As Filed With the Securities and Exchange Commission on May 25, 2004
Registration No.333-____________
.................................................................................
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
.................................................................................
MID-AMERICA APARTMENT COMMUNITIES, INC.
(Exact name of registrant as specified in its charter)
TENNESSEE 62-1543819
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Mid-America Apartment Communities, Inc.
6584 Poplar Avenue, Suite 340 38138
Memphis, Tennessee (Zip Code)
(Address of Principal Executive Offices)
Fourth Amended and Restated 1994 Restricted Stock and Stock Option Plan
and
Mid-America Apartment Communities, Inc. 2004 Stock Plan
(Full title of the plan)
H. Eric Bolton, Jr.
President and Chief Executive Officer
Mid-America Apartment Communities, Inc.
6584 Poplar Avenue, Suite 340
Memphis, Tennessee 38138
(Name and address of agent for service)
(901) 682-6600
(Telephone number, including area code, of agent for service)
Copy to:
John A. Good, Esq.
Bass, Berry & Sims PLC
100 Peabody Place, Suite 900
Memphis, TN 38103
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
Title of securities to Proposed maximum Proposed maximum aggregate
be registered Amount to be registered offering price per offering price Amount of registration
share fee
====================================================================================================================================
Common Stock, par value 851,042 shares 1 $ 33.21 2 $ 28,263,104.82 2 $3,580.94
$.01 per share
Common Stock, par value 500,000 shares 3 $ 33.21 2 $ 16,605,000.00 2 $2,103.85
$.01 per share
Total 1,351,042 shares $ 44,868,104.82 $5,684.79
1. On April 20, 1995, Mid-America Apartment Communities, Inc. (the
"Registrant") registered 650,000 shares of common stock under its
original 1994 Restricted Stock and Stock Option Plan (the "Plan") on a
Form S-8 filed with the Securities and Exchange Commission (the
"Commission"), File No. 033-91416. On August 14, 2002, the Registrant
registered an additional 850,000 shares under the Plan with the
Commission, on a Form S-8, filed with the Commission, File No.
333-98065. Pursuant to this Registration Statement, the Registrant is
registering an additional 851,042 shares of common stock under the
Plan.
2. The offering price is estimated solely for the purpose of determining
the amount of the registration fee. Such estimate has been calculated
in accordance with Rule 457(c) and Rule 457(h) and is based upon the
average of the high and low prices per share of the Registrant's common
stock as reported on the New York Stock Exchange on May 20, 2004.
3. Represents the total number of shares of the Registrant's common stock
currently reserved for issuance under the Registrant's 2004 Stock Plan
(the "2004 Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), are hereby incorporated by reference as of their
respective dates:
a. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2003;
b. All other reports of the Registrant filed pursuant to Section
13(a) or 15(d) of the Exchange Act since December 31, 2003
(but excluding all information furnished to the Securities and
Exchange Commission pursuant to Item 9 and Item 12 of any
Current Report on Form 8-K); and
c. The description of the Common Stock contained in the effective
registration statement filed by the Registrant to register
such securities under the Exchange Act, including all
amendments and reports filed for the purpose of updating such
description prior to the termination of the offering of the
Common Stock offered hereby.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment that indicates that all securities offered
hereby have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of 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 hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is a Tennessee corporation. Sections 48-18-501 through
48-18- 509 of the Tennessee Business Corporation Act contain detailed provisions
on indemnification of directors and officers of a Tennessee corporation.
The Registrant's restated charter provides that no director of the
Registrant shall be personally liable to the Registrant or its shareholders for
monetary damages for breach of fiduciary duty as a director, except: (i) for any
breach of the director's duty of loyalty to the Registrant or its shareholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; or (iii) for unlawful distributions
under Section 48-18-304 of the Tennessee Business Corporation Act.
The Registrant's bylaws provide that the Registrant shall indemnify any
person who is made a party to a suit by or in the right of the Registrant to
procure a judgment in its favor by reason of the fact that he, his testator or
intestate is or was a director or officer of the Registrant, against amounts
paid in settlement and reasonable expenses including attorneys' fees actually
and necessarily incurred as a result of such suit or proceeding or any appeal
therein to the extent permitted by and in the manner provided by the laws of
Tennessee. The Registrant shall indemnify any person made or threatened to be
made a party to a suit or proceeding other than by or in the right of any
company of any type or kind, domestic or foreign, which any director or officer
of the Registrant, by reason of the fact that he, his testator or intestate, was
a director or officer of the Registrant or served such other company in any
capacity, against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorneys' fees actually and necessarily incurred as a
result of such suit or proceeding, or any appeal therein, if such director or
officer acted in good faith for a purpose which he reasonably believed to be in
the best interest of the Registrant and, in criminal actions or proceedings, had
no reasonable cause to believe that this conduct was unlawful, and to the extent
permitted by, and in the manner provided by, the laws of Tennessee.
The directors and officers of the Registrant are covered by an
insurance policy indemnifying them against certain civil liabilities, including
liabilities under the federal securities laws, which might be incurred by them
in such capacity.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Index to Exhibits following the signature pages hereof.
Item 9. Undertakings.
A. The 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, as
amended (the "Securities Act"), (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; (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 clauses (i) and (ii) of this paragraph do not
apply if the information required to be included in a post-effective amendment
by those clauses is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
hereof.
(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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities 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 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 Securities
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Memphis, State of Tennessee, on this 25th day of
May, 2004.
MID-AMERICA APARTMENT COMMUNITIES, INC.
By: /s/H. Eric Bolton, Jr.
H. Eric Bolton, Jr., President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Simon R.C. Wadsworth, his true and lawful
attorneys-in-fact and agents, 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 the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their 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 on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated:
Signature Title Date
President and Chief Executive Officer May 25, 2004
/s/H.Eric Bolton, Jr. and Chairman of the Board (Principal
H. Eric Bolton, Jr. Executive Officer)
Executive Vice President, Chief May 25, 2004
/s/Simon R.C. Wadsworth Financial Officer and Director
Simon R.C. Wadsworth (Principal Financial Officer and
Principal Accounting Officer)
/s/George E. Cates Director May 25, 2004
George E. Cates
/s/John F. Flournoy Director May 25, 2004
John F. Flournoy
/s/Robert F. Fogelman Director May 25, 2004
Robert F. Fogelman
/s/Alan B. Graf, Jr. Director May 25, 2004
Alan B. Graf, Jr.
/s/John S. Grinalds Director May 25, 2004
John S. Grinalds
/s/Ralph Horn Director May 25, 2004
Ralph Horn
/s/Michael S. Starnes Director May 25, 2004
Michael S. Starnes
INDEX TO EXHIBITS
Exhibit
Number Description
--------------------------------------------------------------------------------
4.1 Amended and Restated Charter of Registrant dated as of January 10, 1994, as
filed with the Tennessee Secretary of State on January 25, 1994 is
incorporated by reference from an exhibit to the 1997 Annual Report of the
Registrant on Form 10-K for the year ended December 31, 1997
4.2 Articles of Amendment to the Charter of the Registrant dated as of January
28, 1994 as filed with the Tennessee Secretary of State on January 28, 1994
is incorporated by reference from an exhibit to the 1996 Annual Report of
the Registrant on Form 10-K for the year ended December 31, 1996
4.3 Articles of Amendment to the Amended and Restated Charter of Registrant
designating and fixing the Rights and Preferences of a Series of Preferred
Stock dated as of October 9, 1996, as filed with the Tennessee Secretary of
State on October 10, 1996 is incorporated herein by reference from exhibit
1 to the Registrant's Registration Statement on Form 8-A filed with the
Commission on October 11, 1996
4.4 Articles of Amendment to the Amended and Restated Charter of Registrant
designating and fixing the Rights and Preferences of a Series of Preferred
Stock dated as of November 17, 1997, as filed with the Tennessee Secretary
of State on November 18, 1997 is incorporated herein by reference from an
exhibit to the 1997 Annual Report of the Registrant on Form 10-K for the
year ended December 31, 1997
4.5 Articles of Amendment to the Amended and Restated Charter of Registrant
designating and fixing the Rights and Preferences of a Series of Preferred
Stock dated as of November 17, 1997, as filed with the Tennessee Secretary
of State on November 18, 1997 is incorporated herein by reference from
exhibit 4.1 to the Registrant's Registration Statement on Form 8-A filed
with the Commission on November 19, 1997
4.6 Articles of Amendment to the Amended and Restated Charter of Registrant
designating and fixing the Rights and Preferences of a Series of Preferred
Stock dated as of December 15, 1997, as filed with the Tennessee Secretary
of State on December 31, 1997 is incorporated herein by reference from an
exhibit to the 1997 Annual Report of the Registrant on Form 10-K for the
year ended December 31, 1997
4.7 Articles of Amendment to the Amended and Restated Charter of Registrant
designating and fixing the Rights and Preferences of a Series of Preferred
Stock dated as of June 25, 1998, as filed with the Tennessee Secretary of
State on June 30, 1998 is incorporated herein by reference from exhibit 4.3
to the Registrant's Registration Statement on Form 8-A filed with the
Commission on June 26, 1998
4.8 Articles of Amendment to the Amended and Restated Charter of Registrant
designating and fixing the Rights and Preferences of a Series of Preferred
Stock dated as of December 24, 1998, as filed with the Tennessee Secretary
of State on December 30, 1998 is incorporated herein by reference from an
exhibit to the Registrant's Registration Statement on Form S-8, File No.
333-112469
4.9 Articles of Amendment to the Amended and Restated Charter of Registrant
Designating and Fixing the Rights and Preferences of a Series of Shares of
Preferred Stock dated as of October 11, 2002, as filed with the Tennessee
Secretary of State on October 14, 2002 is incorporated herein by reference
from exhibit 4.2 to the Registrant's Registration Statement on Form 8-A
filed with the Commission on October 11, 2002
4.10 Articles of Amendment to the Amended and Restated Charter of Registrant
Designating and Fixing the Rights and Preferences of a Series of Shares of
Preferred Stock dated as October 28, 2002, as filed with the Tennessee
Secretary of State on October 28, 2002 is incorporated by reference from an
exhibit to the Registrant's S-3/A, File No. 333-112469 filed with the
Commission on March 13, 2004
4.11 Articles of Amendment to the Amended and Restated Charter of Registrant
Designating and Fixing the Rights and Preferences of a Series of Shares of
Preferred Stock dated as of August 7, 2003, as filed with the Tennessee
Secretary of State on August 7, 2003 is incorporated by reference from an
exhibit to the Registrant's S-3/A, File No. 333-112469 filed with the
Commission on March 13, 2004
4.12 Bylaws of Registrant is incorporated herein by reference from an exhibit to
the Registrant's Registration Statement on Form S-11/A filed on January 21,
1994
4.13 Fourth Amended and Restated 1994 Restricted Stock and Stock Option Plan of
Registrant is incorporated herein by reference from exhibit A to the
Registrant's Proxy Statement for the Annual Meeting of Shareholders held on
June 10, 2002
4.14 2004 Stock Plan of Registrant is incorporated herein by reference from
Appendix C to the Registrant's Proxy Statement for the Annual Meeting of
Shareholders held on Monday, May 24, 2004
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of KPMG LLP
23.3 Consent of Bass, Berry & Sims PLC (contained in Exhibit 5)
24.1 Power of Attorney (included on signature page of this Registration
Statement)