SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
United Dominion Realty Trust, Inc.
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(Exact name of registrant as specified in its charter)
Virginia 54-0857512
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(State of incorporation or organization) (IRS employer
identification no.)
10 South Sixth Street, Suite 203, Richmond Virginia 23219-3802
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(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, $1 par value New York Stock Exchange
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9 1/4% Series A Cumulative Redeemable New York Stock Exchange
Preferred Stock, no par value
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
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(Title of class)
This is an amendment of the registrant's Form 8-A registration statement
dated April 1, 1990, relating to its Common Stock, $1 par value, and its
Form 8-A registration statement dated April 24, 1995, relating to its 9
1/4% Series A Cumulative Redeemable Preferred Stock, no par value.
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Item 1. Description of Registrant's Securities to be Registered.
The Company has authority to issue 150,000,000 shares of Common Stock,
and 25,000,000 shares of Preferred Stock, no par value.
Common Stock
Holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors. Holders of Common Stock have one vote per
share and non-cumulative voting rights, which means that holders of more than
50% of the shares voting can elect all of the directors if they choose to do so,
and, in such event, the holders of the remaining shares will not be able to
elect any directors. In the event of any voluntary or involuntary liquidation or
dissolution of the Company, holders of Common Stock are entitled to share
ratably in the distributable assets of the Company. Holders of Common Stock do
not have preemptive rights.
Preferred Stock
The Preferred Stock is issuable in one or more series, with such
designations, powers, preferences and rights of the shares of such series and
the qualifications, limitations or restrictions thereon, including, but not
limited to, the fixing of the dividend rights, dividend rate or rates,conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, and the liquidation preferences, in
each case, if any, as the Board of Directors of the Company may determine by
adoption of an amendment of the Company's articles of incorporation, without any
further vote or action by the shareholders. The Preferred Stock is issuable for
any corporate purpose and for whatever consideration the Board of Directors
deems appropriate. A series of Preferred Stock could be given more than one vote
per share and a series having preferential distribution rights could limit
Common Stock distributions and reduce the amount holders of Common Stock would
otherwise receive on dissolution of the Company.
Series A Preferred
The Board of Directors has designated 4,600,000 shares of Preferred
Stock as the "9 1/4% Series A Cumulative Redeemable Preferred Stock" (the
"Series A Preferred"). At September 18, 1995, there were 4,200,000 shares of
Series A Preferred outstanding. The Board of Directors may redesignate any
unissued shares of Series A Preferred as all or a part of a different series of
Preferred Stock.
Dividends
Holders of shares of the Series A Preferred shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available for the payment of dividends, cumulative preferential cash dividends
at the rate of 9 1/4% of the liquidation preference per annum (equivalent to
$2.3125 per share). Such dividends shall be cumulative from the date of original
issue and shall be payable quarterly in arrears on the fifteenth day of each
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January, April, July and October or, if not a business day, the next succeeding
business day (each, a "Dividend Payment Date"). The first dividend, which will
be paid on July 15, 1995, will be for less than a full quarter. Such dividend
and any dividend payable on the Series A Preferred for any partial dividend
period will be computed on the basis of a 360-day year consisting of twelve
30-day months.Dividends will be payable to holders of record as they appear in
the stock records of the Company at the close of business on the applicable
record date,which shall be the first day of the calendar month in which the
applicable Dividend Payment Date falls on or such other date designated by the
Board of Directors of the Company for the payment of dividends that is not more
than 30 nor less than 10 days prior to such Dividend Payment Date (each, a
"Dividend Record Date").
No dividends on shares of Series A Preferred shall be declared by the
Board of Directors of the Company or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law. See "Restrictions on Dividends" below for
summaries of such provisionsin contained in certain of the Company's loan
agreements.
Notwithstanding the foregoing, dividends on the Series A Preferred will
accrue whether or not the Company has earnings, whether or not there are funds
legally available for the payment of such dividends and whether or not such
dividends are declared. Accrued but unpaid dividends on the Series A Preferred
will not bear interest. Holders of the Series A Preferred will not be entitled
to any dividends in excess of full cumulative dividends as described above.
If, for any taxable year, the Company elects to designate as "capital
gain dividends" (as defined in Section 857 of the Internal Revenue Code of 1986,
as amended (the "Code")) any portion (the "Capital Gains Amount") of the
dividends(as determined for federal income tax purposes) paid or made available
for the year to holders of all classes of stock (the "Total Dividends"), then
the portion of the Capital Gains Amount that shall be allocable to the holders
of Series A Preferred shall be the amount that the total dividends (as
determined for federal income tax purposes) paid or made available to the
holders of the Series A Preferred for the year bears to the Total Dividends.
No full dividends shall be declared or paid or set apart for payment on
the preferred stock of the Company of any other series ranking, as to dividends,
on a parity with or junior to the Series A Preferred for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on the Series A Preferred for all past dividend periods and the then current
dividend period. When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the shares of Series A Preferred and
the shares of any other series of preferred stock ranking on a parity as to
dividends with the Series A Preferred, all dividends declared upon shares of
Series A Preferred and any other series of Preferred Stock ranking on
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a parity as to dividends with the Series A Preferred shall be declared pro rata
so that the amount of dividends declared per share on the Series A Preferred
Stock and such other series of Preferred Stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the shares of Series A
Preferred and such other series of Preferred Stock bear to each other.
Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series A Preferred have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, no dividends (other than in Common Stock or other capital stock
ranking junior to the Series A Preferred as to dividends and upon liquidation)
shall be declared or paid or set aside for payment or other distribution shall
be declared or made upon the Common Stock or any other capital stock of the
Company ranking junior to or on a parity with the Series A Preferred as to
dividends or upon liquidation, nor shall any Common Stock or any other capital
stock of the Company ranking junior to or on a parity with the Series A
Preferred as to dividends or upon liquidation be redeemed, purchased or
otherwise acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any shares of any such stock)
by the Company (except by conversion into or exchange for other capital stock of
the Company ranking junior to the Series A Preferred as to dividends and upon
liquidation).
Any dividend payment made on shares of the Series A Preferred shall
first be credited against the earliest accrued but unpaid dividend due with
respect to such shares which remains payable.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of the
Company,the holders of shares of Series A Preferred are entitled to be paid out
of the assets of the Company legally available for distribution to its
shareholders a liquidation preference of $25.00 per share, plus an amount equal
to any accrued and unpaid dividends to the date of payment, before any
distribution of assets is made to holders of Common Stock or any other capital
stock that ranks junior to the Series A Preferred as to liquidation rights.
After payment of the full amount of the liquidating distributions to which they
are entitled, the holders of Series A Preferred will have no right or claim to
any of the remaining assets of the Company. The consolidation or merger of the
Company with or into any other corporation or of any other corporation with or
into the Company, or the sale,lease, transfer or conveyance of all or
substantially all of the property or business of the Company, shall not be
deemed to constitute a liquidation, dissolution or winding up of the Company.
Redemption
The Serires A Preferred is not redeemable prior to April 24, 2000. On
and after April 24, 2000, the Company, at its option upon not less than 30 nor
more than 60 days' written
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notice, may redeem shares of the Series A Preferred, in whole or in part, at any
time or from time to time, for cash at a redemption price of $25.00 per share,
plus all accrued and unpaid dividends thereon to the date fixed for redemption
(except as provided below), without interest. The redemption price of the Series
A Preferred (other than the portion thereof consisting of accrued and unpaid
dividends) is payable solely out of the sale proceeds of other capital stock of
the Company, which may include other series of Preferred Stock, and from no
other source. Holders of Series A Preferred to be redeemed shall surrender such
Series A Preferred at the place designated in such notice and shall be entitled
to the redemption price and any accrued and unpaid dividends payable upon such
redemption following such surrender. If notice of redemption of any shares of
Series A Preferred has been given and if the funds necessary for such redemption
have been set aside by the Company in trust for the benefit of the holders of
any shares of Series A Preferred so called for redemption, then from and after
the redemption date dividends will cease to accrue on such shares of Series A
Preferred, such shares of Series A Preferred shall no longer be deemed
outstanding and all rights of the holders of such shares will terminate, except
the right to receive the redemption price. If less than all the outstanding
Series A Preferred is to be redeemed, the Series A Preferred to be redeemed
shall be selected pro rata (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined by the Company.
Unless full cumulative dividends on all shares of Series A Preferred
shall have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividend
periods and the then current dividend period, no shares of Series A Preferred
shall be redeemed unless all outstanding shares of Series A Preferred are
simultaneously redeemed; provided, however, that the foregoing shall not prevent
the redemption of shares of Series A Preferred to preserve the Company's status
as a REIT. (see "Redemption and Restrictions on Transfer" below), or the
purchase or acquisition of shares of Series A Preferred pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding shares of
Series A Preferred. Unless full cumulative dividends on all outstanding shares
of Series A Preferred have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, the Company
shall not purchase or otherwise acquire directly or indirectly any shares of
Series A Preferred (except by exchange for capital stock of the Company ranking
junior to the Series A Preferred as to dividends and upon liquidation).
Notice of redemption will be given by publication in a newspaper of
general circulation in the City of New York, such publication to be made once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the redemption date. A similar notice will be mailed by the Company,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date,addressed to the respective holders of record of the Series A Preferred to
be redeemed at their respective address as they appear on the stock transfer
records of the Company. No failure to give such notice or any defect thereto or
in the mailing thereof shall affect the validity of the proceedings for the
redemption of any shares of Series A Preferred except as to the holder to whom
notice was defective or not given. Each notice shall state: (i)
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the redemption date; (ii) the redemption price; (iii) the number of shares of
Series A Preferredto be redeemed; (iv) the place or places where the Series A
Preferred is to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date. If less than all the Series A Preferred held by any holder is to be
redeemed, the notice mailed to such holder shall also specify the number of
shares of Series A Preferred held by such holder to be redeemed.
The holders of Series A Preferred at the close of business on a
Dividend Record Date will be entitled to receive the dividend payable with
respect to such Series A Preferred on the corresponding Dividend Payment Date
notwithstanding the redemption thereof between such Dividend Record Date and the
corresponding Dividend Payment Date or the Company's default in the payment of
the dividend due.Except as provided above, the Company will make no payment or
allowance for unpaid dividends, whether or not in arrears, on called Series A
Preferred.
The Series A Preferred has no stated maturity and will not be subject
to any sinking fund or mandatory redemption except to preserve the Company's
status as a REIT as described in "Redemption and Restrictions on Transfer"
below. Any such redemption would apply only to shares held, directly or
indirectly, by those shareholders with concentrated share ownership that would
violate the REIT requirements of the Code. In addition, the number of shares
subject to such a redemption would be limited to that number of concentrated
shares sufficient in the opinion of the Board of Directors of the Company to
maintain or bring the ownership of shares into conformity with the requirements
of the Code.
Voting Rights
Holders of the Series A Preferred will not have any voting rights,
except asset forth below or as otherwise from time to time required by law.
Whenever dividends on any shares of Series A Preferred shall be in
arrears for six or more consecutive quarterly periods, the holders of such
shares of Series A Preferred (voting separately as a class with all other series
of preferred stock upon which like voting rights have been conferred and are
exercisable)will be entitled to vote for the election of two additional
directors of the Company at a special meeting called by the holders of record of
at least 10% of the Series A Preferred or the holders of any other series of
preferred stock so in arrears (unless such request is received less than 90 days
before the date fixed for the next annual or special meeting of the
shareholders) or at the next annual meeting of shareholders, and at each
subsequent annual meeting until all dividends accumulated on such shares of
Series A Preferred for the past dividend periods and the then current dividend
period shall have been fully paid or declared and a sum sufficient for the
payment thereof set aside for payment. In such case, the entire Board of
Directors of the Company will be increased by two directors.
So long as any shares of Series A Preferred remain outstanding, the
Company shall not, without the affirmative vote of the holders of at least a
majority of the shares of the Series A
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Preferred outstanding at the time, (i) authorize or create, or increase the
authorized or issued amount of, any class or series of capital stock ranking
prior to the Series A Preferred with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up or reclassify
any authorized capital stock of the Company into any such shares, or
create,authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares; or (ii) amend, alter or repeal
the provisions of the Articles, whether by merger, consolidation or otherwise,
so as to materially and adversely affect any right, preference, privilege or
voting power of the Series A Preferred or the holders thereof; provided,
however, that any increase in the amount of the authorized preferred stock or
the creation or issuance of any other series of preferred stock, or any increase
in the amount of authorized shares of such series, in each case ranking on a
parity with or junior to the Series A Preferred with respect to payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up, shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series A Preferred shall have been
redeemed or called for redemption upon proper notice and sufficient funds shall
have been deposited in trust to effect such redemption.
Under Virginia law, notwithstanding anything to the contrary set forth
above, if shareholder voting is otherwise required by law, holders of the Series
A Preferred will be entitled to vote as a class upon a proposed amendment to the
Articles, whether or not entitled to vote thereon by the Articles, if the
amendment would increase or decrease the aggregate number of authorized shares
of Series A Preferred; effect an exchange or reclassification, or create a right
of exchange, of the Series A Preferred for or into shares of another class or of
shares of another class into Series A Preferred; change the
designation,preferences, rights or limitations of all or part of the Series A
Preferred; change shares of Series A Preferred into a different number of shares
of Series A Preferred;create a new class, or change a subordinate class into a
class, having dividend or liquidation rights superior or equal to those of the
Series A Preferred or increase the rights, preferences or number of authorized
shares of a class having such dividend or liquidation rights; divide the Series
A Preferred into series, designate such series and determine its terms; or
cancel or otherwise affect rights to accumulated but undeclared dividends on the
Series A Preferred.
Conversion
The Series A Preferred is not convertible into or exchangeable for any
other property or securities of the Company.
Restrictions on Dividends
Covenants in its loan agreements with certain lenders effectively
prohibit the Company from declaring or paying dividends if, after giving effect
thereto (i) a default or "Event of
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Default under the particular agreement shall have occurred and be continuing,
(ii) the Company would be prohibited from incurring debt under other covenants
in such agreement, and (iii):
(a) in the case of the loan agreement with one insurance company
lender, such dividends and other "Restricted Payments" (as defined in such
agreement) after July 1, 1991, would exceed the sum of $10,000,000, plus 100% of
"Cash Flow" (as so defined) from and after July 1, 1991, to and including the
last day of the fiscal quarter immediately preceding payment of such dividends,
plus the net cash proceeds received by the Company from the sale of capital
stock after July 1, 1991;
(b) in the case of the loan agreement with a group of insurance company
lenders, such dividends and other "Restricted Payments" (as defined in such
agreement) declared during the same fiscal year as such dividends would exceed
the sum of (A) "Cash Flow" (as so defined) from the beginning of such fiscal
year to and including the last day of the completed fiscal quarter immediately
preceding the date of payment of such dividends, and (B) the net cash proceeds
received by the Company from the issuance or sale of capital stock after
February 24, 1993, plus $20,000,000, minus the total of the amounts, if any, by
which "Restricted Payments" declared during each fiscal year subsequent to
December 31, 1992, exceed "Cash Flow" for such fiscal year; and
(c) in the case of the loan agreements with its bank lenders, such
dividends and other "Restricted Payments" (as defined in such agreement) after
July 1, 1991, would exceed the sum of $10,000,000, plus 100% of "Consolidated
Cash Flow" (as so defined) from and after July 1, 1991, to and including the
last day of the fiscal quarter immediately preceding payment of such dividends,
plus the net cash proceeds received by the Company from the sale of capital
stock after July 1, 1991.
Notwithstanding such covenants, the Company may pay dividends required
to maintain its qualification as a real estate investment trust ("REIT") under
the Internal Revenue Code of 1986, as amended (the "Code").
Affiliated Transactions
The Virginia Stock Corporation Act contains provisions governing
"Affiliated Transactions" designed to deter uninvited takeovers of Virginia
corporations. These provisions, with several exceptions discussed below, require
approval of material acquisition transactions between a Virginia corporation and
any holder of more than 10% of any class of its outstanding voting shares (an
"Interested Shareholder") by the holders of at least two-thirds of the remaining
voting shares. For three years following the time that the Interested
Shareholder becomes an owner of 10% of the outstanding voting shares, Virginia
corporations cannot engage in an Affiliated Transaction with such Interested
Shareholder without approval of two-thirds of the voting shares other than those
shares beneficially owned by the Interested Shareholder, and majority approval
of the "Disinterested Directors." At the expiration of the three year period,
the statute requires approval of Affiliated Transactions by two-thirds of the
voting shares other
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than those beneficially owned by the Interested Shareholder absent an exception.
The principal exceptions to the special voting requirement apply to transactions
proposed after the three year period has expired and require either that the
transaction be approved by a majority of the corporation's Disinterested
Directors or that the transaction satisfy the fair-price requirements of the
law.
The Virginia Stock Corporation Act also provides that shares acquired
in a transaction that would cause the acquiring person's voting strength to
cross any of three thresholds (20%, 33 1/3%, or 50%) have no voting rights
unless granted by a majority vote of shares not owned by the acquiring person or
any officer or employee-director of the Company. An acquiring person may require
the Company to hold a special meeting of shareholders to consider the matter
within 50 days of its request.
Redemption and Restrictions on Transfer
In order to preserve the Company's status as a REIT under the Code, the
Company can redeem or stop the transfer of its shares. The Company's Articles of
Incorporation provide that the Company is organized to qualify as a REIT.
Because the Code provides that the concentration of more than 50% in value of
the direct or indirect ownership of its shares in five or fewer individual
shareholders during the last six months of any year would result in the
disqualification of the Company as a REIT, the Articles of Incorporation provide
that the Company shall have the power (i) to redeem that number of concentrated
shares sufficient in the opinion of the Board of Directors of the Company to
maintain or bring the direct or indirect ownership of shares into conformity
with the requirements of the Code, and (ii) to stop the transfer of shares to
any person whose acquisition thereof would, in the opinion of the Company's
Board of Directors, result in such disqualification. The per share redemption
price of any shares redeemed by the Company pursuant to this provision shall be
the last reported sale price for the shares as of the business day preceding the
day on which notice of redemption is given. The Board of Directors of the
Company can require shareholders to disclose in writing to the Company such
information with respect to ownership of its shares as it deems necessary to
comply with the REIT provisions of the Code.
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Item 2. Exhibits.
The following additional exhibit is filed herewith and with the copy
hereof filed with the New York Stock Exchange:
6(a)(4) Amendment of Articles of Incorporation.
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
UNITED DOMINION REALTY TRUST, INC.
(Registrant)
By s/James Dolphin
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James Dolphin
Senior Vice President and Chief Financial Officer
Dated: February 11, 1997
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Exhibit 6(a)(3)
Delete the first sentence of Article 3 of the current Articles
of Incorporation and substitute in lieu thereof the following:
"The corporation shall have authority to issue 150,000,000
shares of common stock having a par value of $1.00 per share
and 25,000,000 shares of preferred stock without par value."
