As Filed with the Securities and Exchange Commission on January 16, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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United Dominion Realty Trust, Inc.
(Exact name of registrant as specified in its charter)
Virginia 54-0857512
(State or other jurisdiction (I.R.S. Employer of
of incorporation or organization Identification No.)
10 South 6th Street
Richmond, Virginia 23219-3802
(804) 780-2691
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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KATHERYN E. SURFACE
Senior Vice President and General Counsel
United Dominion Realty Trust, Inc.
10 South 6th Street
Richmond, Virginia 23219-3802
(804) 780-2691
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy To:
JAMES W. FEATHERSTONE, III
Hunton & Williams
951 East Byrd Street
Richmond, Virginia 23219-4074
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Approximate date of commencement of proposed sale to the public
From time to time 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. [X]
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. [ ]
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 for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(b)
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. [ ]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Title of Each Class Proposed Maximum
of Securities to Amount to be Offering Price Per Proposed Maximum Amount of
be Registered Registered Unit (1) Aggregate Offering Price (1) Registration Fee (1)(2)
<S> <C> <C> <C> <C>
Common Stock,
$1 par value...... 10,000,000 shares $14.375 $143,750,000 $42,406
</TABLE>
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(1) Determined pursuant to Rule 457(c).
(2) Pursuant to Rule 429, 953,447 shares of Common Stock are being carried
forward from registration statement No. 333-15133. The amount of the
registration fee associated with such shares that was previously paid with
registration statement No. 333-15133 is $3,991.
The prospectus included in this registration statement is a combined
prospectus relating also to registration statement no. 333-15133. This
registration statement also constitutes post-effective amendment no. 1 to
registration statement no. 333-15133 and such post-effective amendment shall
become effective concurrently with this registration statement in accordance
with Rules 462 and 464. This registration statement and the registration
statement amended hereby are collectively referred to herein as the
"Registration Statement."
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[UNITED DOMINION LOGO]
Dividend Reinvestment and
Stock Purchase Plan
Prospectus dated January 16, 1998
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Prospectus
United Dominion Realty Trust, Inc.
Dividend Reinvestment and
Stock Purchase Plan
Pursuant to its revised Dividend Reinvestment and Stock Purchase Plan
(the "Plan"), United Dominion Realty Trust, Inc. (the "Company") hereby offers
to holders of its Common Stock, $1 par value ("Common Stock"), 9 1/4% Series A
Cumulative Redeemable Preferred Stock ("Series A Preferred Stock")and 8.60%
Series B Cumulative Redeemable Preferred Stock ("Series B Preferred Stock," and
together with the Series A Preferred Stock, "Preferred Stock") the opportunity
to purchase, through reinvestment of dividends or by additional cash payments,
additional shares of Common Stock, on the terms, subject to the conditions and
at the prices herein stated.
Dividends reinvested will be applied to the purchase of shares of Common
Stock at 95% of Average Market Value (as defined in "Purchases and Price of
Shares"). Participants may make additional optional cash payments of not less
than $50 and not more than $25,000 per quarter; such payments will be applied
to the purchase of shares at 97% of Average Market Value.
This Prospectus relates to 14,000,000 shares of Common Stock that have
been registered for sale under the Plan. Please retain this Prospectus for
future reference.
The executive offices of the Company are located at 10 South Sixth
Street, Richmond, Virginia 23219-3802, its telephone number is (804) 780-2691
and its E-mail address is [email protected].
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
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The date of this Prospectus is January 16, l998.
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Available Information
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Reports, proxy statements, and other information concerning
the Company can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at its Regional Offices in New York (Suite 1300, 7 World Trade
Center, New York, New York 10048) and Chicago (Suite 1400, 500 West Madison
Street, Chicago, Illinois 60661), and can also be inspected and copied at the
offices of the New York Stock Exchange (the "NYSE") at 20 Broad Street, New
York, New York 10005. Copies of such material can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a Web
site that contains reports, proxy and information statements and other
information regarding the Company and other registrants that have been filed
electronically with the Commission. The address of such site is
http://www.sec.gov.
Incorporation of Documents by Reference
The following documents (File No. 1-10524) filed by the Company with the
Commission under the Exchange Act are hereby incorporated by reference in this
Proxy Statement/Prospectus: (i) the Company's annual report on Form 10-K for
the year ended December 31, 1996 filed on March 31, 1997; (ii) the Company's
quarterly reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 1997 filed on May 15, 1997, August 14, 1997 and November 14,
1997, respectively; (iii) the Company's Current Report on Form 8-K dated
December 31, 1996, including the Company's Form 8-K/A No. 1 filed on
March 17, 1997; (iv) the Company's Current Report on Form 8-K dated July
1, 1997 filed on July 15, 1997, including the Company's Form 8-K/A No. 1 to
Form 8-K dated July 1, 1997 filed on September 15, 1997; (v) the Company's
Current Report on Form 8-K dated October 21, 1997 filed on November 5, 1997,
including the Company's Form 8-K/A No. 1 to Form 8-K dated October 21, 1997
filed on December 31, 1997; and (vi)
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the description of the Common Stock contained in the Company's registration
statement on Form 8-A dated April 19, 1990, filed under the Exchange Act,
including any amendment or reports filed for the purpose of updating such
description.
Anyone receiving a copy of this Prospectus may obtain, without charge, a
copy of any of the documents incorporated by reference, except for the
exhibits, if any, to those documents. Mail or fax your request to United
Dominion Realty Trust, Inc., 10 South Sixth Street, Richmond, Virginia
23219-3802, Attention: Investor Relations, fax number (804) 788-4607, or call
(804) 780-2691.
The Company
The Company, founded in 1972, is a Virginia corporation that owns and
operates income producing real estate, primarily apartments located within the
Sunbelt region of the United States. The Company is operated in a manner
intended to enable it to qualify as a real estate investment trust (a "REIT")
under the Internal Revenue Code of 1986, as amended (the "Code").
The Plan
The Plan provides you with a simple and convenient way to invest your
cash dividends in additional shares of Common Stock. As a participant in the
Plan, you may purchase shares at 95% of Average Market Value, as defined below
under "Purchases and Price of Shares," with reinvested dividends. You may also
invest additional cash, making payments of not less than $50 or more than
$25,000 per quarter, to purchase shares at 97% of Average Market Value. You
receive free custodial service for the shares you hold through the Plan.
Shares for the Plan will be purchased directly from the Company. Such
shares will be previously unissued shares and will provide the Company with
funds for general corporate purposes.
Eligibility
Holders of record of Common and Preferred Stock are eligible to
participate in the Plan with respect to any whole number of their shares. If
your shares are
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held of record by a broker or nominee and you want to participate in the Plan,
you must make appropriate arrangements with your broker or nominee.
The Company may refuse participation in the Plan to shareholders
residing in jurisdictions where shares offered pursuant to the Plan are neither
registered under applicable securities laws or exempt from registration.
Administration
Chase Mellon Shareholder Services, L.L.C. ("Chase Mellon"), Pittsburgh,
Pennsylvania, is the Administrator of the Plan. The Plan Administrator holds
certificates for shares held in your Plan account, keeps records and sends
statements of your account to you. Shares of Common Stock purchased under the
Plan are registered in the name of Chase Mellon or its nominee, as agent, and
credited to the accounts of participants.
Enrollment
You may join the Plan by signing the enrollment card enclosed with this
Prospectus and returning it to the Company.
Your participation in the Plan will begin with the first dividend
payment after your signed card is received, provided your card is received on
or before the record date established for that dividend. Record dates for
Common Stock dividends are ordinarily on or about the 15th day of January,
April, July and October; record dates for Series A Preferred Stock dividends
are ordinarily on or about the first day of January, April, July and October;
and record dates for Series B Preferred Stock dividends are ordinarily on or
about the 15th day of February, May, August and November. If your enrollment
card is received after the record date for any dividend and before payment of
that dividend, that dividend will be paid to you in cash and reinvestment of
your dividends will not begin until the next dividend payment date.
Costs
Participants in the Plan pay no service charges or other fees for
purchases made under the Plan. All costs
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of administration of the Plan are paid by the Company. If you terminate
participation in the Plan or ask that your Plan shares be sold, you will pay
certain charges as explained in "Termination of Participation" below.
Purchases and Price of Shares
Common and Preferred Stock dividends, as well as any additional cash
payments, will be invested on the date on which Common Stock dividends are paid
each quarter (the "Investment Date"). Payment dates for Common Stock dividends
are ordinarily on or about the last business day of January, April, July and
October. Payment dates for Series A Preferred Stock dividends are the 15th day
(or the next following business day if any such payment date is not a business
day) of each January, April, July and October. Payment dates for Series B
Preferred Stock dividends are the last day (or the next following business day
if any such payment date is not a business day) of each February, May, August
and November. Preferred Stock dividends will be held by the Company, without
interest, until the Investment Date next following the date on which such
dividends are paid and will then be invested. You become an owner of shares
purchased under the Plan as of the Investment Date.
Reinvested Dividends. You may elect dividend reinvestment with respect
to any whole number of shares of Common and/or Preferred Stock registered in
your name on the records of the Company. Specify on the enrollment card the
number of shares for which you want dividends reinvested. Dividends on all
shares purchased pursuant to the Plan will be automatically reinvested. The
number of shares purchased for you as a participant in the Plan depends on the
amount of your dividends to be reinvested (less any required withholding tax)
and the purchase price of the Common Stock. Your account will be credited with
the number of shares, including fractions computed to four decimal places,
equal to the total amount invested divided by the purchase price per share.
Shares of Common Stock will be purchased for participants from the
Company at a price per share equal to 95% of the Average Market Value of the
Common Stock, which is the GREATER of (i) the average of the
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high and low sale prices of the Company's Common Stock on the NYSE on the
Investment Date (or, if that is not a trading day, the next following trading
day), or (ii) the average reported closing sale price (but not greater than
105% of (i) above) on the NYSE for the 10 trading days prior to the Investment
Date. No shares will be purchased under the Plan at less than their par value
($1.00 per share).
Optional Cash Purchases. As a Plan participant, you may make additional
cash payments for the purchase of Common Stock. You may make additional cash
payments regardless of whether you elect dividend reinvestment. Payments must
be at least $50 and not more than $25,000 per quarter. You are not obligated to
make any cash payments, and if you choose to do so, you need not pay the same
amount each quarter. The price of shares purchased with additional cash
payments will be 97% of Average Market Value.
Cash payments must be received at least five business days before an
Investment Date in order to be used to purchase shares on that Investment Date.
Cash payments received fewer than five business days before an Investment Date
will be held, without interest, until the next Investment Date. Any payments
not yet invested will be refunded on written request therefor received by the
Plan Administrator not later than five business days before the next Investment
Date.
You may make cash purchases when you join the Plan by enclosing a check
or money order payable to the Company with the enrollment card. After you are
enrolled, please use the form provided with your account statement when you
make cash purchases.
Dividends on Shares Held in Plan
Dividends paid on shares held in the Plan (less any required withholding
tax) will be credited to your Plan account. Dividends are paid on both full and
fractional shares held in your account and are automatically reinvested.
Account Statements
You will receive a statement of your account as soon as practicable
after each Investment Date. The
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statements will contain a report of all transactions since the last statement,
including information with respect to the number of shares allocated to your
account, the amount of dividends received which are allocable to you, the
amount of Common Stock purchased therewith and the price paid. These statements
are your continuing record of the cost of your purchase and should be retained
for income tax purposes.
Certificates for Shares
The certificates for shares purchased for your account will be held in
the name of the Plan Administrator or its nominee. The number of shares
purchased will be shown on your statement of account. This feature permits
ownership of fractional shares, protects against loss, theft or destruction of
stock certificates, and reduces the costs of the Plan.
Certificates for any number of whole shares credited to your account
will be issued in your name upon your written request to the Plan
Administrator. Certificates for fractional shares will not be issued. Should
you want your certificates issued in a different name, you must notify the Plan
Administrator in writing and comply with applicable transfer requirements. If
you wish to sell any whole shares credited to your account under the Plan, you
will have the option of either (i) receiving a certificate for such whole
number of shares or (ii) requesting that such shares held in your account be
sold, in which case the shares will be sold on the open market as soon as
practicable. Brokerage commissions on such sales will not be paid by the
Company, and will be deducted from the sales proceeds. See "Termination of
Participation." If you wish to pledge shares credited to your account, you must
first have the certificate for those shares issued in your name.
Termination of Participation
You may discontinue reinvestment of dividends under the Plan with
respect to any of your shares (other than shares held for your account in the
Plan) at any time by notifying the Plan Administrator in writing. A notice of
termination with respect to any shares which is received by the Plan
Administrator after the record date for payment of dividends on such shares
will not
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be effective until the next following dividend payment record date for shares
of the same class.
If you notify the Plan Administrator of your termination of
participation in the Plan with respect to all of your shares (including shares
held for your account in the Plan), or if your participation in the Plan is
terminated by the Company, you may elect either (i) to receive a certificate
for whole shares credited to your account under the Plan or (ii) to request
that any shares held in your account be sold, in which case the shares will be
sold on the open market as soon as practicable. In either case you will be sent
a check representing the value of any fractional share computed on the basis of
the average of the high and low sale prices of the Common Stock on the NYSE on
the date your account is terminated. Brokerage commissions on sales will not be
paid by the Company, and will be deducted from the sales proceeds. In addition,
if you terminate participation in the Plan with respect to all of your shares,
you will be subject to a $5.00 service charge imposed by the Plan
Administrator, which will not be paid by the Company.
If the Company terminates the Plan, you will receive a certificate for
the number of whole shares credited to your account under the Plan and a check
for the value of any fractional share (computed as described in the preceding
paragraph).
If a participant moves his or her residence to a jurisdiction where
shares offered pursuant to the Plan are neither registered nor exempt from
registration under applicable securities laws, the Company may deem the
participant to have terminated participation in the Plan.
Suspension, Amendment and Termination of Plan
The Board of Directors of the Company may suspend the Plan without prior
notice to participants at any time and from time to time if the Board
determines that the Average Market Value of the Common Stock is at a level
making sales of shares pursuant to the Plan disadvantageous to the Company.
Such determination may be based on any factor or factors deemed appropriate by
the Board, including but not limited to inability of the Company to invest the
proceeds of sale
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of Plan shares at a rate of return exceeding the cost to the Company of such
shares. Unless sooner terminated or extended by the Board, suspension of the
Plan will terminate on the record date for payment of Preferred Stock dividends
that immediately precedes the second Investment Date following its initiation
or extension. Dividends that would otherwise be invested during a period of
suspension will be paid to participants in cash and cash payments received
during a period of suspension will be refunded, without interest.
The Board of Directors may also amend or terminate the Plan at any time,
provided that no amendment made between a payment date for dividends on
participating shares and the record date therefor may modify the terms of
investment of such dividends on such dividend payment date. You will be
notified if the Plan is terminated or materially amended. The Company may also
terminate any participant's participation in the Plan at any time by notice to
such participant if continued participation will, in the opinion of the Board
of Directors, jeopardize the status of the Company as a REIT under the Code.
Voting of Shares Held Under the Plan
You will be able to vote all shares of Common Stock (including
fractional shares) credited to your account under the Plan at the same time
that you vote the shares registered in your name on the records of the Company.
Stock Dividends, Stock Splits and Rights Offerings
Any stock dividends or splits distributed by the Company in respect of
shares held in the Plan for you will be credited to your Plan account. If the
Company issues to its shareholders rights to subscribe to additional shares,
such rights will be issued to you based on your total share holdings, including
shares held in your Plan account.
Responsibility of the Plan Administrator and the
Company Under the Plan
The Plan Administrator will not be liable for any claim based on an act
done in good faith or a good faith
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omission to act. This includes, without limitation, any claim of liability
arising out of failure to terminate a participant's participation in the Plan
upon such participant's death, the prices at which shares are purchased, the
times when purchases are made, or fluctuations in the market price of Common
Stock.
All notices from the Plan Administrator to a participant will be mailed
to the participant at his or her last address of record with the Plan
Administrator, which will satisfy the Plan Administrator's duty to give notice.
Participants must promptly notify the Plan Administrator of any change in
address.
You should recognize that neither the Company nor the Plan Administrator
can provide any assurance of a profit or protection against loss on any shares
purchased under the Plan.
Interpretation and Regulation of the Plan
The Company reserves the right, without notice to participants, to
interpret and regulate the Plan as it deems necessary or desirable in
connection with its operation. Any such interpretation and regulation shall be
conclusive.
Federal Income Tax Consequences of Participation
in the Plan
The following discussion summarizes the principal federal income tax
consequences, under current law, of participation in the Plan. It does not
address all potentially relevant federal income tax matters, including
consequences peculiar to persons subject to special provisions of federal
income tax law (such as tax-exempt organizations, insurance companies,
financial institutions, broker-dealers and foreign persons). The discussion is
based on various rulings of the Internal Revenue Service regarding several
types of dividend reinvestment plans. No ruling, however, has been issued or
requested regarding the Plan. The following discussion is for your general
information only, and you must consult your own tax advisor to determine the
particular tax consequences (including the effects of any changes in law) that
may result from your participation in the
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Plan and the disposition of any shares purchased pursuant to the Plan.
Reinvested Dividends. When your dividends are reinvested to acquire
shares of Common Stock (including any fractional share), you will be treated as
having received a distribution in the amount of the average of the high and low
sales prices of the Common Stock on the NYSE on the Investment Date (the "Tax
FMV") multiplied by the number of shares of Common Stock (including any
fractional share) purchased. Thus, for example, if $95 of your dividends are
reinvested to purchase shares of Common Stock under the Plan having a Tax FMV
of $100, you will be treated as having received a $100 distribution for federal
income tax purposes. The amount treated as a distribution to you will
constitute a dividend for federal income tax purposes to the same extent as a
cash distribution and the initial tax basis of shares you acquire with
reinvested dividends will equal the Tax FMV of such shares.
The holding period for shares acquired with reinvested dividends will
begin the day after the Investment Date. A whole share resulting from the
acquisition of two or more fractional shares on different Investment Dates will
have a split holding period, with the holding period for each fractional
component beginning the day after the Investment Date when the fraction was
acquired.
Optional Cash Payments. It is not entirely clear under current law how
purchases of shares under the Plan with your optional cash payments should be
treated for federal income tax purposes. The Company currently intends to take
the position for reporting purposes that the purchase of shares with optional
cash payments will result in a distribution to you for federal income tax
purposes if the Tax FMV of such shares exceeds the purchase price of such
shares taking into account the discount (the "Discount Price"). The amount of
the distribution will equal the excess of the Tax FMV over the Discount Price.
Thus, for example, if you make a $97 optional cash payment to purchase shares
of Common Stock having a Tax FMV of $100, you will be treated as having
received a $3 distribution for federal income tax purposes. The Company
currently intends to take the position for tax reporting purposes that the
amount
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treated as a distribution to you will constitute a dividend for federal income
tax purposes to the same extent as a cash distribution. Consistent with that
position, your initial tax basis in a share acquired with an optional cash
payment will be the greater of such share's Tax FMV or its Discount Price.
The holding period for shares acquired with optional cash payments under
the Plan will begin the day after the Investment Date on which such shares are
purchased. A share consisting of fractional shares purchased on different
Investment Dates will have a split holding period, with the holding period for
each fractional component beginning the day after the Investment Date on which
it was purchased.
Receipt of Share Certificates and Cash. You will not realize any income
when you receive certificates for whole shares credited to your account under
the Plan. Any cash received for a fractional share held in your account will be
treated as an amount realized on the sale of the fractional share. You
therefore will recognize gain or loss equal to any difference between the
amount of cash received for a fractional share and your tax basis in the
fractional share. Similarly, if the Plan Administrator sells your shares
pursuant to your request upon termination of your participation in the Plan,
you will recognize gain or loss equal to the difference between the amount you
realize on the sale and your tax basis in the shares. Gain or loss recognized
on a sale of shares (including a fractional share) from your account generally
will be capital gain or loss if you hold your Plan shares as capital assets.
Indemnification of Directors and Officers of the
Company
Directors and officers of the Company shall be indemnified against
liabilities, fines, penalties, and claims imposed upon or asserted against
them, except for matters as to which they are liable because of willful
misconduct or a knowing violation of the criminal law, as provided in the
Company's Articles of Incorporation and the Virginia Stock Corporation Act.
This indemnification covers all costs and expenses reasonably incurred by a
director or officer. In addition, the Virginia Stock Corporation Act and the
Company's Articles
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of Incorporation may, under certain circumstances, eliminate the liability of
directors and officers in a shareholder or derivative proceeding.
Insofar as indemnification for liabilities arising under the Securities
Act of l933 (the "Securities Act") may be permitted to directors, officers, or
controlling persons of the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
Experts
The consolidated financial statements of the Company included in its
Annual Report on Form 10-K for the year ended December 31, 1996 have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of South West Property Trust at
December 31, 1996 and for each of three years in the period ended December 31,
1996 appearing in United Dominion Realty Trust's Current Report (Form 8-K/A
No. 1) dated March 17, 1997, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such consolidated financial statements
are incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
The statements of rental operations of Anderson Mill Oaks Apartments,
Pineloch Apartments, Post Oak Ridge Apartments, Seahawk Apartments, Tradewinds
Apartments, Trinity Place Apartments, Stoneybrooke Apartments, Forest Creek
Apartments, Lakeside Apartments, Lotus Landing Apartments, Mallards of
Brandywine Apartments and Orange Oaks Apartments, included in the Company's
current report on Form 8-K, dated July 1, 1997, incorporated by reference
herein, have been incorporated herein in reliance upon the reports respectively
dated June 11, 1997, June 11, 1997, June 11, 1997, June 11, 1997, June 25,
1997,
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June 25, 1997, June 25, 1997, June 25, 1997, August 7, 1997, August 7, 1997,
August 7, 1997, August 7, 1997, and August 7, 1997, of L.P. Martin & Company,
P.C., independent auditors, also incorporated by reference herein, and upon the
authority of such firm as experts in accounting and auditing. The statements of
rental operations of Waterside at Ironbridge Apartments, Bammelwood Apartments,
Braesridge Apartments, Camino Village Apartments and Pecan Grove Apartments,
included in the Company's current report on Form 8-K, dated October 21, 1997,
incorporated by reference herein, have been incorporated herein in reliance
upon the reports respectively dated November 14, 1997, November 20, 1997,
November 20, 1997, November 20, 1997 and November 20, 1997, of L.P. Martin &
Company, P.C., independent auditors, also incorporated by reference herein, and
upon the authority of such firm as experts in accounting and auditing.
Address of the Plan Administrator
Optional cash payments, changes in name or address, notices of
termination and requests for refunds of payments to purchase shares,
certificates or the sale of shares held in the Plan should be directed to
United Dominion Realty Trust, Inc., Dividend Reinvestment and Stock Purchase
Plan, Chase Mellon Shareholder Services, L.L.C., P.O. Box 750, Pittsburgh,
Pennsylvania 15230-9933.
Inquiries Regarding the Plan
Please address questions about the Plan and your participation to United
Dominion Realty Trust, Inc., 10 South Sixth Street, Richmond, Virginia 23219-
3802, Attention: Investor Relations, fax number (804) 788-4607, or call (804)
780-2691.
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No person has been authorized to give any information or to make
representations not contained in this Prospectus regarding the Company or the
offering made hereby and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company. This
Prospectus does not constitute an offer to sell or a solicitation of an offer
to buy any securities other than the securities to which it relates,
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nor does it constitute an offer to or solicitation of any person in any
jurisdiction in which such offer or solicitation would be unlawful. Neither
delivery of this Prospectus nor any sale made hereunder shall create an
implication that information contained herein is correct as of any time
subsequent to the date hereof.
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To Join the Plan:
(l) Complete this card. Be sure to include your social security or tax
identification number and signature.
(2) Staple or tape the card closed so that your signature is enclosed.
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<PAGE>
UNITED DOMINION REALTY TRUST, INC.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN ENROLLMENT CARD
I hereby appoint Chase Mellon Shareholder Services, L.L.C. (or any
successor) as my agent to receive cash dividends that may hereafter become
payable to me on shares of Common Stock and/or 9 1/4% Series A Cumulative
Redeemable Preferred Stock and/or 8.60% Series B Cumulative Redeemable
Preferred Stock of United Dominion Realty Trust, Inc. registered in my name as
set forth below, and authorize Chase Mellon Shareholder Services, L.L.C., to
apply such dividends, and/or any optional cash payments I may properly make, to
the purchase of full shares and fractional interests in shares of the Company's
Common Stock.
I understand that the purchases will be made under the terms and
conditions of the Dividend Reinvestment and Stock Purchase Plan as described in
the Prospectus and that I may revoke this authorization at any time by
notifying Chase Mellon Shareholder Services, L.L.C., in writing, of my desire
to terminate my participation.
Please indicate your participation below:
[ ] Full dividend reinvestment on all shares of Common Stock.
[ ] Full dividend reinvestment on all shares of Series A Preferred Stock
[ ] Full dividend reinvestment on all shares of Series B Preferred Stock
[ ] Partial dividend reinvestment on ________ shares of Common
Stock only
[ ] Partial dividend reinvestment on ________ shares of Series A
Preferred Stock only
[ ] Partial dividend reinvestment on ________ shares of Series B
Preferred Stock only.
[ ] Optional cash investment (enclosed): $________
(Must be at least $50 and not more than $25,000)
Return this card only if you wish to participate in the Plan.
__________________________________________________________
Please Print Name(s) as Shown on Stock Certificate
__________________________________________________________
Signature(s)
__________________________________________________________
Signature(s)
____________ ____________________________________________
Date Social Security or Tax Identification Number
If your shares are held of record by a broker or nominee, you must make
appropriate arrangements with the broker or nominee to participate in the Plan.
Reverse side of card is self-addressed, postage-paid card.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The estimated expenses in connection with the offering are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee $12,557
Accounting fees and expenses ..................... 5,000
Legal fees and expenses ........................... 10,000
Printing expenses ................................. 25,000
Miscellaneous .................................... 443
Total ............................................. $53,000
</TABLE>
Item 15. Indemnification of Officers and Directors
Directors and officers of the Company may be indemnified against
liabilities, fines, penalties and claims imposed upon or asserted against them
as provided in the Virginia Stock Corporation Act and the Articles of
Incorporation. Such indemnification covers all costs and expenses reasonably
incurred by a director or officer. The Board of Directors, by a majority vote
of a quorum of disinterested directors or, under certain circumstances,
independent counsel appointed by the Board of Directors, must determine that
the director or officer seeking indemnification was not guilty of willful
misconduct or a knowing violation of the criminal law. In addition, the
Virginia Stock Corporation Act and the Company's Articles of Incorporation may
under certain circumstances eliminate the liability of directors and officers
in a shareholder or derivative proceeding.
If the person involved is not a director or officer of the Company, the
Board of Directors may cause the Company to indemnify to the same extent
allowed for directors and officers of the Company such person who was or is a
party to a proceeding, by reason of the fact that he is or was an employee or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise.
Item 16. Exhibits
<TABLE>
<S> <C>
2 Agreement and Plan of Merger dated as of October 1,1996, between the Company, United Sub, Inc.,
and South West Property Trust Inc. (filed as Exhibit 2(a) to the Company's Form S-4 Registration
Statement, filed with the Commission on October 9, 1996 (File No. 333-13745), and incorporated by
reference herein)
4(a) Specimen Common Stock certificate (filed as Exhibit 4 (i) to the Company's Annual Report on Form
10-K for the year ended December 31, 1993 (File No. 1-10524), and incorporated by reference herein)
4(b) Restated Articles of Incorporation
4(c) Restated Bylaws (filed as Exhibit 3(b) to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1997 (File No. 1-10524) and incorporated by reference herein)
4(d) Loan Agreement dated as of November 7, 1991, between the Company and Aid Association for
Lutherans (filed as Exhibit 6(c)(1) to the Company's Form 8-A Registration Statement dated April 19,
1990 (File No. 1-10524), and incorporated by reference herein)
4(e) Note Purchase Agreement dated as of January 15, 1993, between the Company and CIGNA Property
and Casualty Insurance Company, Connecticut General Life Insurance Company, Connecticut General
Life Insurance Company, on behalf of one or more separate accounts, Insurance Company of North
America, Principal Mutual Life Insurance Company and Aid Association for Lutherans (filed as
Exhibit 6(c)(5) to the Company's Form 8-A Registration Statement dated April 19, 1990 (File No.
1-10524), and incorporated by reference herein)
5 Opinion of Hunton & Williams
23(a) Consent of Ernst & Young LLP--Richmond, Virginia
23(b) Consent of Ernst & Young LLP--Dallas, Texas
23(c) Consent of L. P. Martin & Company, P.C.
23(d) Consent of Hunton & Williams (included in Exhibit 5)
24 Power of Attorney (located on the signature page of this Registration Statement)
</TABLE>
II-1
<PAGE>
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not apply
if the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement 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-2
<PAGE>
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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, Commonwealth of Virginia on the 16th day
of January, 1998.
UNITED DOMINION REALTY TRUST, INC.
By: /s/ John P. McCann
----------------------------------
John P. McCann
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on January 16, 1998. Each of the undersigned officers and
directors of the registrant hereby constitutes John P. McCann, James Dolphin
and Katheryn E. Surface, any of whom may act, his true and lawful
attorneys-in-fact with full power to sign for him and in his name in the
capacities indicated below and to file any and all amendments to the
registration statement filed herewith, making such changes in the registration
statement as the registrant deems appropriate, and generally to do all such
things in his name and behalf in his capacity as an officer and director to
enable the registrant to comply with the provisions of the Securities Act of
1933 and all requirements of the Securities and Exchange Commission.
<TABLE>
<CAPTION>
Signature Title and Capacity
- ------------------------------------------- -----------------------------------------
<S> <C>
/s/ John P. McCann Chairman of the Board, President,
---------------------------------- Chief Executive Officer (Principal
John P. McCann Executive Officer) and Director
/s/ James Dolphin Executive Vice President, Chief
---------------------------------- Financial Officer (Principal Financial
James Dolphin Officer) and Director
/s/ Jerry A. Davis Vice President and Controller (Principal
---------------------------------- Accounting Officer)
Jerry A. Davis
Vice Chairman of the Board, Executive
---------------------------------- Vice President and Director
John S. Scneider
/s/ Jeff C. Bane Director
----------------------------------
Jeff C. Bane
Director
----------------------------------
R. Toms Dalton, Jr.
/s/ Barry M. Kornblau Director
----------------------------------
Barry M. Kornblau
Director
----------------------------------
John C. Lanford
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
Signature Title and Capacity
- ------------------------------------------- -------------------
<S> <C>
/s/ H. Franklin Minor Director
----------------------------------
H. Franklin Minor
Director
----------------------------------
Lynne B. Sagalyn
Director
----------------------------------
Mark J. Sandler
Director
----------------------------------
Robert W. Scharar
/s/ C. Harmon Williams, Jr. Director
----------------------------------
C. Harmon Williams, Jr.
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
- --------------
<S> <C>
2 Agreement and Plan of Merger dated as of October 1, 1996, between the Company,
United Sub, Inc., and South West Property Trust Inc. (incorporated by reference)
4(a) Specimen Common Stock certificate (incorporated by reference)
4(b) Restated Articles of Incorporation
4(c) Restated Bylaws (incorporated by reference)
4(d) Loan Agreement dated as of November 7, 1991, between the Company and Aid
Association for Lutherans (incorporated by reference)
4(e) Note Purchase Agreement dated as of January 15, 1993, between the Company and
CIGNA Property and Casualty Insurance Company, Connecticut General Life
Insurance Company, Connecticut General Life Insurance Company, on behalf of one
or more separate accounts, Insurance Company of North America, Principal Mutual
Life Insurance Company and Aid Association for Lutherans (incorporated by
reference)
5 Opinion of Hunton & Williams
23(a) Consent of Ernst & Young LLP--Richmond, Virginia
23(b) Consent of Ernst & Young LLP--Dallas, Texas
23(c) Consent of L. P. Martin & Company, P.C.
23(d) Consent of Hunton & Williams (included in Exhibit 5)
25 Power of Attorney (included on signature page)
</TABLE>
<PAGE>
RESTATED ARTICLES OF INCORPORATION
OF
UNITED DOMINION REALTY TRUST, INC.
1. The name of the corporation is UNITED DOMINION REALTY TRUST, INC.
2. The purpose for which the corporation is organized is to qualify as a "real
estate investment trust," as defined in section 856(a) and related sections of
the Internal Revenue Code of 1954, as amended (together with the Treasury
Regulations promulgated pursuant thereto, the "Code"). Except as its business
may be limited by the purpose set forth above, the corporation may transact any
and all lawful business not required to be specifically stated in these Articles
for which corporations may be incorporated under the Virginia Stock Corporation
Act (the "Act").
3. 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. The Board of Directors of the corporation, by adoption
of an amendment of these Articles of Incorporation, may fix in whole or in part
the preferences, limitations and relative rights, within the limits set forth in
the Act, of any series within the preferred stock before the issuance of any
shares of that series. Stockholders shall not have preemptive rights to acquire
unissued shares of the corporation.
(a) 9 1/4% Series A Cumulative Redeemable Preferred Stock.
(1) Designation and Number. A series of the preferred stock,
designated the "9 1/4% Series A Cumulative Redeemable
Preferred Stock" (the "Series A Preferred"), is hereby
established. The number of shares of the Series A Preferred
shall be 4,600,000.
(2) Relative Seniority. In respect of rights to receive
dividends and to participate in distributions or payments in
the event of any liquidation, dissolution or winding up of the
corporation, the Series A Preferred shall rank senior to the
common stock and any other capital stock of the corporation
ranking, as to dividends and upon liquidation, junior to the
Series A Preferred (collectively, "Junior Stock").
(3) Dividends. The holders of the then outstanding Series A
Preferred shall be entitled to receive, when and as declared
by the Board of Directors out of any funds legally available
therefor, cumulative preferential cash dividends at the rate
of 9 1/4% of the liquidation preference of the Series A
Preferred (equivalent to $2.3125 per share) per annum, payable
quarterly in arrears in cash on the fifteenth day, or the next
succeeding business day, of January, April, July and October
in each year, beginning July 15, 1995 (each such day being
hereinafter called a "Dividend Payment Date" and each period
beginning on the day next following a Dividend Payment Date
and ending on the next following Dividend Payment Date being
hereinafter called a "Dividend Period"), to shareholders of
record at the close of business on the first day of the
calendar month in which the applicable Dividend Payment Date
falls on or such date as shall be fixed by the Board of
Directors at the time of declaration of the dividend (the
"Dividend Record Date"), which shall be not less than 10 nor
more than 30 days preceding the Dividend Payment Date. The
amount of any dividend payable for the initial Dividend Period
and for any other partial Dividend Period shall be computed on
the basis of a 360-day year consisting of twelve 30-day
months. Dividends on the shares of Series A Preferred shall
accrue and be cumulative from and including the date of
original issue thereof, whether or not (i) the corporation has
earnings, (ii) dividends on such shares are declared or (iii)
on any Dividend Payment Date there shall be funds legally
available for the payment of such dividends. When dividends
are not paid in full 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 (or a sum
sufficient for such full payment is not set apart therefor),
all dividends declared upon shares of Series A Preferred and
any other series of preferred stock ranking on 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 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 on the Series A Preferred for all past
dividend periods and the then current dividend period, (i) no
dividends shall be declared or paid or set apart for payment
on the preferred stock of the corporation ranking, as to
dividends, on a parity with or junior to the Series A
Preferred for any period, and (ii) no dividends (other than in
Junior Stock) shall be declared or paid or set aside for
payment or other distribution or shall be declared or made
upon the Junior Stock or any other capital stock of the
corporation ranking on a parity with the Series A Preferred as
to dividends or upon liquidation ("Parity Stock"), nor shall
any Junior Stock or any Parity Stock 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 Junior Stock or Parity Stock) by
the corporation (except by conversion into or exchange for
Junior Stock).
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.
No dividends on shares of Series A Preferred shall be
declared by the Board of Directors of the corporation or paid
or set apart for payment by the corporation at such time as
the terms and provisions of any agreement of the corporation,
including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for
payment or provides that such declaration, payment or setting
apart for payment would constitute a breach thereof or a
default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
The amount of any dividends accrued on any shares of
Series A Preferred at any Dividend Payment Date shall be the
amount of any unpaid dividends accumulated thereon, to and
including such Dividend Payment Date, whether or not earned or
declared, and the amount of dividends accrued on any shares of
Series A Preferred at any date other than a Dividend Payment
Date shall be equal to the sum of the amount of any unpaid
dividends accumulated thereon, to and including the last
preceding Dividend Payment Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual
dividend rate for the period after such last preceding
Dividend Payment Date to and including the date as of which
the calculation is made, based on a 360-day year of twelve
30-day months.
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.
Except as provided in these Articles, the Series A
Preferred shall not be entitled to participate in the earnings
or assets of the corporation.
(4) Liquidation Rights.
(A) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the corporation, the holders of
shares of the Series A Preferred then outstanding shall be
entitled to receive and to be paid out of the assets of the
corporation legally available for distribution to its
shareholders, before any distribution shall be made to the
holders of common stock or any other capital stock of the
corporation ranking junior to the Series A Preferred upon
liquidation, a liquidation preference of $25.00 per share,
plus accrued and unpaid dividends thereon to the date of
payment.
(B) After the payment to the holders of the shares of
the Series A Preferred of the full liquidation preference
provided for in this paragraph (4), the holders of the Series
A Preferred as such shall have no right or claim to any of the
remaining assets of the corporation.
(C) If, upon any voluntary or involuntary
dissolution, liquidation, or winding up of the corporation,
the amounts payable with respect to the liquidation preference
of the shares of the Series A Preferred and any other shares
of stock of the corporation ranking as to any such
distribution on a parity with the shares of the Series A
Preferred are not paid in full, the holders of the shares of
the Series A Preferred and of such other shares will share
ratably in any such distribution of assets of the corporation
in proportion to the full respective liquidation preferences
to which they are entitled.
(D) Neither the sale, lease, transfer or conveyance
of all or substantially all the property or business of the
corporation, nor the merger or consolidation of the
corporation into or with any other corporation or the merger
or consolidation of any other corporation into or with the
corporation, shall be deemed to be a dissolution, liquidation
or winding up, voluntary or involuntary, for the purposes of
this paragraph (4).
(5) Redemption.
(A) Right of Optional Redemption. The Series A
Preferred is not redeemable prior to April 24, 2000. On and
after April 24, 2000, the corporation may, at its option,
redeem at any time all or, from time to time, part of the
Series A Preferred at a price per share (the "Series A
Redemption Price"), payable in cash, of $25.00, together with
all accrued and unpaid dividends to and including the date
fixed for redemption (the "Series A Redemption Date"), without
interest. In case of redemption of less than all shares of
Series A Preferred at the time outstanding, the shares of
Series A Preferred to be redeemed shall be selected pro rata
from the holders of record of such shares in proportion to the
number of shares of Series A Preferred held by such holders
(as nearly as may be practicable without creating fractional
shares) or by any other equitable method determined by the
corporation.
(B) Procedures for Redemption.
(i) Notice of any redemption will be (a) given by
publication in a newspaper of general circulation in the City
of New York, 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 Series A Redemption Date, and (b)
mailed by the corporation, postage prepaid, not less than 30
nor more than 60 days prior to the Series A Redemption Date,
addressed to the respective holders of record of the Series A
Preferred to be redeemed at their respective addresses as they
appear on the stock transfer records of the corporation. No
failure to give such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings
for the redemption of any Series A Preferred except as to the
holder to whom the corporation has failed to give notice or
except as to the holder to whom notice was defective. In
addition to any information required by law or by the
applicable rules of any exchange upon which Series A Preferred
may be listed or admitted to trading, such notice shall state:
(a) the Series A Redemption Date; (b) the Series A Redemption
Price; (c) the number of shares of Series A Preferred to be
redeemed; (d) the place or places where certificates for such
shares are to be surrendered for payment of the Series A
Redemption Price; and (e) that dividends on the shares to be
redeemed will cease to accumulate on the Series A Redemption
Date. If less than all the shares of Series A Preferred held
by any holder are 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.
(ii) If notice of redemption of any shares of Series
A Preferred has been published and mailed in accordance with
subparagraph (5)(B)(i) above and provided that on or before
the Series A Redemption Date specified in such notice all
funds necessary for such redemption shall have been
irrevocably set aside by the corporation, separate and apart
from its other funds in trust for the benefit of any holders
of the shares of Series A Preferred so called for redemption,
so as to be, and to continue to be available therefor, then,
from and after the Series A Redemption Date, dividends on such
shares of Series A Preferred shall cease to accrue, and such
shares shall no longer be deemed to be outstanding and shall
not have the status of Series A Preferred and all rights of
the holders thereof as shareholders of the corporation (except
the right to receive the Series A Redemption Price) shall
terminate. Upon surrender, in accordance with said notice, of
the certificates for any shares of Series A Preferred so
redeemed (properly endorsed or assigned for transfer, if the
corporation shall so require and the notice shall so state),
such shares of Series A Preferred shall be redeemed by the
corporation at the Series A Redemption Price. In case less
than all the shares of Series A Preferred represented by any
such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed
shares of Series A Preferred without cost to the holder
thereof.
(iii) The deposit of funds with a bank or trust
company for the purpose of redeeming Series A Preferred shall
be irrevocable except that:
(a) the corporation shall be entitled to
receive from such bank or trust company the interest
or other earnings, if any, earned on any money so
deposited in trust, and the holders of any shares
redeemed shall have no claim to such interest or
other earnings; and
(b) any balance of monies so deposited by
the corporation and unclaimed by the holders of the
Series A Preferred entitled thereto at the expiration
of two years from the applicable Series A Redemption
Date shall be repaid, together with any interest or
other earnings earned thereon, to the corporation,
and after any such repayment, the holders of the
shares entitled to the funds so repaid to the
corporation shall look only to the corporation for
payment without interest or other earnings.
(C) Limitations on Redemption
(i) The Series A Redemption Price (other than the
portion thereof consisting of accrued and unpaid dividends)
shall be payable solely out of the sale proceeds of other
capital stock of the corporation and from no other source.
(ii) 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 Series A
Preferred shall be redeemed (unless all outstanding shares of
Series A Preferred are simultaneously redeemed) or purchased
or otherwise acquired directly or indirectly (except by
exchange for Junior Stock); provided, however, that the
foregoing shall not prevent the redemption of Series A
Preferred pursuant to Article 4 or the purchase or acquisition
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.
(D) Rights to Dividends on Shares Called for
Redemption. If the Series A Redemption Date is after a
Dividend Record Date and before the related Dividend Payment
Date, the dividend payable on such Dividend Payment Date shall
be paid to the holder in whose name the shares of Series A
Preferred to be redeemed are registered at the close of
business on such Dividend Record Date notwithstanding the
redemption thereof between such Dividend Record Date and the
related Dividend Payment Date or the corporation's default in
the payment of the dividend due. Except as provided in this
paragraph (5), the corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on
called Series A Preferred.
(6) Voting Rights. Except as required by the Virginia
Stock Corporation Act and except as otherwise provided in this
paragraph (6), the holders of the Series A Preferred shall not
be entitled to vote at any meeting of the shareholders for
election of directors or for any other purpose or otherwise to
participate in any action taken by the corporation or the
shareholders thereof, or to receive notice of any meeting of
shareholders.
(A) 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 corporation 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 corporation will be increased by two directors.
(B) So long as any shares of Series A Preferred
remain outstanding, the corporation shall not, without the
affirmative vote of the holders of at least a majority of the
shares of the Series A 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
corporation 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 these 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.
(C) The foregoing voting provisions will not apply
if, at or prior to the time when the act with respect to which
such vote would otherwise be required shall be effected, all
outstanding 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.
(D) So long as the Series A Preferred is listed or
admitted to trading on the New York Stock Exchange, then
notwithstanding anything to the contrary in these Articles,
including without limitation Article 8, approval by the
holders of at least two-thirds of the outstanding shares of
the Series A Preferred shall be required for adoption of any
amendment of these Articles or of the bylaws of the
corporation that would materially affect the existing terms of
the Series A Preferred.
(7) Conversion of Series A Preferred. The Series A
Preferred is not convertible into or exchangeable for any
other property or securities of the corporation.
(b) 8.60% Series B Cumulative Redeemable Preferred Stock.
(1) Designation and Number. A series of the preferred
stock, designated the "8.60% Series B Cumulative Redeemable
Preferred Stock" (the "Series B Preferred"), is hereby
established. The number of shares of the Series B Preferred
shall be 6,900,000. Such number shall include 400,000 unissued
shares of the Series A Preferred, which are hereby
redesignated as 400,000 shares of the Series B Preferred.
(2) Relative Seniority. In respect of rights to
receive dividends and to participate in distributions or
payments in the event of any liquidation, dissolution or
winding up of the corporation, the Series B Preferred shall
rank pari passu with the Series A Preferred and senior to the
common stock and any other capital stock of the corporation
ranking, as to dividends and upon liquidation, junior to the
Series A Preferred (collectively, "Junior Stock").
(3) Dividends. The holders of the then outstanding
Series B Preferred shall be entitled to receive, when and as
declared by the Board of Directors out of any funds legally
available therefor, cumulative preferential cash dividends at
the rate of 8.60% of the liquidation preference of the Series
B Preferred (equivalent to $2.15 per share) per annum, payable
quarterly in arrears in cash on the last day, or the next
succeeding business day, of February, May, August and November
in each year, beginning August 31, 1997 (each such day being
hereinafter called a "Dividend Payment Date" and each period
beginning on the day next following a Dividend Payment Date
and ending on the next following Dividend Payment Date being
hereinafter called a "Dividend Period"), to shareholders of
record at the close of business on the fifteenth day of the
calendar month in which the applicable Dividend Payment Date
falls on or such date as shall be fixed by the Board of
Directors at the time of declaration of the dividend (the
"Dividend Record Date"), which shall be not less than 10 nor
more than 30 days preceding the Dividend Payment Date. The
amount of any dividend payable for the initial Dividend Period
and for any partial Dividend Period shall be computed on the
basis of a 360-day year consisting of twelve 30-day months.
Dividends on the shares of Series B Preferred shall accrue and
be cumulative from and including the date of original issue
thereof, whether or not (i) the corporation has earnings, (ii)
dividends on such shares are declared or (iii) on any Dividend
Payment Date there shall be funds legally available for the
payment of such dividends. When dividends are not paid in full
upon the shares of Series B Preferred and the shares of any
other series of preferred stock ranking on a parity as to
dividends with the Series B Preferred (or a sum sufficient for
such full payment is not set apart therefor), all dividends
declared upon shares of Series B Preferred and any other
series of preferred stock ranking on a parity as to dividends
with the Series B Preferred shall be declared pro rata so that
the amount of dividends declared per share on the Series B
Preferred 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 B 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 B
Preferred have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment thereof set
apart for payment on the Series B Preferred for all past
dividend periods and the then current dividend period, (i) no
dividends shall be declared or paid or set apart for payment
on the preferred stock of the corporation ranking, as to
dividends, on a parity with or junior to the Series B
Preferred for any period, and (ii) no dividends (other than in
Junior Stock) shall be declared or paid or set aside for
payment or other distribution or shall be declared or made
upon the Junior Stock or any other capital stock of the
corporation ranking on a parity with the Series B Preferred as
to dividends or upon liquidation ("Parity Stock"), nor shall
any Junior Stock or any Parity Stock 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 Junior Stock or Parity Stock) by
the corporation (except by conversion into or exchange for
Junior Stock).
Any dividend payment made on shares of the Series B
Preferred shall first be credited against the earliest accrued
but unpaid dividend due with respect to such shares which
remains payable.
No dividends on shares of Series B Preferred shall be
declared by the Board of Directors of the corporation or paid
or set apart for payment by the corporation at such time as
the terms and provisions of any agreement of the corporation,
including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for
payment or provides that such declaration, payment or setting
apart for payment would constitute a breach thereof or a
default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
The amount of any dividends accrued on any shares of
Series B Preferred at any Dividend Payment Date shall be the
amount of any unpaid dividends accumulated thereon, to and
including such Dividend Payment Date, whether or not earned or
declared, and the amount of dividends accrued on any shares of
Series B Preferred at any date other than a Dividend Payment
Date shall be equal to the sum of the amount of any unpaid
dividends accumulated thereon, to and including the last
preceding Dividend Payment Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual
dividend rate for the period after such last preceding
Dividend Payment Date to and including the date as of which
the calculation is made, based on a 360-day year of twelve
30-day months.
Accrued but unpaid dividends on the Series B
Preferred will not bear interest. Holders of the Series B
Preferred will not be entitled to any dividends in excess of
full cumulative dividends as described above.
Except as provided in these Articles, the Series B
Preferred shall not be entitled to participate in the earnings
or assets of the corporation.
(4) Liquidation Rights.
(A) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the corporation, the holders of
shares of the Series B Preferred then outstanding shall be
entitled to receive and to be paid out of the assets of the
corporation legally available for distribution to its
shareholders, before any distribution shall be made to the
holders of common stock or any other capital stock of the
corporation ranking junior to the Series B Preferred upon
liquidation, a liquidation preference of $25.00 per share,
plus accrued and unpaid dividends thereon to the date of
payment.
(B) After the payment to the holders of the shares of
the Series B Preferred of the full liquidation preference
provided for in this paragraph (4), the holders of the Series
B Preferred as such shall have no right or claim to any of the
remaining assets of the corporation.
(C) If, upon any voluntary or involuntary
dissolution, liquidation or winding up of the corporation, the
amounts payable with respect to the liquidation preference of
the shares of the Series B Preferred and any other shares of
stock of the corporation ranking as to any such distribution
on a parity with the shares of the Series B Preferred are not
paid in full, the holders of the shares of the Series B
Preferred and of such other shares will share ratably in any
such distribution of assets of the corporation in proportion
to the full respective liquidation preferences to which they
are entitled.
(D) Neither the sale, lease, transfer or conveyance
of all or substantially all the property or business of the
corporation, nor the merger or consolidation of the
corporation into or with any other corporation or the merger
or consolidation of any other corporation into or with the
corporation, shall be deemed to be a dissolution, liquidation
or winding up, voluntary or involuntary, for the purposes of
this paragraph (4).
(5) Redemption.
(A) Right of Optional Redemption. The Series B
Preferred is not redeemable prior to May 29, 2007. On and
after May 29, 2007, the corporation may, at its option, redeem
at any time all or, from time to time, part of the Series B
Preferred at a price per share (the "Series B Redemption
Price"), payable in cash, of $25.00, together with all accrued
and unpaid dividends to and including the date fixed for
redemption (the "Series B Redemption Date"), without interest.
In case of redemption of less than all shares of Series B
Preferred at the time outstanding, the shares of Series B
Preferred to be redeemed shall be selected pro rata from the
holders of record of such shares in proportion to the number
of shares of Series B Preferred held by such holders (as
nearly as may be practicable without creating fractional
shares) or by any other equitable method determined by the
corporation.
(B) Procedures for Redemption.
(i) Notice of any redemption will be (a) given by
publication in a newspaper of general circulation in the City
of New York, 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 Series B Redemption Date, and (b)
mailed by the corporation, postage prepaid, not less than 30
nor more than 60 days prior to the Series B Redemption Date,
addressed to the respective holders of record of the Series B
Preferred to be redeemed at their respective addresses as they
appear on the stock transfer records of the corporation. No
failure to give such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings
for the redemption of any Series B Preferred except as to the
holder to whom the corporation has failed to give notice or
except as to the holder to whom notice was defective. In
addition to any information required by law or by the
applicable rules of any exchange upon which Series B Preferred
may be listed or admitted to trading, such notice shall state:
(a) the Series B Redemption Date; (b) the Series B Redemption
Price; (c) the number of shares of Series B Preferred to be
redeemed; (d) the place or places where certificates for such
shares are to be surrendered for payment of the Series B
Redemption Price; and (e) that dividends on the shares to be
redeemed will cease to accumulate on the Series B Redemption
Date. If less than all the shares of Series B Preferred held
by any holder are to be redeemed, the notice mailed to such
holder shall also specify the number of shares of Series B
Preferred held by such holder to be redeemed.
(ii) If notice of redemption of any shares of Series
B Preferred has been published and mailed in accordance with
subparagraph (5)(B)(i) above and provided that on or before
the Series B Redemption Date specified in such notice all
funds necessary for such redemption shall have been
irrevocably set aside by the corporation, separate and apart
from its other funds in trust for the benefit of any holders
of the shares of Series B Preferred so called for redemption,
so as to be, and to continue to be available therefor, then,
from and after the Series B Redemption Date, dividends on such
shares of Series B Preferred shall cease to accrue, and such
shares shall no longer be deemed to be outstanding and shall
not have the status of Series B Preferred and all rights of
the holders thereof as shareholders of the corporation (except
the right to receive the Series B Redemption Price) shall
terminate. Upon surrender, in accordance with said notice, of
the certificates for any shares of Series B Preferred so
redeemed (properly endorsed or assigned for transfer, if the
corporation shall so require and the notice shall so state),
such shares of Series B Preferred shall be redeemed by the
corporation at the Series B Redemption Price. In case less
than all the shares of Series B Preferred represented by any
such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed
shares of Series B Preferred without cost to the holder
thereof.
(iii) The deposit of funds with a bank or trust
company for the purpose of redeeming Series B Preferred shall
be irrevocable except that:
(a) the corporation shall be entitled to
receive from such bank or trust company the interest
or other earnings, if any, earned on any money so
deposited in trust, and the holders of any shares
redeemed shall have no claim to such interest or
other earnings; and
(b) any balance of monies so deposited by
the corporation and unclaimed by the holders of the
Series B Preferred entitled thereto at the expiration
of two years from the applicable Series B Redemption
Date shall be repaid, together with any interest or
other earnings earned thereon, to the corporation,
and after any such repayment, the holders of the
shares entitled to the funds so repaid to the
corporation shall look only to the corporation for
payment without interest or other earnings.
(C) Limitations on Redemption
(i) The Series B Redemption Price (other than the
portion thereof consisting of accrued and unpaid dividends)
shall be payable solely out of the sale proceeds of other
capital stock of the corporation and from no other source.
(ii) Unless full cumulative dividends on all shares
of Series B 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 Series B
Preferred shall be redeemed (unless all outstanding shares of
Series B Preferred are simultaneously redeemed) or purchased
or otherwise acquired directly or indirectly (except by
exchange for Junior Stock); provided, however, that the
foregoing shall not prevent the redemption of Series B
Preferred pursuant to Article 4 or the purchase or acquisition
of Series B Preferred pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of
Series B Preferred.
(D) Rights to Dividends on Shares Called for
Redemption. If the Series B Redemption Date is after a
Dividend Record Date and before the related Dividend Payment
Date, the dividend payable on such Dividend Payment Date shall
be paid to the holder in whose name the shares of Series B
Preferred to be redeemed are registered at the close of
business on such Dividend Record Date notwithstanding the
redemption thereof between such Dividend Record Date and the
related Dividend Payment Date or the corporation's default in
the payment of the dividend due. Except as provided in this
paragraph (5), the corporation will make no payment or
allowance for unpaid dividends, whether or not in arrears, on
called Series B Preferred.
(6) Voting Rights. Except as required by the Virginia
Stock Corporation Act and except as otherwise provided in this
paragraph (6), the holders of the Series B Preferred shall not
be entitled to vote at any meeting of the shareholders for
election of directors or for any other purpose or otherwise to
participate in any action taken by the corporation or the
shareholders thereof, or to receive notice of any meeting of
shareholders.
(A) Whenever dividends on any shares of Series B
Preferred shall be in arrears for six or more consecutive
quarterly periods, the holders of such shares of Series B
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 corporation at
a special meeting called by the holders of record of at least
10% of the Series B 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 B 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 corporation will be increased by two directors.
(B) So long as any shares of Series B Preferred
remain outstanding, the corporation shall not, without the
affirmative vote of the holders of at least a majority of the
shares of the Series B 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 B 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
corporation 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 these Articles,
whether by merger, consolidation or otherwise, so as to
materially and adversely affect any right, preference,
privilege or voting power of the Series B 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 B
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.
(C) The foregoing voting provisions will not apply
if, at or prior to the time when the act with respect to which
such vote would otherwise be required shall be effected, all
outstanding shares of Series B 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.
(D) So long as the Series B Preferred is listed or
admitted to trading on The New York Stock Exchange, then
notwithstanding anything to the contrary in these Articles,
including without limitation Article 8, approval by the
holders of at least two-thirds of the outstanding shares of
the Series B Preferred shall be required for adoption of any
amendment of these Articles or of the bylaws of the
corporation that would materially affect the existing terms of
the Series B Preferred.
(7) Conversion of Series B Preferred. The Series B
Preferred is not convertible into or exchangeable for any
other property or securities of the corporation.
4. If the Board of Directors of the corporation shall, at any time and in good
faith, be of the opinion that direct or indirect ownership of shares of the
corporation has or may become concentrated in any individual or individuals to
an extent which would disqualify the corporation as a "real estate investment
trust" under the requirements of the Code applicable of the qualification of
"real estate investment trusts" (the "REIT provisions'), then the corporation
shall have the power.
(a) to call for redemption by lot or other means deemed equitable by
the Board of Directors and to redeem a number of concentrated shares sufficient,
in the opinion of the Board of Directors, to maintain or bring the direct or
indirect ownership of shares of the corporation into conformity with the REIT
provisions; and
(b) to stop the transfer of its shares to any person whose acquisition
thereof would, in the opinion of the Board of Directors, result in such
disqualification.
The per share redemption price of any shares redeemed by the corporation
pursuant to paragraph (a) of this Article 4 shall be the highest closing bid
price quotation (if then traded over the counter) or the closing sale price (if
then listed on a national securities exchange) for the shares as of the business
day preceding the day on which notice of redemption is given as reported by any
source reasonably believed reliable by the Board of Directors, or, if no bid
price quotation or closing sale price for the shares is available, as determined
in good faith by the Board of Directors, From and after the date fixed for
redemption by the Board of Directors, the holder of any shares so called for
redemption shall cease to be entitled to dividends, voting rights and other
benefits with respect to such shares excepting only the right to payment of the
redemption price fixed as aforesaid. For the purpose of this Article 4, the
terms "individual" and "ownership" of shares shall be defined in accordance with
or by reference to the REIT provisions.
5. Holders of shares of the corporation shall upon demand disclose to the
corporation in writing such information with respect to direct and indirect
ownership thereof as the Board of Directors may deem necessary to enable the
corporation to comply with the REIT provisions or to comply with the
requirements of any other taxing authority.
6. The number of directors of the corporation shall be fixed by the By-Laws or,
in the absence of a By-Law fixing such number, shall be three.
7. (a) To the full extent that the Act, as it exists on the date hereof or
may hereafter be amended, permits the limitation or elimination of the liability
of directors or officers, a director or officer of the corporation shall not be
liable to the corporation or its stockholders for monetary damages. In the event
that the Act shall be construed to require in any case in which such liability
may be so limited or eliminated, as a condition of limitation or elimination
thereof, specification in these Articles of an amount in dollars and/or cents as
the amount of the liability of directors or officers, such amount is hereby
specified at zero dollars and zero cents ($0.00), in cases in which such
liability may be eliminated, and at the minimum amount permitted by the Act,
expressed in dollars and/or cents, in cases in which such liability may be
limited.
(b) To the full extent permitted and in the manner prescribed by the
Act, as it exists on the date hereof or may hereafter be amended, and any other
applicable law, the corporation shall indemnify a director or officer of the
corporation who is or was a party to any proceeding by reason of the fact that
he is or was such a director or officer or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The Board of Directors is hereby empowered, by majority vote of a
quorum of disinterested directors, to contract in advance to indemnify any
director or officer.
(c) The Board of Directors is hereby empowered, by majority vote of a
quorum of disinterested directors, to cause the corporation to indemnify or
contract in advance to indemnify any person not specified in paragraph (b) of
this Article 7 who was or is a party to any proceeding, by reason of the fact
that he is or was an employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, to the same extent as if such person were required to be
indemnified by paragraph (b).
(d) The corporation may purchase and maintain insurance to indemnify it
against the whole or any portion of its liability under this Article 7 and may
also procure insurance, in such amounts as the Board of Directors may determine,
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against any liability
asserted against or incurred by such person in any such capacity or arising from
his status as such, whether or not the corporation would have power to indemnify
such person against such liability under the provisions of this Article 7.
(e) In the event there has been a change in the composition of a
majority of the Board of Directors after the date of the alleged act or omission
with respect to which indemnification is claimed, any determination as to
indemnification and advancement of expenses with respect to any claim for
indemnification made pursuant to paragraph (a) of this Article 7 shall be made
by special legal counsel agreed upon by the Board of Directors and the proposed
indemnitee. If the Board of Directors and the proposed indemnitee are unable to
agree upon such special legal counsel, the Board of Directors and the proposed
indemnitee each shall select a nominee, and the nominees shall select such
special legal counsel.
(f) The provisions of this Article 7 shall be applicable to all
actions, claims, suits or proceedings commenced after the adoption hereof by
stockholders, whether arising from any action taken or failure to act before or
after such adoption. No amendment or repeal of this Article 7 shall diminish the
rights provided hereby or diminish the right to indemnification with respect to
any claim, issue or matter in any then pending or subsequent proceeding that is
based in any material respect on any alleged action or failure to act prior to
such amendment or repeal.
(g) References herein to directors, officers, employees or agents shall
include former directors, officers, employees and agents and their respective
heirs, executors and administrators.
8. Except as otherwise required by the Act, by these Articles, or by the Board
of Directors acting pursuant to Subsection C of Section 13.1-707 of the Act, or
any successor provision, the vote required to approve an amendment or
restatement of these Articles, other than an amendment or restatement that
amends or affects the shareholder vote required by the Act to approve a merger,
share exchange, sale of all or substantially all of the corporation's assets or
the dissolution of the corporation, shall be a majority of all votes entitled to
be cast by each voting group entitled to vote on the amendment.
EXHIBIT 5
HUNTON & WILLIAMS
RIVERFRONT PLAZA, EAST TOWER
951 EAST BYRD STREET
RICHMOND, VIRGINIA 23219-4074
FILE NO.: 27789.92
DIRECT DIAL: (804) 788-8267
January 15, 1998
Board of Directors
United Dominion Realty Trust, Inc.
10 South Sixth Street
Richmond, Virginia 23219
Registration Statement on Form S-3 10,000,000 Shares of Common Stock
Gentlemen:
We are acting as counsel for United Dominion Realty Trust, Inc. (the
"Company") in connection with the registration under the Securities Act of 1933
of 10,000,000 shares of Common Stock, $1 par value, of the Company (the
"Shares"). The Shares are described in the Registration Statement on Form S-3
of the Company (the "Registration Statement") to be filed with the Securities
and Exchange Commission (the "Commission") on January 15, 1998. In connection
with the filing of the Registration Statement you have requested our opinion
concerning certain corporate matters.
We are of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the Commonwealth of Virginia.
2. When the Shares have been issued and sold pursuant to the Dividend
Reinvestment and Stock Purchase Plan described in the Registration Statement,
the Shares will be legally issued, fully paid and nonassessable.
We consent to the filing of this opinion with the Commission as an exhibit
to the Registration Statement.
Very truly yours,
HUNTON & WILLIAMS
<PAGE>
EXHIBIT 23(a)
CONSENT OF ERNST & YOUNG, LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-00000) pertaining to the Dividend
Reinvestment and Stock Purchase Plan of United Dominion Realty Trust, Inc. and
to the incorporation by reference therein of our report dated March 5, 1997,
with respect to the consolidated financial statements and schedule of United
Dominion Realty Trust, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG, LLP
Richmond, Virginia
January 14, 1998
EXHIBIT 23(b)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3 No. 333-00000) pertaining to the Dividend
Reinvestment and Stock Purchase Plan of United Dominion Realty Trust, Inc. and
to the incorporation by reference therein of our report dated March 4, 1997,
with respect to the consolidated financial statements of South West Property
Trust Inc. included in United Dominion Realty Trust, Inc.'s Current Report (Form
8-K/A No. 1) dated March 17, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Dallas, Texas
January 14, 1998
EXHIBIT 23(c)
CONSENT OF L.P. MARTIN & COMPANY, P.C., INDEPENDENT AUDITORS
We consent to the reference to our firm under "Experts" in the
Prospectus of United Dominion Realty Trust, Inc. that is made a part of
the Registration Statement (Form S-3) for the registration of 10,000,000
shares of its Common Stock and to the incorporation by reference therein
of (a) our reports dated June 11, 1997, with respect to the statements
of rental operations of Anderson Mill Oaks Apartments, Pineloch
Apartments, Post Oak Ridge Apartments and Seahawk Apartments, included
in the Current Report of United Dominion Realty Trust, Inc. on Form 8-K,
dated July 1, 1997 filed with the Securities and Exchange Commission,(b)
our reports dated June 25, 1997, with respect to the statements of
rental operations of Tradewinds Apartments, Trinity Place Apartments and
Stoneybrooke Apartments, included in the Current Report of United
Dominion Realty Trust, Inc. on Form 8-K, dated July 1, 1997 filed with
the Securities and Exchange Commission, (c) our reports dated August 7,
1997, with respect to the statements of rental operations of Forest
Creek Apartments, Lakeside Apartments, Lotus Landing Apartments,
Mallards of Brandywine Apartments and Orange Oaks Apartments, included
in the Current Report of United Dominion Realty Trust, Inc. on Form 8-K,
dated July 1, 1997 filed with the Securities and Exchange Commission,
(d) our report dated November 14, 1997, with respect to the statement of
rental operations of Waterside at Ironbridge Apartments, included in the
Current Report of United Dominion Realty Trust, Inc. on Form 8-K, dated
October 21, 1997 filed with the Securities and Exchange Commission, and
(e) our reports dated November 20, 1997, with respect to the statements
of rental operations of Bammelwood Apartments, Braesridge Apartments,
Camino Village Apartments and Pecan Grove Apartments, included in the
Current Report of United Dominion Realty Trust, Inc. on Form 8-K, dated
October 21, 1997 filed with the Securities and Exchange Commission.
L.P. MARTIN & COMPANY, P.C.
L.P. Martin & Company, P.C.
Certified Public Accountants
Richmond, Virginia
January 15, 1998
