As filed with the Securities and Exchange Commission on October 1, 1998
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
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 debt registration of a class of debt
securities and is effective upon securities and is to become
filing pursuant to General effective simultaneously with the
Instruction A(c)(1) please check effectiveness of a concurrent
the following box. [ ] registration statement under the
Securities Act of 1933 pursuant to
General Instruction A(c)(2) please
check the following box. [ ]
Securities Act registration statement file number to which this form
relates: ________________
(If applicable)
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
Class E Cumulative Convertible New York Stock Exchange
Preferred Stock, par value
$.01 per share
Securities to be registered pursuant to Section 12(g) of the Act: None
INFORMATION REQUIRED IN REGISTRATION STATEMENT
This Amendment No. 1 amends and restates the Registrant's
registration statement on Form 8-A dated September 25, 1998 (the "Original
Form 8-A") in connection with the Registrant's listing of the Class E
Cumulative Convertible Preferred Stock and the Class A Common Stock of the
Registrant. This Amendment No. 1 replaces the Original Form 8-A in its
entirety.
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 Class E
Cumulative Convertible Preferred Stock, par value $.01 per share, of
Apartment Investment and Management Company, a Maryland corporation (the
"Registrant") (the "Class E Preferred Stock"). The description of the
Class E Preferred Stock to be registered hereunder is set forth under the
caption "Description of AIMCO's Capital Stock AIMCO Class E Preferred
Stock", in Amendment No. 1 to the Registrant's Registration Statement on
Form S-4, dated August 7, 1998 (file no. 333-60663), with respect to the
Class E Preferred Stock.
ITEM 2 EXHIBITS.
The Class E 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:
4.1 Charter of Registrant (incorporated by reference to Exhibit 3.1
to the Registrant's Annual Report on Form 10-K/A for the fiscal
year ended December 31, 1997);
4.2 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);
4.3 Form of Articles Supplementary relating to the Class E Preferred
Stock of the Registrant;
4.4 Form of the Registrant's Class E Preferred Stock Certificate;
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:__________________________
Name: Peter Kompaniez
Title: President
Date: October 1, 1998
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Charter of Registrant (incorporated by reference to
Exhibit 3.1 to the Registrant's Annual Report on Form
10-K/A for the fiscal year ended December 31, 1997).
4.2 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).
4.3 Form of Articles Supplementary relating to the Class E
Preferred Stock of the Registrant.
4.4 Form of the Registrant's Class E Preferred Stock
Certificate.
EXHIBIT 4.3
ARTICLES SUPPLEMENTARY
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
CLASS E CUMULATIVE CONVERTIBLE 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 (the "Charter"), the Board of Directors has duly divided
and classified 10,000,000 authorized but unissued shares of Common Stock
into a class designated as Class E Cumulative Convertible 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 E Cumulative Convertible Preferred Stock, par value
$.01 per share, from no shares immediately prior to the reclassification to
10,000,000 shares immediately after the reclassification. The
reclassification decreases the number of shares classified as Common Stock
from 496,027,500 shares immediately prior to the reclassification to
486,027,500 shares immediately after the reclassification. The number of
shares classified as Class E Cumulative Convertible Preferred Stock will be
decreased pursuant to Section 7 of Article Third of these Articles
Supplementary upon reacquisition thereof in any manner, or by retirement
thereof, by the Corporation.
THIRD: The terms of the Class E Cumulative Convertible 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 E
Cumulative Convertible Preferred Stock (the "Class E Preferred Stock") and
ten million (10,000,000) shall be the authorized number of shares of such
Class E Preferred Stock constituting such class.
2. DEFINITIONS.
For purposes of the Class E Preferred Stock, the following terms shall
have the meanings indicated:
"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 E
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.
"Class E 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.
"Conversion Date" shall mean the date on which the Series E Preferred
Stock is converted into issued and outstanding Common Stock.
"Current Market Price" per share of Common Stock on any date shall
mean the average of the daily market prices of a share of Common Stock
for the five consecutive trading days preceding such date. The market
price for each such day 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 Common 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 Common Stock is listed or admitted to trading
or, if the Common 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 Common 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 Common
Stock selected by the Board of Directors of the Corporation.
"Dividend Payment Date" shall mean, with respect to each Dividend
Period, (a) the date on which cash dividends are paid on the Common
Stock with respect to such Dividend Period, but excluding any such
dates after the Conversion Date; or (b) if such dividends have not
been paid on the Common Stock by 9:00 a.m, New York City time, on the
sixtieth day from and including the last day of such Dividend Period,
then on such day; 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.
"Dividend Periods" shall mean the Initial Dividend Period and each
subsequent quarterly dividend period commencing on and including
January 1, April 1, July 1, and October 1 of each year and ending on
and including the day immediately preceding the last day of the
succeeding Dividend Period, other than the Dividend Period during
which any Class E Preferred Stock shall be redeemed pursuant to
Section 6 hereof, which shall end on and include the Call Date with
respect to the Class E Stock being redeemed.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Issue Date" shall mean the Effective Time under the Merger Agreement.
"Initial Dividend" shall mean the first dividend paid to holders of
the Common Stock after the Issue Date.
"Initial Dividend Period" shall mean the period commencing on and
including the Issue Date and ending on and including the record date
for the Initial Dividend.
"Junior Stock" shall have the meaning set forth in paragraph (c) of
Section 8 of this Article. The Common Stock issued by the Corporation
shall be Junior Stock.
"Merger Agreement" shall mean the Amended and Restated Agreement and
Plan of Merger, dated as of May 26, 1998, by and among the
Corporation, Insignia Financial Group, Inc., a Delaware corporation,
Insignia/ESG Holdings, Inc., a Delaware corporation, and AIMCO
Properties, L.P., a Delaware limited partnership.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 8 of this Article.
"Prohibited Transferee" has the meaning set forth in Section 11.3(A)
of this Article.
"Senior Stock" shall have the meaning set forth in paragraph (a) of
Section 8 of this Article. The Class B Cumulative Convertible
Preferred Stock, Class C 9% Cumulative Preferred Stock, Class D 8.75%
Cumulative Preferred Stock, Class G 9.375% Cumulative Preferred Stock
and Class H 9.50% Cumulative Preferred Stock previously issued by the
Corporation shall each be a Senior Stock.
"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 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 E Preferred Stock shall mean
placing such funds in a separate account or delivering such funds to a
disbursing, paying or other similar agent.
"Special Dividend" shall mean, if and when declared by the Board of
Directors, in its sole discretion, the distribution, whether in one or
more disbursements, of an amount per share of Class E Preferred Stock
equal to the Special Dividend Amount divided by the Series E
Conversion Ratio (each as defined in the Merger Agreement) (subject to
proportional adjustment upon the occurrence of any of the events
described in Section 5(b) hereof), to the holders of Class E Preferred
Stock.
"Special Dividend Date" shall mean any date on which the Special
Dividend, or any portion thereof, is paid to the holders of the Class
E Preferred Stock.
"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 E 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 E Preferred Stock.
3. DIVIDENDS AND THE SPECIAL DIVIDEND DISTRIBUTION.
(a) On every Dividend Payment Date, the holders of Class E
Preferred Stock shall be entitled to receive cumulative dividends payable
in cash in an amount per share of Class E Preferred Stock equal to the per
share dividend payable on Common Stock on such Dividend Payment Date. 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 the Dividend
Payment Dates, commencing on the first Dividend Payment Date after the
Issue Date. Each such dividend shall be payable in arrears to the holders
of record of the Class E Preferred Stock as they appear on the records of
the Corporation at the close of business on the record date fixed by the
Board of Directors with respect to such Dividend Payment Date which shall
be not more than 60 days prior to the applicable Dividend Payment Date and,
within such 60 day period, shall be the same date as the record date for
the regular quarterly dividend payable with respect to the Common Stock for
the Dividend Period to which such Dividend Payment Date relates (or, if
there is no such record date for Common Stock, then such date as the Board
of Directors may fix). 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) The amount of dividends payable per share of Class E
Preferred Stock for the Initial Dividend Period, or any other period
shorter than a full Dividend Period, shall be computed ratably on the basis
of twelve 30-day months and a 360-day year. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on the Class E Preferred Stock that may be in arrears.
(c) On any Special Dividend Date, the holders of Class E
Preferred Stock shall be entitled to receive the Special Dividend, or any
portion thereof, as determined by the Board of Directors, with respect to
each share of Class E Preferred Stock. The Special Dividend payment shall
be payable to the holders of record of the Class E Preferred Stock as they
appear on the records of the Corporation at the close of business on the
record date fixed by the Board of Directors with respect to such Special
Dividend Date.
(d) After January 15, 1999, if any portion of the Special
Dividend or any other dividend payable pursuant to section 3(a) hereof has
yet to be declared and paid to the holders of Class E Preferred Stock, 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 Common Stock, nor shall any shares of Common 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, Common 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 Common Stock in respect thereof, directly or indirectly, by the
Corporation.
4. LIQUIDATION.
In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, before any payment or
distribution of the Corporation (whether capital or surplus) shall be made
to or set apart for the holders of Common Stock, the holders of shares of
Class E Preferred Stock shall be entitled to receive $1.00 per share of
Class E Preferred Stock plus the Special Dividend if such dividend is
unpaid on the date of final distribution to such holders, thereafter each
share of Class E Preferred Stock shall have the same rights with respect to
assets of the Corporation as one share of Common Stock.
5. CONVERSION.
(a) On the close of business on the day on which the Special
Dividend, or any remaining unpaid portion thereof, is paid to the holders
of the Class E Preferred Stock, each share of Class E Preferred Stock shall
be automatically converted into one share of Common Stock without any
action on the part of the Corporation or the holder of such share of Class
E Preferred Stock.
(b) If the Corporation shall after the Issue Date (i) pay a
dividend or make a distribution on its Common Stock in shares of Common
Stock, (ii) subdivide its outstanding Common Stock into a greater number of
shares, (iii) combine its outstanding Common Stock into a smaller number of
shares, (iv) issue any shares of capital stock by reclassification of its
outstanding Common Stock, (v) issue rights, options or warrants to all
holders of Common Stock entitling them to subscribe for or purchase Common
Stock or (vi) make a distribution on its Common Stock other than in cash or
shares of Common Stock (including any distribution in securities (other
than rights, options or warrants described in clause (v) of this sentence))
then the Corporation shall contemporaneously do the same with respect to
the Class E Preferred Stock.
(c) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock, solely for the purpose of effecting
the conversion of the Class E Preferred Stock, the full number of shares of
Common Stock deliverable upon the conversion of all outstanding shares of
Class E Preferred Stock.
The Corporation covenants that any shares of Common Stock issued upon
conversion of the shares of Class E Preferred Stock shall be validly
issued, fully paid and nonassessable.
The Corporation shall list the shares of Common Stock required to be
delivered upon conversion of the shares of Class E Preferred Stock, prior
to such delivery, upon the NYSE and each other national securities
exchange, if any, upon which the outstanding shares of Common Stock are
listed at the time of such delivery.
(d) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of shares of Common Stock upon conversion of shares of Class E Preferred
Stock pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock in a name other
than that of the holder of the shares of Class E Preferred Stock to be
converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue or delivery has paid to the Corporation the
amount of any such tax or established, to the reasonable satisfaction of
the Corporation, that such tax has been paid.
6. REDEMPTION AT THE OPTION OF THE CORPORATION.
(a) Shares of Class E Preferred Stock shall not be redeemable by
the Corporation prior to October 1, 2018. On or after October 1, 2018, the
Corporation, at its option, may redeem shares of Class E Preferred Stock,
in whole or from time to time in part, at a redemption price per share
payable in cash equal to the sum of (i) the greater of (A) the Current
Market Price of the Common Stock on the Call Date or (B) the AIMCO Index
Price (as defined in the Merger Agreement, but determined without giving
effect to the proviso to the definition thereof for this purpose), plus
(ii) all accrued and unpaid dividends to the Call Date.
(b) Shares of Class E Preferred Stock shall be redeemed by the
Corporation on the date specified in the notice to holders required under
paragraph (d) of this Section 6 (the "Call Date"). The Call 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 E Preferred Stock and any other class or series of Parity Stock of
the Corporation have not been paid or declared and set apart for payment,
no shares of Class E Preferred Stock may be redeemed unless all outstanding
shares of Class E Preferred Stock are simultaneously redeemed and neither
the Corporation nor any affiliate of the Corporation may purchase or
acquire shares of Class E Preferred Stock, otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of shares
of Class E Preferred Stock.
(d) If the Corporation shall redeem shares of Class E Preferred
Stock pursuant to paragraph (a) of this Section 6, 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 Call Date, (2) the number of shares of Class E
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 Call 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 E
Preferred Stock so called for redemption shall cease to accumulate or
accrue on the shares of Class E Preferred Stock called for redemption
(except that, in the case of a Call Date after a dividend record date and
prior to the related Dividend Payment Date, holders of Class E 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 E 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 E Preferred Stock so
called for redemption. No interest shall accrue for the benefit of the
holders of shares of Class E 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 Call Date shall revert to
the general funds of the Corporation, after which reversion the holders of
shares of Class E 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 E 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 E Preferred Stock are to be
redeemed, shares to be redeemed shall be selected by the Corporation from
outstanding shares of Class E Preferred Stock not previously called for
redemption by lot or, with respect to the number of shares of Class E
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 E Preferred Stock represented by any certificate are
redeemed, than a new certificate representing the unredeemed shares shall
be issued without cost to the holders thereof.
7. STATUS OF REACQUIRED STOCK.
All shares of Class E Preferred Stock which shall have been issued and
reacquired in any manner by the Corporation shall be retired and cannot be
reissued.
8. RANKING.
Any class or series of capital stock of the Corporation shall be
deemed to rank:
(a) prior or senior to the Class E 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 of
capital stock 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 E Preferred Stock
("Senior Stock");
(b) on a parity with the Class E 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 shall
be different from those of the Class E Preferred Stock, if the holders of
such class or series of capital stock and the Class E 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 E 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 of capital stock 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 E Preferred Stock ("Junior Stock").
9. VOTING.
(a) Each share of Class E Preferred Stock shall entitle its
holder to one-half (1/2) of one vote with respect to all matters in which
holders of Common Stock shall be entitled to vote thereon.
(b) The holders of the Class E Preferred Stock and the holders
of Common Stock shall vote together as a single class with respect to all
matters, except for any matter relating to the liquidation, dissolution or
winding up of the Corporation or amendment of these Articles
Supplementary, in which case the holders of the Class E Preferred Stock
shall vote as a single class. Approval of two-thirds of the outstanding
shares of Class E Preferred Stock shall be required with respect to any
proposed amendment which would materially affect the existing terms of the
Class E Preferred Stock.
(c) If any portion of the Special Dividend has yet to be
declared and paid to the holders of Class E Preferred Stock on January 15,
1999, or if the equivalent of six quarterly dividends payable on the Class
E Preferred Stock or any other class or series of preferred stock are in
default, the number of directors of the Company will be increased by two
(without duplication of any increase made pursuant to the terms of any
other series of preferred stock of the Company), and the holders of the
Class E Preferred Stock, voting as a single class with the holders of
shares of any other class of the Company's preferred stock ranking on a
parity with the Class E Preferred Stock either as to dividends or
distribution of assets and upon which like voting rights have been
conferred and are exercisable, will be entitled to elect such two
directors to fill such newly-created directorships. Such right shall
continue until full cumulative dividends for all past dividend periods on
all preferred shares of the Company, including any shares of Class E
Preferred Stock, have been paid or declared and set apart for payment. Any
such elected directors shall serve until the Company's next annual meeting
of stockholders (notwithstanding that prior to the end of such term the
dividend default shall cease to exist) or until their respective
successors shall be elected and qualify.
10. RECORD HOLDERS.
The Corporation and the Transfer Agent may deem and treat the record
holder of any share of Class E 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.
11. ADDITIONAL ISSUANCES.
The shares of Series E Preferred Stock designated by these Articles
Supplementary may not be issued other than pursuant to the terms of the
Merger Agreement.
FOURTH: The terms of the Class E Preferred Stock set forth in Article
Third hereof shall become Article XVIII of the Charter.
IN WITNESS WHEREOF, the Corporation has caused these presents to be
signed in its name and on its behalf by its President and Vice Chairman of
the Board and witnessed by its Secretary on September ___, 1998.
WITNESS: APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
_______________________ __________________________________________
Joel Bonder, Peter Kompaniez
Secretary President and Vice Chairman of the Board
THE UNDERSIGNED, President 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.
_______________________________________
Peter Kompaniez
President and Vice Chairman of the Board
EXHIBIT 4.4
[front of Certificate]
NUMBER APARTMENT INVESTMENT AND MANAGEMENT COMPANY SHARES
E
CLASS E CUMULATIVE CONVERTIBLE See reverse for
PREFERRED STOCK certain definitions
This certificate is transferable in
Boston, MA or New York, NY CUSIP 03748R 60 6
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
This certifies that
is the owner of
FULLY-PAID AND NON-ASSESSABLE SHARES OF CLASS E CUMULATIVE CONVERTIBLE
PREFERRED STOCK, $.01 PAR VALUE, 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 the 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
Chief Executive Officer
/s/ Joel Bonder [SEAL] /s/ Peter K. Kompaniez
Secretary President
COUNTERSIGNED AND REGISTERED:
BANKBOSTON, N.A.
TRANSFER AGENT AND REGISTRAR
By [Signature]
AUTHORIZED SIGNATURE
[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, N.A., c/o
Boston EquiServe, L.P., Shareholder Services, 150 Royall Street, Canton, MA
02021.
The shares of Class E Cumulative Convertible Preferred Stock
represented by this certificate are subject to restrictions on transfer.
No person may Beneficially Own shares of Class E Cumulative Convertible
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
E Cumulative Convertible Preferred Stock). Any Person that attempts to
Beneficially Own shares of Class E Cumulative Convertible 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 E Cumulative Convertible 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 E Cumulative Convertible
Preferred Stock represented hereby will be void in accordance with the
Charter (including the Articles Supplementary setting forth the terms of
the Class E Cumulative Convertible Preferred Stock) or (ii) the shares of
Class E Cumulative Convertible Preferred Stock represented hereby will
automatically be 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
JT TEN - as joint tenants with right Act______________________
of survivorship and not as (State)
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 E Cumulative Convertible 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(S) 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: ___________________________
NOTICE: 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 SEC RULE 17Ad
