<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 25, 1997
Registration No. 333-22339
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
Amendment No. 1 to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 58-1468053
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3340 PEACHTREE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
(Address, Including Zip Code, and Telephone Number, including
Area Code, of Registrant's Principal Executive Offices)
--------------------
J. DONALD NICHOLS
JDN REALTY CORPORATION
3340 PEACHTREE ROAD, NE
SUITE 1530
ATLANTA, GEORGIA 30326
(404) 262-3252
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
--------------------
Copies of communications to:
E. MARLEE MITCHELL
WALLER LANSDEN DORTCH & DAVIS,
A PROFESSIONAL LIMITED LIABILITY COMPANY
2100 NASHVILLE CITY CENTER
NASHVILLE, TENNESSEE 37219-1760
(615) 244-6380
--------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following box.
[ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Each Class of Securities Amount to be Proposed Maximum Amount of
to be Registered Registered Aggregate Offering Registration
Price Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Debt Securities, Preferred Stock (par value $.01
per share), Common Stock Warrants and Common Stock
(par value $.01 per share)(1) . . . . . . . . . . . $400,000,000 (1)(2) (2)(3) $121,213 (4)
=====================================================================================================================
</TABLE>
- ----------------------
(1) Pursuant to General Instruction II.D. of Form S-3 under the Securities Act
of 1933, as amended (the "Securities Act"), the fee table does not specify
by each class of securities to be registered information as to the amount
to be registered, proposed maximum offering price per unit, and proposed
maximum aggregate offering price. Securities registered hereunder may be
sold separately, together or as units with other securities registered
hereunder.
(2) The amount to be registered consists of up to $400,000,000 (in U.S. dollars
or the equivalent thereof at the time of sale for any debt security
denominated in one or more foreign currencies or composite currencies) of
an indeterminate amount of Debt Securities, an indeterminate number of
shares of Preferred Stock, an indeterminate number of Common Stock
Warrants, and an indeterminate number of shares of Common Stock as may be
sold, from time to time, by the Registrant. There is also being registered
hereunder an indeterminate number of shares of Preferred Stock as may from
time to time be issuable upon conversion of Debt Securities registered
hereunder and an indeterminate number of shares of Common Stock as may from
time to time be issuable upon conversion of Debt Securities or Preferred
Stock registered hereunder or upon exercise of Common Stock Warrants
registered hereunder, as the case may be.
(3) Estimated solely for purposes of calculating the registration fee. No
separate consideration will be received for securities as may from time to
time be issued upon conversion or exchange of the securities registered
hereunder. The maximum aggregate offering price of all securities offered
pursuant to this Registration Statement will not exceed $400,000,000.
(4) Calculated pursuant to Rule 457(o) under the Securities Act.
================================================================================
2
<PAGE> 3
SUBJECT TO COMPLETION, DATED MARCH 25, 1997
PROSPECTUS
JDN REALTY CORPORATION
$400,000,000
COMMON STOCK, COMMON STOCK WARRANTS, PREFERRED STOCK AND DEBT SECURITIES
JDN Realty Corporation (the "Company") operates as a real estate investment
trust ("REIT") under the Internal Revenue Code of 1986, as amended, and may from
time to time offer in one or more series (i) shares of common stock, par value
$.01 per share (the "Common Stock"), (ii) warrants to purchase Common Stock (the
"Common Stock Warrants"), (iii) shares of preferred stock, par value $.01 per
share (the "Preferred Stock"), or (iv) debt securities (the "Debt Securities"),
with an aggregate public offering price of up to $400,000,000 (or the equivalent
thereof in foreign currencies or currency units) in amounts, at prices and on
terms to be determined at the time of any such offering. The Company may offer
the Common Stock, Common Stock Warrants, Preferred Stock, and Debt Securities
(collectively, the "Securities") from time to time, separately or together, in
separate series, in amounts, at prices and on terms to be set forth in
supplements to this Prospectus (each a "Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable: (i) in the case of Common Stock, the specific
number of shares and issuance price per share; (ii) in the case of Common Stock
Warrants, the duration, offering price, exercise price and detachability; (iii)
in the case of Preferred Stock, the specific number of shares, designation, any
dividend, liquidation, redemption, conversion, voting and other rights, and any
initial public offering price; and (iv) in the case of Debt Securities, the
specific title, aggregate principal amount, currency of denomination and
payment, form (which may be registered or bearer, or certificated or global),
authorized denominations, maturity, rate (or manner of calculation thereof) and
time of payment of interest, terms for redemption at the option of the Company
or repayment at the option of the holder, terms for any sinking fund payments,
terms for conversion into Common Stock, Preferred Stock or Debt Securities of
another series, and any initial public offering price. In addition, such
specific terms may include limitations on direct or beneficial ownership and
restrictions on transfer of the Securities, in each case as may be appropriate
to preserve the status of the Company as a REIT for federal income tax purposes.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain federal income tax considerations relating to, and any
listing on a securities exchange of, the Securities covered by such Prospectus
Supplement.
The Securities may be offered by the Company directly, through agents
designated from time to time by the Company, or to or through underwriters or
dealers. If any agents or underwriters are involved in the sale of any of the
Securities, their names, and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth, or will be
calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Securities may be sold without
delivery of the applicable Prospectus Supplement describing the method and terms
of the offering of such series of Securities.
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
---------------
THE DATE OF THIS PROSPECTUS IS MARCH ___, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission at Room 1024, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Midwest Regional Office, Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511; Northeast Regional
Office, 7 World Trade Center, Suite 1300, New York, New York 10048. Copies of
such material may be obtained from the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. The Commission maintains a Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of the Commission's Web site is: http://www.sec.gov. The Common Stock is listed
on the NYSE and such reports, proxy statements and other information concerning
the Company can be inspected at the offices of the NYSE, 20 Broad Street, New
York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), with respect to the Securities. The Prospectus and any
accompanying Prospectus Supplement do not contain all of the information
included in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. For further
information with respect to the Company and the Securities, reference is hereby
made to the Registration Statement, including the exhibits and schedules
thereto. Statements contained in this Prospectus and any accompanying Prospectus
Supplement concerning the provisions or contents of any contract, agreement or
any other document referred to herein are not necessarily complete. With respect
to each such contract, agreement or document filed as an exhibit to the
Registration Statement, reference is made to such exhibit for a more complete
description of the matters involved, and each such statement shall be deemed
qualified in its entirety by such reference to the copy of the applicable
document filed with the Commission. The Registration Statement, including the
exhibits and schedules thereto, may be inspected without charge at the
Commission's principal office at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and copies of it or any part thereof may be obtained from
such office, upon payment of the fees prescribed by the Commission.
---------------
2
<PAGE> 5
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have previously been filed by the Company
with the Commission under the Exchange Act (File No. 1-12844) are incorporated
herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31, 1995;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
1996;
(c) Quarterly Report on Form 10-Q for the quarter ended June 30, 1996;
(d) Quarterly Report on Form 10-Q for the quarter ended September 30,
1996;
(e) Current Report on Form 8-K, dated November 7, 1996;
(f) Current Report on Form 8-K, dated November 22, 1996;
(g) Current Report on Form 8-K, dated March 4, 1997;
(h) Current Report on Form 8-K, dated March 12, 1997;
(i) Current Report on Form 8-K, dated March 25, 1997;
(j) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the Company's fiscal year ended December 31,
1995; and
(k) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on February
23, 1994, and the information therein incorporated by reference contained
in the Company's Registration Statement on Form S-11 (File No. 33-73710).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities made hereby shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein, or in a
document incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in an applicable Prospectus
Supplement) or in any subsequently filed document which also is or is deemed to
be incorporated by reference herein, modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus or any
Prospectus Supplement.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, on the written
request of any such person, a copy of any or all of the documents incorporated
herein by reference, except the exhibits to such documents (unless such exhibits
are specifically incorporated by reference in such documents). Requests for such
copies should be directed to the Company, at 3340 Peachtree Road, Suite 1530,
Atlanta, Georgia 30326, Attention: Investor Relations, (404) 262-3252.
3
<PAGE> 6
Unless the context otherwise requires, as used herein the terms "Company"
or "JDN" include JDN Realty Corporation, its predecessor, JDN Development
Company, Inc., subsidiaries of JDN Realty Corporation and JDN Development
Company, Inc., and joint ventures (including limited liability companies) in
which JDN Realty Corporation, JDN Development Company, Inc. or their
subsidiaries own an interest.
THE COMPANY
JDN Realty Corporation (the "Company"), which began operations in 1978, is
a real estate development company operating as a REIT and specializing in the
development and asset management of retail shopping centers anchored by
value-oriented retailers. As of February 28, 1997, the Company owned and
operated, either directly or through affiliated entities or joint ventures, 49
shopping center properties containing approximately 6.3 million square feet of
gross leasable area, located in ten states, primarily in the Southeast.
The Company is one of the largest developers of Wal-Mart anchored shopping
centers in the United States. The Company credits much of its success to its
strong relationships with national, regional and local tenants, financing
sources and other real estate companies, which it has developed during its years
of operations. The Company continuously works to improve existing tenant
relationships and to develop new tenant relationships.
The Company's business objective is to increase its funds from operations
by (i) development of new shopping centers anchored by strong retail tenants
with high credit quality, (ii) redevelopment and expansion of its existing
properties, (iii) effective leasing and management of its properties and ground
leasing of adjacent outparcels, and (iv) acquisition of existing shopping
centers. The Company is a fully integrated real estate firm with in-house
development, redevelopment, expansion, leasing, property management and
acquisition expertise.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement
accompanying this Prospectus, the Company intends to use the net proceeds from
the sale of the Securities for general corporate purposes, which may include the
development, redevelopment and acquisition of shopping center properties as
suitable opportunities arise, the expansion and improvement of certain
properties in the Company's portfolio and the repayment of outstanding
indebtedness.
Pending such uses, net proceeds of any offering of Securities will be
invested in short-term, investment grade instruments, interest-bearing bank
accounts or certificates of deposit, consistent with the Company's qualification
as a REIT, the Company's Charter, as amended (the "Charter") and the Company's
agreements with its lenders.
4
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company for the years indicated:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
--------------- ------------------------
1996 1995 1995 1994 1993 1992 1991
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to
Fixed Charges.................... 2.28x 1.81x 1.90x 1.64x * * *
</TABLE>
- ---------------
* Prior to completion of the Company's initial public offering of its common
stock on March 29, 1994, the Company and its predecessor businesses were
privately held and operated in a manner to minimize net taxable income and to
fund any operating cash flow deficits through the sale of shopping center
properties. As a result, although the Company historically generated positive
cash flow, it had net losses for the years ended December 31, 1993, 1992 and
1991. Consequently, the computation of the ratio of earnings to fixed charges
for such years indicates that earnings were inadequate to cover fixed charges by
approximately $1.2 million, $1.8 million and $6.4 million for the years ended
December 31, 1993, 1992 and 1991, respectively.
For purposes of calculating the ratio of earnings to fixed charges,
earnings have been calculated by adding fixed charges (excluding capitalized
interest) to income (loss) before income tax benefits, net gain (loss) on real
estate sales, extraordinary items and cumulative effect of changes in accounting
principles. Fixed charges consist of interest costs, whether expensed or
capitalized, and amortization of deferred debt costs. To date, the Company has
not issued any Preferred Stock; therefore, the ratios of earnings to fixed
charges and Preferred Stock dividend requirements are the same as the ratios of
earnings to fixed charges presented above.
5
<PAGE> 8
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue an aggregate of 170,000,000 shares of
capital stock, which includes 150,000,000 shares of Common Stock and 20,000,000
shares of Preferred Stock. On the date hereof, 15,457,886 shares of Common
Stock were outstanding and no shares of Preferred Stock were outstanding.
RESTRICTIONS ON OWNERSHIP
For the Company to qualify as a REIT under the Code in any taxable year,
(i) not more than 50% in value of its outstanding capital stock may be owned,
directly or indirectly (after application of certain complex attribution rules),
by five or fewer individuals (as defined in the Code) at any time during the
last half of its taxable year, and (ii) its stock must be beneficially owned by
100 or more persons during at least 335 days of a taxable year of 12 months or
during a proportionate part of a shorter taxable year. In order to ensure that
requirement (i) above is satisfied, the Board of Directors shall refuse to
transfer shares of the Common Stock to any person whose acquisition of such
shares would result in the direct or indirect ownership of more than 8% either
in number or value of the outstanding Common Stock and to transfer shares of
Preferred Stock to any person whose acquisition of such shares would result in
the direct or indirect ownership of more than 8% either in number or value.
In connection with the foregoing, if the Board of Directors shall, at any
time and in good faith, believe that direct or indirect ownership (as determined
under applicable federal tax attribution rules) of at least 8% or more either in
number or value of the outstanding capital stock has or may become concentrated
in the hands of one beneficial owner (other than the Nichols, their family and
certain affiliates), the Board of Directors shall refuse to transfer or issue
capital stock to a person whose acquisition of such capital stock would cause a
beneficial holder to hold in excess of 8% in value of the outstanding capital
stock, subject to certain exceptions specified in the Charter. Further, any
transfer of capital stock that would create a beneficial owner of more than 8%
of the outstanding capital stock (other than to the Nichols, their family and
certain affiliates, and certain exceptions specified in the Charter) shall be
deemed void and the intended transferee shall be deemed never to have had an
interest therein. As of December 31, 1996, the Nichols, members of their family
and certain affiliates beneficially owned in excess of 8% in value of the
outstanding Common Stock of the Company and may continue to do so. The Nichols,
members of their family and certain affiliates may acquire additional shares of
Common Stock but not such that any five individuals (as defined in the Code),
taking into account the 8% limit, would beneficially own more than 49.9% of the
Company's outstanding Common Stock.
The Board of Directors is entitled to waive the ownership limit with
respect to a particular stockholder if evidence satisfactory to the Board of
Directors and the Company's tax counsel is presented that such ownership will
not then or in the future jeopardize the Company's status as a REIT. As a
condition of such waiver, the Board of Directors may require opinions of counsel
satisfactory to it and/or an undertaking from the stockholder with respect to
preserving the REIT status of the Company.
If at any time there is a transfer in violation of such restrictions, those
shares of outstanding capital stock in excess of 8% either in number or value of
the Company's outstanding Common Stock, and those shares of outstanding
Preferred Stock in excess of 8% either in number or value of the Company's
6
<PAGE> 9
outstanding Preferred Stock, subject to the foregoing exceptions ("Excess
Shares"), shall be deemed to have been transferred to the Company, as trustee
for the benefit of such persons to whom the Excess Shares are later transferred.
Subject to the Company's right to purchase the Excess Shares, the interest in
the trust representing the Excess Shares shall be freely transferable by the
intended transferee at a price that does not exceed the price paid by the
intended transferee for the Excess Shares. Excess Shares shall have no voting
rights, and shall not be considered for the purpose of any shareholder vote or
determining a quorum, but shall continue to be reflected as issued and
outstanding stock. No dividends shall be paid with respect to Excess Shares. The
Company shall have the right to purchase Excess Shares for the lesser of the
amount paid by the intended transferee for the Excess Shares or the market
price. The market price for any capital stock so purchased, shall be equal to
the fair market value of such Excess Shares reflected in (i) the closing sales
price for the capital stock, if then listed on only one national securities
exchange, or (ii) the average closing sales price of such capital stock if then
listed on more than one national securities exchange, or (iii) if the capital
stock is not then listed on a national securities exchange, the latest bid
quotation for the capital stock if then traded over-the-counter, as of the day
immediately preceding the date on which notices of such purchase are sent by the
Company. If no such closing sales prices or quotations are available, the
purchase price shall equal the net asset value of such capital stock as
determined by the Board of Directors in good faith.
All persons who own a specified percentage (or more) of the outstanding
capital stock of the Company must file a certificate with the Company containing
information regarding their ownership of stock as set forth in the Treasury
Regulations. Under current Treasury Regulations, the percentage is set between
one-half of one percent and five percent, depending on the number of record
holders of stock. In addition, each stockholder shall, upon demand, be required
to disclose to the Company in writing such information with respect to the
direct, indirect, and constructive ownership of shares of stock of the Company
as the Board of Directors deems necessary to comply with the provisions of the
Code applicable to a REIT or to comply with the requirements of any taxing
authority or governmental agency.
All certificates representing shares of capital stock bear a legend
referring to the restrictions described above.
BUSINESS COMBINATIONS
Under the Maryland General Corporation Law, certain "business combinations"
(including a merger, consolidation, share exchange, or, in certain
circumstances, an asset transfer or issuance or reclassification of equity
securities) between a Maryland corporation and any person who beneficially owns
10% or more of the corporation's stock (an "Interested Shareholder") must be:
(a) recommended by the corporation's board of directors; and (b) approved by the
affirmative vote of at least (i) 80% of the corporation's outstanding shares
entitled to vote and (ii) two-thirds of the outstanding shares entitled to vote
which are not held by the Interested Shareholder with whom the business
combination is to be effected, unless, among other things, the corporation's
holders of capital stock receive a minimum price (as defined in the statute) for
their shares and the consideration is received in cash or in the same form as
previously paid by the Interested Shareholder for his shares. In addition, an
Interested Shareholder or affiliate thereof may not engage in a business
combination with the corporation for a period of five years following the most
recent date the person became an Interested Shareholder. These provisions of
Maryland law do not apply, however, to business combinations that are approved
by the board of directors of a Maryland corporation prior to a person's becoming
an Interested Shareholder.
7
<PAGE> 10
CONTROL SHARE ACQUISITIONS
The Maryland General Corporation Law provides that "control shares" of a
Maryland corporation acquired in a "control share acquisition" may not be voted
except to the extent approved by a vote of two-thirds of all the corporation's
shares entitled to vote on the matter, excluding all interested shares. "Control
shares" are shares which, if aggregated with all other shares owned by the
person or in respect of which that person is entitled to exercise or direct the
exercise of voting power, except solely by virtue of a revocable proxy, would
entitle the acquirer to vote (i) 20% or more but less than one-third, (ii)
one-third or more but less than a majority, or (iii) a majority or more of the
outstanding shares entitled to vote. Control shares do not include shares which
the acquiring person is entitled to vote as a result of having previously
obtained the required shareholder approval. A "control share acquisition" means
the acquisition of control shares, subject to certain exceptions.
A person who has made or proposes to make a control share acquisition and
who has undertaken to reimburse certain expenses of the corporation and has
obtained a definitive financing agreement with a responsible financial
institution providing for any amount of financing not to be provided by the
acquiring person may compel the corporation's board of directors to call a
special meeting of shareholders to be held within 50 days of demand to consider
the voting rights of the shares. If no request for a meeting is made, the
corporation may itself present the question at any shareholders meeting.
Subject to certain conditions and limitations, if the voting rights of the
control shares were considered and not approved, the corporation may redeem any
or all of the control shares, except those for which voting rights have
previously been approved, for fair value determined, without regard to absence
of voting rights, as of the date of the last control share acquisition by the
acquirer or as of the date of any meeting of shareholders at which the voting
rights of such shares are considered and not approved. If voting rights for
control shares are approved at a shareholders meeting and the acquirer is
entitled to vote a majority of the shares entitled to vote, prior to the control
share acquisition all other shareholders may exercise appraisal rights, unless
the charter or bylaws of the corporation provide otherwise. The fair value of
the shares as determined for purposes of such appraisal rights may not be less
than the highest price per share paid by the acquiring person in the control
share acquisition. Certain limitations and restrictions otherwise applicable to
the exercise of dissenters' rights do not apply in the context of a control
share acquisition.
The control share acquisition statute does not apply to shares acquired in
a merger, consolidation or share exchange if the corporation is a party to the
transaction, or to the acquisitions approved or exempted by the charter or
bylaws of the corporation prior to a control share acquisition.
The limitation on ownership of the Company's Stock set forth in the
Charter, as well as the provisions of Maryland law described above, could have
the effect of discouraging offers to acquire the Company and of increasing the
difficulty of consummating any such offer.
8
<PAGE> 11
DESCRIPTION OF COMMON STOCK
The Company is authorized to issue 150,000,000 shares of Common Stock.
On the date hereof, 15,457,886 shares of Common Stock were outstanding, held
by approximately 347 record holders.
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any Prospectus Supplement may
relate, including a Prospectus Supplement providing that Common Stock will be
issuable upon conversion of Debt Securities or Preferred Stock of the Company or
upon the exercise of Common Stock Warrants issued by the Company. The statements
below describing the Common Stock are in all respects subject to and qualified
in their entirety by reference to the applicable provisions of the Charter.
Holders of shares of Common Stock are entitled to receive such dividends as
the Board of Directors may declare out of funds legally available for the
payment of dividends. Upon issuance, the shares of Common Stock will be fully
paid and nonassessable and have no preferences or conversion, exchange or
preemptive rights. In the event of any liquidation, dissolution or winding-up of
the Company, the holders of shares of Common Stock are entitled to share ratably
in any of the Company's assets remaining after the satisfaction of all
obligations and liabilities of the Company and after required distributions to
holders of Preferred Stock, if any. Each share is entitled to one vote on all
matters voted upon by the holders of Common Stock. Holders of shares of Common
Stock have no cumulative voting rights.
EXCHANGE LISTING
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol JDN.
DIVIDEND REINVESTMENT AND STOCK PURCHASE PLAN
The Company initially reserved 500,000 shares of Common Stock for issuance
under its Dividend Reinvestment and Stock Purchase Plan (the "Plan") to provide
record owners of the Company's Common Stock with a method of investing
dividends and other distributions paid in cash in additional shares of the
Company's Common Stock. The Company may issue original issue shares under the
Plan or, from time to time, direct First Union National Bank of North Carolina,
as the Company's agent under the Plan, to repurchase shares of the Company's
Common Stock in the open market for sale under the Plan. To the extent shares
of Common Stock purchased under the Plan are purchased from the Company, the
Company will receive additional funds to be used for its general corporate
purposes. On the date hereof, 498,390 shares of Common Stock are reserved for
issuance under this plan.
EMPLOYEE STOCK PURCHASE PLAN
The Company initially reserved 100,000 shares of Common Stock for issuance
under the JDN Corporation 1995 Employee Stock Purchase Plan, which provides an
opportunity for eligible employees of JDN Realty Corporation and its
subsidiaries to acquire an interest in the Company through acquisitions of
shares of the Company's Common Stock at a discount. The proceeds of shares
purchased under this plan will be used for the Company's general corporate
purposes. On the date hereof, 99,168 shares of Common Stock are reserved for
issuance under this plan.
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RESTRICTIONS ON OWNERSHIP
The Common Stock is subject to certain restrictions on ownership described
above under "Description of Capital Stock - Restrictions on Ownership".
TRANSFER AGENT
The transfer agent and registrar for the Company's Common Stock is First
Union National Bank of North Carolina ("First Union").
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DESCRIPTION OF COMMON STOCK WARRANTS
The Company may issue Common Stock Warrants for the purchase of Common
Stock. Common Stock Warrants may be issued independently or together with any
other Securities offered pursuant to any Prospectus Supplement and may be
attached to or separate from such Securities. Each series of Common Stock
Warrants will be issued under a separate warrant agreement (each, a "Warrant
Agreement") to be entered into between the Company and the warrant recipient or,
if the recipients are numerous, a warrant agent identified in the applicable
Prospectus Supplement (the "Warrant Agent"). The Warrant Agent, if engaged, will
act solely as an agent of the Company in connection with the Common Stock
Warrants of such series and will not assume any obligation or relationship of
agency or trust for or with any holders or beneficial owners of Common Stock
Warrants. Further terms of the Common Stock Warrants and the applicable Warrant
Agreements will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will describe the terms of any Common
Stock Warrants in respect of which this Prospectus is being delivered,
including, where applicable, the following: (1) the title of such Common Stock
Warrants; (2) the aggregate number of such Common Stock Warrants; (3) the price
or prices at which such Common Stock Warrants will be issued; (4) the
designation, number and terms of the shares of Common Stock purchasable upon
exercise of such Common Stock Warrants; (5) the designation and terms of the
other Securities with which such Common Stock Warrants are issued and the number
of such Common Stock Warrants issued with such offered Securities; (6) the date,
if any, on and after which such Common Stock Warrants and the related Common
Stock will be separately transferable; (7) the price at which each share of
Common Stock purchasable upon exercise of such Common Stock Warrants may be
purchased; (8) the date on which the right to exercise such Common Stock
Warrants shall commence and the date on which such right shall expire; (9) the
minimum or maximum amount of such Common Stock Warrants which may be exercised
at any one time; (10) information with respect to book-entry procedures, if any;
(11) a discussion of certain federal income tax considerations relevant to a
holder of such Common Stock Warrants; and (12) any other terms of such Common
Stock Warrants, including terms, procedures and limitations relating to the
exchange and exercise of such Common Stock Warrants.
Reference is made to the section captioned "Description of Common Stock"
for a general description of the Common Stock to be acquired upon the exercise
of the Common Stock Warrants. Additionally, the section captioned "Description
of Capital Stock" includes a description of certain restrictions on transfer of
the Common Stock.
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DESCRIPTION OF PREFERRED STOCK
GENERAL
The Company is authorized to issue 20,000,000 shares of Preferred Stock,
par value $.01 per share, none of which were outstanding on the date hereof.
The following description of the Preferred Stock sets forth certain
anticipated general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of Preferred
Stock (which terms may be different than those stated below) will be described
in the Prospectus Supplement to which such series relates. The statements below
describing the Preferred Stock are in all respects subject to and qualified in
their entirety by reference to the applicable provisions of the applicable
Prospectus Supplement and Charter (including the amendment describing the
designations, rights, and preferences of each series of Preferred Stock) and
Bylaws.
Subject to limitations prescribed by Maryland law and the Charter, the
Company's Board of Directors is authorized to fix the number of shares
constituting each series of Preferred Stock and the designations and powers,
preferences and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, including such provisions
as may be desired concerning voting, redemption, dividends, dissolution or the
distribution of assets, conversion or exchange, and such other subjects or
matters as may be fixed by resolution of the Board of Directors or the duly
authorized committee thereof. The Preferred Stock will, when issued, be fully
paid and nonassessable and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including: (1) the title and stated
value of such Preferred Stock; (2) the number of shares of such Preferred Stock
offered, the liquidation preference per share and the offering price of such
Preferred Stock; (3) the dividend rate(s), period(s) and or payment date(s) or
method(s) of calculation thereof applicable to such Preferred Stock; (4) the
date from which dividends on such Preferred Stock shall accumulate, if
applicable; (5) the procedures for any auction and remarketing, if any, for such
Preferred Stock; (6) the provision for a sinking fund, if any, for such
Preferred Stock; (7) the provisions for redemption, if applicable, of such
Preferred Stock; (8) any listing of such Preferred Stock on any securities
exchange; (9) the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock, including the conversion price (or
manner of calculation thereof); (10) a discussion of certain federal income tax
considerations relevant to a holder of such Preferred Stock; (11) the relative
ranking and preferences of such Preferred Stock as to dividend rights and rights
upon liquidation, dissolution or winding up of the affairs of the Company; (12)
any limitations on issuance of any series of Preferred Stock ranking senior to
or on a parity with such series of Preferred Stock as to dividend rights and
rights upon liquidation, dissolution or winding up of the affairs of the
Company; (13) any limitations on direct or beneficial ownership and restrictions
on transfer, in each case as may be appropriate to preserve the status of the
Company as a REIT and (14) any other specific terms, preferences, rights,
limitations or restrictions of such Preferred Stock.
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RANK
Unless otherwise specified in the applicable Prospectus Supplement, the
Preferred Stock will, with respect to dividend rights and rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to all
classes or series of Common Stock of the Company, and to all equity and debt
securities which are specifically designated as ranking junior to such Preferred
Stock with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company; (ii) on a parity with all equity and debt securities
issued by the Company the terms of which specifically provide that such equity
and debt securities rank on a parity with the Preferred Stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of the
Company; and (iii) junior to all equity and debt securities issued by the
Company the terms of which specifically provide that such equity and debt
securities rank senior to the Preferred Stock with respect to dividend rights or
rights upon liquidation, dissolution or winding up of the Company.
DIVIDENDS
Holders of shares of the Preferred Stock of each series shall be entitled
to receive, when, as and if declared by the Board of Directors of the Company,
out of assets of the Company legally available for payment, cash dividends (or
dividends in kind or in other property if expressly permitted and described in
the applicable Prospectus Supplement) at such rates and on such dates as will be
set forth in the applicable Prospectus Supplement. Each such dividend shall be
payable to holders of record as they appear on the stock transfer books of the
Company on such record dates as shall be fixed by the Board of Directors of the
Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors of the Company fails
to declare a dividend payable on a dividend payment date on any series of the
Preferred Stock for which dividends are noncumulative, then the holders of such
series of the Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
Unless otherwise specified in the applicable Prospectus Supplement, if any
shares of the Preferred Stock of any series are outstanding, no full dividends
shall be declared or paid or set apart for payment on the Preferred Stock of the
Company of any other series ranking, as to dividends, on a parity with or junior
to the Preferred Stock of such series for any period unless full dividends
(which include all unpaid dividends in the case of cumulative dividend Preferred
Stock) 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
Preferred Stock of such series.
When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the shares of Preferred Stock of any series
and the shares of any other series of Preferred Stock ranking on a parity as to
dividends with the Preferred Stock of such series, all dividends declared upon
shares of Preferred Stock of such series and any other series of Preferred Stock
ranking on a parity as to dividends with such Preferred Stock shall be declared
pro rata among the holders of such series. No
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interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on Preferred Stock of such series which may be
in arrears.
Until required dividends are paid, no dividends (other than in Common Stock
or other capital stock ranking junior to the Preferred Stock of such series as
to dividends and upon liquidation) shall be declared or paid or set aside for
payment or other distribution shall 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
Preferred Stock of such series as to dividends or upon liquidation, nor shall
any Common Stock or any other capital stock of the Company ranking junior to or
on a parity with the Preferred Stock of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any 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
Preferred Stock of such series as to dividends and upon liquidation).
Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of Preferred Stock of such series which remains payable.
REDEMPTION
If so provided in the applicable Prospectus Supplement, the shares of
Preferred Stock will be subject to mandatory redemption or redemption at the
option of the Company, as a whole or in part, in each case upon the terms, at
the times and at the redemption prices set forth in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon (which
shall not, if such Preferred Stock does not have a cumulative dividend, include
any accumulation in respect of unpaid dividends for prior dividend periods) to
the date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Stock of any series is payable only from the net
proceeds of the issuance of capital stock of the Company, the terms of such
Preferred Stock may provide that, if no such capital stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into shares of the applicable capital
stock of the Company pursuant to conversion provisions specified in the
applicable Prospectus Supplement.
So long as any dividends on shares of any series of the Preferred Stock of
the Company ranking on a parity as to dividends and distributions of assets with
such series of the Preferred Stock are in arrears, no shares of any such series
of the Preferred Stock of the Company will be redeemed (whether by mandatory or
optional redemption) unless all such shares are simultaneously redeemed, and the
Company will not purchase or otherwise acquire any such shares; provided,
however, that the foregoing will not prevent the purchase or acquisition of such
shares of Preferred Stock to preserve the REIT status of the Company or pursuant
to a purchase or exchange offer made on the same terms to holders of all
outstanding shares of Preferred Stock of such series and, unless the full
cumulative dividends on all
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outstanding shares of any cumulative Preferred Stock of such series and any
other stock of the Company ranking on a parity with such series as to dividends
and upon liquidation shall have been paid or contemporaneously are declared and
paid for all past dividend periods, the Company shall not purchase or otherwise
acquire directly or indirectly any shares of Preferred Stock of such series
(except by conversion into or exchange for stock of the Company ranking junior
to the Preferred Stock of such series as to dividends and upon liquidation);
provided, however, that the foregoing will not prevent the purchase or
acquisition of such shares of Preferred Stock to preserve the REIT status of the
Company or pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of Preferred Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any
series 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 (with adjustments to avoid redemption of fractional shares) or
any other equitable method determined by the Company that will not result in the
issuance of any Excess Shares.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of a share of Preferred
Stock of any series to be redeemed at the address shown on the stock transfer
books of the Company. If notice of redemption of any shares of Preferred Stock
has been given and if the funds necessary for such redemption have been set
aside by the Company in trust for the benefit of the holders of any shares of
Preferred Stock so called for redemption, then from and after the redemption
date dividends will cease to accrue on such shares of Preferred Stock, such
shares of 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.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, then, before any distribution or payment shall be
made to the holders of Common Stock, or any other class or series of capital
stock of the Company ranking junior to the Preferred Stock in the distribution
of assets upon any liquidation, dissolution or winding up of the Company, the
holders of each series of Preferred Stock shall be entitled to receive out of
assets of the Company legally available for distribution to shareholders
liquidating distributions in the amount of the liquidation preference per share
(set forth in the applicable Prospectus Supplement), plus an amount equal to all
dividends accrued and unpaid thereon (which shall not include any accumulation
in respect of unpaid dividends for prior dividend periods if such Preferred
Stock does not have a cumulative dividend). After payment of the full amount of
the liquidating distributions to which they are entitled, the holders of shares
of 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, the legally available assets of the
Company are insufficient to pay the amount of the liquidating distributions on
all outstanding shares of 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 Preferred Stock in the distribution of assets upon
liquidation, dissolution or winding up, then the holders of the Preferred Stock
and all other such classes or series of 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.
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If liquidating distributions shall have been made in full to all holders of
shares of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of capital stock
ranking junior to the Preferred Stock upon liquidation, dissolution or winding
up, according to their respective rights and preferences and in each case
according to their respective number of shares.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Any series of Preferred Stock may provide that, so long as any shares of
such series of Preferred Stock remain outstanding, the holders of such series
may vote as a separate class on certain specified matters, which may include
changes in the Company's capitalization, amendments to the Charter, and mergers
and dispositions.
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 such series of Preferred Stock shall have
been redeemed or called for redemption upon proper notice and sufficient funds
shall have been irrevocably deposited in trust to effect such redemption.
The provisions of a series of Preferred Stock may provide for additional
rights, remedies, and privileges if dividends on such series are in arrears for
specified periods, which rights and privileges will be described in the
applicable Prospectus Supplement.
Under Maryland law, notwithstanding anything to the contrary set forth
above, holders of each series of Preferred Stock will be entitled to vote upon a
proposed amendment to the Charter, whether or not entitled to vote thereon by
the Charter, if the amendment would alter the contract rights, as set forth in
the Charter, of their shares of stock.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any series of
Preferred Stock are convertible into Common Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include the
number of shares of Common Stock into which the Preferred Stock is convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such Preferred Stock.
RESTRICTIONS ON OWNERSHIP
The Preferred Stock is subject to certain restrictions on ownership
described above under "Description of Capital Stock - Restrictions on
Ownership".
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DESCRIPTION OF DEBT SECURITIES
The Company may issue Debt Securities under one or more trust indentures
(each an "Indenture") to be executed by the Company and one or more trustees
(each a "Trustee") meeting the requirements of a trustee under the Trust
Indenture Act of 1939, as amended (the "TIA"). The Indentures will be qualified
under the TIA.
The following description sets forth certain anticipated general terms and
provisions of the Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities offered by any Prospectus Supplement
(which terms may be different than those stated below) and the extent, if any,
to which such general provisions may apply to the Debt Securities so offered
will be described in the Prospectus Supplement relating to such Debt Securities.
Accordingly, for a description of the terms of a particular issue of Debt
Securities, reference must be made to both the Prospectus Supplement relating
thereto and the following description. Forms of the Senior Indenture (as defined
herein) and the Subordinated Indenture (as defined herein) have been filed as
exhibits to the Registration Statement of which this Prospectus is a part.
GENERAL
The Debt Securities will be direct obligations of the Company and may be
either senior Debt Securities ("Senior Securities") or subordinated Debt
Securities ("Subordinated Securities"). The indebtedness represented by
Subordinated Securities will be subordinated in right of payment to the prior
payment in full of the Senior Debt (as defined in the applicable Indenture) of
the Company. Senior Securities and Subordinated Securities will be issued
pursuant to separate indentures (respectively, a "Senior Indenture" and a
"Subordinated Indenture"), in each case between the Company and a Trustee.
Except as set forth in the applicable Indenture and described in a
Prospectus Supplement relating thereto, the Debt Securities may be issued
without limit as to aggregate principal amount, in one or more series, secured
or unsecured, in each case as established from time to time in or pursuant to
authority granted by a resolution of the Board of Directors of the Company or as
established in the applicable Indenture. All Debt Securities of one series need
not be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the Debt Securities of such
series, for issuances of additional Debt Securities of such series.
The Prospectus Supplement relating to any series of Debt Securities being
offered will contain the specific terms thereof, including, without limitation:
(1) the title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
(2) the aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal amount
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thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof, or (if
applicable) the portion of the principal amount of such Debt
Securities which is convertible into Common Stock or Preferred
Stock, or the method by which any such portion shall be
determined;
(4) if convertible, any applicable limitations on the ownership or
transferability of the Common Stock or Preferred Stock into which
such Debt Securities are convertible;
(5) the date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable;
(6) the rate or rates (which may be fixed or variable), or the method
by which such rate or rates shall be determined, at which such
Debt Securities will bear interest, if any;
(7) the date or dates, or the method for determining such date or
dates, from which any interest will accrue, the interest payment
dates on which any such interest will be payable, the regular
record dates for such interest payment dates, or the method by
which any such date shall be determined, the person to whom such
interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(8) the place or places where the principal of (and premium, if any)
and interest, if any, on such Debt Securities will be payable,
such Debt Securities may be surrendered for conversion or
registration of transfer or exchange and notices or demands to or
upon the Company in respect of such Debt Securities and the
applicable Indenture may be served;
(9) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Debt Securities may
be redeemed, as a whole or in part, at the option of the Company,
if the Company is to have such an option;
(10) the obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a holder thereof, and the
period or periods within which, the price or prices at which and
the terms and conditions upon which such Debt Securities will be
redeemed, repaid or purchased, as a whole or in part, pursuant to
such obligation;
(11) if other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be a
foreign currency or units of two or more foreign currencies or a
composite currency or currencies, and the terms and conditions
relating thereto;
(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method
(which index, formula or method may, but need not be,
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based on a currency, currencies, currency unit or units or
composite currency or currencies) and the manner in which such
amounts shall be determined;
(13) any additions to, modifications of or deletions from the terms of
such Debt Securities with respect to the Events of Default or
covenants set forth in the Indenture;
(14) any provisions for collateral security for repayment of such Debt
Securities;
(15) whether such Debt Securities will be issued in certificated
and/or book-entry form;
(16) whether such Debt Securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other
than $1,000 and any integral multiple thereof and, if in bearer
form, the denominations thereof and terms and conditions relating
thereto;
(17) the applicability, if any, of defeasance and covenant defeasance
provisions of the applicable Indenture;
(18) the terms, if any, upon which such Debt Securities may be
convertible into Common Stock or Preferred Stock of the Company
and the terms and conditions upon which such conversion will be
effected, including, without limitation, the initial conversion
price or rate and the conversion period;
(19) whether and under what circumstances the Company will pay
additional amounts as contemplated in the Indenture on such Debt
Securities in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to
redeem such Debt Securities in lieu of making such payment; and
(20) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Special federal income tax, accounting
and other considerations applicable to Original Issue Discount Securities will
be described in the applicable Prospectus Supplement.
Except as set forth in the applicable Indenture, the applicable Indenture
will not contain any provisions that would limit the ability of the Company to
incur indebtedness or that would afford Holders of Debt Securities protection in
the event of a highly leveraged or similar transaction involving the Company or
in the event of a change of control. Restrictions on ownership and transfers of
the Company's Common Stock and Preferred Stock are designed to preserve its
status as a REIT and, therefore, may act to prevent or hinder a change of
control. See "Description of Capital Stock -- Restrictions on Ownership."
Reference is made to the applicable Prospectus Supplement for information with
respect to any deletions from, modifications of or additions to the Events of
Default or covenants
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of the Company that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
MERGER, CONSOLIDATION OR SALE
It is expected that the Indenture will provide that the Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other corporation, provided that (a)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) formed by or resulting from any such
consolidation or merger or which shall have received the transfer of such assets
shall expressly assume payment of the principal of (and premium, if any), and
interest on, all of the applicable Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions contained in
the applicable Indenture; (b) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any subsidiary as a result thereof as having been incurred by the
Company or such subsidiary at the time of such transaction, no Event of Default
under the applicable Indenture, and no event which, after notice or the lapse of
time, or both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an officer's certificate and legal opinion covering such
conditions shall be delivered to the Trustee.
COVENANTS
The Indenture will contain covenants requiring the Company to take certain
actions and prohibiting the Company from taking certain actions. The covenants
with respect to any series of Debt Securities will be described in the
Prospectus Supplement relating thereto.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture will described specific "Events of Defaults" with respect to
any series of Debt Securities issued thereunder. Such "Events of Defaults" are
likely to include (with grace and cure periods): (i) default in the payment of
any installment of interest on any Debt Security of such series; (ii) default in
the payment of principal of (or premium, if any, on) any Debt Security of such
series at its maturity; (iii) default in making any required sinking fund
payment for any Debt Security of such series; (iv) default in the performance or
breach of any other covenant or warranty of the Company contained in the
applicable Indenture (other than a covenant added to the Indenture solely for
the benefit of a series of Debt Securities issued thereunder other than such
series), continued for a specified period of days after written notice as
provided in the applicable Indenture; (v) default in the payment of specified
amounts of indebtedness of the Company or any mortgage, indenture or other
instrument under which such indebtedness is issued or by which such indebtedness
is secured, such default having occurred after the expiration of any applicable
grace period and having resulted in the acceleration of the maturity of such
indebtedness, but only if such indebtedness is not discharged or such
acceleration is not rescinded or annulled and (vi) certain events of bankruptcy,
insolvency or reorganization, or court appointment of a receiver, liquidator or
trustee of the Company or any Significant Subsidiary or either of its property.
If an Event of Default under any Indenture with respect to Debt Securities
of any series at the time outstanding occurs and is continuing, then in every
such case the applicable Trustee or the holders of not less than 25% of the
principal amount of the outstanding Debt Securities of that series will have the
right
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to declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or indexed securities, such portion of the
principal amounts may be specified in the terms thereof) of all the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the applicable Trustee if given by the holders).
However, at any time after such a declaration of acceleration with respect to
Debt Securities of such series (or of all Debt Securities then outstanding under
any Indenture, as the case may be) has been made, but before a judgment or
decree for payment of the money due has been obtained by the applicable Trustee,
the holders of not less than a majority in principal amount of outstanding Debt
Securities of such series (or of all Debt Securities then outstanding under the
applicable Indenture, as the case may be) may rescind and annul such declaration
and its consequences if (a) the Company shall have deposited with the applicable
Trustee all required payments of the principal of (and premium, if any) and
interest on the Debt Securities of such series (or of all Debt Securities then
outstanding under the applicable Indenture, as the case may be), plus certain
fees, expenses, disbursements and advances of the applicable Trustee and (b) all
events of default, other than the non-payment of accelerated principal (or
specified portion thereof), with respect to Debt Securities of such series (or
of all Debt Securities then outstanding under the applicable Indenture, as the
case may be) have been cured or waived as provided in such Indenture. Each
Indenture also will provide that the holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under the applicable Indenture, as the case may
be) may waive any past default with respect to such series and its consequences,
except a default (x) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series or (y) in respect of a covenant or
provision contained in the applicable Indenture that cannot be modified or
amended without the consent of the holder of each outstanding Debt Security
affected thereby.
Each Trustee will be required to give notice to the holders of Debt
Securities within 90 days of a default under the applicable Indenture unless
such default shall have been cured or waived; provided, however, that such
Trustee may withhold notice to the holders of any series of Debt Securities of
any default with respect to such series (except a default in the payment of the
principal of (or premium, if any) or interest on any Debt Security of such
series or in the payment of any sinking fund installment in respect of any Debt
Security of such series) if specified responsible officers of such Trustee
consider such withholding to be in the interest of such holders.
Each Indenture will provide that no holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the cases of failure of
the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of a Event of Default from the
holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it. This provision will not prevent, however, any holder of Debt
Securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on such Debt Securities at the respective
due dates thereof.
Subject to provisions in each Indenture relating to its duties in case of
default, no Trustee will be under any obligation to exercise any of its rights
or powers under an Indenture at the request or direction of any holders of any
series of Debt Securities then outstanding under such Indenture, unless such
holders shall have offered to the Trustee thereunder reasonable security or
indemnity. The holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series (or of all Debt
21
<PAGE> 24
Securities then outstanding under an Indenture, as the case may be) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the applicable Trustee, or of exercising any trust or
power conferred upon such Trustee. However, a Trustee may refuse to follow any
direction which is in conflict with any law or the applicable Indenture, which
may involve such Trustee in personal liability or which may be unduly
prejudicial to the holders of Debt Securities of such series not joining
therein.
Within 120 days after the close of each fiscal year, the Company will be
required to deliver to each Trustee a certificate, signed by one of several
specified officers, stating whether or not such officer has knowledge of any
default under the applicable Indenture and, if so, specifying each such default
and the nature and status thereof.
MODIFICATION OF THE INDENTURES
It is anticipated that modifications and amendments of an Indenture may be
made by the Company and the Trustee, with the consent of the holders of not less
than a majority in aggregate principal amount of each series of the outstanding
Debt Securities issued under the Indenture which are affected by the
modification or amendment, provided that no such modification or amendment may,
without a consent of each holder of such Debt Securities affected thereby: (1)
change the stated maturity date of the principal of (or premium, if any) or any
installment of interest, if any, on any such Debt Security; (2) reduce the
principal amount of (or premium, if any) or the interest, if any, on any such
Debt Security or the principal amount due upon acceleration of an Original Issue
Discount Security; (3) change the place or currency of payment of principal of
(or premium, if any) or interest, if any, on any such Debt Security; (4) impair
the right to institute suit for the enforcement of any such payment on or with
respect to any such Debt Security; (5) reduce the above-stated percentage of
holders of Debt Securities necessary to modify or amend the Indenture; or (6)
modify the foregoing requirements or reduce the percentage of outstanding Debt
Securities necessary to waive compliance with certain provisions of the
Indenture or for waiver of certain defaults. A record date may be set for any
act of the holders with respect to consenting to any amendment.
The holders of not less than a majority in principal amount of outstanding
Debt Securities of each series affected thereby will have the right to waive
compliance by the Company with certain covenants in such Indenture.
Each Indenture will contain provisions for convening meetings of the
holders of Debt Securities of a series to take permitted action.
REDEMPTION OF SECURITIES
The Indenture will provide that the Debt Securities may be redeemed at any
time at the option of the Company, in whole or in part, for certain reasons
intended to protect the Company's status as a REIT. Debt Securities may also be
subject to optional or mandatory redemption on terms and conditions described in
the applicable Prospectus Supplement.
From and after notice has been given as provided in the Indenture, if funds
for the redemption of any Debt Securities called for redemption shall have been
made available on such redemption date, such
22
<PAGE> 25
Debt Securities will cease to bear interest on the date fixed for such
redemption specified in such notice, and the only right of the holders of the
Debt Securities will be to receive payment of the Redemption Price.
CONVERSION OF SECURITIES
The terms and conditions, if any, upon which the Debt Securities are
convertible into Common Stock or Preferred Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
whether such Debt Securities are convertible into Common Stock or Preferred
Stock, the conversion price (or manner of calculation thereof), the conversion
period, provisions as to whether conversion will be at the option of the holders
or the Company, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such Debt
Securities and any restrictions on conversion, including restrictions directed
at maintaining the Company's REIT status.
SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
any Subordinated Securities will be subordinated to the extent provided in the
applicable Indenture in right of payment to the prior payment in full of all
Senior Securities. No payment of principal or interest will be permitted to be
made on Subordinated Securities at any time if a default in Senior Securities
exists that permits the Holders of such Senior Securities to accelerate their
maturity and the default is the subject of judicial proceedings or the Company
receives notice of the default. After all Senior Securities are paid in full and
until the Subordinated Securities are paid in full, Holders of Subordinated
Securities will be subrogated to the right of Holders of Senior Securities to
the extent that distributions otherwise payable to Holders of Subordinated
Securities have been applied to the payment of Senior Securities. By reason of
such subordination, in the event of a distribution of assets upon insolvency,
certain general creditors of the Company may recover more, ratably, than Holders
of Subordinated Securities. If this Prospectus is being delivered in connection
with a series of Subordinated Securities, the accompanying Prospectus Supplement
or the information incorporated herein by reference will contain the approximate
amount of Senior Securities outstanding as of the end of the Company's most
recent fiscal quarter.
23
<PAGE> 26
PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters for public offer and
sale by them, and also may sell Securities offered hereby to investors directly
or through agents. Any such underwriter or agent involved in the offer and sale
of the Securities will be named in the applicable Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, at prices related to the prevailing market prices at the
time of sale or at negotiated prices. The Company also may, from time to time,
authorize underwriters acting as the Company's agents to offer and sell
Securities upon terms and conditions set forth in the applicable Prospectus
Supplement. In connection with the sale of the Securities, underwriters may be
deemed to have received compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell Securities to or through dealers, and such dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters
and/or commissions from the purchasers for whom they may act as agent.
Any underwriters or agents in connection with an offering of the
Securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
Prospectus Supplement. Underwriters, dealers and agents participating in the
distribution of the Securities may be deemed to be underwriters, and any
discounts and commissions received by them and any profit realized by them on
resale of the Securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. Underwriters, dealers and agents may be
entitled, under agreements to be entered into with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
at the public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on the date or
dates stated in such Prospectus Supplement. Each delayed delivery contract will
be for an amount not less than, and the aggregate principal amount of Securities
sold pursuant to delayed delivery contracts shall be not less nor more than, the
respective amounts stated in the applicable Prospectus Supplement. Institutions
with whom delayed delivery contracts, when authorized, may be made include
commercial and savings banks, insurance companies, pension funds, investment
companies, educational and charitable institutions, and other institutions but
will in all cases be subject to the approval of the Company. Delayed delivery
contracts will not be subject to any conditions except (i) the purchase by an
institution of the Securities covered by its delayed delivery contracts shall
not at the time of delivery be prohibited under the laws of any jurisdiction in
the United States to which such institution is subject, and (ii) if the
Securities are being sold to underwriters, the Company shall have sold to such
underwriters the total principal amount of the Securities less the principal
amount thereof covered by delayed delivery contracts.
24
<PAGE> 27
EXPERTS
The consolidated financial statements of JDN Realty Corporation included in
JDN Realty Corporation's Annual Report (Form 10-K) for the year ended December
31, 1995 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Company by
Waller Lansden Dortch & Davis, A Professional Limited Liability Company,
Nashville, Tennessee.
25
<PAGE> 28
===============================================================================
No dealer, salesman or other person has been authorized to give any information
or to make any representation not contained in this Prospectus Supplement or the
accompanying Prospectus and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or by any other person. This Prospectus Supplement and the accompanying
Prospectus do not constitute an offer to sell or a solicitation of an offer to
buy any of the securities offered hereby to any person or by anyone in any state
in which such offer or solicitation may not lawfully be made. Neither the
delivery of this Prospectus Supplement or any Prospectus nor any sale made
hereunder or thereunder shall, under any circumstances, create any implication
that there had been no change in the affairs of the Company since the date
hereof.
_________________
TABLE OF CONTENTS
Page
PROSPECTUS
Available Information................................. 2
Incorporation of Certain Documents by
Reference ......................................... 3
The Company........................................... 4
Use of Proceeds....................................... 4
Ratio of Earnings to Fixed Charges .................. 5
Description of Capital Stock.......................... 6
Description of Common Stock........................... 9
Description of Common Stock Warrants.................. 11
Description of Preferred Stock........................ 12
Description of Debt Securities........................ 17
Plan of Distribution.................................. 24
Experts............................................... 25
Legal Matters......................................... 25
===============================================================================
===============================================================================
$400,000,000
JDN
REALTY
CORPORATION
--------------
Prospectus
--------------
________________, 1997
===============================================================================
<PAGE> 29
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses of this offering are estimated as follows:
<TABLE>
<S> <C>
SEC registration fee........................................ $121,213
NASD filing fee............................................. *
Printing and shipping expenses.............................. *
Legal fees and expenses..................................... *
Blue sky fees and expenses.................................. *
Rating agency fees.......................................... *
Accounting fees and expenses................................ *
Transfer agent or trustee fees.............................. *
NYSE listing fees........................................... *
Miscellaneous............................................... *
--------
Total............................................... $ *
========
</TABLE>
--------------
* To be completed by amendment or incorporated by reference when
required in connection with the offering of Securities.
All of the above amounts except the SEC registration fee are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Charter for the Registrant provides as follows:
ARTICLE VIII
LIMITATION ON PERSONAL LIABILITY
OF DIRECTORS AND OFFICERS; INDEMNIFICATION
SECTION 8.1. A director or officer of the Company shall not be personally
liable to the corporation or its shareholders for money damages unless (a) it is
proved that the director or officer actually received an improper benefit or
profit in money, property or services, for the amount of the benefit or profit
in money, property or services actually received; or (b) a judgement or other
final adjudication adverse to the director or officer is entered in a proceeding
based on a finding in the proceeding that the person's action, or failure to
act, was the result of active and deliberate dishonesty and was material to the
cause of action adjudicated in the proceeding.
If the law of the State of Maryland is hereafter amended to authorize
corporate action further limiting or eliminating the personal liability of
directors or officers or expanding such liability, then the
<PAGE> 30
liability of directors or officers to the corporation or its shareholders shall
be limited or eliminated to the fullest extent permitted by Maryland law as so
amended from time to time.
SECTION 8.2. The corporation shall indemnify, and upon request shall
advance expenses to, in the manner and to the fullest extent permitted by law,
any officer or director (or the estate of any such person) who was or is a party
to, or is threatened to be made a party to, any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative,
investigative or otherwise, by reason of the fact that such person is or was a
director or officer of the corporation, or is or was serving at the request of
the corporation as a director, officer, partner, trustee, other enterprise or
employee benefit plan (an "indemnitee"). The corporation may, to the fullest
extent permitted by law, purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
partner, trustee, other enterprise or employee benefit plan against any
liability which may be asserted against such person. To the fullest extent
permitted by law, the indemnification and advances provided for herein shall
include expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement. The indemnification provided herein shall not be
deemed to limit the right of the corporation to indemnify any other person for
any such expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement to the fullest extent permitted by law, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Notwithstanding the foregoing, the corporation shall not indemnify any such
indemnitee: (a) in any proceeding by or in the right of the corporation against
such indemnitee wherein the indemnitee shall have been adjudged to be liable to
the Corporation; or (b) in any proceeding charging improper personal benefit to
the indemnitee, whether or not involving action in the indemnitee's official
capacity, in which the indemnitee was adjudged to be liable on the basis that
personal benefit was improperly received; or (c) it is established that (i) the
act or omission of the indemnitee was material to the matter giving rise to the
proceeding and the act or omission was committed in bad faith or was the result
of active and deliberate dishonesty, or (ii) the indemnitee actually received an
improper personal benefit in money, property or services, or (iii) in the case
of any criminal proceeding, the indemnitee had reasonable cause to believe the
act or omission was unlawful.
The rights to indemnification and advancement of expenses set forth in this
Section 8.2 are intended to be greater than those which are otherwise provided
for in the General Corporation Law of the State of Maryland, are contractual
between the corporation and the person being indemnified, his heirs, executors
and administrators, and, with respect to this Section 8.2, are mandatory,
notwithstanding a person's failure to meet the standard of conduct required for
permissive indemnification under the General Corporation Law of the State of
Maryland, as amended from time to time. The rights to indemnification and
advancement of expenses set forth in this Section 8.2 above are nonexclusive of
other similar rights which may be granted by law, these Articles, the Bylaws, a
resolution of the Board of Directors or shareholders or an agreement with the
corporation, which means of indemnification and advancement of expenses are
hereby specifically authorized.
SECTION 8.3. Any repeal or modification of the provisions of this Article
VIII, either directly or by the adoption of an inconsistent provision of these
Articles, shall be prospective only and shall not adversely affect any right or
protection set forth herein existing in favor of a particular individual at the
time of such repeal or modification. In addition, if an amendment to the General
Corporation Law of the State of Maryland limits or restricts in any way the
indemnification rights permitted by law as of the
II-2
<PAGE> 31
date hereof, such amendment shall apply only to the extent mandated by law and
only to activities of persons subject to indemnification under this Article VIII
which occur subsequent to the effective date of such amendment.
------------------------------
Section 2-418 of the Maryland General Corporation Law generally permits
indemnification of any director made a party to any proceedings by reason of
service as a director unless it is established that (i) the act or omission of
such person was material to the matter giving rise to the proceeding and was
committed in bad faith or was the result of active and deliberate dishonesty; or
(ii) such person actually received an improper personal benefit in money,
property or services; or (iii) in the case of any criminal proceeding, such
person had reasonable cause to believe that the act or omission was unlawful.
The indemnity may include judgments, penalties, fines, settlements and
reasonable expenses actually incurred by the director in connection with the
proceeding; but, if the proceeding is one by, or in the right of the
corporation, indemnification is not permitted with respect to such proceeding in
which the director has been adjudged to be liable to the corporation. The
termination of any proceeding by judgment, order, or settlement does not create
a presumption that the director did not meet the requisite standard of conduct
required for permitted indemnification. The termination of any proceeding by
conviction or upon a plea of nolo contendere or its equivalent or an entry of an
order of probation prior to judgment creates a rebuttable presumption that the
director did not meet the requisite standard of conduct required for permitted
indemnification.
The Maryland General Corporation Law permits Maryland corporations to
indemnify their officers, employees or agents to the same extent as their
directors and to such further extent as is consistent with law. The Company's
Charter provides that officers, employees and agents of the Company shall be
entitled to indemnification to the fullest extent permitted by Maryland law.
Indemnification under the provisions of the Maryland General Corporation
Law is not deemed exclusive of any other rights, by indemnification or
otherwise, to which a director or officer may be entitled under the Charter,
Bylaws, resolution of shareholders of directors, contract or otherwise.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
1 Form of Underwriting Agreement.(1)
4.1 Articles of Restatement of the Registrant.(2)
4.2 Bylaws of the Registrant.(2)
4.3* Specimen Common Stock Certificate.
4.4 Form of Senior Indenture.(3)
4.5 Form of Subordinated Indenture.(3)
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability
Company.
</TABLE>
II-3
<PAGE> 32
<TABLE>
<S> <C>
8 Opinion of Waller Lansden Dortch & Davis, A Professional Limited Liability
Company, regarding tax matters.
12* Statement re: Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company.(4)
24* Powers of Attorney.
25.1 Statement of Eligibility and Qualification of Senior Trustee under the
Trust Indenture Act of 1939 (to be filed in accordance with Rule
305(b)(2) of The Trust Indenture Act of 1939).(1)
25.2 Statement of Eligibility and Qualification of Subordinated Trustee
under the Trust Indenture Act of 1939 (to be filed in accordance with
Rule 305(b)(2) of the Trust Indenture Act of 1939).(1)
</TABLE>
- -------------------
* Previously filed.
(1) To be filed by amendment or incorporated by reference when
required in connection with the offering of Securities.
(2) Previously filed as Exhibit 99.1 to the Registrant's Current Report
on Form 8-K, dated November 7, 1996, and incorporated herein by this
reference.
(3) Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-3 (File No. 33-91222), filed on May 9, 1995.
(4) Contained in opinions filed as Exhibit 5 and Exhibit 8.
II-4
<PAGE> 33
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the repayment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933,
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement,
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-5
<PAGE> 34
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of section 310 of the Trust Indenture Act (the "TIA") in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the TIA.
II-6
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Nashville, State of Tennessee, on the
24th day of March, 1997.
JDN REALTY CORPORATION
By: /s/ William J. Kerley
------------------------------------
William J. Kerley,
Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Amendment to the
Registration Statement has been signed by the following persons in the
capacities and on the date indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
* Chairman and Chief 1997
- --------------------------------------- Executive Officer (Principal
J. Donald Nichols Executive Officer)
* President and Director 1997
- ---------------------------------------
Elizabeth L. Nichols
/s/ William J. Kerley Chief Financial Official March 24, 1997
- --------------------------------------- (Principal Financial Officer)
William J. Kerley
* Controller 1997
- ---------------------------------------
John D. Harris, Jr.
* Director 1997
- ---------------------------------------
Craig Macnab
* Director 1997
- ---------------------------------------
Robert P. Corker, Jr.
* Director 1997
- ---------------------------------------
Haywood D. Cochrane, Jr.
* Director 1997
- ---------------------------------------
William B. Greene
*By: /s/ William J. Kerley
--------------------------------------
William J. Kerley
Attorney-in-fact
</TABLE>
II-7
<PAGE> 36
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
1 Form of Underwriting Agreement.(1)
4.1 Articles of Restatement of the Registrant, previously filed as Exhibit
99.1 to the Registrant's Current Report on Form 8-K, dated November 7,
1996, and incorporated herein by this reference.(2)
4.2 Bylaws of the Registrant, previously filed as Exhibit 99.2 to the
Registrant's Current Report on Form 8-K, dated November 7, 1996, and
incorporated herein by this reference.(2)
4.3* Specimen Common Stock Certificate.
4.4 Form of Senior Indenture.(3)
4.5 Form of Subordinated Indenture.(3)
5 Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company.
8 Opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company, regarding tax matters.
12* Statement re: Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company.(4)
24* Powers of Attorney.
25.1 Statement of Eligibility and Qualification of Senior Trustee under the
Trust Indenture Act of 1939 (to be filed in accordance with Rule
305(b)(2) of The Trust Indenture Act of 1939).(1)
25.2 Statement of Eligibility and Qualification of Subordinated Trustee
under the Trust Indenture Act of 1939 (to be filed in accordance with
Rule 305(b)(2) of the Trust Indenture Act of 1939).(1)
</TABLE>
- -------------------
* Previously filed.
(1) To be filed by amendment or incorporated by reference when
required in connection with the offering of Securities.
(2) Previously filed as Exhibit 99.1 to the Registrant's Current
Report on Form 8-K, dated November 7, 1996, and incorporated herein
by this reference.
(3) Previously filed as an exhibit to the Registrant's Registration
Statement on Form S-3 (File No. 33-91222), filed on May 9, 1995.
(4) Contained in opinions filed as Exhibit 5 and Exhibit 8.
<PAGE> 1
EXHIBIT 5
[WALLER LANSDEN DORTCH & DAVIS LETTERHEAD]
March 25, 1997
JDN Realty Corporation
3340 Peachtree Road, N.E., Suite 1530
Atlanta, Georgia 30326
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to JDN Realty Corporation, a Maryland real
estate investment trust (the "Company"), in connection with a registration
statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), relating to the registration of
$400,000,000 in aggregate amount of one or more series of (i) unsecured debt
securities (the "Debt Securities"), (ii) shares of preferred stock, $.01 par
value (the "Preferred Shares"), (iii) shares of common stock, $.01 par value
(the "Common Shares"), or (iv) warrants to purchase Common Shares (the "Common
Share Warrants" and, together with the Debt Securities, Preferred Shares and
Common Shares, the "Securities"), all of which Securities may be offered and
sold by the Company from time to time as set forth in the prospectus which forms
a part of the Registration Statement (the "Prospectus"), and as to be set forth
in one or more supplements to the Prospectus (each, a "Prospectus Supplement").
This opinion letter is furnished to you at your request to enable you to
fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
ss.229.601(b)(5), in connection with the Registration Statement.
We have assumed that the issuance, sale, amount and terms of the
Securities to be offered from time to time will be duly authorized and
determined by proper action of the Board of Directors of the Company (each, a
"Board Action") and in accordance with the
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JDN Realty Corporation
March 25, 1997
Page 2
Company's Charter, as amended (the "Charter"), and applicable Maryland law. We
further assume that (i) any senior Debt Securities will be issued pursuant to a
"Senior Indenture" and any subordinated Debt Securities will be issued pursuant
to a "Subordinated Indenture", the forms of which are incorporated by reference
as Exhibits 4.4 and 4.5, respectively, to the Registration Statement; and (ii)
any Common Share Warrants will be issued under one or more common share warrant
agreements (each, a "Warrant Agreement"), each to be between the Company and a
financial institution identified therein as a warrant agent (each, a "Warrant
Agent").
In connection with this opinion, we have examined and relied upon such
records, documents and other instruments as in our judgment are necessary or
appropriate in order to express the opinions hereinafter set forth and have
assumed the genuineness of all signatures, the legal capacity of all natural
persons, the accuracy and completeness of all documents submitted to us, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as certified or
photostatic copies.
In rendering the following opinion, we state that we are not admitted
to practice in any state other than the State of Tennessee, and we express no
opinion as to the laws of any jurisdiction other than the State of Tennessee and
the Federal law of the United States. All opinions expressed are as of the date
hereof except where expressly stated otherwise.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, as of the date hereof:
1. When the Registration Statement has become effective under
the Act and when a series of the Debt Securities has been (a) duly
established by an Indenture or any supplemental indenture thereto, (b)
duly authorized and established by applicable Board Action and duly
authenticated by the Trustee, and (c) duly executed and delivered on
behalf of the Company against payment therefor in accordance with the
terms of such Board Action, any applicable underwriting agreement, an
Indenture and any applicable supplemental indenture, and as
contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the Debt Securities will be duly authorized and
validly issued.
2. When the Registration Statement has become effective under
the Act and when a series of the Preferred Shares has been duly
authorized and
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JDN Realty Corporation
March 25, 1997
Page 3
established by applicable Board Action, in accordance with the terms of
the Charter and applicable law, and, upon issuance and delivery of
certificates for such series of Preferred Shares against payment
therefor in accordance with the terms of such Board Action and any
applicable underwriting agreement, and as contemplated by the
Registration Statement and/or the applicable Prospectus Supplement, the
shares represented by such certificates will be duly authorized and
validly issued, fully paid and nonassessable by the Company.
3. When the Registration Statement has become effective under
the Act, upon due authorization by Board Action of an issuance of
Common Shares, and upon issuance and delivery of certificates for
Common Shares against payment therefor in accordance with the terms of
such Board Action and any applicable underwriting agreement, and as
contemplated by the Registration Statement and/or the applicable
Prospectus Supplement, the shares represented by such certificates will
be duly authorized and validly issued, fully paid and non-assessable by
the Company.
4. When the Registration Statement has become effective under
the Act and when the Common Share Warrants have been (a) duly
established by the related Warrant Agreement, (b) duly authorized and
established by applicable Board Action and duly authenticated by the
Warrant Agent, and (c) duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms of such
Board Action, any applicable underwriting agreement and the applicable
Warrant Agreement and as contemplated by the Registration Statement
and/or the applicable Prospectus Supplement, the Common Share Warrants
will be duly authorized and validly issued.
To the extent that the obligations of the Company under an Indenture
may be dependent on such matters, we assume for purposes of this opinion that
the Trustee is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization; that the Trustee is duly qualified to
engage in activities contemplated by the Indenture; that the Indenture has been
duly authorized, executed and delivered by the Trustee and constitutes the
legally valid and binding obligation of the Trustee enforceable against the
Trustee in accordance with its terms; that the Trustee is in compliance, with
respect to acting as a trustee under the Indenture, with all applicable laws and
regulations; and that the Trustee has the requisite organizational and legal
power and authority to perform its obligations under the Indenture.
<PAGE> 4
JDN Realty Corporation
March 25, 1997
Page 4
To the extent that the obligations of the Company under any Warrant
Agreement may be dependent on such matters, we assume for purposes of this
opinion that the applicable Warrant Agent is duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization; that
the Warrant Agent is duly qualified to engage in the activities contemplated by
the Warrant Agreement; that the Warrant Agreement has been duly authorized,
executed and delivered by the Warrant Agent and constitutes the legally valid
and binding obligation of the Warrant Agent enforceable against the Warrant
Agent in accordance with its terms; that the Warrant Agent is in compliance with
respect to acting as a Warrant Agent under the Warrant Agreement, with all
applicable laws and regulations; and that the Warrant Agent has the requisite
organizational and legal power and authority to perform its obligations under
the Warrant Agreement.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date of this opinion letter and should not be quoted in whole
or in part or otherwise be referred to, nor filed with or furnished to any
governmental agency or other person or entity, without the prior written consent
of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement and further consent to the reference to this firm
under the caption "Legal Matters" in the Prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that
this firm is an "expert" within the meaning of the Act.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS,
A PROFESSIONAL LIMITED LIABILITY
COMPANY
<PAGE> 1
EXHIBIT 8
March 25, 1997
JDN Realty Corporation
3340 Peachtree Road
Suite 1530
Atlanta, Georgia 30326
Re: JDN Realty Corporation -
Form S-3 Registration Statement
Ladies and Gentlemen:
We have acted as special tax counsel to JDN Realty Corporation, a
Maryland corporation (the "Company"), in connection with a registration
statement on Form S-3 (the "Registration Statement") filed by the Company with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended, relating to the registration of $400,000,000 in aggregate amount of
one or more series of common stock, common stock warrants, preferred stock
and/or debt securities (the "Securities") of the Company. In
connection with the Registration Statement, you have requested our opinion
whether the Company is presently qualified as a real estate investment trust
("REIT") under Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended (the "Code") to enable you to fulfill the requirements of Item
601(b)(8) of Regulation S-K, 17 C.F.R. ss. 229.601(b)(8), in connection with
the Registation Statement. All capitalized or in documents incorporated therein
by reference terms in this opinion which are defined in the Registration
Statement or in documents incorporated therein by reference shall have the
same respective meanings as set forth in the Registration Statement.
In rendering our opinion, we have examined and relied upon the
following documents and other materials:
1. Schedules prepared or delivered by officials of the Company
setting forth:
(a) REIT taxable and gross income for the short fiscal year
ended December 31, 1994 and for the full years ended December 31, 1995
and 1996, together with a schedule of actual
<PAGE> 2
JDN Realty Corporation
March 25, 1997
Page 2
dividends distributed and projected dividends to be distributed in
accordance with Code Section 858 and compliance with the distribution
requirements of Code Section 857(a);
(b) Compliance with the applicable REIT ratios or tests for
the fiscal year ended December 31, 1996, including:
Income tests:
(1) 95% gross income test for the year;
(2) 75% gross income test for the year;
(3) 30% gross income test for the year;
Asset tests:
(1) 75% asset test at the end of each quarter;
(2) 25% asset test at the end of each quarter;
(3) 10% asset test at the end of each quarter;
(4) 5% asset test at the end of each quarter; and
2. The Company's certificate, dated as of March 25, 1997.
In addition, we have examined such additional records, documents,
certificates and other instruments and made such investigations of fact and law
as in our judgement are necessary or appropriate to enable us to render the
opinion expressed below.
In rendering our opinion, we have made the following assumptions:
1. The shares of the Company's capital stock have been and will
continue to be beneficially owned by over 100 shareholders, as defined under
Section 856(a)(5) of the Code since the completion of the initial public
offering; and five or fewer shareholders have not owned, directly or indirectly
under the rules of Section 544 as modified by Section 856(h) of the Code, at
any time since the completion of the initial public offering, over 50% in value
of the stock of the Company; and no shareholder will own, directly or
indirectly, over 8% in number of shares or value of the outstanding stock of
the Company; provided, however, that "Excluded Holders" may hold up to the
"Excluded Holder Ownership Limit," as such terms are defined in the Company's
Charter.
2. The Company has and will comply with any and all procedural
requirements for REIT status set forth in Sections 856 through 860 of the Code
and the regulations thereunder,
<PAGE> 3
JDN Realty Corporation
March 25, 1997
Page 3
including the timely making of such elections and the obtaining and disclosing
of such information as is required on the federal tax return to be filed by the
Company.
3. Additional properties acquired will constitute "real estate assets"
and any other investments made by the REIT will be made in a manner to satisfy
the asset tests of Section 856(c) of the Code.
4. The income from existing and additional leases entered into or
acquired and the income from other investments will not cause the Company to
fail to satisfy the income tests of Section 856(c) of the Code.
5. The Company will actually operate in accordance with its past and
proposed method of operation as described in its filings with the Securities
and Exchange Commission under the Securities Act of 1933 and the Securities
Exchange Act of 1934.
6. The Company had no undistributed "C" corporation earnings and
profits at December 31, 1996.
7. The representations contained in the Company's certificate, dated
as of March 25, 1997, are accurate.
8. All partnerships in which the Company has acquired or acquires an
ownership interest will own only "real estate assets" and cash reserves. All
activities of those partnerships will consist of activities permitted to be
undertaken by a REIT and income, other than interest income on cash reserves,
shall be "rents from real property."
9. Each corporation in which the Company has acquired or acquires an
equity interest shall either be a "Qualified REIT Subsidiary" under Section
856(i) of the Code or the Company will not own over ten percent of the
outstanding voting securities of such corporation or other issuer and the
securities owned of such issuer will not be greater in value than five percent
(5%) of the value of the total assets of the Company.
On the basis of and in reliance of the foregoing, we wish to advise
you that under current law, including relevant statutes, regulations and
judicial and administrative precedent (which law is subject to change on a
retroactive basis), in our opinion the Company has been organized in conformity
with the requirements for qualification as a REIT under the Code and, in
accordance
<PAGE> 4
JDN Realty Corporation
March 25, 1997
Page 4
with the assumptions stated herein, its method of operation enables it to meet
the requirements for qualification and taxation as a REIT under the Code at
this time.
Since actual qualification as a REIT is dependent upon future facts
and circumstances, it is possible that future events, operations, distributions
or other actions will cause the Company not to qualify or continue to qualify
as a REIT.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to this firm under
the caption "Legal Matters" in the Prospectus constituting a part of the
Registration Statement. In giving this consent, we do not thereby admit that
this firm is an "expert" within the meaning of the Securities Act of 1933.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement on Form S-3 and related
Prospectus of JDN Realty Corporation for the registration of an aggregate of
$400,000,000 for the offering of common stock, common stock warrants, preferred
stock and debt securities and to the incorporation by reference therein of our
report dated January 30, 1996, except for Note 14 as to which the date is
February 27, 1996, with respect to the consolidated financial statements and
schedules of JDN Realty Corporation included in its Annual Report (Form 10-K)
for the year ended December 31, 1995, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
March 25, 1997
