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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
BRE Properties, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Maryland 94-1722214
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
44 Montgomery Street, 36th Floor, San Francisco, California 94104-4809
(Address of Principal Executive Offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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8 1/2% Series A Cumulative Redeemable New York Stock Exchange
Preferred Stock, par value $0.01 per share
If this form relates to the registration If this form relates to the
of a class of securities pursuant to registration of a class of
Section 12(b) of the Exchange Act and is securities pursuant to
effective pursuant to General Section 12(g) of the Exchange Act
Instruction A.(c), please check the and is effective pursuant to
following box. [X] General Instruction A.(d), please
check the following box. [_]
Securities Act registration statement file number to which this form relates:
333-47469
Securities to be registered pursuant to Section 12(g) of the Act: None
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
A description of the 8 1/2% Series A Cumulative Redeemable Preferred Stock,
par value $0.01 per share (the "Series A Preferred Stock"), of BRE Properties,
Inc. (the "Registrant") is contained in the Prospectus Supplement dated January
26, 1999 filed with the Securities and Exchange Commission pursuant to Rule
424(b)(5) under the Securities Act of 1933. Such Prospectus Supplement
supplements the Prospectus dated April 16, 1998 (File No. 333-47469). The
Prospectus Supplement is incorporated herein by reference.
Item 2. Exhibits.
The Series A Preferred Stock described herein is to be registered on the
New York Stock Exchange, Inc. on which other securities of the Registrant are
registered. Accordingly, the following exhibits required to be filed herewith
in accordance with the Instructions as to Exhibits to Form 8-A, have been duly
filed with the New York Stock Exchange, Inc.
Exhibit
Number Description of Exhibit
- ------ ----------------------
1.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 of the Registrant's Current Report
on Form 8-K, dated March 15, 1996).
1.2 Articles of Amendment (incorporated by reference to Exhibit
4.2 of the Registrant's Registration Statement on Form S-3
(No. 333-24915), filed with the Securities and Exchange
Commission on April 28, 1997, as amended).
1.3 Certificate of Correction.
1.4 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) of the Registrant's Report on Form 10-Q for the
fiscal quarter ended June 30, 1998, filed on August 14, 1998.
1.5 Form of Series A Preferred Stock Certificate.
1.6 Articles Supplementary relating to the Series A Preferred Stock.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: January 29, 1999 BRE Properties, Inc.
By: /s/ LeRoy E. Carlson
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LeRoy E. Carlson
Executive Vice President,
Chief Financial Officer and Secretary
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
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1.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 of the Registrant's Current Report
on Form 8-K, dated March 15, 1996).
1.2 Articles of Amendment (incorporated by reference to Exhibit
4.2 of the Registrant's Registration Statement on Form S-3
(No. 333-24915), filed with the Securities and Exchange
Commission on April 28, 1997, as amended).
1.3 Certificate of Correction.
1.4 Amended and Restated By-Laws (incorporated by reference to
Exhibit 3(ii) of the Registrant's Report on Form 10-Q for the
fiscal quarter ended June 30, 1998, filed on August 14, 1998.
1.5 Form of Series A Preferred Stock Certificate.
1.6 Articles Supplementary relating to the Series A Preferred Stock.
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EXHIBIT 1.3
BRE PROPERTIES, INC.
CERTIFICATE OF CORRECTION
BRE Properties, Inc., a Maryland corporation, (hereinafter the
"Corporation"), hereby certifies to the Maryland State Department of Assessments
and Taxation that:
FIRST: The title of the document being corrected hereby is the
Amended and Restated Articles of Incorporation of BRE Properties, Inc.
SECOND: The name, as it appeared in the Amended and Restated Articles of
Incorporation of BRE Properties, Inc., of the party to such Amended and Restated
Articles of Incorporation of BRE Properties, Inc. is BRE Properties, Inc.
THIRD: The Amended and Restated Articles of Incorporation of BRE
Properties, Inc. to be corrected hereby were filed on April 4, 1996.
FOURTH: The subparagraph (b) of paragraph IV of the Amended and Restated
Articles of Incorporation of BRE Properties, Inc. as previously filed reads as
follows:
Common Shares. Each share of Common Stock shall entitle the holder of
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record thereof to one vote at all meetings of the Corporation's stockholders,
except meetings at which only holders of another specified class or series of
capital stock are entitled to vote. Subject to any preference rights with
respect to the payment of dividends attaching to the Preferred Stock or any
series thereof, the holders of Common Stock shall be entitled to receive, as and
when declared by the Board of Directors, dividends that may be paid in money,
property or by the issuance of fully paid capital stock of the Corporation or
other distribution of the Corporation's assets among stockholders for the
purpose of winding up the Corporation's affairs, whether voluntary or
involuntary, and subject to the rights, privileges, conditions and restrictions
attaching to the Preferred Stock or any series thereof, the Common Stock shall
entitle the holders thereof to receive the Corporation's remaining property.
The subparagraph (b) of paragraph IV as corrected shall read as follows:
Common Stock. Each share of Common Stock shall entitle the holder of
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record thereof to one vote at all meetings of the Corporation's stockholders,
except meetings at which only holders of another specified class or series of
capital stock are entitled to vote. Subject to any preference rights with
respect to the payment of dividends attaching to the Preferred Stock or any
series thereof, the holders of Common Stock shall be entitled to receive, as and
when declared by the Board, dividends that may be paid in money, property or by
the issuance of fully paid capital stock of the Corporation. In the event of a
liquidation, dissolution or winding up of the Corporation or other distribution
of the Corporation's assets among stockholders for the purpose of winding up the
Corporation's affairs, whether voluntary or involuntary, and subject to the
rights, privileges, conditions and restrictions attaching to the Preferred Stock
of any series thereof, the Common Stock shall entitle the holders thereof to
receive the Corporation's remaining property.
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IN WITNESS WHEREOF, BRE Properties, Inc. has caused this Certificate of
Correction to be signed in its name and on its behalf by its president and
attested by its secretary on September __, 1998.
ATTEST: BRE Properties, Inc.
/s/ LeRoy E. Carlson By: /s/ Frank C. McDowell
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LeRoy E. Carlson Frank C. McDowell
Executive Vice-President, President and Chief Executive Officer
Chief Financial Officer, and
Secretary
THE UNDERSIGNED, President of BRE Properties, Inc. who executed on behalf
of the Corporation the foregoing Certificate of Correction of which this
certificate is made a part, hereby acknowledges in the name and on behalf of
said Corporation the foregoing Certificate of Correction to be the corporate act
of said Corporation and hereby certifies that to the best of his knowledge,
information, and belief the matters and facts set forth therein with respect to
the authorization and approval thereof are true in all material respects under
the penalties of perjury.
/s/ Frank C. McDowell
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Frank C. McDowell, President and
Chief Executive Officer
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EXHIBIT 1.5
8 1/2% Series A Cumulative 8 1/2% Series A Cumulative
Redeemable Preferred Stock Redeemable Preferred Stock
BRE PROPERTIES, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
THIS CERTIFICATE IS TRANSFERABLE IN SAN FRANCISCO SEE REVERSE FOR
NEW YORK OR RIDGEFIELD PARK, NEW JERSEY RESTRICTIONS
PAR VALUE $.01
PER SHARE
CUSIP 05564E 20 5
This Certifies that ______________________ is the owner of
___________________ Fully paid and Non-Assessable Shares of 8 1/2% Series A
Cumulative Redeemable Preferred Stock of BRE Properties, Inc., transferable on
the books of the Corporation in person or by duly authorized attorney upon
surrender of this Certificate properly endorsed. This Certificate is not valid
until countersigned by the Transfer Agent and registered by the Registrar.
The holder and every transferee or assignee of this Certificate or of the
Shares represented hereby or of any interest therein accepts and agrees to be
bound by the terms, conditions and limitations of the Articles of Incorporation
and all amendments thereof and supplements thereto.
Witness the facsimile seal of the Corporation, and the facsimile signatures
of its duly authorized officers.
DATED:
/s/ LeRoy E. Carlson /s/ Frank McDowell
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SECRETARY AND CHIEF FINANCIAL OFFICER PRESIDENT
Countersigned and Registered:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Transfer Agent and Registrar.
Authorized Signature
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In order to maintain qualification of the corporation as a real estate
investment trust under applicable provisions of the Internal Revenue Code, the
Board of Directors of the Corporation may, in accordance with the terms of the
Articles of Incorporation, as the same may be amended from time to time, redeem
or restrict the transfer of the Shares represented by this Certificate. The
Corporation will furnish information about those restrictions to any stockholder
on request and without charge.
The Corporation will furnish to any stockholder on request and without
charge a full statement of the designations and any preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption of the stock of each class
which the Corporation is authorized to issue of the differences in the relative
rights and preferences between the shares of each series of a preferred or
special class in series which the Corporation is authorized to issue, to the
extent they have been set, and the authority of the Board of Directors to set
the relative rights and preferences of subsequent series of a preferred or
special class of stock. Such request may be made to the Secretary of the
Corporation or to its transfer agent.
Keep this Certificate in a safe place. If it is lost, stolen, or
destroyed, the Corporation will require a bond of indemnity as a condition to
the issuance of a replacement certificate.
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 UNIF GIFT MIN ACT - ______Custodian_______
TEN ENT - as tenants by the (Cust) (Minor)
entireties
JT TEN - as joint tenants with under Uniform Gifts to
right of survivorship and Minors Act ____________
not as tenants in common (State)
COM PROP - as community property
Additional abbreviations may also be used through not in the above list.
FOR VALUE RECEIVED, _________________________ hereby sell,
assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________
| |
|______________________________________|
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
________________________________________________________________________________
_____________________________________________________________Shares of Preferred
Stock represented by the within Certificate and do hereby irrevocably constitute
and appoint
________________________________________________________________________Attorney
to transfer the same on the books of the within-named Corporation, with full
power of substitution in the premises.
Dated _______________________
(SIGN HERE) ___________________________________
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EXHIBIT 1.6
BRE PROPERTIES, INC.
ARTICLES SUPPLEMENTARY
BRE PROPERTIES, INC., a Maryland corporation having its principal Maryland
office in Baltimore City, Maryland (the "Corporation"), hereby certifies to the
Maryland State Department of Assessments and Taxation that:
FIRST: Pursuant to authority expressly vested in the board of directors
(the "Board of Directors") of the Corporation by the charter of the Corporation
(as the same may be amended, supplemented, corrected or restated from time to
time and including these Articles Supplementary and any other articles
supplementary forming a part thereof from time to time, the "Charter"), the
Board of Directors of the Corporation has duly reclassified 2,300,000 shares of
preferred stock (par value $0.01 per share) ("Preferred Stock") of the
Corporation into 2,300,000 shares of a series designated as 8 1/2% Series A
Cumulative Redeemable Preferred Stock (par value $0.01 per share) of the
Corporation ("Series A Preferred Stock"), and has provided for the issuance of
such shares.
SECOND: The reclassification increases the number of shares classified as
Series A Preferred Stock from no shares immediately prior to the
reclassification to 2,300,000 shares immediately after the reclassification.
The reclassification decreases the number of shares classified as Preferred
Stock (par value $0.01 per share) from 10,000,000 shares immediately prior to
the reclassification to 7,700,000 shares immediately after the reclassification.
THIRD: The following is a description of the preferences, conversion and
other rights, powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of the Series A Preferred Stock of the
Corporation:
1. Designation and Amount. A series of Preferred Stock of the
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Corporation, designated as the "8 1/2% Series A Cumulative Redeemable
Preferred Stock (par value $0.01 per share)" (the "Series A Preferred Stock"),
is hereby established. The number of authorized shares of Series A Preferred
Stock shall be 2,300,000.
2. Ranking. In respect of rights to the payment of dividends and the
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distribution of assets in the event of any liquidation, dissolution or winding
up of the Corporation, the Series A Preferred Stock shall rank (i) senior to the
Corporation's common stock, par value $0.01 per share (the "Common Stock"), and
senior to any other class or series of capital stock of the Corporation other
than capital stock referred to in clauses (ii) and (iii) of this sentence, (ii)
on a parity with any class or series of capital stock of the Corporation the
terms of which specifically provide that such class or series of capital stock
ranks on a parity with the Series A Preferred Stock in respect of rights to the
payment of dividends and the distribution of assets in the event of any
liquidation, dissolution or winding up of the Corporation, and (iii) junior to
any class or series of capital stock of the Corporation the terms of which
specifically provide that such class or series of capital stock ranks senior to
the Series A
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Preferred Stock in respect of rights to the payment of dividends and the
distribution of assets in the event of any liquidation, dissolution or winding
up of the Corporation. The term "capital stock" does not include convertible
debt securities.
3. Dividends.
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(a) Subject to the preferential rights of the holders of any class
or series of capital stock of the Corporation ranking prior to the Series
A Preferred Stock as to dividends, the holders of the outstanding shares
of Series A Preferred Stock shall be entitled to receive, when, as and if
declared by the board of directors of the Corporation (the "Board of
Directors"), out of funds legally available for the payment of dividends,
cumulative cash dividends at the rate of 8 1/2% per annum of the $25.00
per share liquidation preference of the Series A Preferred Stock
(equivalent to an annual rate of $2.125 per share). Such dividends shall
accrue daily, shall accrue and be cumulative from January 29, 1999 (the
"Original Issue Date") and shall be payable quarterly in arrears in cash
on March 31, June 30, September 30 and December 31 (each, a "Dividend
Payment Date") of each year, commencing March 31, 1999; provided that if
any Dividend Payment Date is not a Business Day (as hereinafter defined),
then the dividend which would otherwise have been payable on such
Dividend Payment Date may be paid on the next succeeding Business Day
with the same force and effect as if paid on such Dividend Payment Date
and no interest or additional dividends or other sum shall accrue on the
amount so payable for the period from and after such Dividend Payment
Date to such next succeeding Business Day. The period from and including
the Original Issue Date to but excluding the first Dividend Payment Date,
and each subsequent period from and including a Dividend Payment Date to
but excluding the next succeeding Dividend Payment Date, is hereinafter
called a "Dividend Period". Dividends shall be payable to holders of
record as they appear in the stock transfer books of the Corporation at
the close of business on the applicable record date (each, a "Record
Date"), which shall be the 15th day of the calendar month in which the
applicable Dividend Payment Date falls or such other date designated by
the Board of Directors of the Corporation for the payment of dividends
that is not more than 30 nor less than ten days prior to such Dividend
Payment Date. The amount of any dividend payable for any Dividend Period,
or portion thereof, shall be computed on the basis of a 360-day year
consisting of twelve 30-day months (it being understood that the dividend
payable on March 31, 1999 shall be for less than a full Dividend Period).
The dividends payable on any Dividend Payment Date or any other date
shall include dividends accrued to but excluding such Dividend Payment
Date or other date, as the case may be.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is not a day on which banking institutions in The City of New York
are authorized or required by law, regulation or executive order to
close. All references herein to "accrued and unpaid" dividends on the
Series A Preferred Stock (and all references of like import) shall
include, unless otherwise expressly stated or the context otherwise
requires,
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accumulated dividends, if any, on the Series A Preferred Stock; and all
references herein to "accrued and unpaid" dividends on any other class or
series of capital stock of the Corporation shall include, if (and only
if) such class or series of capital stock provides for cumulative
dividends and unless otherwise expressly stated or the context otherwise
requires, accumulated dividends, if any, thereon.
(b) If any shares of Series A Preferred Stock are outstanding, no full
dividends will be declared or paid or set apart for payment on any capital
stock of the Corporation of any other class or series ranking, as to
dividends, on a parity with or junior to the Series A Preferred Stock for
any period unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment
thereof set apart for such payment on the Series A Preferred Stock for all
past Dividend Periods and the then current Dividend Period. When dividends
are not paid in full (or a sum sufficient for such full payment is not set
apart therefor) upon the Series A Preferred Stock and the shares of any
other class or series of Preferred Stock of the Corporation ranking on a
parity as to dividends with the Series A Preferred Stock, all dividends
declared upon the Series A Preferred Stock and any other class or series of
Preferred Stock of the Corporation ranking on a parity as to dividends with
the Series A Preferred Stock shall be declared pro rata so that the amount
of dividends declared per share of Series A Preferred Stock and such other
class or series of Preferred Stock of the Corporation shall in all cases
bear to each other the same ratio that accrued and unpaid dividends per
share on the shares of Series A Preferred Stock and such other class or
series of Preferred Stock of the Corporation bear to each other.
Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series A Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series A
Preferred Stock for all past Dividend Periods and the then current
Dividend Period, no dividends (other than in shares of Common Stock or
shares of any other class or series of capital stock of the Corporation
ranking junior to the Series A Preferred Stock as to dividends and as to
the distribution of assets upon liquidation, dissolution and winding up
of the Corporation) shall be declared or paid or set apart for payment
nor shall any other distribution be declared or made upon the Common
Stock of the Corporation or any other class or series of capital stock of
the Corporation ranking junior to or on a parity with the Series A
Preferred Stock as to dividends or as to the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, nor shall any
shares of Common Stock of the Corporation or shares of any other class or
series of capital stock of the Corporation ranking junior to or on a
parity with the Series A Preferred Stock as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation be redeemed, purchased or otherwise acquired for any
consideration (or any monies paid to or made available for a sinking fund
for the redemption of any such shares of junior or parity stock) by the
Corporation (except by
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conversion into or exchange for shares of any other class or series of
capital stock of the Corporation ranking junior to the Series A Preferred
Stock as to dividends and as to the distribution of assets upon
liquidation, dissolution and winding up of the Corporation and except for
the redemption of capital stock of the Corporation pursuant to Article
VII (or any similar provisions) of the Charter allowing the Corporation
to redeem or repurchase shares of its capital stock to preserve its
status as a real estate investment trust (a "REIT") for federal income
tax purposes).
(c) No dividends on the Series A Preferred Stock shall be declared by
the Board of Directors or paid or set apart for payment by the
Corporation at such time as any agreement of the Corporation, including
any agreement relating to its indebtedness, prohibits such declaration,
payment or setting apart for payment or provides that such declaration,
payment or setting apart for payment would constitute a breach thereof or
a default thereunder, or if such declaration, payment or setting apart
for payment shall be restricted or prohibited by applicable law.
Anything in these Articles Supplementary to the contrary
notwithstanding (including, without limitation, the provisions set forth
in the immediately preceding paragraph), dividends on the Series A
Preferred Stock will accrue and be cumulative from the Original Issue
Date whether or not the Corporation has earnings, whether or not there
are funds legally available for the payment of such dividends and whether
or not such dividends are declared.
(d) No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series A
Preferred Stock which may be in arrears, and holders of the Series A
Preferred Stock will not be entitled to any dividends, whether payable in
cash, securities or other property, in excess of the full cumulative
dividends described herein.
(e) Any dividend payment made on the Series A Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due
with respect to such shares.
(f) If, for any taxable year, the Corporation elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal
Revenue Code of 1986, as amended (the "Code")), any portion (the "Capital
Gains Amount") of the dividends (within the meaning of the Code) paid or
made available for the year to holders of all classes and series of the
Corporation's capital stock (the "Total Dividends"), then the portion of
the Capital Gains Amount that shall be allocable to the holders of the
Series A Preferred Stock shall be an amount equal to (A) the total
Capital Gains Amount multiplied by (B) a fraction (1) the numerator of
which is equal to the total dividends (within the meaning of the Code)
paid or made available to the holders of the Series A Preferred Stock for
that year and (2) the denominator of which is the Total Dividends for
that year.
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4. Liquidation Preference.
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(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, then, before any distribution or payment
shall be made to the holders of any Common Stock of the Corporation or
shares of any other class or series of capital stock of the Corporation
ranking junior to the Series A Preferred Stock with respect to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation, but subject to the preferential rights of the holders of
shares of any class or series of capital stock of the Corporation ranking
prior to the Series A Preferred Stock with respect to such distribution
of assets upon liquidation, dissolution or winding up, the holders of the
shares of Series A Preferred Stock then outstanding shall be entitled to
receive and to be paid out of the assets of the Corporation legally
available for distribution to its shareholders liquidating distributions
in cash or property at its fair market value as determined by the Board
of Directors in the amount of $25.00 per share, plus an amount equal to
all accrued and unpaid dividends thereon to the date of payment.
(b) After payment to the holders of the Series A Preferred Stock of
the full amount of the liquidating distributions (including accrued and
unpaid dividends) to which they are entitled, the holders of Series A
Preferred Stock, as such, shall have no right or claim to any of the
remaining assets of the Corporation.
(c) If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the assets of the Corporation legally
available therefor are insufficient to pay the full amount of liquidating
distributions on all outstanding shares of Series A Preferred Stock and
the full amount of the liquidating distributions payable on all
outstanding shares of any other classes or series of capital stock of the
Corporation ranking on a parity with the Series A Preferred Stock with
respect to the distribution of assets upon liquidation, dissolution or
winding up of the Corporation, then the holders of the Series A Preferred
Stock and all such other classes or series of capital stock will share
ratably in any such distribution of assets in proportion to the full
liquidating distributions (including, if applicable, accrued and unpaid
dividends) to which they would otherwise respectively be entitled.
(d) If liquidating distributions shall have been made in full to all
holders of Series A Preferred Stock, the remaining assets of the
Corporation shall be distributed among the holders of any other classes
or series of capital stock of the Corporation ranking junior to the
Series A Preferred Stock as to the distribution of assets upon
liquidation, dissolution or winding up, according to their respective
rights and preferences.
(e) For purposes of this Section 4, neither the consolidation or
merger of the Corporation with or into any other corporation, trust or
other entity, nor the sale, lease or conveyance of all or substantially
all of the property or business of the
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Corporation, shall be deemed to constitute a liquidation, dissolution or
winding up of the Corporation.
5. Redemption.
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(a) The Series A Preferred Stock is not redeemable prior to January
29, 2004, except as otherwise provided in paragraph (c) of this Section
5. Any date fixed for the redemption of shares of Series A Preferred
Stock is hereinafter called a "Redemption Date".
(b) Subject to Article IX of the Charter, on and after January 29,
2004, the Corporation may, at its option, upon not less than 30 nor more
than 60 days' prior written notice to the holders of record of the Series
A Preferred Stock to be redeemed, redeem the Series A Preferred Stock, in
whole or from time to time in part, for a cash redemption price equal to
$25.00 per share together with (except as provided in Section 6(f) below)
all accrued and unpaid dividends to the date fixed for redemption (the
"Optional Redemption Price"). The Optional Redemption Price of any shares
of Series A Preferred Stock (other than the portion thereof consisting of
accrued and unpaid dividends) redeemed pursuant to this Section 5(b)
shall be payable solely out of the proceeds received by the Corporation
from the sale of other capital stock of the Corporation and not from any
other source. For purposes of the preceding sentence, the term "capital
stock" means any equity securities (including Common Stock of the
Corporation and any class or series of Preferred Stock (other than Series
A Preferred Stock) of the Corporation), shares, interests, participations
or other ownership interests (however designated), depositary shares
representing interests in any of the foregoing, and any rights (other
than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
(c) The Series A Preferred Stock is also redeemable by the
Corporation, in whole or from time to time in part, on the terms and
subject to the conditions set forth in Article VII of the Charter;
provided that any such redemption is made in accordance with the further
terms and conditions set forth in this Section 5(c) and Section 6 of
these Articles Supplementary. If the Corporation shall call for
redemption any shares of Series A Preferred Stock pursuant to and in
accordance with the provisions of Article VII of the Charter and this
Section 5(c), the redemption price for such shares shall be an amount in
cash equal to $25.00 per share together with (except as provided in
Section 6(f) below) all accrued and unpaid dividends to the date fixed
for redemption (the "Charter Redemption Price").
(d) Any redemption of shares of Series A Preferred Stock, whether
pursuant to paragraph (b) or (c) of this Section 5, shall be made in
accordance with the applicable provisions set forth in Section 6 below.
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6. Procedures for Redemption; Limitations on Redemption.
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(a) If fewer than all of the outstanding shares of Series A
Preferred Stock are to be redeemed at the option of the Corporation
pursuant to Section 5(b) above, the number of shares to be redeemed will
be determined by the Corporation and the shares to be so redeemed shall
be selected pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders (as nearly
as may be practicable without creating fractional shares) or by lot or by
any other equitable manner determined by the Corporation that will not
give the Corporation the right to redeem shares of Series A Preferred
Stock pursuant to Article VII of the Charter. Shares of Series A
Preferred Stock to be redeemed pursuant to Section 5(c) shall be selected
as provided in Article VII of the Charter.
(b) Notice of redemption will be given by publication in The Wall
Street Journal or, if such newspaper is not then being published, another
newspaper of general circulation in The City of New York, such
publication to be made at least once a week for two successive weeks
commencing not less than 30 nor more than 60 days prior to the Redemption
Date, except that no such notice need be published in the case of a
redemption pursuant to Section 5(c) of these Articles Supplementary.
Notice of any redemption (whether pursuant to Section 5(b) or 5(c) of
these Articles Supplementary, as the case may be) will also be mailed by
or on behalf of the Corporation, first class postage prepaid, not less
than 30 nor more than 60 days prior to the applicable Redemption Date,
addressed to each holder of record of shares of Series A Preferred Stock
to be redeemed at the address set forth in the share transfer records of
the Corporation; provided that if the Corporation shall have reasonably
concluded, based upon the advice of independent tax counsel experienced
in such matters, that any redemption made pursuant to Section 5(c) must
be made on a date (the "Subject Date") which is earlier than 30 days
after the date of such mailing in order to preserve the status of the
Company as a real estate investment trust for federal income tax purposes
or to comply with federal tax laws relating to the Company's
qualification as a real estate investment trust, then the Corporation may
give such shorter notice as is necessary to effect such redemption on the
Subject Date. Any notice which has been mailed in the manner provided for
in the preceding sentence shall be conclusively presumed to have been
duly given on the date mailed whether or not the applicable holder
receives such notice. In addition to any information required by law or
by the applicable rules of any exchange upon which Series A Preferred
Stock may be listed or admitted to trading, such notice shall state: (1)
the Redemption Date; (2) the Optional Redemption Price or the Charter
Redemption Price, as the case may be (the "Redemption Price"); (3) the
number of shares of Series A Preferred Stock to be redeemed and whether
such shares are being redeemed at the option of the Corporation pursuant
to Section 5(b) or in order to preserve the Corporation's status as a
real estate investment trust for federal income tax purposes pursuant to
Section 5(c); (4) the place or places (which shall include a place in the
Borough of Manhattan, The City of New York) where certificates for
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such shares are to be surrendered for payment of the Redemption Price;
and (5) that dividends on the shares of Series A Preferred Stock to be
redeemed will cease to accrue on such Redemption Date. If fewer than all
of the outstanding shares of Series A Preferred Stock are to be redeemed,
the notice mailed to each holder of shares to be redeemed shall also
specify the number of shares of Series A Preferred Stock to be redeemed
from such holder. No failure to mail or defect in such mailed notice or
in the mailing thereof shall affect the validity of the proceedings for
the redemption of any shares of Series A Preferred Stock except as to the
holder to whom notice was defective or not given.
(c) If notice has been published (with respect to a redemption
pursuant to Section 5(b) only) and mailed in accordance with Section 6(b)
above and provided that on or before the Redemption Date specified in
such notice all funds necessary for such redemption have been irrevocably
set aside by the Corporation, separate and apart from its other funds, in
trust for the benefit of the holders of the Series A Preferred Stock so
called for redemption, so as to be, and to continue to be, available
therefor, then, from and after the Redemption Date, dividends on the
shares of Series A Preferred Stock so called for redemption shall cease
to accrue, such shares shall no longer be deemed to be outstanding, and
all rights of the holders thereof as holders of such shares (except the
right to receive the Redemption Price together with , if applicable,
accrued and unpaid dividends thereon to the Redemption Date) shall
terminate. In the event any Redemption Date shall not be a Business Day,
then payment of the Redemption Price need not be made on such Redemption
Date but may be made on the next succeeding Business Day with the same
force and effect as if made on such Redemption Date and no interest,
additional dividends or other sum shall accrue on the amount payable for
the period from and after such Redemption Date to such next succeeding
Business Day.
(d) Upon surrender, in accordance with such notice, of the
certificates for any shares of Series A Preferred Stock to be so redeemed
(properly endorsed or assigned for transfer, if the Corporation shall so
require and the notice shall so state), such shares of Series A Preferred
Stock shall be redeemed by the Corporation at the Redemption Price. In
case fewer than all the shares of Series A Preferred Stock represented by
any such certificate are redeemed, a new certificate or certificates
shall be issued representing the unredeemed shares of Series A Preferred
Stock without cost to the holder thereof.
(e) Any deposit of monies with a bank or trust company for the
purpose of redeeming Series A Preferred Stock shall be irrevocable and
such monies shall be held in trust for the benefit of the holders of
Series A Preferred Stock entitled thereto, except that (1) the
Corporation shall be entitled to receive from such bank or trust company
the interest or other earnings, if any, earned on the monies so deposited
in trust; and (2) any balance of the monies so deposited by the
Corporation and unclaimed by the holders of the Series A Preferred Stock
entitled thereto at the
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expiration of two years from the applicable Redemption Date shall be
repaid, together with any interest or other earnings earned thereon, to
the Corporation and, after any such repayment, the holders of the shares
entitled to the funds so repaid to the Corporation shall look only to the
Corporation for payment without interest or other earnings thereon.
(f) Anything in these Articles Supplementary to the contrary
notwithstanding, the holders of record of shares of Series A Preferred
Stock at the close of business on a Record Date will be entitled to
receive the dividend payable with respect to such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of
such shares after such Record Date and on or prior to such Dividend
Payment Date or the Corporation's default in the payment of the dividend
due on such Dividend Payment Date, in which case the amount payable upon
redemption of such shares of Series A Preferred Stock will not include
such dividend (and the full amount of the dividend payable for the
applicable Dividend Period shall instead be paid on such Dividend Payment
Date to the holders of record on such Record Date as aforesaid). Except
as provided in this Section 6(f) and except to the extent that accrued
and unpaid dividends are payable as part of the Redemption Price pursuant
to Section 5, the Corporation will make no payment or allowance for
unpaid dividends, regardless of whether or not in arrears, on shares of
Series A Preferred Stock called for redemption.
(g) Unless full cumulative dividends on all outstanding shares of
Series A Preferred Stock shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment
thereof set apart for payment for all past Dividend Periods and the then
current Dividend Period, no shares of Series A Preferred Stock shall be
redeemed unless all outstanding shares of Series A Preferred Stock are
simultaneously redeemed; provided, however, that the foregoing shall not
prevent the redemption of shares of Series A Preferred Stock pursuant to
Article VII of the Charter (so long as such redemption is made in
accordance with the applicable provisions of Article VII of the Charter
and of Sections 5 and 6 of these Articles Supplementary) or pursuant to a
purchase or exchange offer made on the same terms to the holders of all
outstanding shares of Series A Preferred Stock. In addition, unless full
cumulative dividends on all outstanding shares of Series A Preferred
Stock have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for
all past Dividend Periods and the then current Dividend Period, the
Corporation shall not purchase or otherwise acquire, directly or
indirectly, any shares of Series A Preferred Stock (except by conversion
into or exchange for capital stock of the Corporation ranking junior to
the Series A Preferred Stock as to the payment of dividends and with
respect to the distribution of assets upon liquidation, dissolution and
winding up of the Corporation); provided, however, that the foregoing
shall not prevent the redemption of shares of Series A Preferred Stock
pursuant to Article VII of the Charter (so long as such redemption is
made in accordance with applicable provisions of the Article
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VII of the Charter and of Sections 5 and 6 of these Articles
Supplementary) or pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding shares of Series A Preferred
Stock.
7. Voting Rights. Except as required by law and as set forth below in
-------------
this Section 7, the holders of the Series A Preferred Stock shall not have any
voting rights.
(a) Whenever dividends on any shares of Series A Preferred Stock
shall be in arrears for six or more Dividend Periods, whether or not such
Dividend Periods are consecutive, the number of directors then
constituting the Board of Directors of the Corporation shall be
automatically increased by two (if not already increased by two by reason
of the election of directors by the holders of any other class or series
of capital stock of the Corporation upon which like voting rights have
been conferred and are exercisable and with which the Series A Preferred
Stock is entitled to vote as a class with respect to the election of such
two directors) and the holders of shares of Series A Preferred Stock
(voting separately as a class with all other classes or series of capital
stock of the Corporation upon which like voting rights have been
conferred and are exercisable and which are entitled to vote as a class
with the Series A Preferred Stock in the election of such two directors)
will be entitled to vote for the election of such two directors of the
Corporation at a special meeting called by an officer of the Corporation
at the request of the holders of record of at least 10% of the
outstanding shares of Series A Preferred Stock or by the holders of any
other class or series of capital stock of the Corporation upon which like
voting rights have been conferred and are exercisable and which is
entitled to vote as a class with the Series A Preferred Stock in the
election of such two directors (unless such request is received less than
90 days before the date fixed for the next annual or special meeting of
shareholders, in which case the vote for such two directors shall be held
at the earlier of the next such annual or special meeting of
shareholders), and at each subsequent annual meeting of shareholders
until all dividends accumulated on the Series A Preferred Stock for all
past Dividend Periods and the then current Dividend Period shall have
been fully paid or declared and a sum sufficient for the payment thereof
set aside for payment, whereupon the right of the holders of Series A
Preferred Stock to elect such two directors shall cease and (unless there
are one or more other classes or series of capital stock of the
Corporation upon which like voting rights have been conferred and are
exercisable) the term of office of such directors previously so elected
shall automatically terminate, such directors shall no longer be
qualified to serve and the authorized number of directors of the
Corporation shall thereupon return to the number of authorized directors
otherwise in effect, but subject always to the same provisions for the
reinstatement and divestment of the right to elect such two additional
directors in the case of any such future dividend arrearage.
In the case of any such request for a special meeting (unless such
request is received less than 90 days before the date fixed for the next
annual or special meeting of shareholders), such meeting shall be held on
the earliest practicable date at the
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place designated by the holders of capital stock requesting such meeting
or, if none, at a place designated by the Secretary of the Corporation,
upon notice similar to that required for an annual meeting of
shareholders. If such special meeting is not called by an officer of the
Corporation within 30 days after such request, then the holders of record
of at least 10% of the outstanding shares of Series A Preferred Stock may
designate in writing a holder of Series A Preferred Stock to call such
meeting at the expense of the Corporation, and such meeting may be called
by the holder so designated upon notice similar to that required for an
annual meetings of shareholders and shall be held at the place designated
by the holder calling such meeting. At all times that the voting rights
conferred by this Section 7(a) are exercisable, the holders of Series A
Preferred Stock shall have access to the stock transfer records of the
Corporation. The Corporation shall pay all costs and expenses of calling
and holding any meeting and of electing directors pursuant to this
Section 7(a), including, without limitation, the cost of preparing,
reproducing and mailing the notice of such meeting, the cost of renting a
room for such meeting to be held, and the cost of collecting and
tabulating votes.
The procedures in this Section 7(a) for the calling of meetings and the
election of directors shall, to the extent permitted by law, supersede
anything inconsistent contained in the Charter or by-laws of the
Corporation.
So long as any shares of Series A Preferred Stock are outstanding,
the number of directors constituting the entire Board of Directors of the
Corporation shall at all times be such so that the exercise, by the
holders of the Series A Preferred Stock and the holders of any other
classes or series of capital stock of the Corporation upon which like
voting rights have been conferred, of the right to elect directors under
the circumstances provided above will not contravene any provision of the
Corporation's Charter or by-laws restricting the number of directors
which may constitute the entire Board of Directors of the Corporation.
If at any time when the voting rights conferred upon the Series A
Preferred Stock pursuant to this Section 7(a) are exercisable any vacancy
in the office of a director elected pursuant to this Section 7(a) shall
occur, then such vacancy may be filled only by the remaining such
director or by vote of the holders of record of the outstanding Series A
Preferred Stock and any other classes or series of capital stock of the
Corporation upon which like voting rights have been conferred and are
exercisable and which are entitled to vote as a class with the Series A
Preferred Stock in the election of directors pursuant to this Section
7(a). Any director elected or appointed pursuant to this Section 7(a) may
be removed only by the holders of the outstanding Series A Preferred
Stock and any other classes or series of capital stock of the Corporation
upon which like voting rights have been conferred and are exercisable and
which are entitled to vote as a class with the Series A Preferred Stock
in the election of directors pursuant to this Section 7(a), and may not
be removed by the holders of the Common Stock.
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(b) So long as any shares of Series A Preferred Stock remain
outstanding, the Corporation shall not, without the affirmative vote or
consent of the holders of at least two-thirds of the shares of Series A
Preferred Stock outstanding at the time, given in person or by proxy
(with the Series A Preferred Stock voting separately as a class), (A)
authorize, create or issue, or increase the authorized or issued amount
of, any class or series of capital stock of the Corporation ranking prior
to the Series A Preferred Stock with respect to the payment of dividends
or the distribution of assets upon liquidation, dissolution or winding up
of the Corporation or reclassify any authorized capital stock of the
Corporation into such shares, or create, authorize or issue any
obligation or security convertible into, exchangeable or exercisable for,
or evidencing the right to purchase, any such shares, or (B) amend, alter
or repeal any provisions of the Charter (including, without limitation,
any provision of these Articles Supplementary), so as to materially and
adversely affect any right, preference, privilege or voting power of the
Series A Preferred Stock or the holders thereof, or (C) enter into any
share exchange that affects shares of Series A Preferred Stock, or
consolidate with or merge into any other entity, or permit any other
entity to consolidate with or merge into the Corporation, unless in each
such case described in this clause (C) each share of Series A Preferred
Stock then outstanding remains outstanding without a material adverse
change to its terms and rights or is converted into or exchanged for
preferred stock of the surviving or resulting entity having preferences,
rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption identical to those
of the Series A Preferred Stock; provided, however, that any amendment to
the Charter to authorize any increase in the amount of the authorized
Preferred Stock or Common Stock or the creation or issuance of any other
class or series of Preferred Stock or any increase in the amount of
authorized or outstanding shares of Series A Preferred Stock or any other
class or series of Preferred Stock, in each case ranking on a parity with
or junior to the Series A Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up of the Corporation, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
For purposes of this paragraph, the filing in accordance with applicable
law of articles supplementary or any similar document setting forth or
changing the designations, preferences, conversion or other rights,
voting powers, restrictions, limitation as to dividends, qualifications
or other terms of any class or series of capital stock of the Corporation
shall be deemed an amendment to the Charter.
(c) The foregoing voting provisions will not apply if, at or prior
to the time when the act with respect to which such vote would otherwise
be required shall be effected, all outstanding Series A Preferred Stock
shall have been redeemed or called for redemption and sufficient funds
shall have been deposited in trust in accordance with the terms of
Section 6 hereof to effect such redemption.
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(d) On any matter submitted to a vote of the holders of Series A
Preferred Stock or on which the Series A Preferred Stock otherwise is
entitled to vote (as expressly provided in the Charter, including these
Articles Supplementary, or as may be required by law), including any
action by written consent, each share of Series A Preferred Stock shall
be entitled to one vote, except that when shares of any other class or
series of Preferred Stock of the Corporation have the right to vote with
the Series A Preferred Stock as a single class on any matter, the Series
A Preferred Stock and the shares of each such other class or series will
have one vote for each $25.00 of liquidation preference.
8. Conversion. The Series A Preferred Stock is not convertible into or
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exchangeable for any other property or securities of the Corporation.
9. Office or Agency in New York City. The Corporation will at all times
---------------------------------
maintain an office or agency in the Borough of Manhattan, The City of New York,
where shares of Series A Preferred Stock may be surrendered for payment
(including upon redemption), registration of transfer or exchange.
10. The Series A Preferred Stock shall have no preemptive rights.
11. Status of Redeemed and Reacquired Series A Preferred Stock. In the
----------------------------------------------------------
event any shares of Series A Preferred Stock shall be redeemed pursuant to
Section 5 hereof or otherwise reacquired by the Corporation, the shares so
redeemed or reacquired shall become authorized but unissued shares of Series A
Preferred Stock, available for future issuance and reclassification by the
Corporation.
12. If any preference, right, voting power, restriction, limitation as to
dividends, qualification, term or condition of redemption or other term of the
Series A Preferred Stock is invalid, unlawful or incapable of being enforced by
reason of any rule of law or public policy, then, to the extent permitted by
law, all other preferences, rights, voting powers, restrictions, limitations as
to dividends, qualifications, terms or conditions of redemption and other terms
of the Series A Preferred Stock which can be given effect without the invalid,
unlawful or unenforceable preference, right, voting power, restriction,
limitation as to dividends, qualification, term or condition of redemption or
other term of the Series A Preferred Stock shall remain in full force and effect
and shall not be deemed dependent upon any other such preference, right, voting
power, restriction, limitation as to dividends, qualification, term or condition
of redemption or other term of the Series A Preferred Stock unless so expressed
herein.
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IN WITNESS WHEREOF, BRE PROPERTIES, INC. has caused these presents to be
signed in its name and on its behalf by its President, and witnessed by its
Secretary on January 28, 1999.
Witness: BRE PROPERTIES, INC.
By: /s/ LeRoy E. Carlson By: /s/ Frank C. McDowell
--------------------------- -------------------------------
Name: LeRoy E. Carlson Name: Frank C. McDowell
Title: Secretary Title: President
THE UNDERSIGNED, Frank C. McDowell of BRE Properties, Inc., who executed
on behalf of the Corporation the Articles Supplementary of which this
certificate is made a part, hereby acknowledges in the name and on behalf of
said Corporation the foregoing Articles Supplementary to be the corporate act
of said Corporation and hereby certifies that the matters and facts set forth
herein with respect to the authorization and approval thereof are true in all
material respects under the penalties of perjury.
By: /s/ Frank C. McDowell
------------------------------
Name: Frank C. McDowell
Title: President
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