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
Mid-America Apartment Communities, Inc.
(Exact name of registrant as specified in its charter)
Tennessee 62-154819
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State of Incorporation or Organization (I.R.S. Employer
Identification No.)
6584 Poplar Avenue, Suite 340, Memphis, Tennessee 38138
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(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon filing securities and is to become
pursuant to General Instruction A(c)(1) effective simultaneously with
check the following box. ____ the effectiveness of a concurrent
registration statement under the
Securities Act of 1933 pursuant
to General Instruction A(c)(2)
please check the following box. ____
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of Class to be so registered which each class is to be registered
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___% Series B Cumulative Preferred Stock, New York Stock Exchange
par value $.01 per share
(liquidation value $25 per share)
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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(title of class)
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
A description of the __% Series B Cumulative Preferred
Stock, par value $.01 per share of the Registrant is contained in
a Rule 424(b) Preliminary Prospectus Supplement supplementing the
Registrant's Registration Statement on Form S-3, No. 333-34775,
which became effective on September 9, 1997, which Preliminary
Prospectus Supplement shall be deemed to be incorporated herein
by reference for all purposes.
Item 2. Exhibits
The securities described herein are to be registered 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 the New York
Stock Exchange:
4.1 Form of Articles of Amendment to the Amended and
Restated Charter Establishing and Fixing the Rights and
Preferences of a Series of Shares of Preferred Stock.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
Mid-America Apartment Communities, Inc.
By: /s/ Simon R. C. Wadsworth
-----------------------------
Title: Chief Financial Officer
November 5, 1997
<PAGE>
EXHIBIT 4.1
MID-AMERICA APARTMENT COMMUNITIES, INC.
ARTICLES OF AMENDMENT TO THE AMENDED AND RESTATED CHARTER
DESIGNATING AND FIXING THE RIGHTS AND
PREFERENCES OF B SERIES OF SHARES OF PREFERRED STOCK
Mid-America Apartment Communities, Inc., a Tennessee
corporation (the "Company"), certifies to the Tennessee Secretary
of State that:
FIRST: Pursuant to the authority expressly vested in the
Board of Directors of the Company by Section 6 of the Company's
Amended and Restated Charter (the "Charter") and Section 48-16-
102 of the Tennessee Code Annotated, the Board of Directors has,
by resolution, duly divided and classified 1,840,000 shares of
the preferred stock of the Company into a series designated %
Series B Cumulative Preferred Stock (the "Series B Preferred
Stock") and has provided for the issuance of the Series B
Preferred Stock.
SECOND: Section 6 is hereby amended by adding the following:
1. Designation and Number. A series of Preferred Stock,
designated the "% Series B Cumulative Preferred Stock" (the
"Series B Preferred"), is hereby established. The number of
shares of the Series B Preferred shall be up to 1,840,000.
2. Maturity. The Series B Preferred Stock has no stated
maturity and will not be subject to any sinking fund or
mandatory redemption.
3. Rank. The Series B Preferred Stock will, with respect to
dividend rights and rights upon liquidation, dissolution or
winding up of the Company, rank (i) senior to all classes or
series of Common Stock of the Company, and to all equity
securities ranking junior to the Series B Preferred Stock
with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Company; (ii) on a parity
with all equity securities issued by the Company, including
the Company's 9.5% Series A Cumulative Preferred Stock (the
"Series A Preferred Stock") the terms of which specifically
provide that such equity securities rank on a parity with
the Series B Preferred Stock with respect to dividend rights
or rights upon liquidation, dissolution or winding up of the
Company (the "Parity Preferred Stock"); and (iii) junior to
all existing and future indebtedness of the Company. The
term "equity securities" does not include convertible debt
securities, which will rank senior to the Series B Preferred
Stock prior to conversion.
4. Dividends
(a) Holders of shares of the Series B Preferred Stock are
entitled to receive, when and as declared by the Board of
Directors (or a duly authorized committee thereof), out of funds
legally available for the payment of dividends, preferential
cumulative cash dividends at the rate of % per annum of the $25
liquidation preference (the "Liquidation Preference") per share
(equivalent to a fixed annual amount of $ per share). Dividends
on the Series B Preferred Stock shall be cumulative from the date
of original issue and shall be payable monthly in arrears on or
before the 15th day of each month, or, if not a business day, the
next succeeding business day (each, a "Dividend Payment Date").
The first dividend, which will be paid on December 15, 1997, will
be for less than a full month. Such dividend and any dividend
payable on the Series B Preferred Stock for any partial dividend
period will be computed on the basis of a 360-day year consisting
of twelve 30-day months. Dividends will be payable to holders of
record as they appear in the stock records of the Company at the
close of business on the applicable record date, which shall be
the first day of the calendar month in which the applicable
Dividend Payment Date falls or on such other date designated by
the Board of Directors of the Company for the payment of
dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series B Preferred Stock
shall be declared by the Board of Directors or paid or set apart
for payment by the Company at such time as the terms and
provisions of any agreement of the Company, including any
agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides
that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such
declaration or payment shall be restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series
B Preferred Stock will accrue whether or not the Company has
earnings, whether or not there are funds legally available for
the payment of such dividends and whether or not such dividends
are declared. Accrued but unpaid dividends on the Series B
Preferred Stock will not bear interest and holders of the Series
B Preferred Stock will not be entitled to any distributions in
excess of full cumulative distributions described above. Except
as set forth in the next sentence, no dividends will be declared
or paid or set apart for payment on any capital stock of the
Company or any other series of Parity Preferred Stock or any
series or class of equity securities ranking junior to the Series
B Preferred Stock (other than a dividend in shares of the
Company's Common Stock or in shares of any other class of stock
ranking junior to the Series B Preferred Stock as to dividends
and upon liquidation) for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set
apart for such payment on the Series B Preferred Stock for all
past dividend periods and the then current dividend period. When
dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series B Preferred Stock
and the shares of any other series of Parity Preferred Stock, all
dividends declared upon the Series B Preferred Stock and any
other series of Parity Preferred Stock, shall be declared pro
rata so that the amount of dividends declared per share of Series
B Preferred Stock and such other series of Parity Preferred Stock
shall in all cases bear to each other the same ratio that accrued
dividends per share on the Series B Preferred Stock and such
other series of Parity Preferred Stock (which shall not include
any accrual in respect of unpaid dividends for prior dividend
periods if such Parity Preferred Stock does not have a cumulative
dividend) bear to each other.
(d) Except as provided in the immediately preceding
paragraph, unless full cumulative dividends on the Series B
Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof is
set apart for payment for all past dividend periods and the then
current dividend period, no dividends (other than in shares of
Common Stock or other shares of capital stock ranking junior to
the Series B Preferred Stock as to dividends and upon
liquidation) shall be declared or paid or set aside for payment
nor shall any other distribution be declared or made upon the
Common Stock, or any other capital stock of the Company ranking
junior to or on a parity with the Series B Preferred Stock as to
dividends or upon liquidation, nor shall any shares of Common
Stock, or any other shares of capital stock of the Company
ranking junior to or on a parity with the Series B Preferred
Stock as to dividends or upon liquidation be redeemed, purchased
or otherwise acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for the redemption
of any such shares) by the Company (except by conversion into or
exchange for other capital stock of the Company ranking junior to
the Series B Preferred Stock as to dividends and upon liquidation
or redemptions for the purpose of preserving the Company's
qualification as a real estate investment trust ("REIT")).
Holders of shares of the Series B Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends on the Series B
Preferred Stock as provided above. Any dividend payment made on
shares of the Series B Preferred Stock shall first be credited
against the earliest accrued but unpaid dividend due with respect
to such shares which remains payable.
5. Liquidation Preference. Upon any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Company, the holders of shares of Series B Preferred Stock
are entitled to be paid out of the assets of the Company
legally available for distribution to its shareholders a
liquidation preference of $25 per share, plus an amount
equal to any accrued and unpaid dividends to the date of
payment, but without interest, before any distribution of
assets is made to holders of Common Stock or any other class
or series of capital stock of the Company that ranks junior
to the Series B Preferred Stock as to liquidation rights.
If the assets of the Company legally available for
distribution to shareholders are insufficient to pay in full
the Liquidation Preference on the Series B Preferred Stock
and the Liquidation Preference on any shares of Parity
Preferred Stock, all assets distributed to the holders of
the Series B Preferred Stock and any other series of Parity
Preferred Stock shall be distributed pro-rata so that the
amount of assets distributed per share of Series B Preferred
Stock and such other series of Parity Preferred Stock, shall
in all cases bear to each other the same ratio that the
Liquidation Preference per share on the Series B Preferred
Stock and such other series of Parity Preferred Stock bear
to each other. Holders of Series B Preferred Stock will be
entitled to written notice of any event triggering the right
to receive such Liquidation Preference. After payment of
the full amount of the Liquidation Preference, plus any
accrued and unpaid dividends to which they are entitled, the
holders of Series B Preferred Stock will have no right or
claim to any of the remaining assets of the Company. The
consolidation or merger of the Company with or into any
other corporation, trust or entity or of any other
corporation with or into the Company, or the sale, lease or
conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
6. Redemption.
(a) The Series B Preferred Stock is not redeemable prior to
December 1, 2002. However, in order to ensure that the Company
will continue to meet the requirement for qualification as a
REIT, the Series B Preferred Stock will be subject to provisions
in the Company's Charter (the "Charter") pursuant to which
capital stock of the Company owned by a shareholder in excess of
9.9% in value of the Company's capital stock (the "Ownership
Limit") will be deemed "Excess Shares," and the Company will have
the right to purchase such Excess Shares from the holder. On and
after December 1, 2002, the Company, at its option upon not less
than 30 nor more than 60 days' written notice, may redeem shares
of the Series B Preferred Stock, in whole or in part, at any time
or from time to time, for cash at a redemption price of $25 per
share, plus all accrued and unpaid dividends thereon to the date
fixed for redemption (except with respect to Excess Shares),
without interest. Holders of Series B Preferred Stock to be
redeemed shall surrender such Series B Preferred Stock at the
place designated in such notice and shall be entitled to the
redemption price and any accrued and unpaid dividends payable
upon such redemption following such surrender. If notice of
redemption of any shares of Series B Preferred Stock has been
given and if the funds necessary for such redemption have been
set aside by the Company in trust for the benefit of the holders
of any shares of Series B Preferred Stock so called for
redemption, then from and after the redemption date dividends
will cease to accrue on such shares of Series B Preferred Stock,
such shares of Series B Preferred Stock 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 of the outstanding Series B Preferred Stock is to
be redeemed, the Series B Preferred Stock to be redeemed shall be
selected pro rata (as nearly as may be practicable without
creating fractional shares) or by any other equitable method
determined by the Company.
(b) Unless full cumulative dividends on all shares of
Series B Preferred Stock shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend
periods and the then current dividend period, no shares of Series
B Preferred Stock shall be redeemed unless all outstanding shares
of Series B Preferred Stock are simultaneously redeemed and the
Company shall not purchase or otherwise acquire directly or
indirectly any shares of Series B Preferred Stock (except by
exchange for capital stock of the Company ranking junior to the
Series B Preferred Stock as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the
purchase by the Company of Excess Shares in order to ensure that
the Company continues to meet the requirements for qualification
as a REIT, or the purchase or acquisition of shares of Series B
Preferred Stock pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding shares of Series B
Preferred Stock. So long as no dividends are in arrears, the
Company shall be entitled at any time and from time to time to
repurchase shares of Series B Preferred Stock in open-market
transactions duly authorized by the Board of Directors and
effected in compliance with applicable laws.
(c) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks
commencing not less than 30 nor more than 60 days prior to the
redemption date. A similar notice will be mailed by the Company,
postage prepaid, not less than 30 nor more than 60 days prior to
the redemption date, addressed to the respective holders of
record of the Series B Preferred Stock to be redeemed at their
respective addresses as they appear on the stock transfer records
of the Company. No failure to give such notice or any defect
therein or in the mailing thereof shall affect the validity of
the proceedings for the redemption of any shares of Series B
Preferred Stock except as to the holder to whom notice was
defective or not given. Each notice shall state: (i) the
redemption date; (ii) the redemption price; (iii) the number of
shares of Series B Preferred Stock to be redeemed; (iv) the place
or places where the Series B Preferred Stock is to be surrendered
for payment of the redemption price; and (v) that dividends on
the shares to be redeemed will cease to accrue on such redemption
date. If less than all of the Series B Preferred Stock held by
any holder is to be redeemed, the notice mailed to such holder
shall also specify the number of shares of Series B Preferred
Stock held by such holder to be redeemed.
(d) Immediately prior to any redemption of Series B
Preferred Stock, the Company shall pay, in cash, any accumulated
and unpaid dividends through the redemption date, unless a
redemption date falls after a Dividend Record Date and prior to
the corresponding Dividend Payment Date, in which case each
holder of Series B Preferred Stock at the close of business on
such Dividend Record Date shall be entitled to the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the redemption of such shares before such
Dividend Payment Date.
(e) The Series B Preferred Stock has no stated maturity and
will not be subject to any sinking fund or mandatory redemption.
However, in order to ensure that the Company continues to meet
the requirements for qualification as a REIT, Series B Preferred
Stock acquired by a shareholder in excess of the Ownership Limit
will automatically become Excess Shares, and the Company will
have the right to purchase such Excess Shares from the holder.
In addition, Excess Shares may be redeemed, in whole or in part,
at any time when outstanding shares of Series B Preferred Stock
are being redeemed, for cash at a redemption price of $25 per
share, but excluding accrued and unpaid dividends on such Excess
Shares, without interest. Such Excess Shares shall be redeemed
in such proportion and in accordance with such procedures as
shares of Series B Preferred Stock are being redeemed.
7. Voting Rights.
(a) Holders of the Series B Preferred Stock will not have
any voting rights, except as set forth below or as otherwise from
time to time required by law.
(b) Whenever dividends on any shares of Series B Preferred
Stock shall be in arrears for eighteen or more consecutive months
(a "Preferred Dividend Default"), the holders of such shares of
Series B Preferred Stock (voting separately as a class together
with the holders of the Series A Preferred Stock and all other
series of Parity Preferred Stock upon which like voting rights
have been conferred and are exercisable) will be entitled to vote
separately as a class for the election of a total of two
additional directors of the Company (the "Preferred Stock
Directors") at a special meeting called by the holders of record
of at least 20% of the Series B Preferred Stock or the holders of
record of at least 20% of any series of Parity Preferred so in
arrears (unless such request is received less than 90 days before
the date fixed for the next annual or special meeting of the
shareholders) or at the next annual meeting of shareholders, and
at each subsequent annual meeting until all dividends accumulated
on such shares of Series B Preferred Stock for the past dividend
periods and the dividend for the then current dividend period
shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside for payment. A quorum for any such
meeting shall exist if at least a majority of the outstanding
shares of Series B Preferred Stock and shares of Parity Preferred
Stock upon which like voting rights have been conferred and are
exercisable are represented in person or by proxy at such
meeting. Such Preferred Stock Directors shall be elected upon
the affirmative vote of a plurality of the shares of Series B
Preferred Stock and such Parity Preferred Stock present and
voting in person or by proxy at a duly called and held meeting at
which a quorum is present. If and when all accumulated dividends
and the dividend for the then current dividend period on the
Series B Preferred Stock shall have been paid in full or declared
and set aside for payment in full, the holders thereof shall be
divested of the foregoing voting rights (subject to revesting in
the event of each and every Preferred Dividend Default) and, if
all accumulated dividends and the dividend for the then current
dividend period have been paid in full or set aside for payment
in full on all series of Parity Preferred Stock upon which like
voting rights have been conferred and are exercisable, the term
of office of each Preferred Stock Director so elected shall
terminate. Any Preferred Stock Director may be removed at any
time with or without cause by, and shall not be removed otherwise
than by the vote of, the holders of record of a majority of the
outstanding shares of the Series B Preferred Stock when they have
the voting rights described above (voting separately as a class
with all series of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable). So long as a
Preferred Dividend Default shall continue, any vacancy in the
office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office, or
if none remains in office, by a vote of the holders of record of
a majority of the outstanding shares of Series B Preferred Stock
when they have the voting rights described above (voting
separately as a class with all series of Parity Preferred Stock
upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
(c) So long as any shares of Series B Preferred Stock
remain outstanding, the Company will not, without the affirmative
vote or consent of the holders of at least two-thirds of the
shares of the Series B Preferred Stock outstanding at the time,
given in person or by proxy, either in writing or at a meeting
(voting separately as a class), amend, alter or repeal the
provisions of the Charter or the Designating Amendment, 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 B Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence
of any Event set forth above, so long as the Series B Preferred
Stock remains outstanding with the terms thereof materially
unchanged, 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 the Series B Preferred
Stock and provided, further that (i) any increase in the amount
of the authorized Preferred Stock or the creation or issuance of
any other series of Preferred Stock, or (ii) any increase in the
amount of authorized shares of such series, in each case ranking
on a parity with or junior to the Series B Preferred Stock with
respect to payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up, shall not be deemed
to materially and adversely affect such rights, preferences,
privileges or voting powers.
(d) The foregoing voting provisions will not apply if, at
or prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
shares of Series B Preferred Stock shall have been redeemed or
called for redemption upon proper notice and sufficient funds
shall have been deposited in trust to effect such redemption.
8. Conversion. The Series B Preferred Stock is not convertible
into or exchangeable for any other property or securities of
the Company.
THIRD: This Designating Amendment shall be effective at the
time Tennessee Secretary of State accepts this Designating
Amendment for filing.
FOURTH: The foregoing amendment was duly adopted by
unanimous consent of the board of directors without shareholder
action, such shareholder action not being required, on November
5, 1997
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IN WITNESS WHEREOF, MID-AMERICA APARTMENT COMMUNITIES, INC.
has caused these presents to be signed in its name and on its
behalf by its Chief Financial Officer on this the 6th day of
November 1997.
MID-AMERICA APARTMENT COMMUNITIES, INC.
By: /s/ Simon R.C. Wadsworth
-------------------------------
Title: Chief Financial Officer
