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:
Preferred Stock Purchase Rights
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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, its Form 8-A registration
statement dated June 10, 1997, relating to its 8.60% Series B Cumulative
Redeemable Preferred Stock, no par value, and its Form 8-A registration
statement dated February 4, 1998, relating to its Preferred Stock Purchase
Rights.
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Item 1. Description of Registrant's Securities to be Registered.
United Dominion has authority to issue 150,000,000 shares of common
stock, $1 par value, and 25,000,000 shares of preferred stock, no par value,
issuable in series designated by United Dominion's Board of Directors. Holders
of the common stock have rights to purchase shares of a series of preferred
stock, which will not trade separately from the common stock until the
occurrence of events that may signal a change in control of United Dominion. See
"Preferred Stock Purchase Rights" below.
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 if they do the holders of the remaining shares will not be able to elect any
directors. Upon dissolution and liquidation of United Dominion, holders of
common stock are entitled to share in the assets distributable to common
stockholders in proportion to their respective common stock holdings. Holders of
common stock do not have preemptive rights. At September 30, 1999, there were
102,616,349 shares of common stock outstanding.
Preferred Stock
The preferred stock is issuable in one or more series. By adoption of
an amendment of United Dominion's articles of incorporation, the Board of
Directors, without any further vote or action by the shareholders, may designate
the rights and preferences of each series, including, but not limited to, the
dividend rights, the dividend rate or rates, the conversion rights, the voting
rights, the rights and terms of redemption, including sinking fund redemption,
the redemption price or prices and the liquidation preferences of that series.
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 upon
dissolution and liquidation of United Dominion.
The Board of Directors has designated the following series of preferred
stock:
o 9 1/4% Series A Cumulative Redeemable Preferred Stock ("Series A
Preferred")
o 8.60% Series B Cumulative Redeemable Preferred Stock ("Series B
Preferred")
o Series C Junior Participating Cumulative Redeemable Preferred Stock
("Series C Preferred")
o Series D Cumulative Convertible Redeemable Preferred Stock ("Series D
Preferred")
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The Series A Preferred and Series B Preferred are listed on the New
York Stock Exchange. No shares of Series C Preferred have been issued, and
United Dominion will not issue any shares of Series C Preferred except upon the
exercise of Rights, as described below under "Preferred Stock Purchase Rights."
All the shares of Series D Preferred are privately held and no market for the
Series D Preferred exists.
The rights and preferences of each designated series are as follows:
Series A Preferred
o Number of Shares. 4,200,000 authorized, issued and outstanding (September
30, 1999).
o Rank. Prior to the common stock and the Series C Preferred and on a parity
with the Series B Preferred and the Series D Preferred.
o Liquidation Preference. $25 per share.
o Dividend Rate or Amount. 9 1/4% of the liquidation preference per annum
(equivalent to $2.3125 per share).
o Dividend Rights. Fully cumulative.
o Dividend Payment Dates. Quarterly, on the 15th day of each January, April,
July and October.
o Dividend Record Date. First day of the calendar month of the applicable
payment date, or another date designated by the Board of Directors that is
not more than 30 nor less than 10 days before the payment date.
o Liquidation Rights. Liquidation preference ($25 per share) plus accrued and
unpaid dividends, must be paid before any distribution to holders of common
stock or other capital stock ranking junior to Series A Preferred as to
liquidation rights.
o Additional Liquidation Participation Rights. None.
o Redemption. Redeemable in whole or in part, at any time or from time to
time on and after April 24, 2000, at the option of United Dominion for cash
at a redemption price of $25 per share, plus all accrued and unpaid
dividends thereon to the date fixed for redemption, without interest. The
redemption price, except for accrued and unpaid dividends, can be paid
solely out of the sale proceeds of other capital stock of United Dominion,
and from no other source. In addition, the following restriction on
redemptions applies: unless full cumulative dividends on all shares of
Series A Preferred have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment of those dividends set apart
for payment for all past dividend periods and the then current dividend
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period, no shares of Series A Preferred will be redeemed unless all
outstanding shares are simultaneously redeemed and United Dominion will not
purchase or otherwise acquire directly or indirectly any shares of Series A
Preferred except by exchange for capital stock of United Dominion ranking
junior to the Series A Preferred as to dividends and upon liquidation. This
restriction will not prevent redemptions to preserve United Dominion's
status as a REIT (see "Redemption and Restrictions on Transfer" below), or
the purchase or acquisition of shares of Series A Preferred in a purchase
or exchange offer made on the same terms to holders of all outstanding
shares of that series.
o Voting Rights. None, except as provided by Virginia law and except that
whenever dividends are in arrears for six or more consecutive quarterly
periods, the holders of Series A Preferred, voting separately as a class
with all other series of preferred stock having similar voting rights, can
elect two additional directors of United Dominion until the dividend
arrearages have been paid or satisfied in full. Also, the vote of the
holders of a majority of the outstanding shares of Series A Preferred is
required
o to authorize or create, or increase the authorized or issued
amount of, or reclassify any authorized capital stock into, or create,
authorize or issue any obligation or security convertible into or
evidencing the right to purchase any shares of a class or series of
capital stock ranking prior to the Series A Preferred with respect to
dividends or liquidation; or
o to amend, alter or repeal the provisions of the articles of
incorporation of United Dominion so as to materially and adversely affect
any right, preference, privilege or voting power of the Series A
Preferred.
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 that series, in each case
ranking on a parity with or junior to the Series A Preferred with respect
to dividends or liquidation rights, is not deemed to materially and
adversely affect the rights, preferences, privileges or voting powers of
the Series A Preferred.
So long as the Series A Preferred is listed on the New York Stock
Exchange, approval by the holders of two-thirds of the outstanding shares
is required for adoption of any amendment of the articles of incorporation
that would materially affect the terms of the Series A Preferred.
o Conversion Rights. None.
Series B Preferred
o Number of Shares. 6,000,000 authorized, issued and outstanding (September
30, 1999).
o Rank. Prior to the common stock and the Series C Preferred and on a parity
with the Series A Preferred and the Series D Preferred.
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o Liquidation Preference. $25 per share.
o Dividend Rate or Amount. 8.60% of the liquidation preference per annum
(equivalent to $2.15 per share).
o Dividend Rights. Fully cumulative.
o Dividend Payment Dates. Quarterly, on the last day of each February, May,
August and November.
o Dividend Record Date. First day of the calendar month of the applicable
payment date, or another date designated by the Board of Directors that is
not more than 30 nor less than 10 days before the payment date.
o Liquidation Rights. Liquidation preference ($25 per share) plus accrued and
unpaid dividends, must be paid before any distribution to holders of common
stock or other capital stock ranking junior to Series B Preferred as to
liquidation rights.
o Additional Liquidation Participation Rights. None.
o Redemption. Redeemable in whole or in part, at any time or from time to
time on and after May 29, 2007, at the option of United Dominion for cash
at a redemption price of $25 per share, plus all accrued and unpaid
dividends thereon to the date fixed for redemption, without interest. The
redemption price, except for accrued and unpaid dividends, can be paid
solely out of the sale proceeds of other capital stock of United Dominion,
and from no other source. In addition, the following restriction on
redemptions applies: unless full cumulative dividends on all shares of
Series B Preferred have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment of those dividends set apart
for payment for all past dividend periods and the then current dividend
period, no shares of Series B Preferred will be redeemed unless all
outstanding shares are simultaneously redeemed and United Dominion will not
purchase or otherwise acquire directly or indirectly any shares of Series B
Preferred except by exchange for capital stock of United Dominion ranking
junior to the Series B Preferred as to dividends and upon liquidation. This
restriction will not prevent redemptions to preserve United Dominion's
status as a REIT (see "Redemption and Restrictions on Transfer" below), or
the purchase or acquisition of shares of Series B Preferred in a purchase
or exchange offer made on the same terms to holders of all outstanding
shares of that series.
o Voting Rights. None, except as provided by Virginia law and except that
whenever dividends are in arrears for six or more consecutive quarterly
periods, the holders of Series B Preferred, voting separately as a class
with all other series of preferred stock having similar voting rights, can
elect two additional directors of United Dominion until the dividend
arrearages have been paid or satisfied in full. Also, the vote of the
holders of a majority of the outstanding shares of Series B Preferred is
required
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o to authorize or create, or increase the authorized or issued
amount of, or reclassify any authorized capital stock into, or create,
authorize or issue any obligation or security convertible into or
evidencing the right to purchase any shares of a class or series of
capital stock ranking prior to the Series B Preferred with respect to
dividends or liquidation; or
o to amend, alter or repeal the provisions of the articles of
incorporation of United Dominion so as to materially and adversely affect
any right, preference, privilege or voting power of the Series B
Preferred.
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 that series, in each case
ranking on a parity with or junior to the Series B Preferred with respect
to dividends or liquidation rights, is not deemed to materially and
adversely affect the rights, preferences, privileges or voting powers of
the Series B Preferred.
So long as the Series B Preferred is listed on the New York Stock
Exchange, approval by the holders of two-thirds of the outstanding shares
is required for adoption of any amendment of the articles of incorporation
that would materially affect the terms of the Series B Preferred.
o Conversion Rights. None.
Series C Preferred
o Number of Shares. 1,000,000 authorized; none issued and outstanding
(September 30, 1999).
o Rank. Prior to the common stock and subordinate to the Series A Preferred,
the Series B Preferred and the Series D Preferred.
o Liquidation Preference. $1,000 per share.
o Dividend Rate or Amount. An amount per share equal to the greater of $.01
or 1,000 times the aggregate per share amount of all cash dividends, and
1,000 times the aggregate per share amount of all non-cash dividends or
other distributions, other than dividends payable in shares of common
stock, declared on the common stock since the immediately preceding Series
C Preferred dividend payment date, or, with respect to the first Series C
Preferred dividend payment date, since the first issuance of any share or
fraction of a share of Series C Preferred. The dividend rate of the Series
C Preferred may be adjusted to prevent dilution otherwise resulting from a
dividend payable in shares of common stock or a subdivision or combination
of common stock.
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o Dividend Rights. Fully cumulative.
o Dividend Payment Dates. Quarterly, on the last day of each March, June,
September and December.
o Dividend Record Dates. Any date designated by the Board of Directors that
is not more than 30 days before the dividend payment date.
o Liquidation Rights. Liquidation preference ($1,000 per share) plus accrued
and unpaid dividends, must be paid before any distribution to holders of
common stock or other capital stock ranking junior to Series C Preferred as
to liquidation rights.
o Additional Liquidation Participation Rights. After payment of the full
Series C Preferred liquidation preference, the holders of the Series C
Preferred will have no right or claim to any of the remaining assets of
United Dominion until the holders of the common stock have received an
amount per share (the "Common Adjustment") equal to the quotient obtained
by dividing the Series C Preferred liquidation preference by 1,000.
Following payment of the full Series C Preferred liquidation preference,
the full amount of any liquidation preference payable to holders of any
other shares of stock of United Dominion ranking on a parity in liquidation
with the Series C Preferred and the full amount of the Common Adjustment,
holders of Series C Preferred, holders of any such other shares of stock of
United Dominion and holders of common stock will receive their ratable and
proportionate share of the remaining assets to be distributed, with the
number of shares of Series C Preferred being deemed, for purposes of
determining the amount of the remaining assets distributable to the holders
of shares of Series C Preferred as a class, to be the product of the number
of shares of Series C Preferred then outstanding and 1,000, and the
distributable amount per share of Series C Preferred being the amount
distributable to the holders of shares of Series C Preferred as a class, so
determined, divided by the number of shares of Series C Preferred then
outstanding. If, upon any liquidation, dissolution or winding up of United
Dominion, the amounts payable with respect to the Series C Preferred
liquidation preference and the liquidation preferences of any such other
shares of stock of United Dominion are not paid in full, the holders of the
shares of the Series C Preferred and of the other shares will share ratably
in any distribution of assets of United Dominion in proportion to the full
respective liquidation preferences to which they are entitled. If there are
not sufficient assets remaining after payment in full of the Series C
Preferred liquidation preference and such other liquidation preferences to
permit payment in full of the Common Adjustment, then the remaining assets
will be distributed to the holders of the common stock. The additional
liquidation preference rights of the Series C Preferred may be adjusted to
prevent dilution otherwise resulting from a dividend payable in shares of
common stock or a subdivision or combination of common stock.
o Redemption. Redeemable in whole but not in part at any time at the option
of United Dominion for cash at a redemption price equal to 100% of the
product of 1,000 times the Average Market Value of the common stock, plus
all accrued and unpaid dividends to and including the date fixed for
redemption. The "Average Market Value" of the common stock is the average
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of the closing sale prices of a share of the common stock during the 30-day
period immediately preceding the date before the redemption date quoted on
the Composite Tape for New York Stock Exchange Listed Stocks, or, if the
common stock is not quoted on the Composite Tape, on The New York Stock
Exchange, or, if the common stock is not listed on that exchange, on the
principal United States securities exchange registered under the Securities
Exchange Act of 1934 on which the common stock is listed, or, if the common
stock is not listed on any registered exchange, the average of the closing
bid quotations with respect to a share of common stock during that 30-day
period on The NASDAQ Stock Market, or if no closing bid quotations are
available, the fair market value of a share of common stock as determined
by the Board of Directors in good faith. The redemption price of the Series
C Preferred may be adjusted to prevent dilution otherwise resulting from a
dividend payable in shares of common stock or a subdivision or combination
of common stock.
o Voting Rights. Each share of Series C Preferred has 1,000 votes on all
matters submitted to a vote of the shareholders of United Dominion. In
general, the holders of shares of Series C Preferred and the holders of
shares of common stock vote together as one voting group on these matters.
In addition, whenever dividends are in arrears for six or more consecutive
quarterly periods, the holders of Series C Preferred, voting separately as
a class with all other series of preferred stock having similar voting
rights, can elect two additional directors of United Dominion until the
dividend arrearages have been paid or satisfied in full. Further, if the
Series C Preferred is listed on the New York Stock Exchange, approval by
the holders of two-thirds of the outstanding shares is required for
adoption of any amendment of the articles of incorporation that would
materially affect the terms of the Series C Preferred. The number of votes
per share of the Series C Preferred may be adjusted to prevent dilution
otherwise resulting from a dividend payable in shares of common stock or a
subdivision or combination of common stock.
o Conversion Rights. None.
Series D Preferred
o Number of Shares. 8,000,000 authorized, issued and outstanding (September
30, 1999).
o Rank. Prior to the common stock and the Series C Preferred and on a parity
with the Series A Preferred and the Series B Preferred.
o Liquidation Preference. $25 per share.
o Dividend Rate or Amount. 7.5% of the liquidation preference per annum
(equivalent to $1.8755 per share). In addition, if the per share cash
dividends declared on the common stock during any quarterly Series D
Preferred dividend period (the "Current Common Dividend") are greater or
less than the per share cash dividends declared on the common stock during
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the immediately preceding quarterly Series D Preferred dividend period (the
"Prior Common Dividend"), then the dividend rate of the Series D Preferred,
as it may have previously been adjusted, will be automatically adjusted in
the proportion that the Current Common Dividend bears to the Prior Common
Dividend, effective for the quarterly Series D Preferred dividend period
during which the Current Common Dividend is paid and all subsequent
quarterly Series D Preferred dividend periods until again adjusted; but in
no event will the adjusted dividend rate of the Series D Preferred be less
than 7.5% of the Liquidation Preference of the Series D Preferred per
annum. This adjustment will not be made on account of any special common
stock dividend or distribution declared for the purpose of assuring
continuation of the status of United Dominion as a "real estate investment
trust" qualified under the Internal Revenue Code (a "REIT").
o Dividend Rights. Fully cumulative.
o Dividend Payment Dates. Quarterly, on the last day of each January, April,
July and October.
o Dividend Record Date. The Friday occurring between the tenth and fifteenth
days of the month in which the applicable payment date falls, or another
date designated by the Board of Directors that is not more than 30 nor less
than 10 days before the payment date.
o Liquidation Rights. Liquidation preference ($25 per share) plus accrued and
unpaid dividends, must be paid before any distribution to holders of common
stock or other capital stock ranking junior to Series D Preferred as to
liquidation rights.
o Additional Liquidation Participation Rights. None.
o Redemption. Redeemable in whole or in part, at any time or from time to
time on and after December 7, 2003, at the option of United Dominion for
cash at a redemption price of $25 per share, plus all accrued and unpaid
dividends thereon to the date fixed for redemption, without interest. The
redemption price, except for accrued and unpaid dividends, can be paid
solely out of the sale proceeds of other capital stock of United Dominion,
and from no other source. In addition, the following restrictions on
redemptions apply:
o United Dominion may not redeem any shares of series D Preferred
unless the market price of the common stock on each of the 20 consecutive
trading days immediately preceding the redemption date at least equals
the then current conversion price (see "Conversion Rights" below).
o United Dominion may not redeem in any period of 12 consecutive
months a number of Series D Preferred shares having an aggregate
liquidation preference of more than $100,000,000 unless in any such
period a holder of record of that number of Series D Preferred shares or
common stock issued on conversion of that number of Series D Preferred
shares has transferred beneficial ownership of that number of Series D
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Preferred shares or such common stock, or a combination of Series D
Preferred shares and such common stock representing that number of Series
D Preferred shares, otherwise than in a distribution to its security
holders, or in a bona fide pledge to a bank or other financial
institution to secure obligations for borrowed money, or as margin
collateral, or upon foreclosure or private sale under such pledge.
o Unless full cumulative dividends on all shares of Series D
Preferred have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment of those dividends set
apart for payment for all past dividend periods and the then current
dividend period, no shares of Series D Preferred will be redeemed unless
all outstanding shares are simultaneously redeemed and United Dominion
will not purchase or otherwise acquire directly or indirectly any shares
of Series D Preferred except by exchange for capital stock of United
Dominion ranking junior to the Series D Preferred as to dividends and
upon liquidation. This restriction will not prevent redemptions to
preserve United Dominion's status as a REIT (see "Redemption and
Restrictions on Transfer" below), or the purchase or acquisition of
shares of Series D Preferred in a purchase or exchange offer made on the
same terms to holders of all outstanding shares of that series.
o Voting Rights. None, except as provided by Virginia law and except that
whenever dividends are in arrears for any quarterly period, the holders of
Series D Preferred will have all the rights to notices and voting
entitlements of holders of common stock and will vote with the holders of
common stock as a single voting group until the dividend arrearages have
been paid or satisfied in full. In addition, the vote of the holders of a
majority of the outstanding shares of Series D Preferred is required
o to authorize or create, or increase the authorized or issued
amount of, or reclassify any authorized capital stock into, or create,
authorize or issue any obligation or security convertible into or
evidencing the right to purchase any shares of a class or series of
capital stock ranking prior to the Series D Preferred with respect to
dividends or liquidation rights; or
o to amend, alter or repeal the provisions of the articles of
incorporation of United Dominion so as to materially and adversely affect
any right, preference, privilege or voting power of the Series D
Preferred.
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 that series, in each case
ranking on a parity with or junior to the Series D Preferred with respect
to dividends or liquidation rights, is not deemed to materially and
adversely affect the rights, preferences, privileges or voting powers of
the Series D Preferred.
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o Conversion Rights. Shares of Series D Preferred are convertible into the
number of fully paid and nonassessable shares of common stock obtained by
dividing the aggregate liquidation preference of the shares to be converted
by the conversion price, initially $16.25. The conversion right is
adjustable as follows:
o If United Dominion declares and pays a dividend payable in common
stock, or subdivides, combines or reclassifies the common stock, the
conversion rate will be adjusted so that the holder of any Series D
Preferred thereafter surrendered for conversion will be entitled to
receive the number of shares of common stock that the holder would have
owned or have been entitled to receive after the happening of any of
these events had the Series D Preferred been converted immediately before
the record date in the case of a dividend or the effective date in the
case of a subdivision, combination or reclassification.
o If United Dominion issues rights, options or warrants to all
holders of common stock entitling them to subscribe for or purchase
common stock, or securities convertible into common stock, at a price per
share, or having a conversion price per share, less than 98% of the
current market price of the common stock determined as of the record date
for the determination of shareholders entitled to receive the rights,
options or warrants, then the conversion price will be adjusted to equal
the price determined by multiplying the conversion price in effect
immediately before the close of business on the record date by a
fraction, the numerator of which is the sum of the number of shares of
common stock outstanding on the close of business on the record date and
the number of shares of common stock that could be purchased at the
current market price of the common stock on the record date with the
aggregate proceeds to United Dominion from the exercise of the rights,
options or warrants or from the aggregate conversion price of the
convertible securities so offered, and the denominator of which is the
sum of the number of shares of common stock outstanding on the close of
business on the record date and the number of shares of common stock
issuable upon exercise in full of the rights, options or warrants or into
which the convertible securities so offered are convertible.
o If United Dominion distributes to all holders of common stock any
"Securities," defined as shares of capital stock of United Dominion other
than common stock or evidence of its indebtedness or assets, including
securities or cash but excluding cash dividends not exceeding in amount
current or accumulated funds from operations at the date of declaration,
determined on the basis of United Dominion's most recent annual or
quarterly report to shareholders at the time of the declaration of the
dividends, or rights, options or warrants to subscribe for or purchase
any of its securities, excluding rights, options or warrants referred to
in the immediately preceding paragraph, then in each case the conversion
price will be adjusted so that it will equal the price determined by
multiplying the conversion price in effect immediately before the close
of business on the record date fixed for the determination of
shareholders entitled to receive the distribution by a fraction, the
numerator of which is the current market price per share of common stock
on the record date, less
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the then fair market value of the Securities or assets so distributed
applicable to one share of common stock, and the denominator of which is
the current market price per share of common stock on the record date.
The "fair market value" of the Securities or assets, in the case of any
not having a market value ascertainable by reference to any quotation
medium or other objective source, is the fair market value as determined
in good faith by the Board of Directors.
o If United Dominion merges or consolidates with any other real
estate investment trust, corporation or other business entity and
regardless of the legal structure is not the survivor in the transaction,
transfers or sells all or substantially all of its assets other than to
an affiliate or subsidiary of United Dominion or liquidates and
dissolves, and the consideration allocable to each share of common stock
in any of these transactions does not have a fair market value of at
least $15 times the Adjustment Factor, the conversion price, if greater
than $15 times the Adjustment Factor, will be adjusted to equal $15 times
the Adjustment Factor. The "Adjustment Factor" is the conversion price in
effect on the determination date divided by $16.25.
o If the market price of the common stock on at least 20
consecutive trading days during the period December 7, 2000-December 7,
2003 is not at least $14 times the Adjustment Factor, and the conversion
price in effect at the opening of business on December 7, 2003 or the
next succeeding business day, if December 7, 2003 is not a business day,
is greater than $15.25 times the Adjustment Factor, the conversion price
will be adjusted effective December 7, 2003, to equal $15.25 times the
Adjustment Factor.
If United Dominion is a party to any "Transaction," defined to include
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all of the outstanding common stock, sale
of all or substantially all of United Dominion's assets, recapitalization or
reclassification of capital stock, but excluding any transaction resulting in an
adjustment of the conversion rate as described above, the conversion right of
the Series D Preferred is also protected as follows:
In case of any Transaction upon consummation of which common stock will
be converted into the right to receive shares, stock, securities or other
property, including cash, or any combination of stock, securities or property
("Transaction Consideration"), each share of Series D Preferred which is not
itself converted into the right to receive Transaction Consideration in
connection with the Transaction will thereafter be convertible into the kind and
amount of Transaction Consideration payable upon the consummation of the
Transaction with respect to that number of shares of common stock into which one
share of Series D Preferred was convertible immediately before the Transaction.
United Dominion will not be a party to any Transaction unless the terms of the
Transaction are consistent with the conversion right protection provisions of
the Series D Preferred and enable the holder of each share of Series D Preferred
that remains outstanding after consummation of the Transaction to convert that
share at the conversion price in effect immediately before the Transaction into
the Transaction Consideration payable with respect to the number of shares of
common stock into which it is then convertible.
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General
The following rights and preferences are common to all designated
series of preferred stock.
o No dividends on any designated series will be declared or paid if this is
prohibited by or would constitute a breach or a default under any agreement
of United Dominion or is restricted or prohibited by law. See "Restrictions
on Dividends" below for a summary of the provisions of a loan agreement
that restrict the payment of dividends. However, dividends on all
designated series will accrue whether or not United Dominion has earnings,
whether or not there are funds legally available for the payment of
dividends and whether or not dividends are declared. Accrued but unpaid
dividends do not bear interest.
o If, for any taxable year, United Dominion elects to designate as "capital
gain dividends" (as defined in Section 857 of the Internal Revenue 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 allocable to the holders any designated series is the
amount that the total dividends (as determined for federal income tax
purposes) paid or made available to the holders of that series for the year
bears to the Total Dividends.
o No dividends will be declared or paid for any period or set apart for
payment on the preferred stock of any other series ranking, as to
dividends, on a parity with or junior to any designated series, unless full
cumulative dividends have been or contemporaneously are declared and paid
or declared and a sum sufficient for the payment of those dividends set
apart for payment on that designated series for all past dividend periods
and the then current dividend period. When dividends are not paid in full,
or a sum sufficient for full payment is not so set apart, upon the shares
of a series of any designated series and the shares of any other series of
preferred stock ranking on a parity as to dividends with that designated
series, all dividends declared upon shares of that designated series and
any other series of preferred stock ranking on a parity as to dividends
with that designated series will be declared pro rata so that the amount of
dividends declared per share on that designated series and the other series
will in all cases bear to each other the same ratio that accrued dividends
per share on the shares of that designated series and the other series bear
to each other.
o Except as described in the immediately preceding paragraph, unless full
cumulative dividends on any designated series of preferred stock have been
or contemporaneously are declared and paid or declared and a sum sufficient
for the payment of those dividends 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 that series
as to dividends and upon liquidation, will be declared or paid or set aside
for payment or other distribution will be declared or made upon the common
stock or any other capital stock of United Dominion ranking junior to or on
a parity with the that series as to dividends or upon liquidation, nor will
any common stock or any other capital stock of United Dominion ranking
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junior to or on a parity with that series 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 by United Dominion for the redemption of any common stock or any other
capital stock of United Dominion ranking junior to or on a parity with that
series as to dividends or upon liquidation, except by conversion into or
exchange for other capital stock of United Dominion ranking junior to that
series as to dividends and upon liquidation.
o Any dividend payment made on shares of a designated series of preferred
stock will first be credited against the earliest accrued but unpaid
dividend due with respect to those shares which remains payable.
o Notice of redemption of shares of any designated series of preferred stock
will be mailed by United Dominion, postage prepaid, not less than 30 nor
more than 60 days before the redemption date, addressed to the respective
holders of record of the shares to be redeemed at their respective address
as they appear on the stock transfer records of United Dominion. Neither
failure to give notice nor defective notice or mailing will affect the
validity of the proceedings for the redemption of any shares except as to
the holder to whom notice was defective or not given. Each notice will
state the redemption date, the redemption price, the number of shares to be
redeemed, the place or places where those shares are to be surrendered for
payment of the redemption price, and that dividends on the shares to be
redeemed will cease to accrue on the redemption date. If less than all the
shares held by any holder are to be redeemed, the notice mailed to that
holder will also specify the number of shares to be redeemed.
o The holders of a designated series of preferred stock at the close of
business on a dividend record date applicable to that series will be
entitled to receive the dividend payable with respect to that series on the
corresponding dividend payment date regardless of a redemption between
those dates or default by United Dominion in the payment of the dividend
due, but otherwise United Dominion will make no payment or allowance for
unpaid dividends, whether or not in arrears, on shares of a designated
series called for redemption.
o No designated series of preferred stock has a stated maturity and there is
no provision for mandatory or sinking fund redemption of any designated
series, except to preserve United Dominion's status as a REIT as described
in "Redemption and Restrictions on Transfer" below.
o Under Virginia law, if shareholder voting is otherwise required by law,
holders of a designated series of preferred stock will be entitled to vote
as a class upon a proposed amendment to the articles of incorporation of
United Dominion, whether or not entitled to vote thereon by the terms of
the designation of that series, if the amendment would
o increase or decrease the aggregate number of authorized shares of
that series,
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o effect an exchange or reclassification, or create a right of
exchange, of that series for or into shares of another class or of shares
of another class into shares of that series,
o change the designation, preferences, rights or limitations of all
or part of that series,
o change shares of that series into a different number of shares of
that series,
o create a new class, or change a subordinate class into a class,
having dividend or liquidation rights superior or equal to those of that
series or increase the rights, preferences or number of authorized shares
of a class having superior dividend or liquidation rights,
o divide that series into other series, designate the other series
and determine its terms, or
o cancel or otherwise affect rights to accumulated but undeclared
dividends on that series.
Preferred Stock Purchase Rights
By action of the Board of Directors of United Dominion under a First
Amended and Restated Rights Agreement dated September 14, 1999 (the "Rights
Agreement"), between United Dominion and ChaseMellon Shareholder Services,
L.L.C., as Rights Agent, there are appurtenant to the outstanding shares of
common stock Rights entitling the registered holder of common stock to purchase
from United Dominion one one-thousandth of a share of Series C Preferred for
each share of common stock owned by that holder. Each one one-thousandth of a
share (a "Unit") of Series C Preferred is structured to be the equivalent of one
share of common stock. The exercise price of the Rights is $45.00 (the "Purchase
Price"). The Rights will also attach to shares of common stock issued at any
time before the Distribution Date (as defined below) unless the Board of
Directors determines otherwise at the time of issuance.
The Rights are evidenced by common stock certificates, and no separate
certificates evidencing the Rights will be distributed initially. The Rights
will separate from the common stock and a distribution of Rights certificates
will occur (the "Distribution Date") upon the earlier of 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of more than 15% of the outstanding shares of
common stock (the "Stock Acquisition Date"), or 10 business days following the
commencement of a tender offer or exchange offer that would result in a person
or group beneficially becoming an Acquiring Person. Until the Distribution Date,
the Rights will be evidenced by common stock certificates and will be
transferred with and only with common stock certificates, any common stock
certificates issued will contain a notation incorporating the Rights Agreement
by reference and the surrender for transfer of any certificates for common stock
outstanding will also constitute the transfer of the Rights associated with the
common stock represented by those certificates.
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The Rights are not exercisable until the Distribution Date and will
expire at the close of business on February 4, 2008, unless earlier redeemed or
exchanged by United Dominion as described below. As soon as practicable after
the Distribution Date, certificates representing Rights will be mailed to
holders of record of the common stock as of the close of business on the
Distribution Date, and thereafter Rights certificates alone will represent the
Rights.
The Rights Agreement provides that after any person becomes an
Acquiring Person, proper provision will be made so that each holder of a Right
(except as described below) will have the right to receive, upon exercise and
payment of the Purchase Price,
o Series C Preferred, or
o at the option of United Dominion, common stock, or
o if the number of available shares of Series C Preferred is
insufficient for exercise in full of the Rights, cash, property or other
securities of United Dominion
having in each case a value equal to twice the amount of the Purchase Price. If
at any time following the Stock Acquisition Date, United Dominion is acquired in
a merger, statutory share exchange, or other business combination in which
United Dominion is not the surviving corporation, or 50% or more of United
Dominion's assets or earning power is sold or transferred, each holder of a
Right (except as described below) will thereafter have the right to receive,
upon exercise and payment of the Purchase Price, common stock of the acquiring
company having a value equal to twice the Purchase Price. The events described
in this paragraph are referred to as the "Triggering Events." In addition, at
any time after any person becomes an Acquiring Person, except as described below
United Dominion may exchange all or part of the Rights for shares of common
stock (an "Exchange") at an exchange ratio of one share per Right, as
appropriately adjusted to reflect any stock split or similar transaction.
Upon the occurrence of a Triggering Event that entitles Rights holders
to purchase securities or assets of United Dominion, Rights that are or were
owned by the Acquiring Person, or any affiliate or associate of the Acquiring
Person, on or after the Acquiring Person's Stock Acquisition Date will be null
and void and will not thereafter be exercised by any person, including
subsequent transferees. Upon the occurrence of a Triggering Event that entitles
Rights holders to purchase common stock of a third party, or upon the
authorization of an Exchange, Rights that are or were owned by any Acquiring
Person or any affiliate or associate of any Acquiring Person on or after the
Acquiring Person's Stock Acquisition Date will be null and void and will not
thereafter be exercised by any person, including subsequent transferees.
The Purchase Price payable, and the number of shares of Series C
Preferred, common stock or other securities or property issuable, upon exercise
of the Rights may be adjusted from time to time to prevent dilution.
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At any time until ten days following the Stock Acquisition Date, United
Dominion may redeem the Rights in whole, but not in part, at a price of $.001
per Right (the "Redemption Price"). Under circumstances described in the Rights
Agreement, the decision to make an Exchange or to redeem the Rights requires the
concurrence of a majority of the Board of Directors. Additionally, United
Dominion may thereafter but before the occurrence of a Triggering Event redeem
the Rights in whole, but not in part, at the Redemption Price provided that the
redemption is incidental to a merger or other business combination transaction
involving United Dominion that is approved by a majority of the Board of
Directors, does not involve an Acquiring Person, and in which all holders of
common stock are treated alike. After the redemption period has expired, United
Dominion's right of redemption may be reinstated if an Acquiring Person reduces
his beneficial ownership to 15% or less of the outstanding shares of common
stock in a transaction or series of transactions not involving United Dominion.
Immediately upon the action of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The holder of a Right, as such, will have no rights as a shareholder of
United Dominion, including, without limitation, the right to vote or to receive
dividends, until the Right is exercised. While the distribution of the Rights
will not be taxable to shareholders or to United Dominion, shareholders may,
depending upon the circumstances, recognize taxable income if the Rights become
exercisable for Series C Preferred or other consideration originating with
United Dominion or for common stock of the acquiring company as described above.
Any of the provisions of the Rights Agreement other than provisions
relating to the principal economic terms of the Rights may be amended by the
Board of Directors before the Distribution Date. After the Distribution Date,
the provisions of the Rights Agreement may be amended by the Board of Directors
to cure any ambiguity, to make other changes that do not adversely affect the
interests of holders of Rights other than then interests of an Acquiring Person,
or to shorten or lengthen any time period under the Rights Agreement; but no
amendment to adjust the time period governing redemption may be made while the
Rights are not redeemable.
Restrictions on Dividends
A covenant in its loan agreement with a group of insurance company
lenders effectively prohibits United Dominion from declaring or paying dividends
if, after giving effect to the declaration or payment,
o a default or "Event of Default" under the agreement will occur and be
continuing,
o United Dominion would be prohibited from incurring debt under other
covenants in the agreement, and
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o the dividends and other "Restricted Payments," as defined in the
agreement, declared during the same fiscal year as the dividends would exceed
the sum of "Cash Flow," as so defined, from the beginning of that fiscal year to
and including the last day of the completed fiscal quarter immediately preceding
the dividend payment date, and the net cash proceeds received by United Dominion
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 after December 31, 1992, exceed "Cash
Flow" for the applicable fiscal year.
In addition, a covenant in its credit agreement with a group of bank
lenders prohibits United Dominion from making distributions on common stock,
other than dividends paid from extraordinary gains excluded from the calculation
of "Funds From Operations," during any period in an aggregate amount exceeding
95% of "Funds From Operations" attributable to that period.
Despite these covenants, United Dominion may pay dividends required to
maintain its qualification as a REIT.
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 the 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 United Dominion. An acquiring person may
require United Dominion to hold a special meeting of shareholders to consider
the matter within 50 days of its request.
Redemption and Restrictions on Transfer
United Dominion's articles of incorporation provide that United
Dominion is organized to qualify as a REIT. Because the Internal Revenue 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
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the last six months of any year would result in the disqualification of United
Dominion as a REIT, the articles of incorporation provide that United Dominion
has the power to redeem that number of concentrated shares sufficient in the
opinion of the Board of Directors to maintain or bring the direct or indirect
ownership of shares into conformity with the requirements of the Internal
Revenue Code, and to stop the transfer of shares to any person whose acquisition
of shares would, in the opinion of the Board of Directors, result in
disqualification. The per share redemption price of any shares redeemed by
United Dominion under this provision is the last reported sale price for the
shares as of the business day preceding the day on which notice of redemption is
given. Any redemption would apply only to shares held, directly or indirectly,
by those shareholders with concentrated share ownership that would violate the
requirements of the Internal Revenue Code applicable to REITs. In addition, the
number of shares so redeemed would be limited to that number of concentrated
shares sufficient in the opinion of the Board of Directors to maintain or bring
the ownership of shares into conformity with the requirements of the Internal
Revenue Code.
The Board of Directors can require shareholders to disclose in writing
to United Dominion any information with respect to ownership of its shares as it
deems necessary to comply with the REIT provisions of the Internal Revenue 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
-------------------------------------
Katheryn E. Surface
Senior Vice President and
General Counsel
Dated: December 28, 1999
