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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(B) OR 12 (G) OF THE SECURITIES EXCHANGE ACT OF 1934
JDN REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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MARYLAND 58-1468053
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
359 EAST PACES FERRY ROAD, SUITE 400
ATLANTA, GEORGIA 30305
(Address of Principal Executive Offices)
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If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: 333-386111 (if applicable).
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name Of Each Exchange On Which Each
To Be So Registered Class Is To Be Registered:
9 3/8% Series A Cumulative Redeemable
Preferred Stock, par value $.01 per share
(liquidation preference $25 per share) The New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act: Not Applicable.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
This Registration Statement relates to the registration under the
Securities Exchange Act of 1934, as amended, of shares of 9 3/8% Series A
Cumulative Redeemable Preferred Stock, par value $.01 per share (the "Series A
Preferred Stock"), of JDN Realty Corporation, a Maryland corporation (the
"Registrant"). The description of the Series A Preferred Stock to be registered
hereunder is set forth under the caption "Description of Series A Preferred
Stock" in the Registrant's Prospectus Supplement, dated September 10, 1998, with
respect to the Series A Preferred Stock, filed pursuant to Rule 424(b)(5)
promulgated under the Securities Act of 1933, as amended, relating to the
Registrant's Registration Statement on Form S-3 (No. 333-38611) filed with the
Commission on October 23, 1997, as amended, which description is incorporated
herein by reference.
ITEM 2. EXHIBITS.
The Series A Preferred Stock is to be registered on The New York Stock
Exchange, on which the common stock, par value $.01 per share, of the Registrant
is registered. Accordingly, copies of the following exhibits will be filed with
The New York Stock Exchange, and are filed as exhibits to this Registration
Statement:
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3.1 Articles of Restatement of Registrant (incorporated by reference to
Exhibit 99.1 of Registrant's Current Report on Form 8-K, dated
November 7, 1996).
3.2 Amended and Restated Bylaws of Registrant (incorporated by
reference to Exhibit 99.2 of Registrant's Current Report on Form 8-K,
dated November 7, 1996).
4.1 Form of Articles Supplementary of the Registrant classifying
the 9 3/8% Series A Cumulative Redeemable Preferred Stock.
4.2 Form of the Registrant's 9 3/8% Series A Cumulative Redeemable
Preferred Stock Certificate.
4.3 Description of Preferred Stock (incorporated by reference to
the description of Preferred Stock set forth under the caption
"Description of Preferred Stock" in the Registrant's
Prospectus, dated October 30, 1997, forming a part of the
registration statement on Form S-3 (File No. 333-38611) filed
with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Act") on October 23,
1997).
4.4 Description of Series A Preferred Stock (incorporated by
reference to the description of Series A Preferred Stock set
forth under the caption "Description of Series A Preferred
Stock" in the Registrant's Prospectus Supplement, dated
September 10, 1998, filed pursuant to Rule 424(b)(5)
promulgated under the Act relating to the Registrant's
registration statement on Form S-3 (No. 333-38611) filed with
the Securities and Exchange Commission under the Act on
October 23, 1997).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
JDN REALTY CORPORATION
By: /s/ J. Donald Nichols
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Name: J. Donald Nichols
Title: Chairman and Chief Executive Officer
Date: September 14, 1998
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
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3.1 Articles of Restatement of Registrant (incorporated by reference to
Exhibit 99.1 of Registrant's Current Report on Form 8-K, dated
November 7, 1996).
3.2 Amended and Restated Bylaws of Registrant (incorporated by reference to
Exhibit 99.2 of Registrant's Current Report on Form 8-K dated
November 7, 1996).
4.1 Form of Articles Supplementary of the Registrant classifying
the 9 3/8% Series A Cumulative Redeemable Preferred Stock.
4.2 Form of the Registrant's 9 3/8% Series A Cumulative Redeemable Preferred
Stock Certificate.
4.3 Description of Preferred Stock (incorporated by reference to
the description of Preferred Stock set forth under the caption
"Description of Preferred Stock" in the Registrant's
Prospectus, dated October 30, 1997, forming a part of the
registration statement on Form S-3 (File No. 333-38611) filed
with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Act") on October 23,
1997).
4.4 Description of Series A Preferred Stock (incorporated by
reference to the description of Series A Preferred Stock set
forth under the caption "Description of Series A Preferred
Stock" in the Registrant's Prospectus Supplement, dated
September 10, 1998, filed pursuant to Rule 424(b)(5)
promulgated under the Act relating to the Registrant's
registration statement on Form S-3 (No. 333-38611) filed with
the Securities and Exchange Commission under the Act on
October 23, 1997).
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EXHIBIT 4.1
Form of Articles Supplementary
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ARTICLES SUPPLEMENTARY
OF
JDN REALTY CORPORATION
9 3/8% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
(PAR VALUE $.01 PER SHARE)
JDN Realty Corporation, a Maryland corporation (hereinafter called the
"Corporation"), hereby certifies to the Department of Assessments and Taxation
of the State of Maryland that:
FIRST: Pursuant to authority expressly vested in the Board of Directors
of the Corporation under Article VI of the Articles of Restatement of the
Corporation (the "Charter"), the Board of Directors, by resolutions adopted at a
meeting held on September 8, 1998, has classified and designated 2,300,000
authorized but unissued shares of preferred stock of the Corporation, par value
$.01 per share (the "Preferred Stock"), into a series designated as 9 3/8%
Series A Cumulative Redeemable Preferred Stock, par value $.01 per share (the
"Series A Preferred Stock"), and has provided for the issuance of such series.
SECOND: The terms of the Series A Preferred Stock (including the
preferences, conversions or other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications, or terms or
conditions of redemption) as set by the Board of Directors are as follows:
1. DEFINITIONS.
For purposes of the Series A Preferred Stock, the following terms shall
have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended.
"Affiliate" of a Person means a Person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the Person specified.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to perform
any of its responsibilities with respect to the Series A Preferred Stock;
provided that, for purposes of paragraph (a) of Section 7 of this Article, the
term "Board of Directors" shall not include any such committee.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York are not required to be open.
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"Capital Gains Amount" shall have the meaning set forth in paragraph
(c) of Section 2 of this Article.
"Code" shall mean the Internal Revenue of 1986, as amended.
"Common Stock" shall mean the Common Stock, $.01 par value per share,
of the Corporation.
"Dividend Payment Date" shall mean March 31, June 30, September 30 and
December 31 of each year; provided, that if any Dividend Payment Date falls on
any day other than a Business Day, the dividend payment payable on such Dividend
Payment Date shall be paid on the Business Day immediately following such
Dividend Payment Date and no interest shall accrue on such dividend from such
Dividend Payment Date to the date such dividend is paid.
"Dividend Periods" shall mean the Initial Dividend Period and each
subsequent quarterly dividend period commencing on and including March 31, June
30, September 30 and December 31 of each year and ending on and including the
day preceding the first day of the next succeeding Dividend Period, other than
the Dividend Period during which any Series A Preferred Stock shall be redeemed
pursuant to Section 4 hereof, which shall end on and include the Redemption Date
with respect to the Series A Preferred Stock being redeemed.
"Event" shall have the meaning set forth in paragraph (b)(i) of Section
7 of this Article.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Issue Date" shall mean September 17, 1998.
"Initial Dividend Period" shall mean the period commencing on and
including the Issue Date and ending on and including September 30, 1998.
"Junior Stock" shall have the meaning set forth in paragraph (c) of
Section 6 of this Article.
"Liquidation Preference" shall have the meaning set forth in paragraph
(a) of Section 3 of this Article.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 6 of this Article.
"Person" shall mean any individual, firm, partnership, corporation or
other entity and shall include any successor (by merger or otherwise) of such
entity.
"Redemption Date" shall have the meaning set forth in paragraph (a) of
Section 4 of this Article.
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"Senior Stock" shall have the meaning set forth in paragraph (a) of
Section 6 of this Article.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of dividends or other distribution by the Board of Directors, the
allocation of funds to be so paid on any series or class of capital stock of the
Corporation; provided, however, that if any funds for any class or series of
Junior Stock or any class or series of Parity Stock are placed in a separate
account of the Corporation or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Series A Preferred Stock
shall mean placing such funds in a separate account or delivering such funds to
a disbursing, paying or other similar agent.
"Total Dividends" shall have the meaning set forth in paragraph (c) of
Section 2 of this Article.
"Transfer Agent" means such transfer agent as may be designated by the
Board of Directors or their designee as the transfer agent for the Series A
Preferred Stock; provided, that if the Corporation has not designated a transfer
agent, then the Corporation shall act as the transfer agent for the Series A
Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth in Section 7
of this Article.
2. DIVIDENDS.
(a) The holders of Series A Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors out of funds legally
available for that purpose, cumulative dividends payable in cash in an amount
per share of Series A Preferred Stock equal to $2.3438 per annum (equivalent to
9 3/8% of the per share Liquidation Preference per annum). Such dividends shall
be cumulative from the Issue Date, whether or not in any Dividend Period or
Periods such dividends shall be declared or there shall be funds of the
Corporation legally available for the payment of such dividends, and shall be
payable quarterly in arrears on each Dividend Payment Date, commencing on
September 30, 1998. Each such dividend shall be payable in arrears to the
holders of record of the Series A Preferred Stock, as they appear on the stock
records of the Corporation at the close of business on the fifteenth day of the
calendar month in which the applicable Dividend Payment Date falls on or such
other date designated by the Board of Directors for the payment of dividends
that is not more than 45 nor less than 10 days prior to such Dividend Payment
Date, as the case may be, immediately preceding such Dividend Payment Date. No
dividends on the Series A Preferred Stock shall be declared by the Board of
Directors or be paid or set apart for payment by the Corporation at such time as
any agreement of the Corporation, including any agreement relating to the
Corporation's indebtedness, prohibits such declaration, payment or setting apart
for payment or provides that such declaration, payment or setting apart for
payment would constitute a breach thereof or a default thereunder, or if such
declaration, payment or setting apart for payment shall be restricted or
prohibited by law. Accumulated, accrued and unpaid dividends for any past
Dividend Periods may be declared and paid at any time, without
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reference to any regular Dividend Payment Date, to holders of record on such
date, which date shall not precede by more than 45 days the payment date
thereof, as may be fixed by the Board of Directors.
(b) Any dividend payable on the Series A Preferred Stock for
any partial dividend period shall be computed ratably on the basis of twelve
30-day months and a 360-day year. Holders of Series A Preferred Stock shall not
be entitled to any dividends, whether payable in cash, property or stock, in
excess of full cumulative dividends, as herein provided, on the Series A
Preferred Stock. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series A Preferred
Stock that may be in arrears. Any dividend payment made on the Series A
Preferred Stock shall first be credited against the earliest accrued but unpaid
dividend due with respect to such shares which remains payable.
(c) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the Code)
any portion (the "Capital Gains Amount") of the total distributions (as
determined for federal income tax purposes) paid or made available for the year
to holders of all classes of capital stock (the "Total Dividends"), then the
portion of the Capital Gains Amount that shall be allocable to holders of Series
A Preferred Stock shall be in the same proportion that the Total Dividends paid
or made available to the holders of Series A Preferred Stock for the year bears
to the Total Dividends. If, for any taxable year, the Corporation elects, as
provided in Section 857(b)(3)(D) of the Code, to designate as "undistributed
capital gains" any portion of the Corporation's total net capital gains for the
taxable year, then such undistributed capital gains shall be allocated between
the holders of the Series A Preferred Stock and the holders of other classes or
series of capital stock of the Corporation in a manner that is consistent with
such allocations being considered other than a "preferential dividend" within
the meaning of Section 562(c) of the Code.
(d) So long as any of the shares of Series A Preferred Stock
are outstanding, except as described in the immediately following sentence, no
dividends shall be declared or paid or set apart for payment by the Corporation
and no other distribution of cash or other property shall be declared or made,
directly or indirectly, by the Corporation with respect to any shares of Parity
Stock unless, in each case, dividends equal to the full amount of accumulated,
accrued and unpaid dividends on all outstanding shares of Series A Preferred
Stock have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof has been or contemporaneously is set apart
for payment of such dividends on the Series A Preferred Stock for all Dividend
Periods ending on or prior to the date such dividend or distribution is
declared, paid, set apart for payment or made, as the case may be, with respect
to such shares of Parity Stock. When dividends are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon the Series A Preferred Stock and all dividends declared upon any
shares of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated, accrued and unpaid on the Series A Preferred
Stock and accumulated, accrued and unpaid on such Parity Stock.
(e) So long as any of the shares of Series A Preferred Stock
are outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Junior Stock) shall be
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declared or paid or set apart for payment by the Corporation and no other
distribution of cash or other property shall be declared or made, directly or
indirectly, by the Corporation with respect to any shares of Junior Stock, nor
shall any shares of Junior Stock be redeemed, purchased or otherwise acquired
(other than a redemption, purchase or other acquisition of Common Stock made for
purposes of an employee incentive, benefit or stock purchase plan of the
Corporation or any subsidiary) 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), directly or indirectly, by the Corporation (except by conversion
into or exchange for shares of, or options, warrants or rights to subscribe for
or purchase shares of, Junior Stock), nor shall any other cash or other property
otherwise be paid or distributed to or for the benefit of any holder of shares
of Junior Stock in respect thereof, directly or indirectly, by the Corporation
unless, in each case, dividends equal to the full amount of all accumulated,
accrued and unpaid dividends on all outstanding shares of Series A Preferred
Stock have been declared and paid, or such dividends have been declared and a
sum sufficient for the payment thereof has been set apart for such payment, on
all outstanding shares of Series A Preferred Stock for all Dividend Periods
ending on or prior to the date such dividend or distribution is declared, paid,
set apart for payment or made with respect to such shares of Junior Stock, or
the date such shares of Junior Stock are redeemed, purchased or otherwise
acquired or monies paid to or made available for any sinking fund for such
redemption, or the date any such cash or other property is paid or distributed
to or for the benefit of any holders of Junior Stock in respect thereof, as the
case may be.
(f) In determining the extent to which a distribution with
respect to the Series A Preferred Stock constitutes a dividend for tax purposes,
the earnings and profits of the Corporation will be allocated, on a pro rata
basis, in accordance with the ranking of the class of capital stock or series of
capital stock, constituting a class within the meaning of Code Section 562(c),
of the Corporation, as described in Section 6.
Notwithstanding the provisions of this Section 2, the
Corporation shall not be prohibited from (i) declaring or paying or setting
apart for payment any dividend or distribution on any shares of Parity Stock or
Junior Stock or (ii) redeeming, purchasing or otherwise acquiring any Parity
Stock or Junior Stock, in each case, if such declaration, payment, redemption,
purchase or other acquisition is necessary in order to assist in maintaining the
continued qualification of the Corporation as a REIT under Section 856 of the
Code.
3. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution by the Corporation (whether of capital, surplus or otherwise) shall
be made to or set apart for the holders of Junior Stock, the holders of shares
of Series A Preferred Stock shall be entitled to receive Twenty-Five Dollars
($25.00) per share of Series A Preferred Stock (the "Liquidation Preference"),
plus an amount equal to all dividends accumulated, accrued and unpaid thereon to
the date of final distribution to such holders; but such holders shall not be
entitled to any further payment. Until the holders of the Series A Preferred
Stock have been paid the Liquidation Preference in full, plus an amount equal to
all dividends accumulated, accrued and unpaid thereon to the date of final
distribution to such holders,
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no payment will be made to any holder of Junior Stock upon the liquidation,
dissolution or winding up of the Corporation. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation, or
proceeds thereof, distributable among the holders of Series A Preferred Stock
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity Stock,
then such assets, or the proceeds thereof, shall be distributed among the
holders of Series A Preferred Stock and any such other Parity Stock ratably in
the same proportion as the respective amounts that would be payable on such
Series A Preferred Stock and any such other Parity Stock if all amounts payable
thereon were paid in full. For the purposes of this Section 3, (i) a
consolidation or merger of the Corporation with or into one or more other
entities, (ii) a sale, lease, transfer or conveyance of all or substantially all
of the Corporation's assets, or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or involuntary,
of the Corporation.
(b) Upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders of Series
A Preferred Stock and any Parity Stock, as provided in this Section 3, any other
series or class or classes of Junior Stock shall, subject to the respective
terms thereof, be entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Series A Preferred Stock and any Parity
Stock shall not be entitled to share therein.
4. REDEMPTION AT THE OPTION OF THE CORPORATION.
(a) Shares of Series A Preferred Stock shall not be redeemable
by the Corporation prior to September 15, 2003. On and after September 15, 2003,
the Corporation, at its option, may redeem shares of Series A Preferred Stock,
in whole or from time to time in part, at a redemption price payable in cash
equal to $25.00 per share, plus all accumulated, accrued and unpaid dividends to
the date fixed for redemption (the "Redemption Date"); provided, however, that
in the event of a redemption of shares of Series A Preferred Stock, if the
Redemption Date occurs after a dividend record date and on or prior to the
related Dividend Payment Date, the dividend payable on such Dividend Payment
Date in respect of such shares called for redemption shall be payable on such
Dividend Payment Date to the holders of record at the close of business on such
dividend record date, and shall not be payable as part of the redemption price
for such shares. In connection with any redemption pursuant to this Section
4(a), the redemption price of the Series A Preferred Stock (other than any
portion thereof consisting of accumulated, accrued and unpaid dividends) shall
be payable solely with the proceeds from the sale by the Corporation of other
capital shares of the Corporation (whether or not such sale occurs concurrently
with such redemption). For purposes of the preceding sentence, "capital shares"
means any common stock, preferred stock, depositary shares, participations or
other ownership interests (however designated) and any rights (other than debt
securities convertible into or exchangeable at the option of the holder for
equity securities (unless and to the extent such debt securities are
subsequently converted into capital shares)) or options to purchase any of the
foregoing of or in the Corporation.
(b) The Redemption Date shall be selected by the Corporation,
shall be specified in the notice of redemption and shall be not less than 30
days nor more than 60 days after the date notice of redemption is sent by the
Corporation.
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(c) If full cumulative dividends on all outstanding shares of
Series A Preferred Stock have not been declared and paid, or declared and set
apart for payment, no shares of Series A Preferred Stock may be redeemed unless
all outstanding shares of Series A Preferred Stock are simultaneously redeemed,
and neither the Corporation nor any affiliate of the Corporation may purchase or
acquire shares of Series A Preferred Stock other than pursuant to a purchase or
exchange offer made on the same terms to all holders of shares of Series A
Preferred Stock.
(d) If the Corporation shall redeem shares of Series A
Preferred Stock pursuant to paragraph (a) of this Section 4, notice of such
redemption shall be given to each holder of record of the shares to be redeemed.
Such notice shall be provided by first class mail, postage prepaid, at such
holder's address as the same appears on the stock records of the Corporation.
Neither the failure to mail any notice required by this paragraph (d), nor any
defect therein or in the mailing thereof to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for redemption
with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such notice
shall state, as appropriate: (1) the Redemption Date; (2) the number of shares
of Series A Preferred Stock to be redeemed and, if fewer than all such shares
held by such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) the place or places at which certificates for such shares
are to be surrendered for cash; and (4) the redemption price payable on such
Redemption Date, including, without limitation, a statement as to whether or not
accumulated, accrued and unpaid dividends will be (x) payable as part of the
redemption price, or (y) payable on the next Dividend Payment Date to the record
holder at the close of business on the relevant record date as described in the
next succeeding sentence.
Notice having been mailed as aforesaid, from and after the Redemption
Date (unless the Corporation shall fail to make available the amount of cash
necessary to effect such redemption), (i) dividends on the shares of Series A
Preferred Stock so called for redemption shall cease to accumulate or accrue on
the shares of Series A Preferred Stock called for redemption, (ii) said shares
shall no longer be deemed to be outstanding, and (iii) all rights of the holders
thereof as holders of Series A Preferred Stock of the Corporation shall cease
except the rights to receive the cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if so
required; provided, however, that if the Redemption Date for any shares of
Series A Preferred Stock occurs after any dividend record date and on or prior
to the related Dividend Payment Date, the full dividend payable on such Dividend
Payment Date in respect of such shares of Series A Preferred Stock called for
redemption shall be payable on such Dividend Payment Date to the holders of
record of such shares at the close of business on the corresponding dividend
record date notwithstanding the prior redemption of such shares. The
Corporation's obligation to make available the redemption price in accordance
with the preceding sentence shall be deemed fulfilled if, on or before the
applicable Redemption Date, the Corporation shall irrevocably deposit in trust
with a bank or trust company (which may not be an affiliate of the Corporation)
that has, or is an affiliate of a bank or trust company that has, a capital and
surplus of at least $50,000,000, such amount of cash as is necessary for such
redemption plus, if such Redemption Date occurs after any
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dividend record date and on or prior to the related Dividend Payment Date, such
amount of cash as is necessary to pay the dividend payable on such Dividend
Payment Date in respect of such shares of Series A Preferred Stock called for
redemption, with irrevocable instructions that such cash be applied to the
redemption of the shares of Series A Preferred Stock so called for redemption
and, if applicable, the payment of such dividend. No interest shall accrue for
the benefit of the holders of shares of Series A Preferred Stock to be redeemed
on any cash so set aside by the Corporation. Subject to applicable escheat laws,
any such cash unclaimed at the end of two years from the Redemption Date shall
revert to the general funds of the Corporation, after which reversion the
holders of shares of Series A Preferred Stock so called for redemption shall
look only to the general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such shares of Series A Preferred Stock to be
so redeemed (properly endorsed or assigned for transfer, if the Corporation
shall so require and the notice shall so state), such certificates shall be
exchanged for cash (without interest thereon) for which such shares have been
redeemed in accordance with such notice. If fewer than all the outstanding
shares of Series A Preferred Stock are to be redeemed, shares to be redeemed
shall be selected by the Corporation from outstanding shares of Series A
Preferred Stock not previously called for redemption by lot or, with respect to
the number of shares of Series A Preferred Stock held of record by each holder
of such shares, pro rata (as nearly as may be) or by any other method as may be
determined by the Board of Directors in its discretion to be equitable. If fewer
than all the shares of Series A Preferred Stock represented by any certificate
are redeemed, then a new certificate representing the unredeemed shares shall be
issued without cost to the holders thereof.
5. STATUS OF REACQUIRED STOCK.
All shares of Series A Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation shall be returned to the status of
authorized but unissued shares of Series A Preferred Stock.
6. RANKING.
Any class or series of capital stock of the Corporation shall be deemed
to rank:
(a) prior or senior to the Series A Preferred Stock, as to the
payment of dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class or series shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of Series A Preferred Stock (the "Senior Stock");
(b) on a parity with the Series A Preferred Stock, as to the
payment of dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend payment
dates or redemption or liquidation prices per share thereof be different from
those of the Series A Preferred Stock, if the holders of such class or series
and the Series A Preferred Stock shall be entitled to the receipt of dividends
and of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in proportion to their respective amounts of accrued and unpaid
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dividends per share or liquidation preferences, without preference or priority
of one over the other (the "Parity Stock"); and
(c) junior to the Series A Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation, dissolution
or winding up, if (i) such class or series shall be Common Stock or (ii) the
holders of Series A Preferred Stock shall be entitled to receipt of dividends or
of amounts distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares of such class or
series (the capital stock referred to in clauses (i) and (ii) of this paragraph
being hereinafter referred to, collectively, as the "Junior Stock").
7. VOTING.
(a) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Series A Preferred Stock or any series or class of
Parity Stock shall be in arrears (which shall, with respect to any such
quarterly dividend, mean that any such dividend has not been paid in full), the
number of directors then constituting the Board of Directors shall be increased
by two (if not already increased by reason of similar types of provisions with
respect to shares of Parity Stock of any other class or series which is entitled
to similar voting rights (the "Voting Preferred Stock")) and the holders of
shares of Series A Preferred Stock, together with the holders of shares of all
other Voting Preferred Stock then entitled to exercise similar voting rights,
voting as a single class regardless of series, shall be entitled to elect the
two additional directors to serve on the Board of Directors at any annual
meeting of stockholders or special meeting held in place thereof, or at a
special meeting of the holders of the Series A Preferred Stock and the Voting
Preferred Stock called as hereinafter provided. Whenever all arrearages in
dividends on the Series A Preferred Stock and the Voting Preferred Stock then
outstanding shall have been paid and dividends thereon for the current quarterly
dividend period shall have been declared and paid, or declared and set apart for
payment, then the right of the holders of the Series A Preferred Stock and the
Voting Preferred Stock to elect such additional two directors shall cease (but
subject always to the same provision for the vesting of such voting rights in
the case of any similar future arrearages), and the terms of office of all
persons elected as directors by the holders of the Series A Preferred Stock and
the Voting Preferred Stock shall forthwith terminate and the number of directors
constituting the Board of Directors shall be reduced accordingly. At any time
after such voting power shall have been so vested in the holders of Series A
Preferred Stock and the Voting Preferred Stock, if applicable, the Secretary of
the Corporation may, and upon the written request of any holder of at least ten
percent (10%) of Series A Preferred Stock (addressed to the Secretary at the
principal office of the Corporation) shall, call a special meeting of the
holders of the Series A Preferred Stock and of the Voting Preferred Stock for
the election of the two directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the stockholders or as required by law. If
any such special meeting required to be called as above provided shall not be
called by the Secretary within 20 days after receipt of any such request, then
any holder of Series A Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the stock books of the
Corporation. The directors elected at any such special meeting shall hold office
until the next annual meeting of the stockholders or special meeting held in
lieu thereof if such office shall not
9
<PAGE> 11
have previously terminated as above provided. If any vacancy shall occur among
the directors elected by the holders of the Series A Preferred Stock and the
Voting Preferred Stock, a successor shall be elected by the Board of Directors,
upon the nomination of the then-remaining director elected by the holders of the
Series A Preferred Stock and the Voting Preferred Stock or the successor of such
remaining director, to serve until the next annual meeting of the stockholders
or special meeting held in place thereof if such office shall not have
previously terminated as provided above.
(b) So long as any shares of Series A Preferred Stock are
outstanding, in addition to any other vote or consent of stockholders required
by law or by the Charter of the Corporation, the affirmative vote of at least
66- 2/3% of the votes entitled to be cast by the holders of the Series A
Preferred Stock voting as a single class with the holders of all other classes
or series of Parity Stock entitled to vote on such matters, given in person or
by proxy, either in writing without a meeting or by vote at any meeting called
for the purpose, shall be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the
provisions of, or the addition of any provision to, these
Articles Supplementary, the Charter or the Bylaws of the
Corporation, whether by merger, consolidation or otherwise
(an "Event") that materially adversely affects the voting
powers, rights or preferences of the holders of the Series A
Preferred Stock; provided, however, that the amendment of
the provisions of the Charter (A) so as to authorize or
create, or to increase the authorized amount of, or issue,
any Junior Stock or any shares of any class or series of
Parity Stock or (B) with respect to the occurrence of any
Event, so long as the Series A Preferred Stock remains
outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of the Event,
the Corporation may not be the surviving entity, shall not
in either case be deemed to materially adversely affect the
voting powers, rights or preferences of the holders of
Series A Preferred Stock; or
(ii) The authorization, creation of, increase in the
authorized amount of, or issuance of any shares of any class
or series of Senior Stock or any security convertible into
shares of any class or series of Senior Stock (whether or
not such class or series of Senior Stock is currently
authorized);
provided, however, that no such vote of the holders of Series A Preferred Stock
shall be required if, at or prior to the time when such amendment, alteration or
repeal is to take effect, or when the issuance of any such Senior Stock or
convertible or exchangeable security is to be made, as the case may be,
provision is made for the redemption of all shares of Series A Preferred Stock
at the time outstanding to the extent such redemption is authorized by Section 4
of this Article.
For purposes of the foregoing provisions and all other voting rights
under these Articles Supplementary, each share of Series A Preferred Stock shall
have one (1) vote per share, except that when any other class or series of
preferred stock of the Corporation shall have the right to vote with the Series
A Preferred Stock as a single class on any matter, then the Series A Preferred
Stock and such other class or series shall have with respect to such matters one
quarter of one (.25) vote per $25 of stated liquidation preference. Except
10
<PAGE> 12
as otherwise required by applicable law or as set forth herein or in the
Charter, the Series A Preferred Stock shall not have any relative,
participating, optional or other special voting rights and powers other than as
set forth herein, and the consent of the holders thereof shall not be required
for the taking of any corporate action.
8. RECORD HOLDERS.
The Corporation and the Transfer Agent may deem and treat the record
holder of any share of Series A Preferred Stock as the true and lawful owner
thereof for all purposes, and neither the Corporation nor the Transfer Agent
shall be affected by any notice to the contrary.
9. RESTRICTIONS ON OWNERSHIP AND TRANSFERS.
The shares of Series A Preferred Stock are subject to the
provisions of Article XII of the Corporation's Charter pertaining to
restrictions on ownership and transfers, including without limitation the
provisions relative to Excess Shares.
THIRD: The terms of the Series A Preferred Stock set forth in Article
Second hereof upon any restatement of the Charter shall become Article XV of the
Charter with any necessary or appropriate changes to the enumeration or
lettering of sections or subsections hereof.
11
<PAGE> 13
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed in its name and on its behalf by its Chairman and
Chief Executive Officer and witnessed by William J. Kerley, its Secretary, on
September 8th, 1998.
WITNESS: JDN REALTY CORPORATION
/s/ William J. Kerley By: /s/ J. Donald Nichols
- ---------------------------- -------------------------------
William J. Kerley, Secretary
Name: J. Donald Nichols
Title: Chairman and Chief
Executive Officer
THE UNDERSIGNED, the Chairman and Chief Executive Officer of JDN REALTY
CORPORATION, who executed on behalf of the Corporation the Articles
Supplementary of which this Certificate is made a part, hereby acknowledges in
the name and on behalf of said Corporation the foregoing Articles Supplementary
to be the corporate act of said Corporation and hereby certifies that the
matters and facts set forth herein with respect to the authorization and
approval thereof are true in all material respects under the penalties of
perjury.
By: /s/ J. Donald Nichols
------------------------------
Name: J. Donald Nichols
Title: Chairman and Chief
Executive Officer
12
<PAGE> 1
EXHIBIT 4.2
Form of Series A Preferred Stock Certificate.
TEMPORARY CERTIFICATE -- EXCHANGEABLE FOR DEFINITIVE ENGRAVED CERTIFICATE
WHEN READY FOR DELIVERY
JDN REALTY CORPORATION
________________ _______________
NUMBER 9 3/8% SERIES A CUMULATIVE REDEEMABLE SHARES
JDNP PREFERRED STOCK
________________ _______________
INCORPORATED UNDER THE THIS CERTIFICATE IS TRANSFERABLE IN SEE REVERSE FOR
LAWS OF THE STATE OF NEW YORK, NEW YORK OR CHARLOTTE, CERTAIN LEGENDS
MARYLAND NORTH CAROLINA
CUSIP 465917 20 1
-----------
THIS CERTIFIES THAT
is the registered holder of
FULLY-PAID AND NON-ASSESSABLE SHARES OF 9 3/8% SERIES A CUMULATIVE REDEEMABLE
PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF
JDN REALTY CORPORATION
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
IN WITNESS WHEREOF, the Corporation has caused the facsimile signatures
of its duly authorized officers to be printed hereon.
Dated:
/s/ J. Donald Nichols /s/ William J. Kerley
CHAIRMAN OF THE BOARD AND CHIEF FINANCIAL OFFICER
CHIEF EXECUTIVE OFFICER SECRETARY AND TREASURER
COUNTERSIGNED AND REGISTERED:
FIRST UNION NATIONAL BANK
(CHARLOTTE, N.C.)
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
<PAGE> 2
JDN REALTY CORPORATION
IF NECESSARY TO EFFECT COMPLIANCE BY THE CORPORATION WITH CERTAIN
PROVISIONS OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE TRANSFER OF
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE PROHIBITED UPON THE TERMS AND
CONDITIONS SET FORTH IN THE ARTICLES OF INCORPORATION AND BYLAWS OF THE
CORPORATION. THE CORPORATION WILL FURNISH A COPY OF SUCH TERMS AND CONDITIONS
TO THE REGISTERED HOLDER OF THIS CERTIFICATE UPON REQUEST AND WITHOUT CHARGE,
TO ENABLE THE CORPORATION TO ENSURE THAT IT COMPLIES WITH THE PROVISIONS OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE HOLDER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE AND ANY PROPOSED TRANSFEREES OF SUCH HOLDER
SHALL, UPON DEMAND, DISCLOSE TO THE CORPORATION IN WRITING SUCH INFORMATION AS
THE CORPORATION MAY DEEM NECESSARY FOR SUCH PURPOSES.
THE CORPORATION HAS THE AUTHORITY TO ISSUE STOCK OF MORE THAN ONE
CLASS. THE CORPORATION WILL, ON REQUEST AND WITHOUT CHARGE, FURNISH A FULL
STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER RIGHTS,
VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO DIVIDENDS, QUALIFICATIONS, AND
TERMS AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION IS AUTHORIZED TO ISSUE, INCLUDING THIS SERIES OF PREFERRED STOCK.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _____________ Custodian ___________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act __________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, __________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ shares
of the Preferred Stock represented by the within certificate, and do hereby
irrevocably constitute and appoint ___________________________________________,
Attorney to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated:
__________________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
SIGNATURE(S) GUARANTEED:_____________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, MUTILATED OR
DESTROYED, THE CORPORATION MAY REQUIRE A BOND OF INDEMNITY AS A CONDITION TO
THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
