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
_______________________________
WALDEN RESIDENTIAL PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
Maryland
(State of incorporation or organization)
75-2506197
(I.R.S. Employer Identification No.)
One Lincoln Centre
5400 LBJ Freeway, Suite 400
Dallas, Texas 75240
(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to be so registered
- ---------------------------------------
______% Senior Preferred
Stock, $0.01 par value
Name of each exchange on which each class is to be registered
- -------------------------------------------------------------
New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
Item 1. Description of Registrant's Securities to be Registered.
Under its Articles of Incorporation (the "Articles"), Walden
Residential Properties, Inc., a Maryland corporation (the
"Company"), has authority to issue 10,000,000 shares of preferred
stock, par value $.01 per share. The Company has authorized the
issuance of 4,000,000 shares of preferred stock as the _____%
Senior Preferred Stock (the "Senior Preferred Stock"). The Company
has applied for listing of the Senior Preferred Stock on the New
York Stock Exchange. Set forth below are the terms of the Senior
Preferred Stock.
Dividends. Subject to the preferential rights of any other
series of Preferred Stock ranking senior as to dividends to the
Senior Preferred Stock and to the Articles regarding Excess Stock
(as defined in the Articles), holders of shares of the Senior
Preferred Stock will be entitled to receive, when and as declared
by the Board of Directors, out of funds legally available for the
payment of dividends, cumulative preferential cash dividends in an
amount per share of Senior Preferred Stock equal to
$_______________________.
Dividends with respect to the Senior Preferred Stock will be
cumulative and will be payable quarterly in arrears in March, June,
September and December (on the same dates as dividends on shares of
the Company's common stock, par value $.01 per share (the "Common
Stock")), beginning with the dividend payment for March 1997 (each,
a "Preferred Dividend Payment Date"). Any dividend payable on the
Senior Preferred Stock for any partial dividend period after the
initial dividend period will be computed on the basis of a 360-day
year consisting of twelve 30-day months. Dividends payable on the
Senior Preferred Stock for each full dividend period will be
computed by dividing the annual dividend rate by four. The initial
dividend payable on the Senior Preferred Stock on March 1997 will
accrue from the date of issuance of the Senior Preferred Stock up
to but excluding the initial Preferred Dividend Payment Date.
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 will be the first day of the calendar
month in which the applicable Preferred Dividend Payment Date falls
or such other date designated by the Board of Directors for the
payment of dividends that is no more than thirty (30) nor less than
ten (10) days prior to such Preferred Dividend Payment Date (each,
a "Preferred Dividend Record Date").
No dividends on shares of Senior Preferred Stock will be
declared by the Board of Directors or paid or set apart for payment
by the Company at such time as, and to the extent that, the terms
and provisions of any agreement of the Company, including any
agreement relating to its indebtedness, or any provisions of the
Articles relating to any series of Preferred Stock ranking senior
to the Senior Preferred Stock as to dividends, prohibit such
declaration, payment or setting apart for payment or provide that
such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such
declaration or payment will be prohibited by law. Notwithstanding
the foregoing, dividends on the Senior 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. Holders of the Senior
Preferred Stock will not be entitled to any dividends in excess of
full cumulative dividends as described above.
If any shares of Senior Preferred Stock are outstanding, no
full dividends will be declared or paid or set apart for payment on
the capital stock of the Company of any other series ranking, as to
dividends, on a parity with or junior to the Senior Preferred Stock
for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on
the Senior 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 shares of the Senior Preferred Stock and the shares of any
series of Preferred Stock ranking on a parity as to dividends with
the Senior Preferred Stock, all dividends declared upon shares of
Senior Preferred Stock and any series of Preferred Stock ranking on
a parity as to dividends with the Senior Preferred Stock will be
declared pro rata so that the amount of dividends declared per
share on the Senior Preferred Stock and such other series of
Preferred Stock will in all cases bear to each other the same ratio
that accrued and unpaid dividends per share on the shares of Senior
Preferred Stock and such other series of Preferred Stock bear to
each other. No interest, or sum of money in lieu of interest, will
be payable in respect of any dividend payment or payments on Senior
Preferred Stock which may be in arrears.
Except as provided in the immediately preceding paragraph,
unless full cumulative dividends on the Senior Preferred Stock have
been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment for
all past dividend periods and the then current dividend period, no
dividends (other than distributions payable in Common Stock or
other capital stock ranking junior to the Senior Preferred Stock as
to dividends and upon liquidation, dissolution or winding up of the
Company) will be declared or paid or set aside for payment, and no
other distribution will 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 Senior Preferred Stock as to dividends, nor will
any Common Stock or any other capital stock of the Company ranking
junior to or on a parity with the Senior Preferred Stock as to
dividends or upon liquidation, dissolution or winding up of the
Company be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any shares of any such stock) by
the Company (except by conversion into or exchange for other
capital stock of the Company ranking junior to the Senior Preferred
Stock as to dividends and upon liquidation, dissolution and winding
up of the Company).
Any dividend payment made on shares of Senior Preferred Stock
will first be credited against the earliest accrued but unpaid
dividend due with respect to shares of such Senior Preferred Stock
which remains payable.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Company, subject to the prior
rights of any series of capital stock ranking senior to the Senior
Preferred Stock, the holders of shares of Senior Preferred Stock
will be entitled to be paid out of the assets of the Company
legally available for distribution to its stockholders a
liquidation preference equal to the sum of $25.00 per share plus an
amount equal to any accrued and unpaid dividends thereon (whether
or not earned or declared) to the date of payment (the "Preferred
Liquidation Preference Amount"), before any distribution of assets
is made to holders of Common Stock or any other capital stock that
ranks junior to the Senior Preferred Stock as to liquidation
rights. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Senior
Preferred Stock will have no right or claim to any of the remaining
assets of the Company.
In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up of the Company, the legally
available assets of the Company are insufficient to pay the
Preferred Liquidation Preference Amount on all outstanding shares
of Senior Preferred Stock and the corresponding amounts payable on
all shares of other classes or series of capital stock of the
Company ranking on a parity with the Senior Preferred Stock in the
distribution of assets upon liquidation, dissolution or winding up
of the Company, then the holders of the Senior Preferred Stock and
all other such classes or series of capital stock will share
ratably in any such distribution of assets in proportion to the
full liquidating distributions to which they would otherwise be
respectively entitled.
If liquidating distributions have been made in full to all
holders of shares of Senior Preferred Stock, the remaining assets
of the Company will be distributed among the holders of any other
classes or series of capital stock ranking junior to the Senior
Preferred Stock upon liquidation, dissolution or winding up of the
Company, according to their respective rights and preferences and
in each case according to their respective number of shares.
The consolidation or merger of the Company with or into any
other corporation, or the sale, lease, transfer or conveyance of
all or substantially all of the property or business of the
Company, will not be deemed to constitute a liquidation,
dissolution or winding up of the Company for these purposes.
Redemption. The Senior Preferred Stock will not be redeemable
prior to December __, 2006, except under certain limited
circumstances to preserve the Company's status as a REIT. See
"Restrictions on Transfer." On and after December __, 2006, the
Company, at its option (to the extent the Company has funds legally
available therefor) upon not less than 30 nor more than 60 days'
written notice, may redeem shares of Senior Preferred Stock, in
whole or in part, at any time or from time to time, for cash at the
redemption price per share of $25.00, plus all accrued and unpaid
dividends, if any, thereon (whether or not earned or declared) to
the date fixed for redemption.
Notwithstanding the foregoing, unless full cumulative
dividends on all shares of Senior Preferred Stock 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 Senior Preferred Stock will be redeemed unless all
outstanding shares of Senior Preferred Stock are simultaneously
redeemed; provided, however, that the foregoing will not prevent
the purchase or acquisition of shares of the Senior Preferred Stock
pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of Senior Preferred Stock, and
unless full cumulative dividends on all outstanding shares of
Senior Preferred Stock have been or contemporaneously are declared
and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then
current dividend period, the Company will not purchase or otherwise
acquire directly or indirectly through a subsidiary or otherwise,
any shares of Senior Preferred Stock (except by conversion into or
exchange for capital stock of the Company ranking junior to the
Senior Preferred Stock as to dividends and upon liquidation,
dissolution and winding up).
If fewer than all of the outstanding shares of Senior
Preferred Stock are to be redeemed, the number of shares to be
redeemed will be determined by the Company and such shares may be
redeemed pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders (as
nearly as may be practicable without creating fractional shares of
Senior Preferred Stock) or any other equitable method determined by
the Company.
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 data. 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 Senior 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 will affect the validity of the proceeding
for the redemption of any shares of Senior Preferred Stock except
as to the holder to whom notice was defective or not given. Each
notice will state: (i) the redemption date; (ii) the redemption
price; (iii) the number of shares of Senior Preferred Stock to be
redeemed; (iv) the place or places where the Senior Preferred Stock
is to be surrendered for payment of the redemption price; (v) that
dividends on the shares to be redeemed will cease to accrue on such
redemption date; and (vi) that any conversion rights will terminate
at the close of business on the third business day immediately
preceding the redemption date. If fewer than all the shares of
Senior Preferred Stock held by any holder are to be redeemed, the
notice mailed to such holder will also specify the number of shares
of Senior Preferred Stock to be redeemed from such holder. If
notice of redemption of any shares of Senior Preferred Stock has
been properly given and if funds necessary for such redemption have
been irrevocably set aside by the Company in trust for the benefit
of the holders of any of the shares of Senior Preferred Stock so
called for redemption, then from and after the redemption date
dividends will cease to accrue on such shares of Senior Preferred
Stock, such shares of Senior Preferred Stock will no longer be
deemed to be outstanding and all rights of the holders of such
shares will terminate except for the right to receive the
applicable redemption price and other amounts payable in respect of
such shares.
The holders of Senior Preferred Stock at the close of business
on a Preferred Dividend Record Date will be entitled to receive the
dividend payable with respect to such Senior Preferred Stock on the
corresponding Preferred Dividend Payment Date notwithstanding the
redemption thereof between such Preferred Dividend Record Date and
the corresponding Preferred Dividend Payment Date or the Company's
default in the payment of the dividend due. Except as provided
above, the Company will make no payment or allowance for unpaid
dividends, whether or not in arrears, on shares of Senior Preferred
Stock called for redemption.
The Senior Preferred Stock has no stated maturity and will not
be subject to any sinking fund.
Voting Rights. Holders of the Senior Preferred Stock will not
have any voting rights, except as set forth below or as otherwise
from time to time required by law. Subject to the provisions in
the Articles regarding Excess Stock, in any matter in which the
Senior Preferred Stock may vote, including any action by written
consent, each share of Senior Preferred Stock will be entitled to
one vote. The holders of each share of Senior Preferred Stock may
separately designate a proxy for the vote to which that share of
Senior Preferred Stock is entitled.
Whenever dividends on any shares of Senior Preferred Stock
have been in arrears for six or more quarterly periods (regardless
of whether such periods are consecutive), the holders of such
shares of Senior Preferred Stock (voting separately as a class with
all other series of Preferred Stock upon which rights to vote on
such matter with the Senior Preferred Stock have been conferred and
are then exercisable) will be entitled to vote for the election of
two additional directors of the Company at a special meeting called
by the holders of record of at least 10% of the Senior Preferred
Stock and such other Preferred Stock, if any (unless such request
is received less than 90 days before the date fixed for the next
annual or special meeting of the stockholders), or at the next
annual meeting of stockholders, and at each subsequent annual
meeting until all dividends accumulated on such shares of Senior
Preferred Stock for the past dividend periods and the then current
dividend period have been fully paid or declared and a sum
sufficient for the payment thereof set aside for payment. In such
event, the entire Board of Directors will be increased by two
directors. Each of such two directors will be elected to serve
until the earlier of (i) the election and qualification of such
director's successor or (ii) payment of the dividend arrearage for
the Senior Preferred Stock.
So long as any shares of Senior Preferred Stock remain
outstanding, the Company will not (i) without the affirmative vote
or consent of the holders of at least a majority of the shares of
Senior Preferred Stock outstanding at the time, given in person or
by proxy, either in writing or at a meeting (such series voting
separately as a class), authorize, create or issue, or increase the
authorized or issued amount of, any class or series of capital
stock ranking senior to the Senior Preferred Stock with respect to
payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up, or create, authorize or
issue any obligation or security convertible into or evidencing the
right to purchase any such shares; or (ii) without the affirmative
vote or consent of the holders of at least two-thirds of the shares
of Senior Preferred Stock outstanding at the time, given in person
or by proxy, either in writing or at a meeting (such series voting
separately as a class), amend, alter or repeal the provisions of
the Articles, whether by merger, consolidation or otherwise, so as
to materially and adversely affect any right, preference, privilege
or voting power of the Senior Preferred Stock or the holders
thereof; provided, however, that any increase in the amount of the
authorized Preferred Stock, or the creation or issuance of any
other series of Preferred Stock, or any increase in the amount of
authorized shares of Preferred Stock or any other series of
Preferred Stock, in each case ranking on a parity with or junior to
the Senior Preferred Stock with respect to payment of dividends or
the distribution of assets upon liquidation, dissolution or winding
up of the Company, will 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 is effected, all outstanding shares of Senior
Preferred Stock have been redeemed or called for redemption upon
proper notice and sufficient funds have been deposited in trust to
effect such redemption.
Rank. The Senior Preferred Stock will, with respect to
dividend rights and distributions upon liquidation, dissolution,
and winding up of the Company, rank (i) senior to the Common Stock,
all other outstanding shares of capital stock of the Company of all
classes and series (including the Company's 9.16% Series A
Convertible Redeemable Preferred Stock and 9.16% Series B
Convertible Redeemable Preferred Stock), all classes of Excess
Stock (other than Excess Preferred Stock, as to which the Senior
Preferred Stock is senior only as to dividends) and shares of all
other series of capital stock issued by the Company other than any
series of capital stock the terms of which specifically provide
that the capital stock of such series rank senior to or on a parity
with such Senior Preferred Stock with respect to dividend rights or
distributions upon liquidation, dissolution or winding up of the
Company; (ii) on a parity with the Excess Preferred Stock upon
liquidation, dissolution and winding up and the shares of all other
capital stock issued by the Company the terms of which specifically
provide that the shares rank on a parity with the Senior Preferred
Stock with respect to dividends and distributions upon liquidation,
dissolution or winding up of the Company or make no specific
provision as to their ranking; and (iii) junior to all other
capital stock issued by the Company the terms of which specifically
provide that the shares rank senior to the Senior Preferred Stock
with respect to dividends and distributions upon liquidation,
dissolution or winding up of the Company (the issuance of which
must have been approved by a vote of at least a majority of the
outstanding shares of Senior Preferred Stock).
Restrictions on Transfer. The shares of Senior Preferred
Stock are generally transferable. The Articles, however, contain
certain restrictions on the number of shares of Stock, defined to
include all classes of capital stock that the Company shall have
authority to issue, including the Senior Preferred Stock, other
series of Preferred Stock and the Common Stock, that stockholders
may own. For the Company to qualify as a REIT under the Code,
shares of Stock must be beneficially owned by 100 or more persons
during at least 335 days of a taxable year of twelve months or
during a proportionate part of a shorter taxable year. Further,
not more than 50% of the value of the issued and outstanding shares
of Stock (including the Senior Preferred Stock) may be owned,
directly or indirectly, by five or fewer individuals (as defined in
the Internal Revenue Code of 1986, as amended (the "Code"), to
include, except in limited circumstances, certain entities such as
qualified private pension plans) during the last half of a taxable
year or during a proportionate part of a shorter taxable year.
Since the Board of Directors believes it is essential for the
Company to maintain its status as a REIT under the Code, the
Articles provide that no person, except Mr. Don R. Daseke, Chairman
of the Board of Directors and Chief Executive Officer of the
Company, may own or be deemed to own by virtue of the attribution
provisions of the Code, more than 9.0% (the "Ownership Limit") of
the aggregate value of all outstanding shares of Stock (including
the Senior Preferred Stock); provided, however, that Mr. Daseke may
not own, directly or indirectly, more than 13.0% of the aggregate
value of all outstanding shares of Stock (the "Existing Holder
Limit"). The Board of Directors, upon receipt of evidence and
assurances satisfactory to the Board of Directors, may also exempt
a proposed transferee from the Ownership Limit or Existing Holder
Limit. In connection therewith, the Board of Directors may require
opinions of counsel, affidavits, undertakings or agreements as it
may deem necessary or advisable in order to determine or ensure the
Company's status as a real estate investment trust (a "REIT"). Any
acquisition or transfer of shares of Stock that would: (i) result
in the shares of Stock being owned by fewer than 100 persons or
(ii) result in the Company being "closely-held" within the meaning
of Section 856(h) of the Code, shall be null and void, and the
intended transferee will acquire no rights to the shares of Stock
(including the Senior Preferred Stock). The foregoing restrictions
on transferability and ownership will not apply if the Board of
Directors determines that it is no longer in the best interests of
the Company to attempt to qualify, or to continue to qualify, as a
REIT and the Articles are amended accordingly.
Any purported transfer of shares of Stock (including the
Senior Preferred Stock) that would result in a person owning shares
of Stock in excess of the Ownership Limit or Existing Holder Limit
will result in the shares subject to such purported transfer being
automatically exchanged for an equal number of shares of Excess
Stock. Under the Articles, Excess Stock shall be deemed to have
been transferred to the Company, as trustee of a separate trust
(the "Trust"), for the exclusive benefit of the person or persons
to whom the interest in the Trust can ultimately be transferred.
Excess Stock is not transferable. The purported transferee of
any shares of Stock (including the Senior Preferred Stock) that are
exchanged for Excess Stock may designate a transferee of the
interest in the Trust if the Excess Stock held in the Trust and
represented by such Trust interest to be transferred would not be
Excess Stock in the hands of the designated transferee at a price
not to exceed the price paid by the purported transferee (or, if no
consideration was paid, the market price at the time of the
original attempted transfer) at which point such Excess Stock will
automatically be exchanged for the shares of Stock (including the
Senior Preferred Stock) to which the Excess Stock is attributable.
In addition, Excess Stock is subject to purchase by the Company at
a purchase price equal to the lesser of: (i) the price paid for
the shares of Stock (including the Senior Preferred Stock) by the
intended transferee (or, if no consideration was paid, the market
price of the shares of Stock (including the Senior Preferred Stock)
the attempted transfer of which resulted in Excess Stock, measured
on the date of the transfer); or (ii) the market price of the
shares of Stock (including the Senior Preferred Stock) the
attempted transfer of which resulted in Excess Stock measured on
the date on which the Company elects to purchase the Excess Stock.
"Market Price" means the average daily per share closing sales
price of a share of Stock (including the Senior Preferred Stock) if
shares of Stock (including the Senior Preferred Stock) are listed
on a national securities exchange or quoted on Nasdaq National
Market or if not then traded on any exchange or quotation system,
the mean between the average per share closing bid prices and the
average per share closing bid prices and the average per share
closing asked prices, in each case, during the 30 calendar day
period ending on the business day prior to the redemption date, or
if there have been no sales on a national securities exchange or
Nasdaq National Market and no published bid and asked quotations
with respect to shares of such stock during such 30 calendar day
period, then the market price of the shares of Stock (including the
Senior Preferred Stock) on the relevant date shall be as determined
in good faith by the Board of Directors.
From and after the intended transfer to the purported
transferee of the Excess Stock, the purported transferee shall
cease to be entitled to distributions (except upon liquidation),
voting rights and other benefits with respect to the Excess Stock
except the right to payment of the purchase price for the shares of
Stock (including the Senior Preferred Stock). Any dividend or
distribution paid to a purported transferee on Excess Stock prior
to the discovery by the Company that the shares have been
transferred in violation of the Articles shall be repaid to the
Company upon demand. If the foregoing transfer restrictions are
determined to be void or invalid by virtue of any legal decision,
statute, rule or regulation, then the intended transferee of any
Excess Stock may be deemed, at the option of the Company, to have
acted as an agent on behalf of the Company in acquiring the Excess
Stock and to hold the Excess Stock on behalf of the Company. All
certificates representing shares of Stock (including the Senior
Preferred Stock) will bear a legend referring to the restrictions
described above.
In addition, each stockholder shall, upon demand, be required
to disclose to the Company in writing, all information regarding
the direct and indirect beneficial ownership of shares of Stock
(including the Senior Preferred Stock) as the Board of Directors
deems reasonably necessary to comply with the provisions of the
Code applicable to a REIT, to comply with the requirements of any
taxing authority or governmental agency or to determine any such
compliance.
These ownership limitations could have the effect of
discouraging a takeover or other transaction in which holders of
some, or a majority, of shares of Stock (including the Senior
Preferred Stock) might receive a premium for their shares over the
then-prevailing market price or which these holders might believe
to be otherwise in their best interest.
General. The transfer agent and registrar for the ___% Senior
Preferred Stock is The First National Bank of Boston.
The ___% Senior Preferred Stock will be, when issued, duly
authorized, fully paid and nonassessable and will have no
preemptive rights.
Item 2. Exhibits.
1.1 Specimen ___% Senior Preferred Stock Certificate.
1.2 Specimen Common Stock Certificate (previously filed as
Exhibit 1.1 to the Company's Registration Statement on
Form S-11 (Registration No. 33-70132) and incorporated
herein by reference).
2.1 Articles of Amendment and Restatement of the Company
(previously filed as Exhibit 3.1 to this Company's
Registration statement on Form S-11 (Registration No.
33-70132) and incorporated herein by reference).
2.2 Restated Bylaws of the Company (previously filed as
Exhibit 3.2 to the Company's Registration Statement on
Form S-11 (Registration No. 33-70132) and incorporated
herein by reference).
2.3 Form of Articles Supplementary designating the rights of
the holders of ___% Senior Preferred Stock.
SIGNATURE
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.
WALDEN RESIDENTIAL PROPERTIES, INC.
/s/ Mark S. Dillinger December 20, 1996
- --------------------- -----------------
Mark S. Dillinger Date
Executive Vice President and
Chief Financial Officer
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
1.1 Specimen ___% Senior Preferred E-2
Stock Certificate.
1.2 Specimen Common Stock Certificate N/A
(previously filed as Exhibit 1.1
to the Company's Registration
Statement on Form S-11
(Registration No. 33-70132) and
incorporated herein by reference).
2.1 Articles of Amendment and N/A
Restatement of the Company
(previously filed as Exhibit
3.1 to this Company's Registration
statement on Form S-11
(Registration No. 33-70132) and
incorporated herein by reference).
2.2 Restated Bylaws of the Company N/A
(previously filed as Exhibit 3.2
to the Company's Registration
Statement on Form S-11
(Registration No. 33-70132) and
incorporated herein by reference).
2.3 Form of Articles Supplementary E-4
designating the rights of the
holders of ___% Senior Preferred
Stock.
Exhibit 1.1
[FRONT OF STOCK CERTIFICATE]
SHARES OF ____% SENIOR SHARES OF ____% SENIOR
PREFERRED PREFERRED STOCK PAR VALUE $.01
STOCK PAR VALUE $.01
FORMED UNDER THE SHARES
LAWS OF THE STATE
OF MARYLAND
WALDEN RESIDENTIAL
PROPERTIES, INC. THIS CERTIFICATE IS
TRANSFERABLE IN BOSTON
MASS. AND NEW YORK, N.Y.
CUSIP 931210 40 5
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF _____% SENIOR PREFERRED STOCK
OF
Walden Residential Properties, Inc. (the "Company"), transferable only
on the books of the Company by the holder hereof in person, or by duly
authorized attorney, upon the surrender of this Certificate is properly
endorsed. This Certificate is not valid unless countersigned by the
Transfer Agent and registered by the Registrar.
WITNESS the facsimile seal of the Company and the facsimile
signatures of its duly authorized representatives.
Dated:
WALDEN RESIDENTIAL PROPERTIES, INC.
CORPORATE
SEAL
MARYLAND
SECRETARY PRESIDENT Counter signed and
Registered:
THE FIRST NATIONAL
BANK OF
BOSTON, Transfer Agent
and
Registrar
By:
Authorized Signature
THERE ARE RESTRICTIONS ON THE TRANSFER
OF THE SHARES EVIDENCED BY THIS CERTIFICATE
AS MORE FULLY SET FORTH ON THE REVERSE HEREOF.
[BACK OF STOCK CERTIFICATE]
WALDEN RESIDENTIAL PROPERTIES, INC.
THE CORPORATION WILL FURNISH TO ANY STOCKHOLDER ON REQUEST AND WITHOUT
CHARGE A FULL STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES,
CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS
TO DIVIDENDS, QUALIFICATIONS AND TERMS, AND CONDITIONS OF REDEMPTION OF
THE STOCK OF EACH CLASS WHICH THE CORPORATION IS AUTHORIZED TO ISSUE, OR
THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE SHARES
OF EACH SERIES OF A CLASS IN SERIES WHICH THE CORPORATION IS AUTHORIZED
TO ISSUE. TO THE EXTENT THEY HAVE BEEN SET, AND OF THE AUTHORITY OF THE
BOARD OF DIRECTORS TO SET THE RELATIVE RIGHTS AND PREFERENCES OF
SUBSEQUENT SERIES OR CLASSES, SUCH REQUEST MAY BE MADE TO THE SECRETARY
OF THE CORPORATION OR TO ITS TRANSFER AGENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON OWNERSHIP AND TRANSFER FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL STATE INVESTMENT TRUST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). EXCEPT
AS OTHERWISE PROVIDED PURSUANT TO THE CHARTER OF THE CORPORATION, NO
PERSON MAY (1) BENEFICIALLY OWN SHARES OF STOCK IN EXCESS OF 9.0% (OR
SUCH OTHER PERCENTAGE AS MAY BE PROVIDED IN THE CHARTER OF THE
CORPORATION) OF THE AGGREGATE VALUE OF ALL OUTSTANDING STOCK (UNLESS SUCH
PERSON IS THE EXISTING HOLDER), OR (2) BENEFICIALLY OWN STOCK THAT WOULD
RESULT IN THE CORPORATION BEING "CLOSELY HELD" UNDER SECTION 856(h) OF
THE CODE. ANY PERSON WHO ATTEMPTS TO BENEFICIALLY OWN SHARES OF STOCK
IN EXCESS OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE
CORPORATION. IF THE RESTRICTIONS ON OWNERSHIP OR TRANSFER ARE VIOLATED,
THE SHARES OF STOCK REPRESENTED HEREBY WILL BE AUTOMATICALLY CONVERTED
INTO SHARES OF EXCESS STOCK WHICH WILL BE HELD IN TRUST BY THE
CORPORATION. THE CORPORATION HAS THE OPTION TO REDEEM SHARES OF EXCESS
STOCK UNDER CERTAIN CIRCUMSTANCES. ALL TERMS IN THIS LEGEND NOT
OTHERWISE DEFINED HEREIN HAVE THE MEANINGS ASCRIBED THERETO IN THE
CORPORATION'S CHARTER, AS THE SAME MAY BE FURTHER AMENDED FROM TIME TO
TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON OWNERSHIP OR
TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO
REQUESTS.
The following abbreviations, when used in the inscription of 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 TRAN MIN ACT-___ Custodian-___
TEN ENT-as tenants by the entireties (Cust) (Minor)
JT TEN- as tenants in common under Uniform Transfers to Minors
Act ___________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, _____________________ hereby sell, assign and
transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
shares
of _____% Senior Preferred Stock represented by the within certificate,
and do hereby irrevocably constitute and appoint
Attorney
to transfer the said shares on the books of the within-named Company with
full power of substitution in the premises.
Dated, ________________________
NOTICE:THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed by:
__________________________
EXHIBIT 2.3
____% Senior Preferred Stock
(Liquidation Preference $25.00 Per Share)
ARTICLES SUPPLEMENTARY
WALDEN RESIDENTIAL PROPERTIES, INC.
___________________________
Articles Supplementary Classifying and Designating a
Series of Preferred Stock as
____% Senior Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
___________________________
Dated as of December ___, 1996
WALDEN RESIDENTIAL PROPERTIES, INC.
___________
Articles Supplementary Classifying and Designating a
Series of Preferred Stock as
_____% Senior Preferred Stock
and Fixing Distribution and
Other Preferences and Rights of Such Series
___________
Walden Residential Properties, Inc., a Maryland corporation,
having its principal office in the State of Maryland in the City of
Baltimore (the "Corporation"), hereby certifies to the State
Department of Assessments and Taxation of Maryland that:
Pursuant to authority conferred upon the Board of Directors by
the Articles of Incorporation, as amended (the "Articles"), and
Bylaws of the Corporation, the Board of Directors adopted
resolutions authorizing the creation and issuance of up to
4,600,000 shares, with a liquidation preference of $25.00 per
share, of Senior Preferred Stock and adopted resolutions granting
the Executive Committee of the Board of Directors with full power
and authority, subject to the foregoing resolution, to determine
the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption of the shares of such series.
Such preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption, number of shares and dividend
rate, as determined by such duly authorized committee are as
follows:
Section 1 Number of Shares and Designation. This series of
Preferred Stock shall be designated as _____% Senior Preferred
Stock (the "Senior Preferred Stock") and the number of shares which
shall constitute such series shall not be more than 4,600,000
shares, par value $.01 per share, which number may be decreased
(but not below the number thereof then outstanding) from time to
time by the Board of Directors.
Section 2 Dividend Rights.
(a) Subject to the preferential rights of any other
series of stock ranking senior as to dividends to the Senior
Preferred Stock and to the provisions of the Articles relating
to rights of holders of shares of Excess Stock (as defined in
the Articles), the record holders of Senior Preferred Stock
shall be entitled to receive dividends, when and as declared
by the Board of Directors of the Corporation out of funds
legally available for payment of dividends. Such dividends
shall be payable by the Corporation in cash at the rate of
$_______ per annum per share.
(b) Dividends on shares of Senior Preferred Stock shall
accrue and be cumulative from the date of issuance of the
Senior Preferred Stock. Dividends shall be payable quarterly
in arrears when and as declared by the Board of Directors of
the Corporation in March, June, September and December of each
year (on the same dates as dividends are paid on shares of the
Corporation's common stock, par value $.01 per share (the
"Common Stock")) (each, a "Preferred Dividend Payment Date"),
commencing in March 1997. If any Preferred Dividend Payment
Date occurs on a day that is not a 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 (a
"Business Day"), any accrued dividends otherwise payable on
such Preferred Dividend Payment Date shall be paid on the next
succeeding Business Day. The amount of dividends payable on
Senior Preferred Stock for each full quarterly period from,
and including, any Preferred Dividend Payment Date to, but not
including, the next Preferred Dividend Payment Date (the
"Dividend Period") shall be computed by dividing by four (4)
the annual dividend rate set forth in Section 2(a). Dividends
payable in respect of any Dividend Period (other than the
initial Dividend Period) which is less than a full Dividend
Period in length will be computed from the immediately
preceding Dividend Payment Date to, but not including, the
date on which dividends are paid on the basis of a 360-day
year consisting of twelve 30-day months. Dividends shall be
paid to the holders of record of the Senior Preferred Stock as
their names shall appear on the stock transfer records of the
Corporation at the close of business on the date designated by
the Board of Directors of the Corporation at the time a
dividend is declared as the date for determining holders of
record entitled to such dividend (the "Record Date").
Dividends in respect of any past Dividend Period that is in
arrears may be declared and paid at any time to holders of
record on the Record Date for such payment. Any dividend
payment made on shares of Senior Preferred Stock shall be
first credited against the earliest accrued but unpaid
dividend due which remains payable. No interest, or sum of
money in lieu of interest, shall be payable in respect of any
dividend payment or payments on the Senior Preferred Stock
which may be in arrears.
(c) Notwithstanding anything contained herein to the
contrary, no dividends on shares of Senior Preferred Stock
shall be declared by the Board of Directors of the Corporation
or paid or set apart for payment by the Corporation at such
time as, and to the extent that, the terms and provisions of
any agreement of the Corporation, including any agreement
relating to its indebtedness, or any provisions of the
Articles relating to any series of preferred stock, par value
$.01 per share, of the Corporation (the "Preferred Stock")
ranking senior to the Senior Preferred Stock, 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.
(d) If any shares of Senior Preferred Stock are
outstanding, no full dividends shall be declared or paid or
set apart for payment on any series of capital stock of the
Company ranking junior to or on a parity with the Senior
Preferred Stock as to dividends (including the Corporation's
9.16% Series A Convertible Redeemable Preferred Stock (the
"Series A Preferred Stock") and 9.16% Series B Convertible
Redeemable Preferred Stock (the "Series B Preferred Stock"))
for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment
on the Senior 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 shares of Senior Preferred Stock and
the shares of any series of Preferred Stock ranking on a
parity as to dividends with the Senior Preferred Stock, all
dividends declared upon the shares of Senior Preferred Stock
and any other such series of Preferred Stock ranking on a
parity as to dividends with the Senior Preferred Stock shall
be declared pro rata so that the amount of dividends declared
per share on the Senior Preferred Stock and such other series
of Preferred Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the
shares of Senior Preferred Stock and such other series of
Preferred Stock bear to each other.
(e) Except as provided in Section 2(d), unless full
cumulative dividends on the Senior Preferred Stock have been
or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment
for all past Dividend Periods and the then current Dividend
Period, no dividends (other than dividends payable in Common
Stock or other capital stock of the Corporation ranking junior
to the Senior Preferred Stock as to dividends and upon
liquidation, dissolution and winding up) shall be declared or
paid or set aside for payment or other distribution shall be
declared or made upon any series of capital stock of the
Corporation ranking junior to or on a parity with the Senior
Preferred Stock as to dividends nor, subject to the
Corporation's right to purchase Excess Stock as set forth in
the Articles, shall shares of any series of capital stock of
the Corporation ranking junior to or on a parity with the
Senior Preferred Stock upon liquidation, dissolution or
winding up be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available
for a sinking fund for the redemption of any shares of any
series of capital stock of the Corporation ranking junior to
or on a parity with the Senior Preferred Stock) by the
Corporation (except by conversion into or exchange for other
capital stock of the Corporation ranking junior to the Senior
Preferred Stock as to dividends and upon liquidation,
dissolution and winding up).
(f) Notwithstanding anything contained herein to the
contrary, dividends on the Senior Preferred Stock, if not paid
on a Preferred Dividend Payment Date, will accrue whether or
not dividends are declared for such Preferred Dividend Payment
Date, whether or not the Corporation has earnings and whether
or not there are funds legally available for the payment of
such dividends. Any dividend payment made on shares of Senior
Preferred Stock shall first be credited against the earliest
accrued but unpaid dividend due with respect to shares of such
Senior Preferred Stock which remains payable.
Section 3 Distribution Upon Liquidation, Dissolution or
Winding Up.
(a) Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation,
subject to the prior preferences and other rights of any
series of capital stock of the Corporation ranking senior to
the Senior Preferred Stock upon liquidation, dissolution or
winding up, but before any distribution or payment shall be
made to the holders of capital stock of the Corporation
ranking junior to the Senior Preferred Stock in the
distribution of assets upon liquidation, dissolution or
winding up of the Corporation (including the Series A
Preferred Stock and Series B Preferred Stock), the holders of
Senior Preferred Stock shall be entitled to receive out of the
assets of the Corporation legally available for distribution
to its stockholders liquidating distributions in cash or
property at its fair market value as determined by the Board
of Directors of the Corporation in the amount of $25.00 per
share, plus an amount equal to any accrued or unpaid dividends
on any such share of Senior Preferred Stock to the date of
liquidation (the "Liquidation Preference"). After payment of
the full amount of the liquidating distributions to which they
are entitled, the holders of Senior Preferred Stock will have
no right or claim to any of the remaining assets of the
Corporation and shall not be entitled to any other
distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation.
(b) In the event that, upon any such voluntary or
involuntary liquidation, dissolution or other winding up, the
legally available assets of the Corporation are insufficient
to pay the amount of the Liquidation Preference per share and
the corresponding amounts payable on all shares of capital
stock of the Corporation ranking on a parity with the Senior
Preferred Stock in the distribution of assets upon
liquidation, dissolution or winding up, then the holders of
the Senior Preferred Stock and all such other capital stock
shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they
would otherwise be respectively entitled.
(c) Neither the consolidation or merger of the
Corporation into or with another corporation or any other
entity nor the sale, lease, transfer or conveyance of all or
substantially all of the assets of the Corporation to another
corporation or any other entity shall be deemed to constitute
a liquidation, dissolution or winding up of the affairs of the
Corporation within the meaning of this Section 3.
Section 4 Redemption by the Corporation.
(a) The Senior Preferred Stock may be redeemed, in whole
or from time to time in part, at any time on and after
December 31, 2006 at the option of the Corporation at the
price of $25.00 per share (the "Preferred Redemption Price"),
plus all accrued and unpaid dividends thereon to the Preferred
Redemption Date (defined below), except as may be provided
below, without interest.
(b) Each date fixed for redemption pursuant to
Section 4(d) below is called a "Preferred Redemption Date."
If the Preferred Redemption Date is after a Record Date and
before the related Preferred Dividend Payment Date, the
dividend payable on such Preferred Dividend Payment Date shall
be paid to the holder in whose name the Senior Preferred Stock
to be redeemed is registered at the close of business on such
Record Date notwithstanding the redemption thereof between
such Record Date and the related Preferred Dividend Payment
Date or the Corporation's default in the payment of the
dividend due.
(c) In case of redemption of less than all shares of
Senior Preferred Stock at the time outstanding, the shares to
be redeemed shall be selected pro rata from the holders of
record of such shares in proportion to the number of shares
held by such holders (with adjustments to avoid redemption of
fractional shares) or by any other equitable method determined
by the Corporation, to the extent practicable, that will not
result in a violation of the Ownership Limit (as defined in
the Articles).
(d) Notice of any 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 Preferred Redemption Date. A similar notice
will be mailed by the Corporation, postage prepaid, not less
than 30 nor more than 60 days prior to the Preferred
Redemption Date, addressed to the respective holders of record
of the Senior Preferred Stock to be redeemed at their
respective addresses as they appear on the stock transfer
records of the Corporation. 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 Senior Preferred Stock except as to the holder to whom the
Corporation has failed to give notice or except as to the
holder to whom notice was defective. In addition to any
information required by law or by the applicable rules of any
exchange upon which the Senior Preferred Stock may be listed
or admitted to trading, such notice shall state: (i) the
Preferred Redemption Date; (ii) the Preferred Redemption
Price; (iii) the aggregate number of shares of Senior
Preferred Stock to be redeemed and, if less than all shares
held by such holder are to be redeemed, the number of such
shares to be redeemed; (iv) the place or places where
certificates for such shares are to be surrendered for payment
of the Preferred Redemption Price; (v) that dividends on the
shares to be redeemed will cease to accrue on the Preferred
Redemption Date; and (vi) that any conversion rights with
respect to such shares shall terminate at the close of
business on the third business day immediately preceding the
Preferred Redemption Date.
(e) If notice has been mailed in accordance with
Section 4(d) above and provided that on or before the
Preferred Redemption Date specified in such notice all funds
necessary for such redemption shall have been set aside by the
Corporation, separate and apart from its other funds in trust
for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and to continue to be
available therefor, then, from and after the Preferred
Redemption Date, dividends on the shares of the Senior
Preferred Stock so called for redemption shall cease to
accrue, and such shares shall no longer be deemed to be
outstanding and shall not have the status of shares of Senior
Preferred Stock, and all rights of the holders thereof as
stockholders of the Corporation (except the right to receive
from the Corporation the Preferred Redemption Price) shall
cease. Notwithstanding the foregoing, upon the Corporation's
default in the payment of the dividend due, the holders of
Senior Preferred Stock at the close of business on any Record
Date will be entitled to receive the dividend payable with
respect to such Senior Preferred Stock on the corresponding
Preferred Dividend Payment Date, although such Senior
Preferred Stock shall have been redeemed between such Record
Date and such corresponding Preferred Dividend Payment Date.
Upon surrender, in accordance with the redemption notice, of
the certificates for any shares of Senior Preferred Stock so
redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the
Preferred Redemption Price. In case fewer than all the shares
represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the
unredeemed shares without cost to the holder thereof.
(f) Any deposit of funds with a bank or trust company
for the purpose of redeeming Senior Preferred Stock shall be
irrevocable except that:
(i) the Corporation shall be entitled to receive
from such bank or trust company the interest or other
earnings, if any, earned on any money so deposited in
trust, and the holders of any shares redeemed shall have
no claim to such interest or other earnings; and
(ii) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Senior
Preferred Stock entitled thereto at the expiration of two
(2) years after the applicable Preferred Redemption Date
shall be repaid, together with any interest or other
earnings earned thereon, to the Corporation, and after
such repayment, the holders of the shares entitled to the
funds so repaid to the Corporation shall look only to the
Corporation for payment without interest or other
earnings.
(g) No Senior Preferred Stock may be redeemed except
with funds legally available for the payment of the Preferred
Redemption Price.
(h) Unless full cumulative dividends on all shares of
Senior 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 any
Senior Preferred Stock shall be redeemed unless all
outstanding shares of Senior Preferred Stock are
simultaneously redeemed; provided, however, that the foregoing
shall not prevent the purchase or acquisition of shares of
Senior Preferred Stock pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding
shares of Senior Preferred Stock; and, unless full cumulative
dividends on all outstanding shares of Senior Preferred Stock
have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set
apart for payment for all past Dividend Periods and the then
current Dividend Period, the Corporation shall not purchase or
otherwise acquire directly or indirectly, through a subsidiary
or otherwise, any shares of Senior Preferred Stock (except by
conversion into or exchange for capital stock of the
Corporation ranking junior to the Senior Preferred Stock as to
dividends and upon liquidation, dissolution and winding up).
(i) All shares of Senior Preferred Stock redeemed
pursuant to this Section 4 shall be retired and shall be
restored to the status of authorized and unissued shares of
Preferred Stock, without designation as to series, and subject
to the applicable limitations set forth herein may thereafter
be reissued as shares of any series of Preferred Stock.
Section 5 Voting Rights.
(a) The holders of record of shares of Senior Preferred
Stock shall not be entitled to any voting rights except as
hereinafter provided in this Section 5 or as otherwise
provided by law. The Corporation shall not (i) without the
affirmative vote or consent of the holders of at least a
majority of the shares of the Senior Preferred Stock
outstanding at the time, given in person or by proxy, either
in writing or at a meeting (such Senior Preferred Stock voting
separately as a class), authorize, create or issue, or
increase the authorized or issued amount of, any class or
series of capital stock ranking senior to the Senior Preferred
Stock as to dividends or upon liquidation, dissolution or
winding up or reclassify any authorized capital stock of the
Corporation into any such senior stock, or create, authorize
or issue any obligation or security convertible into or
evidencing the right to purchase any such capital stock; or
(ii) without the affirmative vote or consent of at least
two-thirds of the shares of the Senior Preferred Stock
outstanding at the time, given in person or by proxy, either
in writing or at a meeting (such Senior Preferred Stock voting
separately or as a class), amend, alter or repeal the
provisions of the Articles (including these Articles
Supplementary), whether by merger, consolidation or otherwise,
so as to materially and adversely affect any right,
preference, privilege or voting power of the Senior Preferred
Stock or the holders thereof; provided, however, that any
increase in the amount of the authorized Preferred Stock or
the creation or issuance of any other series of Preferred
Stock, or any increase in the amount of authorized shares of
the Senior Preferred Stock or any other series of Preferred
Stock, in each case ranking on a parity with or junior to the
Senior Preferred Stock with respect to payment of dividends
and 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.
(b) If and whenever dividends payable on the Senior
Preferred Stock shall be in arrears for six (6) or more
quarterly periods (regardless of whether such periods are
consecutive), then the holders of Senior Preferred Stock,
voting separately as a class (with any such other series as
provided in Section 5(f) below), shall be entitled at the next
annual meeting of the stockholders or at any special meeting
called as hereinafter provided to elect two (2) additional
directors. Upon election, such directors shall become
additional directors of the Corporation and the authorized
number of directors of the Corporation shall thereupon be
automatically increased by such number of directors.
(c) Whenever the voting right described under
Section 5(b) above shall become exercisable, such right may be
exercised initially either at a special meeting of the holders
of Senior Preferred Stock, called as hereinafter provided, or
at any annual meeting of stockholders held for the purpose of
electing directors, and thereafter at such annual meetings or
by the written consent of holders of Senior Preferred Stock.
Such right of the holders of Senior Preferred Stock to elect
directors may be exercised until all dividends to which the
holders of Senior Preferred Stock shall have been entitled for
all previous Dividend Periods and the current Dividend Period
shall have been paid in full or declared and a sum of money
sufficient for the payment thereof set aside for payment, at
which time the right of the holders of Senior Preferred Stock
to elect such number of directors shall cease, the term of
such directors previously elected shall thereupon terminate,
and the authorized number of directors of the Corporation
shall thereupon return to the number of authorized directors
otherwise in effect, but subject always to the same provisions
for the renewal and divestment of such special voting rights
in the case of any such future dividend default or defaults
and subject to the rights of any other series of Preferred
Stock to vote for the election of directors, together with the
Senior Preferred Stock, as described in Section 5(f) that
shall not have then expired.
(d) At any time when the voting right described under
Section 5(b) shall become exercisable in the holders of Senior
Preferred Stock and if such right shall not already have been
initially exercised, a proper officer of the Corporation
shall, upon the written request of holders of record of at
least ten percent (10%) of the shares of Senior Preferred
Stock, and of any other series of Preferred Stock entitled to
vote on such matter as described in Section 5(f), then
outstanding, addressed to the Secretary of the Corporation,
call a special meeting of holders of Senior Preferred Stock.
Such meeting shall be held at the earliest practicable date
upon the notice required for annual meetings of stockholders
at the place for holding annual meetings of stockholders of
the Corporation or, if none, at a place designated by the
Secretary of the Corporation. If such meeting shall not be
called by the proper officers of the Corporation within thirty
(30) days after the personal service of such written request
upon the Secretary of the Corporation, or within thirty (30)
days after mailing the same within the United States, by
registered mail, addressed to the Secretary of the Corporation
at its principal office (such mailing to be evidenced by the
registry receipt issued by the postal authorities), then the
holders of record of at least ten percent (10%) of the shares
of Senior Preferred Stock, and of other Preferred Stock
entitled to vote on such matter as described in Section 5(f),
then outstanding may designate in writing a holder of Senior
Preferred Stock or such other Preferred Stock to call such
meeting at the expense of the Corporation, and such meeting
may be called by such person so designated upon the notice
required for annual meetings of stockholders and shall be held
at the place of holding annual meetings of the Corporation or,
if none, at a place designated by such holder. Any holder of
Senior Preferred Stock that would be entitled to vote at such
meeting shall have access to the stock books of the
Corporation for the purpose of causing a meeting of
stockholders to be called pursuant to the provisions of this
Section 5(d). Notwithstanding the provisions of this
Section 5(d), however, no such special meeting shall be called
if any such request is received less than 90 days before the
date fixed for the next ensuing annual or special meeting of
stockholders.
(e) If any director so elected by the holders of Senior
Preferred Stock shall cease to serve as a director before such
director's term shall expire, the holders of Senior Preferred
Stock (and any other series of Preferred Stock, if any,
entitled to vote on such matter, as described in Section 5(f))
then outstanding may, at a special meeting of the holders
called as provided above, elect a successor to hold office for
the unexpired term of the director whose place shall be
vacant.
(f) If, at any time when the holders of Senior Preferred
Stock are entitled to elect directors pursuant to the
provisions of Section 5(b) above, the holders of any one or
more additional series of Preferred Stock are entitled to
elect directors by reason of any default or event specified in
the Articles (or any articles supplementary thereto), as in
effect at the time, or the articles supplementary for such
series, and if the terms for such other additional series so
permit, then the voting rights of the two or more series then
entitled to vote shall be combined (with each series having a
number of votes proportional to the aggregate liquidation
preference of its outstanding shares). In such case, the
holders of Senior Preferred Stock and of all such other series
then entitled so to vote, voting as a class, shall elect such
directors. If the holders of any such other series have
elected such directors prior to the happening of the default
or event permitting the holders of Senior Preferred Stock to
elect directors, or prior to a written request for the holding
of a special meeting being received by the Secretary of the
Corporation as elsewhere required in Section 5(d) above, then
a new election shall be held with all such other series of
Preferred Stock and the Senior Preferred Stock voting together
as a single class for such directors, resulting in the
termination of the term of such previously elected directors
upon the election of such new directors. If the holders of
any such other series are entitled to elect in excess of two
directors, the Senior Preferred Stock shall not participate in
the election of more than two such directors, and those
directors whose terms first expire shall be deemed to be the
directors elected by the holders of Senior Preferred Stock;
provided that, if at the expiration of such terms, the holders
of Senior Preferred Stock are entitled to vote in the election
of directors pursuant to the provisions of this Section 5,
then the Secretary of Corporation shall call a meeting (which
meeting may be the annual meeting or special meeting of
stockholders referred to in Section 5(c) above) of holders of
Senior Preferred Stock for the purpose of electing replacement
directors (in accordance with the provisions of this
Section 5) to be held at or prior to the time of expiration of
the expiring terms referred to above.
(g) Subject to Section 5(a) hereof and the provisions of
the Articles relating to the rights of holders of Excess
Stock, in any matter in which the Senior Preferred Stock may
vote, including any action by written consent, each share of
Senior Preferred Stock shall be entitled to one (1) vote
(except as expressly provided herein or as may be required by
law).
(h) Except as required by law, the foregoing voting
provisions shall 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 the
Senior Preferred Stock shall have been redeemed or shall have
been called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such
redemption.
Section 6 Ranking.
The Senior Preferred Stock shall, with respect to dividend
rights and distributions upon liquidation, dissolution and winding
up, rank (i) senior to the Common Stock, the Series A Preferred
Stock, the Series A Preferred Stock, any shares of Excess Stock
(except as provided in the last sentence of this Section 6) and
shares of all other capital stock issued from time to time by the
Corporation the terms of which specifically provide that the
capital stock of such series rank junior to the Senior Preferred
Stock with respect to dividend rights or distributions upon
liquidation, dissolution or winding up of the Corporation; (ii) on
a parity with the shares of all other capital stock issued by the
Corporation the terms of which specifically provide that the shares
rank on a parity with the Senior Preferred Stock with respect to
dividends and distributions upon liquidation, dissolution or
winding up of the Corporation or make no specific provisions as to
their ranking; and (iii) junior to all other capital stock issued
by the Corporation the terms of which specifically provide that the
shares rank senior to the Senior Preferred Stock with respect to
dividends and distributions upon liquidation, dissolution or
winding up of the Corporation (the issuance of which must have been
approved by a vote of at least a majority of the outstanding shares
of Senior Preferred Stock). The Senior Preferred Stock ranks on a
parity with the shares of Senior Preferred Stock that are Excess
Stock with respect to distributions upon liquidation, dissolution
or winding up.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be signed in its name and on its behalf by its
Chairman of the Board and Chief Executive Officer and attested to
by its Secretary on this ______ day of December, 1996 and its said
Chairman of the Board and Chief Executive Officer acknowledges
under the penalties of perjury that these Articles Supplementary
are the corporate act of said Corporation and that to the best of
his knowledge, information and belief, the matters and facts set
forth herein are true in all material respects.
WALDEN RESIDENTIAL PROPERTIES, INC.
By: ___________________________
Name: Don R. Daseke
Title: Chairman of the Board
and Chief Executive Officer
Attest:
By: __________________________
Name: Edward H. Hatzenbuehler
Title: Secretary
