<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 12, 1997
NO. 333-30749
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
AMENDMENT NO. 2
TO
FORM S-11
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
SECURITY CAPITAL ATLANTIC INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS GOVERNING INSTRUMENTS)
SIX PIEDMONT CENTER
ATLANTA, GEORGIA 30305
(404) 237-9292
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
JEFFREY A. KLOPF, SECRETARY
SECURITY CAPITAL ATLANTIC INCORPORATED
SIX PIEDMONT CENTER
ATLANTA, GEORGIA 30305
(404) 237-9292
(NAME AND ADDRESS OF AGENT FOR SERVICE)
COPIES TO: STACY J. KANTER
EDWARD J. SCHNEIDMAN SKADDEN, ARPS, SLATE, MEAGHER
MAYER, BROWN & PLATT & FLOM LLP
190 SOUTH LASALLE STREET 919 THIRD AVENUE
CHICAGO, ILLINOIS 60603 NEW YORK, NEW YORK 10022
(312) 782-0600 (212) 735-3000
--------------
APPROXIMATE DATE OF COMMENCEMENT OF THE PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after this registration statement becomes
effective.
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
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF SECURITIES OFFERING REGISTRATION
BEING REGISTERED PRICE(1) FEE(2)
- ------------------------------------------------------------------------------
<S> <C> <C>
Series A Cumulative Redeemable Preferred Stock,
par value $.01 per share........................ $57,500,000 $17,425
</TABLE>
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- -------------------------------------------------------------------------------
(1) Includes $7,500,000 of Series A Cumulative Redeemable Preferred Stock
issuable upon exercise of an over-allotment option granted to the underwriters.
(2) Previously paid.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 30. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table itemizes the expenses incurred by the Registrant in
connection with the offering of the shares being registered. All the amounts
shown are estimates (other than the SEC registration fee and the NASD fee).
<TABLE>
<CAPTION>
AMOUNT
--------
<S> <C>
SEC registration fee........................................... $ 17,425
NASD fee....................................................... 6,250
Transfer agent and registrar fees.............................. 20,000
Printing fees.................................................. 150,000
Legal fees and expenses (other than Blue Sky).................. 50,000
Accounting fees and expenses................................... 37,500
Blue Sky fees and expenses (including fees of counsel)......... 2,000
Miscellaneous expenses......................................... 41,825
--------
Total...................................................... $325,000
========
</TABLE>
ITEM 31. SALES TO SPECIAL PARTIES.
See Item 32. In addition, on October 18, 1996, Security Capital Group
Incorporated ("Security Capital") purchased 416,666 shares of common stock in
the Registrant's initial public offering of 4,940,000 shares of common stock.
ITEM 32. RECENT SALES OF UNREGISTERED SECURITIES.
From October 26, 1993 (the date of the Registrant's inception) through June 28,
1994, Security Capital purchased an aggregate of 13,066,575 shares of the
Registrant's common stock at a price of $20.00 per share. Such purchases were
exempt from registration pursuant to Section 4(2) of the Securities Act. On May
12, 1994, Laing Properties, Inc. received 5,000,000 shares of the Registrant's
common stock in partial consideration for ATLANTIC's acquisition of a portfolio
of properties. Of the 5,000,000 shares issued to Laing Properties, Inc.,
3,750,000 shares have been repurchased by the Registrant under a put
obligation. In August 1994, the Registrant sold 500,000 shares of common stock
in a private offering at a price of $20.00 per share (including 331,713 shares
which were sold to Security Capital). From March 1995 through June 1995, the
Registrant sold 7,272,728 shares of common stock in a private offering at a
price of $22.00 per share (including 4,310,705 shares which were sold to
Security Capital). From November 1995 through May 1996, the Registrant sold
10,862,278 shares of common stock in a private offering at a price of $23.00
per share (including 919,712 shares which were sold to Security Capital at a
price of $23.00 per share and 1,250,000 shares which were sold to Security
Capital at a price of $23.136 per share). All such transactions were effected
pursuant to the exemption from registration contained in Section 4(2) of the
Securities Act and Rule 506 thereunder.
ITEM 33. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Maryland law permits a Maryland corporation to include in its charter a
provision limiting the liability of its directors and officers to the
corporation and its stockholders for money damages except for liability
resulting from (a) actual receipt of an improper benefit of profit in money,
property or services or (b) active and deliberate dishonesty established by a
final judgment as being material to the cause of action. The Registrant's
Charter contains such a provision which eliminates such liability to the
maximum extent permitted by Maryland law.
The Registrant's officers and Directors will be indemnified under the
Registrant's charter against certain liabilities. The Registrant's charter
provides that the Registrant will, to the maximum extent permitted by Maryland
law in effect from time to time, indemnify and pay or reimburse reasonable
expenses in advance
II-1
<PAGE>
of final disposition of a proceeding to (a) any individual who is a present or
former Director or officer of the Registrant or (b) any individual who, while a
Director or officer of the Registrant and at the request of the Registrant,
serves or has served another corporation, partnership, joint venture, trust,
employee benefit plan or any other enterprise as a director, officer, partner
or trustee of such corporation, partnership, joint venture, employee benefit
plan or other enterprise. The Registrant has the power, with the approval of
the Registrant's Board of Directors, to provide such indemnification and
advancement of expenses to a person who served a predecessor of the Registrant
in any of the capacities described in (a) or (b) above and to any employee or
agent of the Registrant or its predecessors.
Maryland law requires a corporation (unless its charter provides otherwise,
which the Registrant's charter does not) to indemnify a director or officer who
has been successful, on the merits or otherwise, in the defense of any
proceeding to which he or she is made a party by reason of his or her service
in that capacity. Maryland law permits a corporation to indemnify its present
and former directors and officers, among others, against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless it is established that (a)
the act or omission of the director or officer was material to the matter
giving rise to the proceeding and (i) was committed in bad faith or (ii) was
the result of active and deliberate dishonesty, (b) the director or officer
actually received an improper personal benefit in money, property or services
or (c) in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful. However, a
Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation. Maryland law permits the Registrant to advance
reasonable expenses to a Director or officer upon the Registrant's receipt of
(a) a written affirmation by the Director or officer of his or her good faith
belief that he or she has met the standard of conduct necessary for
indemnification by the Registrant as authorized by the Registrant's Bylaws and
(b) a written statement by or on his or her behalf to repay the amount paid or
reimbursed by the Registrant if it shall ultimately be determined that the
standard of conduct was not met.
The Registrant has entered into indemnity agreements with each of its officers
and Directors which provide for reimbursement of all expenses and liabilities
of such officer or Director, arising out of any lawsuit or claim against such
officer or Director due to the fact that he or she was or is serving as an
officer or Director, except for such liabilities and expenses (a) the payment
of which is judicially determined to be unlawful, (b) relating to claims under
Section 16(b) of the Securities Exchange Act of 1934 or (c) relating to
judicially determined criminal violations.
The form of Underwriting Agreement filed as an exhibit to this registration
statement provides for the reciprocal indemnifications by the Underwriters of
the Registrant, and its Directors, officers and controlling persons, and by the
Registrant of the Underwriters, and their respective directors, officers and
controlling persons, against certain liabilities under the Securities Act.
ITEM 34. TREATMENT OF PROCEEDS FROM STOCK BEING REGISTERED.
The consideration to be received by the Registrant for the stock being
registered will be credited to the appropriate capital account.
ITEM 35. FINANCIAL STATEMENTS AND EXHIBITS.
See Index to Financial Statements and Index to Exhibits.
ITEM 36. UNDERTAKINGS.
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 of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
II-2
<PAGE>
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the questions of whether such indemnification is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
The Registrant hereby undertakes that: (1) for purposes of determining any
liability under the Securities Act of 1933, the information omitted from the
form of prospectus filed as part of this registration statement in reliance
upon Rule 430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-11 AND HAS DULY CAUSED THIS AMENDMENT TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF ATLANTA, STATE OF GEORGIA, ON THE 8TH DAY OF
AUGUST, 1997.
SECURITY CAPITAL ATLANTIC INCORPORATED
/s/ Constance B. Moore
By: ___________________________________
Constance B. Moore
Co-Chairman and Chief Operating
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT TO
THE REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ James C. Potts* Co-Chairman, Chief August 8, 1997
______________________________________ Investment Officer and
James C. Potts Director
/s/ Constance B. Moore Co-Chairman, Chief Operating August 8, 1997
______________________________________ Officer and Director
Constance B. Moore
/s/ William Kell* Vice President and August 8, 1997
______________________________________ Controller (Principal
William Kell Financial and Accounting
Officer)
/s/ M. A. Garcia III* Director August 8, 1997
______________________________________
M. A. Garcia III
/s/ Ned S. Holmes* Director August 8, 1997
______________________________________
Ned S. Holmes
/s/ Jonh M. Richman* Director August 8, 1997
______________________________________
John M. Richman
</TABLE>
/s/ Constance B. Moore
*By: ___________________________
Constance B. Moore
Attorney-in-fact
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
----------- --------------------
<C> <S>
+1 Form of Underwriting Agreement, dated as of August , 1997, among
Security Capital Atlantic Incorporated ("ATLANTIC") and J.P.
Morgan Securities Inc. and Goldman, Sachs & Co., as
representations of the underwriters named therein
2.1 Merger and Distribution Agreement, dated as of May 21, 1996, among
Security Capital Pacific Trust ("PTR"), ATLANTIC, Security Capital
Group Incorporated ("Security Capital") and Homestead Village
Properties Incorporated ("Homestead") (incorporated by reference
to Exhibit 2 to Homestead's Form S-4 Registration Statement (File
No. 333-4455; the "Homestead S-4"))
2.2 Form of Articles of Merger (incorporated by reference to Exhibit
2.1 to the Homestead S-4)
2.3 Merger and Issuance Agreement, dated as of March 24, 1997, between
Security Capital and ATLANTIC (incorporated by reference to
Exhibit 2.1 to ATLANTIC's Form 8-K dated March 24, 1997 (File No.
1-12303, the "ATLANTIC 8-K"))
2.4 First Amendment to Merger and Issuance Agreement (incorporated by
reference to Exhibit 2.7 to Security Capital's Form S-11
Registration Statement (File No. 333-26263; the "Security Capital
S-11")
2.5 Second Amendment to Merger and Issuance Agreement (incorporated by
reference to Exhibit 2.8 to the Security Capital S-11)
2.6 Third Amendment to Merger and Issuance Agreement (incorporated by
reference to Exhibit 2.13 to the Security Capital S-11)
2.7 Form of Agreement and Plan of Merger (incorporated by reference to
Exhibit 2.4 to the Security Capital S-11)
4.1 Second Amended and Restated Articles of Incorporation of ATLANTIC
(incorporated by reference to Exhibit 4.1 to ATLANTIC's Form S-11
Registration Statement (File No. 333-07071; the "ATLANTIC S-11"))
4.2 Articles of Amendment to Second Amended and Restated Articles of
Incorporation of ATLANTIC (incorporated by reference to Exhibit
4.2 to the ATLANTIC S-11)
4.3 Articles of Amendment to Second Amended and Restated Articles of
Incorporation of ATLANTIC (incorporated by reference to Exhibit
4.3 to the ATLANTIC S-11)
4.4 Articles Supplementary to Second Amended and Restated Articles of
Incorporation relating to ATLANTIC's Series A Junior Participating
Preferred Stock (incorporated by reference to Exhibit 4.4 to
ATLANTIC's Form 10-K for the year ended December 31, 1996 (File
No. 1-12303, the "ATLANTIC 10-K"))
+4.5 Form of Articles Supplementary to Second Amended and Restated
Articles of Incorporation relating to ATLANTIC's Series A
Cumulative Redeemable Preferred Stock
4.6 Second Amended and Restated Bylaws of ATLANTIC (incorporated by
reference to Exhibit 4.4 to the ATLANTIC S-11)
4.7 Rights Agreement, dated as of March 12, 1996, between ATLANTIC and
The First National Bank of Boston, as Rights Agent, including form
of Rights Certificate (incorporated by reference to Exhibit 4.5 to
the ATLANTIC S-11)
4.8 Form of stock certificate for shares of common stock of ATLANTIC
(incorporated by reference to Exhibit 4.6 to the ATLANTIC S-11)
4.9 Form of stock certificate for shares of Series A Cumulative
Redeemable Preferred Stock of ATLANTIC (the "Series A Preferred
Shares")
4.10 Form of Indenture, dated as of August , 1997, from ATLANTIC to
State Street Bank and Trust Company, as Trustee (incorporated by
reference to Exhibit 4.8 to ATLANTIC's Form S-11 Registration
Statement (File No. 333-30747; the "ATLANTIC Note S-11"))
4.11 Form of % Note Due 2011 (incorporated by reference to Exhibit
4.9 to the ATLANTIC Note S-11)
4.12 Form of % Note Due 2017 (incorporated by reference to Exhibit
4.10 to the ATLANTIC Note S-11)
5 Opinion of Mayer, Brown & Platt as to the legality of the Series A
Preferred Shares being registered
+8 Opinion of Mayer, Brown & Platt as to certain tax matters
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DOCUMENT DESCRIPTION
----------- --------------------
<C> <S>
10.1 Transfer and Registration Rights Agreement, dated as of December
15, 1995, among ATLANTIC and the investors listed on the signature
pages thereto (incorporated by reference to Exhibit 10.1 to the
ATLANTIC S-11)
10.2 Supplemental Registration Rights Agreement, dated as of December
15, 1995, among ATLANTIC and the investors listed on the signature
pages thereto (incorporated by reference to Exhibit 10.2 to the
ATLANTIC S-11)
10.3 Second Amended and Restated REIT Management Agreement, dated as of
June 30, 1996, between ATLANTIC and the REIT Manager (incorporated
by reference to Exhibit 10.3 to the ATLANTIC S-11)
10.4 Investor Agreement, dated as of October 28, 1993, between ATLANTIC
and Security Capital (incorporated by reference to Exhibit 10.4 to
the ATLANTIC S-11)
10.5 Revolving Credit Agreement, dated as of December 18, 1996, between
ATLANTIC and Morgan Guaranty Trust Company of New York, as agent
bank, including form of Revolving Credit Note (incorporated by
reference to Exhibit 10.5 to the ATLANTIC 10-K)
10.6 Form of Indemnification Agreement entered into between ATLANTIC
and each of its Directors (incorporated by reference to Exhibit
10.6 to the ATLANTIC S-11)
10.7 Security Capital Atlantic Incorporated Share Option Plan for
Outside Directors (incorporated by reference to Exhibit 10.7 to
the ATLANTIC S-11)
10.8 First Amendment to Security Capital Atlantic Incorporated Share
Option Plan for Outside Directors (incorporated by reference to
Exhibit 10.8 to the ATLANTIC S-11)
10.9 Consolidated Amended and Restated Promissory Note by Atlantic
Homestead Village Incorporated in favor of ATLANTIC (incorporated
by reference to Exhibit 4.6 to the Homestead S-4)
10.10 Amended and Restated Promissory Note by Atlantic Homestead Village
Limited Partnership in favor of ATLANTIC (incorporated by
reference to Exhibit 4.7 to the Homestead S-4)
10.11 Protection of Business Agreement among ATLANTIC, PTR, Security
Capital and Homestead (incorporated by reference to Exhibit 10.11
to the ATLANTIC 10-K)
10.12 Investor and Registration Rights Agreement between Homestead and
ATLANTIC (incorporated by reference to Exhibit 10.12 to the
ATLANTIC 10-K)
10.13 Funding Commitment Agreement between Homestead and ATLANTIC
(incorporated by reference to Exhibit 10.13 to the ATLANTIC 10-K)
10.14 Form of Property Management Agreement for ATLANTIC's communities
(incorporated by reference to Exhibit 10.13 to the ATLANTIC S-11)
10.15 Form of Amended and Restated Investor Agreement between ATLANTIC
and Security Capital (incorporated by reference to Exhibit 10.1 to
the ATLANTIC 8-K)
10.16 Form of Administrative Services Agreement between ATLANTIC and SC
Group Incorporated (incorporated by reference to Exhibit 10.2 to
the ATLANTIC 8-K)
10.17 Form of Protection of Business Agreement between ATLANTIC and
Security Capital (incorporated by reference to Exhibit 10.3 to the
ATLANTIC 8-K)
+12 Computation of Ratio of Earnings to Combined Fixed Charges and
Preferred Share Dividends
+15 Letter re unaudited interim financial information
21 Subsidiaries of ATLANTIC (incorporated by reference to Exhibit 21
to the ATLANTIC 10-K)
23.1 Consent of Mayer, Brown & Platt (included in the opinions filed as
Exhibits 5 and 8)
+23.2 Consent of Ernst & Young LLP, Dallas, Texas
+24 Power of Attorney pursuant to which amendments to this
Registration Statement may be filed
</TABLE>
- --------
*To be filed by amendment
+Previously filed
E-2
<PAGE>
EXHIBIT 4.9
FORM SERIES A PREFERRED SHARE CERTIFICATE
FORMED UNDER THE LAWS Series A Cumulative Redeemable
OF THE STATE OF MARYLAND Preferred Stock
THIS CERTIFICATE IS TRANSFERABLE Par Value $.01
IN NEW YORK, NEW YORK
AND BOSTON, MASSACHUSETTS
CUSIP 814137 20 4
SEE REVERSE FOR IMPORTANT NOTICE ON TRANSFER RESTRICTIONS AND OTHER INFORMATION
SECURITY CAPITAL ATLANTIC INCORPORATED
This Certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF PREFERRED STOCK OF
SECURITY CAPITAL ATLANTIC INCORPORATED, a Corporation formed under the laws of
the State of Maryland (the "Corporation"), transferable only on the books of the
Corporation by the holder hereof in person or by its duly authorized Attorney
upon the surrender of this Certificate properly endorsed.
The shares of Preferred Stock evidenced by this Certificate are subject to
the charter of the Corporation and the bylaws of the Corporation and any
amendments thereto. The holder hereof has no interest, legal or equitable, in
any specific property of the Corporation. This Certificate is not valid unless
countersigned by the Transfer Agent and registered by the Registrar.
<PAGE>
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
SEAL Jeffrey A. Klopf
Secretary
Constance B. Moore
Co-Chairman
COUNTERSIGNED AND REGISTERED
BANKBOSTON, N.A.
TRANSFER AGENT AND REGISTRAR
________________________________________
Authorized Signature
<PAGE>
SECURITY CAPITAL ATLANTIC INCORPORATED
The Corporation will furnish to any stockholder, on request and without
charge, a full statement of the information required by Section 2-211(b) of the
Corporations and Associations Article of the Annotated Code of Maryland with
respect to the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, and terms and conditions of redemption of the
stock of each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in series, (i)
the differences in the relative rights and preferences between the shares of
each series to the extent set and (ii) the authority of the Board of Directors
to set such rights and preferences of subsequent series. The foregoing summary
does not purport to be complete and is subject to and qualified in its entirety
by reference to the charter of the Corporation (the "Charter"), a copy of which
will be sent without charge to each stockholder who so requests. Such request
must be made to the Secretary of the Corporation at its principal office or to
the Transfer Agent.
The securities represented by this certificate are subject to restrictions
on ownership and transfer for the purpose of the Corporation's maintenance of
its status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (the "Code"). Except as otherwise provided pursuant to the
Charter, no more than 50% in value of the outstanding shares of the
Corporation's stock may be owned, directly or indirectly by five or fewer
individuals (as defined in the Code to include certain entities). Therefore,
the Charter contains certain restrictions on ownership of more than a specified
percentage of the outstanding Series A Cumulative Redeemable Preferred Stock.
The Corporation will furnish information about these restrictions to any
stockholder on request and without charge.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the
right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - _______________________________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_______________________________
(State)
<PAGE>
UNIF TRF MIN ACT - _______________________________
(Cust) (Minor)
(until age ____) under Uniform
Transfers to Minors Act
_______________________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, __________________________ hereby sells, assigns and
transfers unto [Please insert Social Security or other identifying number of
Assignee]
________________________________________________________________________________
(please print or type name and address including zip code of Assignee)
________________________________________________________________________________
________________________________________________________________________________
____________________________________ shares of Series A Cumulative Redeemable
Preferred Stock of the Corporation represented by this Certificate, and do
hereby irrevocably constitute and appoint_______________________________________
Attorney to transfer such shares on the books of the Corporation with full power
of substitution in the premises.
Dated:
_______________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of this Certificate in every particular,
without alteration or enlargement or any change
whatever.
<PAGE>
Exhibit 5
August 12, 1997
Security Capital Atlantic Incorporated
Six Piedmont Center
Atlanta, Georgia 30305
Re: Registration Statement on Form S-11
Ladies and Gentlemen:
We have acted as counsel to Security Capital Atlantic Incorporated, a
Maryland corporation ("ATLANTIC"), in connection with its proposed offering of
up to 2,300,000 shares of Series A Cumulative Redeemable Preferred Stock, par
value $.01 per share (the "Series A Preferred Shares"), as more fully set forth
in the registration statement on Form S-11 (the "Registration Statement")
relating to the Series A Preferred Shares.
As counsel to ATLANTIC, we have examined originals or copies certified to
our satisfaction of ATLANTIC's charter, ATLANTIC's Bylaws, resolutions of
ATLANTIC's Board of Directors and such records, certificates and other documents
and such questions of law as we considered necessary or appropriate for the
purpose of this opinion. As to certain facts material to our opinion, we have
relied, to the extent we deem such reliance proper, upon certificates of public
officials and officers of ATLANTIC. In rendering such opinion, we have assumed
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals and the conformity to authentic original documents of all
documents submitted to us as copies.
Based upon and subject to the foregoing and to the assumptions, limitations
and qualifications set forth herein, we are of the opinion that the Series A
Preferred Shares, when and if delivered against payment therefor in accordance
with the resolutions of the Board of Directors or a duly authorized committee of
the Board of Directors authorizing their issuance, will be validly issued, fully
paid and nonassessable.
Insofar as the foregoing opinion involves matters governed by Maryland law,
we have relied, with your approval, upon the opinion of the law firm of Ballard
Spahr Andrews & Ingersoll, a copy of which is attached as Exhibit A, and our
opinion is subject to the assumptions, limitations and qualifications set forth
therein.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to us under the caption "Validity of Series A
Preferred Shares."
<PAGE>
Security Capital Atlantic
Incorporated
August 12, 1997
Page 2
We are admitted to practice law in the State of Illinois and we express no
opinions as to matters under or involving any laws other than the laws of the
State of Illinois and the federal laws of the United States of America.
Very truly yours,
/s/ Mayer, Brown & Platt
MAYER, BROWN & PLATT
<PAGE>
Exhibit A
August 12, 1997
Security Capital Atlantic
Incorporated
Six Piedmont Center
Atlanta, Georgia 30303
Re: Registration Statement on Form S-11
-----------------------------------
Ladies and Gentlemen:
We have served as Maryland counsel to Security Capital Atlantic
Incorporated, a Maryland corporation (the "Company"), in connection with certain
matters of Maryland law arising out of the registration of 2,000,000 shares of
Series A Cumulative Redeemable Preferred Stock of the Company, par value $.01
per share, for an aggregate sale price of $50,000,000 (including 300,000 shares
of Series A Cumulative Redeemable Preferred Stock for an aggregate sale price of
$7,500,000 subject to an over-allotment option) (the "Shares"), covered by the
above-referenced Registration Statement (the "Registration Statement"), filed by
the Company with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "1933 Act"). Unless otherwise
defined herein, capitalized terms used herein shall have the meanings assigned
to them in the Registration Statement.
In connection with our representation of the Company, and as a basis for
the opinion hereinafter set forth, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of the following
documents (hereinafter collectively referred to as the "Documents"):
1. The Registration Statement and the related form of prospectus included
therein in the form in which it was transmitted to the Commission under the 1933
Act;
2. The charter of the Company (the "Charter"), certified as of a recent
date by the State Department of Assessments and Taxation of Maryland (the
"SDAT");
3. The Bylaws of the Company, certified as of a recent date by its
Secretary;
4. Resolutions adopted by the Board of Directors of the Company ("the
Board") or a duly authorized committee thereof, relating to the sale, issuance
and registration of the Shares, certified as of a recent date by the Secretary
of the Company (the "Resolutions");
5. A certificate of the SDAT as to the good standing of the Company,
dated as of a recent date;
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Security Capital Atlantic
Incorporated
August 12, 1997
Page 2
6. A certificate executed by the Secretary of the Company, dated as of a
recent date;
7. An unexecuted copy of Articles Supplementary for Series A Cumulative
Redeemable Preferred Stock of the Company (the "Articles Supplementary"),
provided to us by Mayer, Brown & Platt, counsel to the Company; and
8. Such other documents and matters as we have deemed necessary or
appropriate to express the opinion set forth in this letter, subject to the
assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so far as
is known to us there are no facts inconsistent with, the following:
1. Each of the parties (other than the Company) executing any of the
Documents has duly and validly executed and delivered each of the Documents to
which such party is a signatory, and such party's obligations set forth therein
are legal, valid and binding.
2. Each individual executing any of the Documents on behalf of a party
(other than the Company) is duly authorized to do so.
3. Each individual executing any of the Documents, whether on behalf of
such individual or another person, is legally competent to do so.
4. All Documents submitted to us as originals are authentic. All
Documents submitted to us as certified or photostatic copies conform to the
original documents. All signatures on all such Documents are genuine. All public
records reviewed or relied upon by us or on our behalf are true and complete.
All statements and information contained in the Documents are true and complete.
There are no modifications of or amendments to the Documents, and there has been
no waiver of any of the provisions of the Documents, by action or omission of
the parties or otherwise.
5. The Shares will not be issued or transferred in violation of any
restriction or limitation contained in the Charter.
6. The Articles Supplementary will be duly approved, executed and
properly filed with and accepted for record by the SDAT prior to the sale of
issuance of the Shares.
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Security Capital Atlantic
Incorporated
August 12, 1997
Page 3
The phrase "known to us" is limited to the actual knowledge, without
independent inquiry, of the lawyers at our firm who have performed legal
services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and
qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated an existing under and
by virtue of the laws of the State of Maryland and is in good standing with the
SDAT.
2. The Shares have been duly authorized and, when and if delivered
against payment therefor in accordance with the Resolutions and any other
resolutions of the Board, or a duly authorized committee of the Board
authorizing their issuance, will be duly and validly issued, fully paid and
nonassessable.
The foregoing opinion is limited to the laws of the State of Maryland and
we do not express any opinion herein concerning any other law. The opinion
expressed herein is subject to the effect of judicial decisions which may permit
the introduction of parol evidence to modify the terms or the interpretation of
agreements. We express no opinion as to compliance with the Securities (or "blue
sky") laws of the State of Maryland.
We assume no obligation to supplement this opinion if any applicable law
changes after the date hereof or if we become aware of any fact that might
change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your submission to the
Commission as an exhibit to the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of the name of our firm in the section
entitled "Validity of Series A Preferred Shares" in the Registration Statement.
In giving this consent, we do not admit that we are within the category of
persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll
