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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AVALONBAY COMMUNITIES, INC.
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(Exact name of registrant as specified in its charter)
Maryland 77-0404318
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
2900 Eisenhower Avenue, Suite 300
Alexandria, Virginia 22314
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(Address of principal executive offices) (Zip Code)
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<S> <C>
If this form relates to the registration If this form relates to the registration
of a class of securities pursuant to of a class of securities pursuant to
Section 12(b) of the Exchange Act Section 12(g) of the Exchange Act
and is effective pursuant and is effective pursuant to General
to General Instruction A.(c), please Instruction A.(d), please check the
check the following box. |X| following box. [ ]
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Securities Act registration statement file number to which this form relates:
333-60875.
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Class Name of Each Exchange on
to be so Registered which Class is to be Registered
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8.70% Series H Cumulative Redeemable New York Stock Exchange
Preferred Stock, par value $.01 per share Pacific Exchange, Inc.
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 8.70% Series H Cumulative Redeemable Preferred Stock,
par value $.01 per share ("Series H Preferred Stock"), of AvalonBay Communities,
Inc. (the "Company") is contained in a Prospectus Supplement filed with the
Securities and Exchange Commission on October 8, 1998 pursuant to Rule 424(b)(2)
under the Securities Act of 1933, as amended. Such Prospectus Supplement
supplements the Prospectus contained in the Company's Registration Statement on
Form S-3 (File No. 333-60875), which became effective on August 18, 1998, and it
is incorporated herein by reference.
Item 2. EXHIBITS
The shares of Series H Preferred Stock described herein are to be
registered on the New York Stock Exchange and the Pacific Exchange, Inc., on
which other securities of the Company are registered. Accordingly, the following
exhibits, required to be filed herewith in accordance with the Instructions as
to Exhibits to Form 8-A, have been duly filed with the New York Stock Exchange
and the Pacific Exchange, Inc.:
(1) Articles Supplementary of the Company relating to the 8.70%
Series H Cumulative Redeemable Preferred Stock of the Company,
dated as of October 13, 1998.
(2) Articles of Amendment, dated as of October 2, 1998. (Incorporated
by reference to Exhibit 3.1(ii) to the Company's Form 8-K filed
October 6, 1998).
(3) Articles of Amendment and Restatement of Articles of
Incorporation of the Company, dated as of June 4, 1998.
(Incorporated by reference to Exhibit 3(i).1 to Form 10-Q of the
Company filed August 14, 1998.)
(4) Bylaws of the Company, as amended and restated on July 24, 1998.
(Incorporated by reference to Exhibit 3(ii).1 to Form 10-Q of the
Company filed August 14, 1998.)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the Company has duly caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
AVALONBAY COMMUNITIES, INC.
By: /s/ Thomas J. Sargeant
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Thomas J. Sargeant
Chief Financial Officer
October 13, 1998
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EXHIBIT 1
AVALONBAY COMMUNITIES, INC.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
AvalonBay Communities, Inc., a Maryland corporation (the "Corporation"),
having its principal office in Alexandria, Virginia, hereby certifies to the
State Department of Assessments and Taxation of the State of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors of
the Corporation by Section 7.2 of Article VII of its Articles of Amendment and
Restatement of Articles of Incorporation, as heretofore amended (which, as
hereafter restated or amended from time to time, are together with these
Articles Supplementary herein called the "Articles"), the Board of Directors
has, by resolution, duly divided and classified 4,600,000 shares of the
Preferred Stock of the Corporation into a series designated 8.70% Series H
Cumulative Redeemable Preferred Stock, par value $.01 per share, and has
provided for the issuance of such series.
SECOND: Subject in all cases to the provisions of the Articles, including,
without limitation, Section 7.4 of Article VII and Article IX with respect to
limitations on the transfer and ownership of Stock, the following is a
description of the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications and terms and
conditions of redemption of the 8.70% Series H Cumulative Redeemable Preferred
Stock of the Corporation:
(1) DESIGNATION AND NUMBER. A series of Preferred Stock, designated the "8.70%
Series H Cumulative Redeemable Preferred Stock," par value $.01 per share (the
"Series H Preferred Stock"), is hereby established. The number of authorized
shares of Series H Preferred Stock is 4,600,000.
(2) RANK. The Series H Preferred Stock shall, with respect to dividend rights
and rights upon liquidation, dissolution or winding up of the Corporation, rank
(a) senior to the Corporation's Series E Preferred Stock and all classes or
series of Common Stock of the Corporation, and to all equity securities issued
by the Corporation ranking junior to such Series H Preferred Stock; (b) on a
parity with the Corporation's Series C Preferred Stock, Series D Preferred
Stock, Series F Preferred Stock, Series G Preferred Stock and all other equity
securities issued by the Corporation the terms of which specifically provide
that such equity securities rank on a parity with the Series H Preferred Stock;
and (c) junior to all equity securities issued by the Corporation the terms of
which specifically provide that such equity securities rank senior to the Series
H Preferred Stock. The term "equity securities" shall not include convertible
debt securities.
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(3) DIVIDENDS.
(a) Holders of the then outstanding shares of Series H Preferred Stock
shall be entitled to receive, when and as authorized by the Board of Directors,
out of funds legally available for the payment of dividends, cumulative
preferential cash dividends at the rate of 8.70% of the $25.00 liquidation
preference per annum (equivalent to a fixed annual amount of $2.175 per share).
Such dividends shall be cumulative from the first date on which any Series H
Preferred Stock is issued and shall be payable quarterly in arrears on or before
March 15, June 15, September 15 and December 15 of each year or, if not a
business day, the next succeeding business day (each, a "Series H Dividend
Payment Date"). The first dividend, which will be paid on December 15, 1998,
will be for less than a full quarter. Such dividend and any dividend payable on
the Series H 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
Corporation at the close of business on the applicable record date, which shall
be the first day of the calendar month in which the applicable Series H Dividend
Payment Date falls or on such other date designated by the Board of Directors of
the Corporation as the record date for the payment of dividends on the Series H
Preferred Stock that is not more than 30 nor less than 10 days prior to such
Dividend Payment Date (each, a "Series H Dividend Record Date").
(b) No dividends on shares of Series H Preferred Stock shall be authorized
by the Board of Directors of the Corporation or paid or set apart for payment by
the Corporation at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness, prohibits
such authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such authorization or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series H Preferred
Stock shall accrue whether or not the terms and provisions set forth in Section
3(b) hereof at any time prohibit the current payment of dividends, whether or
not the Corporation 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 H Preferred Stock will
accumulate as of the Series H Dividend Payment Date on which they first become
payable.
(d) Except as provided in Section 3(e) below, no dividends will be declared
or paid or set apart for payment on any Stock of the Corporation or any other
series of Preferred Stock ranking, as to dividends, on a parity with or junior
to the Series H Preferred Stock (other than a dividend in shares of the
Corporation's Common Stock or in any other class of Stock ranking junior to the
Series H 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 H Preferred Stock for all past dividend periods and
the then current dividend period.
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(e) When dividends are not paid in full (and a sum sufficient for such full
payment is not so set apart) upon the Series H Preferred Stock and the shares of
any other series of Preferred Stock ranking on a parity as to dividends with the
Series H Preferred Stock, all dividends declared upon the Series H Preferred
Stock and any other series of Preferred Stock ranking on a parity as to
dividends with the Series H Preferred Stock shall be declared pro rata so that
the amount of dividends declared per share of Series H Preferred Stock and such
other series of Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the Series H Preferred Stock and such
other series of Preferred Stock (which shall not include any accrual in respect
of unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend) bear to each other. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments on Series H Preferred Stock which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series H 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 Stock ranking junior to the Series H 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 Stock of the Corporation ranking junior to or on a parity
with the Series H Preferred Stock as to dividends or upon liquidation, nor shall
any shares of Common Stock, or any other shares of Stock of the Corporation
ranking junior to or on a parity with the Series H Preferred Stock as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any monies be paid to or made available for a sinking fund
for the redemption of any such shares) by the Corporation (except by conversion
into or exchange for other Stock of the Corporation ranking junior to the Series
H Preferred Stock as to dividends and upon liquidation).
(g) Any dividend payment made on shares of the Series H Preferred Stock
shall first be credited against the earliest accrued but unpaid dividend due
with respect to such shares which remains payable. Holders of the Series H
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 H
Preferred Stock as described above.
(4) LIQUIDATION PREFERENCE.
(a) Upon any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation, the holders of shares of Series H
Preferred Stock then outstanding are entitled to be paid out of the assets of
the Corporation legally available for distribution to its stockholders a
liquidation preference of $25.00 per share, plus an amount equal to any accrued
and unpaid dividends to the date of payment, before any distribution of assets
is made to holders of Common Stock or any other class or series of Stock of the
Corporation that ranks junior to the Series H Preferred Stock as to liquidation
rights.
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(b) In the event that, upon any such voluntary or involuntary liquidation,
dissolution or winding up, the available assets of the Corporation are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series H Preferred Stock and the corresponding amounts
payable on all shares of other classes or series of Stock of the Corporation
ranking on a parity with the Series H Preferred Stock in the distribution of
assets, then the holders of the Series H Preferred Stock and all other such
classes or series of 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) After payment of the full amount of the liquidating distributions to
which they are entitled, the holders of Series H Preferred Stock will have no
right or claim to any of the remaining assets of the Corporation.
(d) Written notice of any such liquidation, dissolution or winding up of
the Corporation, stating the payment date or dates when, and the place or places
where, the amounts distributable in such circumstances shall be payable, shall
be given by first class mail, postage pre-paid, not less than 30 nor more than
60 days prior to the payment date stated therein, to each record holder of the
Series H Preferred Stock at the respective addresses of such holders as the same
shall appear on the stock transfer records of the Corporation.
(e) The consolidation or merger of the Corporation with or into any other
corporation, trust or entity or of any other corporation with or into the
Corporation, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Corporation.
(5) REDEMPTION.
(a) RIGHT OF OPTIONAL REDEMPTION. The Series H Preferred Stock is not
redeemable prior to October 15, 2008. However, in order to ensure that the
Corporation remains a qualified real estate investment trust ("REIT") for
federal income tax purposes, shares of Series H Preferred Stock which have been
converted into Excess Stock shall be subject to repurchase by the Corporation in
accordance with Section 7.4.10 of Article VII of the Articles. On and after
October 15, 2008, the Corporation, at its option and upon not less than 30 nor
more than 60 days written notice, may redeem shares of the Series H Preferred
Stock, in whole or in part, at any time or from time to time, for cash at a
redemption price of $25.00 per share, plus all accrued and unpaid dividends
thereon to the date fixed for redemption (except as provided in Section 5(c)
below), without interest. If less than all of the outstanding Series H Preferred
Stock is to be redeemed, the Series H 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 Corporation.
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(b) LIMITATIONS ON REDEMPTION.
(i) The redemption price of the Series H Preferred Stock (other than
the portion thereof consisting of accrued and unpaid dividends) is payable
solely out of the sale proceeds of other capital stock of the Corporation,
which may include other series of Preferred Stock, and from no other
source. For purposes of the preceding sentence, "capital stock" means any
equity securities (including Common Stock and Preferred Stock), shares,
interest, participation or other ownership interests (however designated)
and any rights (other than debt securities convertible into or exchangeable
for equity securities) or options to purchase any of the foregoing.
(ii) Unless full cumulative dividends on all shares of Series H
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 H Preferred Stock shall be redeemed unless all
outstanding shares of Series H Preferred Stock are simultaneously redeemed,
and the Corporation shall not purchase or otherwise acquire directly or
indirectly any shares of Series H Preferred Stock (except by exchange for
Stock of the Corporation ranking junior to the Series H Preferred Stock as
to dividends and upon liquidation); provided, however, that the foregoing
shall not prevent the purchase by the Corporation of shares of Excess Stock
in order to ensure that the Corporation remains qualified as a REIT for
federal income tax purposes or the purchase or acquisition of shares of
Series H Preferred Stock pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding shares of Series H Preferred
Stock.
(c) RIGHTS TO DIVIDENDS ON SHARES CALLED FOR REDEMPTION. Immediately prior
to any redemption of Series H Preferred Stock, the Corporation shall pay, in
cash, any accumulated and unpaid dividends through the redemption date, unless a
redemption date falls after a Series H Dividend Record Date and prior to the
corresponding Series H Dividend Payment Date, in which case each holder of
Series H Preferred Stock at the close of business on such Series H Dividend
Record Date shall be entitled to the dividend payable on such shares on the
corresponding Series H Dividend Payment Date notwithstanding the redemption of
such shares before such Series H Dividend Payment Date. Except as provided
above, the Corporation will make no payment or allowance for unpaid dividends,
whether or not in arrears, on Series H Preferred Stock which is redeemed.
(d) PROCEDURES FOR REDEMPTION.
(i) Notice of redemption will be (A) 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, and (B) mailed by the
Corporation, 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 H Preferred Stock to be redeemed at their respective addresses
as they appear on the stock transfer records of the Corporation.
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No failure to give such notice or any defect thereto or in the mailing
thereof shall affect the validity of the proceedings for the redemption of
any shares of Series H Preferred Stock except as to the holder to whom
notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series H Preferred Stock may be
listed or admitted to trading, such notice shall state: (A) the redemption
date; (B) the redemption price; (C) the number of shares of Series H
Preferred Stock to be redeemed; (D) the place or places where the Series H
Preferred Stock is to be surrendered for payment of the redemption price;
and (E) that dividends on the shares to be redeemed will cease to accrue on
such redemption date. If less than all of the Series H 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 H Preferred Stock held by such
holder to be redeemed.
(iii) If notice of redemption of any shares of Series H Preferred
Stock has been given and if the funds necessary for such redemption have
been set aside by the Corporation in trust for the benefit of the holders
of any shares of Series H Preferred Stock so called for redemption, then
from and after the redemption date dividends will cease to accrue on such
shares of Series H Preferred Stock, such shares of Series H 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.
Holders of Series H Preferred Stock to be redeemed shall surrender such
Series H Preferred Stock at the place designated in such notice and, upon
surrender in accordance with said notice of the certificates for shares of
Series H Preferred Stock so redeemed (properly endorsed or assigned for
transfer, if the Corporation shall so require and the notice shall so
state), such shares of Series H Preferred Stock shall be redeemed by the
Corporation at the redemption price plus any accrued and unpaid dividends
payable upon such redemption. In case less than all the shares of Series H
Preferred Stock represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the unredeemed
shares of Series H Preferred Stock without cost to the holder thereof.
(iv) The deposit of funds with a bank or trust corporation for the
purpose of redeeming Series H Preferred Stock shall be irrevocable except
that:
(A) the Corporation shall be entitled to receive from such bank
or trust corporation 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
(B) any balance of monies so deposited by the Corporation and
unclaimed by the holders of the Series H Preferred Stock entitled
thereto at the expiration of two years from the applicable redemption
dates shall be repaid, together with any interest or other earnings
thereon, to the Corporation, and after any such repayment, the holders
of the shares entitled to the funds so
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repaid to the Corporation shall look only to the Corporation for
payment without interest or other earnings.
(e) The shares of Series H Preferred Stock are subject to the provisions of
Section 7.4 of Article VII and Article IX of the Articles relating to Excess
Stock. Excess Stock issued upon exchange of shares of Series H Preferred Stock
pursuant to such provisions may be redeemed, in whole or in part, at any time
when outstanding shares of Series H Preferred Stock are being redeemed, for cash
at a redemption price of $25.00 per share, plus all accrued and unpaid dividends
on the shares of Series H Preferred Stock, which are exchanged for such Excess
Stock, through the date of such exchange, without interest. If the Corporation
elects to redeem Excess Stock pursuant to the redemption right set forth in the
preceding sentence, such Excess Stock shall be redeemed in such proportion and
in accordance with such procedures as shares of Series H Preferred Stock are
being redeemed.
(f) Any shares of Series H Preferred Stock that shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued Preferred Stock, without designation as to series until such shares are
thereafter designated as part of a particular series by the Board of Directors.
(6) VOTING RIGHTS.
(a) Holders of the Series H 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 H Preferred Stock shall be
in arrears for six or more quarterly periods (a "Series H Preferred Dividend
Default"), the Board of Directors shall take such action as may be necessary to
increase the number of Directors of the Corporation by two and the holders of
such shares of Series H Preferred Stock (voting separately as a class with the
holders of all other series of Preferred Stock ranking on a parity with the
Series H Preferred Stock as to dividends or upon liquidation ("Series H Parity
Preferred") upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of a total of two
directors of the Corporation (the "Series H Preferred Stock Directors") at a
special meeting called by the holders of record of at least 20% of the Series H
Preferred Stock or the holders of any other series of Series H 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 stockholders) or at the next
annual meeting of stockholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series H 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.
(c) If and when all accumulated dividends and the dividend for the then
current dividend period on the Series H Preferred Stock shall have been paid in
full or set aside for payment in full, the holders of shares of Series H
Preferred Stock shall be divested of the voting rights set forth in Section 6(b)
hereof (subject to revesting in the event of each and every Series H Preferred
Dividend Default) and, if all accumulated dividends and the dividend
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for the current dividend period have been paid in full or set aside for payment
in full on all other series of Series H Parity Preferred upon which like voting
rights have been conferred and are exercisable, the term of office of each
Series H Preferred Stock Director so elected shall terminate and the Board of
Directors shall take such action as may be necessary to reduce the number of
Directors by two. Any Series H Preferred Stock Director may be removed at any
time with or without cause by the vote of, 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 H Preferred Stock when they have the voting rights set
forth in Section 6(b) (voting separately as a class with all other series of
Series H Parity Preferred upon which like voting rights have been conferred and
are exercisable). So long as a Series H Preferred Dividend Default shall
continue, any vacancy in the office of a Series H Preferred Stock Director may
be filled by written consent of the Series H 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 H Preferred Stock when they have
the voting rights set forth in Section 6(b) hereof (voting separately as a class
with all other series of Series H Parity Preferred upon which like voting rights
have been conferred and are exercisable). The Series H Preferred Stock Directors
shall each be entitled to one vote per director on any matter.
(d) So long as any shares of Series H Preferred Stock remain outstanding,
the Corporation shall not, without the affirmative vote of the holders of at
least two-thirds of the shares of the Series H Preferred Stock outstanding at
the time, given in person or by proxy, either in writing or at a meeting (voting
separately as a class), (i) authorize or create, or increase the authorized or
issued amount of, any class or series of Stock ranking senior to the Series H
Preferred Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up or reclassify any authorized
Stock of the Corporation into any such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase any
such shares or (ii) amend, alter or repeal the provisions of the Articles,
whether by merger, consolidation or otherwise, so as to materially and adversely
affect any right, preference, privilege or voting power of the Series H
Preferred Stock or the holders thereof; provided, however, that with respect to
the occurrence of any event set forth in (ii) above, so long as the Series H
Preferred Stock remains outstanding with the terms thereof materially unchanged
or, if the Corporation is not the surviving entity in such transaction, is
exchanged for a security of the surviving entity with terms that are materially
the same as the Series H Preferred Stock, the occurrence of any such event shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers of the holders of the Series H Preferred Stock; and,
provided, further, 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 such series, in each case ranking
on a parity with or junior to the Series H 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.
(e) 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 H Preferred Stock shall have
been redeemed or called for
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redemption upon proper notice and sufficient funds shall have been deposited in
trust to effect such redemption.
(f) Except as otherwise required by law or provided in the Articles, the
holders of Common Stock shall not be entitled to vote on any matter submitted to
a vote of the holders of Series H Preferred Stock pursuant to Section 6 hereof.
(7) CONVERSION.The Series H Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Corporation, except
that the shares of Series H Preferred Stock will automatically be converted by
the Corporation into shares of Excess Stock and transferred to a Trust in
accordance with Section 7.4 of Article VII and Article IX of the Articles in the
same manner that Common Stock is exchanged for Excess Stock and transferred to a
Trust pursuant thereto, in order to ensure that the Corporation remains
qualified as a REIT for federal income tax purposes.
THIRD: These Articles Supplementary shall be effective at the time the State
Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
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IN WITNESS WHEREOF, AVALONBAY COMMUNITIES, INC. has caused these presents
to be signed in its name and on its behalf by its Senior Vice President and
Secretary and witnessed by its Assistant Secretary on October 13, 1998.
WITNESS: AVALONBAY COMMUNITIES, INC.
/s/ Ronald Mukai By:/s/ Jeffrey B. Van Horn
- ---------------------------------- --------------------------------
Ronald Mukai, Assistant Secretary Name: Jeffrey B. Van Horn
Title: Senior Vice President and
Secretary
THE UNDERSIGNED, Senior Vice President and Secretary of AvalonBay
Communities, Inc. who executed on behalf of the Corporation the Articles
Supplementary of which this Certificate is made a part, hereby acknowledges in
the name and on behalf of said Corporation the foregoing Articles Supplementary
to be the corporate act of said Corporation and hereby certifies that the
matters and facts set forth herein with respect to the authorization and
approval thereof are true in all material respects under the penalties of
perjury.
/s/ Jeffrey B. Van Horn
-----------------------------------
(SEAL) Jeffrey B. Van Horn
Senior Vice President and Secretary
