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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-A/A
AMENDMENT NO. 1
REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EQUITY RESIDENTIAL PROPERTIES TRUST
(Exact Name of Registrant as Specified in Its Charter)
Maryland 36-3877868
(State of Incorporation (IRS Employer Identification No.)
or Organization)
Two North Riverside Plaza 60606
Chicago, Illinois (Zip Code)
(Address of principal executive offices)
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
Series E Cumulative Convertible Preferred New York Stock Exchange
Shares of Beneficial Interest
Series F Cumulative Redeemable Preferred New York Stock Exchange
Shares of Beneficial Interest
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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Item 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The description of the Series E Cumulative Convertible Preferred
Shares of Beneficial Interest ("Series E Preferred") to be
registered hereunder set forth under the caption "Description of
Series A Cumulative Convertible Preferred Shares" in Wellsford
Residential Property Trust's final prospectus (filed as part of
Registration Statement No. 33-69868) pursuant to Rule 424(b) on
November 8, 1993 is hereby incorporated herein by reference and is
attached as Exhibit 99.2 hereto. The Series E Preferred is being
issued in connection with the merger of the Registrant and
Wellsford Residential Property Trust ("Wellsford").
The description of the Series F Cumulative Redeemable Preferred
Shares of Beneficial Interest ("Series F Preferred") to be
registered hereunder set forth under the caption "Description of
Registrant's Securities to be Registered" in Wellsford Residential
Property Trust's Registration Statement on Form 8-A dated September
5, 1995, is hereby incorporated by reference. The Series F
Preferred is being issued in connection with the merger of the
Registrant and Wellsford.
Item 2. EXHIBITS
The securities described herein are to be listed on the New York
Stock Exchange on which other securities of the Registrant are
registered. Accordingly, the following exhibits required in
accordance with Part I to the Instructions as to exhibits on Form
8-A have been duly filed with, or incorporated by reference in,
the Form filed with the Securities and Exchange Commission, but are
neither filed with, nor incorporated by reference in, copies of
this form to be filed with the New York Stock Exchange.
NUMBER DESCRIPTION
*1 Copy of Amendment No. 2 to the Registrant's
Registration Statement on Form S-4 (No. 333-24653)
*4.1 Amended and Restated Declaration of Trust of Equity
Residential Properties Trust
*4.2 Amended and Restated By-Laws of Equity Residential
Properties Trust
*5.1 Specimen Series E Cumulative Convertible Preferred
Share Certificate
*5.2 Specimen Series F Cumulative Redeemable Preferred Share
Certificate
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*13.1 Equity Residential Properties Trust Annual Report on
Form 10-K for the year ended December 31, 1996
*13.2 Equity Residential Properties Trust Annual Report
Shareholders for the year ended December 31, 1996
*13.3 Equity Residential Properties Trust Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997
*99.1 Description of Series E Cumulative Convertible
Preferred Shares of Beneficial Interest incorporated by
reference to Registration Statement No. 33-69868 in
response to Item 1 hereof.
**99.2 Description of Series F Cumulative Redeemable Preferred
Shares of Beneficial Interest incorporated by reference
to Registration Statement on Form 8-A of Wellsford
Residential Property Trust in response to Item 1 hereof.
________________
* Previously filed or incorporated by reference
** Filed with this Amendment
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the Registrant has duly caused this amendment to the registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
EQUITY RESIDENTIAL PROPERTIES TRUST
(Registrant)
By:/s/ Bruce C. Strohm
--------------------------------
Bruce C. Strohm
Executive Vice President, Secretary
and General Counsel
Date: May 30, 1997
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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*1 Copy of Amendment No. 2 to the
Registrant's Registration Statement
on Form S-4 (No. 333-24653)
*4.1 Amended and Restated Declaration of
Trust of Equity Residential
Properties Trust [Incorporated by
reference to Exhibit 99.1 to
Amendment No. 2 to the Registrant's
Registration Statement No. 333-24653
on Form S-4]
*4.2 Amended and Restated Bylaws of
Equity Residential Properties Trust
[Incorporated by reference to
Exhibit 99.2 to Amendment No. 2 to
the Registrant's Registration
Statement No. 333-24653 on Form S-4]
5.1 Specimen Series E Cumulative
Convertible Preferred Share
Certificate
5.2 Specimen Series F Cumulative
Redeemable Preferred Share
Certificate
*13.1
Equity Residential Properties Trust
Annual Report on Form 10-K for the
year ended December 31, 1996
(Commission File No. 1-2252)
*13.2 Equity Residential Properties Trust
Annual Report Shareholders for the
year ended December 31, 1996
[Incorporated by reference to
Exhibit 13 to Annual Report on Form
10-K for the year ended December
31, 1996 Commission File No. 1-2252]
*13.3 Equity Residential Properties Trust
Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997
(Commission File No. 1-2252)
*99.1 Description of Series E Cumulative Convertible
Preferred Shares of Beneficial Interest incorporated by
reference to Registration Statement No. 33-69868 in
response to Item 1 hereof.
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**99.2 Description of Series F Cumulative Redeemable Preferred
Shares of Beneficial Interest incorporated by reference to
Registration Statement on Form 8-A of Wellsford Residential
Property Trust in response to Item 1 hereof.
- --------------------
* Previously filed or incorporated by reference
** Filed with this Amendment
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EXHIBIT 99.2
ITEM 1 Description of Registrant's Securities to be Registered
The description of the Registrant's Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest, par value $.01 per share (the "Series
B Preferred Shares") to be registered is set forth below. This description
supplements and, to the extent inconsistent therewith, replaces the information
under the heading "Description of Preferred Shares" in Registrant's Prospectus
dated August 18, 1995 (the "Prospectus"), filed by Registrant pursuant to Rule
424(b) under the Securities Act of 1933, as amended (File No. 33-91352), which
information is incorporated herein by reference.
GENERAL. The following summary of the terms and provisions of the Series
B Preferred Shares does not purport to be complete and is qualified in its
entirety by reference to the pertinent sections of the Registrant's Amended and
Restated Declaration of Trust, as amended (the "Declaration of Trust") and the
Articles Supplementary designating the Series B Preferred Shares (the "Articles
Supplementary").
DISTRIBUTIONS. Holders of the Series B Preferred Shares shall be entitled
to receive, when, as and if authorized by the Board of Trustees of the
Registrant (the "Board of Trustees"), out of assets legally available for the
payment of distributions, cumulative preferential cash distributions at a rate
of 9.65% of the liquidation preference per annum (equivalent to $2.4125 per
share per annum). Such distributions 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 "Distribution Payment Date"). The first
distribution, which will be paid on the business day succeeding October 15,
1995, will be for less than a full quarter. Such distribution and any other
distribution payable on the Series B Preferred Shares for any partial
distribution period will be computed on the basis of the 360-day year
consisting of twelve 30-day months. Distributions will be payable to holders
of record as they appear in the share records of the Registrant at the close of
business on the applicable record date, which shall be the first day of the
calendar month in which the applicable Distribution Payment Date falls or such
other date designated by the Board of Trustees of the Registrant for the
payment of distributions that is not more than 90 days prior to such
Distribution Payment Date (each, a "Distribution Record Date"). The Series B
Preferred Shares will rank pari passu with the Registrant's 4,000,000 Series A
Cumulative Convertible Preferred Shares of Beneficial Interest, par value $.01
per share (the "Convertible Preferred Shares"), as to priority for receiving
distributions.
No distributions on Series B Preferred Shares shall be authorized by the
Board of Trustees of the Registrant or paid or set apart for payment by the
Registrant at such time as the terms and provisions of any agreement of the
Registrant, including any agreement relating to indebtedness, prohibits such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law.
Notwithstanding the foregoing, distributions on the Series B Preferred
Shares will accrue whether or not the Registrant has earnings, whether or not
there are assets legally available for
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the payment of such distributions and whether or not such distributions are
authorized. Accrued but unpaid distributions on the Series B Preferred Shares
will not bear interest. Holders of the Series B Preferred Shares will not be
entitled to any distributions in excess of full cumulative distributions as
described above. See "Description of Preferred Shares -- Distributions" in
the Prospectus.
Any distribution made on the Series B Preferred Shares will first be
credited against the earliest accrued but unpaid distribution due with respect
to such shares which remains payable. The Registrant will pay each
distribution to the holders of record to the Series B Preferred Shares as they
appear on its share register on the Distribution Record Date, which will not be
more than 90 days preceding the Distribution Payment Date.
A REIT is permitted to designate a portion of the dividends it pays to its
shareholders as consisting of net capital gains realized by the REIT during the
taxable year and its shareholders treat dividends properly designated as
capital gain dividends as gain from the sale or exchange of a capital asset
held for more than one year. In accordance with the Articles Supplementary,
the Board of Trustees has determined that all dividend distributions on the
Series B Preferred Shares will be paid pro rata from all types of income of the
Registrant (including net capital gains) until otherwise determined by the
Board of Trustees. In the future, dividend distributions on the Series B
Preferred Shares will be paid first from income of the Registrant other than
net capital gains, and the balance, if any, will be paid from net capital
gains, but only if the Board of Trustees determines that such dividend
distributions are permissible under applicable law and will qualify for the
"dividends paid deduction" (within the meaning of Sections 561 and 562 of the
Internal Revenue Code of 1986, as amended (the "Code")).
LIQUIDATION RIGHTS. In the event of any liquidation, dissolution or
winding up of the Registrant, the holders of Series B Preferred Shares are
entitled to be paid out of the assets of the Registrant legally available for
distribution to its shareholders a liquidation preference in cash or property
at its fair market value as determined by the Board of Trustees in the amount
of $25.00 per share, plus an amount equal to any accrued and unpaid
distributions to the date of payment, before any distributions to the date of
payment, before any distribution of assets is made to holders of the
Registrant's common shares of beneficial interest, par value $.01 per share
(the "Common Shares") or any other shares of beneficial interest that rank
junior to the Series B Preferred Shares as to liquidation rights. The Series B
Preferred Shares will rank pari passu with the Convertible Preferred Shares as
to priority for receiving liquidating distributions. After payment of the full
amount of the liquidating distributions to which they are entitled, the holders
of Series B Preferred Shares will have no right or claim to any of the
remaining assets of the Registrant and shall not be entitled to any other
distribution in the event of liquidation, dissolution or winding up of the
affairs of the Registrant. The consolidation or merger of the Registrant with
or into any other entity or of any other entity with or into the Registrant, or
the sale, lease, transfer or conveyance of all or substantially all of the
assets of the Registrant shall not be deemed to constitute a liquidation,
dissolution or winding up of the Registrant. For further information regarding
the rights of the holders of the Series B Preferred Shares upon the
liquidation, dissolution or winding up of the Registrant, see "Description of
Preferred Shares -- Liquidation Preference" in the Prospectus.
The Articles Supplementary provide that, in determining whether a
distribution by dividend, redemption or other acquisition of shares of
beneficial interest of the Registrant or
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otherwise is permitted under Maryland law, no effect will be given to amounts
that would be needed, if the Registrant were to be dissolved at the time of
the distribution, to satisfy the preferential rights upon dissolution of
shareholders whose preferential rights on dissolution are superior to those
receiving the distribution.
REDEMPTION. The Series B Preferred Shares are not redeemable prior to
August 24, 2000, the Registrant at its option upon not less than 30 nor more
than 60 days' written notice, may redeem the Series B Preferred Shares, 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 distributions thereon to
the date fixed for redemption (except as provided below), without interest.
The redemption price of the Series B Preferred Shares (other than the portion
thereof consisting of accrued and unpaid distributions) is payable solely out
of the sale proceeds of Capital Stock of the Registrant (as defined in the
Prospectus), which may include other series of preferred shares, and from no
other source. Holders of Series B Preferred Shares to be redeemed shall
surrender such Series B Preferred Shares at the place designated in such notice
and shall be entitled to the redemption price and any accrued and unpaid
distributions payable upon such redemption following such surrender. If notice
of redemption of any Series B Preferred Shares has been given and if the funds
necessary for such redemption have been set aside by the Registrant in trust
for the benefit of the holders of any Series B Preferred Shares so called for
redemption, then from and after the redemption date distributions will cease to
accrue on such Series B Preferred Shares, such Series B Preferred 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 Series B Preferred Shares are to be redeemed, the Series B
Preferred Shares 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 Registrant. See "Description of Preferred Shares --
Restrictions on Transfer" in the Prospectus.
Unless full cumulative distributions on all Series B Preferred Shares shall
have been or contemporaneously are authorized and paid or authorized and a sum
sufficient for the payment thereof set apart for payment for all past
distribution periods and the then current distribution period, no Series B
Preferred Shares shall be redeemed unless all outstanding Series B Preferred
Shares are simultaneously redeemed; provided, however, the foregoing shall not
prevent an acquisition of Series B Preferred Shares from persons owing in the
aggregate 9.8% or more of the number or value of the total outstanding shares
of beneficial interest of the Registrant or 20% or more of the number or value
of the total outstanding Series B Preferred Shares pursuant to provisions of
the Declaration of Trust and the Articles Supplementary. Unless full
cumulative distributions on all outstanding Series B Preferred Shares have been
or contemporaneously are authorized and paid or authorized and a sum sufficient
for the payment thereof set apart for payment for all past distribution periods
and the then current distribution period, the Registrant shall not purchase or
otherwise acquire directly or indirectly any Series B Preferred Shares (except
by exchange for shares of beneficial interest of the Registrant ranking junior
to the Series B Preferred Shares as to distributions and upon liquidation,
dissolution or winding up of the affairs of the Registrant).
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
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notice will be mailed by the Registrant, 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 B Preferred Shares to be redeemed at
their respective addresses as they appear on the share transfer records of the
Registrant. 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 Series B Preferred Shares except as to the holder to whom notice was
defective. Each notice shall state: (i) the redemption date; (ii) the
redemption price; (iii) the number of Series B Preferred Shares to be redeemed;
(iv) the place or places where the Series B Preferred Shares are to be
surrendered for payment of the redemption price; and (v) that distributions on
the shares to be redeemed will cease to accrue on such redemption date. If
less than all the Series B Preferred Shares held by any holder are to be
redeemed, the notice mailed to such holder shall also specify the number of
Series B Preferred Shares to be redeemed.
The holders of Series B Preferred Shares at the close of business on a
Distribution Record Date will be entitled to receive the distribution payable
with respect to such Series B Preferred Shares on the corresponding
Distribution Payment Date notwithstanding the redemption thereof between such
Distribution Record Date and the corresponding Distribution Payment Date or the
Registrant's default in the payment of the distribution due. Except as
provided above, the Registrant will make no payment or allowance for unpaid
distributions, whether or not in arrears, on Series B Preferred Shares to be
redeemed.
The Series B Preferred Shares have no stated maturity and will not be subject
to any sinking fund or mandatory redemption. However, in order to preserve the
Registrant's status as a REIT, the Series B Preferred Shares may be subject to
redemption as described in "Description of Preferred Shares -- Restrictions on
Transfer" in the Prospectus and in "Restrictions on Ownership and Transfer"
below.
Voting Rights. The holders of Series B Preferred Shares shall not be entitled
to vote on any matter except (i) as provided in the paragraphs below concerning
voting rights or (ii) as specifically required by law.
In the event the Registrant shall have failed to authorize and pay or set apart
for payment in full the distributions accumulated on the outstanding Series B
Preferred Shares for any six or more quarterly Distribution Periods, regardless
of whether such quarterly periods are consecutive (a "Preferential Distribution
Non-Payment"), the number of trustees of the Registrant shall be increased by
two and the holders of the outstanding Series B Preferred Shares, voting
together as a class with all other classes or series of preferred shares of the
Registrant ranking on a parity with the Series B Preferred Shares with respect
to distribution rights and then entitled to vote on the election of such
additional two trustees, shall be entitled to elect such two additional
trustees until the full distributions accumulated on all outstanding Series B
Preferred Shares have been authorized and paid or set apart for payment. Upon
the occurrence of a Preferential Distribution Non-Payment or a vacancy in the
office of a Preferred Shares Trustee (as defined below), the Board of Trustees
shall within a reasonable period call a special meeting of the holders of the
Series B Preferred Shares and all holders of other classes or series of
preferred shares of the Registrant ranking on a parity with the Series B
Preferred Shares with respect to distribution rights who are then entitled to
vote on the election of such additional trustee or trustees for the purpose of
electing the additional trustee or trustees. If and when all accumulated
distributions on the Series B Preferred Shares have been authorized and paid or
set
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aside for payment in full, the holders of the Series B Preferred Shares
shall be divested of the special voting rights provided by this paragraph,
subject to revesting in the event of each and every subsequent Preferential
Distribution Non-Payment. Upon termination of such special voting rights
attributable to all holders of the Series B Preferred Shares and shares of any
other class or series of preferred shares of the Registrant ranking on a parity
with the Series B Preferred Shares with respect to distribution rights, the
term of office of each trustee elected by the holders of the Series B Preferred
Shares and such parity preferred shares (a "Preferred Shares Trustee") pursuant
to such special voting rights shall forthwith terminate and the number of
trustees constituting the entire Board of Trustees shall be reduced by the
number of Preferred Shares Trustees. In the event the holders of the
outstanding Convertible Preferred Shares shall become entitled to vote on the
election of additional trustees because the Registrant shall have failed to
declare and pay or set apart for payment in full the distributions accumulated
on the outstanding Convertible Preferred Shares for any six consecutive
quarterly distribution payment periods, the term of office of each Preferred
Shares Trustee previously elected by holders of Series B Preferred Shares shall
forthwith terminate and the holders of the Series B Preferred Shares, voting
together as sa class with all other classes or series of preferred shares of
the Registrant ranking on a parity with the Series B Preferred Shares with
respect to distribution rights and then entitled to vote on the election of two
additional trustees, shall be entitled to elect such two additional trustees
pursuant to these paragraphs concerning voting rights. Any Preferred Shares
Trustee may be removed only by the vote of the holders of record of a majority
of the outstanding Series B Preferred Shares and all other series of preferred
shares of the Registrant ranking on a parity with the Series B Preferred Shares
with respect to distribution rights who would then be entitled to vote in such
Preferred Shares Trustee's election, voting together as a separate class, at a
meeting called for such purpose.
So long as any Series B Preferred Shares are outstanding, the number of
trustees constituting the entire Board of Trustees shall at all times be such
that the exercise, by the holders of the Series B Preferred Shares and the
holders of preferred shares of the Registrant ranking on a parity with the
Series B Preferred Shares with respect to distribution rights, of the right to
elect trustees under the circumstances provided for in the immediately
preceding paragraph will not contravene any provision of the Declaration of
Trust restricting the number of trustees which may constitute the entire Board
of Trustees.
Trustees elected pursuant to the paragraphs above shall serve until the earlier
of (x) the next annual meeting of the shareholders of the Registrant and the
election (by the holders of the Series B Preferred Shares and the holders of
preferred shares of the Registrant ranking on a parity with the Series B
Preferred Shares with respect to distribution rights) and qualification of
their respective successors or (y) the termination of the term of office of
each Preferred Shares Trustee upon the termination of the special voting rights
as provided for in the paragraphs above.
So long as a Preferential Distribution Non-Payment shall continue, any vacancy
in the office of a Preferred Shares Trustee may be filled by vote of the
holders of record of a majority of the outstanding Series B Preferred Shares
and all other series of preferred shares ranking on a parity with the Series B
Preferred Shares with respect to distribution rights who are then entitled to
vote in the election of such Preferred Shares Trustee as provided above. As
long as the Preferential Distribution Non-Payment shall continue, holders of
the Series B Preferred Shares shall not, as such shareholders, be entitled to
vote on the election or removal of trustees other
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than Preferred Shares Trustees, but shall not be divested of any other
voting rights provided to such shareholders by law, the Declaration of Trust
and the Articles Supplementary with respect to any other matter to be acted
upon by the shareholders of the Registrant.
In addition to any other rights provided by applicable law, so long as any
Series B Preferred Shares are outstanding, the Registrant shall not, without
the affirmative vote, or the written consent as provided by law, of the holders
of at least two-thirds of the total number of outstanding Series B Preferred
Shares, voting as a class,
1. authorize, create or issue, or increase the authorized or issued
amount of, any class or series of, or rights to subscribe to or acquire,
any security convertible into, any class or series of shares of
beneficial interest ranking as to distribution rights or liquidation
preference, senior to the Series B Preferred Shares, or reclassify any
shares of beneficial interest into any such shares; or
2. amend, alter or repeal, whether by merger, consolidation or
otherwise, any of the provisions of the Declaration of Trust (including
the Articles Supplementary) that would change the preferences, rights or
powers with respect to the Series B Preferred Shares so as to affect the
Series B Preferred Shares materially and adversely;
but (except as otherwise required by applicable law) nothing herein contained
shall require such a vote or consent (i) in connection with any increase in the
total number of authorized Common Shares, or (ii) in connection with the
authorization or increase of any class or series of shares of beneficial
interest ranking, as to distribution rights and liquidation preference, on a
parity with or junior to the Series B Preferred Shares; provided, however, that
no such vote or written consent of the holders of the Series B Preferred Shares
shall be required if, at or prior to the time when the issuance of any such
shares ranking senior to the Series B Preferred Shares is to be made or any
such change is to take effect, as the case may be, proper notice has been given
and sufficient funds have been irrevocably deposited in trust for the
redemption of all the then outstanding Series B Preferred Shares.
CONVERSION. The Series B Preferred Shares are not convertible into or
exchangeable for any other property or securities of the Registrant.
RESTRICTIONS ON OWNERSHIP AND TRANSFER. Ownership by any person is limited,
with certain exceptions, to (i) 9.8% of the lesser of the number or value of
the Registrant's total outstanding shares of beneficial interest and (ii) 20%
of the lesser of the number or value of the total outstanding Series B
Preferred Shares. For information regarding additional restrictions on
ownership and transfer of the Series B Preferred Shares, see "Description of
Preferred Shares--Restrictions on Transfer" in the Prospectus.
In addition to the restrictions on ownership and transfer set forth in the
Declaration of Trust, the Articles Supplementary provide, subject to certain
exceptions, that no holder (other than any person approved by the Board of
Trustees, at their option and in their discretion, provided such approval will
not result in the termination of the status of the Registrant as a REIT) may
own, or be deemed to own by virtue of the attribution provisions of the Code,
more than 20% (the "Series B Ownership Limit") of the lesser of the number or
value (in either case as determined in good faith by the Board of Trustees) of
the total outstanding Series B Preferred Shares.
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The Board of Trustees may waive the Series B Ownership limit if, in their
opinion, such ownership would not jeopardize the Registrant's status as a REIT.
As a condition of such waiver, the intended transferee must give written
notice to the Registrant of the proposed transfer and must furnish such
opinions of counsel, affidavits, undertakings, agreements and information as
may be required by the Board of Trustees no later than the 15th day prior to
any transfer which, if consummated, would result in the intended transferee
owning shares in excess of the Series B Ownership Limit. Any transfer of
shares that would (i) create direct or indirect ownership of shares in excess
of the Series B Ownership Limit, or (ii) result in the Registrant being
"closely held" within the meaning of Section 856(h) of the Code, shall be null
and void, and the intended transferee will acquire no rights to the shares.
The Articles Supplementary provide that the Registrant, by notice to the holder
thereof, may purchase any or all Series B Preferred Shares (the "Series B
Excess Preferred Shares") that are proposed to be transferred pursuant to a
transfer which, if consummated, would result in the intended transferee owning
Series B Preferred Shares in excess of the Series B Ownership Limit or would
otherwise jeopardize the REIT status of the Registrant. From and after the
date fixed for purchase by the Board of Trustees, the holder of such shares to
be purchased by the Registrant shall cease to be entitled to dividends,
distributions, voting rights and other benefits with respect to such shares
except the right to payment of the purchase price for the shares. Any
distribution paid to a proposed transferee on Series B Excess Preferred Shares
prior to the discovery by the Registrant that such shares have been transferred
in violation of the provisions of the Articles Supplementary shall be repaid to
the Registrant upon demand. If the foregoing transfer restrictions are
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the intended transferee of any Series B Excess Preferred
Shares may be deemed, at the option of the Registrant, to have acted as an
agent on behalf of the Registrant in acquiring such Series B Excess Preferred
Shares and to hold such Series B Excess Preferred Shares on behalf of the
Registrant.
All persons who own directly or indirectly, more than 5% in number or value of
the outstanding Series B Preferred Shares must give a written notice to the
Registrant containing the information specified in the Articles Supplementary
by January 30 of each year. In addition, each direct or indirect holder of
Series B Preferred Shares shall upon demand be required to disclose to the
Registrant in writing such information with respect to the direct or indirect
ownership of Series B Preferred Shares as the Board of Trustees deems necessary
to comply with the provisions of the Code applicable to a REIT, to comply with
the requirements of any taxing authority or governmental agency or to determine
any such compliance.
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