As filed with the Securities and Exchange Commission on July 14, 1998
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
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
(Exact name of Registrant as Specified in its Charter)
MARYLAND 84-1259577
(State of Incorporation or (I.R.S. Employer Identification No.)
Organization)
1873 SOUTH BELLAIRE STREET, 17TH FLOOR
DENVER, COLORADO 80222-4348
(Address of principal executive offices)
If this Form relates to the If this Form relates to the
registration of a class of registration of a class of debt
debt securities and is securities and is to become
effective upon filing pursuant effective simultaneously with the
to General Instruction A(c)(1) effectiveness of a concurrent
please check the following box. [ ] registration statement under the
Securities Act of 1933 pursuant to
General Instruction A(c) (2) please
check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
9 3/8% Class G Cumulative New York Stock Exchange
Preferred Stock, par value
$.01 per share (liquidation
preference $25 per share)
Securities to be registered pursuant to Section 12(g) of the Act: None
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% Class G
Cumulative Preferred Stock, par value $.01 per share (liquidation
preference $25 per share) (the "Class G Preferred Stock"), of Apartment
Investment and Management Company, a Maryland corporation (the
"Registrant"). The description of the Class G Preferred Stock to be
registered hereunder is set forth under the caption "Description of Class G
Preferred Stock" in the Registrant's final Prospectus Supplement, dated
July 10, 1998, with respect to the Class G Preferred Stock (the "Prospectus
Supplement") filed pursuant to Rule 424(b) promulgated under the Securities
Act of 1933, as amended, relating to the Registrant's Registration
Statement on Form S-3 (No. 333-26415) filed with the Commission on May 22,
1997, as amended, which final Prospectus Supplement is incorporated herein
by reference.
ITEM 2 EXHIBITS.
The Class G Preferred Stock is to be registered on The New York
Stock Exchange, on which other securities of the Registrant are 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:
3.1 Charter of Registrant (incorporated by reference to Exhibit 3.1
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 1998);
3.2 Bylaws of Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1997);
3.3 Articles Supplementary relating to the Class G Preferred
Stock;
3.4 Form of the Registrant's Class G Preferred Stock Certificate;
3.5 Articles Supplementary relating to the Class C Preferred Stock of
the Registrant (incorporated by reference to Exhibit 3.5 to the
Registrant's Form 8-A filed with the Commission on February 18,
1998);
3.6 Articles Supplementary relating to the Class D Preferred Stock of
the Registrant; (incorporated by reference to Exhibit 3.3 to the
Registrant's Form 8-A filed with the Commission on February 18,
1998);
99.1 Description of the Class C Preferred Stock of the Registrant set
forth under the caption "Class C Preferred Stock" of the
Registrant's final Prospectus Supplement dated December 19,
1997, filed pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended, relating to the Registrant's
Registration Statement on Form S-3 (No. 333-26415) filed with the
Commission on May 22, 1997, as amended, is incorporated herein by
this reference;
99.2 Description of the Class D Preferred Stock of the Registrant set
forth under the caption "Class D Preferred Stock" of the
Registrant's final Prospectus Supplement dated February 13,
1998, filed pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended, relating to the Registrant's
Registration Statement on Form S-3 (No. 333-26415) filed with the
Commission on May 22, 1997, as amended, is incorporated herein by
this reference; and
99.3 Descriptions of the Common Stock of the Registrant set forth
under the caption "Capital Stock of the Company" of the
Registrant's Preliminary Prospectus dated May 6, 1994, included
in its Registration Statement on Form S-1 (No.33-78672), and
under the caption "Description of Common Stock" of the
Registrant's final Prospectus dated May 22, 1997, included in its
Registration Statement on Form S-3 (No. 333-26415) filed with the
Securities and Exchange Commission are incorporated herein by
this reference.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, as amended, the registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized.
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ TROY D. BUTTS
_________________________
Name: Troy D. Butts
Title: Vice President and
Chief Financial Officer
Date: July 14, 1998
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
3.1 Charter of Registrant (incorporated by reference to Exhibit 3.1
to the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 1997).
3.2 Bylaws of Registrant (incorporated by reference to Exhibit 3.2 to
the Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 1997).
3.3 Articles Supplementary relating to the Class G Preferred
Stock.
3.4 Form of the Registrant's Class G Preferred Stock Certificate.
3.5 Articles Supplementary relating to the Class C Preferred Stock of
the Registrant (incorporated by reference to Exhibit 3.5 to the
Registrant's Form 8-A filed with the Commission on February 18,
1998).
3.6 Articles Supplementary relating to the Class D Preferred Stock of
the Registrant (incorporated by reference to Exhibit 3.3 to the
Registrant's Form 8-A filed with the Commission on February 18,
1998).
99.1 Description of the Class C Preferred Stock of the Registrant set
forth under the caption "Class C Preferred Stock" of the
Registrant's final Prospectus Supplement dated December 19,
1997, filed pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended, relating to the Registrant's
Registration Statement on Form S-3 (No. 333-26415) filed with the
Commission on May 22, 1997, as amended, is incorporated herein by
this reference.
99.2 Description of the Class D Preferred Stock of the Registrant set
forth under the caption "Class D Preferred Stock" of the
Registrant's final Prospectus Supplement dated February 13,
1998, filed pursuant to Rule 424(b) promulgated under the
Securities Act of 1933, as amended, relating to the Registrant's
Registration Statement on Form S-3 (No. 333-26415) filed with the
Commission on May 22, 1997, as amended, is incorporated herein by
this reference.
99.3 Descriptions of the Common Stock of the Registrant set forth
under the caption "Capital Stock of the Company" of the
Registrant's Preliminary Prospectus dated May 6, 1994, included
in its Registration Statement on Form S-1 (No.33-78672), and
under the caption "Description of Common Stock" of the
Registrant's final Prospectus dated May 22, 1997, included in its
Registration Statement on Form S-3 (No. 333-26415) filed with the
Securities and Exchange Commission are incorporated herein by
this reference.
EXHIBIT 3.3
ARTICLES SUPPLEMENTARY
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
CLASS G CUMULATIVE PREFERRED STOCK
(PAR VALUE $.01 PER SHARE)
APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation
(hereinafter called the "Corporation"), having its principal office in
Baltimore City, Maryland, 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 by Section 1.2 of Article IV of the Charter of
the Corporation, as amended to date (the "Charter"), the Board of Directors
has duly divided and classified 4,050,000 authorized but unissued shares of
Class A Common Stock of the Corporation, par value $.01 per share (the
"Class A Common Stock"), into a class designated as Class G Cumulative
Preferred Stock, par value $.01 per share, and has provided for the
issuance of such class.
SECOND: The reclassification increases the number of shares
classified as Class G Cumulative Preferred Stock, par value $.01 per share,
from no shares immediately prior to the reclassification to 4,050,000
shares immediately after the reclassification. The reclassification
decreases the number of shares classified as Class A Common Stock from
502,377,500 shares immediately prior to the reclassification to 498,327,500
shares immediately after the reclassification.
THIRD: The terms of the Class G Cumulative 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. NUMBER OF SHARES AND DESIGNATION.
This class of Preferred Stock shall be designated as Class G
Cumulative Preferred Stock, par value $.01 per share (the "Class G
Preferred Stock") and Four Million Fifty Thousand (4,050,000) shall be the
authorized number of shares of such Class G Preferred Stock constituting
such class.
2. DEFINITIONS.
For purposes of the Class G 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.
"Aggregate Value" shall mean, with respect to any block of Equity
Stock, the sum of the products of (i) the number of shares of each
class of Equity Stock within such block multiplied by (ii) the
corresponding Market Price of one share of Equity Stock of such class.
"Beneficial Ownership" shall mean, with respect to any Person,
ownership of shares of Equity Stock equal to the sum of (i) the number
of shares of Equity Stock directly owned by such Person, (ii) the
number of shares of Equity Stock indirectly owned by such Person (if
such Person is an "individual" as defined in Section 542(a)(2) of the
Code) taking into account the constructive ownership rules of Section
544 of the Code, as modified by Section 856(h)(1)(B) of the Code, and
(iii) the number of shares of Equity Stock that such Person is deemed
to beneficially own pursuant to Rule 13d-3 under the Exchange Act or
that is attributed to such Person pursuant to Section 318 of the Code,
as modified by Section 856(d)(5) of the Code, provided that when
applying this definition of Beneficial Ownership to the Initial
Holder, clause (iii) of this definition, and clause (ii) of the
definition of "Person" shall be disregarded. The terms "Beneficial
Owner," "Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"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 Class G
Preferred Stock.
"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.
"Charitable Beneficiary" shall mean one or more beneficiaries of the
Trust as determined pursuant to Section 10.3 of this Article, each of
which shall be an organization described in Section 170(b)(1)(A),
170(c)(2) and 501(c)(3) of the Code.
"Class G Preferred Stock" shall have the meaning set forth in Section
1 of this Article.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto. Reference to any
provision of the Code shall mean such provision as in effect from time
to time, as the same may be amended, and any successor thereto, as
interpreted by any applicable regulations or other administrative
pronouncements as in effect from time to time.
"Common Stock" shall mean the Class A Common Stock, $.01 par value per
share, of the Corporation or such shares of the Corporation's capital
stock into which outstanding shares of Common Stock shall be
reclassified.
"Dividend Payment Date" shall mean January 15, April 15, July 15 and
October 15 of each year; provided, further, 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 date to such Dividend
Payment Date.
"Dividend Periods" shall mean the Initial Dividend Period and each
subsequent quarterly dividend period commencing on and including
January 15, April 15, July 15 and October 15 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 Class G Preferred Stock shall be redeemed pursuant to
Section 5 hereof, which shall end on and include the Redemption Date
with respect to the Class G Preferred Stock being redeemed.
"Equity Stock" shall mean one or more shares of any class of capital
stock of the Corporation.
"Excess Transfer" has the meaning set forth in Section 10.3(A) of this
Article.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Issue Date" shall mean July 15, 1998.
"Initial Dividend Period" shall mean the period commencing on and
including the Issue Date and ending on and including October 15, 1998.
"Initial Holder" shall mean Terry Considine.
"Initial Holder Limit" shall mean a number of the Outstanding shares
of Class G Preferred Stock of the Corporation having an Aggregate
Value not in excess of the excess of (x) 15% of the Aggregate Value of
all Outstanding shares of Equity Stock over (y) the Aggregate Value of
all shares of Equity Stock other than Class G Preferred Stock that are
Beneficially Owned by the Initial Holder. From the Issue Date, the
secretary of the Corporation, or such other person as shall be
designated by the Board of Directors, shall upon request make
available to the representative(s) of the Initial Holder and the Board
of Directors, a schedule that sets forth the then-current Initial
Holder Limit applicable to the Initial Holder.
"Junior Stock" shall mean the Common Stock and any other class or
series of capital stock of the Corporation over which the shares of
Class G Preferred Stock have preference or priority in the payment of
dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Look-Through Entity" shall mean a Person that is either (i) described
in Section 401(a) of the Code as provided under Section 856(h)(3) of
the Code or (ii) registered under the Investment Company Act of 1940.
"Look-Through Ownership Limit" shall mean, for any Look-Through
Entity, a number of the Outstanding shares of Class G Preferred Stock
of the Corporation having an Aggregate Value not in excess of the
excess of (x) 15% of the Aggregate Value of all Outstanding shares of
Equity Stock over (y) by the Aggregate Value of all shares of Equity
Stock other than Class G Preferred Stock that are Beneficially Owned
by the Look-Through Entity.
"Market Price" on any date shall mean, with respect to any share of
Equity Stock, the Closing Price of share of that class of Equity Stock
on the Trading Day immediately preceding such date. The term "Closing
Price" on any date shall mean the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the NYSE or, if the Equity
Stock is not listed or admitted to trading on the NYSE, as reported in
the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on
which the Equity Stock is listed or admitted to trading or, if the
Equity Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price, or if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or, if such system is no longer in
use, the principal other automated quotations system that may then be
in use or, if the Equity Stock is not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Equity Stock selected
by the Board of Directors of the Company. The term "Trading Day"
shall mean a day on which the principal national securities exchange
on which the Equity Stock is listed or admitted to trading is open for
the transaction of business or, if the Equity Stock is not listed or
admitted to trading on any national securities exchange, shall mean
any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by
law or executive order to close.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Outstanding" shall mean issued and outstanding shares of Equity Stock
of the Corporation, provided that for purposes of the application of
the Ownership Limit, the Look-Through Ownership Limit or the Initial
Holder Limit to any Person, the term "Outstanding" shall be deemed to
include the number of shares of Equity Stock that such Person alone,
at that time, could acquire pursuant to any options or convertible
securities.
"Ownership Limit" shall mean, for any Person other than the Initial
Holder or a Look-Through Entity, a number of the Outstanding shares of
Class G Preferred Stock of the Corporation having an Aggregate Value
not in excess of the excess of (x) 8.7% of the Aggregate Value of all
Outstanding shares of Equity Stock over (y) the Aggregate Value of all
shares of Equity Stock other than Class G Preferred Stock that are
Beneficially Owned by the Person.
"Ownership Restrictions" shall mean collectively the Ownership Limit
as applied to Persons other than the Initial Holder or Look-Through
Entities, the Initial Holder Limit as applied to the Initial Holder
and the Look-Through Ownership Limit as applied to Look-Through
Entities.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 7 of this Article. The Class B Preferred Stock, the Class C
Preferred Stock and the Class D Preferred Stock shall each be a Parity
Stock.
"Person" shall mean (a) for purposes of Section 10 of this Article,
(i) an individual, corporation, partnership, estate, trust (including
a trust qualifying under Section 401(a) or 501(c) of the Code),
association, private foundation within the meaning of Section 509(a)
of the Code, joint stock company or other entity, and (ii) also
includes a group as that term is used for purposes of Section 13(d)(3)
of the Exchange Act and (b) for purposes of the remaining Sections of
this Article, any individual, firm, partnership, corporation or other
entity and shall include any successor (by merger or otherwise) of
such entity.
"Prohibited Transferee" has the meaning set forth in Section 10.3(A)
of this Article.
"Redemption Date" shall have the meaning set forth in paragraph (b) of
Section 5 of this Article.
"REIT" shall mean a "real estate investment trust" as defined in
Section 856 of the Code.
"Senior Stock" shall have the meaning set forth in paragraph (a) of
Section 7 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
Class G Preferred Stock shall mean placing such funds in a separate
account or delivering such funds to a disbursing, paying or other
similar agent.
"Trading Day", as to any securities, shall mean any day on which such
securities are traded on the principal national securities exchange on
which such securities are listed or admitted or, if such securities
are not listed or admitted for trading on any national securities
exchange, the NASDAQ National Market or, if such securities are not
listed or admitted for trading on the NASDAQ National Market, in the
securities market in which such securities are traded.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of a share of Class G Preferred Stock (including (i)
the granting of an option or any series of such options or entering
into any agreement for the sale, transfer or other disposition of
Class G Preferred Stock or (ii) the sale, transfer, assignment or
other disposition of any securities or rights convertible into or
exchangeable for Class G Preferred Stock), whether voluntary or
involuntary, whether of record or Beneficial Ownership, and whether by
operation of law or otherwise (including, but not limited to, any
transfer of an interest in other entities that results in a change in
the Beneficial Ownership of shares of Class G Preferred Stock). The
term "Transfers" and "Transferred" shall have correlative meanings.
"Transfer Agent" means such transfer agent as may be designated by the
Board of Directors or their designee as the transfer agent for the
Class G Preferred Stock; provided, that if the Corporation has not
designated a transfer agent then the Corporation shall act as the
transfer agent for the Class G Preferred Stock.
"Trust" shall mean the trust created pursuant to Section 10.3 of this
Article.
"Trustee" shall mean the Person unaffiliated with either the
Corporation or the Prohibited Transferee that is appointed by the
Corporation to serve as trustee of the Trust.
"Voting Preferred Stock" shall have the meaning set forth in Section 8
of this Article.
3. DIVIDENDS.
(a) The holders of Class G 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 Class G Preferred Stock equal to $2.34375 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 October 15, 1998. Each such dividend shall be
payable in arrears to the holders of record of the Class G Preferred Stock,
as they appear on the stock records of the Corporation at the close of
business on the January 1, April 1, July 1 or October 1, as the case may
be, immediately preceding such Dividend Payment Date. Accumulated, accrued
and unpaid dividends for any past Dividend Periods may be declared and paid
at any time, without 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 Class G 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 Class G Preferred Stock shall
not be entitled to any dividends, whether payable in cash, property or
stock, in excess of cumulative dividends, as herein provided, on the Class
G 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 Class G
Preferred Stock that may be in arrears.
(c) So long as any of the shares of Class G 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 class or series of Parity Stock for any period unless dividends equal
to the full amount of accumulated, accrued and unpaid dividends 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 such
payment on the Class G Preferred Stock for all Dividend Periods terminating
on or prior to the Dividend Payment Date with respect to such class or
series 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 Class G Preferred Stock and all dividends declared upon
any other class or series of Parity Stock shall be declared ratably in
proportion to the respective amounts of dividends accumulated, accrued and
unpaid on the Class G Preferred Stock and accumulated, accrued and unpaid
on such Parity Stock.
(d) So long as any of the shares of Class G 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 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 or benefit 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 the full cumulative dividends (including
all accumulated, accrued and unpaid dividends) on all outstanding shares of
Class G Preferred Stock shall have been paid or such dividends have been
declared and set apart for payment for all past Dividend Periods with
respect to the Class G Preferred Stock.
Notwithstanding the provisions of this Section 3(d), 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 (ii) or redeeming, purchasing or otherwise acquiring any Parity
Stock, in each case, if such declaration, payment, redemption, purchase or
other acquisition is necessary in order to maintain the continued
qualification of the Corporation as a REIT under Section 856 of the Code.
4. 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 or surplus) shall be
made to or set apart for the holders of Junior Stock, the holders of shares
of Class G Preferred Stock shall be entitled to receive Twenty-Five Dollars
($25) per share of Class G Preferred Stock (the "Liquidation Preference"),
plus an amount equal to all dividends (whether or not earned or declared)
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 Class G Preferred Stock have been paid
the Liquidation Preference in full, plus an amount equal to all dividends
(whether or not earned or declared) accumulated, accrued and unpaid thereon
to the date of final distribution to such holders, 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 Class G 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 Class G Preferred Stock and any such other Parity
Stock ratably in the same proportion as the respective amounts that would
be payable on such Class G Preferred Stock and any such other Parity Stock
if all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or
more corporations, (ii) a sale or transfer 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
Class G Preferred Stock and any Parity Stock, as provided in this Section
4, 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 Class G
Preferred Stock and any Parity Stock shall not be entitled to share
therein.
5. REDEMPTION AT THE OPTION OF THE CORPORATION.
(a) Shares of Class G Preferred Stock shall not be redeemable by
the Corporation prior to July15, 2008, except as set forth in Section 10.2
of this Article. On and after July 15, 2008, the Corporation, at its
option, may redeem shares of Class G Preferred Stock, in whole or from time
to time in part, at a redemption price payable in cash equal to 100% of the
Liquidation Preference thereof, plus all accrued and unpaid dividends to
the date fixed for redemption (the "Redemption Date"). In connection with
any redemption pursuant to this Section 5(a), the redemption price of the
Class G Preferred Stock (other than any portion thereof consisting of
accrued and unpaid dividends) shall be payable solely with the proceeds
from the sale by the Corporation or AIMCO Properties, L.P., a Delaware
limited Partnership (the "Operating Partnership"), of other capital shares
of the Corporation or the Operating Partnership (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, partnership or other interests, 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 or the Operating Partnership.
(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.
(c) If full cumulative dividends on all outstanding shares of
Class G Preferred Stock have not been paid or declared and set apart for
payment, no shares of Class G Preferred Stock may be redeemed unless all
outstanding shares of Class G Preferred Stock are simultaneously redeemed
and neither the Corporation nor any affiliate of the Corporation may
purchase or acquire shares of Class G Preferred Stock, otherwise than
pursuant to a purchase or exchange offer made on the same terms to all
holders of shares of Class G Preferred Stock.
(d) If the Corporation shall redeem shares of Class G Preferred
Stock pursuant to paragraph (a) of this Section 5, 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 Class G
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; and (3) the place or places at which certificates for
such shares are to be surrendered for cash. 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) except as otherwise provided herein, dividends on the
shares of Class G Preferred Stock so called for redemption shall cease to
accumulate or accrue on the shares of Class G Preferred Stock called for
redemption (except that, in the case of a Redemption Date after a dividend
record date and prior to the related Dividend Payment Date, holders of
Class G Preferred Stock on the dividend record date will be entitled on
such Dividend Payment Date to receive the dividend payable on such shares),
(ii) said shares shall no longer be deemed to be outstanding, and (iii) all
rights of the holders thereof as holders of Class G 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 and to receive any dividends payable
thereon). 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 Call Date, the Corporation shall deposit with a bank
or trust company (which may 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, in trust, with irrevocable instructions that such cash be
applied to the redemption of the shares of Class G Preferred Stock so
called for redemption. No interest shall accrue for the benefit of the
holders of shares of Class G 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 Class G 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 Class G 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 Class G Preferred Stock are to be
redeemed, shares to be redeemed shall be selected by the Corporation from
outstanding shares of Class G Preferred Stock not previously called for
redemption by lot or, with respect to the number of shares of Class G
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 Class G 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.
6. STATUS OF REACQUIRED STOCK.
All shares of Class G 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 Class G Preferred Stock.
7. RANKING.
Any class or series of capital stock of the Corporation shall be
deemed to rank:
(a) prior or senior to the Class G Preferred Stock, as to the
payment of dividends and as to 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 or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference
or priority to the holders of Class G Preferred Stock ("Senior Stock");
(b) on a parity with the Class G Preferred Stock, as to the
payment of dividends and as to 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 Class G Preferred Stock, if the holders of such
class of stock or series and the Class G Preferred Stock shall be entitled
to the receipt of dividends and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of
accrued and unpaid dividends per share or liquidation preferences, without
preference or priority one over the other ("Parity Stock"); and
(c) junior to the Class G Preferred Stock, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such stock or series shall be Common Stock or if the
holders of Class G 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 ("Junior Stock").
8. VOTING.
(a) If and whenever six quarterly dividends (whether or not
consecutive) payable on the Class G 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),
whether or not earned or declared, 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 Class G 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 Class G Preferred
Stock and the Voting Preferred Stock called as hereinafter provided.
Whenever all arrears in dividends on the Class G 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 paid or
declared and set apart for payment, then the right of the holders of the
Class G 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 Class G 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
Class G Preferred Stock and the Voting Preferred Stock, if applicable, the
Secretary of the Corporation may, and upon the written request of any
holder of Class G Preferred Stock (addressed to the Secretary at the
principal office of the Corporation) shall, call a special meeting of the
holders of the Class G 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 Class G 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 have previously terminated as above provided. If any
vacancy shall occur among the directors elected by the holders of the Class
G 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 Class G 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 Class G 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
Class G Preferred Stock voting as a single class with the holders of all
other classes or series of Preferred 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 these Articles Supplementary, the Charter or the By-Laws of
the Corporation that materially adversely affects the voting powers, rights
or preferences of the holders of the Class G Preferred Stock; provided,
however, that the amendment of the provisions of the Charter so as to
authorize or create, or to increase the authorized amount of, or issue any
Junior Stock or any shares of any class of Parity Stock shall not be deemed
to materially adversely affect the voting powers, rights or preferences of
the holders of Class G Preferred Stock; or
(ii) The authorization, creation of, the increase in the
authorized amount of, or issuance of any shares of any class of Senior
Stock or any security convertible into shares of any class of Senior Stock
(whether or not such class of Senior Stock is currently authorized);
provided, however, that no such vote of the holders of Class G 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
prior shares or convertible security is to be made, as the case may be,
provision is made for the redemption of all shares of Class G Preferred
Stock at the time outstanding to the extent such redemption is authorized
by Section 5 of this Article.
For purposes of the foregoing provisions and all other voting rights
under these Articles Supplementary, each share of Class G Preferred Stock
shall have one (1) vote per share, except that when any other class or
series of preferred stock shall have the right to vote with the Class G
Preferred Stock as a single class on any matter, then the Class G 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 as otherwise required by applicable law or as set forth
herein, the Class G 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.
9. RECORD HOLDERS.
The Corporation and the Transfer Agent may deem and treat the record
holder of any share of Class G 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.
10.1 RESTRICTIONS ON OWNERSHIP AND TRANSFERS.
(A) LIMITATION ON BENEFICIAL OWNERSHIP. Except as provided in
Section 10.8, from and after the Issue Date, no Person (other than the
Initial Holder or a Look-Through Entity) shall Beneficially Own shares of
Class G Preferred Stock in excess of the Ownership Limit, the Initial
Holder shall not Beneficially Own shares of Class G Preferred Stock in
excess of the Initial Holder Limit and no Look-Through Entity shall
Beneficially Own shares of Class G Preferred Stock in excess of the Look-
Through Ownership Limit.
(B) TRANSFERS IN EXCESS OF OWNERSHIP LIMIT. Except as provided
in Section 10.8, from and after the Issue Date (and subject to Section
10.12), any Transfer (whether or not such Transfer is the result of
transactions entered into through the facilities of the NYSE or other
securities exchange or an automated inter-dealer quotation system) that, if
effective, would result in any Person (other than the Initial Holder or a
Look-Through Entity) Beneficially Owning shares of Class G Preferred Stock
in excess of the Ownership Limit shall be void ab initio as to the Transfer
of such shares of Class G Preferred Stock that would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit, and the
intended transferee shall acquire no rights in such shares of Class G
Preferred Stock.
(C) TRANSFERS IN EXCESS OF INITIAL HOLDER LIMIT. Except as
provided in Section 10.8, from and after the Issue Date (and subject to
Section 10.12), any Transfer (whether or not such Transfer is the result of
transactions entered into through the facilities of the NYSE or other
securities exchange or an automated inter-dealer quotation system) that, if
effective, would result in the Initial Holder Beneficially Owning shares of
Class G Preferred Stock in excess of the Initial Holder Limit shall be void
ab initio as to the Transfer of such shares of Class G Preferred Stock that
would be otherwise Beneficially Owned by the Initial Holder in excess of
the Initial Holder limit, and the Initial Holder shall acquire no rights in
such shares of Class G Preferred Stock.
(D) TRANSFERS IN EXCESS OF LOOK-THROUGH OWNERSHIP LIMIT. Except
as provided in Section 10.8 from and after the Issue Date (and subject to
Section 10.12), any Transfer (whether or not such Transfer is the result of
transactions entered into through the facilities of the NYSE or other
securities exchange or an automated inter-dealer quotation system) that, if
effective, would result in any Look-Through Entity Beneficially Owning
shares of Class G Preferred Stock in excess of the Look-Through Ownership
limit shall be void ab initio as to the Transfer of such shares of Class G
Preferred Stock that would be otherwise Beneficially Owned by such Look-
Through Entity in excess of the Look-Through Ownership Limit and such Look-
Through Entity shall acquire no rights in such shares of Class G Preferred
Stock.
(E) TRANSFERS RESULTING IN "CLOSELY HELD" STATUS. From and
after the Issue Date, any Transfer that, if effective would result in the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code, or would otherwise result in the Corporation failing to qualify
as a REIT (including, without limitation, a Transfer or other event that
would result in the Corporation owning (directly or constructively) an
interest in a tenant that is described in Section 856(d)(2)(B) of the Code
if the income derived by the Corporation from such tenant would cause the
Corporation to fail to satisfy any of the gross income requirements of
Section 856(c) of the Code) shall be void ab initio as to the Transfer of
shares of Class G Preferred Stock that would cause the Corporation (i) to
be "closely held" within the meaning of Section 856(h) of the Code or (ii)
otherwise fail to qualify as a REIT, as the case may be, and the intended
transferee shall acquire no rights in such shares of Class G Preferred
Stock.
(F) SEVERABILITY ON VOID TRANSACTIONS. A Transfer of a share of
Class G Preferred Stock that is null and void under Sections 10.1(B), (C),
(D), or (E) of this Article because it would, if effective, result in (i)
the ownership of Class G Preferred Stock in excess of the Initial Holder
Limit, the Ownership Limit, or the Look-Through Ownership Limit, (ii) the
Corporation being "closely held" within the meaning of Section 856(h) of
the Code or (iii) the Corporation otherwise failing to qualify as a REIT,
shall not adversely affect the validity of the Transfer of any other share
of Class G Preferred Stock in the same or any other related transaction.
10.2 REMEDIES FOR BREACH. If the Board of Directors or a committee
thereof shall at any time determine in good faith that a Transfer or other
event has taken place in violation of Section 10.1 of this Article or that
a Person intends to acquire or has attempted to acquire Beneficial
Ownership of any shares of Class G Preferred Stock in violation of Section
10.1 of this Article (whether or not such violation is intended), the Board
of Directors or a committee thereof shall be empowered to take any action
as it deems advisable to refuse to give effect to or to prevent such
Transfer or other event, including, but not limited to, refusing to give
effect to such Transfer or other event on the books of the Corporation,
causing the Corporation to redeem such shares at the then current Market
Price and upon such terms and conditions as may be specified by the Board
of Directors in its sole discretion (including, but not limited to, by
means of the issuance of long-term indebtedness for the purpose of such
redemption), demanding the repayment of any distributions received in
respect of shares of Class G Preferred Stock acquired in violation of
Section 10.1 of this Article or instituting proceedings to enjoin such
Transfer or to rescind such Transfer or attempted Transfer; provided,
however, that any Transfers or attempted Transfers (or in the case of
events other than a Transfer, Beneficial Ownership) in violation of Section
10.1 of this Article, regardless of any action (or non-action) by the Board
of Directors or such committee, (a) shall be void ab initio or (b) shall
automatically result in the transfer described in Section 10.3 of this
Article; provided, further, that the provisions of this Section 10.2 shall
be subject to the provisions of Section 10.12 of this Article; provided,
further, that neither the Board of Directors nor any committee thereof may
exercise such authority in a manner that interferes with any ownership or
transfer of Class G Preferred Stock that is expressly authorized pursuant
to Section 10.8(d) of this Article.
10.3. TRANSFER IN TRUST.
(A) ESTABLISHMENT OF TRUST. If, notwithstanding the other
provisions contained in this Article, at any time after the Issue Date
there is a purported Transfer (an "Excess Transfer") (whether or not such
Transfer is the result of transactions entered into through the facilities
of the NYSE or other securities exchange or an automated inter-dealer
quotation system) or other change in the capital structure of the
Corporation (including, but not limited to, any redemption of Preferred
Stock) or other event (including, but not limited to, any acquisition of
any share of Equity Stock) such that (a) any Person (other than the Initial
Holder or a Look-Through Entity) would Beneficially Own shares of Class G
Preferred Stock in excess of the Ownership Limit, or (b) the Initial Holder
would Beneficially Own shares of Class G Preferred Stock in excess of the
Initial Holder Limit, or (c) any Person that is a Look-Through Entity would
Beneficially Own shares of Class G Preferred Stock in excess of the Look-
Through Ownership Limit (in any such event, the Person, Initial Holder or
Look-Through Entity that would Beneficially Own shares of Class G Preferred
Stock in excess of the Ownership Limit, the Initial Holder Limit or the
Look-Through Entity Limit, respectively, is referred to as a "Prohibited
Transferee"), then, except as otherwise provided in Section 10.8 of this
Article, such shares of Class G Preferred Stock in excess of the Ownership
Limit, the Initial Holder Limit or the Look-Through Ownership Limit, as the
case may be, (rounded up to the nearest whole share) shall be automatically
transferred to a Trustee in his capacity as trustee of a Trust for the
exclusive benefit of one or more Charitable Beneficiaries. Such transfer
to the Trustee shall be deemed to be effective as of the close of business
on the business day prior to the Excess Transfer, change in capital
structure or another event giving rise to a potential violation of the
Ownership Limit, the Initial Holder Limit or the Look Through Entity
Ownership Limit.
(B) APPOINTMENT OF TRUSTEE. The Trustee shall be appointed by
the Corporation and shall be a Person unaffiliated with either the
Corporation or any Prohibited Transferee. The Trustee may be an individual
or a bank or trust company duly licensed to conduct a trust business.
(C) STATUS OF SHARES HELD BY THE TRUSTEE. Shares of Class G
Preferred Stock held by the Trustee shall be issued and outstanding shares
of capital stock of the Corporation. Except to the extent provided in
Section 10.3(E), the Prohibited Transferee shall have no rights in the
Class G Preferred Stock held by the Trustee, and the Prohibited Transferee
shall not benefit economically from ownership of any shares held in trust
by the Trustee, shall have no rights to dividends and shall not possess any
rights to vote or other rights attributable to the shares held in the
Trust.
(D) DIVIDEND AND VOTING RIGHTS. The Trustee shall have all
voting rights and rights to dividends with respect to shares of Class G
Preferred Stock held in the Trust, which rights shall be exercised for the
benefit of the Charitable Beneficiary. Any dividend or distribution paid
prior to the discovery by the Corporation that the shares of Class G
Preferred Stock have been transferred to the Trustee shall be repaid to the
Corporation upon demand, and any dividend or distribution declared but
unpaid shall be rescinded as void ab initio with respect to such shares of
Class G Preferred Stock. Any dividends or distributions so disgorged or
rescinded shall be paid over to the Trustee and held in trust for the
Charitable Beneficiary. Any vote cast by a Prohibited Transferee prior to
the discovery by the Corporation that the shares of Class G Preferred Stock
have been transferred to the Trustee will be rescinded as void ab initio
and shall be recast in accordance with the desires of the Trustee acting
for the benefit of the Charitable Beneficiary. The owner of the shares at
the time of the Excess Transfer, change in capital structure or other event
giving rise to a potential violation of the Ownership Limit, Initial Holder
Limit or Look-Through Entity Ownership Limit shall be deemed to have given
an irrevocable proxy to the Trustee to vote the shares of Class G Preferred
Stock for the benefit of the Charitable Beneficiary.
(E) RESTRICTIONS ON TRANSFER. The Trustee of the Trust may sell
the shares held in the Trust to a person, designated by the Trustee, whose
ownership of the shares will not violate the Ownership Restrictions. If
such a sale is made, the interest of the Charitable Beneficiary shall
terminate and proceeds of the sale shall be payable to the Prohibited
Transferee and to the Charitable Beneficiary as provided in this Section
10.3(E). The Prohibited Transferee shall receive the lesser of (1) the
price paid by the Prohibited Transferee for the shares or, if the
Prohibited Transferee did not give value for the shares (through a gift,
devise or other transaction), the Market Price of the shares on the day of
the event causing the shares to be held in the Trust and (2) the price per
share received by the Trustee from the sale or other disposition of the
shares held in the Trust. Any proceeds in excess of the amount payable to
the Prohibited Transferee shall be payable to the Charitable Beneficiary.
If any of the transfer restrictions set forth in this Section 10.3(E) or
any application thereof is determined in a final judgment to be void,
invalid or unenforceable by any court having jurisdiction over the issue,
the Prohibited Transferee may be deemed, at the option of the Corporation,
to have acted as the agent of the Corporation in acquiring the Class G
Preferred Stock as to which such restrictions would, by their terms, apply,
and to hold such Class G Preferred Stock on behalf of the Corporation.
(F) PURCHASE RIGHT IN STOCK TRANSFERRED TO THE TRUSTEE. Shares
of Class G Preferred Stock transferred to the Trustee shall be deemed to
have been offered for sale to the Corporation, or its designee, at a price
per share equal to the lesser of (i) the price per share in the transaction
that resulted in such transfer to the Trust (or, in the case of a devise or
gift, the Market Price at the time of such devise or gift) and (ii) the
Market Price on the date the Corporation, or its designee, accepts such
offer. The Corporation shall have the right to accept such offer for a
period of 90 days after the later of (i) the date of the Excess Transfer or
other event resulting in a transfer to the Trust and (ii) the date that the
Board of Directors determines in good faith that an Excess Transfer or
other event occurred.
(G) DESIGNATION OF CHARITABLE BENEFICIARIES. By written notice
to the Trustee, the Corporation shall designate one or more nonprofit
organizations to be the Charitable Beneficiary of the interest in the Trust
relating to such Prohibited Transferee if (i) the shares of Class G
Preferred Stock held in the Trust would not violate the Ownership
Restrictions in the hands of such Charitable Beneficiary and (ii) each
Charitable Beneficiary is an organization described in Sections
170(b)(1)(A), 170(c)(2) and 501(c)(3) of the Code.
10.4 NOTICE OF RESTRICTED TRANSFER. Any Person that acquires or
attempts to acquire shares of Class G Preferred Stock in violation of
Section 10.1 of this Article, or any Person that is a Prohibited Transferee
such that stock is transferred to the Trustee under Section 10.3 of this
Article, shall immediately give written notice to the Corporation of such
event and shall provide to the Corporation such other information as the
Corporation may request in order to determine the effect, if any, of such
Transfer or attempted Transfer or other event on the Corporation's status
as a REIT. Failure to give such notice shall not limit the rights and
remedies of the Board of Directors provided herein in any way.
10.5 OWNERS REQUIRED TO PROVIDE INFORMATION. From and after the
Issue Date certain record and Beneficial Owners and transferees of shares
of Class G Preferred Stock will be required to provide certain information
as set out below.
(A) ANNUAL DISCLOSURE. Every record and Beneficial Owner of
more than 5% (or such other percentage between 0.5% and 5%, as provided in
the applicable regulations adopted under the Code) of the number of
Outstanding shares of Class G Preferred Stock shall, within 30 days after
January 1 of each year, give written notice to the Corporation stating the
name and address of such record or Beneficial Owner, the number of shares
of Class G Preferred Stock Beneficially Owned, and a full description of
how such shares are held. Each such record or Beneficial Owner of Class G
Preferred Stock shall, upon demand by the Corporation, disclose to the
Corporation in writing such additional information with respect to the
Beneficial Ownership of the Class G Preferred Stock as the Board of
Directors, in its sole discretion, deems appropriate or necessary to (i)
comply with the provisions of the Code regarding the qualification of the
Corporation as a REIT under the Code and (ii) ensure compliance with the
Ownership Limit, the Initial Holder Limit or the Look-Through Ownership
Limit, as applicable. Each stockholder of record, including without
limitation any Person that holds shares of Class G Preferred Stock on
behalf of a Beneficial Owner, shall take all reasonable steps to obtain the
written notice described in this Section 10.5 from the Beneficial Owner.
(B) DISCLOSURE AT THE REQUEST OF THE CORPORATION. Any Person
that is a Beneficial Owner of shares of Class G Preferred Stock and any
Person (including the stockholder of record) that is holding shares of
Class G Preferred Stock for a Beneficial Owner, and any proposed transferee
of shares, shall provide such information as the Corporation, in its sole
discretion, may request in order to determine the Corporation's status as a
REIT, to comply with the requirements of any taxing authority or other
governmental agency, to determine any such compliance or to ensure
compliance with the Ownership Limit, the Initial Holder Limit and the Look-
Through Ownership Limit, and shall provide a statement or affidavit to the
Corporation setting forth the number of shares of Class G Preferred Stock
already Beneficially Owned by such stockholder or proposed transferee and
any related persons specified, which statement or affidavit shall be in the
form prescribed by the Corporation for that purpose.
10.6 REMEDIES NOT LIMITED. Nothing contained in this Article
shall limit the authority of the Board of Directors to take such other
action as it deems necessary or advisable (subject to the provisions of
Section 10.12 of this Article) (i) to protect the Corporation and the
interests of its stockholders in the preservation of the Corporation's
status as a REIT and (ii) to insure compliance with the Ownership Limit,
the Initial Holder Limit and the Look-Through Ownership Limit.
10.7 AMBIGUITY. In the case of an ambiguity in the application
of any of the provisions of Section 10 of this Article, or in the case of
an ambiguity in any definition contained in Section 10 of this Article, the
Board of Directors shall have the power to determine the application of the
provisions of this Article with respect to any situation based on its
reasonable belief, understanding or knowledge of the circumstances.
10.8 EXCEPTIONS. The following exceptions shall apply or may be
established with respect to the limitations of Section 10.1 of this
Article.
(A) WAIVER OF OWNERSHIP LIMIT. The Board of Directors, upon
receipt of a ruling from the Internal Revenue Service or an opinion of tax
counsel or other evidence or undertaking acceptable to it, may waive the
application, in whole or in part, of the Ownership Limit to a Person
subject to the Ownership Limit, if such person is not an individual for
purposes of Section 542(a) of the Code and is a corporation, partnership,
estate or trust. In connection with any such exemption, the Board of
Directors may require such representations and undertakings from such
Person and may impose such other conditions as the Board of Directors deems
necessary, in its sole discretion, to determine the effect, if any, of the
proposed Transfer on the Corporation's status as a REIT.
(B) PLEDGE BY INITIAL HOLDER. Notwithstanding any other
provision of this Article, the pledge by the Initial Holder of all or any
portion of the Class G Preferred Stock directly owned at any time or from
time to time shall not constitute a violation of Section 10.1 of this
Article and the pledgee shall not be subject to the Ownership Limit with
respect to the Class G Preferred Stock so pledged to it either as a result
of the pledge or upon foreclosure.
(C) UNDERWRITERS. For a period of 270 days following the
purchase of Class G Preferred Stock by an underwriter that (i) is a
corporation or a partnership and (ii) participates in an offering of the
Class G Preferred Stock, such underwriter shall not be subject to the
Ownership Limit with respect to the Class G Preferred Stock purchased by it
as a part of or in connection with such offering and with respect to any
Class G Preferred Stock purchased in connection with market making
activities.
10.9 LEGEND. Each certificate for Class G Preferred Stock shall bear
the following legend:
"The shares of Class G Cumulative Preferred Stock
represented by this certificate are subject to restrictions on
transfer. No person may Beneficially Own shares of Class G
Cumulative Preferred Stock in excess of the Ownership
Restrictions, as applicable, with certain further restrictions
and exceptions set forth in the Charter (including the Articles
Supplementary setting forth the terms of the Class G Cumulative
Preferred Stock). Any Person that attempts to Beneficially Own
shares of Class G Cumulative Preferred Stock in excess of the
applicable limitation must immediately notify the Corporation.
All capitalized terms in this legend have the meanings ascribed
to such terms in the Charter (including the Articles
Supplementary setting forth the terms of the Class G Cumulative
Preferred Stock), as the same may be amended from time to time, a
copy of which, including the restrictions on transfer, will be
sent without charge to each stockholder that so requests. If the
restrictions on transfer are violated (i) the transfer of the
shares of Class G Cumulative Preferred Stock represented hereby
will be void in accordance with the Charter (including the
Articles Supplementary setting forth the terms of the Class G
Cumulative Preferred Stock) or (ii) the shares of Class G
Cumulative Preferred Stock represented hereby will automatically
be transferred to a Trustee of a Trust for the benefit of one or
more Charitable Beneficiaries."
10.10 SEVERABILITY. If any provision of this Article or any
application of any such provision is determined in a final and unappealable
judgment to be void, invalid or unenforceable by any Federal or state court
having jurisdiction over the issues, the validity and enforceability of the
remaining provisions shall not be affected and other applications of such
provision shall be affected only to the extent necessary to comply with the
determination of such court.
10.11 BOARD OF DIRECTORS DISCRETION. Anything in this Article to the
contrary notwithstanding, the Board of Directors shall be entitled to take
or omit to take such actions as it in its discretion shall determine to be
advisable in order that the Corporation maintain its status as and continue
to qualify as a REIT, including, but not limited to, reducing the Ownership
Limit, the Initial Holder Limit and the Look-Through Ownership Limit in the
event of a change in law.
10.12 SETTLEMENT. Nothing in this Section 10 of this Article shall
be interpreted to preclude the settlement of any transaction entered into
through the facilities of the NYSE or other securities exchange or an
automated inter-dealer quotation system.
FOURTH: The terms of the Class G Cumulative Preferred Stock set forth
in Article Third hereof shall become Article XVI of the Charter.
IN WITNESS WHEREOF, the Corporation has caused these presents to be
signed in its name and on its behalf by its Senior Vice President and Chief
Financial Officer and witnessed by its Secretary on July 13, 1998.
WITNESS: APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
/s/ JOEL BONDER /s/ TROY D. BUTTS
___________________________________________________________
Joel Bonder Troy D. Butts
Secretary Senior Vice President and
Chief Financial Officer
THE UNDERSIGNED, Senior Vice President and Chief Financial Officer of
APARTMENT INVESTMENT AND MANAGEMENT COMPANY, who executed on behalf of the
Corporation the Articles Supplementary of which this Certificate is made a
part, hereby acknowledges in the name and on behalf of said Corporation the
foregoing Articles Supplementary to be the corporate act of said
Corporation and hereby certifies that the matters and facts set forth
herein with respect to the authorization and approval thereof are true in
all material respects under the penalties of perjury.
/s/ TROY D. BUTTS
_______________________________
Troy D. Butts
Senior Vice President and
Chief Financial Officer
EXHIBIT 3.4
Form of the Registrant's Class G Preferred Stock Certificate.
[front of Certificate]
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
Incorporated under the laws of the state of Maryland
Number ___________________
___________________ Shares
Class G Cumulative Preferred Stock See reverse for certain definitions
This certificate is transferable in
Boston, MA or New York, NY CUSIP 03748R 40 8
Countersigned and registered
BankBoston, N.A.
________________________
(Signature)
This certifies that ________________________ is the owner of ____________
fully-paid and non-assessable shares of Class G Cumulative Preferred
Stock, $.01 par value per share, of Apartment Investment and Management
Company transferable only 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 unless
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated _______________ /s/ TERRY CONSIDINE
_________________________
Terry Considine,
Chief Executive Officer
/s/ JOEL BONDER /s/ PETER KOMPANIEZ
______________________ __________________________
Joel Bonder Peter Kompaniez
Secretary President
[back of Certificate]
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
The Corporation will furnish to any stockholder on request and without
charge a full statement of the designations and any preferences, conversion
and other rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption of the stock of each
class which the Corporation is authorized to issue, of the differences in
the relative rights and preferences between the shares of each series of a
preferred or special class in series which the Corporation is authorized to
issue, to the extent they have been set, and of the authority of the Board
of Directors to set the relative rights and preferences of subsequent
series of a preferred or special class of stock. Such request may be made
to the secretary of the Corporation or to its transfer agent.
The shares of Class G Cumulative Preferred Stock represented by this
certificate are subject to restrictions on transfer. No person may
Beneficially Own shares of Class G Cumulative Preferred Stock in excess of
the Ownership Restrictions, as applicable, with certain further
restrictions and exceptions set forth in the Corporation's Charter
(including the Articles Supplementary setting forth the terms of the Class
G Cumulative Preferred Stock). Any Person that attempts to Beneficially
Own shares of Class G Cumulative Preferred Stock in excess of the
applicable limitation must immediately notify the Corporation. All
capitalized terms in this legend have the meanings ascribed to such terms
in the Corporation's Charter (including the Articles Supplementary setting
forth the terms of the Class G Cumulative Preferred Stock), as the same may
be amended from time to time, a copy of which, including the restrictions
on transfer, will be sent without charge to each stockholder that so
requests. If the restrictions on transfer are violated, the shares of
Class G Cumulative Preferred Stock represented hereby will be either (i)
void in accordance with the Certificate or (ii) automatically transferred
to a Trustee of a Trust for the benefit of one or more Charitable
Beneficiaries.
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:
TEN COM - as tenants in common UNIF GIFT MIN ACT - Custodian
________(Cust) ________ (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors
Act ________________________
JT TEN - as joint tenants with right of (State)
survivorship and not as tenants
in common
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
(NAME AND ADDRESS OF TRANSFEREE SHOULD BE PRINTED OR TYPEWRITTEN)
_________ Shares of the Class G Cumulative 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 promises.
Dated: ___________________ SIGNATURE ___________________________
SIGNATURE(S) GUARANTEED
NOTICE: THE SIGNATURE OF THIS ASSIGNMENT MUST CORRESPOND WITH NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
By: ________________________
THE SIGNATURE 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 SEC RULE 17Ad-15.
