As filed with the Securities and Exchange Commission on July 12, 2004
Registration No. 333-
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U. S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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EASTGROUP PROPERTIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Maryland 13-2711135
(State or Other Jurisdiction of Incorporation (I.R.S. Employer
or Organization) Identification No.)
300 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201
(Address of Principal Executive Offices, including Zip Code)
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EastGroup Properties, Inc. 2004 Equity Incentive Plan
(Full Title of the Plan)
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David H. Hoster II, Chief Executive Officer and President
300 One Jackson Place
188 East Capitol Street
Jackson, Mississippi 39201
(Name and Address of Agent for Service)
(601) 354-3555
(Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
Joseph P. Kubarek, Esq.
Jaeckle Fleischmann & Mugel, LLP
12 Fountain Plaza
Buffalo, New York 14202
(716) 856-0600
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount To Offering Price Aggregate Offering Registration
To Be Registered Be Registered Per Share Price (1) Fee (1)
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Common Stock, $0.0001 par
value per share (2)(3) 1,900,000 Various $ 64,343,500 $ 8,152.32
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(1) Determined in accordance with Rule 457(h)(1) and 457(c) under the
Securities Act of 1933 based on the average of the high and low reported
sales prices on the New York Stock Exchange on July 8, 2004.
(2) Includes associated rights to purchase Series C Preferred Stock pursuant to
the Rights Agreement dated as of December 3, 1998.
(3) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of additional
shares that may be offered and issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions as provided in the
EastGroup Properties, Inc. 2004 Equity Incentive Plan.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to register
1,900,000 shares of common stock, par value $0.0001 per share ("Common Stock"),
of EastGroup Properties, Inc. which have been reserved for issuance under the
EastGroup Properties, Inc. 2004 Equity Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be
sent or given to employees participating in the plan described herein as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the instructions to Part I of Form S-8,
such documents need not be filed with the Securities and Exchange Commission
(the "Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424 of the Securities
Act. These documents and the documents incorporated by reference pursuant to
Item 3 of Part II of this Registration Statement, taken together, constitute the
prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
EastGroup Properties, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents filed by it
with the Commission:
o Our Annual Report on Form 10-K for the year ended December 31, 2003.
o Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2004.
o Our Current Report on Form 8-K, as filed with the Commission on April
20, 2004, incorporating by reference the Registrant's April 19, 2004
press release, setting forth the Registrant's first quarter 2004
earnings.
o Our Registration Statement on Form 8-B, as filed with the Commission
on June 5, 1997, describing the Registrant's common stock, and all
amendments and reports updating that description.
In addition, all documents filed by the Registrant subsequent to the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part thereof 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 of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable (the Common Stock is registered under Section 12 of the
Exchange Act).
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
EastGroup's Articles of Incorporation, as amended ("Charter"), contain a
provision authorizing EastGroup to indemnify, to the fullest extent permitted by
Maryland law, its directors and officers, whether serving EastGroup or, at its
request, any other entity. Additionally, the Charter provides that to the
fullest extent permitted by Maryland law, no director or officer shall be liable
to EastGroup or its stockholders for money damages.
Section 2-418 of the Maryland General Corporation Law (the "Indemnification
Statute"), the law of the state in which EastGroup is organized, empowers a
corporation, subject to certain limitations, to indemnify its officers and
directors against expenses, including attorneys' fees, judgments, penalties,
fines, settlements and expenses, actually and reasonably incurred by them in any
suit or proceeding to which they are parties. Indemnification, however, is not
permitted if the act or omission of the officer or director was material to the
matter giving rise to the proceeding and was committed in bad faith, or was the
result of active and deliberate dishonesty. Additionally, indemnification is not
permitted if the officer or director received an improper personal benefit or,
with respect to a criminal action or proceeding, the officer or director had no
reasonable cause to believe his or her conduct was unlawful. Finally,
indemnification is not permitted if a director or officer is found liable in a
proceeding brought by or in the right of the corporation.
EastGroup has entered into an indemnification agreement (the
"Indemnification Agreement") with each of its directors and officers, and the
Board of Directors has authorized EastGroup to enter into an Indemnification
Agreement with each of the future directors and officers of EastGroup. The
Indemnification Statute permits a corporation to indemnify its directors and
officers; however, it also authorizes other arrangements for indemnification of
directors and officers, including insurance. The Indemnification Agreement is
intended to provide indemnification to the maximum extent allowed by the laws of
the State of Maryland.
The Indemnification Agreement provides that EastGroup shall indemnify a
director or officer who is a party to the Agreement (the "Indemnitee") if he or
she was or is a party to or otherwise involved in any proceeding by reason of
the fact that he or she was or is a director or officer of EastGroup, or was or
is serving at its request in a certain capacity of another entity, against
losses incurred in connection with the defense or settlement of such proceeding.
The provisions in the Indemnification Agreement are similar to those provided in
the Indemnification Statute. According to the Indemnification Agreement,
however, an Indemnitee who pays any amount in settlement of a proceeding without
EastGroup's written consent is not entitled to indemnification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number Description
5 Opinion of Jaeckle Fleischmann & Mugel, LLP as to the legality of
the securities being registered (filed herewith).
23.1 Consent of KPMG LLP (filed herewith).
23.2 Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit 5).
24 Power of Attorney (included on signature page).
99 EastGroup Properties, Inc. 2004 Equity Incentive Plan (incorporated by
reference to Appendix D to the proxy material for the 2004 Annual
Meeting of Stockholders).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act, as amended;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this 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) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(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
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in 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
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Jackson, State of Mississippi, on July 12, 2004.
EASTGROUP PROPERTIES, INC.
By: /s/ N. KEITH MCKEY
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N. Keith McKey
Executive Vice President, Chief Financial
Officer, Treasurer and Secretary
POWERS OF ATTORNEY
We, the undersigned directors and officers of EastGroup Properties, Inc., a
Maryland corporation, do hereby constitute and appoint David H. Hoster II and N.
Keith McKey, each and either of them, our true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, to do any and all
acts and things in our names and on our behalf in our capacities as directors
and officers and to execute any and all instruments for us and in our name in
the capacities indicated below, which said attorneys and agents may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933 and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement, or any
Registration Statement for this offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, including
specifically, but without limitation, any and all amendments (including
post-effective amendments) hereto; and we hereby ratify and confirm all that
said attorneys and agents, or either of them, shall do or cause to be done by
virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and the foregoing Powers of Attorney have been signed by
the following persons in the capacities and as of the dates indicated.
Signature Title Date
/s/ LELAND R. SPEED Chairman of the Board July 12, 2004
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Leland R. Speed
/s/ DAVID H. HOSTER II Chief Executive Officer, July 12, 2004
------------------------- President and Director
David H. Hoster II
/s/ N. KEITH MCKEY Executive Vice President, Chief July 12, 2004
------------------------- Financial Officer, Treasurer
N. Keith McKey and Secretary
/s/BRUCE CORKERN Senior Vice President and July 12, 2004
------------------------- Controller
Bruce Corkern
/s/ D. PIKE ALOIAN Director July 12, 2004
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D. Pike Aloian
/s/ ALEXANDER G. ANAGNOS Director July 12, 2004
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Alexander G. Anagnos
/s/ H.C. BAILEY, JR. Director July 12, 2004
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H.C. Bailey, Jr.
/s/ HAYDEN C. EAVES III Director July 12, 2004
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Hayden C. Eaves III
/s/ FREDRIC H. GOULD Director July 12, 2004
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Fredric H. Gould
/s/ DAVID M. OSNOS Director July 12, 2004
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David M. Osnos
EXHIBIT INDEX
Exhibit Number Description
5 Opinion of Jaeckle Fleischmann & Mugel, LLP as to the legality of
the securities being registered (filed herewith).
23.1 Consent of KPMG LLP (filed herewith).
23.2 Consent of Jaeckle Fleischmann & Mugel, LLP (included in Exhibit 5).
24 Power of Attorney (included on signature page).
99 EastGroup's 2004 Equity Incentive Plan (incorporated by reference to
Appendix D to the proxy material for the 2004 Annual Meeting of
Stockholders).