SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
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FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
United Dominion Realty Trust, Inc.
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(Exact name of registrant as specified in its charter)
Virginia 54-0857512
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(State of incorporation or organization) (IRS employer
identification no.)
10 South Sixth Street, Richmond Virginia 23219-3802
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(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock, $1 par value New York Stock Exchange
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9 1/4% Series A Cumulative Redeemable New York Stock Exchange
Preferred Stock, no par value ---------------------------
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8.60% Series B Cumulative Redeemable New York Stock Exchange
Preferred Stock, no par value ---------------------------
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Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of class)
(Title of class)
This is an amendment of the registrant's Form 8-A registration statement dated
April 1, 1990, relating to its Common Stock, $1 par value, its Form 8-A
registration statement dated April 24, 1995, relating to its 9 1/4% Series A
Cumulative Redeemable Preferred Stock, no par value, and its Form 8-A
registration statement dated June 10, 1997, relating to its 8.60% Series B
Cumulative Redeemable Preferred Stock, no par value.
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
The Company has authority to issue 150,000,000 shares of Common Stock,
and 25,000,000 shares of Preferred Stock, no par value.
Common Stock
Holders of Common Stock are entitled to receive dividends when and as
declared by the Board of Directors. Holders of Common Stock have one vote per
share and non-cumulative voting rights, which means that holders of more than
50% of the shares voting can elect all of the directors if they choose to do so,
and, in such event, the holders of the remaining shares will not be able to
elect any directors. In the event of any voluntary or involuntary liquidation or
dissolution of the Company, holders of Common Stock are entitled to share
ratably in the distributable assets of the Company. Holders of Common Stock do
not have preemptive rights. At December 31, 1997, there were 89,168,442 shares
of Common Stock outstanding.
Preferred Stock
The Preferred Stock is issuable in one or more series, with such
designations, powers, preferences and rights of the shares of such series and
the qualifications, limitations or restrictions thereon, including, but not
limited to, the fixing of the dividend rights, dividend rate or rates,conversion
rights, voting rights, rights and terms of redemption (including sinking fund
provisions), the redemption price or prices, and the liquidation preferences, in
each case, if any, as the Board of Directors of the Company may determine by
adoption of an amendment of the Company's articles of incorporation, without any
further vote or action by the shareholders. The Preferred Stock is issuable for
any corporate purpose and for whatever consideration the Board of Directors
deems appropriate. A series of Preferred Stock could be given more than one vote
per share and a series having preferential distribution rights could limit
Common Stock distributions and reduce the amount holders of Common Stock would
otherwise receive on dissolution of the Company.
Alphabetical Series Preferred
The Board of Directors has designated 4,200,000 shares of Preferred
Stock as the "9 1/4% Series A Cumulative Redeemable Preferred Stock" (the
"Series A Preferred"). At December 31, 1997, there were 4,200,000 shares of
Series A Preferred outstanding. The Board of Directors has also designated
6,000,000 shares of Preferred Stock as the "8.60% Series B Cumulative Redeemable
Preferred Stock" (the "Series B Preferred," and, collectively with the Series A
Preferred, the "Alphabetical Series Preferred"). At December 31, 1997, there
were 6,900,000 shares of Series B Preferred outstanding. The Board of Directors
may redesignate any unissued shares of Series B Preferred as all or a part of a
different series of Preferred Stock. All Alphabetical Series Preferred rank pari
passu with one another 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 Company.
Dividends
Holders of shares of the Series A Preferred shall be entitled to
receive, when and as declared by the Board of Directors, out of funds legally
available for the payment of dividends, cumulative preferential cash dividends
at the rate of 9 1/4% of the liquidation preference per annum (equivalent to
$2.3125 per share). Holders of shares of the Series B Preferred shall be
entitled to receive, when and as declared by the Board of Directors, out of
funds legally available for the payment of dividends, cumulative preferential
cash dividends at the rate of 8.60% of the liquidation preference per annum
(equivalent to $2.15 per share).
Dividends on the Series A Preferred shall be cumulative from the date
of original issue and shall be payable quarterly in arrears on the fifteenth day
of each January, April, July and October or, if not a business day, the next
succeeding business day (each, a "Series A Dividend Payment Date"). Any dividend
payable on the Series A Preferred for any partial dividend period will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Dividends on the Series A Preferred will be payable to holders of record as they
appear in the stock records of the Company at the close of business on the
applicable record date, which shall be the first day of the calendar month in
which the applicable Series A Dividend Payment Date falls on or such other date
designated by the Board of Directors of the Company for the payment of dividends
that is not more than 30 nor less than 10 days prior to such Dividend Payment
Date (each, a "Series A Dividend Record Date").
Dividends on the Series B Preferred shall be cumulative from the date
of original issue and shall be payable quarterly in arrears on the last day of
each February, May, August and November or, if not a business day, the next
succeeding business day (each, a "Series B Dividend Payment Date" and, together
with the respective Series A Dividend Payment Dates, each a "Dividend Payment
Date"). The first dividend and any dividend for any partial dividend period
payable on the Series B Preferred will be computed on the basis of a 360-day
year consisting of twelve 30-day months. Dividends on the Series B Preferred
will be payable to holders of record as they appear in the stock records of the
Company at the close of business on the applicable record date, which shall be
the fifteenth day of the calendar month in which the applicable Series B
Dividend Payment Date falls on or such other date designated by the Board of
Directors of the Company for the payment of dividends that is not more than 30
nor less than 10 days prior to such Dividend Payment Date (each, a "Series B
Dividend Record Date" and, together with the respective Series A Dividend Record
Dates, each a "Dividend Record Date").
No dividends on shares of Alphabetical Series Preferred shall be
declared by the Board of Directors of the Company or paid or set apart for
payment by the Company at such time as the terms and provisions of any agreement
of the Company, including any agreement relating to its indebtedness, prohibits
such declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law. See "Restrictions on Dividends" below for
summaries of such provisions contained in certain of the Company's loan
agreements.
Notwithstanding the foregoing, dividends on the Alphabetical Series A
Preferred will accrue whether or not the Company has earnings, whether or not
there are funds legally available for the payment of such dividends and whether
or not such dividends are declared. Accrued but unpaid dividends on the
Alphabetical Series Preferred will not bear interest. Holders of the
Alphabetical Series Preferred will not be entitled to any dividends in excess of
full cumulative dividends as described above.
If, for any taxable year, the Company elects to designate as "capital
gain dividends" (as defined in Section 857 of the Internal Revenue Code of 1986,
as amended (the "Code")) any portion (the "Capital Gains Amount") of the
dividends (as determined for federal income tax purposes) paid or made available
for the year to holders of all classes of stock (the "Total Dividends"), then
the portion of the Capital Gains Amount that shall be allocable to the holders
of a series of Alphabetical Series Preferred shall be the amount that the total
dividends (as determined for federal income tax purposes) paid or made available
to the holders of such series of Alphabetical Series Preferred for the year
bears to the Total Dividends.
No full dividends shall be declared or paid or set apart for payment on
the Preferred Stock of any other series ranking, as to dividends, on a parity
with or junior to a series of Alphabetical Series Preferred for any period
unless full cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart for such
payment on such series of Alphabetical Series Preferred for all past dividend
periods and the then current dividend period. When dividends are not paid in
full (or a sum sufficient for such full payment is not so set apart) upon the
shares of a series of Alphabetical Series Preferred and the shares of any other
series of Preferred Stock ranking on a parity as to dividends with such series
of Alphabetical Series Preferred, all dividends declared upon shares of such
series of Alphabetical Series Preferred and any other series of Preferred Stock
ranking on a parity as to dividends with such series of Alphabetical Series
Preferred shall be declared pro rata so that the amount of dividends declared
per share on such series of Alphabetical Series 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 such series of Alphabetical Series
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 Alphabetical Series Preferred have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend periods and the then
current dividend period, no dividends (other than in Common Stock or other
capital stock ranking junior to the Alphabetical Series Preferred as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment or other distribution shall be declared or made upon the Common Stock or
any other capital stock of the Company ranking junior to or on a parity with the
Alphabetical Series Preferred as to dividends or upon liquidation, nor shall any
Common Stock or any other capital stock of the Company ranking junior to or on a
parity with the Alphabetical Series Preferred as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Company (except by conversion
into or exchange for other capital stock of the Company ranking junior to the
Alphabetical Series Preferred as to dividends and upon liquidation).
Any dividend payment made on shares of a series of Alphabetical Series
Preferred shall first be credited against the earliest accrued but unpaid
dividend due with respect to such shares which remains payable.
Liquidation Rights
In the event of any liquidation, dissolution or winding up of the
Company,the holders of shares of Alphabetical Series Preferred are entitled to
be paid out of the assets of the Company legally available for distribution to
its shareholders a liquidation preference of $25.00 per share, plus an amount
equal to any accrued and unpaid dividends to the date of payment, before any
distribution of assets is made to holders of Common Stock or any other capital
stock that ranks junior to the Alphabetical Series Preferred as to liquidation
rights. After payment of the full amount of the liquidating distributions to
which they are entitled, the holders of Alphabetical Series Preferred will have
no right or claim to any of the remaining assets of the Company. The
consolidation or merger of the Company with or into any other corporation or of
any other corporation with or into the Company, or the sale, lease, transfer or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or winding
up of the Company.
Redemption
The Series A Preferred is not redeemable prior to April 24, 2000. On
and after April 24, 2000, the Company, at its option upon not less than 30 nor
more than 60 days' written notice, may redeem shares of the Series A Preferred,
in whole or in part, at any time or from time to time, for cash at a redemption
price of $25.00 per share, plus all accrued and unpaid dividends thereon to the
date fixed for redemption (except as provided below), without interest.
The Series B Preferred is not redeemable prior to May 29, 2007. On and
after May 29, 2007, the Company, at its option upon not less than 30 nor more
than 60 days' written notice, may redeem shares of the Series B Preferred, in
whole or in part, at any time or from time to time, for cash at a redemption
price of $25.00 per share, plus all accrued and unpaid dividends thereon to the
date fixed for redemption (except as provided below), without interest.
The redemption price of the Alphabetical Series Preferred (other than
the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital stock of the Company, which may
include other series of Preferred Stock, and from no other source. Holders of
the series of Alphabetical Series Preferred to be redeemed shall surrender such
Alphabetical Series Preferred at the place designated in such notice and shall
be entitled to the redemption price and any accrued and unpaid dividends payable
upon such redemption following such surrender. If notice of redemption of any
shares of a series of Alphabetical Series Preferred has been given and if the
funds necessary for such redemption have been set aside by the Company in trust
for the benefit of the holders of any shares of such series so called for
redemption, then from and after the redemption date dividends will cease to
accrue on such shares, such shares shall no longer be deemed outstanding and all
rights of the holders of such shares will terminate, except the right to receive
the redemption price. If less than all the outstanding shares of a series of
Alphabetical Series Preferred are to be redeemed, the shares of such series of
Alphabetical Series Preferred to be redeemed shall be selected pro rata (as
nearly as may be practicable without creating fractional shares) or by any other
equitable method determined by the Company.
Unless full cumulative dividends on all shares of a series of
Alphabetical Series Preferred shall have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof set apart for
payment for all past dividend periods and the then current dividend period, no
shares of such series of Alphabetical Series Preferred shall be redeemed unless
all outstanding shares of such series of Alphabetical Series Preferred are
simultaneously redeemed; provided, however, that the foregoing shall not prevent
the redemption of shares of Alphabetical Series Preferred to preserve the
Company's status as a REIT. (see "Redemption and Restrictions on Transfer"
below), or the purchase or acquisition of shares of a series of Alphabetical
Series Preferred pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of such series of Alphabetical Series
Preferred. Unless full cumulative dividends on all outstanding shares of a
series of Alphabetical Series Preferred have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof set
apart for payment for all past dividend periods and the then current dividend
period, the Company shall not purchase or otherwise acquire directly or
indirectly any shares of such series of Alphabetical Series Preferred (except by
exchange for capital stock of the Company ranking junior to such series of
Alphabetical Series Preferred as to dividends and upon liquidation).
Notice of redemption will be given by publication in a newspaper of
general circulation in the City of New York, such publication to be made once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the redemption date. A similar notice will be mailed by the Company,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the series of
Alphabetical Series Preferred to be redeemed at their respective address as they
appear on the stock transfer records of the Company. No failure to give such
notice or any defect thereto or in the mailing thereof shall affect the validity
of the proceedings for the redemption of any shares of Alphabetical Series
Preferred except as to the holder to whom notice was defective or not given.
Each notice shall state: (i) the redemption date; (ii) the redemption price;
(iii) the number of shares of the series of Alphabetical Series Preferred to be
redeemed; (iv) the place or places where such series of Alphabetical Series
Preferred is to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date. If less than all the shares of a series of Alphabetical Series Preferred
held by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares of such series of Alphabetical Series
Preferred held by such holder to be redeemed.
The holders of a series of Alphabetical Series Preferred at the close
of business on a Dividend Record Date applicable to such series will be entitled
to receive the dividend payable with respect to such series of Alphabetical
Series Preferred on the corresponding Dividend Payment Date notwithstanding the
redemption thereof between such Dividend Record Date and the corresponding
Dividend Payment Date or the Company's default in the payment of the dividend
due. Except as provided above, the Company will make no payment or allowance for
unpaid dividends, whether or not in arrears, on called Alphabetical Series
Preferred.
The Alphabetical Series Preferred has no stated maturity and will not
be subject to any sinking fund or mandatory redemption except to preserve the
Company's status as a REIT as described in "Redemption and Restrictions on
Transfer" below. Any such redemption would apply only to shares held, directly
or indirectly, by those shareholders with concentrated share ownership that
would violate the REIT requirements of the Code. In addition, the number of
shares subject to such a redemption would be limited to that number of
concentrated shares sufficient in the opinion of the Board of Directors of the
Company to maintain or bring the ownership of shares into conformity with the
requirements of the Code.
Voting Rights
Holders of the Alphabetical Series Preferred will not have any voting
rights, except asset forth below or as otherwise from time to time required by
law.
Whenever dividends on any shares of a series of Alphabetical Series
Preferred shall be in arrears for six or more consecutive quarterly periods, the
holders of such shares of Alphabetical Series Preferred (voting separately as a
class with all other series of Preferred Stock upon which like voting rights
have been conferred and are exercisable) will be entitled to vote for the
election of two additional directors of the Company at a special meeting called
by the holders of record of at least 10% of such series of Alphabetical Series
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 shares of such series of Alphabetical Series Preferred
for the past dividend periods and the then current dividend period shall have
been fully paid or declared and a sum sufficient for the payment thereof set
aside for payment. In such case, the entire Board of Directors of the Company
will be increased by two directors.
So long as any shares of a series of Alphabetical Series Preferred
remain outstanding, the Company shall not, without the affirmative vote of the
holders of at least a majority of the shares of such series of Alphabetical
Series 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 such series of Alphabetical Series Preferred with respect to payment of
dividends or the distribution of assets upon liquidation, dissolution or winding
up or reclassify any authorized capital stock of the Company into any such
shares, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such shares; or (ii) amend, alter
or repeal the provisions of the Articles of Incorporation of the Company (the
"Articles"), whether by merger, consolidation or otherwise, so as to materially
and adversely affect any right, preference, privilege or voting power of such
series of Alphabetical Series 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 such series of Alphabetical Series Preferred with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Alphabetical Series Preferred shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
Under Virginia law, notwithstanding anything to the contrary set forth
above, if shareholder voting is otherwise required by law, holders of a series
of Alphabetical Series Preferred will be entitled to vote as a class upon a
proposed amendment to the Articles, whether or not entitled to vote thereon by
the Articles, if the amendment would increase or decrease the aggregate number
of authorized shares of such series of Alphabetical Series Preferred; effect an
exchange or reclassification, or create a right of exchange, of such series of
Alphabetical Series Preferred for or into shares of another class or of shares
of another class into shares of such series of Alphabetical Series Preferred;
change the designation, preferences, rights or limitations of all or part of
such series of Alphabetical Series Preferred; change shares of such series of
Alphabetical Series Preferred into a different number of shares of such series
of Alphabetical Series Preferred; create a new class, or change a subordinate
class into a class, having dividend or liquidation rights superior or equal to
those of such series of Alphabetical Series Preferred or increase the rights,
preferences or number of authorized shares of a class having such dividend or
liquidation rights; divide such series of Alphabetical Series Preferred into
series, designate such series and determine its terms; or cancel or otherwise
affect rights to accumulated but undeclared dividends on such series of
Alphabetical Series Preferred.
So long as a series of Alphabetical Series Preferred is listed on the
New York Stock Exchange, approval by the holders of two-thirds of the
outstanding shares of such series will be required for adoption of any amendment
of the Articles that would materially affect the existing terms of such series.
Conversion
The Alphabetical Series Preferred is not convertible into or
exchangeable for any other property or securities of the Company.
Restrictions on Dividends
Covenants in its loan agreements with certain lenders effectively
prohibit the Company from declaring or paying dividends if, after giving effect
thereto (i) a default or "Event of Default under the particular agreement shall
have occurred and be continuing, (ii) the Company would be prohibited from
incurring debt under other covenants in such agreement, and (iii):
(a) in the case of the loan agreement with one insurance company
lender, such dividends and other "Restricted Payments" (as defined in such
agreement) after July 1, 1991, would exceed the sum of $10,000,000, plus 100% of
"Cash Flow" (as so defined) from and after July 1, 1991, to and including the
last day of the fiscal quarter immediately preceding payment of such dividends,
plus the net cash proceeds received by the Company from the sale of capital
stock after July 1, 1991; and
(b) in the case of the loan agreement with a group of insurance company
lenders, such dividends and other "Restricted Payments" (as defined in such
agreement) declared during the same fiscal year as such dividends would exceed
the sum of (A) "Cash Flow" (as so defined) from the beginning of such fiscal
year to and including the last day of the completed fiscal quarter immediately
preceding the date of payment of such dividends, and (B) the net cash proceeds
received by the Company from the issuance or sale of capital stock after
February 24, 1993, plus $20,000,000, minus the total of the amounts, if any, by
which "Restricted Payments" declared during each fiscal year subsequent to
December 31, 1992, exceed "Cash Flow" for such fiscal year.
Notwithstanding such covenants, the Company may pay dividends required
to maintain its qualification as a real estate investment trust ("REIT") under
the Internal Revenue Code of 1986, as amended (the "Code").
Affiliated Transactions
The Virginia Stock Corporation Act contains provisions governing
"Affiliated Transactions" designed to deter uninvited takeovers of Virginia
corporations. These provisions, with several exceptions discussed below, require
approval of material acquisition transactions between a Virginia corporation and
any holder of more than 10% of any class of its outstanding voting shares (an
"Interested Shareholder") by the holders of at least two-thirds of the remaining
voting shares. For three years following the time that the Interested
Shareholder becomes an owner of 10% of the outstanding voting shares, Virginia
corporations cannot engage in an Affiliated Transaction with such Interested
Shareholder without approval of two-thirds of the voting shares other than those
shares beneficially owned by the Interested Shareholder, and majority approval
of the "Disinterested Directors." At the expiration of the three year period,
the statute requires approval of Affiliated Transactions by two-thirds of the
voting shares other than those beneficially owned by the Interested Shareholder
absent an exception. The principal exceptions to the special voting requirement
apply to transactions proposed after the three year period has expired and
require either that the transaction be approved by a majority of the
corporation's Disinterested Directors or that the transaction satisfy the
fair-price requirements of the law.
The Virginia Stock Corporation Act also provides that shares acquired
in a transaction that would cause the acquiring person's voting strength to
cross any of three thresholds (20%, 33 1/3%, or 50%) have no voting rights
unless granted by a majority vote of shares not owned by the acquiring person or
any officer or employee-director of the Company. An acquiring person may require
the Company to hold a special meeting of shareholders to consider the matter
within 50 days of its request.
Redemption and Restrictions on Transfer
In order to preserve the Company's status as a REIT under the Code, the
Company can redeem or stop the transfer of its shares. The Articles provide that
the Company is organized to qualify as a REIT. Because the Code provides that
the concentration of more than 50% in value of the direct or indirect ownership
of its shares in five or fewer individual shareholders during the last six
months of any year would result in the disqualification of the Company as a
REIT, the Articles provide that the Company shall have the power (i) to redeem
that number of concentrated shares sufficient in the opinion of the Board of
Directors of the Company to maintain or bring the direct or indirect ownership
of shares into conformity with the requirements of the Code, and (ii) to stop
the transfer of shares to any person whose acquisition thereof would, in the
opinion of the Company's Board of Directors, result in such disqualification.
The per share redemption price of any shares redeemed by the Company pursuant to
this provision shall be the last reported sale price for the shares as of the
business day preceding the day on which notice of redemption is given. The Board
of Directors of the Company can require shareholders to disclose in writing to
the Company such information with respect to ownership of its shares as it deems
necessary to comply with the REIT provisions of the Code.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its behalf by the
undersigned, thereunto duly authorized.
UNITED DOMINION REALTY TRUST, INC.
(Registrant)
By s/ Katheryn E. Surface
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Katheryn E. Surface
Vice President and General Counsel
Dated: January 22, 1998
