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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1 TO 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
Wells Real Estate Investment Trust, Inc.
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(Exact name of registrant as specified in its charter)
Maryland
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(State or other jurisdiction of incorporation)
Maryland 58- 2328421
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(State or other jurisdiction (IRS Employer Identification
of incorporation) No.)
6200 The Corners Parkway, Suite
250, Norcross, Georgia 30092
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(Address of principal executive (Zip Code)
offices)
If this form relates to If this form relates to the
the registration of a registration of a class of
class of securities securities pursuant to Section
pursuant to Section 12(b) 12(g) of the Exchange Act
of the Exchange Act and and is effective pursuant
is effective pursuant to to General Instruction A.
General Instruction (d), please check the
A.(c), please check the following box. [X]
following box. [_]
Securities Act registration statement file number to which this
form relates: 333-32099
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(If applicable)
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 it to be Registered
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None None
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Securities to be registered pursuant to Section 12(g) of the Act:
Shares of Common Stock and Preferred Stock
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(Title of Class)
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Item 1. Description Of Registrant's Securities To Be Registered
On August 16, 2000, Wells Real Estate Investment Trust, Inc. (Wells REIT)
filed an Amended and Restated Articles of Incorporation with the Maryland
Secretary of State. The following is an amendment and restatement of the
Registration Statement on Form 8-A of Wells REIT filed with the Securities and
exchange Commission on April 8, 1999, setting forth an updated description of
Wells REIT's capital stock. Item 1 of the Registration Statement on Form 8-A
filed on April 8, 1999 is amended and restated as follows:
Under our articles of incorporation, we have authority to issue a
total of 500,000,000 shares of capital stock. Of the total shares
authorized, 350,000,000 shares are designated as common stock with a par
value of $0.01 per share, 50,000,000 shares are designated as preferred
stock with a par value of $0.01 per share and 100,000,000 shares are
designated as shares-in-trust, which would be issued only in the event we
have purchases in excess of the ownership limits described below.
Common Stock
The holders of common stock are entitled to one vote per share on all
matters voted on by shareholders, including election of our directors. Our
articles of incorporation do not provide for cumulative voting in the
election of directors. Therefore, the holders of a majority of the
outstanding common shares can elect our entire board of directors. Subject
to any preferential rights of any outstanding series of preferred stock,
the holders of common stock are entitled to such dividends as may be
declared from time to time by our board of directors out of legally
available funds and, upon liquidation, are entitled to receive all assets
available for distribution to shareholders. All shares issued in the
offering will be fully paid and non-assessable shares of common stock.
Holders of shares of common stock will not have preemptive rights, which
means that you will not have an automatic option to purchase any new shares
that we issue.
We will not issue certificates for our shares. Shares will be held in
"uncertificated" form which will eliminate the physical handling and
safekeeping responsibilities inherent in owning transferable stock
certificates and eliminate the need to return a duly executed stock
certificate to effect a transfer. Wells Capital, our advisor, acts as our
registrar and as the transfer agent for our shares. Transfers can be
effected simply by mailing to Wells Capital a transfer and assignment form,
which we will provide to you at no charge.
Preferred Stock
Our articles of incorporation authorize our board of directors to
designate and issue one or more classes or series of preferred stock
without stockholder approval. The board of directors may determine the
relative rights, preferences and privileges of each class or series of
preferred stock so issued, which may be more beneficial than the rights,
preferences and privileges attributable to the common stock. The issuance
of preferred stock could have the effect of delaying or preventing a change
in control of the Wells REIT. Our board of directors has no present plans
to issue preferred stock, but may do so at any time in the future without
shareholder approval.
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Meetings and Special Voting Requirements
An annual meeting of the shareholders will be held each year, at least
30 days after delivery of our annual report. Special meetings of
shareholders may be called only upon the request of a majority of the
directors, a majority of the independent directors, the chairman, the
president or upon the written request of 10% of the shareholders. The
presence of a majority of the outstanding shares either in person or by
proxy shall constitute a quorum. Generally, the affirmative vote of a
majority of all votes entitled to be voted is necessary to take shareholder
action authorized by our articles of incorporation, except that a majority
of the votes represented in person or by proxy at a meeting at which a
quorum is present is sufficient to elect a director.
Under Maryland Corporation Law and our articles of incorporation,
shareholders are entitled to vote at a duly held meeting at which a quorum
is present on (1) amendment of our articles of incorporation, (2)
liquidation or dissolution of the Wells REIT, (3) reorganization of the
Wells REIT, (4) merger, consolidation or sale or other disposition of
substantially all of our assets, and (5) termination of our status as a
REIT. Shareholders voting against any merger or sale of assets are
permitted under Maryland Corporation Law to petition a court for the
appraisal and payment of the fair value of their shares. In an appraisal
proceeding, the court appoints appraisers who attempt to determine the fair
value of the stock as of the date of the shareholder vote on the merger or
sale of assets. After considering the appraisers' report, the court makes
the final determination of the fair value to be paid to the dissenting
shareholder and decides whether to award interest from the date of the
merger or sale of assets and costs of the proceeding to the dissenting
shareholders.
Our advisor is selected and approved annually by our directors. While
the shareholders do not have the ability to vote to replace Wells Capital
or to select a new advisor, shareholders do have the ability, by the
affirmative vote of a majority of the shareholders entitled to vote on such
matter, to elect to remove a director from our board.
Shareholders are entitled to receive a copy of our shareholder list
upon request. The list provided by us will include each shareholder's
name, address and telephone number, if available, and number of shares
owned by each shareholder and will be sent within ten days of the receipt
by us of the request. A shareholder requesting a list will be required to
pay reasonable costs of postage and duplication. We have the right to
request that a requesting shareholder represent to us that the list will
not be used to pursue commercial interests.
In addition to the foregoing, shareholders have rights under Rule 14a-
7 under the Securities Exchange Act, which provides that, upon the request
of investors and the payment of the expenses of the distribution, we are
required to distribute specific materials to shareholders in the context of
the solicitation of proxies for voting on matters presented to shareholders
or, at our option, provide requesting shareholders with a copy of the list
of shareholders so that the requesting shareholders may make the
distribution of proxies themselves.
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Restriction on Ownership of Shares
In order for us to qualify as a REIT, not more than 50% of our
outstanding shares may be owned by any five or fewer individuals, including
some tax-exempt entities. In addition, the outstanding shares must be
owned by 100 or more persons independent of us and each other during at
least 335 days of a 12-month taxable year or during a proportionate part of
a shorter taxable year. We may prohibit certain acquisitions and transfers
of shares so as to ensure our continued qualification as a REIT under the
Internal Revenue Code. However, we cannot assure you that this prohibition
will be effective.
In order to assist us in preserving our status as a REIT, our articles
of incorporation contain a limitation on ownership which prohibits any
person or group of persons from acquiring, directly or indirectly,
beneficial ownership of more than 9.8% of our outstanding shares. Our
Articles of Incorporation provide that any transfer of shares that would
violate our share ownership limitations is null and void and the intended
transferee will acquire no rights in such shares, unless the transfer is
approved by the board of directors based upon receipt of information that
such transfer would not violate the provisions of the Internal Revenue Code
for qualification as a REIT.
The shares in excess of the ownership limit which are attempted to be
transferred will be designated as "shares-in-trust" and will be transferred
automatically to a trust effective on the day before the reported transfer
of such shares. The record holder of the shares that are designated as
shares-in-trust will be required to submit such number of shares to the
Wells REIT in the name of the trustee of the trust. We will designate a
trustee of the share trust that will not be affiliated with us. We will
also name one or more charitable organizations as a beneficiary of the
share trust. Shares-in-trust will remain issued and outstanding shares and
will be entitled to the same rights and privileges as all other shares of
the same class or series. The trustee will receive all dividends and
distributions on the shares-in-trust and will hold such dividends or
distributions in trust for the benefit of the beneficiary. The trustee
will vote all shares-in-trust during the period they are held in trust.
At our direction, the trustee will transfer the shares-in-trust to a
person whose ownership will not violate the ownership limits. The transfer
shall be made within 20 days of our receipt of notice that shares have been
transferred to the trust. During this 20 day period, we will have the
option of redeeming such shares. Upon any such transfer or redemption, the
purported transferee or holder shall receive a per share price equal to the
lesser of (a) the price per share in the transaction that created such
shares-in-trust, or (b) the market price per share on the date of the
transfer or redemption.
Any person who (1) acquires shares in violation of the foregoing
restriction or who owns shares that were transferred to any such trust is
required to give immediate written notice to the Wells REIT of such event
or (2) transfers or receives shares subject to such limitations is required
to give the Wells REIT 15 days written notice prior to such transaction.
In both cases, such persons shall provide to the Wells REIT such other
information as we may request in order to determine the effect, if any, of
such transfer on our status as a REIT.
The foregoing restrictions will continue to apply until (1) the board
of directors determines it is no longer in the best interest of the Wells
REIT to continue to qualify as a REIT
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and (2) there is an affirmative vote of the majority of shares entitled to
vote on such matter at a regular or special meeting of the shareholders of
the Wells REIT.
The ownership limit does not apply to an offeror which, in accordance
with applicable federal and state securities laws, makes a cash tender
offer, where at least 85% of the outstanding shares are duly tendered and
accepted pursuant to the cash tender offer. The ownership limit also does
not apply to the underwriter in a public offering of shares. In addition,
the ownership limit does not apply to a person or persons which the
directors so exempt from the ownership limit upon appropriate assurances
that our qualification as a REIT is not jeopardized.
Any person who owns 5% or more of the outstanding shares during any
taxable year will be asked to deliver a statement or affidavit setting
forth the number of shares beneficially owned, directly or indirectly.
Dividends
Dividends will be paid on a quarterly basis regardless of the
frequency with which such distributions are declared. Dividends will be
paid to investors who are shareholders as of the record dates selected by
the directors. We currently calculate our quarterly dividends based upon
daily record and dividend declaration dates so our investors will be
entitled to be paid dividends immediately upon their purchase of shares. We
then make quarterly dividend payments following the end of each calendar
quarter.
We are required to make distributions sufficient to satisfy the
requirements for qualification as a REIT for tax purposes. Generally,
income distributed as dividends will not be taxable to us under the
Internal Revenue Code if we distribute at least 95% of our taxable income
each year for years prior to 2001 and 90% of our REIT taxable income for
all future years beginning with the year 2001.
Dividends will be declared at the discretion of the board of
directors, in accordance with our earnings, cash flow and general financial
condition. The board's discretion will be directed, in substantial part,
by its obligation to cause us to comply with the REIT requirements.
Because we may receive income from interest or rents at various times
during our fiscal year, dividends may not reflect our income earned in that
particular distribution period but may be made in anticipation of cash flow
which we expect to receive during a later quarter and may be made in
advance of actual receipt of funds in an attempt to make dividends
relatively uniform. We may borrow money, issue new securities or sell
assets in order to make dividend distributions.
We are not prohibited from distributing our own securities in lieu of
making cash dividends to shareholders, provided that the securities
distributed to shareholders are readily marketable. Shareholders who
receive marketable securities in lieu of cash dividends may incur
transaction expenses in liquidating the securities.
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Dividend Reinvestment Plan
We currently have a dividend reinvestment plan available that allows
you to have your dividends otherwise distributable to you invested in
additional shares of the Wells REIT.
You may purchase shares under the dividend reinvestment plan for $10
per share until all of the shares registered as part of the most current
offering have been sold. After this time, we may purchase shares either
through purchases on the open market, if a market then exists, or through
an additional issuance of shares. In any case, the price per share will be
equal to the then-prevailing market price, which shall equal the price on
the securities exchange or over-the-counter market on which such shares are
listed at the date of purchase if such shares are then listed.
You may elect to participate in the dividend reinvestment plan by
completing the Subscription Agreement, the enrollment form or by other
written notice to the plan administrator. Participation in the plan will
begin with the next distribution made after receipt of your written notice.
We may terminate the dividend reinvestment plan for any reason at any time
upon 10 days' prior written notice to participants. Your participation in
the plan will also be terminated to the extent that a reinvestment of your
distributions in our shares would cause the percentage ownership limitation
contained in our articles of incorporation to be exceeded.
If you elect to participate in the dividend reinvestment plan and are
subject to federal income taxation, you will incur a tax liability for
dividends allocated to you even though you have elected not to receive the
dividends in cash but rather to have the dividends held pursuant to the
dividend reinvestment plan. Specifically, you will be treated as if you
have received the dividend from us in cash and then applied such dividend
to the purchase of additional shares. You will be taxed on the amount of
such dividend as ordinary income to the extent such dividend is from
current or accumulated earnings and profits, unless we have designated all
or a portion of the dividend as a capital gain dividend.
Share Redemption Program
Prior to the time that our shares are listed on a national securities
exchange, shareholders of the Wells REIT who have held their shares for at
least one year may receive the benefit of limited interim liquidity by
presenting for redemption all or any portion of their shares to us at any
time in accordance with the procedures outlined herein. At that time, we
may, subject to the conditions and limitations described below, redeem the
shares presented for redemption for cash to the extent that we have
sufficient funds available to us to fund such redemption.
If you have held your shares for the required one-year period, you may
redeem your shares for a purchase price equal to the lesser of (1) $10 per
share, or (2) the purchase price per share that you actually paid for your
shares of the Wells REIT. In the event that you are redeeming all of your
shares, shares purchased pursuant to our dividend reinvestment plan may be
excluded from the foregoing one-year holding period requirement, in the
discretion of the board of directors. In addition, the board of directors
reserves the right in its sole discretion at any time and from time to time
to (1) waive the one-year holding period in the event of the death or
bankruptcy of a shareholder or other exigent circumstances, (2) reject any
request for redemption, (3) change the purchase price for all redemptions,
or (4) otherwise amend the terms of our share redemption program.
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Redemption of shares, when requested, will be made quarterly on a
first-come, first-served basis. Subject to funds being available, we will
limit the number of shares redeemed pursuant to our share redemption
program as follows: (1) during any calendar year, we will not redeem in
excess of three percent (3%) of the weighted average number of shares
outstanding during the prior calendar year; and (2) funding for the
redemption of shares will come exclusively from the proceeds we receive
from the sale of shares under our dividend reinvestment plan such that in
no event shall the aggregate amount of redemptions under our share
redemption program exceed aggregate proceeds received from the sale of
shares pursuant to our dividend reinvestment plan. The board of directors,
in its sole discretion, may choose to terminate the share redemption
program or to reduce the number of shares purchased under the share
redemption program if it determines the funds otherwise available to fund
our share redemption program are needed for other purposes.
We cannot guarantee that the funds set aside for the share redemption
program will be sufficient to accommodate all requests made in any year.
If we do not have such funds available, at the time when redemption is
requested, you can (1) withdraw your request for redemption, or (2) ask
that we honor your request at such time, if any, when sufficient funds
become available. Such pending requests will be honored on a first-come,
first-served basis.
The share redemption program is only intended to provide interim
liquidity for shareholders until a secondary market develops for the
shares. No such market presently exists, and we cannot assure you that any
market for your shares will ever develop.
The shares we purchase under the share redemption program will be
cancelled, and will have the status of authorized, but unissued shares. We
will not reissue such shares unless they are first registered with the
Securities and Exchange Commission (Commission) under the Securities Act of
1933 and under appropriate state securities laws or otherwise issued in
compliance with such laws.
If we terminate, reduce the scope of or otherwise change the share
redemption program, we will send a letter to you informing you of the
changes and disclose the changes in reports filed with the Commission.
Restrictions on Roll-Up Transactions
In connection with any proposed transaction considered a "Roll-up
Transaction" involving the Wells REIT and the issuance of securities of an
entity (a Roll-up Entity) that would be created or would survive after the
successful completion of the Roll-up Transaction, an appraisal of all
properties shall be obtained from a competent independent appraiser. The
properties shall be appraised on a consistent basis, and the appraisal
shall be based on the evaluation of all relevant information and shall
indicate the value of the properties as of a date immediately prior to the
announcement of the proposed Roll-up Transaction. The appraisal shall
assume an orderly liquidation of properties over a 12-month period. The
terms of the engagement of the independent appraiser shall clearly state
that the engagement is for our benefit and the shareholders. A summary of
the appraisal, indicating all material assumptions underlying the
appraisal, shall be included in a report to shareholders in connection with
any proposed Roll-up Transaction.
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A "Roll-up Transaction" is a transaction involving the acquisition,
merger, conversion or consolidation, directly or indirectly, of the Wells
REIT and the issuance of securities of a Roll-up Entity. This term does
not include:
. a transaction involving our securities that have been for at
least 12 months listed on a national securities exchange or
included for quotation on Nasdaq; or
. a transaction involving the conversion to corporate, trust, or
association form of only the Wells REIT if, as a consequence of
the transaction, there will be no significant adverse change in
any of the following: shareholder voting rights; the term of our
existence; compensation to Wells Capital; or our investment
objectives.
In connection with a proposed Roll-up Transaction, the person
sponsoring the Roll-up Transaction must offer to shareholders who vote "no"
on the proposal the choice of:
(1) accepting the securities of a Roll-up Entity offered in the
proposed Roll-up Transaction; or
(2) one of the following:
(A) remaining as shareholders of the Wells REIT and preserving
their interests therein on the same terms and conditions as
existed previously, or
(B) receiving cash in an amount equal to the shareholder's pro
rata share of the appraised value of our net assets.
We are prohibited from participating in any proposed Roll-up
Transaction:
. which would result in the shareholders having democracy rights in
a Roll-up Entity that are less than those provided in our bylaws
and described elsewhere in this prospectus, including rights with
respect to the election and removal of directors, annual reports,
annual and special meetings, amendment of our articles of
incorporation, and dissolution of the Wells REIT;
. which includes provisions that would operate to materially impede
or frustrate the accumulation of shares by any purchaser of the
securities of the Roll-up Entity, except to the minimum extent
necessary to preserve the tax status of the Roll-up Entity, or
which would limit the ability of an investor to exercise the
voting rights of its securities of the Roll-up Entity on the
basis of the number of shares held by that investor;
. in which investor's rights to access of records of the Roll-up
Entity will be less than those provided in the section of this
prospectus entitled "Description of Shares -- Meetings and
Special Voting Requirements;" or
. in which any of the costs of the Roll-up Transaction would be
borne by us if the Roll-up Transaction is not approved by the
shareholders.
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Business Combinations
Under Maryland Corporation Law, business combinations between a
Maryland corporation and an interested shareholder or the interested
shareholder's affiliate are prohibited for five years after the most recent
date on which the shareholder becomes an interested shareholder. For this
purpose, the term "business combinations" includes mergers, consolidations,
share exchanges, asset transfers and issuances or reclassifications of
equity securities. An "interested shareholder" is defined for this purpose
as:
(1) any person who beneficially owns ten percent or more of the voting
power of the corporation's shares; or
(2) an affiliate or associate of the corporation who, at any time
within the two-year period prior to the date in question, was the
beneficial owner of ten percent or more of the voting power of the then
outstanding voting shares of the corporation.
After the five-year prohibition, any business combination between the
corporation and an interested shareholder generally must be recommended by
the board of directors of the corporation and approved by the affirmative
vote of at least:
(1) 80% of the votes entitled to be cast by holders of outstanding
voting shares of the corporation; and
(2) two-thirds of the votes entitled to be cast by holders of voting
shares of the corporation other than shares held by the interested
shareholder or its affiliate with whom the business combination is to be
effected, or held by an affiliate or associate of the interested
shareholder voting together as a single voting group.
These super-majority vote requirements do not apply if the
corporation's common shareholders receive a minimum price, as defined under
Maryland Corporation Law, for their shares in the form of cash or other
consideration in the same form as previously paid by the interested
shareholder for its shares. None of these provisions of the Maryland
Corporation Law will apply, however, to business combinations that are
approved or exempted by the board of directors of the corporation prior to
the time that the interested shareholder becomes an interested shareholder.
The business combination statute may discourage others from trying to
acquire control of us and increase the difficulty of consummating any
offer.
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Control Share Acquisitions
Maryland Corporation Law provides that control shares of a Maryland
corporation acquired in a control share acquisition have no voting rights
except to the extent approved by a vote of two-thirds of the votes entitled
to be cast on the matter. Shares owned by the acquiror, or by officers or
directors who are employees of the corporation are not entitled to vote on
the matter. As permitted by Maryland Corporation Law, we have provided in
our bylaws that the control share provisions of Maryland Corporation Law
will not apply to transactions involving the Wells REIT, but the board of
directors retains the discretion to change this provision in the future.
"Control shares" are voting shares which, if aggregated with all other
shares owned by the acquiror or with respect to which the acquiror has the
right to vote or to direct the voting of, other than solely by virtue of
revocable proxy, would entitle the acquiror to exercise voting power in
electing directors within one of the following ranges of voting powers:
. one-fifth or more but less than one-third;
. one-third or more but less than a majority; or
. a majority or more of all voting power.
Control shares do not include shares the acquiring person is then
entitled to vote as a result of having previously obtained shareholder
approval.
Except as otherwise specified in the statute, a "control share
acquisition" means the acquisition of control shares.
Once a person who has made or proposes to make a control share
acquisition has undertaken to pay expenses and has satisfied other required
conditions, the person may compel the board of directors to call a special
meeting of shareholders to be held within 50 days of demand to consider the
voting rights of the shares. If no request for a meeting is made, the
corporation may itself present the question at any shareholders meeting.
If voting rights are not approved for the control shares at the
meeting or if the acquiring person does not deliver an "acquiring person
statement" for the control shares as required by the statute, the
corporation may redeem any or all of the control shares for their fair
value, except for control shares for which voting rights have previously
been approved. Fair value is to be determined for this purpose without
regard to the absence of voting rights for the control shares, and is to be
determined as of the date of the last control share acquisition or of any
meeting of shareholders at which the voting rights for control shares are
considered and not approved.
If voting rights for control shares are approved at a shareholders
meeting and the acquiror becomes entitled to vote a majority of the shares
entitled to vote, all other shareholders may exercise appraisal rights.
The fair value of the shares as determined for purposes of these appraisal
rights may not be less than the highest price per share paid in the control
share acquisition. Some of the limitations and restrictions otherwise
applicable to the exercise of dissenters' rights do not apply in the
context of a control share acquisition.
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The control share acquisition statute does not apply to shares
acquired in a merger, consolidation or share exchange if the corporation is
a party to the transaction or to acquisitions approved or exempted by the
articles of incorporation or bylaws of the corporation.
Item 2. Exhibits
Below are the exhibits filed as part of this Registration Statement:
1. Amended and Restated Articles of Incorporation of Wells REIT dated July 1,
2000 (previously filed in and incorporated by reference to the Registrant's
Registration Statement on Form S-11, Commission File No. 333-44900, filed
on August 31, 2000)
2. Bylaws of Wells REIT (previously filed in and incorporated by reference to
Amendment No. 4 to the Registrant's Registration Statement on Form S-11,
Commission File No. 333-32099, filed on January 23, 1998)
3. Amendment No. 1 to Bylaws of Wells REIT (previously filed in and
incorporated by reference to Post-Effective Amendment No. 5 to the
Registrant's Registration Statement on Form S-11, Commission File No. 333-
32099, filed on April 15, 1999)
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this Amendment No. 1 to Form 8-A to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: October 10, 2000 WELLS REAL ESTATE INVESTMENT TRUST, INC.
(Registrant)
By: /s/ Leo F. Wells, III
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Leo F. Wells, III
President
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EXHIBIT INDEX
The following documents are filed as exhibits to this report. Those
exhibits previously filed and incorporated herein by reference are identified
below by an asterisk. For each exhibit identified by an asterisk, there is
shown below a description of the previous filing.
1.* Amended and Restated Articles of Incorporation of Wells REIT dated July 1,
2000 (previously filed in and incorporated by reference to the Registrant's
Registration Statement on Form S-11, Commission File No. 333-44900, filed
on August 31, 2000)
2.* Bylaws of Wells REIT (previously filed in and incorporated by reference to
Amendment No. 4 to the Registrant's Registration Statement on Form S-11,
Commission File No. 333-32099, filed on January 23, 1998)
3.* Amendment No. 1 to Bylaws of Wells REIT (previously filed in and
incorporated by reference to Post-Effective Amendment No. 5 to the
Registrant's Registration Statement on Form S-11, Commission File No. 333-
32099, filed on April 15, 1999)
