<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 1999
REGISTRATION NO. 333-81475
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMB PROPERTY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MARYLAND 94-3281941
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
505 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 394-9000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DAVID S. FRIES
CHIEF ADMINISTRATIVE OFFICER, MANAGING DIRECTOR AND GENERAL COUNSEL
AMB PROPERTY CORPORATION
505 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94111
(415) 394-9000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
JEFFREY T. PERO, ESQ.
LAURA L. GABRIEL, ESQ.
LATHAM & WATKINS
505 MONTGOMERY STREET, SUITE 1900
SAN FRANCISCO, CALIFORNIA 94111
(415) 391-0600
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement of the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT RESELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED JULY 13, 1999
PROSPECTUS
AMB PROPERTY CORPORATION
4,000,000 SHARES OF COMMON STOCK
$0.01 PAR VALUE PER SHARE
-------------------------
This prospectus relates to up to 4,000,000 shares of common stock that the
selling stockholders named in this prospectus may offer for sale from time to
time. We are registering the shares of common stock to provide the selling
stockholders with freely tradeable securities, but this registration does not
necessarily mean that the selling stockholders will offer or sell the shares.
We are filing the registration statement of which this prospectus is a part
pursuant to contractual obligations. We will not receive any proceeds from the
sale of the shares by the selling stockholders but we have agreed to pay certain
registration expenses.
To facilitate maintenance of our qualification as a real estate investment
trust for federal income tax purposes, subject to certain exceptions, we
prohibit the ownership, actually or constructively, by any single person of more
than 9.8% of the issued and outstanding shares of our common stock and more than
9.8% of the issued and outstanding shares of our Series A Preferred Stock. We
will also prohibit, subject to certain exceptions, the ownership, actually or
constructively, of any shares of our Series B Preferred Stock, any shares of our
Series C Preferred Stock and any shares of our Series D Preferred Stock by any
single person so that no such person, taking into account all of our stock so
owned by such person, may own in excess of 9.8% of our issued and outstanding
capital stock.
Our common stock is listed on the New York Stock Exchange under the symbol
"AMB." On July 12, 1999, the last reported sales price of our common stock on
the New York Stock Exchange was $23.00 per share.
INVESTING IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OF THESE SECURITIES OR DETERMINED THAT THIS PROSPECTUS
IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is , 1999
<PAGE> 3
Neither AMB Property Corporation nor the selling stockholders have
authorized any person to give any information or to make any representation not
contained or incorporated by reference in this prospectus. You must not rely
upon any information or representation not contained or incorporated by
reference in this prospectus as if we had authorized it. This prospectus is not
an offer to sell or the solicitation of an offer to buy any securities other
than the registered securities to which it relates and this prospectus is not an
offer to sell or the solicitation of an offer to buy securities in any
jurisdiction where, or to any person to whom, it is unlawful to make such offer
or solicitation. You should not assume that the information contained in this
prospectus is correct on any date after the date of this prospectus, even though
this prospectus is delivered or shares are sold pursuant to this prospectus on a
later date.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information......................... 1
Incorporation of Certain Documents by Reference............. 1
Forward-Looking Statements.................................. 2
Risk Factors................................................ 4
The Company................................................. 25
Description of Capital Stock................................ 28
Description of Certain Provisions of The Partnership
Agreement of the
Operating Partnership..................................... 46
Certain Provisions of Maryland Law and of AMB's Charter and
Bylaws.................................................... 59
Certain Federal Income Tax Considerations................... 63
ERISA Considerations........................................ 80
Selling Stockholders........................................ 84
Plan of Distribution........................................ 85
Legal Matters............................................... 85
Experts..................................................... 85
</TABLE>
AMB and its logo are registered service marks of AMB Property Corporation.
Strategic Alliance Programs(TM), Development Alliance Program(TM), UPREIT
Alliance Program(TM), Institutional Alliance Program(TM), Customer Alliance
Program(TM) and Management Alliance Program(TM) are registered trademarks of AMB
Property Corporation.
i
<PAGE> 4
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file with the SEC at the SEC's public reference rooms at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the SEC's regional offices at Seven World Trade Center, 13th Floor, New York,
New York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. The SEC also maintains a web site
that contains reports, proxy and information statements, and other information
regarding registrants that file electronically with the SEC
(http://www.sec.gov). You can inspect reports and other information we file at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
We have filed a registration statement of which this prospectus is a part
and related exhibits with the SEC under the Securities Act of 1933. The
registration statement contains additional information about us. You may inspect
the registration statement and exhibits without charge at the office of the SEC
at 450 Fifth Street, N.W., Washington, D.C. 20549, and you may obtain copies
from the SEC at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with the SEC, which means that we can disclose important information to you by
referring to those documents. The information incorporated by reference is an
important part of this prospectus. Any statement contained in a document which
is incorporated by reference in this prospectus is automatically updated and
superseded if information contained in this prospectus, or information that we
later file with the SEC, modifies or replaces this information. We incorporate
by reference the following documents we filed with the SEC:
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Report on Form 10-Q for the quarterly period ended March 31,
1999;
- the reports, financial statements and pro forma financial statements for
the Amberjack Portfolio, the Willow Lake Portfolio, the Willow Park
Portfolio, National Distribution Portfolio and the Mahwah Portfolio from
our Form 8-K filed on December 2, 1998;
- Current Report on Form 8-K filed on January 7, 1999;
- Current Report on Form 8-K filed on April 8, 1999;
- Amendment No. 1 to Current Report on Form 8-K/A filed on June 9, 1999;
- Current Report on Form 8-K filed on June 15, 1999;
- Current Report on Form 8-K filed on July 1, 1999;
- the reports and financial statements for the AMB Contributed Properties,
the Boston Industrial Portfolio, the Jamesburg Property, Orlando Central
Park, Totem Lake Malls, Dallas Warehouse Portfolio (Garland Industrial
Portfolio), Twin Cities Office/Showroom Portfolio (Minnetonka Industrial
Portfolio), Crysen Corridor
1
<PAGE> 5
Warehouse, Cabot Industrial Portfolio, Cabot Business Park, Manhattan
Village Shopping Center, Weslayan Plaza and Silicon Valley R&D Portfolio
and the pro forma financial statements from our Registration Statement on
Form S-11 (No. 333-58107);
- the description of our common stock contained in our Registration
Statement on Form 8-A filed with the SEC on October 28, 1997; and
- all documents filed by us with the SEC pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
prospectus and prior to the termination of the offering.
To receive a free copy of any of the documents incorporated by reference in
this prospectus (other than exhibits, unless they are specifically incorporated
by reference in the documents), call or write AMB Property Corporation, 505
Montgomery Street, San Francisco, CA, Attention: Secretary (415/394-9000).
Unless we indicate otherwise or unless the context requires otherwise, all
references in this prospectus to "AMB" mean AMB Property Corporation and all
references to the "operating partnership" mean AMB Property, L.P. Unless we
indicate otherwise or unless the context requires otherwise, all references in
this prospectus to "we," "us," or "our" mean AMB and its subsidiaries, including
the operating partnership and its subsidiaries and, with respect to the period
prior to AMB's initial public offering, AMB's predecessor, AMB Institutional
Realty Advisors, Inc., and certain real estate investment funds, trusts,
corporations and partnerships that prior to AMB's initial public offering owned
properties that they contributed to the operating partnership. When we refer to
AMB's "charter" we mean AMB's articles of incorporation, as amended and
supplemented from time to time.
FORWARD-LOOKING STATEMENTS
Some of the information included and incorporated by reference in this
prospectus contains forward-looking statements, such as those pertaining to our
(including certain of our subsidiaries') capital resources, portfolio
performance and results of operations. Likewise, the pro forma financial
statements and other pro forma information incorporated by reference in this
prospectus also contain forward-looking statements. In addition, all statements
regarding anticipated growth in our funds from operations and anticipated market
conditions, demographics and results of operations are forward-looking
statements. Forward-looking statements involve numerous risks and uncertainties
and you should not rely on them as predictions of future events. The events or
circumstances reflected in forward-looking statements might not occur. You can
identify forward-looking statements by the use of forward-looking terminology
such as "believes," "expects," "may," "will," "should," "seeks,"
"approximately," "intends," "plans," "pro forma," "estimates" or "anticipates"
or the negative of these words and phrases or similar words or phrases. You can
also identify forward-looking statements by discussions of strategy, plans or
intentions. Forward-looking statements are necessarily dependent on assumptions,
data or methods that may be incorrect or imprecise and we may not be able to
realize them. The following factors, among others, could cause actual results
and future events to differ materially from those set forth or contemplated in
the forward-looking statements: defaults on or non-renewal of leases by tenants,
increased interest rates and operating costs, our failure to obtain necessary
outside financing, difficulties in identifying properties to acquire and in
effecting acquisitions, our failure to successfully integrate acquired
properties and
2
<PAGE> 6
operations, our failure to dispose of properties we have contracted to sell or
to timely reinvest proceeds from any such dispositions, risks and uncertainties
affecting property development and construction (including construction delays,
cost overruns, our inability to obtain necessary permits and public opposition
to these activities), AMB's failure to qualify and maintain its status as a real
estate investment trust under the Internal Revenue Code, environmental
uncertainties, risks related to natural disasters, financial market
fluctuations, changes in real estate and zoning laws and increases in real
property tax rates. Our success also depends upon economic trends generally,
including interest rates, income tax laws, governmental regulation, legislation,
population changes and certain other matters discussed below under "Risk
Factors." We caution you not to place undue reliance on forward-looking
statements, which reflect our analysis only and speak only as of the date of
this prospectus or the dates indicated in the statements.
3
<PAGE> 7
RISK FACTORS
Before you invest in AMB's common stock, you should be aware that
purchasing or owning AMB's common stock involves various risks, including those
described below. You should consider carefully these risk factors together with
all of the other information included in this prospectus before you decide to
purchase shares of AMB's common stock.
GENERAL REAL ESTATE RISKS
THERE ARE FACTORS OUTSIDE OF OUR CONTROL THAT AFFECT THE PERFORMANCE AND VALUE
OF OUR PROPERTIES
Real property investments are subject to varying degrees of risk. The
yields available from equity investments in real estate depend on the amount of
income earned and capital appreciation generated by the related properties as
well as the expenses incurred in connection with the properties. If our
properties do not generate income sufficient to meet operating expenses,
including debt service and capital expenditures, AMB's ability to pay
distributions to holders of its common stock could be adversely affected. Income
from, and the value of, our properties may be adversely affected by the general
economic climate, local conditions such as oversupply of industrial or retail
space or a reduction in demand for industrial or retail space, the
attractiveness of our properties to potential tenants, competition from other
properties, our ability to provide adequate maintenance and insurance and an
increase in operating costs. In addition, revenues from properties and real
estate values are also affected by factors such as the cost of compliance with
regulations, the potential for liability under applicable laws (including
changes in tax laws), interest rate levels and the availability of financing.
Our income would be adversely affected if a significant number of tenants were
unable to pay rent or if we were unable to rent our industrial or retail space
on favorable terms. Certain significant expenditures associated with an
investment in real estate (such as mortgage payments, real estate taxes and
maintenance costs) generally do not decline when circumstances cause a reduction
in income from the property.
WE MAY BE UNABLE TO RENEW LEASES OR RELET SPACE AS LEASES EXPIRE
We are subject to the risks that leases may not be renewed, space may not
be relet, or the terms of renewal or reletting (including the cost of required
renovations) may be less favorable than current lease terms. Leases on a total
of approximately 28.4% of the leased square footage of our properties as of
March 31, 1999 will expire on or prior to December 31, 2000, with leases on
10.7% of the leased square footage of our properties as of March 31, 1999
expiring during the nine months ending December 31, 1999. In addition, numerous
properties compete with our properties in attracting tenants to lease space,
particularly with respect to retail centers. The number of competitive
commercial properties in a particular area could have a material adverse effect
on our ability to lease space in our properties and on the rents that we are
able to charge. Our financial condition, results of operations, cash flow and
AMB's ability to pay distributions on, and the market price of, its common stock
could be adversely affected if we are unable to promptly relet or renew the
leases for all or a substantial portion of expiring leases, if the rental rates
upon renewal or reletting is significantly lower than expected, or if our
reserves for these purposes prove inadequate.
4
<PAGE> 8
REAL ESTATE INVESTMENTS ARE ILLIQUID
Because real estate investments are relatively illiquid, our ability to
vary our portfolio promptly in response to economic or other conditions is
limited. The limitations in the Internal Revenue Code and related regulations on
a real estate investment trust holding property for sale may affect our ability
to sell properties without adversely affecting distributions to AMB's
stockholders. The relative illiquidity of our holdings, Internal Revenue Code
prohibitions and related regulations could impede our ability to respond to
adverse changes in the performance of our investments and could adversely affect
our financial condition, results of operations and cash flow and AMB's ability
to pay distributions on, and the market price of, its common stock.
A SIGNIFICANT NUMBER OF OUR PROPERTIES ARE LOCATED IN CALIFORNIA
Our properties located in California as of March 31, 1999 represented
approximately 21.3% of the aggregate square footage of our properties as of
March 31, 1999 and approximately 28.5% of our annualized base rent. Annualized
base rent means the monthly contractual amount under existing leases at March
31, 1999, multiplied by 12. This amount excludes expense reimbursements and
rental abatements. Our revenue from, and the value of, our properties located in
California may be affected by a number of factors, including local real estate
conditions (such as oversupply of or reduced demand for commercial properties)
and the local economic climate. Business layoffs, downsizing, industry
slowdowns, changing demographics and other factors may adversely impact the
local economic climate. A downturn in either the California economy or in
California real estate conditions could adversely affect our financial
condition, results of operations and cash flow and AMB's ability to pay
distributions on, and the market price of, its common stock. Certain of our
properties are also subject to possible loss from seismic activity. On June 15,
1999, we sold five of our properties located in California to BPP Retail. In the
event that the remaining transactions with BPP Retail, LLC (as discussed below
under "The Company -- Recent Developments -- BPP Retail and Burnham Pacific
Transactions") are fully consummated, we will dispose of all but three of our
retail centers located in California and, thereafter, 20.9% of our properties
based on aggregate square footage and 28.3% of our properties based on
annualized base rent will be located in California.
OUR PROPERTIES ARE CURRENTLY CONCENTRATED IN THE INDUSTRIAL AND RETAIL SECTORS
Our properties are currently concentrated predominantly in the industrial
and retail commercial real estate sectors. However, in the event that the
disposition of retail properties to BPP Retail (as discussed below under "The
Company -- Recent Developments -- BPP Retail and Burnham Pacific Transactions")
are fully consummated, our properties will be concentrated predominately in the
industrial real estate sector. Our concentration in certain property types may
expose us to the risk of economic downturns in these sectors to a greater extent
than if our portfolio also included other property types. In the event that the
sale of the retail properties referred to above are consummated, our exposure to
the risk of economic downturns in the industrial real estate sector will be
greater. As a result of such concentration, economic downturns in these sectors
could have an adverse effect on our financial condition, results of operations
and cash flow and AMB's ability to pay distributions on, and the market price
of, its common stock.
5
<PAGE> 9
SOME POTENTIAL LOSSES ARE NOT COVERED BY INSURANCE
We carry comprehensive liability, fire, extended coverage and rental loss
insurance covering all of our properties, with policy specifications and insured
limits which we believe are adequate and appropriate under the circumstances
given relative risk of loss, the cost of such coverage and industry practice.
There are, however, certain losses that are not generally insured because it is
not economically feasible to insure against them, including losses due to riots
or acts of war. Certain losses such as losses due to floods or seismic activity
may be insured subject to certain limitations including large deductibles or co-
payments and policy limits. If an uninsured loss or a loss in excess of insured
limits occurs with respect to one or more of our properties, we could lose the
capital we invested in the properties, as well as the anticipated future revenue
from the properties and, in the case of debt which is with recourse to us, we
would remain obligated for any mortgage debt or other financial obligations
related to the properties. Moreover, as the general partner of the operating
partnership, AMB will generally be liable for all of the operating partnership's
unsatisfied obligations other than non-recourse obligations. Any such liability
could adversely affect our financial condition, results of operations and cash
flow and AMB's ability to pay distributions on, and the market price of, its
common stock.
A number of our properties are located in areas that are known to be
subject to earthquake activity, including California where, as of March 31,
1999, 154 industrial buildings aggregating 12.2 million rentable square feet
(representing 18.4% of our properties based on aggregate square footage and
20.6% based on annualized base rent) and 11 retail centers aggregating 1.9
million rentable square feet (representing 2.9% of our properties based on
aggregate square footage and 7.8% based on annualized base rent) are located. In
the event that all of the transactions with BPP Retail (as discussed below under
"The Company -- Recent Developments -- BPP Retail and Burnham Pacific
Transactions") are fully consummated, we will dispose of all but three of our
retail centers located in California and, thereafter, 20.9% of our properties
based on aggregate square footage and 28.3% of our properties based on
annualized base rent will be located in California. We carry replacement cost
earthquake insurance on all of our properties located in areas historically
subject to seismic activity, subject to coverage limitations and deductibles
which we believe are commercially reasonable. This insurance coverage also
applies to the properties managed by AMB Investment Management, Inc., with a
single aggregate policy limit and deductible applicable to those properties and
our properties. The operating partnership owns 100% of the non-voting preferred
stock of AMB Investment Management, Inc. See "-- AMB Investment Management, Inc.
and Headlands Realty Corporation." Through an annual analysis prepared by
outside consultants, we evaluate our earthquake insurance coverage in light of
current industry practice and determine the appropriate amount of earthquake
insurance to carry. We may incur material losses in excess of insurance proceeds
and we may not be able to continue to obtain insurance at commercially
reasonable rates.
WE ARE SUBJECT TO RISKS AND LIABILITIES IN CONNECTION WITH PROPERTIES OWNED
THROUGH JOINT VENTURES, LIMITED LIABILITY COMPANIES AND PARTNERSHIPS
As of March 31, 1999, we had ownership interests in 18 joint ventures,
limited liability companies or partnerships with third parties, as well as an
interest in one unconsolidated entity. As of March 31, 1999, we owned 21 of our
properties through these entities. We may make additional investments through
these ventures in the future and presently plan to do so with clients of AMB
Investment Management, Inc. and certain
6
<PAGE> 10
Development Alliance Partners, who share certain approval rights over major
decisions. Partnership, limited liability company or joint venture investments
may involve risks such as the following:
- our partners, co-members or joint venturers might become bankrupt (in
which event we and any other remaining general partners, members or joint
venturers would generally remain liable for the liabilities of the
partnership, limited liability company or joint venture);
- our partners, co-members or joint venturers might at any time have
economic or other business interests or goals which are inconsistent with
our business interests or goals;
- our partners, co-members or joint venturers may be in a position to take
action contrary to our instructions, requests, policies or objectives,
including our policy with respect to maintaining AMB's qualification as a
real estate investment trust; and
- agreements governing joint ventures, limited liability companies and
partnerships often contain restrictions on the transfer of a joint
venturer's, member's or partner's interest or "buy-sell" or other
provisions which may result in a purchase or sale of the interest at a
disadvantageous time or on disadvantageous terms.
We will, however, generally seek to maintain sufficient control of our
partnerships, limited liability companies and joint ventures to permit us to
achieve our business objectives. Our organizational documents do not limit the
amount of available funds that we may invest in partnerships, limited liability
companies or joint ventures. The occurrence of one or more of the events
described above could have an adverse effect on our financial condition, results
of operations and cash flow and AMB's ability to pay distributions on, and the
market price of, its common stock.
WE MAY BE UNABLE TO CONSUMMATE ACQUISITIONS ON ADVANTAGEOUS TERMS
We intend to continue to acquire industrial and, to a lesser extent,
certain value-added retail properties. Acquisitions of industrial and retail
properties entail risks that investments will fail to perform in accordance with
expectations. Estimates of the costs of improvements necessary for us to bring
an acquired property up to market standards may prove inaccurate. In addition,
there are general investment risks associated with any new real estate
investment. Further, we anticipate significant competition for attractive
investment opportunities from other major real estate investors with significant
capital including both publicly traded real estate investment trusts and private
institutional investment funds. We expect that future acquisitions will be
financed through a combination of borrowings under our credit facility, proceeds
from equity or debt offerings by AMB or the operating partnership (including
issuances of limited partnership units), and proceeds from the transactions
pending with BPP Retail (as discussed below under "The Company -- Recent
Developments -- BPP Retail and Burnham Pacific Transactions"), which could have
an adverse effect on our cash flow. We may not be able to acquire additional
properties. Our inability to finance any future acquisitions on favorable terms
or the failure of acquisitions to conform with our expectations or investment
criteria, or our failure to timely reinvest the proceeds from the transactions
with BPP Retail could adversely affect our financial condition, results of
operations and cash flow and AMB's ability to pay distributions on, and the
market price of, its common stock.
7
<PAGE> 11
WE MAY BE UNABLE TO COMPLETE RENOVATION AND DEVELOPMENT ON ADVANTAGEOUS TERMS
The real estate development business, including the renovation and
rehabilitation of existing properties, involves significant risks. These risks
include the following:
- we may not be able to obtain financing on favorable terms for development
projects and we may not complete construction on schedule or within
budget, resulting in increased debt service expense and construction
costs and delays in leasing such properties and generating cash flow;
- we may not be able to obtain, or we may experience delays in obtaining,
all necessary zoning, land-use, building, occupancy and other required
governmental permits and authorizations;
- new or renovated properties may perform below anticipated levels,
producing cash flow below budgeted amounts;
- substantial renovation as well as new development activities, regardless
of whether or not they are ultimately successful, typically require a
substantial portion of management's time and attention which could divert
management's time from our day-to-day operations; and
- activities that we finance through construction loans involve the risk
that, upon completion of construction, we may not be able to obtain
permanent financing or we may not be able to obtain permanent financing
on advantageous terms.
These risks could have an adverse effect on our financial condition,
results of operations and cash flow and AMB's ability to pay distributions on,
and the market price of, its common stock.
WE COULD INCUR MORE DEBT
We operate with a policy of incurring debt, either directly or through our
subsidiaries, only if upon such incurrence our debt-to-total market
capitalization ratio would be approximately 45% or less. The aggregate amount of
indebtedness that we may incur under our policy varies directly with the
valuation of AMB's capital stock and the number of shares of capital stock
outstanding. Accordingly, we would be able to incur additional indebtedness
under our policy as a result of increases in the market price per share of AMB's
common stock or other outstanding classes of capital stock, and future issuance
of shares of AMB's capital stock. In spite of this policy, our organizational
documents do not contain any limitation on the amount of indebtedness that we
may incur. Accordingly, AMB's board of directors could alter or eliminate this
policy and would do so, for example, if it were necessary for AMB to continue to
qualify as a real estate investment trust. If we change this policy, we could
become more highly leveraged, resulting in an increase in debt service that
could adversely affect our financial condition, results of operations and cash
flow and AMB's ability to pay distributions on, and the market price of, its
common stock.
8
<PAGE> 12
DEBT FINANCING
SCHEDULED DEBT PAYMENTS COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION
We are subject to risks normally associated with debt financing, including
the risks that cash flow will be insufficient to make distributions to AMB's
stockholders, that we will be unable to refinance existing indebtedness on our
properties (which in all cases will not have been fully amortized at maturity)
and that the terms of refinancing will not be as favorable as the terms of
existing indebtedness.
As of May 31, 1999, we had total debt outstanding of approximately $1.6
billion including:
- approximately $753.0 million of secured indebtedness (not including
unamortized debt premiums) with an average maturity of seven years and a
weighted average interest rate of 7.9%;
- approximately $353.0 million outstanding under our unsecured $500 million
credit facility with a maturity date of November 2000 and a weighted
average interest rate of 6.53%; and
- $400.0 million aggregate principal amount of unsecured senior debt
securities with maturities in June 2008, 2015 and 2018 and a weighted
average interest rate of 7.18%.
In the event that the transactions with BPP Retail with respect to 25 of
our retail properties (as discussed below under "The Company -- Recent
Developments -- BPP Retail and Burnham Pacific Transactions") are fully
consummated, we currently anticipate that we will repay approximately $60.9
million of secured indebtedness relating to the properties divested (including
approximately $5.3 million of prepayment penalties) and make payments under our
unsecured credit facility in the amount of approximately $236.9 million.
AMB is a guarantor of the operating partnership's obligations with respect
to the senior debt securities referenced above. If we are unable to refinance or
extend principal payments due at maturity or pay them with proceeds of other
capital transactions, we expect that our cash flow will not be sufficient in all
years to pay distributions to AMB's stockholders and to repay all such maturing
debt. Furthermore, if prevailing interest rates or other factors at the time of
refinancing (such as the reluctance of lenders to make commercial real estate
loans) result in higher interest rates upon refinancing, the interest expense
relating to that refinanced indebtedness would increase. This increased interest
expense would adversely affect our financial condition, results of operations
and cash flow and AMB's ability to pay distributions on, and the market price
of, its common stock. In addition, if we mortgage one or more of our properties
to secure payment of indebtedness and we are unable to meet mortgage payments,
the property could be foreclosed upon or transferred to the mortgagee with a
consequent loss of income and asset value. A foreclosure on one or more of our
properties could adversely affect our financial condition, results of operations
and cash flow and AMB's ability to pay distributions on, and the market price
of, its common stock.
RISING INTEREST RATES COULD ADVERSELY AFFECT OUR CASH FLOW
As of May 31, 1999, we had $353.0 million outstanding under our credit
facility. In addition, we may incur other variable rate indebtedness in the
future. Increases in interest
9
<PAGE> 13
rates on this indebtedness could increase our interest expense, which would
adversely affect our financial condition, results of operations and cash flow
and AMB's ability to pay distributions on, and the market price of, its common
stock. Accordingly, we may in the future engage in transactions to limit our
exposure to rising interest rates.
WE ARE DEPENDENT ON EXTERNAL SOURCES OF CAPITAL
In order to qualify as a real estate investment trust under the Internal
Revenue Code, AMB is required each year to distribute to its stockholders at
least 95% of its real estate investment trust taxable income (determined without
regard to the dividends-paid deduction and by excluding any net capital gain).
See "Certain Federal Income Tax Considerations -- Taxation of AMB -- Annual
Distribution Requirements." Because of this distribution requirement, we may not
be able to fund all future capital needs, including capital needs in connection
with acquisitions, from cash retained from operations. As a result, to fund
capital needs, we rely on third-party sources of capital, which we may not be
able to obtain on favorable terms or at all. Our access to third-party sources
of capital depends upon a number of factors, including general market conditions
and the market's perception of our growth potential and our current and
potential future earnings and cash distributions and the market price of the
shares of AMB's capital stock. Additional debt financing may substantially
increase our leverage.
WE COULD DEFAULT ON CROSS-COLLATERALIZED AND CROSS-DEFAULTED DEBT
As of March 31, 1999, we had 19 non-recourse secured loans which are cross-
collateralized by five pools consisting of 22 properties. As of March 31, 1999,
we had $248.1 million (not including unamortized debt premium) outstanding on
these loans. In the event that all of the transactions with BPP Retail (as
discussed under "The Company -- Recent Developments -- BPP Retail and Burnham
Pacific Transactions") are fully consummated, we currently anticipate the
repayment of six loans aggregating approximately $55.5 million, which are
secured by seven properties. If we default on any of these loans, we will be
required to repay the aggregate of all indebtedness, together with applicable
prepayment charges, to avoid foreclosure on all the cross-collateralized
properties within the applicable pool. Foreclosure on our properties, or our
inability to refinance our loans on favorable terms, could adversely impact our
financial condition, results of operations and cash flow and AMB's ability to
pay distributions on, and the market price of, its common stock. In addition,
our credit facilities and the senior debt securities of the operating
partnership contain certain cross-default provisions which are triggered in the
event that our other material indebtedness is in default. These cross-default
provisions may require us to repay or restructure the credit facilities and the
senior debt securities in addition to any mortgage or other debt which is in
default, which could adversely affect our financial condition, results of
operations and cash flow and AMB's ability to pay distributions on, and the
market price of, its common stock.
10
<PAGE> 14
CONTINGENT OR UNKNOWN LIABILITIES COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION
Our predecessors have been in existence for varying lengths of time up to
15 years. At the time of our formation we acquired the assets of these entities
subject to all of their potential existing liabilities. There may be current
liabilities or future liabilities arising from prior activities that we are not
aware of and therefore are not disclosed in this prospectus. We assumed these
liabilities as the surviving entity in the various merger and contribution
transactions that occurred at the time of our formation. Existing liabilities
for indebtedness generally were taken into account in connection with the
allocation of the operating partnership's limited partnership units and/or
shares of AMB's common stock in the formation transactions, but no other
liabilities were taken into account for these purposes. We do not have recourse
against our predecessors or any of their respective stockholders or partners or
against any individual account investors with respect to any unknown
liabilities. Unknown liabilities might include the following:
- liabilities for clean-up or remediation of undisclosed environmental
conditions;
- claims of tenants, vendors or other persons dealing with our predecessors
prior to the formation transactions that had not been asserted prior to
the formation transactions;
- accrued but unpaid liabilities incurred in the ordinary course of
business;
- tax liabilities; and
- claims for indemnification by the officers and directors of our
predecessors and others indemnified by these entities.
Certain tenants may claim that the formation transactions gave rise to a
right to purchase the premises that they occupy. We do not believe any such
claims would be material. See "-- Government Regulations -- We Could Encounter
Costly Environmental Problems" below regarding the possibility of undisclosed
environmental conditions potentially affecting the value of our properties.
Undisclosed material liabilities in connection with the acquisition of
properties, entities and interests in properties or entities could adversely
affect our financial condition, results of operations and cash flow and AMB's
ability to pay distributions on, and the market price of, its common stock.
FAILURE TO CONSUMMATE THE TRANSACTIONS WITH BPP RETAIL AND BURNHAM PACIFIC
On March 9, 1999, the operating partnership signed a series of definitive
agreements with BPP Retail, a co-investment entity between Burnham Pacific and
the California Public Employees' Retirement System, pursuant to which, if fully
consummated, BPP Retail will acquire up to 28 retail shopping centers, totaling
approximately 5.1 million square feet, for an aggregate price of $663.4 million.
The sale of five of the properties is subject to the consent of our joint
venture partners. One of our joint venture partners who holds an interest in
three of the properties has indicated that it will not consent to the sale of
these properties at this time. As a result, the sale price with respect to the
25 remaining properties, totaling approximately 4.3 million square feet, is
approximately $560.4 million. We intend to dispose of these three properties or
our interests in the joint ventures through which we hold the properties.
11
<PAGE> 15
Pursuant to the agreements, BPP Retail will acquire the 25 centers in
separate transactions. Under the agreements, the operating partnership has the
right to extend the closing dates for a period of up to either 20 or 50 days.
The operating partnership has exercised this right with respect to the first
closing, which occurred on June 15, 1999. Pursuant to the first closing, BPP
Retail acquired nine retail shopping centers, totaling approximately 1.4 million
square feet, for an aggregate price of approximately $207.4 million. We intend
to use the proceeds from the first closing to pay approximately $2.7 million in
transaction expenses, to repay secured debt related to the properties of
approximately $30.1 million (including prepayment penalties of approximately
$3.3 million), to pay approximately $103.5 million in partial repayment of
amounts outstanding under our unsecured credit facility, for potential
acquisitions and for general corporate purposes. We currently expect the second
and third closings to occur on or about August 4, 1999 and December 1, 1999.
In addition, the operating partnership entered into a definitive agreement,
subject to a financing condition, with Burnham Pacific, pursuant to which, if
fully consummated, Burnham Pacific would acquire up to six additional retail
centers, totaling approximately 1.5 million square feet, for approximately
$284.4 million. On June 30, 1999, this agreement was terminated pursuant to its
terms as a result of Burnham Pacific's decision not to waive the financing
condition. We currently intend to dispose of these six retail properties, either
on an individual or portfolio basis.
Although none of the transactions has a discretionary due diligence period,
all of the transactions are subject to certain customary closing conditions,
which are generally applied on a property-by-property basis. Burnham Pacific has
announced that it has received and is reviewing a merger proposal. We do not
believe that the contractual obligations of BPP Retail with respect to the
purchase of the retail centers will be affected by any resulting merger. BPP
Retail has posted certain initial deposits aggregating $25 million on the
transactions, approximately $3.9 million of which was refunded in connection
with the three joint venture properties for which our joint venture partner's
consent was not obtained. BPP Retail's liability in the event of its default
under a definitive agreement is limited to its deposit. We intend to use the
proceeds of approximately $353.0 million from the disposition of the remaining
16 retail centers to BPP Retail in the second and third closings to pay
approximately $4.8 million in transaction expenses, to repay secured debt
related to the properties divested of approximately $30.8 million (including
prepayment penalties of approximately $2.0 million), to make payments under our
unsecured credit facility in the amount of approximately $133.4 million, for
potential acquisitions and for general corporate purposes. Although we believe
that the transactions with BPP Retail are probable, they might not close as
scheduled or close at all, and it is possible that the transactions may close
with respect to just a portion of the properties currently subject to the
agreements. In the event that one or more of the transactions fail to close, or
a closing is significantly delayed, net proceeds from divestitures of properties
will not be available to the same extent to fund our acquisitions and
developments. Any failure or delay in any of the closings may also make us
unable to repay certain of our indebtedness with the net proceeds as we
currently intend and could require us to borrow additional funds or seek other
forms of financing.
12
<PAGE> 16
CONFLICTS OF INTEREST
SOME OF OUR EXECUTIVE OFFICERS ARE INVOLVED IN OTHER REAL ESTATE ACTIVITIES AND
INVESTMENTS
Some of our executive officers own interests in real estate-related
businesses and investments. These interests include minority ownership of
Institutional Housing Partners, a residential housing finance company, and
ownership of AMB Development, Inc. and AMB Development, L.P., developers which
own property that we believe is not suitable for ownership by us. AMB
Development, Inc. and AMB Development, L.P. have agreed not to initiate any new
development projects following AMB's initial public offering in November 1997.
These entities have also agreed that they will not make any further investments
in industrial or retail properties other than those currently under development
at the time of AMB's initial public offering. AMB Institutional Housing
Partners, AMB Development, Inc. and AMB Development, L.P. continue to use the
name "AMB" pursuant to royalty-free license arrangements. The continued
involvement in other real estate-related activities by some of our executive
officers and directors could divert management's attention from our day-to-day
operations. Most of our executive officers have entered into non-competition
agreements with us pursuant to which they have agreed not to engage in any
activities, directly or indirectly, in respect of commercial real estate, and
not to make any investment in respect of industrial or retail real estate, other
than through ownership of not more than 5% of the outstanding shares of a public
company engaged in such activities or through the existing investments referred
to in this prospectus. State law may limit our ability to enforce these
agreements.
We could also, in the future, subject to the unanimous approval of the
disinterested members of the board of directors with respect to such
transaction, acquire property from executive officers, enter into leases with
executive officers, and/or engage in other related activities in which the
interests pursued by the executive officers may not be in the best interests of
AMB's stockholders.
CERTAIN OF OUR EXECUTIVE OFFICERS AND DIRECTORS MAY HAVE CONFLICTS OF INTEREST
WITH US IN CONNECTION WITH OTHER PROPERTIES THAT THEY OWN OR CONTROL
As of May 31, 1999, AMB Development, L.P. owns interests in 11 retail
development projects in the U.S., 10 of which consist of a single free-standing
Walgreens drugstore and one of which consists of a free-standing Walgreens
drugstore, a ground lease to McDonald's and a 14,000 square foot retail center.
In addition, Messrs. Abbey, Moghadam and Burke, each a founder and director, own
less than 1% interests in two partnerships which own office buildings in various
markets; these interests have negligible value. Luis A. Belmonte, an executive
officer, owns less than a 10% interest, representing an estimated value of
$75,000, in a limited partnership which owns an office building located in
Oakland, California.
In addition, several of our executive officers individually own:
- less than 1% interests in the stocks of certain publicly-traded real
estate investment trusts;
- certain interests in and rights to developed and undeveloped real
property located outside the United States;
13
<PAGE> 17
- certain passive interests, that we do not believe are material, in real
estate businesses in which such persons were previously employed; and
- certain other de minimis holdings in equity securities of real estate
companies.
Thomas W. Tusher, a member of AMB's board of directors, is a limited
partner in a partnership in which Messrs. Abbey, Moghadam and Burke are general
partners and which owns a 75% interest in an office building. Mr. Tusher owns a
20% interest in the partnership, valued as of May 31, 1999 at approximately $1.2
million. Messrs.
Abbey, Moghadam and Burke each have an approximately 26.7% interest in the
partnership, each valued as of May 31, 1999 at approximately $1.6 million.
We believe that the properties and activities set forth above generally do
not directly compete with any of our properties. However, it is possible that a
property in which an executive officer or director, or an affiliate of an
executive officer or director, has an interest may compete with us in the future
if we were to invest in a property similar in type and in close proximity to
that property. In addition, the continued involvement by our executive officers
and directors in these properties could divert management's attention from our
day-to-day operations. Our policy prohibits us from acquiring any properties
from our executive officers or their affiliates without the approval of the
disinterested members of AMB's board of directors with respect to that
transaction.
AMB'S ROLE AS GENERAL PARTNER OF THE OPERATING PARTNERSHIP MAY CONFLICT WITH THE
INTERESTS OF STOCKHOLDERS
As the general partner of the operating partnership, AMB has fiduciary
obligations to the operating partnership's limited partners, the discharge of
which may conflict with the interests of AMB's stockholders. In addition, those
persons holding limited partnership units will have the right to vote as a class
on certain amendments to the partnership agreement of the operating partnership
and individually to approve certain amendments that would adversely affect their
rights. The limited partners may exercise these voting rights in a manner that
conflicts with the interests of AMB's stockholders. In addition, under the terms
of the operating partnership's partnership agreement, holders of limited
partnership units will have certain approval rights with respect to certain
transactions that affect all stockholders but which they may not exercise in a
manner which reflects the interests of all stockholders. See "Description of
Certain Provisions of the Partnership Agreement of the Operating
Partnership -- Removal of the General Partner; Transferability of AMB's
Interests; Treatment of Limited Partnership Units in Significant Transactions."
AMB'S DIRECTORS, EXECUTIVE OFFICERS AND SIGNIFICANT STOCKHOLDERS COULD ACT IN A
MANNER THAT IS NOT IN THE BEST INTEREST OF ALL STOCKHOLDERS
As of June 21, 1999, AMB's three largest stockholders, Cohen & Steers
Capital Management, Inc. (with respect to various client accounts for which
Cohen & Steers Capital Management, Inc. serves as investment advisor), Southern
Company Services, Inc. and Ameritech Pension Trust beneficially owned
approximately 20.2% of AMB's outstanding common stock. In addition, our
executive officers and directors beneficially owned approximately 5.5% of AMB's
outstanding common stock as of the same date, and will have influence on our
management and operation and, as stockholders, will have influence on the
outcome of any matters submitted to a vote of AMB's stockholders. This influence
might be exercised in a manner that is inconsistent with the interests of other
14
<PAGE> 18
stockholders. Although there is no understanding or arrangement for these
directors, officers and stockholders and their affiliates to act in concert,
these parties would be in a position to exercise significant influence over our
affairs if they choose to do so.
WE COULD SUFFER LOSSES IF WE FAIL TO ENFORCE THE TERMS OF CERTAIN AGREEMENTS
As holders of shares of AMB's common stock and, potentially, performance
units (as described under "Description of Certain Provisions of the Partnership
Agreement of the Operating Partnership -- Performance Units"), certain of AMB's
directors and officers could have a conflict of interest with respect to their
obligations as directors and officers to vigorously enforce the terms of certain
of the agreements relating to our formation transactions. The potential failure
to enforce the material terms of those agreements could result in a monetary
loss to us, which loss could have a material adverse effect on our financial
condition, results of operations and cash flow and AMB's ability to pay
distributions on, and the market price of, its common stock.
OWNERSHIP OF COMMON STOCK
LIMITATIONS IN AMB'S CHARTER AND BYLAWS COULD PREVENT A CHANGE IN CONTROL
Certain provisions of AMB's charter and bylaws may delay, defer or prevent
a change in control or other transaction that could provide the holders of AMB's
common stock with the opportunity to realize a premium over the then-prevailing
market price for the common stock. To maintain AMB's qualification as a real
estate investment trust for federal income tax purposes, not more than 50% in
value of AMB's outstanding stock may be owned, actually or constructively, by
five or fewer individuals (as defined in the Internal Revenue Code to include
certain entities) during the last half of a taxable year after the first taxable
year for which a real estate investment trust election is made. See "Certain
Federal Income Tax Considerations -- Taxation of AMB -- Requirements for
Qualification as a Real Estate Investment Trust." Furthermore, after the first
taxable year for which a real estate investment trust election is made, AMB's
common stock must be held by a minimum of 100 persons for at least 335 days of a
12-month taxable year (or a proportionate part of a short tax year). In
addition, if AMB, or an owner of 10% or more of AMB's stock, actually or
constructively owns 10% or more of one of AMB's tenants (or a tenant of any
partnership in which AMB is a partner), the rent received by AMB (either
directly or through any such partnership) from that tenant will not be
qualifying income for purposes of the real estate investment trust gross income
tests of the Internal Revenue Code. To facilitate maintenance of AMB's
qualification as a real estate investment trust for federal income tax purposes,
AMB will prohibit the ownership, actually or by virtue of the constructive
ownership provisions of the Internal Revenue Code, by any single person of more
than 9.8% (by value or number of shares, whichever is more restrictive) of the
issued and outstanding shares of AMB's common stock and more than 9.8% (by value
or number of shares, whichever is more restrictive) of the issued and
outstanding shares of AMB's Series A Preferred Stock, and AMB will also prohibit
the ownership, actually or constructively, of any shares of AMB's Series B
Preferred Stock, Series C Preferred Stock and Series D Preferred Stock by any
single person so that no such person, taking into account all of AMB's stock so
owned by such person, may own in excess of 9.8% of AMB's issued and outstanding
capital stock. We refer to this limitation as the "ownership limit." Shares
acquired or held in violation of the ownership limit will be transferred to a
trust for the benefit of a designated charitable beneficiary. Any person who
acquires shares
15
<PAGE> 19
in violation of the ownership limit will not be entitled to any distributions on
the shares or be entitled to vote the shares or receive any proceeds from the
subsequent sale of the shares in excess of the lesser of the price paid for the
shares or the amount realized from the sale. A transfer of shares in violation
of the above limits may be void under certain circumstances. See "Description of
Capital Stock -- Restrictions on Ownership and Transfer of Capital Stock." The
ownership limit may have the effect of delaying, deferring or preventing a
change in control and, therefore, could adversely affect AMB's stockholders'
ability to realize a premium over the then-prevailing market price for the
shares of AMB's common stock in connection with such transaction. The board of
directors has waived the ownership limit applicable to AMB's common stock with
respect to Ameritech Pension Trust, allowing it to own up to 14.9% of AMB's
common stock and, under some circumstances, allowing it to own up to 19.6%.
However, AMB conditioned this waiver upon the receipt of undertakings and
representations from Ameritech Pension Trust which AMB believed were reasonably
necessary in order to conclude that the waiver would not cause AMB to fail to
qualify as a real estate investment trust.
AMB's charter authorizes AMB to issue additional shares of common stock and
Series A Preferred Stock and to issue Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and one or more other series or
classes of preferred stock and to establish the preferences, rights and other
terms of any series or class of preferred stock that AMB issues. See
"Description of Capital Stock." Although AMB's board of directors has no
intention to do so at the present time, it could establish a series or class of
preferred stock that could delay, defer or prevent a transaction or a change in
control that might involve a premium price for the common stock or otherwise be
in the best interests of AMB's stockholders.
AMB's charter and bylaws and Maryland law also contain other provisions
that may delay, defer or prevent a transaction, including a change in control,
that might involve payment of a premium price for the common stock or otherwise
be in the best interests of AMB's stockholders. Those provisions include the
following:
- the provision in the charter that directors may be removed only for cause
and only upon a two-thirds vote of stockholders, together with bylaw
provisions authorizing the board of directors to fill vacant
directorships;
- the provision in the charter requiring a two-thirds vote of stockholders
for any amendment of the charter;
- the requirement in the bylaws that the request of the holders of 50% or
more of AMB's common stock is necessary for stockholders to call a
special meeting;
- the requirement of Maryland law that stockholders may only take action by
written consent with the unanimous approval of all stockholders entitled
to vote on the matter in question; and
- the requirement in the bylaws of advance notice by stockholders for the
nomination of directors or proposal of business to be considered at a
meeting of stockholders.
These provisions may impede various actions by stockholders without
approval of AMB's board of directors, which in turn may delay, defer or prevent
a transaction involving a change of control.
16
<PAGE> 20
WE COULD CHANGE OUR INVESTMENT AND FINANCING POLICIES WITHOUT A VOTE OF
STOCKHOLDERS
Subject to our fundamental investment policy to maintain AMB's
qualification as a real estate investment trust (unless a change is approved by
AMB's board of directors under certain circumstances), AMB's board of directors
will determine our investment and financing policies, our growth strategy and
our debt, capitalization, distribution and operating policies. Although the
board of directors has no present intention to revise or amend these strategies
and policies, the board of directors may do so at any time without a vote of
stockholders. Accordingly, stockholders will have no control over changes in our
strategies and policies (other than through the election of directors), and any
such changes may not serve the interests of all stockholders and could adversely
affect our financial condition or results of operations, including our ability
to distribute cash to stockholders.
IF WE ISSUE ADDITIONAL SECURITIES, THE INVESTMENT OF EXISTING STOCKHOLDERS WILL
BE DILUTED
We have authority to issue shares of common stock or other equity or debt
securities in exchange for property or otherwise. Similarly, we may cause the
operating partnership to issue additional limited partnership units in exchange
for property or otherwise. Existing stockholders will have no preemptive right
to acquire any additional securities issued by us or the operating partnership
and any issuance of additional equity securities could result in dilution of an
existing stockholder's investment.
THE LARGE NUMBER OF SHARES AVAILABLE FOR FUTURE SALE COULD ADVERSELY AFFECT THE
MARKET PRICE OF AMB'S COMMON STOCK
We can not predict the effect, if any, that future sales of shares of AMB's
common stock, or the availability of shares of AMB's common stock for future
sale, will have on its market price. Sales of a substantial number of shares of
AMB's common stock in the public market (or upon exchange of limited partnership
units in the operating partnership) or the perception that such sales (or
exchanges) might occur could adversely affect the market price of AMB's common
stock.
All shares of common stock issuable upon the redemption of limited
partnership units in the operating partnership will be deemed to be "restricted
securities" within the meaning of Rule 144 under the Securities Act and may not
be transferred unless registered under the Securities Act or an exemption from
registration is available, including any exemption from registration provided
under Rule 144. In general, upon satisfaction of certain conditions, Rule 144
permits the holder to sell certain amounts of restricted securities one year
following the date of acquisition of the restricted securities from us and,
after two years, permits unlimited sales by persons unaffiliated with us. On
November 26, 1998, 74,710,153 shares of common stock issued in our formation
transactions became eligible for sale pursuant to Rule 144, subject to the
volume limitations and other conditions imposed by Rule 144. Commencing
generally on the first anniversary of the date of acquisition of common limited
partnership units (or such other date agreed to by the operating partnership and
the holders of the units), the operating partnership may redeem common limited
partnership units at the request of the holders for cash (based on the fair
market value of an equivalent number of shares of common stock at the time of
redemption) or, at AMB's option, exchange the common limited partnership units
for an equal number of shares of common stock of AMB, subject to certain
antidilution
17
<PAGE> 21
adjustments. The operating partnership has issued and outstanding 4,578,942
common limited partnership units to date. As of March 31, 1999, AMB has reserved
8,792,530 shares of common stock for issuance under its Stock Option and
Incentive Plan (not including shares that AMB has already issued) and, as of
March 31, 1999, has granted to certain directors, officers and employees options
to purchase 4,368,320 shares of common stock (not including forfeitures and
8,750 shares that AMB has issued pursuant to the exercise of options). To date,
AMB has granted 148,720 restricted shares of common stock, 932 of which have
been forfeited. In addition, AMB may issue additional shares of common stock and
the operating partnership may issue additional limited partnership units in
connection with the acquisition of properties. The registration statement of
which this prospectus is a part covers the resale by the selling stockholders of
4,000,000 shares of common stock. In connection with the issuance of common
limited partnership units to other transferors of properties, and in connection
with the issuance of any performance units, AMB has agreed to file registration
statements covering the issuance of shares of common stock upon the exchange of
the common limited partnership units. AMB has also filed a registration
statement with respect to the shares of common stock issuable under its Stock
Option and Incentive Plan. These registration statements and registration rights
generally allow shares of common stock covered thereby, including shares of
common stock issuable upon exchange of limited partnership units, including
performance units, or the exercise of options or restricted shares of common
stock, to be transferred or resold without restriction under the Securities Act.
AMB may also agree to provide registration rights to any other person who may
become an owner of the operating partnership's limited partnership units. See
"Description of Certain Provisions of the Partnership Agreement of the Operating
Partnership -- Common Limited Partnership Units -- Registration Rights."
Future sales of the shares of common stock described above could adversely
affect the market price of AMB's common stock. The existence of the operating
partnership's limited partnership units, options and shares of common stock
reserved for issuance upon exchange of limited partnership units, and the
exercise of options and registration rights referred to above, also may
adversely affect the terms upon which we are able to obtain additional capital
through the sale of equity securities.
VARIOUS MARKET CONDITIONS AFFECT THE PRICE OF AMB'S COMMON STOCK
As with other publicly-traded equity securities, the market price of AMB's
common stock will depend upon various market conditions, which may change from
time to time. Among the market conditions that may affect the market price of
AMB's common stock are the following:
- the extent of investor interest in us;
- the general reputation of real estate investment trusts and the
attractiveness of their equity securities in comparison to other equity
securities (including securities issued by other real estate-based
companies);
- our financial performance; and
- general stock and bond market conditions, including changes in interest
rates on fixed income securities which may lead prospective purchasers of
AMB's common stock to demand a higher annual yield from future
distributions. Such an increase in the required yield from distributions
may adversely affect the market price of AMB's common stock.
18
<PAGE> 22
Other factors such as governmental regulatory action and changes in tax
laws could also have a significant impact on the future market price of AMB's
common stock.
EARNINGS AND CASH DISTRIBUTIONS, ASSET VALUE AND MARKET INTEREST RATES AFFECT
THE PRICE OF AMB'S COMMON STOCK
The market value of the equity securities of a real estate investment trust
generally is based primarily upon the market's perception of the real estate
investment trust's growth potential and its current and potential future
earnings and cash distributions, and is based secondarily upon the real estate
market value of the underlying assets. For that reason, shares of AMB's common
stock may trade at prices that are higher or lower than the net asset value per
share. To the extent AMB retains operating cash flow for investment purposes,
working capital reserves or other purposes, these retained funds, while
increasing the value of our underlying assets, may not correspondingly increase
the market price of AMB's common stock. AMB's failure to meet the market's
expectation with regard to future earnings and cash distributions likely would
adversely affect the market price of AMB's common stock. Another factor that may
influence the price of AMB's common stock will be the distribution yield on the
common stock (as a percentage of the price of the common stock) relative to
market interest rates. An increase in market interest rates might lead
prospective purchasers of AMB's common stock to expect a higher distribution
yield, which would adversely affect the market price of the common stock. If the
market price of AMB's common stock declines significantly, we might breach
certain covenants with respect to debt obligations, which might adversely affect
our liquidity and ability to make future acquisitions and AMB's ability to pay
distributions to its stockholders.
WE COULD INVEST IN REAL ESTATE MORTGAGES
We may invest in mortgages, and may do so as a strategy for ultimately
acquiring the underlying property. In general, investments in mortgages include
the risks that borrowers may not be able to make debt service payments or pay
principal when due, that the value of the mortgaged property may be less than
the principal amount of the mortgage note secured by the property and that
interest rates payable on the mortgages may be lower than our cost of funds to
acquire these mortgages. In any of these events, our funds from operations and
AMB's ability to make distributions on, and the market price of, its common
stock could be adversely affected. "Funds from operations" means income (loss)
from operations before disposal of real estate properties, minority interests
and extraordinary items plus depreciation and amortization, excluding
depreciation of furniture, fixtures and equipment less funds from operations
attributable to minority interests in consolidated joint ventures which are not
convertible into shares of common stock.
GOVERNMENT REGULATIONS
Many laws and governmental regulations are applicable to our properties and
changes in these laws and regulations, or their interpretation by agencies and
the courts, occur frequently.
COSTS OF COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
Under the Americans with Disabilities Act, places of public accommodation
must meet certain federal requirements related to access and use by disabled
persons. Compliance with the Americans with Disabilities Act might require us to
remove
19
<PAGE> 23
structural barriers to handicapped access in certain public areas where such
removal is "readily achievable." If we fail to comply with the Americans with
Disabilities Act, we might be required to pay fines to the government or damages
to private litigants. The impact of application of the Americans with
Disabilities Act to our properties, including the extent and timing of required
renovations, is uncertain. If we are required to make unanticipated expenditures
to comply with the Americans with Disabilities Act, our cash flow and the
amounts available for distributions to AMB's stockholders may be adversely
affected.
WE COULD ENCOUNTER COSTLY ENVIRONMENTAL PROBLEMS
Federal, state and local laws and regulations relating to the protection of
the environment impose liability on a current or previous owner or operator of
real estate for contamination resulting from the presence or discharge of
hazardous or toxic substances or petroleum products at the property. A current
or previous owner may be required to investigate and clean up contamination at
or migrating from a site. These laws typically impose liability and clean-up
responsibility without regard to whether the owner or operator knew of or caused
the presence of the contaminants. Even if more than one person may have been
responsible for the contamination, each person covered by the environmental laws
may be held responsible for all of the clean-up costs incurred. In addition,
third parties may sue the owner or operator of a site for damages based on
personal injury, property damage and/or other costs, including investigation and
clean-up costs, resulting from environmental contamination present at or
emanating from that site.
Environmental laws also govern the presence, maintenance and removal of
asbestos. These laws require that owners or operators of buildings containing
asbestos properly manage and maintain the asbestos, that they adequately inform
or train those who may come into contact with asbestos and that they undertake
special precautions, including removal or other abatement in the event that
asbestos is disturbed during renovation or demolition of a building. These laws
may impose fines and penalties on building owners or operators for failure to
comply with these requirements and may allow third parties to seek recovery from
owners or operators for personal injury associated with exposure to asbestos
fibers. Some of our properties may contain asbestos-containing building
materials.
Some of our properties are leased or have been leased, in part, to owners
and operators of dry cleaners that operate on-site dry cleaning plants, to
owners and operators of gas stations or to owners or operators of other
businesses that use, store or otherwise handle petroleum products or other
hazardous or toxic substances. Some of these properties contain, or may have
contained, underground storage tanks for the storage of petroleum products and
other hazardous or toxic substances. These operations create a potential for the
release of petroleum products or other hazardous or toxic substances. Some of
our properties are adjacent to or near other properties that have contained or
currently contain underground storage tanks used to store petroleum products or
other hazardous or toxic substances. In addition, certain of our properties are
on, or are adjacent to or near other properties upon which others, including
former owners or tenants of the properties, have engaged or may in the future
engage in activities that may release petroleum products or other hazardous or
toxic substances. From time to time, we may acquire properties, or interests in
properties, with known adverse environmental conditions where we believe that
the environmental liabilities associated with these conditions are quantifiable
and the acquisition will yield a superior risk-adjusted return. In connection
with certain of the properties under contract for disposition to BPP Retail and
Burnham
20
<PAGE> 24
Pacific, we have agreed to remain responsible for, and to bear the cost of,
remediating or monitoring certain environmental conditions on the properties
following the applicable closing dates.
All of our properties were subject to a Phase I or similar environmental
assessments by independent environmental consultants at the time of acquisition
or shortly after acquisition. Phase I assessments are intended to discover and
evaluate information regarding the environmental condition of the surveyed
property and surrounding properties. Phase I assessments generally include an
historical review, a public records review, an investigation of the surveyed
site and surrounding properties, and preparation and issuance of a written
report, but do not include soil sampling or subsurface investigations and
typically do not include an asbestos survey. We may perform additional Phase II
testing if recommended by the independent environmental consultant. Phase II
testing may include the collection and laboratory analysis of soil and
groundwater samples, completion of surveys for asbestos-containing building
materials, and any other testing that the consultant considers prudent in order
to test for the presence of hazardous materials. Some of the environmental
assessments of our properties do not contain a comprehensive review of the past
uses of the properties and/or the surrounding properties.
None of the environmental assessments of our properties has revealed any
environmental liability that we believe would have a material adverse effect on
our financial condition or results of operations taken as a whole, and we are
not aware of any such material environmental liability. Nonetheless, it is
possible that the assessments do not reveal all environmental liabilities and
that there are material environmental liabilities of which we are unaware or
that known environmental conditions may give rise to liabilities that are
materially greater than anticipated. Moreover, future laws, ordinances or
regulations may impose material environmental liability and the current
environmental condition of our properties may be affected by tenants, by the
condition of land, by operations in the vicinity of the properties (such as
releases from underground storage tanks), or by third parties unrelated to us.
If the costs of compliance with environmental laws and regulations now existing
or adopted in the future exceed our budgets for these items, our financial
condition, results of operations and cash flow and AMB's ability to pay
distributions on, and the market price of, its common stock could be adversely
affected.
OUR FINANCIAL CONDITION COULD BE ADVERSELY AFFECTED IF WE FAIL TO COMPLY WITH
OTHER REGULATIONS
Our properties are also subject to various federal, state and local
regulatory requirements such as state and local fire and life safety
requirements. If we fail to comply with these requirements, we might incur fines
by governmental authorities or be required to pay awards of damages to private
litigants. We believe that our properties are currently in substantial
compliance with all such regulatory requirements. However, these requirements
may change or new requirements may be imposed which could require significant
unanticipated expenditures by us. Any such unanticipated expenditures could have
an adverse effect on our financial condition, results of operations and cash
flow and AMB's ability to pay distributions on, and the market price of, its
common stock.
21
<PAGE> 25
FEDERAL INCOME TAX RISKS
AMB'S FAILURE TO QUALIFY AS A REAL ESTATE INVESTMENT TRUST WOULD HAVE SERIOUS
ADVERSE CONSEQUENCES TO STOCKHOLDERS
AMB intends to operate so as to qualify as a real estate investment trust
under the Internal Revenue Code. AMB believes that it has been organized and has
operated in a manner which would allow it to qualify as a real estate investment
trust under the Internal Revenue Code beginning with its taxable year ended
December 31, 1997. However, it is possible that AMB has been organized or has
operated in a manner which would not allow it to qualify as a real estate
investment trust, or that AMB's future operations could cause it to fail to
qualify. Qualification as a real estate investment trust requires AMB to satisfy
numerous requirements (some on an annual and quarterly basis) established under
highly technical and complex Internal Revenue Code provisions for which there
are only limited judicial and administrative interpretations, and involves the
determination of various factual matters and circumstances not entirely within
AMB's control. For example, in order to qualify as a real estate investment
trust, at least 95% of AMB's gross income in any year must be derived from
qualifying sources, AMB must pay dividends to stockholders aggregating annually
at least 95% of its real estate investment trust taxable income (determined
without regard to the dividends paid deduction and by excluding capital gains)
and AMB must satisfy specified asset tests on a quarterly basis. See "Certain
Federal Income Tax Considerations -- Taxation of AMB -- Asset Tests." These
provisions and the applicable treasury regulations are more complicated in our
case because AMB holds its assets in partnership form. Legislation, new
regulations, administrative interpretations or court decisions could
significantly change the tax laws with respect to qualification as a real estate
investment trust or the federal income tax consequences of such qualification.
However, AMB is not aware of any pending tax legislation that would adversely
affect its ability to operate as a real estate investment trust.
If AMB fails to qualify as a real estate investment trust in any taxable
year, it will be subject to federal income tax (including any applicable
alternative minimum tax) on its taxable income at regular corporate rates.
Unless AMB is entitled to relief under certain statutory provisions, it would be
disqualified from treatment as a real estate investment trust for the four
taxable years following the year during which it lost qualification. If AMB
loses its real estate investment trust status, its net earnings available for
investment or distribution to stockholders would be significantly reduced for
each of the years involved. In addition, AMB would no longer be required to make
distributions to stockholders. See "Certain Federal Income Tax
Considerations -- Failure to Qualify."
AMB PAYS SOME TAXES
Even if AMB qualifies as a real estate investment trust, it will be subject
to certain federal, state and local taxes on its income and property. In
addition, the net taxable income, if any, from the activities conducted through
AMB Investment Management, Inc. and Headlands Realty Corporation (which we
discuss below under "-- AMB Investment Management, Inc. and Headlands Realty
Corporation") will be subject to federal and state income tax. See "Certain
Federal Income Tax Considerations -- Other Tax Consequences."
22
<PAGE> 26
CERTAIN PROPERTY TRANSFERS MAY GENERATE PROHIBITED TRANSACTION INCOME
From time to time, we may transfer or otherwise dispose of some of our
properties. Under the Internal Revenue Code, any gain resulting from transfers
of properties that are held as inventory or primarily for sale to customers in
the ordinary course of business is treated as income from a prohibited
transaction that is subject to a 100% penalty tax. Since we acquire properties
for investment purposes, we believe that any transfer or disposal of property by
us would not be deemed by the Internal Revenue Service to be a prohibited
transaction with any resulting gain allocable to AMB being subject to a 100%
penalty tax. However, whether property is held for investment purposes is a
question of fact that depends on all the facts and circumstances surrounding the
particular transaction and the Internal Revenue Service may contend that certain
transfers or disposals of properties by us (including possibly some or all of
the properties that are subject to the agreements with BPP Retail and Burnham
Pacific) are prohibited transactions. While we believe that the Internal Revenue
Service would not prevail in any such dispute, any adverse finding by the
Internal Revenue Service that a transfer or disposition of property constituted
a prohibited transaction would subject AMB to a 100% penalty tax on any gain
allocable to AMB from the prohibited transaction. In addition, any income from a
prohibited transaction may adversely affect AMB's ability to satisfy the income
tests for qualifications as a real estate investment trust for federal income
tax purposes.
WE ARE DEPENDENT ON OUR KEY PERSONNEL
We depend on the efforts of AMB's executive officers. While we believe that
we could find suitable replacements for these key personnel, the loss of their
services or the limitation of their availability could adversely affect our
financial condition, results of operations and cash flow and AMB's ability to
pay distributions on, and the market price of, its common stock. We do not have
employment agreements with any of our executive officers.
WE MAY BE UNABLE TO MANAGE OUR GROWTH
Our business has grown rapidly and continues to grow through property
acquisitions. If we fail to effectively manage our growth, our financial
condition, results of operations and cash flow and AMB's ability to pay
distributions on, and the market price of, its common stock could be adversely
affected.
AMB INVESTMENT MANAGEMENT, INC. AND HEADLANDS REALTY CORPORATION
WE DO NOT CONTROL THE ACTIVITIES OF AMB INVESTMENT MANAGEMENT, INC. AND
HEADLANDS REALTY CORPORATION
The operating partnership owns 100% of the non-voting preferred stock of
AMB Investment Management, Inc. and Headlands Realty Corporation (representing
approximately 95% of the economic interest in each entity). Certain of AMB's
current and former executive officers and an officer of AMB Investment
Management, Inc. own all of the outstanding voting common stock of AMB
Investment Management, Inc. (representing approximately 5% of the economic
interest in AMB Investment Management, Inc.). Certain of AMB's executive
officers and an officer of Headlands Realty Corporation own all of the
outstanding voting common stock of Headlands Realty Corporation (representing
approximately 5% of the economic interest in Headlands Realty Corporation). The
ownership structure of AMB Investment Management, Inc. and Headlands Realty
23
<PAGE> 27
Corporation permits us to share in the income of those corporations while
allowing AMB to maintain its status as a real estate investment trust. We
receive substantially all of the economic benefit of the businesses carried on
by AMB Investment Management, Inc. and Headlands Realty Corporation through the
operating partnership's right to receive dividends. However, we are not able to
elect the directors or officers of AMB Investment Management, Inc. and Headlands
Realty Corporation and, as a result, we do not have the ability to influence
their operation or to require that their boards of directors declare and pay
cash dividends on the non-voting stock of AMB Investment Management, Inc. and
Headlands Realty Corporation held by the operating partnership. The boards of
directors and management of AMB Investment Management, Inc. and Headlands Realty
Corporation might implement business policies or decisions that would not have
been implemented by persons controlled by us and that may be adverse to the
interests of AMB's stockholders or that may adversely impact our financial
condition, results of operations and cash flow and AMB's ability to pay
distributions on, and the market price of, its common stock. In addition, AMB
Investment Management, Inc. and Headlands Realty Corporation are subject to tax
on their income, reducing their cash available for distribution to the operating
partnership.
AMB INVESTMENT MANAGEMENT, INC. MAY NOT BE ABLE TO GENERATE SUFFICIENT FEES
Fees earned by AMB Investment Management, Inc. depend on various factors
affecting the ability to attract and retain investment management clients and
the overall returns achieved on managed assets. These factors are beyond our
control. AMB Investment Management, Inc.'s failure to attract investment
management clients or achieve sufficient overall returns on managed assets could
reduce its ability to make distributions on the stock owned by the operating
partnership and could also limit co-investment opportunities to the operating
partnership. This would limit the operating partnership's ability to generate
rental revenues from such co-investments and use the co-investment program as a
source to finance property acquisitions and leverage acquisition opportunities.
24
<PAGE> 28
THE COMPANY
GENERAL
We are one of the largest publicly-traded real estate companies in the
United States. As of March 31, 1999, we owned 615 industrial buildings located
in 26 markets throughout the United States, and 38 retail centers located in 16
markets throughout the United States. As of March 31, 1999, our industrial
buildings, principally warehouse distribution properties, encompassed
approximately 58.9 million rentable square feet and, as of the same date, were
95.4% leased to over 1,900 tenants. As of March 31, 1999 our retail centers,
principally grocer-anchored community shopping centers, encompassed
approximately 7.1 million rentable square feet and, as of the same date, were
95.0% leased to over 900 tenants. In the event that all of the BPP Retail and
Burnham Pacific transactions are fully consummated (see discussion below under
"-- Recent Developments -- BPP Retail and Burnham Pacific Transactions"), we
will have disposed of 34 of our retail centers. We currently expect that the
substantial majority of our acquisition activities going forward will be in
industrial properties. We own substantially all of our assets, and conduct
substantially all of our business, through the operating partnership and its
subsidiaries.
AMB was organized in November 1997 and commenced operations upon the
completion of its initial public offering on November 26, 1997. AMB operates as
a self-administered and self-managed real estate company and believes that it
has qualified and that it will continue to qualify as a real estate investment
trust for federal income tax purposes beginning with the year ended December 31,
1997. As a self-administered and self-managed real estate investment trust,
AMB's own employees perform its administrative and management functions, rather
than relying on an outside manager for these services.
STRATEGIC ALLIANCE PROGRAMS
We believe that our strategy of forming strategic alliances with local and
regional real estate experts improves our operating efficiency and flexibility,
strengthens customer satisfaction and retention and, most importantly, provides
us with growth opportunities. Additionally, our strategic alliances with
institutional investors enhance our access to private capital and our ability to
finance transactions.
Our six Strategic Alliance Programs can be grouped into two categories:
- Operating Alliances, which allow us to form relationships with local or
regional real estate experts, thereby becoming their ally rather than
their competitor; and
- Investment Alliances, which allow us to establish relationships with a
variety of capital sources.
OPERATING ALLIANCES
- MANAGEMENT ALLIANCE PROGRAM: Our strategy for our Management Alliance
Program is to develop close relationships with, and outsource property
management to, local property managers that we believe to be among the
best in their respective markets. Our alliances with local property
managers increase our flexibility, reduce our overhead expenses and
improve our customer service. In addition, these
25
<PAGE> 29
alliances provide us with local market information related to tenant
activity and acquisition opportunities.
- CUSTOMER ALLIANCE PROGRAM: Through our Customer Alliance Program, we seek
to build long-term working relationships with major tenants. We are
committed to working with our tenants, particularly our larger tenants
with multi-site requirements, to make their property searches as
efficient as possible.
- BROKER ALLIANCE PROGRAM: Through our Broker Alliance Program, we work
closely with top local leasing companies in each of our markets, which
brokers provide us with access to high quality tenants and local market
knowledge.
INVESTMENT ALLIANCES
- DEVELOPMENT ALLIANCE PROGRAM: Our strategy for our Development Alliance
Program is to form alliances with development firms with a strong local
presence and expertise.
- UPREIT ALLIANCE PROGRAM: Through our UPREIT Alliance Program, we issue
limited partnership units in the operating partnership in exchange for
properties, thus providing additional growth for our portfolio.
- INSTITUTIONAL ALLIANCE PROGRAM: Our strategy for our Institutional
Alliance Program is to form alliances with institutional investors. Our
alliances with institutional investors provide us with access to private
capital, including during those times when the public markets are less
attractive, as well as providing us with a source of incremental fee
income and investment returns.
AMB INVESTMENT MANAGEMENT, INC. AND HEADLANDS REALTY CORPORATION
AMB Investment Management, Inc. provides real estate investment management
services on a fee basis to certain of its clients which did not participate in
our formation transactions. We presently intend to co-invest with clients of AMB
Investment Management, Inc., to the extent such clients newly commit investment
capital, through partnerships, limited liability companies and joint ventures.
We generally use a co-investment formula with each client whereby we will own at
least a 20% interest in all ventures. Headlands Realty Corporation invests in
properties and interests in entities that engage in the management, leasing and
development of properties and similar activities. As of May 31, 1999, Headlands
Realty Corporation had participated in three property acquisition transactions
and had acquired a fifty percent (50%) interest in an entity that engages in the
management, leasing and development of properties and similar activities.
RECENT DEVELOPMENTS
Sale of Series D Preferred Units by AMB Property II, L.P. On May 5, 1999,
AMB Property II completed a private placement of 1,595,337 7.75% Series D
Cumulative Redeemable Preferred Units to an investor at a price of $50.00 per
unit. See "Description of Capital Stock -- Preferred Stock -- Series D Preferred
Stock." AMB Property II, L.P. used approximately $57.7 million of the net
proceeds to purchase an unconsolidated joint venture interest from the operating
partnership and used approximately $20 million of the net proceeds to make an
unsecured loan to the operating partnership. The operating partnership used the
funds to repay borrowings under our credit facility and for general
26
<PAGE> 30
corporate purposes. The loan bears interest at a rate of 7.0% per annum and is
payable upon demand.
BPP Retail and Burnham Pacific Transactions. On March 9, 1999, we signed a
series of definitive agreements with BPP Retail, pursuant to which, if fully
consummated, BPP Retail will acquire up to 28 retail shopping centers, totaling
approximately 5.1 million square feet, for an aggregate price of $663.4 million.
The sale of five of the properties is subject to the consent of our joint
venture partners. One of our joint venture partners who holds an interest in
three of the properties has indicated that it will not consent to the sale of
these properties at this time. As a result, the sale price with respect to the
25 remaining properties, totaling approximately 4.3 million square feet, is
approximately $560.4 million. We intend to dispose of these three properties or
our interests in the joint ventures through which we hold the properties.
Pursuant to the agreements, BPP Retail will acquire the 25 centers in
separate transactions. Under the agreements, we have the right to extend the
closing dates for a period of up to either 20 or 50 days. We have exercised this
right with respect to the first closing, which occurred on June 15, 1999.
Pursuant to the first closing, BPP Retail acquired nine retail shopping centers,
totaling approximately 1.4 million square feet, for an aggregate price of
approximately $207.4 million. We intend to use the proceeds from the first
closing to pay approximately $2.7 million in transaction expenses, to repay
secured debt related to the properties of approximately $30.1 million (including
prepayment penalties of approximately $3.3 million), to pay approximately $103.5
million in partial repayment of amounts outstanding under our unsecured credit
facility, for potential acquisitions and for general corporate purposes. We
currently expect the second and third closings to occur on or about August 4,
1999 and December 1, 1999.
In addition, we have entered into a definitive agreement, subject to a
financing condition, with Burnham Pacific, pursuant to which, if fully
consummated, Burnham Pacific will acquire up to six additional retail centers,
totaling approximately 1.5 million square feet, for approximately $284.4
million. On June 30, 1999, this agreement was terminated pursuant to its terms
as a result of Burnham Pacific's decision not to waive the financing condition.
We currently intend to dispose of the six retail properties, either on an
individual or portfolio basis.
We intend to use the proceeds of approximately $353.0 million from the
disposition of the remaining 16 retail centers to BPP Retail in the second and
third closings to pay approximately $4.8 million in transaction expenses, to
repay secured debt related to the properties divested of approximately $30.8
million (including prepayment penalties of approximately $2.0 million), to make
payments under our unsecured credit facility in the amount of approximately
$133.4 million, for potential acquisitions and for general corporate purposes.
In connection with these transactions, AMB has granted the California Public
Employees' Retirement System an option to purchase up to 2,000,000 shares of
AMB's common stock for an exercise price of $25.00 per share that the California
Public Employees' Retirement System may exercise on or before March 31, 2000.
AMB has registered the 2,000,000 shares of common stock issuable upon exercise
of the option. Although we believe that the BPP Retail transactions are
probable, they might not close as scheduled or close at all, and it is possible
that the transactions may close with respect to just a portion of the properties
currently subject to the agreements. See "Risk Factors -- Failure to Consummate
the Transactions with BPP Retail and Burnham Pacific."
27
<PAGE> 31
DESCRIPTION OF CAPITAL STOCK
We have summarized certain terms and provisions of AMB's capital stock in
this section. This summary is not complete. For more detail you should refer to
the Maryland General Corporation Law and AMB's charter and bylaws, which are
exhibits to the registration statement of which this prospectus is a part. See
"Where You Can Find More Information."
COMMON STOCK
AMB's charter provides that it is authorized to issue 500,000,000 shares of
common stock, $.01 par value per share. As of June 21, 1999, AMB had 86,518,899
shares of common stock issued and outstanding. Each outstanding share of common
stock entitles the holder to one vote on all matters presented to stockholders
generally for a vote, including the election of directors. Except as otherwise
required by law and except as provided in any resolution adopted by the board of
directors establishing any other class or series of stock, the holders of common
stock possess the exclusive voting power, subject to the provisions of the
charter regarding the ownership of shares of common stock in excess of the
ownership limit or any other limit specified in the charter, or otherwise
permitted by the board of directors. Holders of shares of common stock do not
have any conversion, exchange, sinking fund, redemption or appraisal rights or
any preemptive rights to subscribe for any of our securities or cumulative
voting rights in the election of directors. All shares of AMB's common stock
that are issued and outstanding are duly authorized, fully paid and
nonassessable. Subject to the preferential rights of any other shares or series
or classes of stock, including the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock
(see "-- Preferred Stock"), and to the provisions of AMB's charter regarding
ownership of shares of common stock in excess of the ownership limit, or such
other limit specified in the charter or as otherwise permitted by the board of
directors, AMB may pay distributions to the holders of shares of common stock if
and when authorized and declared by the board of directors out of funds legally
available for distribution. AMB intends to continue to make quarterly
distributions on outstanding shares of common stock.
Under the Maryland General Corporation Law, stockholders are generally not
liable for our debts or obligations. If AMB liquidates, subject to the right of
any holders of preferred stock, including the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock (see "-- Preferred Stock") to receive preferential
distributions, each outstanding share of common stock will be entitled to
participate pro rata in the assets remaining after payment of, or adequate
provision for, all of AMB's known debts and liabilities, including debts and
liabilities arising out of AMB's status as general partner of the operating
partnership.
Subject to the provisions of AMB's charter regarding the ownership of
shares of common stock in excess of the ownership limit, or such other limit
specified in the charter, or as otherwise permitted by the board of directors as
described below, all shares of common stock have equal distribution, liquidation
and voting rights, and have no preference or exchange rights.
Under the Maryland General Corporation Law, a Maryland corporation
generally cannot dissolve, amend its charter, merge, sell all or substantially
all of its assets, engage in a share exchange or engage in similar transactions
outside the ordinary course of business unless approved by the affirmative vote
of at least two-thirds of the votes entitled to be
28
<PAGE> 32
cast on the matter unless a lesser percentage (but not less than a majority of
all of the votes entitled to be cast on the matter) is set forth in the
corporation's charter. Under the Maryland General Corporation Law, the term
"substantially all of the company's assets" is not defined and is, therefore,
subject to Maryland common law and to judicial interpretation and review in the
context of the unique facts and circumstances of any particular transaction.
AMB's charter does not provide for a lesser percentage in any of the above
situations.
AMB's charter authorizes the board of directors to reclassify any unissued
shares of common stock into other classes or series of classes of stock and to
establish the number of shares in each class or series and to set the
preferences, conversion and other rights, voting powers, restrictions,
limitations and restrictions on ownership, limitations as to dividends or other
distributions, qualifications and terms or conditions of redemption for each
class or series.
PREFERRED STOCK
AMB's charter provides that it is authorized to issue 100,000,000 shares of
preferred stock, $.01 par value per share, of which 4,600,000 shares are of a
separate class designated as 8 1/2% Series A Cumulative Redeemable Preferred
Stock, 1,300,000 shares are of a separate class designated as 8 5/8% Series B
Cumulative Redeemable Preferred Stock, 2,200,000 shares are of a separate class
designated as 8.75% Series C Cumulative Redeemable Preferred Stock, and
1,595,337 shares are of a separate class designated as 7.75% Cumulative
Redeemable Series D Preferred Stock. The Series B Preferred Stock is issuable in
exchange, on a one for one basis, subject to adjustment, for the Series B
Preferred Units in the operating partnership. The Series C Preferred Stock is
issuable in exchange, on a one for one basis, subject to adjustment, for the
Series C Preferred Units in AMB Property II. The Series D Preferred Stock is
issuable in exchange, on a one for one basis, subject to adjustment, for the
Series D Preferred Units in AMB Property II. AMB has 4,000,000 shares of Series
A Preferred Stock issued and outstanding. AMB has 1,300,000 shares of Series B
Preferred Stock, 2,200,000 shares of Series C Preferred Stock and 1,595,337
shares of Series D Preferred Stock reserved for issuance but not issued or
outstanding. AMB may issue additional shares of preferred stock from time to
time, in one or more classes, as authorized by the board of directors. Prior to
the issuance of shares of each class of preferred stock, the board of directors
is required by the Maryland General Corporation Law and AMB's charter to fix for
each class the terms, preferences, conversion or other rights, voting powers,
restrictions, limitations as to distributions, qualifications and terms or
conditions of redemption, as permitted by Maryland law. Because the board of
directors has the power to establish the preferences, powers and rights of each
class of preferred stock, it may afford the holders of any class of preferred
stock preferences, powers and rights, voting or otherwise, senior to the rights
of holders of shares of common stock. The issuance of preferred stock could have
the effect of delaying or preventing a change of control that might involve a
premium price for holders of shares of common stock or otherwise be in their
best interest.
Series A Preferred Stock. The Series A Preferred Stock ranks, with respect
to dividends and in the event AMB voluntarily or involuntarily liquidates,
dissolves or winds up:
- senior to all classes or series of common stock and to all of AMB's
equity securities that provide that they rank junior to the Series A
Preferred Stock;
29
<PAGE> 33
- junior to all equity securities issued by AMB which rank senior to the
Series A Preferred Stock; and
- on a parity with all equity securities issued by AMB (including any
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred
Stock) other than those referred to in the bullet points above. The term
"equity securities" does not include convertible debt securities.
Holders of the Series A Preferred Stock are entitled to receive, when and
as authorized by AMB's board of directors out of funds legally available for
dividends, cumulative preferential cash dividends at the rate of 8 1/2% of the
liquidation preference per annum (equivalent to $2.125 per annum per share of
Series A Preferred Stock). Dividends on the Series A Preferred Stock accumulate
on a daily basis and are payable quarterly in arrears on the 15th day of each
January, April, July and October. Except as provided below, unless full
cumulative dividends on the Series A Preferred Stock have been or at the same
time are declared and paid or declared and a sum sufficient for payment set
apart for payment for all past dividend periods and the then current dividend
period, no dividends (other than in common stock or other equity securities
ranking junior to the Series A Preferred Stock) may be declared or paid or set
aside for payment or other dividend be declared or made upon the common stock or
any other equity securities ranking junior to or on a parity with the Series A
Preferred Stock (including any Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock), nor may any common stock or any other
equity securities ranking junior to or on a parity with the Series A Preferred
Stock (including any Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock) be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund for
the redemption of any such securities) by AMB (except by conversion into or
exchange for other equity securities ranking junior to the Series A Preferred
Stock and pursuant to the provisions of AMB's charter providing for limitations
on ownership and transfer in order to ensure that it remains qualified as a real
estate investment trust). When dividends are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series A
Preferred Stock and any other equity securities ranking on a parity with the
Series A Preferred Stock (including any Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock), all dividends declared upon the
Series A Preferred Stock and any other equity securities ranking on a parity
with the Series A Preferred Stock (including any Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock) will be declared pro rata
so that the amount of dividends declared per share of Series A Preferred Stock
and each such other equity securities shall bear to each other the same ratio
that accumulated dividends per share of Series A Preferred Stock and such other
equity securities (which shall not include any accumulation in respect of unpaid
dividends for prior dividend periods if such other equity securities do not have
a cumulative dividend) bear to each other. Dividends on the Series A Preferred
Stock will accumulate whether or not AMB has funds legally available for the
payment of dividends and whether or not AMB declares dividends. If we designate
any portion of a dividend as a "capital gain dividend," a holder's share of the
capital gain dividend will be an amount that bears the same ratio to the total
amount of dividends (as determined for federal income tax purposes) paid to the
holder for the year as the aggregate amount designated as a capital gain
dividend bears to the aggregate amount of all dividends (as determined for
federal income tax purposes) paid on all classes of shares for the year.
30
<PAGE> 34
In the event that AMB voluntarily or involuntarily liquidates, dissolves or
winds up, the holders of the Series A Preferred Stock are entitled to receive
out of AMB's assets legally available for distribution to its stockholders
remaining after payment or provision for payment of all of AMB's debts and
liabilities, a liquidation preference, in cash, of $25.00 per share, plus an
amount equal to any accumulated and unpaid dividends to the date of such
payment, before any distribution of assets is made to holders of common stock or
any other equity securities that rank junior to the Series A Preferred Stock.
After payment of the full amount of the liquidating distributions to which they
are entitled, the holders of the Series A Preferred Stock will have no right or
claim to any remaining assets. The consolidation or merger of AMB with or into
any other entity, a merger of another entity with or into AMB, a statutory share
exchange or the sale, lease, transfer or conveyance of all or substantially all
of AMB's property or business do not constitute a liquidation, dissolution or
winding up for purposes of triggering the liquidation preference.
If AMB voluntarily or involuntarily liquidates, dissolves or winds up and
its assets are insufficient to make full payment to holders of the Series A
Preferred Stock and the corresponding amounts payable on all shares of other
classes or series of equity securities ranking on a parity with the Series A
Preferred Stock, then the holders of the Series A Preferred Stock and all other
such classes or series of equity securities will share ratably in any such
distribution of assets in proportion to the full liquidating distributions to
which they would otherwise be entitled.
The Series A Preferred Stock has no stated maturity and is not subject to
mandatory redemption or any sinking fund. AMB cannot redeem the Series A
Preferred Stock prior to July 27, 2003. On and after July 27, 2003, AMB can
redeem the Series A Preferred Stock for cash at its option, in whole or from
time to time in part, at a redemption price of $25.00 per share, plus
accumulated and unpaid dividends, if any, to the redemption date. AMB must pay
the redemption price (other than the portion of the redemption price consisting
of accumulated and unpaid dividends) solely out of the sale proceeds of other
equity securities, which may include other classes or series of preferred stock.
In certain circumstances related to maintenance of AMB's ability to qualify as a
real estate investment trust for federal income tax purposes, it may redeem
shares of Series A Preferred Stock. See "-- Restrictions on Ownership and
Transfer of Capital Stock."
Holders of Series A Preferred Stock have no voting rights, except as
described below. If AMB does not pay dividends on the Series A Preferred Stock
for six or more quarterly periods (whether or not consecutive), holders of the
Series A Preferred Stock (voting separately as a class with all other classes or
series of equity securities upon which like voting rights have been conferred
and are exercisable) will be entitled to vote for the election of two additional
directors to serve on AMB's board of directors until AMB has eliminated all
dividend arrearages with respect to the Series A Preferred Stock. So long as any
shares of Series A Preferred Stock remain outstanding, AMB may not, without the
affirmative vote or consent of at least two-thirds of the votes entitled to be
cast by the holders of outstanding shares of Series A Preferred Stock (the
Series A Preferred Stock voting separately as a class):
- authorize or create, or increase the authorized or issued amount of, any
class or series of stock ranking senior to the Series A Preferred Stock;
- reclassify any of its authorized stock into any class or series of stock
ranking senior to the Series A Preferred Stock;
31
<PAGE> 35
- create, authorize or issue any obligation or security convertible into,
exchangeable or exercisable for, or evidencing the right to purchase, any
class or series of stock ranking senior to the Series A Preferred Stock;
or
- amend, alter or repeal the provisions of its charter, whether by merger
or consolidation or otherwise, so as to materially and adversely affect
any right, preference, privilege or voting power of the Series A
Preferred Stock.
With respect to the occurrence of any of the events set forth in the fourth
bullet point above, so long as shares of Series A Preferred Stock (or shares
issued by a surviving entity in substitution for shares of the Series A
Preferred Stock) remain outstanding with the terms materially unchanged, taking
into account that upon the occurrence of such an event, AMB may not be the
surviving entity, the occurrence of any such event will not be considered to
materially and adversely affect rights, preferences, privileges or voting powers
of holders of Series A Preferred Stock. Any increase in the amount of the
authorized preferred stock, the creation or issuance of any other class or
series of preferred stock or any increase in the amount of authorized 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 will not be
considered to materially and adversely affect such rights, preferences,
privileges or voting powers.
In accordance with the terms of the operating partnership's partnership
agreement, AMB contributed the net proceeds of the sale of the Series A
Preferred Stock to the operating partnership and the operating partnership
issued to AMB Series A Preferred Units that mirror the rights, preferences and
other terms of the Series A Preferred Stock. The operating partnership is
required to make all required distributions on the Series A Preferred Units
prior to any distribution of cash or assets to the holders of any other units or
any other equity interests in the operating partnership, except for any other
series of preferred units ranking on a parity with the Series A Preferred Units
as to dividends or voluntary or involuntary liquidation, dissolution or winding
up of the operating partnership. The operating partnership has no preferred
units, other than the Series A Preferred Units and the Series B Preferred Units,
outstanding or any other equity interests ranking prior to any other units or
any other equity interests in the operating partnership.
Series B Preferred Stock. AMB currently has no shares of Series B Preferred
Stock issued or outstanding. The Series B Preferred Stock is issuable upon
exchange of the operating partnership's Series B Preferred Units, as described
under "Description of Certain Provisions of the Partnership Agreement of the
Operating Partnership -- Series B Preferred Units -- Exchange Rights." The
Series B Preferred Stock ranks, with respect to dividends and in the event AMB
voluntarily or involuntarily liquidates, dissolves or winds up:
- senior to all classes or series of common stock and to all of AMB's
equity securities that provide that they rank junior to the Series B
Preferred Stock;
- junior to all equity securities issued by AMB which rank senior to the
Series B Preferred Stock; and
- on a parity with all equity securities issued by AMB (including the
Series A Preferred Stock and any Series C Preferred Stock and Series D
Preferred Stock) other than those referred to in the bullet points above.
The term "equity securities" does not include convertible debt
securities.
32
<PAGE> 36
If ever issued, the Series B Preferred Stock will entitle the holders to
receive, when and as authorized by AMB's board of directors out of funds legally
available for dividends, cumulative preferential cash dividends at the rate of
8 5/8% of the liquidation preference per annum (equivalent to $4.3125 per annum
per share of Series B Preferred Stock). Dividends on the Series B Preferred
Stock accumulate on a daily basis and are payable quarterly in arrears on the
15th day of each January, April, July and October. Except as provided below,
unless full cumulative dividends on the Series B Preferred Stock have been or at
the same time are declared and paid or declared and a sum sufficient for payment
set apart for payment for all past dividend periods and the then current
dividend period, no distributions (other than in common stock or other equity
securities ranking junior to the Series B Preferred Stock) may be declared or
paid or set aside for payment or other dividend be declared or made upon the
common stock or any other equity securities ranking junior to or on a parity
with the Series B Preferred Stock (including the Series A Preferred Stock, the
Series C Preferred Stock and the Series D Preferred Stock), nor may any common
stock or any other equity securities ranking junior to or on a parity with the
Series B Preferred Stock (including the Series A Preferred Stock, the Series C
Preferred Stock and the Series D Preferred Stock) be redeemed, purchased or
otherwise acquired for any consideration (or any monies be paid to or made
available for a sinking fund for the redemption of any such securities) by AMB
(except by conversion into or exchange for other equity securities ranking
junior to the Series B Preferred Stock and pursuant to the provisions of AMB's
charter providing for limitations on ownership and transfer in order to ensure
that it remains qualified as a real estate investment trust). When dividends are
not paid in full (or a sum sufficient for such full payment is not so set apart)
upon the Series B Preferred Stock and any other equity securities ranking on a
parity with the Series B Preferred Stock (including the Series A Preferred
Stock, the Series C Preferred Stock and the Series D Preferred Stock), all
dividends declared upon the Series B Preferred Stock and any other equity
securities ranking on a parity with the Series B Preferred Stock (including any
Series A Preferred Stock, Series C Preferred Stock and Series D Preferred Stock)
will be declared pro rata so that the amount of dividends declared per share of
Series B Preferred Stock and each such other equity securities shall bear to
each other the same ratio that accumulated dividends per share of Series B
Preferred Stock and such other equity securities (which shall not include any
accumulation in respect of unpaid dividends for prior dividend periods if such
other equity securities do not have a cumulative dividend) bear to each other.
Dividends on the Series B Preferred Stock will accumulate whether or not AMB has
funds legally available for the payment of dividends and whether or not AMB
declares dividends. If AMB designates any portion of a dividend as a "capital
gain dividend," a holder's share of the capital gain dividend will be an amount
that bears the same ratio to the total amount of dividends (as determined for
federal income tax purposes) paid to the holder for the year as the aggregate
amount designated as a capital gain dividend bears to the aggregate amount of
all dividends (as determined for federal income tax purposes) paid on all
classes of shares for the year.
In the event that AMB voluntarily or involuntarily liquidates, dissolves or
winds up following the issuance of the Series B Preferred Stock, the holders of
the Series B Preferred Stock will be entitled to receive out of AMB's assets
legally available for distribution to its stockholders remaining after payment
or provision for payment of all of AMB's debts and liabilities, a liquidation
preference, in cash, of $50.00 per share, plus an amount equal to any
accumulated and unpaid dividends to the date of payment, before any distribution
of assets is made to holders of common stock or any other equity securities that
rank junior to the Series B Preferred Stock. After payment of the full amount of
the
33
<PAGE> 37
liquidating distributions to which they are entitled, the holders of the Series
B Preferred Stock will have no right or claim to any of AMB's remaining assets.
The consolidation or merger of AMB with or into any other entity, a merger of
another entity with or into AMB, a statutory share exchange or the sale, lease,
transfer or conveyance of all or substantially all of AMB's property or business
do not constitute a liquidation, dissolution or winding up for purposes of
triggering the liquidation preference.
If AMB voluntarily or involuntarily liquidates, dissolves or winds up
following the issuance of Series B Preferred Stock and AMB's assets are
insufficient to make full payment to the holders of the Series B Preferred Stock
and the corresponding amounts payable on all shares of other classes or series
of equity securities ranking on a parity with the Series B Preferred Stock as to
liquidation rights (including the Series A Preferred Stock and any Series C
Preferred Stock and Series D Preferred Stock) then the holders of the Series B
Preferred Stock and all other such classes or series of equity securities will
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be entitled.
The Series B Preferred Stock has no stated maturity and is not subject to
mandatory redemption or any sinking fund. If issued, AMB would be unable to
redeem the Series B Preferred Stock prior to November 12, 2003. On and after
November 12, 2003, AMB would be able to redeem the Series B Preferred Stock for
cash at its option, in whole or from time to time in part, at a redemption price
of $50.00 per share, plus accumulated and unpaid dividends, if any, to the
redemption date. AMB must pay the redemption price (other than the portion of
the redemption price consisting of accumulated and unpaid dividends) solely out
of the sale proceeds of other equity securities, which may include other classes
or series of preferred stock. In certain circumstances related to the
maintenance of AMB's ability to qualify as a real estate investment trust for
federal income tax purposes, AMB may redeem shares of Series B Preferred Stock.
See "-- Restrictions on Ownership and Transfer of Capital Stock."
Holders of Series B Preferred Stock will have no voting rights, except as
described below. If AMB does not pay dividends on the Series B Preferred Stock
for six or more quarterly periods (whether or not consecutive), holders of the
Series B Preferred Stock (voting separately as a class with all other classes or
series of equity securities upon which like voting rights have been conferred
and are exercisable) will be entitled to vote for the election of two additional
directors to serve on AMB's board of directors until AMB has eliminated all
dividend arrearages with respect to the Series B Preferred Stock. So long as any
shares of Series B Preferred Stock remain outstanding, AMB may not, without the
affirmative vote or consent of at least two-thirds of the votes entitled to be
cast by the holders of the outstanding shares of Series B Preferred Stock (the
Series B Preferred Stock voting separately as a class):
- authorize or create, or increase the authorized or issued amount of, any
class or series of stock ranking senior to the Series B Preferred Stock;
- reclassify any of its authorized stock into any class or series of stock
ranking senior to the Series B Preferred Stock;
- designate or create, or increase the authorized or issued amount of, or
reclassify, any authorized shares into, any preferred stock ranking on a
parity with the Series B Preferred Stock or create, authorize or issue
any obligations or securities
34
<PAGE> 38
convertible into any such shares, but only to the extent such stock is
issued to one of our affiliates; or
- either consolidate, merge into or with, or convey, transfer or lease its
assets substantially as an entirety, to any corporation or other entity,
or amend, alter or repeal the provisions of its charter, whether by
merger or consolidation or otherwise, in each case so as to materially
and adversely affect the powers, special rights, preferences, privileges
or voting power of the Series B Preferred Stock.
With respect to the occurrence of any of the events set forth in the fourth
bullet point above, so long as AMB is either the surviving entity and shares of
Series B Preferred Stock remain outstanding with the terms materially unchanged
or the resulting, surviving or transferee entity is a corporation organized
under the laws of any state and substitutes for the Series B Preferred Stock
other preferred stock having substantially the same terms and rights as the
Series B Preferred Stock, the occurrence of any such event will not be
considered to materially and adversely affect rights, preferences, privileges or
voting powers of holders of Series B Preferred Stock. Any increase in the amount
of authorized preferred stock, the creation or issuance of any other class or
series of preferred stock or any increase in an amount of authorized shares of
each class or series, in each case ranking on a parity with or junior to the
Series B Preferred Stock will not be considered to materially and adversely
affect such rights, preferences, privileges or voting powers.
AMB has granted certain registration rights with respect to any shares of
Series B Preferred Stock that it may issue upon exchange of the operating
partnership's Series B Preferred Units. See "Description of Certain Provisions
of the Partnership Agreement of the Operating Partnership -- Series B Preferred
Units -- Registration Rights."
Series C Preferred Stock. AMB currently has no shares of Series C Preferred
Stock issued or outstanding. The Series C Preferred Stock is issuable upon
exchange of the Series C Preferred Units of AMB Property II. The Series C
Preferred Units of AMB Property II are exchangeable in whole at any time on or
after November 24, 2008, at the option of 51% of the holders of all outstanding
Series C Preferred Units of AMB Property II, on a one for one basis, subject to
adjustment, for shares of AMB's Series C Preferred Stock. In addition, the
Series C Preferred Units of AMB Property II are exchangeable in whole at any
time at the option of 51% of the holders of all outstanding Series C Preferred
Units of AMB Property II if:
- any Series C Preferred Unit of AMB Property II shall not have received
full distributions with respect to six prior quarterly distribution
periods (whether or not consecutive); or
- AMB Property Holding Corporation, the general partner of AMB Property II,
or one of its subsidiaries takes the position, and a holder or holders
Series C Preferred Units of AMB Property II receive an opinion of
independent counsel that AMB Property II is, or upon the happening of a
certain event likely will be, a "publicly traded partnership" within the
meaning of the Internal Revenue Code.
The Series C Preferred Units of AMB Property II are exchangeable in whole
for shares of AMB's Series C Preferred Stock at any time after November 24, 2001
and prior to November 24, 2008 at the option of 51% of the holders of all
outstanding Series C Preferred Units of AMB Property II if those holders deliver
to AMB Property Holding Corporation a private letter ruling or an opinion of
independent counsel to the effect that an exchange of the Series C Preferred
Units of AMB Property II at that time would not
35
<PAGE> 39
cause the Series C Preferred Units of AMB Property II to be considered "stock
and securities" within the meaning of the Internal Revenue Code for purposes of
determining whether the holder of the Series C Preferred Units is an "investment
company" under the Internal Revenue Code.
The Series C Preferred Units of AMB Property II are also exchangeable in
whole at any time for shares of AMB's Series C Preferred Stock, if initial
purchasers of the Series C Preferred Units of AMB Property II holding 51% of all
outstanding Series C Preferred Units of AMB Property II determine (regardless of
whether held by the initial purchasers) if:
- AMB Property II reasonably determines that the assets and income of AMB
Property II for a taxable year after 1998 would not satisfy the income
and assets tests of the Internal Revenue Code for such taxable year if
AMB Property II were a real estate investment trust; or
- any holder of Series C Preferred Units of AMB Property II delivers to AMB
Property II and AMB Property Holding Corporation an opinion of
independent counsel to the effect that (based on the assets and income of
AMB Property II for a taxable year after 1998) AMB Property II would not
satisfy the income and assets tests of the Internal Revenue Code for such
taxable year if AMB Property II were a real estate investment trust and
that such failure would create a meaningful risk that a holder of Series
C Preferred Units of AMB Property II would fail to maintain qualification
as a real estate investment trust.
In lieu of an exchange for Series C Preferred Stock, AMB Property II may
redeem its Series C Preferred Units for cash in an amount equal to the original
capital account balance of the holder of the units. A holder of Series C
Preferred Units of AMB Property II will not be entitled to exchange the units
for AMB's Series C Preferred Stock if the exchange would result in a violation
of the ownership limit. See "-- Restrictions on Ownership and Transfer of
Capital Stock."
The Series C Preferred Stock ranks, with respect to dividends and in the
event AMB voluntarily or involuntarily liquidates, dissolves or winds up:
- senior to all classes or series of common stock and to all of AMB's
equity securities that provide that they rank junior to the Series C
Preferred Stock;
- junior to all equity securities issued by AMB which rank senior to the
Series C Preferred Stock; and
- on a parity with all equity securities issued by AMB (including the
Series A Preferred Stock and any Series B Preferred Stock and Series D
Preferred Stock) other than those referred to in the bullet points above.
The term "equity securities" does not include convertible debt securities
until converted into equity securities.
If ever issued, the Series C Preferred Stock will entitle the holders to
receive, when and as authorized by AMB's board of directors out of funds legally
available for dividends, cumulative preferential cash dividends at the rate of
8.75% of the liquidation preference per annum (equivalent to $4.375 per annum
per share of Series C Preferred Stock). Dividends on the Series C Preferred
Stock accumulate on a daily basis and are payable quarterly in arrears on the
15th day of each January, April, July and October. Except as provided below,
unless full cumulative dividends on the Series C Preferred Stock have been or at
the same time are declared and paid or declared and a sum sufficient for
36
<PAGE> 40
payment set apart for payment for all past dividend periods and the then current
dividend period, no distributions (other than in common stock or other equity
securities ranking junior to the Series C Preferred Stock) may be declared or
paid or set aside for payment or other dividend be declared or made upon the
common stock or any other equity securities ranking junior to or on a parity
with the Series C Preferred Stock (including the Series A Preferred Stock and
any Series B Preferred Stock and Series D Preferred Stock), nor may any common
stock or any other equity securities ranking junior to or on a parity with the
Series C Preferred Stock (including the Series A Preferred Stock and any Series
B Preferred Stock and Series D Preferred Stock) be redeemed, purchased or
otherwise acquired for any consideration (or any monies be paid to or made
available for a sinking fund for the redemption of any such securities) by AMB
(except by conversion into or exchange for other equity securities ranking
junior to the Series C Preferred Stock and pursuant to the provisions of AMB's
charter providing for limitations on ownership and transfer in order to ensure
that it remains qualified as a real estate investment trust). When dividends are
not paid in full (or a sum sufficient for such full payment is not so set apart)
upon the Series C Preferred Stock and any other equity securities ranking on a
parity with the Series C Preferred Stock (including the Series A Preferred Stock
and any Series B Preferred Stock and Series D Preferred Stock), all dividends
declared upon the Series C Preferred Stock and any other equity securities
ranking on a parity with the Series C Preferred Stock (including the Series A
Preferred Stock and any Series B Preferred Stock and Series D Preferred Stock)
will be declared pro rata so that the amount of dividends declared per share of
Series C Preferred Stock and each such other equity securities shall bear to
each other the same ratio that accumulated dividends per share of Series C
Preferred Stock and such other equity securities (which shall not include any
accumulation in respect of unpaid dividends for prior dividend periods if such
other equity securities do not have a cumulative dividend) bear to each other.
Dividends on the Series C Preferred Stock will accumulate whether or not AMB has
funds legally available for the payment of dividends and whether or not AMB
declares dividends. If AMB designates any portion of a dividend as a "capital
gain dividend," a holder's share of the capital gain dividend will be an amount
that bears the same ratio to the total amount of dividends (as determined for
federal income tax purposes) paid to the holder for the year as the aggregate
amount designated as a capital gain dividend bears to the aggregate amount of
all dividends (as determined for federal income tax purposes) paid on all
classes of shares for the year.
In the event that AMB voluntarily or involuntarily liquidates, dissolves or
winds up following the issuance of Series C Preferred Stock, the holders of the
Series C Preferred Stock will be entitled to receive out of AMB's assets legally
available for distribution to its stockholders remaining after payment or
provision for payment of all of AMB's debts and liabilities, a liquidation
preference, in cash, of $50.00 per share, plus an amount equal to any
accumulated or accrued and unpaid dividends to the date of such payment, before
any distribution of assets is made to holders of common stock or any other
equity securities that rank junior to the Series C Preferred Stock. After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of the Series C Preferred Stock will have no right or
claim to any of AMB's remaining assets. The consolidation or merger of AMB with
or into any other entity, a merger of another entity with or into AMB, a
statutory share exchange or the sale, lease, transfer or conveyance of all or
substantially all of AMB's property or business do not constitute a liquidation,
dissolution or winding up for purposes of triggering the liquidation preference.
37
<PAGE> 41
If AMB voluntarily or involuntarily liquidates, dissolves or winds up
following the issuance of Series C Preferred Stock and its assets are
insufficient to make full payment to holders of the Series C Preferred Stock and
the corresponding amounts payable on all shares of other classes or series of
equity securities ranking on a parity with the Series C Preferred Stock as to
liquidation rights (including the Series A Preferred Stock and any Series B
Preferred Stock and Series D Preferred Stock) then the holders of the Series C
Preferred Stock and all other such classes or series of equity securities will
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be entitled.
The Series C Preferred Stock has no stated maturity and is not subject to
mandatory redemption or any sinking fund. If issued, AMB would be unable to
redeem the Series C Preferred Stock prior to November 24, 2003. On and after
November 24, 2003, AMB would be able to redeem the Series C Preferred Stock for
cash at its option, in whole or from time to time in part, at a redemption price
of $50.00 per share, plus accumulated and unpaid dividends, if any, to the
redemption date. AMB must pay the redemption price (other than the portion of
the redemption price consisting of accumulated and unpaid dividends) solely out
of the sale proceeds of other equity securities, which may include other classes
or series of preferred stock. In certain circumstances related to maintenance of
AMB's ability to qualify as a real estate investment trust for federal income
tax purposes, AMB may redeem shares of Series C Preferred Stock. See
"-- Restrictions on Ownership and Transfer of Capital Stock."
Holders of Series C Preferred Stock will have no voting rights, except as
described below. If AMB does not pay dividends on the Series C Preferred Stock
for six or more quarterly periods (whether or not consecutive), holders of the
Series C Preferred Stock (voting separately as a class with all other classes or
series of equity securities upon which like voting rights have been conferred
and are exercisable) will be entitled to vote for the election of two additional
directors to serve on AMB's board of directors until AMB has eliminated all
dividend arrearages with respect to the Series C Preferred Stock. So long as any
shares of Series C Preferred Stock remain outstanding, AMB may not, without the
affirmative vote or consent of at least two-thirds of the votes entitled to be
cast by the holders of the outstanding shares of Series C Preferred Stock (the
Series C Preferred Stock voting separately as a class):
- authorize or create, or increase the authorized or issued amount of, any
class or series of stock ranking senior to the Series C Preferred Stock;
- reclassify any of its authorized stock into any class or series of stock
ranking senior to the Series C Preferred Stock;
- designate or create, or increase the authorized or issued amount of, or
reclassify, any authorized shares into, any preferred stock ranking on a
parity with the Series C Preferred Stock or create, authorize or issue
any obligations or securities convertible into any such shares, but only
to the extent such stock is issued to one of our affiliates; or
- either consolidate, merge into or with, or convey, transfer or lease its
assets substantially, as an entirety, to any corporation or other entity,
or amend, alter or repeal the provisions of its charter, whether by
merger or consolidation or otherwise, in each case so as to materially
and adversely affect the powers, special rights, preferences, privileges
or voting power of the Series C Preferred Stock.
38
<PAGE> 42
With respect to the occurrence of any of the events set forth in the fourth
bullet point above, so long as AMB is either the surviving entity and shares of
Series C Preferred Stock remain outstanding with the terms materially unchanged
or the resulting, surviving or transferee entity is a corporation, business
trust or like entity organized under the laws of any state and substitutes for
the Series C Preferred Stock other preferred stock or preferred shares having
substantially the same terms and rights as the Series C Preferred Stock, the
occurrence of any such event will not be considered to materially and adversely
affect rights, preferences, privileges or voting powers of holders of Series C
Preferred Stock. Any increase in the amount of authorized preferred stock, the
creation or issuance of any other class or series of preferred stock or any
increase in an amount of authorized shares of each class or series, in each case
ranking on a parity with or junior to the Series C Preferred Stock will not be
considered to materially and adversely affect such rights, preferences,
privileges or voting powers.
AMB has agreed to file a registration statement registering the resale of
the shares of Series C Preferred Stock issuable to the holders of Series C
Preferred Units of AMB Property II as soon as practicable but not later than 60
days after the date the Series C Preferred Units of AMB Property II are
exchanged for shares of Series C Preferred Stock. AMB has also agreed to use its
best efforts to cause the registration statement to be declared effective within
120 days after the date of the exchange.
Series D Preferred Stock. AMB currently has no shares of Series D Preferred
Stock issued or outstanding. The Series D Preferred Stock is issuable upon
exchange of the Series D Preferred Units of AMB Property II. The Series D
Preferred Units of AMB Property II are exchangeable in whole at any time on or
after May 5, 2009, at the option of 51% of the holders of all outstanding Series
D Preferred Units of AMB Property II, on a one for one basis, subject to
adjustment, for shares of AMB's Series D Preferred Stock. In addition, the
Series D Preferred Units of AMB Property II are exchangeable in whole at any
time at the option of 51% of the holders of all outstanding Series D Preferred
Units of AMB Property II if:
- any Series D Preferred Unit of AMB Property II shall not have received
full distributions with respect to six prior quarterly distribution
periods (whether or not consecutive); or
- AMB Property Holding Corporation, the general partner of AMB Property II,
or one of its subsidiaries takes the position, and a holder or holders of
Series D Preferred Units of AMB Property II receive an opinion of
independent counsel that AMB Property II is, or upon the happening of a
certain event likely will be, a "publicly traded partnership" within the
meaning of the Internal Revenue Code.
The Series D Preferred Units of AMB Property II are exchangeable in whole
for shares of AMB's Series D Preferred Stock at any time after May 5, 2002 and
prior to May 5, 2009 at the option of 51% of the holders of all outstanding
Series D Preferred Units of AMB Property II if those holders deliver to AMB
Property Holding Corporation a private letter ruling or an opinion of
independent counsel to the effect that an exchange of the Series D Preferred
Units of AMB Property II at that time would not cause the Series D Preferred
Units to be considered "stock and securities" within the meaning of the Internal
Revenue Code for purposes of determining whether the holder of the Series D
Preferred Units is an "investment company" under the Internal Revenue Code.
39
<PAGE> 43
In lieu of an exchange for Series D Preferred Stock, AMB Property II may
redeem its Series D Preferred Units for cash in an amount equal to the original
capital account balance of the holder of Series D Preferred Units of AMB
Property II. A holder of Series D Preferred Units will not be entitled to
exchange the units for AMB's Series D Preferred Stock if the exchange would
result in a violation of the ownership limit. See "-- Restrictions on Ownership
and Transfer of Capital Stock."
The Series D Preferred Stock ranks, with respect to dividends and in the
event AMB voluntarily or involuntarily liquidates, dissolves or winds up:
- senior to all classes or series of common stock and to all of AMB's
equity securities that provide that they rank junior to the Series D
Preferred Stock;
- junior to all equity securities issued by AMB which rank senior to the
Series D Preferred Stock; and
- on a parity with all equity securities issued by AMB (including the
Series A Preferred Stock and any Series B Preferred Stock and Series C
Preferred Stock) other than those referred to in the bullet points above.
The term "equity securities" does not include convertible debt securities
until converted into equity securities.
If ever issued, the Series D Preferred Stock will entitle the holders to
receive, when and as authorized by AMB's board of directors out of funds legally
available for dividends, cumulative preferential cash dividends at the rate of
7.75% of the liquidation preference per annum (equivalent to $3.875 per annum
per share of Series D Preferred Stock). Dividends on the Series D Preferred
Stock accumulate on a daily basis and are payable quarterly in arrears on the
15th day of each January, April, July and October. Except as provided below,
unless full cumulative dividends on the Series D Preferred Stock have been or at
the same time are declared and paid or declared and a sum sufficient for payment
set apart for payment for all past dividend periods and the then current
dividend period, no distributions (other than in common stock or other equity
securities ranking junior to the Series D Preferred Stock) may be declared or
paid or set aside for payment or other dividend be declared or made upon the
common stock or any other equity securities ranking junior to or on a parity
with the Series D Preferred Stock (including the Series A Preferred Stock and
any Series B Preferred Stock and Series C Preferred Stock), nor may any common
stock or any other equity securities ranking junior to or on a parity with the
Series D Preferred Stock (including the Series A Preferred Stock and any Series
B Preferred Stock and Series C Preferred Stock) be redeemed, purchased or
otherwise acquired for any consideration (or any monies be paid to or made
available for a sinking fund for the redemption of any such securities) by AMB
(except by conversion into or exchange for other equity securities ranking
junior to the Series D Preferred Stock and pursuant to the provisions of AMB's
charter providing for limitations on ownership and transfer in order to ensure
that AMB remains qualified as a real estate investment trust). When dividends
are not paid in full (or a sum sufficient for such full payment is not so set
apart) upon the Series D Preferred Stock and any other equity securities ranking
on a parity with the Series D Preferred Stock (including the Series A Preferred
Stock and any Series B Preferred Stock and Series C Preferred Stock), all
dividends declared upon the Series D Preferred Stock and any other equity
securities ranking on a parity with the Series D Preferred Stock (including the
Series A Preferred Stock and any Series B Preferred Stock and Series C Preferred
Stock) will be declared pro rata so that the amount of dividends declared per
share of Series D Preferred Stock and each such other equity securities shall
bear to each other the same ratio that accumulated dividends per
40
<PAGE> 44
share of Series D Preferred Stock and such other equity securities (which shall
not include any accumulation in respect of unpaid dividends for prior dividend
periods if such other equity securities do not have a cumulative dividend) bear
to each other. Dividends on the Series D Preferred Stock will accumulate whether
or not AMB has funds legally available for the payment of dividends and whether
or not AMB declares dividends. If AMB designates any portion of a dividend as a
"capital gain dividend," a holder's share of the capital gain dividend will be
an amount that bears the same ratio to the total amount of dividends (as
determined for federal income tax purposes) paid to the holder for the year as
the aggregate amount designated as a capital gain dividend bears to the
aggregate amount of all dividends (as determined for federal income tax
purposes) paid on all classes of shares for the year.
In the event that AMB voluntarily or involuntarily liquidates, dissolves or
winds up following the issuance of Series D Preferred Stock, the holders of the
Series D Preferred Stock will be entitled to receive out of AMB's assets legally
available for distribution to its stockholders remaining after payment or
provision for payment of all of AMB's debts and liabilities, a liquidation
preference, in cash, of $50.00 per share, plus an amount equal to any
accumulated or accrued and unpaid dividends to the date of such payment, before
any distribution of assets is made to holders of common stock or any other
equity securities that rank junior to the Series D Preferred Stock. After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of the Series D Preferred Stock will have no right or
claim to any of AMB's remaining assets. The consolidation or merger of AMB with
or into any other entity, a merger of another entity with or into AMB, a
statutory share exchange or the sale, lease, transfer or conveyance of all or
substantially all of AMB's property or business do not constitute a liquidation,
dissolution or winding up for purposes of triggering the liquidation preference.
If AMB voluntarily or involuntarily liquidates, dissolves or winds up
following the issuance of Series D Preferred Stock and its assets are
insufficient to make full payment to holders of the Series D Preferred Stock and
the corresponding amounts payable on all shares of other classes or series of
equity securities ranking on a parity with the Series D Preferred Stock as to
liquidation rights (including the Series A Preferred Stock and any Series B
Preferred Stock and Series C Preferred Stock) then the holders of the Series D
Preferred Stock and all other such classes or series of equity securities will
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be entitled.
The Series D Preferred Stock has no stated maturity and is not subject to
mandatory redemption or any sinking fund. If issued, AMB would be unable to
redeem the Series D Preferred Stock prior to May 5, 2004. On and after May 5,
2004, AMB would be able to redeem the Series D Preferred Stock for cash at AMB's
option, in whole or from time to time in part, at a redemption price of $50.00
per share, plus accumulated and unpaid dividends, if any, to the redemption
date. AMB must pay the redemption price (other than the portion of the
redemption price consisting of accumulated and unpaid dividends) solely out of
the sale proceeds of other equity securities, which may include other classes or
series of preferred stock. In certain circumstances related to maintenance of
AMB's ability to qualify as a real estate investment trust for federal income
tax purposes, AMB may redeem shares of Series D Preferred Stock. See
"-- Restrictions on Ownership and Transfer of Capital Stock."
Holders of Series D Preferred Stock will have no voting rights, except as
described below. If AMB does not pay dividends on the Series D Preferred Stock
for six or more
41
<PAGE> 45
quarterly periods (whether or not consecutive), holders of the Series D
Preferred Stock (voting separately as a class with all other classes or series
of equity securities upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two additional
directors to serve on AMB's board of directors until AMB has eliminated all
dividend arrearages with respect to the Series D Preferred Stock. So long as any
shares of Series D Preferred Stock remain outstanding, AMB may not, without the
affirmative vote or consent of at least two-thirds of the votes entitled to be
cast by the holders of the outstanding shares of Series D Preferred Stock (the
Series D Preferred Stock voting separately as a class):
- authorize or create, or increase the authorized or issued amount of, any
class or series of stock ranking senior to the Series D Preferred Stock;
- reclassify any of its authorized stock into any class or series of stock
ranking senior to the Series D Preferred Stock;
- designate or create, or increase the authorized or issued amount of, or
reclassify, any authorized shares into, any preferred stock ranking on a
parity with the Series D Preferred Stock or create, authorize or issue
any obligations or securities convertible into any such shares, but only
to the extent such stock is issued to one of its affiliates; or
- either consolidate, merge into or with, or convey, transfer or lease its
assets substantially, as an entirety, to any corporation or other entity,
or amend, alter or repeal the provisions of its charter, whether by
merger or consolidation or otherwise, in each case so as to materially
and adversely affect the powers, special rights, preferences, privileges
or voting power of the Series D Preferred Stock.
With respect to the occurrence of any of the events set forth in the fourth
bullet point above, so long as AMB is either the surviving entity and shares of
Series D Preferred Stock remain outstanding with the terms materially unchanged
or the resulting, surviving or transferee entity is a corporation, business
trust or like entity organized under the laws of any state and substitutes for
the Series D Preferred Stock other preferred stock or preferred shares having
substantially the same terms and rights as the Series D Preferred Stock, the
occurrence of any such event will not be considered to materially and adversely
affect rights, preferences, privileges or voting powers of holders of Series D
Preferred Stock. Any increase in the amount of authorized preferred stock, the
creation or issuance of any other class or series of preferred stock or any
increase in an amount of authorized shares of each class or series, in each case
ranking on a parity with or junior to the Series D Preferred Stock will not be
considered to materially and adversely affect such rights, preferences,
privileges or voting powers.
AMB has agreed to file a registration statement registering the resale of
the shares of Series D Preferred Stock issuable to the holders of Series D
Preferred Units of AMB Property II as soon as practicable but not later than 60
days after the date the Series D Preferred Units of AMB Property II are
exchanged for shares of Series D Preferred Stock. AMB has also agreed to use its
best efforts to cause the registration statement to be declared effective within
120 days after the date of the exchange.
RESTRICTIONS ON OWNERSHIP AND TRANSFER OF CAPITAL STOCK
In order for AMB to qualify as a real estate investment trust under the
Internal Revenue Code, no more than 50% in value of all classes of its
outstanding shares of capital
42
<PAGE> 46
stock may be owned, actually or constructively, by five or fewer individuals (as
defined in the Internal Revenue Code to include certain entities) during the
last half of a taxable year (other than the first year for which AMB has made an
election to be treated as a real estate investment trust). In addition, if AMB,
or an owner of 10% or more of AMB's capital stock, actually or constructively
own 10% or more of one of our tenants (or a tenant of any partnership or limited
liability company in which we are a partner or member), the rent received by us
(either directly or through the partnership or limited liability company) from
the tenant will not be qualifying income for purposes of the gross income tests
for real estate investment trusts contained in the Internal Revenue Code. A real
estate investment trust's stock also must be beneficially owned by 100 or more
persons during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year (other than the first year for
which an election to be treated as a real estate investment trust has been
made).
Because AMB's board of directors believes it is desirable for AMB to
qualify as a real estate investment trust, AMB's charter, subject to certain
exceptions as discussed below, provides that no person may own, or be deemed to
own by virtue of the attribution provisions of the Internal Revenue Code, more
than 9.8% (by value or number of shares, whichever is more restrictive) of
either AMB's issued and outstanding common stock or AMB's issued and outstanding
Series A Preferred Stock. AMB will also prohibit the ownership, actually or
constructively, of any shares of its Series B Preferred Stock, any shares of its
Series C Preferred Stock and any shares of its Series D Preferred Stock by any
single person so that no person, taking into account all of the stock so owned
by the person, may own in excess of 9.8% of AMB's issued and outstanding capital
stock. The constructive ownership rules under the Internal Revenue Code are
complex and may cause stock owned actually or constructively by a group of
related individuals and/or entities to be owned constructively by one individual
or entity. As a result, the acquisition of less than 9.8% of AMB's common stock,
Series A Preferred Stock or capital stock (or the acquisition of an interest in
an entity that owns, actually or constructively, common stock, Series A
Preferred Stock or capital stock) by an individual or entity, could,
nevertheless cause that individual or entity, or another individual or entity,
to own constructively in excess of 9.8% of AMB's outstanding common stock,
Series A Preferred Stock or capital stock, as the case may be, and thereby
subject the common stock, Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock or Series D Preferred Stock to the applicable ownership
limit. AMB's board of directors may, but in no event will be required to, waive
the applicable ownership limit with respect to a particular stockholder if it
determines that such ownership will not jeopardize AMB's status as a real estate
investment trust and AMB's board of directors otherwise decides such action
would be in our best interest. As a condition of such waiver, AMB's board of
directors may require an opinion of counsel satisfactory to it and/or
undertakings or representations from the applicant with respect to preserving
our real estate investment trust status. The board of directors has waived the
ownership limit applicable to AMB's common stock with respect to Ameritech
Pension Trust, allowing it to own up to 14.9% of AMB's common stock and, under
some circumstances, allowing it to own up to 19.6%. However, AMB conditioned
this waiver upon the receipt of undertakings and representations from Ameritech
Pension Trust which AMB believed were reasonably necessary in order to conclude
that the waiver would not cause AMB to fail to qualify as a real estate
investment trust.
43
<PAGE> 47
AMB's charter also provides that:
- no person may actually or constructively own common stock, Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock that would result in AMB being "closely held"
under Section 856(h) of the Internal Revenue Code or otherwise cause AMB
to fail to qualify as a real estate investment trust;
- no person may transfer common stock, Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock if
a transfer would result in shares of AMB's capital stock being owned by
fewer than 100 persons; and
- any person who acquires or attempts or intends to acquire actual or
constructive ownership of common stock, Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock or Series D Preferred Stock
that will or may violate any of the foregoing restrictions on
transferability and ownership is required to notify AMB immediately and
provide AMB with such other information as AMB may request in order to
determine the effect of the transfer on AMB's status as a real estate
investment trust. The foregoing restrictions on transferability and
ownership will not apply if AMB's board of directors determines that it
is no longer in AMB's best interest to attempt to qualify, or to continue
to qualify, as a real estate investment trust. Except as otherwise
described above, any change in the applicable ownership limit would
require an amendment to AMB's charter, which requires the affirmative
vote of holders owning at least two-thirds of the shares of AMB's
outstanding capital stock entitled to vote on the amendment.
Under AMB's charter, if any attempted transfer of shares of stock or any
other event would otherwise result in any person violating an ownership limit,
any other limit imposed by AMB's board of directors or the other restrictions in
the charter, then any such attempted transfer will be void and of no force or
effect with respect to the purported transferee (the "prohibited transferee") as
to that number of shares that exceeds the applicable ownership limit or such
other limit (referred to as "excess shares"). Under those circumstances, the
prohibited transferee will acquire no right or interest (or, in the case of any
event other than an attempted transfer, the person or entity holding record
title to any shares in excess of the applicable ownership limit (the "prohibited
owner") will cease to own any right or interest) in the excess shares. Any
excess shares described above will be transferred automatically, by operation of
law, to a trust, the beneficiary of which will be a qualified charitable
organization selected by AMB. This automatic transfer will be considered to be
effective as of the close of business on the business day prior to the date of
the violating transfer or event. Within 20 days of receiving notice from us of
the transfer of shares to the trust, the trustee of the trust will be required
to sell the excess shares to a person or entity who could own the shares without
violating the applicable ownership limit, or any other limit imposed by AMB's
board of directors, and distribute to the prohibited transferee an amount equal
to the lesser of the price paid by the prohibited transferee for the excess
shares or the sales proceeds received by the trust for the excess shares. In the
case of any excess shares resulting from any event other than a transfer, or
from a transfer for no consideration (such as a gift), the trustee will be
required to sell excess shares to a qualified person or entity and distribute to
the prohibited owner an amount equal to the lesser of the applicable market
price of the excess shares as of the date of the event or the sales proceeds
received by the trust for the excess shares. In either case, any proceeds in
excess of the amount distributable to the prohibited transferee or prohibited
owner will be distributed to the beneficiary. Prior to a sale of any excess
shares
44
<PAGE> 48
by the trust, the trustee will be entitled to receive, in trust for the
beneficiary, all dividends and other distributions paid by AMB with respect to
the excess shares, and also will be entitled to exercise all voting rights with
respect to the excess shares. Subject to Maryland law, effective as of the date
that the shares have been transferred to the trust, the trustee will have the
authority (at the trustee's sole discretion) to rescind as void any vote cast by
a prohibited transferee or prohibited owner prior to the time that we discover
that the shares have been automatically transferred to the trust and to recast
the vote in accordance with the desires of the trustee acting for the benefit of
the beneficiary. However, if we have already taken irreversible corporate
action, then the trustee will not have the authority to rescind and recast the
vote. If we pay the prohibited transferee or prohibited owner any dividend or
other distribution before we discover that the shares were transferred to the
trust, the Purported Transferee or prohibited owner will be required to repay
the trustee upon demand for distribution to the beneficiary. If the transfer to
the trust is not automatically effective (for any reason), to prevent violation
of the applicable ownership limit or any other limit provided in AMB's charter
or imposed by AMB's board of directors, then AMB's charter provides that the
transfer of the excess shares will be void ab initio.
In addition, shares of stock held in the trust will be considered to have
been offered for sale to AMB, or its designee, at a price per share equal to the
lesser of (1) the price per share in the transaction that resulted in the
transfer to the trust (or, in the case of a devise or gift, the market price at
the time of such devise or gift) and (2) the applicable market price on the date
that AMB, or its designee, accepts the offer. AMB has the right to accept the
offer until the trustee has sold the shares held in the trust. Upon that sale to
us, the interest of the beneficiary in the shares sold will terminate and the
trustee will distribute the net proceeds of the sale to the prohibited
transferee or prohibited owner.
If any attempted transfer of shares would cause AMB to be beneficially
owned by fewer than 100 persons, AMB's charter provides that the transfer will
be null and void in its entirety and the intended transferee will acquire no
rights to the stock.
All certificates representing shares will bear a legend referring to the
restrictions described above. The ownership limitations described above could
delay, defer or prevent a transaction or a change in control that might involve
a premium price for the shares or otherwise be in the best interest of
stockholders.
Under AMB's charter, owners of outstanding shares must, upon AMB's demand,
provide AMB with a completed questionnaire containing information regarding
ownership of the shares, as set forth in the treasury regulations. In addition,
each stockholder must upon demand disclose to AMB in writing such information
that AMB may request in order to determine the effect, if any, of the
stockholder's actual and constructive ownership of shares of AMB's common stock,
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock
and/or Series D Preferred Stock on AMB's status as a real estate investment
trust and to ensure compliance with each ownership limit, or any other limit
specified in AMB's charter or required by AMB's board of directors.
TRANSFER AGENT, REGISTRAR, CONVERSION AGENT AND DIVIDEND DISBURSING AGENT
The transfer agent, registrar and dividend disbursing agent for AMB's
common stock, Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock is BankBoston, N.A., an affiliate
of First National Bank of Boston.
45
<PAGE> 49
DESCRIPTION OF CERTAIN PROVISIONS OF THE
PARTNERSHIP AGREEMENT OF THE OPERATING PARTNERSHIP
Substantially all of our assets are held, and all of our operations are
conducted, by or through the operating partnership. AMB is the sole general
partner of the operating partnership and owned, as of May 31, 1999, an
approximate 95.0% common general partnership interest in the operating
partnership. As the sole general partner, AMB has the exclusive right and power
to manage the operating partnership. AMB's interest in the operating partnership
is designated as a general partner interest. Except with respect to
distributions of cash and allocations of income and loss, and except as
otherwise noted in this prospectus, the description in this section of common
limited partnership units is also applicable to performance units, and holders
of performance units will be treated as limited partners. We have summarized
certain terms and provisions of the operating partnership's partnership
agreement. This summary is not complete and is qualified by the provisions of
the partnership agreement. For more detail, you should refer to the partnership
agreement itself, which is as an exhibit to the registration statement of which
this prospectus is a part. See "Where You Can Find More Information."
GENERAL
Holders of limited partnership units hold limited partnership interests in
the operating partnership, and all holders of partnership interests (including
AMB in its capacity as general partner) are entitled to share in cash
distributions from, and in the profits and losses of, the operating partnership.
The number of general partnership units held by AMB is approximately equal to
the total number of outstanding shares of AMB's common stock and preferred
stock. Accordingly, the distributions that AMB pays per share of common stock
are expected to be equal to the distributions per unit that the operating
partnership pays on the common units, and the distributions that AMB pays per
share of Series A Preferred Stock, any Series B Preferred Stock, any Series C
Preferred Stock and any Series D Preferred Stock are expected to be equal to the
distributions per unit that the operating partnership pays on the Series A
Preferred Units, the Series B Preferred Units, any Series C Preferred Units and
any Series D Preferred Units, respectively. The units have not been registered
pursuant to federal or state securities laws, and they will not be listed on the
New York Stock Exchange or any other exchange or quoted on any national market
system. However, the shares of common stock, Series B Preferred Stock, Series C
Preferred Stock and Series D Preferred Stock that AMB may issue upon exchange of
the common units, Series B Preferred Units of the operating partnership, Series
C Preferred Units of AMB Property II and Series D Preferred Units of AMB
Property II may be sold in registered transactions or transactions exempt from
registration under the Securities Act. The limited partners of the operating
partnership have the rights to which limited partners are entitled under the
partnership agreement and the Delaware Uniform Limited Partnership Act. The
partnership agreement imposes certain restrictions on the transfer of units, as
described below.
PURPOSE, BUSINESS AND MANAGEMENT
The operating partnership is organized as a Delaware limited partnership
pursuant to the terms of the partnership agreement. AMB is the sole general
partner of the operating partnership and conducts substantially all of its
business through the operating partnership, except for investment advisory
services (which AMB conducts through AMB Investment
46
<PAGE> 50
Management, Inc.) and certain other activities that AMB conducts through
Headlands Realty Corporation.
The primary purpose of the operating partnership is, in general, to
acquire, purchase, own, operate, manage, develop, redevelop, invest in, finance,
refinance, sell, lease and otherwise deal with industrial and retail properties
and assets related to those properties, and interests in those properties and
assets. The operating partnership is authorized to conduct any business that a
limited partnership formed under the Delaware Uniform Limited Partnership Act
may lawfully conduct, except that the partnership agreement requires of the
operating partnership to conduct its business in such a manner that will permit
AMB to be classified as a real estate investment trust under Section 856 of the
Internal Revenue Code, unless AMB ceases to qualify as a real estate investment
trust for reasons other than the conduct of the business of the operating
partnership. Subject to the foregoing limitation, the operating partnership may
enter into partnerships, joint ventures or similar arrangements and may own
interests directly or indirectly in any other entity.
As the general partner of the operating partnership AMB has the exclusive
power and authority to conduct the business of the operating partnership,
subject to the consent of the limited partners in certain limited circumstances
(as discussed below) and except as expressly limited in the partnership
agreement.
AMB has the right to make all decisions and take all actions with respect
to the operating partnership's acquisition and operation of our properties and
all other assets and businesses of or related to the operating partnership. No
limited partner may take part in the conduct or control of the business or
affairs of the operating partnership by virtue of being a holder of units. In
particular, each limited partner expressly acknowledged in the partnership
agreement that as general partner, AMB is acting on behalf of the operating
partnership's limited partners and AMB's stockholders, collectively, and is
under no obligation to consider the tax consequences to limited partners when
making decisions for the benefit of the operating partnership. AMB intends to
make decisions in its capacity as general partner of the operating partnership
so as to maximize AMB's profitability and the profitability of the operating
partnership as a whole, independent of the tax effects on the limited partners.
AMB and the operating partnership have no liability to a limited partner as a
result of any liabilities or damages incurred or suffered by, or benefits not
derived by, a limited partner as a result of an action or inaction of AMB as
general partner of the operating partnership as long as AMB acted in good faith.
Limited partners have no right or authority to act for or to bind the operating
partnership.
Limited partners of the operating partnership have no authority to transact
business for, or participate in the management activities or decisions of, the
operating partnership, except as provided in the partnership agreement or as
required by applicable law.
ENGAGING IN OTHER BUSINESSES; CONFLICTS OF INTEREST
AMB may not conduct any business other than in connection with the
ownership, acquisition and disposition of operating partnership interests as a
general partner and the management of the business of the operating partnership,
its operation as a public reporting company with a class (or classes) of
securities registered under the Exchange Act, its operation as a real estate
investment trust and activities that are incidental to these activities
(including ownership of any interest in AMB Property Holding Corporation, AMB
Property Holding II Corporation, AMB Property Holding III Corporation, AMB
Investment Management, Inc., Headlands Realty Corporation or a title holding,
manage-
47
<PAGE> 51
ment or finance subsidiary organized as a partnership, limited liability company
or corporation) without the consent of the holders of a majority of the limited
partnership interests. Unless they otherwise agree in writing, each limited
partner, and its affiliates, is free to engage in any business or activity, even
if the business or activity competes with or is enhanced by the business of the
operating partnership. The partnership agreement does not prevent another person
or entity that acquires control of AMB in the future from conducting other
businesses or owning other assets, even if it would be in the best interests of
the limited partners for the operating partnership to own those businesses or
assets. In the exercise of AMB's power and authority under the partnership
agreement, AMB may contract and otherwise deal with or otherwise obligate the
operating partnership to entities in which AMB or any one or more of AMB's
officers, directors or stockholders may have an ownership or other financial
interest.
OUR REIMBURSEMENT; TRANSACTIONS WITH US AND OUR AFFILIATES
AMB does not receive any compensation for its services as general partner
of the operating partnership. However, as a partner in the operating
partnership, AMB has rights to allocations and distributions as a partner of the
operating partnership. In addition, the operating partnership reimburses AMB for
all expenses AMB incurs relating to its activities as general partner, the
continued existence and qualification of AMB as a real estate investment trust
and all other liabilities that AMB incurs in connection with the pursuit of
AMB's business and affairs. AMB may retain persons or entities that it selects
(including itself, any entity in which it has an interest, or any entity with
which it is affiliated) to provide services to or on behalf of the operating
partnership. The operating partnership will reimburse AMB for all expenses
incurred relating to the ongoing operation of the operating partnership and any
issuance of additional partnership interests in the operating partnership. These
expenses include those incurred in connection with the administration and
activities of the operating partnership, such as the maintenance of the
operating partnership's books and records, management of the operating
partnership's property and assets, and preparation of information regarding the
operating partnership provided to the partners in the preparation of their
individual tax returns. Except as expressly permitted by the partnership
agreement, however, our affiliates will not engage in any transactions with the
operating partnership except on terms that are fair and reasonable to the
operating partnership and no less favorable to the operating partnership than it
would obtain from an unaffiliated third party.
AMB'S EXCULPATION AND INDEMNIFICATION
The partnership agreement generally provides that AMB, as general partner
of the operating partnership, will incur no liability to the operating
partnership or any limited partner for losses sustained, liabilities incurred,
or benefits not derived as a result of errors in judgment or for any mistakes of
fact or law or for anything that AMB may do or not do in connection with the
business and affairs of the operating partnership if AMB carries out its duties
in good faith. AMB's liability in any event is limited to its interest in the
operating partnership. AMB has no liability for the loss of any limited
partner's capital. In addition, AMB is not responsible for any misconduct,
negligent act or omission of any of our consultants, contractors or agents, or
any of the operating partnership's consultants, contractors or agents, and AMB
has no obligation other than to use good faith in the selection of all
contractors, consultants and agents. AMB may consult with counsel, accountants,
appraisers, management consultants, investment bankers, and other consul-
48
<PAGE> 52
tants and advisors that AMB selects. An opinion by a consultant on a matter that
AMB believes is within the consultant's professional or expert competence is
considered to be complete protection as to any action that AMB takes or fails to
take based on the opinion and in good faith.
The partnership agreement also requires the operating partnership to
indemnify AMB, its directors and officers, and other persons that AMB may from
time to time designate against any loss or damage, including reasonable legal
fees and court costs incurred by the person by reason of anything the person may
do or not do for or on behalf of the operating partnership or in connection with
its business or affairs unless it is established that:
- the act or omission of the indemnified person was material to the matter
giving rise to the proceeding and either the indemnified person committed
the act or omission in bad faith or as the result of active and
deliberate dishonesty;
- the indemnified person actually received an improper personal benefit in
money, property or services; or
- in the case of any criminal proceeding, the indemnified person had
reasonable cause to believe that the act or omission was unlawful. Any
indemnification claims must be satisfied solely out of the assets of the
operating partnership.
SALES OF ASSETS; LIQUIDATION
Under the partnership agreement, as general partner AMB generally has the
exclusive authority to determine whether, when and on what terms, the operating
partnership will sell its assets (including our properties, which AMB owns
through the operating partnership). However, AMB has agreed, in connection with
the contribution of properties from taxable investors in our formation
transactions and certain property acquisitions for limited units in the
operating partnership, not to dispose of certain assets in a taxable sale or
exchange for a mutually agreed upon period and, thereafter, to use commercially
reasonable or best efforts to minimize the adverse tax consequences of any sale.
We may enter into similar or other agreements in connection with other
acquisitions of properties for units.
A merger of the operating partnership with another entity generally
requires an affirmative vote of the partners (other than the preferred limited
partners) holding a majority of the outstanding percentage interest (including
the interest held directly or indirectly by AMB) of all partners other than
preferred limited partners, subject to certain consent rights of holders of
limited partnership units as described below under "Amendment of the Partnership
Agreement." A dissolution or liquidation of the operating partnership, including
a sale or disposition of all or substantially all of the operating partnership's
assets and properties, generally requires an affirmative vote of the limited
partners (other than the preferred limited partners) holding a majority of the
outstanding percentage interest of all limited partners other than preferred
limited partners.
CAPITAL CONTRIBUTION
The operating partnership's partnership agreement provides that if the
operating partnership requires additional funds at any time or from time to time
in excess of funds available to the operating partnership from borrowings or
capital contributions, AMB may borrow funds from a financial institution or
other lender or through public or private debt
49
<PAGE> 53
offerings and lend the funds to the operating partnership on the same terms and
conditions as are applicable to AMB's borrowing of the funds. As an alternative
to borrowing funds required by the operating partnership, AMB may contribute the
amount of the required funds as an additional capital contribution to the
operating partnership. If AMB contributes additional capital to the operating
partnership, its partnership interest in the operating partnership will be
increased on a proportionate basis. Conversely, the partnership interests of the
limited partners will be decreased on a proportionate basis if AMB makes
additional capital contributions.
DISTRIBUTIONS; ALLOCATIONS OF INCOME AND LOSS
The partnership agreement generally provides that the operating partnership
will make quarterly distributions of available cash (as defined below), as
determined in the manner provided in the partnership agreement, to the partners
of the operating partnership in proportion to their percentage interests in the
operating partnership (which for any partner is determined by the number of
units it owns relative to the total number of units outstanding). If any
preferred units are outstanding, the operating partnership will pay
distributions to holders of preferred units in accordance with the rights of
each class of preferred units (and, within each such class, pro rata in
proportion to the respective percentage interest of each holder), with any
remaining available cash distributed in accordance with the previous sentence.
"Available cash" is generally defined as net cash flow from operations, plus any
reduction in reserves, and minus interest and principal payments on debt,
capital expenditures, any additions to reserves and other adjustments. Other
than as described below, neither AMB nor the limited partners are currently
entitled to any preferential or disproportionate distributions of available cash
with respect to the units.
SERIES A PREFERRED UNITS
In connection with the sale of the Series A Preferred Stock, AMB received
Series A Preferred Units in the operating partnership that mirror the rights,
preferences and other terms of the Series A Preferred Stock. The Series A
Preferred Units rank, with respect to distribution rights and rights upon
liquidation, winding up or dissolution of the operating partnership:
- senior to the common units and to all units that provide that they rank
junior to the Series A Preferred Units;
- junior to all units which rank senior to the Series A Preferred Units;
and
- on a parity with the Series B Preferred Units, any Series C Preferred
Units and any Series D Preferred Units that the operating partnership may
issue to us (see "-- Series C Preferred Units" and "-- Series D Preferred
Units") and all other units expressly designated by the operating
partnership to rank on a parity with the Series A Preferred Units.
AMB receives preferred distributions of cash and preferred allocations of
income on the Series A Preferred Units in an amount equal to the dividends
payable by AMB on the Series A Preferred Stock. If AMB acquires any Series B
Preferred Units from the holders pursuant to the exercise of their exchange
rights, or if the operating partnership issues any Series C Preferred Units or
Series D Preferred Units to AMB, AMB will receive preferred distributions of
cash and preferred allocations of income on the Series B Preferred Units,
50
<PAGE> 54
Series C Preferred Units or Series D Preferred Units in an amount equal to the
dividends payable by AMB on the Series B Preferred Stock, Series C Preferred
Stock or Series D Preferred Stock, as the case may be. See "-- Series C
Preferred Units" and "-- Series D Preferred Units."
As a consequence, AMB will receive distributions from the operating
partnership sufficient to pay dividends on the Series A Preferred Stock and any
Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
before any other partner in the operating partnership (other than holders of
parity preferred units) receives a distribution. In addition, if necessary,
income will be specially allocated to AMB and losses will be allocated to the
other partners of the operating partnership in amounts necessary to ensure that,
to the extent possible, the balance in AMB's capital account will at all times
be equal to or in excess of the amount payable by AMB on the Series A Preferred
Stock and any Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock upon liquidation or redemption. See "Certain Federal Income Tax
Considerations -- Tax Aspects of the Operating Partnership and the Joint
Ventures -- Allocations of Operating Partnership Income, Gain, Loss and
Deduction."
SERIES B PREFERRED UNITS
General. The Series B Preferred Units rank, with respect to distribution
rights and rights upon liquidation, winding up or dissolution of the operating
partnership:
- senior to the common units of the operating partnership and to all units
of the operating partnership that provide that they rank junior to the
Series B Preferred Units;
- junior to all units which rank senior to the Series B Preferred Units;
and
- on a parity with the Series A Preferred Units, any Series C Preferred
Units, any Series D Preferred Units and all other units expressly
designated by the operating partnership to rank on a parity with the
Series B Preferred Units.
Subject to the rights of holders of parity preferred units (including the
Series A Preferred Units, any Series C Preferred Units and any Series D
Preferred Units), holders of the Series B Preferred Units are entitled to
receive, when, as and if declared by the operating partnership, acting through
AMB as general partner, cumulative preferential cash distributions in an amount
equal to 8 5/8% per annum on an amount equal to $50.00 per Series B Preferred
Unit then outstanding (equivalent to $4.3125 per annum). These distributions are
payable on the 15th day of January, April, July and October of each year.
Exchange Rights. The Series B Preferred Units are exchangeable in whole at
any time on or after November 12, 2008, at the option of 51% of the holders of
all outstanding Series B Preferred Units, on a one for one basis, subject to
adjustment, for shares of AMB's Series B Preferred Stock. In addition, the
Series B Preferred Units are exchangeable in whole at any time at the option of
51% of the holders of all outstanding Series B Preferred Units if:
- any Series B Preferred Unit shall not have received full distributions
with respect to six prior quarterly distribution periods (whether or not
consecutive); or
- AMB or one of its subsidiaries take the position, and a holder or holders
of Series B Preferred Units receive an opinion of independent counsel
that the
51
<PAGE> 55
operating partnership is, or upon the happening of a certain event likely
will be, a "publicly traded partnership" within the meaning of the
Internal Revenue Code.
The Series B Preferred Units are exchangeable in whole for shares of Series
B Preferred Stock at any time after November 12, 2001 and prior to November 12,
2008 at the option of 51% of the holders of all outstanding Series B Preferred
Units if those holders deliver to AMB as general partner a private letter ruling
or an opinion of independent counsel to the effect that an exchange of the
Series B Preferred Units at that time would not cause the Series B Preferred
Units to be considered "stock and securities" within the meaning of the Internal
Revenue Code for purposes of determining whether the holder of Series B
Preferred Units is an "investment company" under the Internal Revenue Code.
With certain limitations, the Series B Preferred Units are also
exchangeable in whole at any time for shares of Series B Preferred Stock
(regardless of whether held by the initial purchaser) if:
- the initial purchaser of the Series B Preferred Units reasonably
concludes that there exists an imminent and substantial risk that the
initial purchaser's interest in the operating partnership represents or
will represent more than 19.5% of the total profits or capital interests
in the operating partnership for a taxable year;
- the initial purchaser of the Series B Preferred Units delivers to AMB an
opinion to the effect that there is a substantial risk that the initial
purchaser's interest in the operating partnership represents or will
represent more than 19.5% of the total profits or capital interests in
the operating partnership for a taxable year; and
- AMB, as the general partner, agrees with the conclusions in the bullet
points above; provided, that AMB may not unreasonably withhold its
agreement.
In lieu of an exchange for Series B Preferred Stock, AMB may elect to cause
the operating partnership to redeem Series B Preferred Units for cash in an
amount equal to the original capital account balance of the Series B Preferred
Units plus all accrued and unpaid distributions to the date of redemption. A
holder of Series B Preferred Units will not be entitled to exchange the units
for Series B Preferred Stock if the exchange would result in a violation of the
ownership limit. See "Description of Capital Stock -- Restrictions on Ownership
and Transfer of Capital Stock."
Redemption. On or after November 12, 2003, the operating partnership has
the right to redeem the Series B Preferred Units, in whole or in part from time
to time, at a redemption price payable in cash equal to the capital account
balance of the holder, provided that the amount shall not be less than $50.00
per Series B Preferred Unit. The operating partnership must pay the redemption
price solely out of the sale proceeds of AMB's capital stock or interests in the
operating partnership and from no other source. The operating partnership may
not redeem fewer than all of the Series B Preferred Units unless the operating
partnership has paid all accumulated and unpaid distributions on all Series B
Preferred Units for all quarterly distribution periods terminating on or prior
to the date of redemption.
52
<PAGE> 56
Limited Approval Rights. For so long as any Series B Preferred Units are
outstanding, without the affirmative vote of the holders of at least two-thirds
of the Series B Preferred Units outstanding at the time, the operating
partnership may not:
- authorize, create or increase the authorized or issued amount of, or
reclassify, any class or series of partnership interests, or create,
authorize or issue any obligations or security convertible into or
evidencing the right to purchase any partnership interests, ranking prior
to the Series B Preferred Units;
- authorize, create or increase the authorized or issued amount of, or
reclassify, any class or series of partnership interests, or create,
authorize or issue any obligations or security convertible into or
evidencing a right to purchase any partnership interests, ranking equal
to the Series B Preferred Units, but only to the extent that such
securities are issued to an affiliate of the operating partnership, other
than AMB to the extent that the issuance is to allow AMB to issue
corresponding shares of Series B Preferred Stock to persons who are not
affiliates of the operating partnership; or
- either consolidate, merge into or with, or convey, transfer or lease its
assets substantially as an entirety to, any corporation or other entity
or amend, alter or repeal the provisions of the partnership agreement, in
a manner that would materially and adversely affect the powers, special
rights, preferences, privileges or voting power of the Series B Preferred
Units. So long as the operating partnership is the surviving entity and
the Series B Preferred Units remain outstanding on the same terms, or the
resulting, surviving or transferee entity is a partnership, limited
liability company or other pass-through entity and substitutes the Series
B Preferred Units for other interests in such entity, with substantially
the same terms and rights, then the occurrence of any of the events
listed above in this bullet point will not be considered to materially
and adversely affect such rights, privileges or voting powers.
Other than as discussed above or elsewhere in this prospectus, the holders
of Series B Preferred Units have no voting rights other than with respect to
certain matters that would adversely affect them or as otherwise provided by
applicable law.
Liquidation Preference. The distribution and income allocation provisions
of the partnership agreement have the effect of providing each Series B
Preferred Unit with a liquidation preference to each holder of Series B
Preferred Units equal to the holder's capital contributions, plus any accrued
but unpaid distributions, in preference to any other class or series of
partnership interest of the operating partnership, other than any Series A
Preferred Units, any Series C Preferred Units and any Series D Preferred Units.
Registration Rights. AMB has agreed to file a registration statement
registering the resale of the shares of Series B Preferred Stock issuable to the
holders of Series B Preferred Units as soon as practicable but not later than 60
days after the date the Series B Preferred Units are exchanged for shares of
Series B Preferred Stock. AMB has also agreed to use its best efforts to cause
the registration statement to be declared effective within 120 days after the
date of the exchange.
SERIES C PREFERRED UNITS
As described under "Description of Capital Stock -- Preferred
Stock -- Series C Preferred Stock," holders of Series C Preferred Units of AMB
Property II may exchange
53
<PAGE> 57
their units for shares of our Series C Preferred Stock. If AMB issues Series C
Preferred Stock, AMB will:
- contribute 99% of the Series C Preferred Units of AMB Property II to the
operating partnership in exchange for Series C Preferred Units in the
operating partnership that mirror the rights, preferences and other terms
of the Series C Preferred Stock; and
- contribute 1% of the Series C Preferred Units of AMB Property II to AMB
Property Holding Corporation.
Any Series C Preferred Units will rank on a parity with the Series A
Preferred Units, Series B Preferred Units and any Series D Preferred Units. As a
consequence, AMB would receive distributions from the operating partnership that
AMB would use to pay dividends on any Series C Preferred Stock and the Series A
Preferred Stock before any other partner in the operating partnership (other
than holders of parity preferred units).
SERIES D PREFERRED UNITS
As described under "Description of Capital Stock -- Preferred
Stock -- Series D Preferred Stock," holders of Series D Preferred Units of AMB
Property II may exchange their units for shares of AMB's Series D Preferred
Stock. If AMB issues Series D Preferred Stock, it will:
- contribute 99% of the Series D Preferred Units of AMB Property II to the
operating partnership in exchange for Series D Preferred Units in the
operating partnership that mirror the rights, preferences and other terms
of the Series D Preferred Stock; and
- contribute 1% of the Series D Preferred Units of AMB Property II to AMB
Property Holding Corporation.
Any Series D Preferred Units will rank on a parity with the Series A
Preferred Units, Series B Preferred Units and any Series C Preferred Units. As a
consequence, AMB would receive distributions from the operating partnership that
AMB would use to pay dividends on any Series D Preferred Stock and the Series A
Preferred Stock, Series B Preferred Stock and Series C Preferred Stock before
any other partner in the operating partnership (other than holders of parity
preferred units).
COMMON LIMITED PARTNERSHIP UNITS
Redemption/Exchange Rights. Holders of common limited partnership units in
the operating partnership have the right, commencing generally on or before the
first anniversary of the holder becoming a limited partner of the operating
partnership (or such other date agreed to by the operating partnership and the
applicable unit holders), to require the operating partnership to redeem part or
all of their common units for cash (based upon the fair market value of an
equivalent number of shares of common stock at the time of redemption) or AMB
may, in its sole and absolute discretion (subject to the limits on ownership and
transfer of common stock set forth in AMB's charter) elect to exchange those
common units for shares of common stock (on a one-for-one basis, subject to
adjustment in the event of stock splits, stock dividends, issuance of certain
rights, certain extraordinary distributions and similar events). AMB presently
anticipates that it will generally elect to issue shares of common stock in
exchange for common units in
54
<PAGE> 58
connection with a redemption request; however, the operating partnership has
paid cash and may in the future pay cash for a redemption of common units. With
each redemption or exchange, AMB's percentage ownership interest in the
operating partnership will increase. Common limited partners may exercise this
redemption/exchange right from time to time, in whole or in part, subject to the
limitations that limited partners may not exercise the right if exercise would
result in any person actually or constructively owning shares of common stock in
excess of the ownership limit or any other amount specified by AMB's board of
directors, assuming common stock was issued in the exchange. Holders of
performance units also have limited redemption/exchange rights, as discussed
under the caption "-- Performance Units" below.
Registration Rights. AMB has granted to common limited partners certain
registration rights with respect to the shares of stock issuable upon exchange
of common limited partnership units in the operating partnership or otherwise.
AMB has agreed to file and generally keep continuously effective generally
beginning on or as soon as practicable after one year after issuance of common
limited partnership units a registration statement covering the issuance of
shares of common stock upon exchange of the units and the resale of the shares.
See "Risk Factors -- Ownership of Common Stock -- The Large Number of Shares
Available for Future Sale Could Adversely Affect the Market Price of AMB's
Common Stock." AMB will bear expenses incident to its registration obligations
upon exercise of registration rights, including the payment of federal
securities law and state Blue Sky registration fees, except that AMB will not
bear any underwriting discounts or commissions or transfer taxes relating to
registration of the shares.
PERFORMANCE UNITS
Notwithstanding the foregoing discussion of distributions and allocations
of income or loss of the operating partnership, depending on the trading price
of AMB's common stock after November 26, 1998 (the first anniversary of AMB's
initial public offering), certain of AMB's officers, in their capacity as
limited partners of the operating partnership, may receive performance units as
of each of February 26, May 26, August 26 and November 26, 1999. The performance
units are similar to common units in many respects, including the right to share
in operating distributions, and allocations of operating income and loss, of the
operating partnership on a pro rata basis with common limited partnership units,
and certain redemption and exchange rights, including limited rights to cause
the operating partnership to redeem the performance units for cash or, at AMB's
option, to exchange the performance units for shares of common stock. Any
redemption rights with respect to performance units, however, will be dependent
upon an increase in the value of the assets of the operating partnership (in
some cases measured by reference to the trading price of the shares of common
stock) after the issuance of the performance units. If there is no increase, the
holders of performance units will not be entitled to receive any proceeds upon
the liquidation of the operating partnership or the redemption of their
performance units.
Immediately prior to AMB's initial public offering, certain investors owned
assets that were subject to advisory agreements with AMB Institutional Realty
Advisors, Inc. containing an incentive fee provision or a "catch up adjustment."
We refer to these investors as "performance investors." If officers receive
performance units, an equal number of general partnership units allocable to AMB
and units allocable to performance investors who are limited partners in the
operating partnership will be transferred to the operating partnership. If any
of AMB's general partnership units are transferred to the
55
<PAGE> 59
operating partnership as a result of the issuance of performance units, an equal
number of shares of common stock (the "performance shares") will be transferred
to AMB by the applicable performance investors. Accordingly, no AMB stockholder
or limited partner in the operating partnership (other than performance
investors, to the extent of their obligations to transfer performance shares to
AMB or the operating partnership, as applicable) will be diluted as a result of
the issuance of performance units.
REMOVAL OF THE GENERAL PARTNER; TRANSFERABILITY OF AMB'S INTERESTS; TREATMENT OF
LIMITED PARTNERSHIP UNITS IN SIGNIFICANT TRANSACTIONS
The limited partners may not remove AMB as general partner of the operating
partnership, with or without cause, other than with AMB's consent. The
partnership agreement provides that AMB may not withdraw from the operating
partnership (whether by sale, statutory merger, consolidation, liquidation or
otherwise) without the consent of a majority in interest of the limited partners
other than the preferred limited partners. However, except as set forth below,
AMB may transfer or assign its general partner interest in connection with a
merger, consolidation or sale of substantially all of its assets without limited
partner consent.
Neither AMB nor the operating partnership may engage in any merger,
consolidation or other combination with or into another person, or effect any
reclassification, recapitalization or change of its outstanding equity
interests, and AMB may not sell all or substantially all of its assets (each a
"termination transaction") unless in connection with the termination transaction
all holders of limited partnership units other than preferred units either will
receive, or will have the right to elect to receive, for each unit an amount of
cash, securities or other property equal to the product of the number of shares
of common stock into which each unit is then exchangeable and the greatest
amount of cash, securities or other property paid to the holder of one share in
consideration of one share pursuant to the termination transaction. If, in
connection with the termination transaction, a purchase, tender or exchange
offer shall have been made to and accepted by the holders of the outstanding
shares of common stock, each holder of limited partnership units other than
preferred units will receive, or will have the right to elect to receive, the
greatest amount of cash, securities or other property that the holder would have
received had it exercised its right to redemption and received shares of common
stock in exchange for its units immediately prior to the expiration of the
purchase, tender or exchange offer and had accepted the purchase, tender or
exchange offer. Any performance units issued will also have the benefit of these
provisions, irrespective of the capital account then applicable to the
performance units.
A termination transaction may also occur if the following conditions are
met:
- substantially all of the assets directly or indirectly owned by the
surviving entity are held directly or indirectly by the operating
partnership or another limited partnership or limited liability company
which is the survivor of a merger, consolidation or combination of assets
with the operating partnership;
- the holders of common limited partnership units, including the holders of
any performance units issued, own a percentage interest of the surviving
partnership based on the relative fair market value of the net assets of
the operating partnership and the other net assets of the surviving
partnership immediately prior to the consummation of the transaction;
56
<PAGE> 60
- the rights, preferences and privileges of the holders in the surviving
partnership, including the holders of performance units issued or to be
issued, are at least as favorable as those in effect immediately prior to
the consummation of such transaction and as those applicable to any other
limited partners or non-managing members of the surviving partnership
(except, as to performance units, for such differences with units
regarding liquidation, redemption or exchange as are described in this
prospectus); and
- such rights of the common limited partners, including the holders of
performance units issued or to be issued, include at least one of the
following:
- the right to redeem their interests in the surviving partnership for
the consideration available to them pursuant to the preceding
paragraph; or
- the right to redeem their units for cash on terms equivalent to those
in effect immediately prior to the consummation of the transaction,
or, if the ultimate controlling person of the surviving partnership
has publicly traded common equity securities, the common equity
securities, with an exchange ratio based on the relative fair market
value of the securities and the common stock.
AMB's board of directors will reasonably determine fair market values and
rights, preferences and privileges of the common limited partners of the
operating partnership as of the time of the termination transaction and, to the
extent applicable, the values will be no less favorable to the holders of common
limited partnership units than the relative values reflected in the terms of the
termination transaction.
In addition, in the event of a termination transaction, the arrangements
with respect to performance units and performance shares (as defined under
"-- Performance Units") will be equitably adjusted to reflect the terms of the
transaction, including, to the extent that the shares are exchanged for
consideration other than publicly traded common equity, the transfer or release
of remaining performance shares, and resulting issuance of any performance
units, as of the consummation of the termination transaction.
DUTIES AND CONFLICTS
Except as otherwise provided by our conflicts of interest policies with
respect to directors and officers and as provided in the non-competition
agreements described under "Risk Factors -- Conflicts of Interest -- Some of Our
Executive Officers are Involved in Other Real Estate Activities and
Investments," any limited partner of the operating partnership may engage in
other business activities outside the operating partnership, including business
activities that directly compete with the operating partnership.
MEETINGS; VOTING
As general partner, AMB may call meetings of the limited partners of the
operating partnership, on its own motion, or upon written request of limited
partners owning at least 25% of the then outstanding limited partnership units.
Limited partners may vote either in person or by proxy at meetings. Limited
partners may take any action that they are required or permitted to take either
at a meeting of the limited partners or without a meeting if consents in writing
setting forth the action taken are signed by limited partners owning not less
than the minimum number of units that would be necessary to authorize or take
the action at a meeting of the limited partners at which all limited partners
entitled
57
<PAGE> 61
to vote on the action were present. On matters for which limited partners are
entitled to vote, each limited partner has a vote equal to the number of units
the limited partner holds. A transferee of limited partnership units who has not
been admitted as a substituted limited partner with respect to the units will
have no voting rights with respect to the units, even if the transferee holds
other units as to which it has been admitted as a limited partner. The
partnership agreement does not provide for, and AMB does not anticipate calling,
annual meetings of the limited partners.
AMENDMENT OF THE PARTNERSHIP AGREEMENT
Amendments to the operating partnership's partnership agreement may be
proposed by AMB or by limited partners owning at least 25% of the then
outstanding limited partnership units entitled to vote. Generally, the
partnership agreement may be amended with AMB's approval, as general partner,
and partners (including AMB but not including the preferred limited partners)
holding a majority of the percentage interest of all partners other than
preferred limited partners. Certain provisions regarding, among other things,
AMB's rights and duties as general partner (e.g., restrictions on our power to
conduct businesses other than as denoted herein) or the dissolution of the
operating partnership, may not be amended without the approval of limited
partners (other than preferred limited partners) holding a majority of the
percentage interests of the limited partners other than preferred limited
partners. As general partner, AMB has the power, without the consent of the
limited partners, to amend the partnership agreement as may be required to,
among other things:
- add to its obligations as general partner or surrender any right or power
granted to it as general partner;
- reflect the admission, substitution, termination or withdrawal of
partners in accordance with the terms of the partnership agreement;
- establish the rights, powers, duties and preferences of any additional
partnership interests issued in accordance with the terms of the
partnership agreement;
- reflect a change of an inconsequential nature that does not materially
adversely affect any limited partner, or cure any ambiguity, correct or
supplement any provisions of the partnership agreement not inconsistent
with law or with other provisions of the partnership agreement, or make
other changes concerning matters under the partnership agreement that are
not otherwise inconsistent with the partnership agreement or applicable
law; or
- satisfy any requirements of federal, state or local law.
AMB must approve, and each limited partner that would be adversely affected
must approve, certain amendments to the partnership agreement, including
amendments effected directly or indirectly through a merger or sale of assets of
the operating partnership or otherwise, that would, among other things,
- convert a limited partner's interest into a general partner's interest;
- modify the limited liability of a limited partner;
- alter the interest of a partner in profits or losses, or the rights to
receive any distributions (except as permitted under the partnership
agreement with respect to the admission of new partners or the issuance
of additional units, either of which
58
<PAGE> 62
actions will have the effect of changing the percentage interests of the
partners and thereby altering their interests in profits, losses and
distributions); or
- alter the limited partner's redemption right.
These protections apply to both holders of common limited partnership units
and holders of performance units. In addition, no amendment may be effected,
directly or indirectly, through a merger or sale of assets of the operating
partnership or otherwise, which would adversely affect the rights of former
stockholders of AMB Institutional Realty Advisors to receive performance units.
BOOKS AND REPORTS
The operating partnership's books and records are maintained at the
principal office of the operating partnership, which is located at 505
Montgomery Street, San Francisco, California 94111. All elections and options
available to the operating partnership for federal or state income tax purposes
may be taken or rejected by the operating partnership in AMB's sole discretion
as general partner. The limited partners have the right, subject to certain
limitations, to receive copies of the most recent SEC filings by AMB and the
operating partnership, the operating partnership's federal, state and local
income tax returns, a list of limited partners, the partnership agreement, the
partnership certificate and all amendments and certain information about the
capital contributions of the partners. We may keep confidential from the limited
partners any information that we believe to be in the nature of trade secrets or
other information the disclosure of which the we in good faith believe is not in
the best interests of the operating partnership or which the operating
partnership is required by law or by agreements with unaffiliated third parties
to keep confidential.
We will use reasonable efforts to furnish to each limited partner, within
90 days after the close of each taxable year, the tax information reasonably
required by the limited partners for federal and state income tax reporting
purposes.
TERM
The operating partnership will continue in full force and effect for
approximately 99 years or until sooner dissolved pursuant to the terms of the
partnership agreement.
CERTAIN PROVISIONS OF MARYLAND LAW AND OF
AMB'S CHARTER AND BYLAWS
We have summarized certain terms and provisions of the Maryland General
Corporation Law and AMB's charter and bylaws. This summary is not complete and
is qualified by the provisions of AMB's charter and bylaws and the Maryland
General Corporation Law. For more detail, you should refer to AMB's charter and
bylaws, which are exhibits to the registration statement of which this
prospectus is a part. See "Where You Can Find More Information."
BOARD OF DIRECTORS
AMB's charter provides that the number of its directors shall be
established by the bylaws, but cannot be less than the minimum number required
by the Maryland General
59
<PAGE> 63
Corporation Law, which in the case of AMB is three. AMB's bylaws currently
provide that the AMB's board of directors consists of not fewer than five nor
more than 13 members who are elected to a one-year term at each annual meeting
of stockholders. A majority of the entire board of directors may fill any
vacancy (except for a vacancy caused by removal). AMB's bylaws provide that a
majority of AMB's board of directors must be "independent directors." An
"independent director" is a director who is not:
- an employee, officer or affiliate of us or one of our subsidiaries or
divisions;
- a relative of a principal executive officer; or
- an individual member of an organization acting as advisor, consultant or
legal counsel, receiving compensation on a continuing basis from us in
addition to director's fees.
REMOVAL OF DIRECTORS
While AMB's charter and the Maryland General Corporation Law empower AMB's
stockholders to fill vacancies in AMB's board of directors that are caused by
the removal of a director, the charter precludes stockholders from removing
incumbent directors except upon a substantial affirmative vote. Specifically,
the charter provides that stockholders may remove a director only for cause and
only by the affirmative vote of at least two-thirds of the votes entitled to be
cast in the election of directors, subject to the rights of the holders of
shares of AMB's preferred stock to elect and remove directors elected by such
holders under certain circumstances. The Maryland General Corporation Law does
not define the term "cause." As a result, removal for "cause" is subject to
Maryland common law and to judicial interpretation and review in the context of
the unique facts and circumstances of any particular situation. This provision,
when coupled with the provision in AMB's bylaws authorizing AMB's board of
directors to fill vacant directorships, precludes stockholders from removing
incumbent directors except upon a substantial affirmative vote and filling the
vacancies created by removal with their own nominees.
OPT OUT OF BUSINESS COMBINATIONS AND CONTROL SHARE ACQUISITION STATUTES
AMB has elected in its bylaws not to be governed by the "control share
acquisition" provisions of the Maryland General Corporation Law (Sections 3-701
through 3-709), and AMB's board of directors has determined, by irrevocable
resolution, that AMB will not be governed by the "business combination"
provision of the Maryland General Corporation Law (Section 3-602), each of which
could have the effect of delaying or preventing a change of control. AMB's
bylaws provide that AMB cannot at a future date determine to be governed by
either provision without the approval of a majority of the outstanding shares
entitled to vote. In addition, the irrevocable resolution adopted by AMB's board
of directors may only be changed by the approval of a majority of the
outstanding shares entitled to vote.
AMENDMENT TO AMB'S AND BYLAWS
AMB's charter may not be amended without the amendment being declared
advisable by AMB's board of directors and approved by the stockholders by the
affirmative vote of at least two-thirds of all votes entitled to be cast on the
matter. AMB's bylaws may be amended by the vote of a majority of AMB's board of
directors or by the affirmative vote
60
<PAGE> 64
of a majority of the shares of AMB's capital stock entitled to vote on the
amendment, except with respect to the following bylaw provisions (each of which
may not be amended without the approval of a majority of the shares of capital
stock entitled to vote on the amendment):
- provisions opting out of the control share acquisition statute and the
business combination statute;
- the requirement in AMB's bylaws that AMB's independent directors approve
certain transactions involving AMB's executive officers or directors or
any limited partners of the operating partnership and their affiliates;
- provisions governing amendment of AMB's bylaws.
MEETINGS OF STOCKHOLDERS
AMB's bylaws provide for annual meetings of stockholders to elect the board
of directors and transact other business as may properly be brought before the
meeting. The President, the board of directors and the Chairman of the Board may
call a special meeting of stockholders. The holders of 50% or more of our
outstanding stock entitled to vote may also make a written request to call a
special meeting of stockholders.
The Maryland General Corporation Law provides that stockholders may act by
unanimous written consent without a meeting with respect to any action that they
are required or permitted to take at a meeting, if each stockholder entitled to
vote on the matter signs the consent setting forth the action and each
stockholder entitled to notice of the meeting but not entitled to vote at the
meeting signs a written waiver of any right to dissent.
ADVANCE NOTICE OF DIRECTOR NOMINATIONS AND NEW BUSINESS
AMB's bylaws provide that with respect to an annual meeting of
stockholders, nominations of persons for election to the board of directors and
the proposal of business to be considered by stockholders may be made only:
- pursuant to the notice of the meeting;
- by or at the direction of AMB's board of directors; or
- by a stockholder who is entitled to vote at the meeting and has complied
with the advance notice procedures set forth in AMB's bylaws.
AMB's bylaws also provide that with respect to special meetings of
stockholders, only the business specified in the notice of meeting may be
brought before the meeting.
The provisions in AMB's charter regarding amendments to the charter and the
advance notice provisions of AMB's bylaws could have the effect of discouraging
a takeover or other transaction in which holders of some, or a majority, of the
shares of common stock might receive a premium for their shares over the then
prevailing market price or which holders might believe to be otherwise in their
best interests.
61
<PAGE> 65
DISSOLUTION OF AMB
Under the Maryland General Corporation Law, dissolution of AMB must be
advised by a majority of the entire board of directors and approved by the
stockholders by the affirmative vote of at least two-thirds of all the votes
entitled to be cast on the matter.
LIMITATION OF DIRECTORS' AND OFFICERS' LIABILITY
AMB's officers and directors are indemnified under the Maryland General
Corporation Law, AMB's charter and the operating partnership's partnership
agreement against certain liabilities. AMB's charter and bylaws require AMB to
indemnify its directors and officers to the fullest extent permitted from time
to time by the Maryland General Corporation Law.
The Maryland General Corporation Law permits a corporation to indemnify its
directors and officers and certain other parties against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service in those or other capacities unless:
- the act or omission of the director or officer 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;
- the director or officer actually received an improper personal benefit in
money, property or services; or
- in the case of any criminal proceeding, the director or officer had
reasonable cause to believe that the act or omission was unlawful.
A corporation may indemnify a director or officer against judgments,
penalties, fines, settlements and reasonable expenses that the director or
officer actually incurs in connection with the proceeding unless the proceeding
is one by or in the right of the corporation and the director or officer has
been adjudged to be liable to the corporation. In addition, a corporation may
not indemnify a director or officer with respect to any proceeding charging
improper personal benefit to the director or officer in which the director or
officer was adjudged to be liable on the basis that personal benefit was
received. The termination of any proceeding by conviction, or upon a plea of
nolo contendere or its equivalent, or an entry of any order of probation prior
to judgment, creates a rebuttable presumption that the director or officer did
not meet the requisite standard of conduct required for indemnification to be
permitted.
The Maryland General Corporation Law permits the charter of a Maryland
corporation to include a provision limiting the liability of its directors and
officers to the corporation and its stockholders for money damages, subject to
specified restrictions. AMB's charter contains this provision. The Maryland
General Corporation Law does not, however, permit the liability of directors and
officers to the corporation or its stockholders to be limited to the extent
that:
- it is proved that the person actually received an improper personal
benefit in money, property or services;
- a judgment or other final adjudication is entered in a proceeding based
on a finding that the person's action, or failure to act, was committed
in bad faith or was the
62
<PAGE> 66
result of active and deliberate dishonesty and was material to the cause
of action adjudicated in the proceeding; or
- in the case of any criminal proceeding, the director had reasonable cause
to believe that the act or failure to act was unlawful.
This provision does not limit the ability of AMB or its stockholders to
obtain other relief, such as an injunction or rescission. The operating
partnership's partnership agreement also provides for the indemnification of
AMB, as general partner, and AMB's officers and directors to the same extent
indemnification is provided to AMB's officers and directors in AMB's charter,
and limits AMB's liability and the liability of AMB's officers and directors to
the operating partnership and the partners of the operating partnership to the
same extent liability of AMB's officers and directors to AMB and AMB's
stockholders is limited under AMB's charter. See "Description of Certain
Provisions of the Partnership Agreement of the Operating Partnership -- AMB's
Exculpation and Indemnification."
Insofar as the foregoing provisions permit indemnification for liability
arising under the Securities Act of directors, officers or persons controlling
us, we have been informed that, in the opinion of the SEC, this indemnification
is against public policy as expressed in the Securities Act and is therefore
unenforceable.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following summary of certain federal income tax considerations
regarding AMB and the common stock AMB is registering is based on current law,
is for general information only and is not tax advice. The information set forth
below, to the extent that it constitutes matters of law, summaries of legal
matters or legal conclusions, is the opinion of Latham & Watkins. Your tax
treatment will vary depending on your particular situation, and this discussion
does not purport to deal with all aspects of taxation that may be relevant to a
holder of common stock in light of his or her personal investments or tax
circumstances, or to stockholders who receive special treatment under the
federal income tax laws except to the extent discussed under the headings
"-- Taxation of Tax-Exempt Stockholders" and "-- Taxation of Non-U.S.
Stockholders." Stockholders receiving special treatment include, without
limitation, insurance companies, financial institutions or broker-dealers,
tax-exempt organizations, stockholders holding securities as part of a
conversion transaction, or a hedge or hedging transaction or as a position in a
straddle for tax purposes, foreign corporations or partnerships and persons who
are not citizens or residents of the United States. In addition, the summary
below does not consider the effect of any foreign, state, local or other tax
laws that may be applicable to you as a holder of AMB's common stock.
The information in this section is based on the Internal Revenue Code,
current, temporary and proposed treasury regulations promulgated under the
Internal Revenue Code, the legislative history of the Internal Revenue Code,
current administrative interpretations and practices of the Internal Revenue
Service, including its practices and policies as expressed in certain private
letter rulings which are not binding on the Internal Revenue Service except with
respect to the particular taxpayers who requested and received such rulings, and
court decisions, all as of the date of this prospectus. Future legislation,
treasury regulations, administrative interpretations and practices and/or court
decisions may adversely affect the tax considerations described in this
prospectus. Any such change could apply retroactively to transactions preceding
the date of the change. We
63
<PAGE> 67
have not requested, and do not plan to request, any rulings from the Internal
Revenue Service concerning our tax treatment and the statements in this
prospectus are not binding on the Internal Revenue Service or a court. Thus, we
can provide no assurance that the tax considerations contained in this summary
will not be challenged by the Internal Revenue Service or sustained by a court
if challenged by the Internal Revenue Service.
YOU ARE URGED TO CONSULT YOUR TAX ADVISOR REGARDING THE SPECIFIC TAX
CONSEQUENCES TO YOU OF (1) THE ACQUISITION, OWNERSHIP AND SALE OR OTHER
DISPOSITION OF AMB'S COMMON STOCK, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN
AND OTHER TAX CONSEQUENCES OF SUCH ACQUISITION, OWNERSHIP AND SALE OR OTHER
DISPOSITION, (2) AMB'S ELECTION TO BE TAXED AS A REAL ESTATE INVESTMENT TRUST
FOR FEDERAL INCOME TAX PURPOSES AND (3) OF POTENTIAL CHANGES IN APPLICABLE TAX
LAWS.
TAXATION OF AMB
General. AMB elected to be taxed as a real estate investment trust under
Sections 856 through 860 of the Internal Revenue Code, commencing with its
taxable year ended December 31, 1997. AMB believes it has been organized and has
operated in a manner which allows it to qualify for taxation as a real estate
investment trust under the Internal Revenue Code commencing with its taxable
year ended December 31, 1997. AMB intends to continue to operate in this manner.
However, the qualification and taxation as a real estate investment trust
depends upon AMB's ability to meet, through actual annual operating results,
asset diversification, distribution levels and diversity of stock ownership, the
various qualification tests imposed under the Internal Revenue Code.
Accordingly, no assurance can be given that AMB has operated or will continue to
operate in a manner so as to qualify or remain qualified as a real estate
investment trust. See "-- Failure to Qualify."
The sections of the Internal Revenue Code that relate to the qualification
and operation as a real estate investment trust are highly technical and
complex. The following sets forth the material aspects of the sections of the
Internal Revenue Code that govern the federal income tax treatment of a real
estate investment trust and its stockholders. This summary is qualified in its
entirety by the applicable Internal Revenue Code provisions, relevant rules and
regulations promulgated under the Internal Revenue Code, and administrative and
judicial interpretations of the Internal Revenue Code and these rules and
regulations.
If AMB qualifies for taxation as a real estate investment trust, it
generally will not be subject to federal corporate income taxes on its net
income that is currently distributed to stockholders. This treatment
substantially eliminates the "double taxation" that generally results from
investment in a corporation. Double taxation refers to taxation that occurs once
at the corporate level when income is earned and once again at the stockholder
level when such income is distributed. AMB will be subject to federal income
tax, however, as follows:
First, AMB will be taxed at regular corporate rates on any undistributed
real estate investment trust taxable income, including undistributed net capital
gains.
Second, AMB may be required to pay the "alternative minimum tax" on its
items of tax preference.
64
<PAGE> 68
Third, if AMB has (1) net income from the sale or other disposition of
"foreclosure property" which is held primarily for sale to customers in the
ordinary course of business or (2) other nonqualifying income from foreclosure
property, AMB will be subject to tax at the highest corporate rate on this
income. Foreclosure property is generally defined as property we acquired
through foreclosure or after a default on a loan secured by the property or a
lease of the property.
Fourth, AMB will be subject to a 100% tax on any net income from prohibited
transactions. Prohibited transactions are, in general, sales or other taxable
dispositions of property, other than foreclosure property, held primarily for
sale to customers in the ordinary course of business.
Fifth, if AMB fails to satisfy the 75% or 95% gross income test, as
described below, but has otherwise maintained its qualification as a real estate
investment trust, AMB will be required to pay a 100% tax on an amount equal to
(1) the gross income attributable to the greater of the amount by which AMB
fails the 75% or 95% gross income test multiplied by (2) a fraction intended to
reflect AMB's profitability.
Sixth, AMB will be required to pay a 4% excise tax on the excess of the
required distribution over the amounts actually distributed if it fails to
distribute during each calendar year at least the sum of (1) 85% of its real
estate investment trust ordinary income for the year, (2) 95% of its real estate
investment trust capital gain net income for the year, and (3) any undistributed
taxable income from prior periods.
Seventh, if AMB acquires any asset from a corporation which is or has been
a C corporation, generally a corporation required to pay full corporate-level
tax, in a transaction in which the basis of the asset in AMB's hands is
determined by reference to the basis of the asset in the hands of the C
corporation, and AMB subsequently recognizes gain on the disposition of the
asset during the ten-year period beginning on the date on which AMB acquired the
asset, then under treasury regulations not yet promulgated, AMB will be required
to pay tax at the highest regular corporate tax rate on this gain to the extent
of the excess of (1) the fair market value of the asset over (2) AMB's adjusted
basis in the asset, in each case determined as of the date on which AMB acquired
the asset. The results described in this paragraph with respect to the
recognition of such gain assume that AMB will make an election pursuant to
Internal Revenue Service Notice 88-19 and that the availability or nature of
such election is not modified as proposed in President Clinton's Year 2000
Federal Budget Proposal.
Requirements for Qualification as a Real Estate Investment Trust. The
Internal Revenue Code defines a real estate investment trust as a corporation,
trust or association:
(1) that is managed by one or more trustees or directors;
(2) that issues transferable shares or transferable certificates to
evidence its beneficial ownership;
(3) that would be taxable as a domestic corporation, but for Sections
856 through 860 of the Internal Revenue Code;
(4) that is not a financial institution or an insurance company within
the meaning of the Internal Revenue Code;
(5) that is beneficially owned by 100 or more persons;
65
<PAGE> 69
(6) not more than 50% in value of the outstanding stock of which is
owned, actually or constructively, by five or fewer individuals, as defined
in the Internal Revenue Code to include certain entities, during the last
half of each taxable year; and
(7) that meets other tests, described below, regarding the nature of
its income and assets and the amount of its distributions.
The Internal Revenue Code provides that conditions (1) to (4), inclusive,
must be met during the entire taxable year and that condition (5) must be met
during at least 335 days of a taxable year of twelve months, or during a
proportionate part of a taxable year of less than twelve months. Conditions (5)
and (6) do not apply until after the first taxable year for which an election is
made to be taxed as a real estate investment trust. For purposes of condition
(6), pension funds and certain other tax-exempt entities generally are treated
as individuals, subject to a "look-through" exception with respect to pension
funds.
AMB believes that it has satisfied conditions (1) through (7) inclusive. In
addition, AMB's charter provides for restrictions regarding ownership and
transfer of shares. These restrictions are intended to assist us in continuing
to satisfy the share ownership requirements described in (5) and (6) above.
These stock ownership and transfer restrictions are described in "Description of
Capital Stock -- Restrictions on Ownership and Transfer of Capital Stock." These
restrictions, however, may not ensure that AMB will, in all cases, be able to
satisfy the share ownership requirements described in (5) and (6) above. If AMB
fails to satisfy these share ownership requirements, except as provided in the
next sentence, its status as a real estate investment trust will terminate.
However, if AMB complies with the rules contained in applicable treasury
regulations that require AMB to ascertain the actual ownership of its shares and
AMB does not know, or would not have known through the exercise of reasonable
diligence, that it failed to meet the requirement described in condition (6)
above, AMB will be treated as having met this requirement. See the section below
entitled "-- Failure to Qualify."
In addition, AMB may not maintain its status as a real estate investment
trust unless its taxable year is the calendar year. AMB has and will continue to
have a calendar taxable year.
Termination of S Status. Prior to its merger into AMB in connection with
our formation transactions, AMB Institutional Realty Advisors, Inc. believed
that it validly elected to be taxed as an S corporation and that such election
had not been revoked or otherwise terminated (except as provided below). In
order to allow AMB to become a real estate investment trust, AMB Institutional
Realty Advisors, Inc. revoked its S election shortly before its merger into AMB.
If AMB Institutional Realty Advisors, Inc. was not an S corporation in 1997 (the
calendar year in which our formation transactions occurred), AMB likely would
not qualify as a real estate investment trust for its taxable year ended
December 31, 1997 and perhaps subsequent years. See "-- Failure to Qualify." In
connection with AMB's initial public offering, Latham & Watkins rendered an
opinion regarding AMB Institutional Realty Advisors, Inc.'s federal income tax
status as an S corporation, which opinion was based upon certain representations
made by AMB Institutional Realty Advisors, Inc. as to factual matters and upon
the opinion of counsel for certain shareholders of AMB Institutional Realty
Advisors, Inc., with respect to matters relating to the tax status of such
shareholders.
66
<PAGE> 70
Ownership of Interests in Partnerships and Qualified REIT Subsidiaries. In
the case of a real estate investment trust which is a partner in a partnership,
Internal Revenue Service treasury regulations provide that the real estate
investment trust will be deemed to own its proportionate share of the assets of
the partnership. Also, the real estate investment trust will be deemed to be
entitled to its proportionate share of the income of the partnership. The
character of the assets and gross income of the partnership retains the same
character in the hands of the real estate investment trust for purposes of
Section 856 of the Internal Revenue Code, including satisfying the gross income
tests and the asset tests. In addition, for these purposes, the operating
partnership's assets and items of income include its share of the assets and
items of income of any partnership or limited liability company in which it owns
an interest. We have included a brief summary of the rules governing the federal
income taxation of partnerships and their partners below in "-- Tax Aspects of
the Operating Partnerships and the Joint Ventures." AMB has direct control of
the operating partnership and will continue to operate it consistent with the
requirements for qualification as a real estate investment trust. However, we
are a limited partner or non-managing member in certain of our joint ventures.
If a joint venture takes or expects to take actions which could jeopardize AMB's
status as a real estate investment trust or subject AMB to tax, we may be forced
to dispose of our interest in such joint venture. In addition, it is possible
that a joint venture could take an action which could cause AMB to fail a real
estate investment trust income or asset test, and that AMB would not become
aware of such action in a time frame which would allow us to dispose of our
interest in the joint venture or take other corrective action on a timely basis.
In such a case, AMB could fail to qualify as a real estate investment trust.
AMB owns 100% of the stock of corporate subsidiaries that are qualified
REIT subsidiaries and may acquire stock of one or more new corporate
subsidiaries. A corporation will qualify as a qualified REIT subsidiary if 100%
of its stock is held by AMB. A qualified REIT subsidiary will not be treated as
a separate corporation, and all assets, liabilities and items of income,
deduction and credit of a qualified REIT subsidiary will be treated as assets,
liabilities and such items, as the case may be, of AMB for all purposes of the
Internal Revenue Code, including the real estate investment trust qualification
tests. For this reason, references under "Certain Federal Income Tax
Considerations" to our income and assets shall include the income and assets of
any qualified REIT subsidiary. A qualified REIT subsidiary will not be subject
to federal income tax, and our ownership of the voting stock of a qualified REIT
subsidiary will not violate the restrictions against ownership of securities of
any one issuer which constitute more than 10% of such issuer's voting securities
or more than 5% of the value of our total assets, as described below under
"-- Asset Tests."
Income Tests. AMB must satisfy two gross income requirements annually to
maintain its qualification as a real estate investment trust. First, in each
taxable year AMB must derive directly or indirectly at least 75% of its gross
income, excluding gross income from prohibited transactions, from investments
relating to real property or mortgages on real property, including "rents from
real property" and, in certain circumstances, interest, or from certain types of
temporary investments. Second, each taxable year AMB must derive at least 95% of
its gross income, excluding gross income from prohibited transactions, from
these real property investments, dividends, interest and gain from the sale or
disposition of stock or securities, or from any combination of the foregoing.
For these purposes, the term "interest" generally does not include any amount
received or accrued, directly or indirectly, if the determination of the amount
depends in whole or in part on the income or profits of any person. However, an
amount received or accrued generally will not be excluded from
67
<PAGE> 71
the term "interest" solely by reason of being based on a fixed percentage or
percentages of receipts or sales.
Rents we receive will qualify as "rents from real property" in satisfying
the gross income requirements for a real estate investment trust described above
only if the following conditions are met:
- the amount of rent must not be based in whole or in part on the income or
profits of any person. However, an amount received or accrued generally
will not be excluded from the term "rents from real property" solely by
reason of being based on a fixed percentage or percentages of receipts or
sales;
- the Internal Revenue Code provides that rents received from a tenant will
not qualify as "rents from real property" in satisfying the gross income
tests if the real estate investment trust, or an actual or constructive
owner of 10% or more of the real estate investment trust, actually or
constructively owns 10% or more of the interests in such tenant (a
"related party tenant");
- if rent attributable to personal property, leased in connection with a
lease of real property, is greater than 15% of the total rent received
under the lease, then the portion of rent attributable to personal
property will not qualify as "rents from real property"; and
- for rents received to qualify as "rents from real property," the real
estate investment trust generally must not operate or manage the property
or furnish or render services to the tenants of the property (subject to
a 1% de minimis exception), other than through an independent contractor
from whom the real estate investment trust derives no revenue. The real
estate investment trust may, however, directly perform certain services
that are "usually or customarily rendered" in connection with the rental
of space for occupancy only and are not otherwise considered "rendered to
the occupant" of the property. Examples of such services include the
provision of light, heat, or other utilities, trash removal and general
maintenance of common areas.
AMB generally does not intend to receive rent which fails to qualify as
"rents from real property." However, we may have failed to satisfy, and may
continue to fail to satisfy, some of the conditions described above to the
extent these actions will not, based on the advice of our tax counsel,
jeopardize AMB's status as a real estate investment trust.
AMB Investment Management, Inc. is the sole general partner of, and
conducts its operations through, AMB Investment Management Limited Partnership.
AMB Investment Management Limited Partnership conducts the asset management
business and receives fees, including incentive fees, in exchange for the
provision of certain services to asset management clients. In addition,
Headlands Realty Corporation may provide certain services in exchange for a fee
or derive other income which would not qualify under the real estate investment
trust gross income tests. Such fees and other income do not accrue to AMB, but
AMB derives its allocable share of dividend income from AMB Investment
Management, Inc. and Headlands Realty through its interest in the operating
partnership. Such dividend income qualifies under the 95%, but not the 75%, real
estate investment trust gross income test. The operating partnership may provide
certain management or administrative services to AMB Investment Management
Limited Partnership and Headlands Realty Corporation. The fees derived by the
operating partnership as a result of the provision of such services will be
nonqualifying income to us under both the 95% and
68
<PAGE> 72
75% real estate investment trust income tests. The amount of such dividend and
fee income will depend on a number of factors which cannot be determined with
certainty, including the level of services provided by AMB Investment Management
Limited Partnership, Headlands Realty Corporation and the operating partnership.
We will monitor the amount of the dividend income from AMB Investment
Management, Inc. and Headlands Realty Corporation and the fee income described
above, and will take actions intended to keep this income, and any other
nonqualifying income, within the limitations of the real estate investment trust
income tests. However, we cannot guarantee that such actions will in all cases
prevent us from violating a real estate investment trust income test.
If AMB fails to satisfy one or both of the 75% or 95% gross income tests
for any taxable year, AMB may nevertheless qualify as a real estate investment
trust for the year if it is entitled to relief under certain provisions of the
Internal Revenue Code. Generally, AMB may avail itself of the relief provisions
if:
- its failure to meet these tests was due to reasonable cause and not due
to willful neglect;
- it attaches a schedule of the sources of its income to its federal income
tax return; and
- any incorrect information on the schedule was not due to fraud with
intent to evade tax.
It is not possible, however, to state whether in all circumstances we would
be entitled to the benefit of these relief provisions. For example, if AMB fails
to satisfy the gross income tests because nonqualifying income that it
intentionally accrues or receives exceeds the limits on nonqualifying income,
the Internal Revenue Service could conclude that AMB's failure to satisfy the
tests was not due to reasonable cause. If these relief provisions do not apply
to a particular set of circumstances, AMB will not qualify as a real estate
investment trust. As discussed above in "-- Taxation of AMB -- General," even if
these relief provisions apply, and AMB retains its status as a real estate
investment trust, a tax would be imposed with respect to AMB's non-qualifying
income. AMB may not always be able to maintain compliance with the gross income
tests for real estate investment trust qualification despite periodic monitoring
of its income.
Asset Tests. At the close of each quarter of our taxable year, AMB also
must satisfy three tests relating to the nature and diversification of its
assets. First, at least 75% of the value of AMB's total assets must be
represented by real estate assets, cash, cash items and government securities.
For purposes of this test, real estate assets include stock or debt instruments
that are purchased with the proceeds of a stock offering or a long-term (at
least five years) public debt offering, but only for the one year period
beginning on the date AMB receives such proceeds. Second, not more than 25% of
AMB's total assets may be represented by securities, other than those securities
includable in the 75% asset test. Third, of the investments included in the 25%
asset class, the value of any one issuer's securities may not exceed 5% of the
value of AMB's total assets and AMB may not own more than 10% of any one
issuer's outstanding voting securities.
The operating partnership owns 100% of the non-voting preferred stock of
AMB Investment Management, Inc. and Headlands Realty Corporation, and by virtue
of its ownership of interests in the operating partnership, AMB is considered to
own its pro rata share of that stock. The stock of AMB Investment Management,
Inc. and Headlands Realty Corporation held by us is not a qualifying real estate
asset. The operating
69
<PAGE> 73
partnership does not and will not own any of the voting securities of AMB
Investment Management, Inc. or Headlands Realty Corporation, and therefore we
will not be considered to own more than 10% of the voting securities of either
corporation. In addition, we believe that the value of our pro rata share of the
securities of AMB Investment Management, Inc. and Headlands Realty Corporation
held by the operating partnership does not, in either case, exceed 5% of the
total value of our assets, and will not exceed such amount in the future. No
independent appraisals have been obtained to support this conclusion. We cannot
assure you that the Internal Revenue Service will not contend that the value of
the securities of one or both of AMB Investment Management, Inc. and Headlands
Realty Corporation held by us exceeds the 5% value limitation. The 5% value test
must be satisfied not only on the date that we, directly or through the
operating partnership, acquire securities in AMB Investment Management, Inc. or
Headlands Realty Corporation, as applicable, but also each time we increase our
ownership of securities of AMB Investment Management, Inc. and Headlands Realty
Corporation, including as a result of increasing our interest in the operating
partnership. For example, our indirect ownership of securities of AMB Investment
Management, Inc. and Headlands Realty Corporation will increase as a result of
our capital contributions to the operating partnership or as limited partners
exercise their redemption/exchange rights. Although we believe that we presently
satisfy the 5% value test and plan to take steps to ensure that we satisfy such
test for any quarter with respect to which retesting is to occur, we cannot
assure you that such steps will always be successful, or will not require a
reduction in the operating partnership's overall interest in either or both of
AMB Investment Management, Inc. and Headlands Realty Corporation.
President Clinton's Year 2000 Federal Budget Proposal, announced February
1, 1999, includes a proposal that would limit a real estate investment trust's
ability to own more than 10%, by vote or value, of the stock of another
corporation. As discussed above, a real estate investment trust cannot currently
own more than 10% of the outstanding voting securities of any one issuer. The
budget proposal would allow a real estate investment trust to own all or a
portion of the voting stock and value of a "taxable REIT subsidiary," provided
all of a real estate investment trust's taxable subsidiaries do not represent
more than 15% of the total assets of the real estate investment trust. In
addition, under the budget proposal, a "taxable REIT subsidiary" would not be
entitled to deduct any interest on debt funded directly or indirectly by the
REIT. The budget proposal, if enacted in its current form, may require that we
restructure our interests in AMB Investment Management, Inc. and Headlands
Realty Corporation, because we currently own more than 10% of the value of both
corporations and because we have loaned funds to one of the corporations. The
budget proposal, if enacted in its current form, would be effective after the
date of its enactment and would provide transition rules to allow corporations,
like AMB Investment Management, Inc. and Headlands Realty Corporation, to
convert into "taxable REIT subsidiaries" tax-free. It is presently uncertain
whether any proposal regarding REIT subsidiaries, including the budget proposal,
will be enacted, or if enacted, what the terms of such proposal, including its
effective date, will be.
After initially meeting the asset tests at the close of any quarter, AMB
will not lose its status as a real estate investment trust for failure to
satisfy the asset tests at the end of a later quarter solely by reason of
changes in asset values. If we fail to satisfy the asset tests because we
acquire securities or other property during a quarter, including an increase in
AMB's interests in the operating partnership, we can cure this failure by
disposing of sufficient nonqualifying assets within 30 days after the close of
that quarter. We believe we have maintained and intend to continue to maintain
adequate records of the value of our
70
<PAGE> 74
assets to ensure compliance with the asset tests and to take such other actions
within the 30 days after the close of any quarter as may be required to cure any
noncompliance. If we fail to cure noncompliance with the asset tests within this
time period, AMB would cease to qualify as a real estate investment trust.
In connection with recent property acquisitions, we acquired partnership
interests and may have inadvertently acquired the voting securities of shell
corporations in violation of the 10% asset test at March 31, 1999. However,
while no assurance can be given, based on the advice of counsel in the relevant
jurisdiction and other factors, we do not believe that we have in fact violated
this test or that we would lose our status as a real estate investment trust as
a result of this matter.
Annual Distribution Requirements. To maintain its qualification as a real
estate investment trust, AMB is required to distribute dividends, other than
capital gain dividends, to its stockholders in an amount at least equal to the
sum of (1) 95% of its "real estate investment trust taxable income" and (2) 95%
of AMB's after tax net income, if any, from foreclosure property, (3) minus the
excess of the sum of certain items of noncash income over 5% of the "real estate
investment trust taxable income." AMB's "real estate investment trust taxable
income" is computed without regard to the dividends paid deduction and AMB's net
capital gain. In addition, for purposes of this test, non-cash income means
income attributable to leveled stepped rents, original issue discount on
purchase money debt, or a like-kind exchange that is later determined to be
taxable.
These distributions must be paid in the taxable year to which they relate,
or in the following taxable year if they are declared before we timely file our
tax return for such year and if paid on or before the first regular dividend
payment after such declaration. Except as provided in "-- Taxation of Taxable
U.S. Stockholders" below, these distributions are taxable to stockholders (other
than tax-exempt entities, as discussed below) in the year in which paid. This is
so even though these distributions relate to the prior year for purposes of our
95% distribution requirement. The amount distributed must not be
preferential -- e.g., every stockholder of the class of stock to which a
distribution is made must be treated the same as every other stockholder of that
class, and no class of stock may be treated otherwise than in accordance with
its dividend rights as a class. To the extent that AMB does not distribute all
of its net capital gain or distribute at least 95%, but less than 100%, of its
"real estate investment trust taxable income," as adjusted, AMB will be subject
to tax thereon at regular ordinary and capital gain corporate tax rates. AMB
believes it has made and intends to continue to make timely distributions
sufficient to satisfy these annual distribution requirements. In this regard,
the partnership agreement authorizes AMB, as general partner of the operating
partnership, to take such steps as may be necessary to cause the operating
partnership to distribute to its partners an amount sufficient to permit AMB to
meet these distribution requirements.
AMB expects that its real estate investment trust taxable income will be
less than its cash flow due to the allowance of depreciation and other non-cash
charges in computing real estate investment trust taxable income. Accordingly,
AMB anticipates that it will generally have sufficient cash or liquid assets to
enable it to satisfy the distribution requirements described above. However,
from time to time, AMB may not have sufficient cash or other liquid assets to
meet these distribution requirements due to timing differences between the
actual receipt of income and actual payment of deductible expenses, and the
inclusion of income and deduction of expenses in arriving at its taxable income.
If these timing differences occur, in order to meet the distribution
requirements,
71
<PAGE> 75
AMB may need to arrange for short-term, or possibly long-term, borrowings or
need to pay dividends in the form of taxable stock dividends.
Under certain circumstances, AMB may be able to rectify a failure to meet
the distribution requirement for a year by paying "deficiency dividends" to
stockholders in a later year, which may be included in AMB's deduction for
dividends paid for the earlier year. Thus, AMB may be able to avoid being taxed
on amounts distributed as deficiency dividends. However, AMB will be required to
pay interest based upon the amount of any deduction claimed for deficiency
dividends.
Furthermore, AMB would be subject to a 4% excise tax on the excess of the
required distribution over the amounts actually distributed if it should fail to
distribute during each calendar year (or in the case of distributions with
declaration and record dates falling in the last three months of the calendar
year, by the end of January immediately following such year) at least the sum of
85% of AMB's REIT ordinary income for such year, 95% of its real estate
investment trust capital gain income for the year and any undistributed taxable
income from prior periods. Any real estate investment trust taxable income and
net capital gain on which this excise tax is imposed for any year is treated as
an amount distributed during that year for purposes of calculating such tax.
Earnings and Profits Distribution Requirement. In order to qualify as a
real estate investment trust, AMB cannot have at the end of any taxable year any
undistributed "earnings and profits" that are attributable to a "C corporation"
taxable year. A C corporation's taxable year is a year in which a corporation is
neither a real estate investment trust nor an S corporation. In connection with
our formation transactions, we succeeded to various tax attributes of AMB
Institutional Realty Advisors, Inc., AMB Current Income Fund, Inc. and AMB Value
Added Fund, Inc., if the mergers of AMB Current Income Fund, Inc. and VAF into
AMB Institutional Realty Advisors, Inc. were treated as tax-free reorganizations
under the Internal Revenue Code, including any undistributed C corporation
earnings and profits of such corporations. If AMB Institutional Realty Advisors,
Inc. qualified as an S corporation for each year in which its activities would
have created earnings and profits, and each of AMB Current Income Fund, Inc. and
AMB Value Added Fund, Inc. qualified as a real estate investment trust during
its existence and its merger into us was treated as a tax-free reorganization
under the Internal Revenue Code, then those corporations would not have any
undistributed C corporation earnings and profits. If, however, either AMB
Current Income Fund, Inc. or AMB Value Added Fund, Inc. failed to qualify as a
real estate investment trust throughout the duration of its existence, or AMB
Institutional Realty Advisors, Inc. failed to qualify as an S corporation for
any year in which its activities would have created earnings and profits, then
AMB would have acquired undistributed C corporation earnings and profits that,
if not distributed by AMB prior to the end of its first taxable year, would
prevent AMB from qualifying as a real estate investment trust.
We believe that each of AMB Current Income Fund, Inc. and AMB Value Added
Fund, Inc. qualified as a real estate investment trust throughout the duration
of its existence and that, in any event, neither AMB Current Income Fund, Inc.
nor AMB Value Added Fund, Inc. had any undistributed C corporation earnings and
profits at the time of the applicable merger. We believe that AMB Institutional
Realty Advisors, Inc. qualified as an S corporation since its 1989 taxable year
and that its activities prior to such year did not create any earnings and
profits. In addition, in connection with AMB's initial public offering, counsel
to AMB Current Income Fund, Inc. and AMB Value Added Fund, Inc. rendered
opinions with respect to the qualification of those corporations as real estate
72
<PAGE> 76
investment trusts for federal income tax purposes, and Latham & Watkins rendered
an opinion with respect to AMB Institutional Realty Advisors, Inc.'s status as
an S corporation for federal income tax purposes. Those opinions were based on
certain representations and assumptions. However, the Internal Revenue Service
may contend otherwise on a subsequent audit of AMB Institutional Realty
Advisors, Inc., AMB Current Income Fund, Inc. or AMB Value Added Fund, Inc.
Property Transfers. If the transfers by the operating partnership and its
subsidiaries of the retail properties to BPP Retail and Burnham Pacific are
consummated, the proceeds from many of the properties transferred would exceed
their tax bases, resulting in gains that would be allocable to the partners of
the operating partnership, including AMB, in accordance with the terms of the
partnership agreement. The operating partnership currently expects to defer
recognition of a substantial portion of these gains by acquiring replacement
properties pursuant to the like-kind-exchange provisions of Section 1031 of the
Internal Revenue Code. However, these transactions might not close as scheduled
or close at all, and it is possible that the transactions may close with respect
to just a portion of the properties currently under agreement.
Any gain realized by us on the sale of any property held as inventory or
other property held primarily for sale to customers in the ordinary course of
business (including our share of any such gain realized by the operating
partnership, either directly or through its subsidiary partnerships) will be
treated as income from a prohibited transaction that is subject to a 100%
penalty tax. This prohibited transaction income may also adversely affect AMB's
ability to satisfy the income tests for qualification as a real estate
investment trust. Under existing law, whether property is held as inventory or
primarily for sale to customers in the ordinary course of a trade or business is
a question of fact that depends on all the facts and circumstances surrounding
the particular transaction. The operating partnership intends to hold its
properties for investment with a view to long-term appreciation, to engage in
the business of acquiring, developing and owning its properties and to make
occasional sales of the properties as are consistent with the operating
partnership's investment objectives. However, the Internal Revenue Service may
successfully contend that some or all of the sales made by the operating
partnership or its subsidiary partnerships (including some or all of the sales
to BPP Retail and Burnham Pacific), are prohibited transactions. AMB would be
subject to the 100% penalty tax on its allocable share of the gains resulting
from any such sales.
FAILURE TO QUALIFY
If AMB fails to qualify for taxation as a real estate investment trust in
any taxable year, and the relief provisions of the Internal Revenue Code
applicable to real estate investment trusts do not apply, AMB will be subject to
tax, including any applicable alternative minimum tax, on its taxable income at
regular corporate rates. Distributions to stockholders in any year in which AMB
fails to qualify will not be deductible by AMB and AMB will not be required to
distribute any amounts to its stockholders. As a result, we anticipate that
AMB's failure to qualify as a real estate investment trust would reduce the cash
available for distribution by AMB to its stockholders. In addition, if AMB fails
to qualify as a real estate investment trust, all distributions to stockholders
will be taxable as ordinary income to the extent of AMB's current and
accumulated earnings and profits, and subject to certain limitations of the
Internal Revenue Code, corporate distributees may be eligible for the dividends
received deduction. Unless entitled to relief under specific statutory
provisions, AMB will also be disqualified from taxation as a real estate
73
<PAGE> 77
investment trust for the four taxable years following the year during which it
lost its qualification. It is not possible to state whether in all circumstances
AMB would be entitled to this statutory relief. In addition, President Clinton's
Year 2000 Federal Budget Proposal contains a provision which, if enacted in its
present form, would result in the immediate taxation of all gain inherent in a C
corporation's assets upon an election by the corporation to become a real estate
investment trust in taxable years beginning after January 1, 2000. If enacted,
this provision could impose a substantial tax upon AMB's re-election to be taxed
as a real estate investment trust following any loss of its status as a real
estate investment trust.
TAX ASPECTS OF THE OPERATING PARTNERSHIP AND THE JOINT VENTURES
General. Substantially all of our investments will be held indirectly
through the operating partnership. In addition, the operating partnership holds
certain of its investments indirectly through joint ventures. In general,
partnerships are "pass-through" entities which are not subject to federal income
tax. Rather, partners are allocated their proportionate shares of the items of
income, gain, loss, deduction and credit of a partnership, and are potentially
subject to tax thereon, without regard to whether the partners receive a
distribution from the partnership. AMB will include in its income its
proportionate share of the foregoing partnership items for purposes of the
various real estate investment trust income tests and in the computation of our
real estate investment trust taxable income. Moreover, for purposes of the real
estate investment trust asset tests, AMB will include its proportionate share of
assets held by the operating partnership and joint ventures. See "-- Taxation of
AMB."
Entity Classification. AMB's interests in the operating partnership and the
joint ventures involve special tax considerations, including the possibility
that the Internal Revenue Service might challenge the status of the operating
partnership or a partnership as a partnership, as opposed to an association
taxable as a corporation for federal income tax purposes. If the operating
partnership or a partnership were treated as an association, it would be taxable
as a corporation and therefore be subject to an entity-level tax on its income.
In such a situation, the character of our assets and items of gross income would
change and preclude AMB from satisfying the asset tests and possibly the income
tests (see "-- Taxation of AMB -- Asset Tests" and "-- Income Tests"). This, in
turn, would prevent AMB from qualifying as a real estate investment trust. See
"-- Failure to Qualify" for a discussion of the effect of our failure to meet
these tests for a taxable year. In addition, a change in the operating
partnership's or a partnership's status for tax purposes might be treated as a
taxable event. If so, we might incur a tax liability without any related cash
distributions.
Treasury regulations that apply for tax periods beginning on or after
January 1, 1997 provide that a domestic business entity not otherwise organized
as a corporation and which has at least two members is eligible to be treated as
a partnership for federal income tax purposes. Unless it elects otherwise, an
eligible entity in existence prior to January 1, 1997 will have the same
classification for federal income tax purposes that it claimed under the entity
classification treasury regulations in effect prior to this date. In addition,
an eligible entity which did not exist, or did not claim a classification, prior
to January 1, 1997, will be classified as a partnership for federal income tax
purposes unless it elects otherwise. The operating partnership and each of our
joint ventures intend to claim classification as a partnership under the Final
Regulations, and, as a result, we believe such partnerships will be classified
as partnerships for federal income tax purposes.
74
<PAGE> 78
Allocations of Operating Partnership Income, Gain, Loss and Deduction. The
partnership agreement provides for preferred distributions of cash and preferred
allocations of income to AMB with respect to its Series A Preferred Units and to
the holders of Series B Preferred Units. In addition, to the extent AMB issues
Series C Preferred Stock in exchange for Series C Preferred Units of AMB
Property II or Series D Preferred Stock in exchange for Series D Preferred Units
of AMB Property II, the operating partnership will issue Series C Preferred
Units or Series D Preferred Units to AMB, and the partnership agreement will be
amended to provide for similar preferred distributions of cash and preferred
allocations of income to AMB with respect to the operating partnership's Series
C Preferred Units or its Series D Preferred Units. As a consequence, AMB will
receive distributions from the operating partnership and attributable to its
other assets that AMB would use to pay dividends on shares of Series A Preferred
Stock and any shares of Series B Preferred Stock, Series C Preferred Stock or
Series D Preferred Stock issued by AMB before any other partner in the operating
partnership (other than a holder of Series B Preferred Units, if the units are
not then held by AMB) receives a distribution. In addition, if necessary, income
will be specially allocated to AMB, and losses will be allocated to the other
partners of the operating partnership, in amounts necessary to ensure that the
balance in the capital account of AMB will at all times be equal to or in excess
of the amount payable by AMB on the Series A Preferred Stock and any Series B
Preferred Stock, Series C Preferred Stock or Series D Preferred Stock then
issued by AMB upon liquidation or redemption. As long as AMB does not hold the
Series B Preferred Units, similar preferred distributions and allocations will
be made for the benefit of the holders of such units. All remaining items of
operating income and loss will be allocated to the holders of common units in
proportion to the number of units or performance units held by each such
unitholder. All remaining items of gain or loss relating to the disposition of
the operating partnership's assets upon liquidation will be allocated first to
the partners in the amounts necessary, in general, to equalize AMB's and the
limited partners' per unit capital accounts, with any special allocation of gain
to the holders of performance units being offset by a reduction in the gain
allocation to AMB and unitholders which were performance investors. Certain
limited partners have agreed to guarantee debt of the operating partnership,
either directly or indirectly through an agreement to make capital contributions
to the operating partnership under limited circumstances. As a result of these
guarantees or contribution agreements, and notwithstanding the foregoing
discussion of allocations of income and loss of the operating partnership to
holders of common units, such limited partners could under limited circumstances
be allocated a disproportionate amount of net loss upon a liquidation of the
operating partnership, which net loss would have otherwise been allocable to
AMB.
If an allocation is not recognized for federal income tax purposes, the
item subject to the allocation will be reallocated in accordance with the
partners' interests in the partnership. This reallocation will be determined by
taking into account all of the facts and circumstances relating to the economic
arrangement of the partners with respect to such item. The operating
partnership's allocations of taxable income and loss are intended to comply with
the requirements of Section 704(b) of the Internal Revenue Code and the treasury
regulations promulgated under this section of the Internal Revenue Code.
Tax Allocations with Respect to the Properties. Under Section 704(c) of the
Internal Revenue Code, income, gain, loss and deduction attributable to
appreciated or depreciated property that is contributed to a partnership in
exchange for an interest in the partnership, must be allocated in a manner so
that the contributing partner is charged with the unrealized gain or benefits
from the unrealized loss associated with the property at the
75
<PAGE> 79
time of the contribution. The amount of the unrealized gain or unrealized loss
is generally equal to the difference between the fair market value of
contributed property at the time of contribution and the adjusted tax basis of
the property at the time of contribution (a "book-tax difference"). These
allocations are solely for federal income tax purposes and do not affect the
book capital accounts or other economic or legal arrangements among the
partners. The operating partnership was formed by way of contributions of
appreciated property. Moreover, subsequent to the formation of the operating
partnership, additional appreciated property has been contributed to the
operating partnership in exchange for interests in the operating partnership.
The partnership agreement requires that these allocations be made in a manner
consistent with Section 704(c) of the Internal Revenue Code.
In general, the partners of the operating partnership, including AMB, which
contributed assets having an adjusted tax basis less than their fair market
value at the time of contribution will be allocated depreciation deductions for
tax purposes which are lower than such deductions would have been if determined
on a pro rata basis. In addition, in the event of the disposition of any of the
contributed assets which have such a book-tax difference, all income
attributable to such book-tax difference generally will be allocated to the
contributing partners. These allocations will tend to eliminate the book-tax
difference over the life of the operating partnership. However, the special
allocation rules of Section 704(c) do not always entirely eliminate the book-tax
difference on an annual basis or with respect to a specific taxable transaction
such as a sale. Thus, the carryover basis of the contributed assets in the hands
of the operating partnership may cause AMB or other partners to be allocated
lower depreciation and other deductions, and possibly an amount of taxable
income in the event of a sale of such contributed assets in excess of the
economic or book income allocated to AMB or other partners as a result of the
sale. Such an allocation might cause AMB or other partners to recognize taxable
income in excess of cash proceeds, which might adversely affect AMB's ability to
comply with the real estate investment trust distribution requirements. See
"-- Taxation of AMB -- Requirements for Qualification" and "-- Annual
Distribution Requirements."
Treasury regulations issued under Section 704(c) of the Internal Revenue
Code provide partnerships with a choice of several methods of accounting for
book-tax differences, including retention of the "traditional method" or the
election of certain methods which would permit any distortions caused by a
book-tax difference to be entirely rectified on an annual basis or with respect
to a specific taxable transaction such as a sale. AMB and the operating
partnership have determined to use the "traditional method" for accounting for
book-tax differences for the properties initially contributed to the operating
partnership and for certain assets contributed subsequently. AMB and the
operating partnership have not yet decided what method will be used to account
for book-tax differences for properties acquired by the operating partnership in
the future.
Any property acquired by the operating partnership in a taxable transaction
will initially have a tax basis equal to its fair market value, and Section
704(c) of the Internal Revenue Code will not apply.
76
<PAGE> 80
TAXATION OF TAXABLE U.S. STOCKHOLDERS
When we use the term "U.S. stockholder," we mean a holder of shares of
common stock who (for United States federal income tax purposes):
- is a citizen or resident of the United States;
- is a corporation, partnership, or other entity created or organized in or
under the laws of the United States or of any state thereof or in the
District of Columbia, unless, in the case of a partnership, treasury
regulations provide otherwise;
- is an estate the income of which is subject to United States federal
income taxation regardless of its source; or
- is a trust whose administration is subject to the primary supervision of
a United States court and which has one or more United States persons who
have the authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in the
treasury regulations, certain trusts in existence on August 20, 1996, and
treated as United States persons prior to this date that elect to continue to be
treated as United States persons, shall also be considered U.S. stockholders.
Distributions Generally. As long as AMB qualifies as a real estate
investment trust, distributions out of its current or accumulated earnings and
profits, other than capital gain dividends discussed below, will constitute
dividends taxable to AMB's taxable U.S. stockholders as ordinary income. As long
as AMB qualifies as a real estate investment trust, these distributions will not
be eligible for the dividends-received deduction in the case of U.S.
stockholders that are corporations. For purposes of determining whether
distributions to holders of common stock are out of current or accumulated
earnings and profits, AMB's earnings and profits will be allocated first to the
outstanding preferred stock, if any, and then to the common stock.
To the extent that AMB makes distributions, other than capital gain
dividends discussed below, in excess of its current and accumulated earnings and
profits, these distributions will be treated first as a tax-free return of
capital to each U.S. stockholder. This treatment will reduce the adjusted tax
basis which each U.S. stockholder has in his shares of stock for tax purposes by
the amount of the distribution, but not below zero. Distributions in excess of a
U.S. stockholder's adjusted tax basis in his shares will be taxable as capital
gains, provided that the shares have been held as a capital asset, and will be
taxable as long-term capital gain if the shares have been held for more than one
year. Dividends AMB declares in October, November, or December of any year and
payable to a stockholder of record on a specified date in any of these months
shall be treated as both paid by AMB and received by the stockholder on December
31 of that year, provided AMB actually pays the dividend on or before January 31
of the following calendar year. Stockholders may not include in their own income
tax returns any of AMB's net operating losses or capital losses.
Capital Gain Distributions. Distributions that AMB properly designates as
capital gain dividends will be taxable to taxable U.S. stockholders as gains
from the sale or disposition of a capital asset, to the extent that such gains
do not exceed its actual net capital gain for the taxable year. Depending on the
characteristics of the assets which produced these gains, and on certain
designations, if any, which AMB may make, these gains may be taxable to
non-corporate U.S. stockholders at a 20% or 25% rate.
77
<PAGE> 81
U.S. stockholders that are corporations may, however, be required to treat up to
20% of certain capital gain dividends as ordinary income. For a discussion of
the manner in which that portion of any dividends designated as capital gain
dividends will be allocated among the holders of our preferred stock, if any,
and common stock, see "Description of Capital Stock."
Passive Activity Losses and Investment Interest Limitations. Distributions
AMB makes and gain arising from the sale or exchange by a U.S. stockholder of
AMB's shares will not be treated as passive activity income. As a result, U.S.
stockholders generally will not be able to apply any "passive losses" against
this income or gain. Distributions AMB makes, to the extent they do not
constitute a return of capital, generally will be treated as investment income
for purposes of computing the investment interest limitation. Gain arising from
the sale or other disposition of AMB's shares, however, will not be treated as
investment income under certain circumstances.
Retention of Net Long-Term Capital Gains. AMB may elect to retain, rather
than distribute as a capital gain dividend, its net long-term capital gains. If
AMB makes this election, it would pay tax on its retained net long-term capital
gains. In addition, to the extent AMB designates, a U.S. stockholder generally
would:
- include its proportionate share of AMB's undistributed long-term capital
gains in computing its long-term capital gains in its return for its
taxable year in which the last day of AMB's taxable year falls, subject
to certain limitations as to the amount that is includable;
- be deemed to have paid the capital gains tax imposed on AMB on the
designated amounts included in the U.S. stockholder's long-term capital
gains;
- receive a credit or refund for the amount of tax deemed paid by it;
- increase the adjusted basis of its common stock by the difference between
the amount of includable gains and the tax deemed to have been paid by
it; and
- in the case of a U.S. stockholder that is a corporation, appropriately
adjust its earnings and profits for the retained capital gains in
accordance with treasury regulations to be prescribed by the Internal
Revenue Service.
Dispositions of Common Stock. If you are a U.S. stockholder and you sell or
dispose of your shares of common stock, you will recognize gain or loss for
federal income tax purposes in an amount equal to the difference between the
amount of cash and the fair market value of any property you receive on the sale
or other disposition and your adjusted basis in the shares for tax purposes.
This gain or loss will be capital if you have held the common stock as a capital
asset and will be long-term capital gain or loss if you have held the common
stock for more than one year. In general, if you are a U.S. stockholder and you
recognize loss upon the sale or other disposition of common stock that you have
held for six months or less, after applying certain holding period rules, the
loss you recognize will be treated as a long-term capital loss, to the extent
you received distributions from us which were required to be treated as
long-term capital gains.
BACKUP WITHHOLDING
AMB reports to its U.S. stockholders and the Internal Revenue Service the
amount of dividends paid during each calendar year, and the amount of any tax
withheld. Under the
78
<PAGE> 82
backup withholding rules, a stockholder may be subject to backup withholding at
the rate of 31% with respect to dividends paid unless the holder is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact, or provides a taxpayer identification number, certifies
as to no loss of exemption from backup withholding, and otherwise complies with
applicable requirements of the backup withholding rules. A U.S. stockholder that
does not provide AMB with his correct taxpayer identification number may also be
subject to penalties imposed by the Internal Revenue Service. Backup withholding
is not an additional tax. Any amount paid as backup withholding will be
creditable against the stockholder's income tax liability. In addition, AMB may
be required to withhold a portion of capital gain distributions to any
stockholders who fail to certify their non-foreign status. See "-- Taxation of
Non-U.S. stockholders."
TAXATION OF TAX-EXEMPT STOCKHOLDERS
The Internal Revenue Service has ruled that amounts distributed as
dividends by a qualified real estate investment trust do not constitute
unrelated business taxable income when received by a tax-exempt entity. Based on
that ruling, provided that a tax-exempt stockholder, except certain tax-exempt
stockholders described below, has not held its shares as "debt financed
property" within the meaning of the Internal Revenue Code and the shares are not
otherwise used in a trade or business, dividend income from us will not be
unrelated business taxable income to a tax-exempt stockholder. Similarly, income
from the sale of shares will not constitute unrelated business taxable income
unless a tax-exempt stockholder has held its shares as "debt financed property"
within the meaning of the Internal Revenue Code or has used the shares in its
trade or business. Generally, debt financed property is property, the
acquisition or holding of which was financed through a borrowing by the tax
exempt stockholder
For tax-exempt stockholders which are social clubs, voluntary employee
benefit associations, supplemental unemployment benefit trusts, and qualified
group legal services plans exempt from federal income taxation under Internal
Revenue Code Sections 501(c)(7), (c)(9), (c)(17) and (c)(20), respectively,
income from an investment in our shares will constitute unrelated business
taxable income unless the organization is able to properly claim a deduction for
amounts set aside or placed in reserve for certain purposes so as to offset the
income generated by its investment in our shares. These prospective investors
should consult their own tax advisors concerning these "set aside" and reserve
requirements.
Notwithstanding the above, however, a portion of the dividends paid by a
"pension held REIT" shall be treated as unrelated business taxable income as to
certain types of trusts which hold more than 10%, by value, of the interests in
the real estate investment trust.
A real estate investment trust will not be a "pension held REIT" if it is
able to satisfy the "not closely held" requirement without relying upon the
"look-through" exception with respect to certain trusts. As a result of certain
limitations on the transfer and ownership of stock contained in AMB's charter,
AMB does not expect to be classified as a "pension-held REIT," and as a result,
the tax treatment described above should be inapplicable to AMB's stockholders.
79
<PAGE> 83
TAXATION OF NON-U.S. STOCKHOLDERS
The preceding discussion does not address the rules governing United States
federal income taxation of the ownership and disposition of common stock by
persons that are not U.S. stockholders. In general, non-U.S. stockholders may be
subject to special tax withholding requirements on distributions from AMB and
with respect to their sale or other disposition of common stock of AMB, except
to the extent reduced or eliminated by an income tax treaty between the United
States and the non-U.S. stockholder's country. A non-U.S. stockholder who is a
stockholder of record and is eligible for reduction or elimination of
withholding must file an appropriate form with AMB in order to claim such
treatment. non-U.S. stockholders should consult their own tax advisors
concerning the federal income tax consequences to them of an acquisition of
shares of common stock, including the federal income tax treatment of
dispositions of interests in, and the receipt of distributions from, AMB.
OTHER TAX CONSEQUENCES
AMB may be subject to state or local taxation in various state or local
jurisdictions, including those in which AMB transacts business, and AMB's
stockholders may be subject to state or local taxation in various state or local
jurisdictions, including those in which they reside. AMB's state and local tax
treatment may not conform to the federal income tax consequences discussed
above. In addition, your state and local tax treatment may not conform to the
federal income tax consequences discussed above. Consequently, you should
consult your tax advisors regarding the effect of state and local tax laws on an
investment in our shares.
ERISA CONSIDERATIONS
The following is a summary of material considerations arising under the
Employee Retirement Income Securities Act of 1974 (commonly referred to as
"ERISA") and the prohibited transaction provisions of Section 4975 of the
Internal Revenue Code that may be relevant to a prospective purchaser (including
a prospective purchaser that is not an employee benefit plan which is subject to
ERISA, but is a tax-qualified retirement plan or an individual retirement
account, individual retirement annuity, medical savings account or education
individual retirement account. This discussion does not purport to deal with all
aspects of ERISA or Section 4975 of the Internal Revenue Code or, to the extent
not preempted, state law that may be relevant to particular employee benefit
plan stockholders (including plans subject to Title I of ERISA, other employee
benefit plans and IRAs subject to the prohibited transaction provisions of
Section 4975 of the Internal Revenue Code, and governmental plans and church
plans that are exempt from ERISA and Section 4975 of the Internal Revenue Code
but that may be subject to state law requirements) in light of their particular
circumstances.
A FIDUCIARY MAKING THE DECISION TO INVEST IN SHARES OF COMMON STOCK ON
BEHALF OF A PROSPECTIVE PURCHASER WHICH IS AN ERISA PLAN, A TAX QUALIFIED
RETIREMENT PLAN, AN IRA OR OTHER EMPLOYEE BENEFIT PLAN IS ADVISED TO CONSULT ITS
OWN LEGAL ADVISOR REGARDING THE SPECIFIC CONSIDERATIONS ARISING UNDER ERISA,
SECTION 4975 OF THE INTERNAL REVENUE CODE, AND (TO THE EXTENT NOT PRE-EMPTED)
STATE LAW WITH RESPECT TO THE
80
<PAGE> 84
PURCHASE, OWNERSHIP OR SALE OF SHARES OF COMMON STOCK BY SUCH PLAN OR IRA. Plans
should also consider the entire discussion under the heading "Certain Federal
Income Tax Considerations," as material contained in that section is relevant to
any decision by an employee benefit plan, tax-qualified retirement plan or IRA
to purchase AMB's common stock.
EMPLOYEE BENEFIT PLANS, TAX-QUALIFIED RETIREMENT PLANS AND IRAS
Each fiduciary of an employee benefit plan subject to Title I of ERISA
should carefully consider whether an investment in shares of common stock is
consistent with its fiduciary responsibilities under ERISA. In particular, the
fiduciary requirements of Part 4 of Title I of ERISA require that:
- an ERISA plan make investments that are prudent and in the best interests
of the ERISA plan, its participants and beneficiaries;
- an ERISA plan make investments that are diversified in order to reduce
the risk of large losses, unless it is clearly prudent for the ERISA plan
not to do so;
- an ERISA plan's investments are authorized under ERISA and the terms of
the governing documents of the ERISA plan; and
- the fiduciary not cause the ERISA plan to enter into transactions
prohibited under Section 406 of ERISA.
In determining whether an investment in shares of common stock is prudent
for purposes of ERISA, the appropriate fiduciary of an ERISA plan should
consider all of the facts and circumstances, including whether the investment is
reasonably designed, as a part of the ERISA plan's portfolio for which the
fiduciary has investment responsibility, to meet the objectives of the ERISA
plan, taking into consideration the risk of loss and opportunity for gain (or
other return) from the investment, the diversification, cash flow and funding
requirements of the ERISA plan, and the liquidity and current return of the
ERISA plan's portfolio. A fiduciary should also take into account the nature of
our business, the length of our operating history and other matters described
under "Risk Factors."
The fiduciary of an IRA or of an employee benefit plan not subject to Title
I of ERISA because it is a governmental or church plan (if no election has been
made under Section 410(d) of the Internal Revenue Code) or because it does not
cover common law employees should consider that such an IRA or Non-ERISA plan
may only make investments that are either authorized or not prohibited by the
appropriate governing documents, not prohibited under Section 4975 of the
Internal Revenue Code and permitted under applicable state law.
STATUS OF AMB UNDER ERISA
A prohibited transaction may occur if our assets are deemed to be assets of
the investing ERISA plans and disqualified persons deal with such assets. In
certain circumstances where an ERISA plan holds an interest in an entity, the
assets of the entity are deemed to be ERISA plan assets. This is known as the
"look-through rule." Under those circumstances, any person that exercises
authority or control with respect to the management or disposition of the assets
is an ERISA plan fiduciary. ERISA plan assets are not defined in ERISA or the
Internal Revenue Code, but the United States
81
<PAGE> 85
Department of Labor has issued regulations, effective March 13, 1987, that
outline the circumstances under which an ERISA plan's interest in an entity will
be subject to the look-through rule.
The Department of Labor regulations apply only to the purchase by an ERISA
plan of an "equity interest" in an entity, such as stock of a real estate
investment trust. However, the Department of Labor regulations provide an
exception to the look-through rule for equity interests that are
"publicly-offered securities." The Department of Labor regulations also provide
exceptions to the look-through rule for equity interests in certain types of
entities, including any entity which qualifies as either a "real estate
operating company" or a "venture capital operating company."
Under the Department of Labor regulations, a "publicly-offered security" is
a security that is:
- freely transferable;
- part of a class of securities that is widely-held; and
- either part of a class of securities that is registered under section
12(b) or 12(g) of the Exchange Act or sold to an ERISA plan as part of an
offering of securities to the public pursuant to an effective
registration statement under the Securities Act and the class of
securities of which such security is a part is registered under the
Exchange Act within 120 days (or such longer period allowed by the SEC)
after the end of the fiscal year of the issuer during which the offering
of such securities to the public occurred.
Whether a security is considered "freely transferable" depends on the facts
and circumstances of each case. Under the Department of Labor regulations, if
the security is part of an offering in which the minimum investment is $10,000
or less, then any restriction on or prohibition against any transfer or
assignment of such security for the purposes of preventing a termination or
reclassification of the entity for federal or state tax purposes will not
ordinarily prevent the security from being considered freely transferable.
Additionally, limitations or restrictions on the transfer or assignment of a
security which are created or imposed by persons other than the issuer of the
security or persons acting for or on behalf of the issuer will ordinarily not
prevent the security from being considered freely transferable. A class of
securities is considered "widely-held" if it is a class of securities that is
owned by 100 or more investors independent of the issuer and of one another.
Under the Department of Labor regulations, a real estate operating company
is defined as an entity which on certain testing dates has at least 50% of its
assets (other than short-term investments pending long-term commitment or
distribution to investors), valued at cost, invested in real estate which is
managed or developed and with respect to which the entity has the right to
substantially participate directly in the management or development activities
and which, in the ordinary course of its business, is engaged directly in real
estate management or development activities. A venture capital operating company
is defined as an entity which on certain testing dates has at least 50% of its
assets (other than short-term investments pending long-term commitment or
distribution to investors), valued at cost, invested in one or more operating
companies with respect to which the entity has management rights and which, in
the ordinary course of its business, actually exercises its management rights
with respect to one or more of the operating companies in which it invests.
82
<PAGE> 86
We expect that the shares of common stock offered in this prospectus will
meet the criteria of the publicly-offered securities exception to the
look-through rule. First, the common stock should be considered to be freely
transferable, as the minimum investment will be less than $10,000 and the only
restrictions upon its transfer are those required under federal tax laws to
maintain AMB's status as a real estate investment trust, resale restrictions
under applicable federal securities laws with respect to securities not
purchased pursuant to this prospectus and those owned by our officers, directors
and other affiliates. Second, we expect the common stock to be held by 100 or
more investors and we expect that at least 100 or more of these investors will
be independent of us and of one another. Third, the shares of common stock will
be part of an offering of securities to the public pursuant to an effective
registration statement under the Securities Act and the common stock is
registered under the Exchange Act. In addition, AMB has obtained management
rights with respect to the operating partnership and conducts its affairs in
such a manner that it will qualify as either a real estate operating company or
venture capital operating company under the Department of Labor regulations.
Accordingly, AMB believes that if an ERISA plan purchases the common stock, our
assets should not be deemed to be ERISA plan assets and, therefore, that any
person who exercises authority or control with respect to our assets should not
be an ERISA plan fiduciary.
83
<PAGE> 87
SELLING STOCKHOLDERS
The following table provides the names of the selling stockholders, the
number of shares of common stock owned by the selling stockholders prior to the
offering and the number of shares of common stock offered pursuant to this
prospectus. Since the selling stockholders may sell all, some or none of their
shares, we cannot estimate the number or percentage of shares of common stock
that each selling stockholder will own upon completion of the offering to which
this prospectus relates.
The selling stockholders named below may from time to time offer the shares
of common stock offered by this prospectus:
<TABLE>
<CAPTION>
NUMBER
SHARES OF PERCENTAGE OF
COMMON OUTSTANDING
STOCK OWNED COMMON STOCK NUMBER OF SHARES
PRIOR TO OWNED PRIOR TO OF COMMON STOCK
NAME THIS OFFERING(1) THIS OFFERING(1) BEING OFFERED
---- ---------------- ---------------- ----------------
<S> <C> <C> <C>
Regents of the University of
California....................... 2,000,000 2.3% 2,000,000
Lend Lease Rosen Real Estate
Securities, LLC(2)............... 1,918,645 2.2% 1,189,000
AEW Capital Management, L.P.(3).... 1,123,685 1.3% 275,000
Teachers Insurance and Annuity
Association of America........... 832,000 * 250,000
Public School Employes'
Retirement System of the
Commonwealth of Pennsylvania..... 436,878 * 286,000
---------------- --- ---------
Total.................... 6,311,208 7.3% 4,000,000
================ === =========
</TABLE>
- -------------------------
* Less than 1%.
(1) Based on information available to us as of July 9, 1999.
(2) On behalf of client accounts for which Lend Lease Rosen Real Estate
Securities, LLC serves as investment advisor. Lend Lease Rosen Real Estate
Securities, LLC has informed us that it is the beneficial owner with sole
voting and investment authority with respect to 1,022,500 of the shares of
common stock registered pursuant to this registration statement. Lend Lease
Rosen Real Estate Securities, LLC has informed us that it has sole
investment authority but no voting authority with respect to 166,500 of the
shares of common stock registered pursuant to this registration statement
and that it shares the beneficial ownership of those shares with New York
State Teachers' Retirement System, which has sole voting authority with
respect to the shares. Including the 166,500 shares registered pursuant to
this registration statement, New York State Teachers' Retirement System
beneficially owns 620,500 shares of AMB's common stock.
(3) On behalf of a client account for which AEW Capital Management, L.P. serves
as investment advisor. AEW Capital Management, L.P. has informed us that it
is the beneficial owner with sole voting and investment authority with
respect to the shares of common stock registered pursuant to this
registration statement.
84
<PAGE> 88
PLAN OF DISTRIBUTION
This prospectus relates to:
- the offer and sale from time to time by the selling stockholders of up to
4,000,000 shares of common stock.
AMB is registering the shares of common stock to provide the selling
stockholders with freely tradeable securities, but the registration of these
shares does not necessarily mean that the selling stockholders will offer or
sell any of the shares.
We will not receive any proceeds from the issuance of the shares of common
stock to the selling stockholders or from the sale of the shares by the selling
stockholders, but we have agreed to pay certain expenses of the registration of
the shares. The selling stockholders may from time to time sell the shares
directly to purchasers. Alternatively, the selling stockholders may from time to
time offer the shares through dealers or agents, who may receive compensation in
the form of commissions from the selling stockholders and for the purchasers of
the shares for whom they may act as agent. The selling stockholders and any
dealers or agents that participate in the distribution of the shares may be
deemed to be "underwriters" within the meaning of the Securities Act and any
profit on the sale of the common stock by them and any commissions received by
any such dealers or agents might be deemed to be underwriting commissions under
the Securities Act.
In connection with distribution of the shares of common stock covered by
this prospectus, the selling stockholders may enter into hedging transactions
with broker-dealers, and the broker-dealers may engage in short sales of the
common stock in the course of hedging the positions they assume with the selling
stockholders. The selling stockholders also may sell the common stock short and
deliver the common stock to close out such short positions. The selling
stockholders also may enter into option or other transactions with
broker-dealers that involve the delivery of the shares to the broker-dealers,
who may then resell or otherwise transfer the shares.
The selling stockholders may transfer the shares to a donee and any donee
would become a selling stockholder under this prospectus. The selling
stockholders also may loan or pledge the shares. If a selling stockholder
defaults on a loan secured by the shares, the pledgee could obtain ownership of
the shares and would then become a selling stockholder under this prospectus.
LEGAL MATTERS
Ballard, Spahr, Andrews & Ingersoll, LLP, Baltimore, Maryland will issue an
opinion to us regarding certain matters of Maryland law. Latham & Watkins will
issue an opinion to us regarding certain tax matters described under "Certain
Federal Income Tax Considerations."
EXPERTS
The audited financial statements and schedules incorporated by reference in
this prospectus and elsewhere in the registration statement to the extent and
for the periods indicated in their reports have been audited by Arthur Andersen
LLP, independent public accountants, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
85
<PAGE> 89
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table itemizes the expenses incurred by the Registrant in
connection with the issuance and registration of the securities being registered
hereunder. All amounts shown are estimates except the Securities and Exchange
Commission registration fee.
<TABLE>
<S> <C>
SEC Registration Fee........................................ $25,681
NYSE Listing Fee............................................ $ 1,500
Printing and Engraving Expenses............................. $ 5,000
Legal Fees and Expenses..................................... $40,000
Accounting and Fees and Expenses............................ $10,000
Miscellaneous............................................... $ 2,819
-------
Total............................................. $85,000
=======
</TABLE>
All of the costs identified above will be paid for by the Registrant.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 2-418 of the Maryland General Corporation Law permits a corporation
to indemnify its directors and officers and certain other parties against
judgments, penalties, fines, settlements, and reasonable expenses actually
incurred by them in connection with any proceeding to which they may be made a
party by reason of their service in those or other capacities unless it is
established that (i) the act or omission of the director or officer was material
to the matter giving rise to the proceeding and (a) was committed in bad faith
or (b) was the result of active and deliberate dishonesty; (ii) the director or
officer actually received an improper personal benefit in money, property or
services; or (iii) in the case of any criminal proceeding, the director or
officer had reasonable cause to believe that the act or omission was unlawful.
Indemnification may be made against judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director or officer in connection
with the proceeding; provided, however, that if the proceeding is one by or in
the right of the corporation, indemnification may not be made with respect to
any proceeding in which the director or officer has been adjudged to be liable
to the corporation. In addition, a director or officer may not be indemnified
with respect to any proceeding charging improper personal benefit to the
director or officer, whether or not involving action in the director's or
officer's official capacity, in which the director or officer was adjudged to be
liable on the basis that personal benefit was received. The termination of any
proceeding by conviction, or upon a plea of nolo contendere or its equivalent,
or an entry of any order of probation prior to judgment, creates a rebuttable
presumption that the director or officer did not meet the requisite standard of
conduct required for indemnification to be permitted.
In addition, Section 2-418 of the Maryland General Corporation Law requires
that, unless prohibited by its charter, a corporation indemnify any director or
officer who is made a party to any proceeding by reason of service in that
capacity against reasonable expenses incurred by the director or officer in
connection with the proceeding, in the event that the director or officer is
successful, on the merits or otherwise, in the defense of the proceeding.
II-1
<PAGE> 90
The Registrant's charter and bylaws provide in effect for the
indemnification by the Registrant of the directors and officers of the
Registrant to the fullest extent permitted by applicable law. The Registrant has
purchased directors' and officers' liability insurance for the benefit of its
directors and officers.
The Registrant has entered into indemnification agreements with each of its
executive officers and directors. The indemnification agreements require, among
other matters, that the Registrant indemnify its executive officers and
directors to the fullest extent permitted by law and reimburse the executive
officers and directors for all related expenses as incurred, subject to return
if it is subsequently determined that indemnification is not permitted.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT INDEX
- ------- -------------
<C> <S>
4.1 Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-11
(No. 333-35915)).
4.2 Articles Supplementary establishing and fixing the rights
and preferences of the 8 1/2% Series A Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.4(4)
of the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998).
4.3 Certificate of Correction of the Registrant's Articles
Supplementary establishing and fixing the rights and
preferences of the 8 1/2% Series A Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.2 of
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
4.4 Articles Supplementary establishing and fixing the rights
and preferences of the 8 5/8% Series B Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.1 of
the Registrant's current report on Form 8-K filed on January
7, 1999).
4.5 Articles Supplementary establishing and fixing the rights
and preferences of the 8.75% Series C Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.2 of
the Registrant's current report on Form 8-K filed on January
7, 1999).
4.6 Articles Supplementary establishing and fixing the rights
and preferences of the 7.75% Series D Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.1 of
the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999).
4.7 First Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.5 of the
Registrant's Annual Report for the year ended December 31,
1998).
4.8 Specimen common stock certificate (incorporated by reference
to Exhibit 3.3 of the Registrant's Registration Statement on
Form S-11 (No. 333-35915)).
4.9 Indenture dated as of June 30, 1998 by and among the
Operating Partnership, the Registrant and State Street Bank
and Trust Company of California, N.A., as trustee
(incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
</TABLE>
II-2
<PAGE> 91
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT INDEX
- ------- -------------
<C> <S>
4.10 First Supplemental Indenture dated as of June 30, 1998 by
and among the Operating Partnership, the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee (incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
4.11 Second Supplemental Indenture dated as of June 30, 1998 by
and among the Operating Partnership, the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee (incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
4.12 Third Supplemental Indenture dated as of June 30, 1998 by
and among the Operating Partnership, the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee (incorporated by reference to Exhibit 4.4 to the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
4.13 Specimen of 7.10% Notes due 2008 (included in the First
Supplemental Indenture incorporated by reference as Exhibit
4.2 to the Registrant's Registration Statement on Form S-11
(No. 333-49163)).
4.14 Specimen of 7.50% Notes due 2018 (included in the Second
Supplemental Indenture incorporated by reference as Exhibit
4.3 to the Registrant's Registration Statement on Form S-11
(No. 333-49163)).
4.15 Specimen of 6.90% Reset Put Securities due 2015 (included in
the Third Supplemental Indenture incorporated by reference
as Exhibit 4.4 to the Registrant's Registration Statement on
Form S-11 (No. 333-49163)).
*5.1 Opinion of Ballard, Spahr, Andrews & Ingersoll, LLP
regarding the validity of the common stock being registered.
*8.1 Opinion of Latham & Watkins regarding certain federal income
tax matters.
*23.1 Consent of Arthur Andersen, LLP.
*23.2 Consent of Ballard, Spahr, Andrews & Ingersoll, LLP
(included in Exhibit 5.1).
*23.3 Consent of Latham & Watkins (included in Exhibit 8.1).
*24.1 Power of Attorney.
</TABLE>
- -------------------------
* Previously filed.
ITEM 17. UNDERTAKINGS
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
II-3
<PAGE> 92
(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)(i) and (a)(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 by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given the
latest quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
The undersigned Registrant hereby further undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance under Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4), or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE> 93
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Exchange Act of 1934, 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 Exchange Act of 1934, and will be governed by the final adjudication
of such issue.
II-5
<PAGE> 94
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-3 and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned
thereunto duly authorized in the City of San Francisco, State of California, on
the 12th day of July, 1999.
AMB PROPERTY CORPORATION
By: /s/ DAVID S. FRIES
-----------------------------------
David S. Fries
Chief Administrative Officer,
Managing Director, Secretary and
General Counsel
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
* Chairman of the Board July 12, 1999
- --------------------------------------------------- and Director
T. Robert Burke
* President, Chief July 12, 1999
- --------------------------------------------------- Executive Officer and
Hamid R. Moghadam Director (Principal
Executive Officer)
* Chairman of Investment July 12, 1999
- --------------------------------------------------- Committee and Director
Douglas D. Abbey
* Vice President and Chief July 12, 1999
- --------------------------------------------------- Financial Officer
Michael A. Coke (Principal Financial
Officer and Principal
Accounting Officer)
Director
- ---------------------------------------------------
Daniel H. Case III
* Director July 12, 1999
- ---------------------------------------------------
Robert H. Edelstein, Ph.D.
* Director July 12, 1999
- ---------------------------------------------------
Lynn M. Sedway
</TABLE>
II-6
<PAGE> 95
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Director
- ---------------------------------------------------
Jeffrey L. Skelton, Ph.D.
* Director July 12, 1999
- ---------------------------------------------------
Thomas W. Tusher
Director
- ---------------------------------------------------
Caryl B. Welborn
*By: /s/ DAVID S. FRIES
---------------------------------------------
David S. Fries
Attorney-In-Fact
</TABLE>
II-7
<PAGE> 96
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT INDEX
- ------- -------------
<C> <S>
4.1 Articles of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.1 of the Registrant's Registration
Statement on Form S-11 (No. 333-35915)).
4.2 Articles Supplementary establishing and fixing the rights
and preferences of the 8 1/2% Series A Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.4(4)
of the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998).
4.3 Certificate of Correction of the Registrant's Articles
Supplementary establishing and fixing the rights and
preferences of the 8 1/2% Series A Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.2 of
the Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998).
4.4 Articles Supplementary establishing and fixing the rights
and preferences of the 8 5/8% Series B Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.1 of
the Registrant's current report on Form 8-K filed on January
7, 1999).
4.5 Articles Supplementary establishing and fixing the rights
and preferences of the 8.75% Series C Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.2 of
the Registrant's current report on Form 8-K filed on January
7, 1999).
4.6 Articles Supplementary establishing and fixing the rights
and preferences of the 7.75% Series D Cumulative Redeemable
Preferred Stock (incorporated by reference to Exhibit 3.1 of
the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 1999).
4.7 First Amended and Restated Bylaws of the Registrant
(incorporated by reference to Exhibit 3.5 the Registrant's
Annual Report for the year ended December 31, 1998).
4.8 Specimen common stock certificate (incorporated by reference
to Exhibit 3.3 of the Registrant's Registration Statement on
Form S-11 (No. 333-35915)).
4.9 Indenture dated as of June 30, 1998 by and among the
Operating Partnership, the Registrant and State Street Bank
and Trust Company of California, N.A., as trustee
(incorporated by reference to Exhibit 4.1 of the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
4.10 First Supplemental Indenture dated as of June 30, 1998 by
and among the Operating Partnership, the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee (incorporated by reference to Exhibit 4.2 to the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
4.11 Second Supplemental Indenture dated as of June 30, 1998 by
and among the Operating Partnership, the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee (incorporated by reference to Exhibit 4.3 to the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
</TABLE>
<PAGE> 97
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT INDEX
- ------- -------------
<C> <S>
4.12 Third Supplemental Indenture dated as of June 30, 1998 by
and among the Operating Partnership, the Registrant and
State Street Bank and Trust Company of California, N.A., as
trustee (incorporated by reference to Exhibit 4.4 to the
Registrant's Registration Statement on Form S-11 (No.
333-49163)).
4.13 Specimen of 7.10% Notes due 2008 (included in the First
Supplemental Indenture incorporated by reference as Exhibit
4.2 to the Registrant's Registration Statement on Form S-11
(No. 333-49163)).
4.14 Specimen of 7.50% Notes due 2018 (included in the Second
Supplemental Indenture incorporated by reference as Exhibit
4.3 to the Registrant's Registration Statement on Form S-11
(No. 333-49163)).
4.15 Specimen of 6.90% Reset Put Securities due 2015 (included in
the Third Supplemental Indenture incorporated by reference
as Exhibit 4.4 to the Registrant's Registration Statement on
Form S-11 (No. 333-49163)).
*5.1 Opinion of Ballard, Spahr, Andrews & Ingersoll, LLP
regarding the validity of the common stock being registered.
*8.1 Opinion of Latham & Watkins regarding certain federal income
tax matters.
*23.1 Consent of Arthur Andersen, LLP.
*23.2 Consent of Ballard, Spahr, Andrews & Ingersoll, LLP
(included in Exhibit 5.1).
*23.3 Consent of Latham & Watkins (included in Exhibit 8.1).
*24.1 Power of Attorney.
</TABLE>
- -------------------------
* Previously filed.
