, delivered
to, or quoted in whole or in part without our prior written consent.
We consent to the reference of our firm name
under the caption LEGAL MATTERS in the Prospectus
and to the use of our opinion as an exhibit to
the Registration Statement. In giving such
consents, we do not admit that we come within the
category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
BAKER, DONELSON, BEARMAN & CALDWELL
a Professional Corporation
By: /s/ John A. Good
--------------------------
John A. Good
EXHIBIT 23.1
KPMG Peat Marwick LLP
Morgan Keegan Tower, Suite 900
Fifty North Front Street
Memphis, TN 38103
Accountants' Consent
The Board of Directors
Mid-America Apartment Communities, Inc.
We consent to incorporation by reference in the
registration statement (No. 333-____) on Form S-3
of Mid-America Apartment Communities, Inc. of
our report dated March 2, 1996 to the
consolidated balance sheets of Mid-America Apartment
Communities, Inc. (the Company) as of December 31,
1995 and 1994, and the related consolidated
statements of operations, shareholders' equity
and cash flows for each of the two years in the
period ended December 31, 1995 for the Company and
the related combined statements of operations,
statements of partners' and owners' deficit and
cash flows for the year ended December 31, 1993
for MAC Properties Group, which report is incorporated
by reference in the 1995 annual report on Form 10-K
of Mid-America Apartment Communities, Inc. and to the
reference to our firm under the heading of "Experts"
in the Prospectus.
KPMG Peat Marwick LLP
Memphis, Tennessee
January 17, 1997
EXHIBIT 23.2
Coopers & Lybrand L.L.P.
1200 Landmark Center
1299 Farnam, Suite 1000
Omaha, Nebraska 68102-1842
Consent of Independent Accountants
We consent to the incorporation by reference in this
registration statement on Form S-3 of Mid-America
Apartment Communities, Inc. of our report dated
March 29, 1995, on our audits of the
consolidated financial statements and financial
statement schedules of America First REIT, Inc.
and the Company's predecessor as of December 31, 1994
and 1993, and for the three years in the period
ended December 31, 1994, which report is included
in America First REIT, Inc.'s Annual Report on Form
10-K for the year ended December 31, 1994. We also
consent to the reference to our firm under the
caption "Experts".
Coopers & Lybrand L.L.P.
Omaha, Nebraska
January 16, 1997
