<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EQUITY RESIDENTIAL PROPERTIES TRUST
(Exact Name of Registrant as Specified in its Charter)
Maryland 13-3675988
(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
Two North Riverside Plaza, Suite 400, Chicago, Illinois 60606
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
<S> <C>
Depositary Shares each Representing
a 1/10 fractional interest in a
7 1/4% Series G Convertible
Cumulative Preferred Share of Beneficial
Interest (Par Value $0.01 Per Share)
(Liquidation Preference Equivalent to The New York Stock Exchange, Inc.
$25.00 Per Depositary Share) (Name of each exchange on which each
(Title of Class) Class is to be Registered
</TABLE>
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.
(a) Regulation S-K Item 202(a)
"Description of Shares of Beneficial Interest-Preferred Shares" and
"Description of Depositary Shares," pp. 10 through 20, inclusive, of
the final Prospectus, dated September 11, 1997, and "Description of
Series G Preferred Shares and Depositary Shares," pp. S-15 through S-
19, inclusive, of the final Prospectus Supplement of the Registrant,
dated September 18, 1997, filed on September 19, 1997 with the
Securities and Exchange Commission, File No. 333-32183, pursuant to
Rule 424(b)(5), are hereby incorporated herein by reference. The
Registrant has filed an application for listing of the Depositary
Shares of the Registrant to which this Form 8-A applies on the New
York Stock Exchange.
(b) Regulation S-K Item 202(b)-(f)
Not applicable.
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Item 2. Exhibits.
Exhibit
Number Description of Exhibit
- ------ ----------------------
1.1 Form S-3 Registration Statement of the Registrant, declared effective
on August 4, 1997 by the Securities and Exchange Commission, File No.
333-32183, is hereby incorporated herein by reference.
4.1 Second Amended and Restated Declaration of Trust of Equity Residential
Properties Trust (filed as Exhibit 3(i) to the Current Report on Form
8-K of the Registrant filed with the Securities and Exchange
Commission on May 30, 1997, and hereby incorporated herein by
reference).
4.2 Second Amended and Restated Bylaws of Equity Residential Properties
Trust (filed as Exhibit 99.2 to the Form S-4 Registration Statement of
the Registrant, File No. 333-24653, and hereby incorporated herein by
reference).
4.3 Form of Articles Supplementary to the Second Amended and Restated
Declaration of Trust of Equity Residential Properties Trust.
5.1 Form of Specimen Depositary Share Certificate representing a 1/10
fractional interest in a 7 1/4% Series G Convertible Cumulative
Preferred Share of Beneficial Interest.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Date: September 19, 1997
EQUITY RESIDENTIAL PROPERTIES TRUST
(Registrant)
By: /s/ David J. Neithercut
---------------------------------------
David J. Neithercut
Executive Vice President and Chief
Financial Officer
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FORM OF
ARTICLES SUPPLEMENTARY
TO THE
AMENDED AND RESTATED DECLARATION OF TRUST OF
EQUITY RESIDENTIAL PROPERTIES TRUST
Pursuant to Section 8-203(b) of the Corporations and Associations Article
of the Annotated Code of the State of Maryland, as amended.
1. The name of the trust (the "Trust") is Equity Residential Properties Trust.
2. Pursuant to authority granted under Section 5.3 of the Trust's Declaration
of Trust, the Board of Trustees of the Trust hereby establishes a series of
preferred shares of beneficial interest designated 7 1/4% Series G
Convertible Cumulative Preferred Shares of Beneficial Interest ($0.01 Par
Value Per Share) (Liquidation Preference $250.00 Per Share) (the "Series G
Preferred Shares") on the following terms:
A. Certain Definitions.
Unless the context otherwise requires, the terms defined in this
subparagraph A of paragraph 2 shall have, for all purposes of these Articles
Supplementary, the meanings herein specified (with terms defined in the singular
having comparable meanings when used in the plural).
"Act" shall have the meaning set forth in subsection (g) of
subparagraph (5) of paragraph B hereof.
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series G Preferred Shares.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
"Common Shares" shall mean the common shares of beneficial interest,
$.01 par value per share, of the Trust.
"Constituent Person" shall have the meaning set forth in subsection
(e) of subparagraph (7) of paragraph B.
"Conversion Price" shall mean the conversion price per Common Share
for which the Series G Preferred Shares are convertible, as such Conversion
Price may be adjusted pursuant to subparagraph (7) hereof. The initial
conversion price shall be $585.80 (equivalent to a conversion rate of 4.268
Common Shares for each Series G Preferred Share and a conversion price of $58.58
per Depositary Share, which is equivalent to a conversion rate of .4268 Common
Shares for each Depositary Share).
"Current Market Price" of publicly traded common shares or any other
class of shares of beneficial interest or other security of the Trust or any
other issuer for any day shall mean the last reported sales price, regular way
on such day, or, if no sale takes place on such
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day, the average of the reported closing bid and asked prices on such day,
regular way, in either case as reported on the New York Stock Exchange ("NYSE")
or, if such security is not listed or admitted for trading on the NYSE, on the
principal national securities exchange on which such security is listed or
admitted for trading or, if not listed or admitted for trading on any national
securities exchange, on the NASDAQ National Market or, if such security is not
quoted on such NASDAQ National Market, the average of the closing bid and asked
prices on such day in the over-the-counter market as reported by NASDAQ or, if
bid and asked prices for such security on such day shall not have been reported
through NASDAQ, the average of the bid and asked prices on such day as furnished
by any NYSE member firm regularly making a market in such security selected for
such purpose by the Chief Executive Officer or the Board of Trustees.
"Depositary" means Bank Boston, N.A., or such other agent or agents of
the Trust as may be designated by the Board of Trustees or their designee as the
depositary for the Series G Preferred Shares.
"Depositary Receipts" shall mean the receipts issued by the Trust
evidencing the Depositary Shares.
"Depositary Shares" shall have the meaning set forth in subsection (c)
of subparagraph (7) of paragraph B.
"Depositary Shares Redemption Date" shall have the meaning set forth
in subsection (d) of subparagraph (5) of paragraph B hereof.
"Distribution Payment Date" shall have the meaning set forth in
subparagraph (3) of paragraph B.
"Distribution Period" shall have the meaning set forth in subparagraph
(3) of paragraph B.
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share during the five (5) consecutive Trading Days selected
by the Trust commencing not more than 20 Trading Days before, and ending not
later than, the earlier of the day in question and the day before the "ex date"
with respect to the issuance or distribution requiring such computation. The
term "ex date" when used with respect to any issuance or distribution, means the
first day on which the Common Shares trades regular way, without the right to
receive such issuance or distribution, on the exchange or in the market, as the
case may be, used to determine that day's Current Market Price.
"Issue Date" shall mean the first date on which Depositary Shares
representing Series G Preferred Shares are issued and sold.
"Junior Shares" shall have the meaning set forth in subparagraph (2)
of paragraph B.
"Non-Electing Share" shall have the meaning set forth in subsection
(e) of subparagraph (7) of paragraph B.
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"Parity Shares" shall have the meaning set forth in subparagraph (2)
of paragraph B.
"Person" shall mean an individual, corporation, partnership, estate,
trust (including a trust qualified under Section 401(a) or 501(c)(17) of the
Code), a portion of a trust permanently set aside for or to be used exclusively
for the purposes described in Section 642(c) of the Code, association, private
foundation within the meaning of Section 509(a) of the Code, joint stock company
or other entity, and also includes a group as that term is used for purposes of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended; but does
not include an underwriter which participates in a public offering of the Series
G Preferred Shares provided that the ownership of Series G Preferred Shares by
such Underwriter would not result in the Trust being "closely held" within the
meaning of Section 856(h) of the Code, or would otherwise result in the Trust
failing to qualify as a REIT.
"Preferred Shares" shall mean preferred shares of beneficial interest,
$.01 par value per share, including Series A Preferred Shares, Series B
Preferred Shares, Series C Preferred Shares, Series D Preferred Shares, Series E
Preferred Shares, Series F Preferred Shares (each as defined below) and Series G
Preferred Shares.
"Record Date" shall have the meaning set forth in subparagraph (3) of
paragraph B.
"REIT" shall mean a Real Estate Investment Trust under Section 856 of
the Code.
"Securities" shall have the meaning set forth in subsection (d)(iii)
of subparagraph (7) of paragraph B.
"Series G Preferred Shares" shall mean the Trust's 7 1/4% Series G
Convertible Cumulative Preferred Shares of Beneficial Interest, $.01 par value
per share, liquidation value $250.00 per share.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Trust in its accounting ledgers
of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of distributions by the Board of Trustees, the allocation of funds
to be so paid on any series or class of shares of beneficial interest; provided,
however, that if any funds for any class or series of Junior Shares or any class
or series of shares of beneficial interest ranking on a parity with the Series G
Preferred Shares as to the payment of distributions are placed in a separate
account of the Trust or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Series G Preferred
Shares shall mean placing such funds in a separate account or delivering such
funds to a disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which such
securities are listed or admitted, or if not listed or admitted for trading on
any national securities exchange, on the NASDAQ National
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Market, or if such securities are not quoted on such NASDAQ National Market, in
the applicable securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in subsection (e) of
subparagraph (7) of paragraph B hereof.
"Transfer Agent" means Boston EquiServe Limited Partnership, or such
other agent or agents of the Trust as may be designated by the Board of Trustees
or their designee as the transfer agent for the Series G Preferred Shares.
B. Series G Preferred Shares
(1) Number. The maximum number of shares of the Series G Preferred
Shares shall be 1,150,000.
(2) Relative Seniority. In respect of rights to receive distributions
and to participate in distributions or payments in the event of any Liquidation,
dissolution or winding up of the Trust, the Series G Preferred Shares shall rank
pari passu with any other preferred shares of beneficial interest of the Trust
(the "Parity Shares"), including the 9 3/8% Series A Cumulative Redeemable
Preferred Shares of Beneficial Interest ($0.01 par value per share) (liquidation
value $25.00 per share) (the "Series A Preferred Shares"), the 9 1/8% Series B
Cumulative Redeemable Preferred Shares of Beneficial Interest ($0.01 par value
per share) (liquidation value $250.00 per share) (liquidation preference
equivalent to $25.00 per Depositary Share) (the "Series B Preferred Shares") and
the 9 1/8% Series C Cumulative Redeemable Preferred Shares of Beneficial
Interest ($.01 par value per share) (liquidation value $250.00 per share)
(liquidation preference equivalent to $25.00 per Depositary Share) (the Series C
Preferred Shares"), the 8.60% Series D Cumulative Redeemable Preferred Shares of
Beneficial Interest (($0.01 par value per share) (liquidation value $250.00 per
share) (liquidation preference equivalent to $25.00 per Depositary Share), (the
"Series D Preferred Shares"), the Series E Cumulative Convertible Preferred
Shares of Beneficial Interest ($0.01 par value per share) (liquidation value
$25.00 per share) (the "Series E Preferred Shares"), and the 9.65% Series F
Preferred Shares of Beneficial Interest ($0.01 par value per share) (liquidation
value $25.00 per share) (the "Series F Preferred Shares"), and will rank senior
to the Common Shares and any other class or series of shares of beneficial
interest of the Trust ranking, as to distributions and upon Liquidation, junior
(collectively, the "Junior Shares") to the Series A Preferred Shares, the Series
B Preferred Shares, the Series C Preferred Shares, the Series D Preferred
Shares, the Series E Preferred Shares, the Series F Preferred Shares or the
Series G Preferred Shares.
(3) Distributions. The holders of the then outstanding Series G
Preferred Shares shall be entitled to receive, when and as declared by the Board
of Trustees out of any funds legally available therefor, cumulative
distributions at the rate of $18.125 per share per year, payable in equal
amounts of $4.53125 per share quarterly in cash on the fifteenth day, or if not
a Business Day, the next succeeding Business Day, of January, April, July and
October in each year, beginning July 15, 1997 (each such day being hereinafter
called a "Distribution Payment Date" and each period ending on a Distribution
Payment Date being hereinafter called a "Distribution Period"), with respect to
each Distribution Period, to shareholders of record at the close of business on
such date as shall be fixed by the Board of Trustees at the time of
4
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declaration of the distribution (the "Record Date"), which shall not be less
than 10 nor more than 30 days preceding the Distribution Payment Date. The
amount of any distribution payable for the initial Distribution Period and for
any other Distribution Period shorter than a full Distribution Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day months.
Distributions on each Series G Preferred Share shall accrue and be cumulative
from and including the date of original issue thereof, whether or not (i)
distributions on such shares are earned or declared or (ii) on any Distribution
Payment Date there shall be funds legally available for the payment of
distributions. Distributions paid on the Series G Preferred Shares in an amount
less than the total amount of such distributions at the time accrued and payable
on such shares shall be allocated pro rata on a per share basis among all such
shares at the time outstanding.
The amount of any distributions accrued on any Series G Preferred
Shares at any Distribution Payment Date shall be the amount of any unpaid
distributions accumulated thereon through and during such Distribution Period,
to and including such Distribution Payment Date, whether or not earned or
declared, and the amount of distributions accrued on any Series G Preferred
Shares at any date other than a Distribution Payment Date shall be equal to the
sum of the amount of any unpaid distributions accumulated thereon, to and
including the last preceding Distribution Payment Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual distribution rate
of $18.125 for the period after such last preceding Distribution Payment Date to
and including the date as of which the calculation is made based on a 360-day
year of twelve 30-day months.
Except as provided in these Articles, the Series G Preferred Shares
shall not be entitled to participate in the earnings or assets of the Trust.
(4) Liquidation Rights.
(a) Upon the voluntary or involuntary dissolution, liquidation
or winding up of the Trust, the holders of the Series G
Preferred Shares then outstanding shall be entitled to
receive and to be paid out of the assets of the Trust
available for distribution to its shareholders, before any
payment or distribution shall be made on any Junior Shares,
the amount of $250.00 per Series G Preferred Share, plus
accrued and unpaid distributions thereon.
(b) After the payment to the holders of the Series G Preferred
Shares of the full preferential amounts provided for in this
paragraph B, the holders of the Series G Preferred Shares as
such shall have no right or claim to any of the remaining
assets of the Trust.
(c) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Trust, the amounts payable
with respect to the preference value of the Series G
Preferred Shares and any other shares of beneficial interest
of the Trust ranking as to any such distribution on a parity
with the Series G Preferred Shares are not paid in full, the
holders of the Series G Preferred Shares and of such other
shares will share ratably in any such distribution of
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assets of the Trust in proportion to the full respective
preference amounts to which they are entitled.
(d) Neither the sale of all or substantially all the property or
business of the Trust, nor the merger or consolidation of
the Trust into or with any other entity or the merger or
consolidation of any other entity into or with the Trust,
shall be deemed to be a dissolution, Liquidation or winding
up, voluntary or involuntary, for the purposes of this
paragraph B.
(5) Redemption at the Option of the Trust.
(a) The Series G Preferred Shares shall not be redeemable by the
Trust prior to September 15, 2002. On and after September
15, 2002 the Trust, at its option, may redeem the Series G
Preferred Shares, in whole or in part, as set forth herein,
subject to the provisions described below.
(b) On and after September 15, 2002, the Series G Preferred
Shares represented by Depositary Shares may be redeemed at
the option of the Trust, in whole or from time to time in
part, at the following redemption prices per Series G
Preferred Share and Depositary Share if redeemed during the
twelve-month period beginning September 15 of the year
indicated below, plus, in each case, all distributions
accrued and unpaid on the Series G Preferred Shares
represented by Depositary Shares up to the date of such
redemption, upon giving notice as provided below:
<TABLE>
<CAPTION>
Redemption Price Redemption Price
Per Series G Per Depositary
Year Preferred Share Preferred Share
--------------------- ---------------- ---------------
<S> <C> <C>
2002................. $259.0625 $25.90625
2003................. 257.25 25.725
2004................. 255.4375 25.54375
2005................. 253.625 25.3625
2006................. 251.8125 25.18125
2007 and thereafter.. 250.00 25.00
</TABLE>
(c) If fewer than all of the outstanding Depositary Shares are
to be redeemed, the shares to be redeemed will be determined
pro rata or by lot or in such other manner as prescribed by
the Trust's Board of Trustees. In the event that such
redemption is to be by lot, if as a result of such
redemption any holder of Series G Preferred Shares
represented by Depositary Shares would become a holder of in
excess of 5% of the lesser of the number or the value of the
total Series G Preferred Shares represented by Depositary
Shares outstanding because such holder's Depositary Shares
were not redeemed, or were only redeemed in part, then,
except in certain instances, the Trust will redeem the
requisite
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number of Series G Preferred Shares represented by
Depositary Shares of such shareholder such that he will not
hold in excess of 5% of the lesser of the number or the
value of the total Series G Preferred Shares represented by
Depositary Shares outstanding subsequent to such redemption.
In addition, the Company may redeem Series G Preferred
Shares in certain circumstances relating to the maintenance
of its ability to qualify as a REIT for Federal income tax
purposes.
(d) Notice of redemption will be mailed, not less than 30 nor
more than 60 days prior to the date fixed for redemption, to
each holder of record of Depositary Shares to be redeemed,
notifying such holder of the Trust's election to redeem such
shares, stating the date fixed for redemption thereof (the
"Depositary Shares Redemption Date"), the redemption price,
the number of shares to be redeemed (and, if fewer than all
the Depositary Shares are to be redeemed, the number of
shares to be redeemed from such holder) and the place(s)
where the Depositary Receipts are to be surrendered for
payment.
(e) On or after the Depositary Shares Redemption Date, each
holder of Depositary Shares to be redeemed must present and
surrender his Depositary Receipts to the Trust at the place
designated in such notice and thereupon the redemption price
of such shares will be paid to or on the order of the person
whose name appears on such Depositary Receipts as the owner
thereof and each surrendered will be canceled. In the event
that fewer than all the shares represented by any such
Depositary Receipt are to be redeemed, a new Depositary
Receipt will be issued representing the unredeemed shares.
From and after the Depositary Shares Redemption Date (unless
the Trust defaults in payment of the redemption price), all
distributions on the Depositary Shares designated for
redemption in such notice will cease to accrue and all
rights of the holders thereof, except the right to receive
the redemption price thereof (including all accrued and
unpaid distributions up to the Depositary Shares Redemption
Date), will cease and terminate and such shares will not
thereafter be transferred (except with the consent of the
Trust) on the Trust's books, and such shares shall not be
deemed to be outstanding for any purpose whatsoever. At its
election, the Trust, prior to the Depositary Shares
Redemption Date, may irrevocably deposit the redemption
price (including accrued and unpaid distributions) of the
Depositary Shares so called for redemption in trust for the
holders thereof with a bank or trust company, in which case
such notice to holders of the Depositary Shares to be
redeemed will (i) state the date of such deposit, (ii)
specify the office of such bank or trust company as the
place of payment of the redemption price and (iii) call upon
such holders to surrender the Depositary
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Receipts representing such shares at such place on or about
the date fixed in such redemption notice (which may not be
later than the Depositary Shares Redemption Date) against
payment of the redemption price (including all accrued and
unpaid distributions up to the Depositary Shares Redemption
Date). Any monies so deposited which remain unclaimed by the
holders of the Depositary Shares at the end of two years
after the Depositary Shares Redemption Date will be returned
by such bank or trust company to the Trust.
(f) Notwithstanding the foregoing, unless full cumulative
distributions on all outstanding Series G Preferred Shares
represented by Depositary Shares have been paid or declared
and a sum sufficient for the payment thereof set apart for
payment for all past distribution periods and the then
current distribution period, no Depositary Shares shall be
redeemed unless all outstanding Depositary Shares are
simultaneously redeemed; provided, however, that the
foregoing shall not prevent the purchase or acquisition of
Series G Preferred Shares represented by Depositary Shares
pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding Series G Preferred
Shares represented by Depositary Shares, and, unless full
cumulative distributions on all outstanding Series G
Preferred Shares represented by Depositary Shares have been
paid or declared and a sum sufficient for the payment
thereof set apart for payment for all past distribution
periods and the then current distribution period, the Trust
shall not purchase or otherwise acquire directly or
indirectly any Series G Preferred Shares represented by
Depositary Shares (except by conversion into or exchange for
shares of beneficial interest of the Trust ranking junior to
the Series G Preferred Shares represented by Depositary
Shares as to distribution rights and liquidation
preference).
(g) The Depositary Shares representing the Series G Preferred
Shares have no stated maturity date and will not be subject
to any sinking fund or mandatory redemption provisions.
(6) Shares to be Retired.
All Series G Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued Preferred Shares, without designation as to series.
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(7) Conversion.
Holders of Series G Preferred Shares shall have the right to
convert all or a portion of such shares into Common Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
subparagraph (7), a holder of Depositary Shares representing
Series G Preferred Shares shall have the right, at his or
her option, at any time to convert such shares into the
number of fully paid and non-assessable Common Shares
obtained by dividing the aggregate liquidation preference of
such shares by the Conversion Price (as in effect at the
time and on the date provided for in the last paragraph of
subsection (b) of this subparagraph (7)) by surrendering
such shares to be converted, such surrender to be made in
the manner provided in subsection (b) of this subparagraph
(7); provided, however, that the right to convert shares
called for redemption pursuant to subparagraph (5) shall
terminate at the close of business on the Depositary Shares
Redemption Date fixed for such redemption, unless the Trust
shall default in making payment of the Common Shares and any
cash payable upon such redemption under subparagraph (5)
hereof.
(b) In order to exercise the conversion right, the holder of
each Depositary Share representing a Series G Preferred
Share or each Series G Preferred Share to be converted shall
surrender the Depositary Receipt or certificate representing
such share, as the case may be, duly endorsed or assigned to
the Trust or in blank, at the office of the Depositary or
Transfer Agent, as the case may be, accompanied by written
notice to the Trust that the holder thereof elects to
convert such Depositary Share or Series G Preferred Share.
Unless the shares issuable on conversion are to be issued in
the same name as the name in which such Depositary Share or
Series G Preferred Shares is registered, each Depositary
Receipt or share surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory
to the Trust, duly executed by the holder or such holder's
duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory
to the Trust demonstrating that such taxes have been paid).
Holders of Series G Preferred Shares at the close of
business on a distribution payment record date shall be
entitled to receive the distribution payable on such shares
on the corresponding Distribution Payment Date
notwithstanding the conversion thereof following such
distribution payment record date and prior to such
Distribution Payment Date. However, Depositary Shares or
Series G Preferred Shares surrendered for conversion during
the
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period between the close of business on any distribution
payment record date and the opening of business on the
corresponding Distribution Payment Date (except shares
converted after the issuance of notice of redemption with
respect to a Depositary Shares Redemption Date during such
period or coinciding with such Distribution Payment Date,
such Depositary Shares or Series G Preferred Shares being
entitled to such distribution on the Distribution Payment
Date) must be accompanied by payment of an amount equal to
the distribution payable on such shares on such Distribution
Payment Date. A holder of Depositary Shares or Series G
Preferred Shares on a distribution payment record date who
(or whose transferees) tenders any such shares for
conversion into Common Shares on such Distribution Payment
Date will receive the distribution payable by the Trust on
such Depositary Shares or Series G Preferred Shares on such
date, and the converting holder need not include payment of
the amount of such distribution upon surrender of Depositary
Shares or Series G Preferred Shares for conversion. Except
as provided above, the Trust shall make no payment or
allowance for unpaid distributions, whether or not in
arrears, on converted shares or for distributions on the
Common Shares issued upon such conversion.
As promptly as practicable after the surrender of
certificates for Depositary Shares or Series G Preferred
Shares as aforesaid, the Trust shall issue and shall deliver
at such office to such holder, or on his or her written
order, a certificate or certificates for the number of full
Common Shares issuable upon the conversion of such shares in
accordance with the provisions of this subparagraph (7), and
any fractional interest in respect of a Common Share arising
upon such conversion shall be settled as provided in
subsection (c) of this subparagraph (7).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on
which the certificates for Series G Preferred Shares or
Depositary Receipts shall have been surrendered and such
notice (and if applicable, payment of an amount equal to the
distribution payable on such shares) received by the Trust
as aforesaid, and the person or persons in whose name or
names any certificate or certificates for Common Shares
shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares
represented thereby at such time on such date, and such
conversion shall be at the Conversion Price in effect at
such time and on such date unless the share transfer books
of the Trust shall be closed on that date, in which event
such person or persons shall be deemed to have become such
holder or holders of record at the close of business on the
next
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succeeding day on which such share transfer books are open,
but such conversion shall be at the Conversion Price in
effect on the date on which such shares have been
surrendered and such notice received by the Trust.
(c) Fractional shares of scrip representing fractions of Series
G Preferred Shares shall be issued upon conversion of
Depositary Shares. No fractional shares of scrip
representing fractions of Common Shares shall be issued upon
conversion of the Series G Preferred Shares. Instead of any
fractional interest in a Common Share that would otherwise
be deliverable upon the conversion of a share of Series G
Preferred Shares, the Trust shall pay to the holder of such
share an amount in cash based upon the Current Market Price
of Common Shares on the Trading Day immediately preceding
the date of conversion. If more than one Series G Preferred
Share or one Depositary Share, as the case may be, shall be
surrendered for conversion at one time by the same
holder, the number of full Common Shares issuable upon
conversion thereof shall be computed on the basis of the
aggregate number of Series G Preferred Shares or Depositary
Shares, as the case may be, so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a
distribution or make a distribution on its shares of
beneficial interest in Common Shares, (B) subdivide its
outstanding Common Shares into a greater number of
shares, (C) combine its outstanding Common Shares into
a smaller number of shares or (D) issue any shares of
beneficial interest by reclassification of its Common
Shares, the Conversion Price in effect at the opening
of business on the day following the date fixed for the
determination of shareholders entitled to receive such
distribution or at the opening of business on the day
following the day on which such subdivision,
combination or reclassification becomes effective, as
the case may be, shall be adjusted so that the holder
of any Series G Preferred Shares thereafter surrendered
for conversion shall be entitled to receive the number
of Common Shares that such holder would have owned or
have been entitled to receive after the happening of
any of the events described above had such shares been
converted immediately prior to the record date in the
case of a distribution or the effective date in the
case of a subdivision, combination or reclassification.
An adjustment made pursuant to this subsection (i)
shall become effective immediately after the opening of
11
<PAGE>
business on the day next following the record date
(except as provided in paragraph (h) below) in the
case of a distribution and shall become effective
immediately after the opening of business on the day
next following the effective date in the case of a
subdivision, combination or reclassification.
(ii) If the Trust shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares
entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe
for or purchase Common Shares at a price per share
less than the Fair Market Value per Common Shares on
the record date for the determination of shareholders
entitled to receive such rights, options or warrants,
then the Conversion Price in effect at the opening of
business on the day next following such record date
shall be adjusted to equal the price determined by
multiplying (I) the Conversion Price in effect
immediately prior to the opening of business on the
day following the date fixed for such determination by
(II) a fraction, the numerator of which shall be the
sum of (A) the number of Common Shares outstanding on
the close of business on the date fixed for such
determination and (B) the number of shares that the
aggregate proceeds to the Trust from the exercise of
such rights, options or warrants for Common Shares
would purchase at such Fair Market Value, and the
denominator of which shall be the sum of (A) the
number of Common Shares outstanding on the close of
business on the date fixed for such determination and
(B) the number of additional Common Shares offered for
subscription or purchase pursuant to such rights,
options or warrants. Such adjustment shall become
effective immediately after the opening of business on
the day next following such record date (except as
provided in subsection (h) below). In determining
whether any rights, options or warrants entitle the
holders of Common Shares to subscribe for or purchase
Common Shares at less than the Fair Market Value,
there shall be taken into account any consideration
received by the Trust upon issuance and upon exercise
of such rights, options or warrants, the value of such
consideration, if other than cash, to be determined by
the Chief Executive Officer or the Board of Trustees.
(iii) If the Trust shall distribute to all holders of its
Common Shares any shares of beneficial interest of the
Trust (other than Common Shares) or evidence of its
indebtedness or assets (excluding cash distributions
paid out of the total
12
<PAGE>
equity applicable to Common Shares, including
revaluation equity, less the amount of stated capital
attributable to Common Shares, determined on the basis
of the most recent annual consolidated cost basis and
current value basis and quarterly consolidated balance
sheets of the Trust and its consolidated subsidiaries
available at the time of the declaration of the
distribution) or rights or warrants to subscribe for or
purchase any of its securities (excluding those rights
and warrants issued to all holders of Common Shares
entitling them for a period expiring within 45 days
after the record date referred to in subsection (ii)
above to subscribe for or purchase Common Shares, which
rights and warrants are referred to in and treated
under subsection (ii) above) (any of the foregoing
being hereinafter in this subsection (iii) called the
"Securities"), then in each case the Conversion Price
shall be adjusted so that it shall equal the price
determined by multiplying (I) the Conversion Price in
effect immediately prior to the close of business on
the date fixed for the determination of shareholders
entitled to receive such distribution by (II) a
fraction, the numerator of which shall be the Fair
Market Value per the Common Share on the record date
mentioned below less the then fair market value (as
determined by the Chief Executive Officer or the Board
of Trustees, whose determination shall be conclusive)
of the portion of the shares of beneficial interest or
assets or evidences of indebtedness so distributed or
of such rights or warrants applicable to one Common
Share, and the denominator of which shall be the Fair
Market Value per Common Share on the record date
mentioned below. Such adjustment shall become effective
immediately at the opening of business on the Business
Day next following (except as provided in subsection
(h) below) the record date for the determination of
shareholders entitled to receive such distribution. For
the purposes of this subsection (iii), the distribution
of a Security, which is distributed not only to the
holders of the Common Shares on the date fixed for the
determination of shareholders entitled to such
distribution of such Security, but also is distributed
with each Common Share delivered to a Person converting
a Series G Preferred Share after such determination
date, shall not require an adjustment of the Conversion
Price pursuant to this subsection (iii); provided that
on the date, if any, on which a person converting a
Series G Preferred Share would no longer be entitled to
receive such Security with a Common Share (other than
as a result of the termination of all such Securities),
a distribution of such Securities shall be
13
<PAGE>
deemed to have occurred, and the Conversion Price shall
be adjusted as provided in this subsection (iii) (and
such day shall be deemed to be "the date fixed for the
determination of the shareholders entitled to receive
such distribution" and "the record date" within the
meaning of the two preceding sentences).
(iv) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative
increase or decrease of at least 1% in such price;
provided, however, that any adjustments that by reason
of this subsection (iv) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment until made; and provided,
further, that any adjustment shall be required and made
in accordance with the provisions of this subparagraph
(7) (other than this subsection (iv)) not later than
such time as may be required in order to preserve the
tax-free nature of a distribution to the holders of
Common Shares. Notwithstanding any other provisions of
subparagraph (7), the Trust shall not be required to
make any adjustment of the Conversion Price for the
issuance of any Common Shares pursuant to any plan
providing for the reinvestment of distributions or
interest payable on securities of the Trust and the
investment of additional optional amounts in Common
Shares under such plan. All calculations under this
subparagraph (7) shall be made to the nearest cent with
($.005 being rounded upward) or to the nearest one-
tenth of a share (with .05 of a share being rounded
upward), as the case may be. Anything in this
subsection (d) to the contrary notwithstanding, the
Trust shall be entitled, to the extent permitted by
law, to make such reductions in the Conversion Price,
in addition to those required by this subsection (d),
as it in its discretion shall determine to be advisable
in order that any stock distributions, subdivision of
shares, reclassification or combination of shares,
distribution of rights, options or warrants to purchase
stock or securities, or a distribution of other assets
(other than cash distributions) hereafter made by the
Trust to its stockholders shall not be taxable.
(e) If the Trust shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share
exchange, self tender offer for all or substantially all of
the Common Shares, sale of all or substantially all of the
Trust's assets or recapitalization of the Common Shares and
excluding any transaction as to which subsection (d)(i) of
this subparagraph (7) applied) (each of the foregoing being
referred to herein as a "Transaction"), in each
14
<PAGE>
case as a result of which Common Shares shall be converted
into the right to receive shares, stock, securities or other
property (including cash or any combination thereof), each
Series G Preferred Share which is not converted into the
right to receive shares, stock, securities or other property
in connection with such Transaction shall thereafter be
convertible into the kind and amount of shares, stock,
securities and other property (including cash or any
combination thereof) receivable upon the consummation of
such Transaction by a holder of that number of Common Shares
into which one Series G Preferred Share was convertible
immediately prior to such Transaction, assuming such holder
of Common Share (i) is not a Person with which the Trust
consolidated or into which the Trust merged or which merged
into the Trust or to which such sale or transfer was made,
as the case may be (a "Constituent Person"), or an affiliate
of a Constituent Person and (ii) failed to exercise his or
her rights of the election, if any, as to the kind or amount
of shares, stock, securities and other property (including
cash) receivable upon such Transaction (each a "Non-Electing
Share") (provided that if the kind or amount of shares,
stock, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share
shall be deemed to be the kind and amount of receivable per
share by a plurality of the non-electing shares). The Trust
shall not be a party to any Transaction unless the terms of
such Transaction are consistent with the provisions of this
subsection (e), and it shall not consent or agree to the
occurrence of any Transaction until the Trust has entered
into an agreement with the successor or purchasing entity,
as the case may be, for the benefit of the holders of the
Series G Preferred Shares that will contain provisions
enabling the holders of the Series G Preferred Shares that
remain outstanding after such Transaction to convert into
the consideration received by holders of Common Shares at
the Conversion Price in effect immediately prior to such
Transaction. The provisions of this subsection (e) shall
similarly apply to successive Transactions.
(f) If:
(i) the Trust shall declare a distribution on the Common
Shares (other than in cash out of the total equity
applicable to Common Shares, including revaluation
equity, less the amount of stated capital attributable
to Common Shares, determined on the basis of the most
recent annual consolidated cost basis and current value
basis and quarterly consolidated balance sheets of the
Trust and its consolidated subsidiaries available at
the time of the declaration of the distribution); or
15
<PAGE>
(ii) the Trust shall authorize the granting to the holders
of the Common Shares of rights or warrants to
subscribe for or purchase any shares of any class or
any other rights or warrants; or
(iii) there shall be any reclassifications of the Common
Shares (other than an event to which subsection
(d)(i) of this subparagraph (7) applied) or any
consolidation or merger to which the Trust is a party
and for which approval of any shareholders of the
Trust is required, or a statutory share exchange
involving the conversion or exchange of Common Shares
into securities or other property, or a self tender
offer by the Trust for all or substantially all of
its outstanding Common Shares, or the sale or
transfer of all or substantially all of the assets of
the Trust as an entity and for which approval of any
stockholder of the Trust is required; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Trust,
then the Trust shall cause to be filed with the Transfer
Agent and shall cause to be mailed to the holders of the
Series G Preferred Shares at their addresses as shown on the
share records of the Trust, as promptly as possible, but at
least 15 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record
is to be taken for the purpose of such distribution or
rights or warrants, or, if a record is not to be taken, the
date as of which the holders of Common Shares of record to
be entitled to such distribution or rights or warrants are
to be determined or (B) the date on which such
reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or
winding up is expected to become effective, and the date as
of which it is expected that holders of Common Shares of
record shall be entitled to exchange their Common Shares for
securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, statutory share
exchange, sale, transfer, liquidation, dissolution or
winding up. Failure to give or receive such notice or any
defect therein shall not affect the legality or validity of
the proceedings described in this subparagraph (7).
(g) Whenever the Conversion Price is adjusted as herein
provided, the Trust shall promptly file with the Transfer
Agent and the Depositary an officer's certificate setting
forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence
of the correctness of such adjustment absent
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<PAGE>
manifest error. Promptly after delivery of such certificate,
the Trust shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price
and the effective date such adjustment becomes effective and
shall mail such notice of such adjustment of the Conversion
Price to the holder of each Series G Preferred Share at such
holder's last address as shown on the share records of the
Trust.
(h) In any case in which subsection (d) of this subparagraph (7)
provides that an adjustment shall become effective on the
date next following the record date for an event, the Trust
may defer until the occurrence of such event (A) issuing to
the holder of any Series G Preferred Shares converted after
such record date and before the occurrence of such event the
additional Common Shares issuable upon such conversion by
reason of the adjustment required by such event over and
above the Common Shares issuable upon such conversion before
giving effect to such adjustment and (B) fractionalizing any
Series G Preferred Share and/or paying to such holder any
amount of cash in lieu of any fraction pursuant to
subsection (c) of this subparagraph (7).
(i) There shall be no adjustment of the Conversion Price in case
of the issuance of any shares of beneficial interest of the
Trust in a reorganization, acquisition or other similar
transaction except as specifically set forth in this
subparagraph (7). If any action or transaction would
require adjustment of the Conversion Price pursuant to more
than one subsection of this subparagraph (7), only one
adjustment shall be made, and such adjustment shall be the
amount of adjustment that has the highest absolute value.
(j) If the Trust shall take any action affecting the Common
Shares, other than action described in this subparagraph
(7), that in the opinion of the Board of Trustees would
materially adversely affect the conversion rights of the
holders of the Series G Preferred Shares, the Conversion
Price for the Series G Preferred Shares may be adjusted, to
the extent permitted by law, in such manner, if any, and at
such time, as the Board of Trustees, in its sole discretion,
may determine to be equitable in the circumstances.
(k) The Trust covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued Common Shares, for
the purpose of effecting conversion of the Series G
Preferred Shares, the full number of Common Shares
deliverable upon the conversion of all outstanding Series G
Preferred Shares not theretofore converted. For purposes of
this subsection (k), the number of Common Shares that shall
be deliverable upon the conversion of all outstanding Series
G Preferred Shares shall be computed as if at
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<PAGE>
the time of computation all such outstanding shares were
held by a single holder.
The Trust covenants that any Common Shares issued upon
conversion of the Series G Preferred Shares shall be validly
issued, fully paid and non-assessable. Before taking any
action that would cause an adjustment reducing the
Conversion Price below the then-par value of the Common
Shares deliverable upon conversion of the Series G Preferred
Shares, the Trust will take any action that, in the opinion
of its counsel, may be necessary in order that the Trust may
validly and legally issue fully paid and nonassessable
Common Shares at such adjusted Conversion Price.
The Trust shall endeavor to list the Common Shares required
to be delivered upon conversion of the Series G Preferred
Shares, prior to such delivery, upon each national
securities exchange, if any, upon which the outstanding
Common Shares are listed at the time of such delivery.
Prior to the delivery of any securities that the Trust shall
be obligated to deliver upon conversion of the Series G
Preferred Shares, the Trust shall endeavor to comply with
all federal and state laws and regulations thereunder
requiring the registration of such securities with, or any
approval of or consent to the delivery thereof by any
governmental authority.
(l) The Trust will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or
delivery of Common Shares or other securities or property on
conversion of the Series G Preferred Shares pursuant hereto;
provided, however, that the Trust shall not be required to
pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Shares or other
securities or property in a name other than that of tile
holder of the Series G Preferred Shares to be converted, and
no such issue or delivery shall be made unless and until the
person requesting such issue or delivery has paid to the
Trust the amount of any such tax or established, to the
reasonable satisfaction of the Trust, that such tax has been
paid.
(m) In addition to the foregoing adjustments, the Company will
be permitted to make such reductions in the Conversion Price
as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of
stock or stock rights will not be taxable to the holders of
the Common Shares.
(n) The Conversion Price as it relates to the Depositary Shares
shall be adjusted in a similar manner to that with respect
to the
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<PAGE>
Conversion Price for the Series G Preferred Shares if such
Conversion Price is adjusted, as set forth in this
subparagraph (7).
In addition to the foregoing adjustments, the Company will
be permitted to make such reductions in the Conversion Price
as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of
stock or stock rights will not be taxable to the holders of
the Common Shares.
(8) Voting Rights. Except as required by law, the holders of the
Series G Preferred Shares shall not be entitled to vote at any meeting of the
shareholders for election of trustees or for any other purposes or otherwise to
participate in any action taken by the Trust or the shareholders thereof, or to
receive notice of any meeting of shareholders.
(a) In any matter in which the Series G Preferred Shares are
entitled to vote (as expressly provided herein or as may be
required by law), including any action by written consent,
each Series G Preferred Share shall be entitled to 10 votes,
each of which 10 votes may be directed separately by the
holder thereof (or by any proxy or proxies of such holder).
With respect to each Series G Preferred Share, the holder
thereof may designate up to 10 proxies, with each such proxy
having the right to vote a whole number of votes (totaling
10 votes per Series G Preferred Share).
(b) Whenever distributions on any Series G Preferred Shares
shall be in arrears for six or more quarterly periods, the
holders of the Depositary Shares representing such Series G
Preferred Shares, voting separately as a class with all
other series of Preferred Shares upon which like voting
rights have been conferred and are exercisable, will be
entitled to vote for the election of two additional Trustees
of the Trust at a special meeting called by the holders of
record of at least ten percent (10%) of any series of
Preferred Shares 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 distributions
accumulated on such Series G Preferred Shares for the past
distribution periods and the then current distribution
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 Trustees of the Trust will
be increased by two Trustees.
(c) So long as any Series G Preferred Shares remain outstanding,
the Trust will not, without the affirmative vote or consent
of the holders of at least two-thirds of the Series G
Preferred Shares outstanding at the time, given in person or
by proxy, either in writing or at a meeting (such series
voting separately as a class),
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<PAGE>
(i) authorize or create, or increase the authorized or
issued amount of, any class or series of shares of
beneficial interest ranking prior to the Series G Preferred
Shares with respect to the payment of distributions or the
distribution of assets upon liquidation, dissolution or
winding up or reclassify any authorized shares of beneficial
interest of the Trust into 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 Trust's
Declaration of Trust or the Articles Supplementary for the
Series G Preferred Shares whether by merger, consolidation
or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of
the Series G Preferred Shares or the holders thereof;
provided, however, with respect to the occurrence of any of
the Events set forth in (ii) above, so long as the Series G
Preferred Shares (or shares into which the Series G
Preferred Shares have been converted in any successor entity
to the Trust) remain outstanding with the terms thereof
materially unchanged, taking into account that upon the
occurrence of an Event, the Trust may not be the surviving
entity, the occurrence of any such Event shall not be deemed
to materially and adversely affect such rights, preferences,
privileges or voting power of holders of Series G Preferred
Shares and provided further that (x) any increase in the
amount of the authorized Preferred Shares or the creation or
issuance of any other Series G Preferred Shares, or (y) any
increase in the amount of authorized Series G Preferred
Shares or any other Preferred Shares, in each case ranking
on a parity with or junior to the Series G Preferred Shares
with respect to payment of distributions 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 Series G Preferred Shares shall have been
redeemed or called for redemption and sufficient funds shall
have been deposited in trust to effect such redemption.
20
<PAGE>
C. Articles VII of the Trust's Declaration of Trust shall be supplemented
by adding the following new section 7.26.
7.27 Special Rules for Series G Preferred Shares
A. Certain Definitions.
For purposes of this section 7.26 the following terms shall have the
following meanings:
"Closing Date of the Series G Preferred Shares Offering" shall mean
the time and date of payment for and delivery of Series G Preferred Shares
issued pursuant to the Trust's effective registration statement for such Series
G Preferred Shares filed under the Securities Act of 1933, as amended.
"Special Triggering Event" shall mean either (i) the redemption or
purchase by the Trust of all or a portion of the outstanding shares of
beneficial interest in the Trust, or (ii) a change in the value of the Series G
Preferred Shares relative to any other class of beneficial interest in the
Trust.
B. Special Triggering Event. If during the period commencing on the
Closing Date of the Series G Preferred Shares Offering and prior to the
Restriction Termination Date, a Special Triggering Event (if effective) or other
event or occurrence (if effective) would result in any violation of section
7.2(a) of the Trust's Declaration of Trust (or would result in the Trust being
"closely held" within the meaning of Section 856(h) of the Code or would
otherwise cause the Trust to fail to qualify as a REIT), then (i) the number of
Series G Preferred Shares (rounded up to the nearest whole share) that would
(but for this section 7.27) cause any Person to Beneficially Own either Series G
Preferred Shares, or to Beneficially own Series G Preferred Shares and any other
shares of beneficial interest in the Trust, in violation of section 7.2(a) (or
would result in the Trust being "closely held" or otherwise fail to qualify as a
REIT) shall constitute "Excess Shares" and shall be treated as provided in
Article VII. Such designation and treatment shall be effective as of the close
of business on the Business Day prior to the date of the Special Triggering
Event or other event or occurrence.
C. Ambiguity. In the case of an ambiguity in the application of any of
the provisions of this section 7.27, including any definition contained in
paragraph A, the Board of Trustees shall have the power to determine the
application of this section 7.27 with respect to any situation based on the
facts known to it (subject, however, to the provisions of Section 7.2(a)).
3. Exclusion of Other Rights.
Except as may otherwise be required by law, the Series G Preferred Shares
shall not have any voting powers, preferences and relative, participating,
optional or other special rights, other than those specifically set forth in
these Articles Supplementary (as such Articles Supplementary may be amended from
time to time) and in the Declaration of Trust. The Series G Preferred Shares
shall have no preemptive or subscription rights.
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4. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
5. Severability of Provisions.
If any voting powers, preferences and relative, participating, optional and
other special rights of the Series G Preferred Shares and qualifications,
limitations and restrictions thereof set forth in these Articles Supplementary
(as such Articles Supplementary may be amended from time to time) is invalid,
unlawful or incapable of being enforced by reason of any rule of law or public
policy, all other voting powers, preferences and relative, participating,
optional and other special rights of Series G Preferred Shares and
qualifications, limitations and restrictions thereof set forth in these Articles
Supplementary (as so amended) which can be given effect without the invalid,
unlawful or unenforceable voting powers, preferences and relative,
participating, optional or other special rights of Series G Preferred Shares and
qualifications, limitations and restrictions thereof herein set forth shall be
deemed dependent upon any other such voting powers, preferences and relative,
participating, optional or other special right of Series G Preferred Shares and
qualifications, limitations and restrictions thereof unless so expressed herein.
6. These Articles Supplementary of the Declaration of Trust were duly adopted
by the Board of Trustees of the Trust. Shareholder action was not required.
* * *
22
<PAGE>
IN WITNESS WHEREOF, I hereby certify that I am a Senior Vice President
of Equity Residential Properties Trust (the "Trust") and that as such, I am
authorized to execute and file with the Maryland State Department of Assessments
and Taxation these Articles Supplementary to the Second Amended and Restated
Declaration of Trust (the "Articles Supplementary") on behalf of the Trust and I
further certify on behalf of the Trust that these Articles Supplementary were
authorized by the Board of Trustees at a meeting held on September 12, 1997 and
are still in full force and effect as of the date hereof. I further certify
that my signature to this document is my free act and deed, that to the best of
my knowledge, information and belief, the matters and facts set forth herein are
true in all material respects and that this statement is made under penalty of
perjury.
EQUITY RESIDENTIAL PROPERTIES TRUST
-----------------------------------------
Michael J. McHugh, Senior Vice President,
Chief Accounting Officer and Treasurer
The undersigned, Bruce C. Strohm, the Secretary of the Trust, hereby
certifies that Michael J. McHugh is a Senior Vice President of the Trust and
that the signature set forth above is his genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____ day
of September, 1997.
-----------------------------------------
Bruce C. Strohm, Secretary
23
<PAGE>
FORM OF
TEMPORARY RECEIPT-EXCHANGEABLE FOR DEFINITIVE ENGRAVED RECEIPT
WHEN READY FOR DELIVERY
[LOGO]
NUMBER
GT
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING A 1/10 FRACTIONAL INTEREST
IN A 7 1/4% SERIES G CONVERTIBLE CUMULATIVE
PREFERRED SHARE OF BENEFICIAL INTEREST,
PAR VALUE $.01 PER SHARE
(LIQUIDATION PREFERENCE EQUAL TO
$25.00 PER DEPOSITARY SHARE)
[LOGO OF EQUITY RESIDENTIAL PROPERTIES TRUST]
ORGANIZED UNDER THE LAWS OF THE STATE OF MARYLAND
THIS CERTIFICATE IS TRANSFERABLE
IN BOSTON, MA OR NEW YORK, NY
CUSIP 29476L 85 9
SEE REVERSE FOR CERTAIN
RESTRICTIONS AND DEFINITIONS
BankBoston, N.A., as Depositary (the "Depositary"), hereby certifies that
is the registered owner of Depositary Shares
("Depositary Shares"), each Depositary Share representing a 1/10 fractional
interest in a 7 1/4% Series G Convertible Cumulative Preferred Share of
Beneficial Interest, par value $.01 per share, of Equity Residential Properties
Trust, a real estate investment trust organized under the laws of the State of
Maryland (the "Trust"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of September 24, 1997
(the "Deposit Agreement"), among the Trust, the Depositary and the holders from
time to time of Receipts for Depositary Shares. By accepting this Receipt, the
holder hereof becomes a party to and agrees to be bound by all terms and
conditions of the Deposit Agreement. This Receipt shall not be valid or
obligatory for any purpose or entitled to any benefits under the Depositary
Agreement unless it shall have been executed by the Depositary by the manual
signature of a duly authorized signatory.
Dated:
/S/ Bruce C. Strohm /S/ Douglas Crocker II
SECRETARY PRESIDENT
BANKBOSTON, N.A.
Depositary, Transfer Agent and Registrar
/S/
Authorized Signature
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EQUITY RESIDENTIAL PROPERTIES TRUST
THE DECLARATION OF TRUST ON FILE IN THE OFFICE OF THE STATE DEPARTMENT OF
ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND SETS FORTH A FULL STATEMENT OF
(A) ALL OF THE DESIGNATIONS, PREFERENCES, AND OTHER RIGHTS, VOTING POWERS,
RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND TERMS AND
CONDITIONS OF REDEMPTION, AND OTHER RELATIVE RIGHTS OF THE SHARES OF EACH CLASS
OF SHARES AUTHORIZED TO BE ISSUED AND (B) THE AUTHORITY OF THE BOARD OF TRUSTEES
TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE DIFFERENCES IN RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THEY HAVE
BEEN SET AND THE AUTHORITY OF THE BOARD OF TRUSTEES TO SET THE RELATIVE RIGHTS
AND PREFERENCES OF SERIES OF PREFERRED SHARES OF BENEFICIAL INTEREST. THE
DEPOSITARY SHARES REPRESENTING SERIES G PREFERRED SHARES OF BENEFICIAL INTEREST
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON OWNERSHIP FOR THE
PURPOSE OF FACILITATING THE TRUST'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE
INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EXCEPT AS
OTHERWISE PROVIDED PURSUANT TO THE DECLARATION OF TRUST OF THE TRUST, NO PERSON
MAY DIRECTLY OR BENEFICIALLY OWN COMMON SHARES, PREFERRED SHARES AND/OR
DEPOSITARY SHARES REPRESENTING SERIES G PREFERRED SHARES IN EXCESS OF THAT
NUMBER OF SHARES WHICH EQUALS THE LESSER OF 5% (OR SUCH GREATER PERCENTAGE AS
MAY BE DETERMINED BY THE BOARD OF TRUSTEES OF THE TRUST) OF (A) THE NUMBER OF
OUTSTANDING EQUITY SHARES OF THE TRUST AND (B) THE VALUE OF OUTSTANDING EQUITY
SHARES OF THE TRUST. ANY PERSON WHO BENEFICIALLY OWNS OR ATTEMPTS OR PROPOSES TO
BENEFICIALLY OWN COMMON SHARES, PREFERRED SHARES AND/OR DEPOSITARY SHARES
REPRESENTING SERIES G PREFERRED SHARES IN EXCESS OF THE ABOVE LIMITATIONS MUST
NOTIFY THE TRUST IN WRITING AT LEAST 15 DAYS PRIOR TO SUCH PROPOSED OR ATTEMPTED
TRANSFER OR IMMEDIATELY UPON SUCH BENEFICIAL OWNERSHIP RESULTING OTHER THAN FROM
SUCH TRANSFER. IF THE RESTRICTIONS ON OWNERSHIP ARE VIOLATED, THE SERIES G
PREFERRED SHARES OF BENEFICIAL INTEREST REPRESENTED BY THE DEPOSITARY SHARES
REPRESENTED HEREBY WILL BE DESIGNATED AND TREATED AS EXCESS SHARES WHICH WILL BE
HELD IN A SPECIAL TRUST BY THE TRUST. IN SUCH EVENT, THE NUMBER OF DEPOSITARY
SHARES REPRESENTED HEREBY EQUAL TO THE DEPOSITED SERIES G PREFERRED SHARES
CONSTITUTING EXCESS SHARES SHALL BE CANCELED BY THE DEPOSITARY. ALL ITALICIZED
TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE DECLARATION OF TRUST OF
THE TRUST. THE TRUST WILL FURNISH A COPY OF THE DECLARATION OF TRUST TO ANY
HOLDER OF SHARES WITHOUT CHARGE ON WRITTEN REQUEST TO THE TRUST AT ITS PRINCIPAL
PLACE OF BUSINESS. THE TRUST WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED
HOLDER OF A RECEIPT OF A DEPOSITARY SHARE WHO SO REQUESTS A COPY OF THE DEPOSIT
AGREEMENT AND A COPY OF THE DECLARATION OF TRUST WITH RESPECT TO THE 7 1/4%
SERIES G CONVERTIBLE CUMULATIVE PREFERRED SHARES OF THE TRUST. ANY SUCH REQUEST
IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT --
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(Cust) (Minor)
TEN ENT--as tenants by the entireties under Uniform Gifts to Minors Act
JT TEN--as tenants with the right ---------------------------------
of survivorship and not as (State)
tenants in common UNIF TRF MIN ACT --
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(Cust) (Minor)
(until age ) under Uniform
Transfers to Minors Act
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(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For Value Received, hereby sell, assign and transfer unto
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Please insert social security or other
identifying number of assignee
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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Depositary Shares
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represented by the within Receipt, and do hereby irrevocably constitute and
appoint
Attorney
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to transfer the said Depositary Shares on the books of the within named Trust
with full power of substitution in the premises.
Dated
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Signature Guarantee
