EXHIBIT 3.5
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AMLI RESIDENTIAL PROPERTIES TRUST
ARTICLES SUPPLEMENTARY
SERIES C JUNIOR
PARTICIPATING PREFERRED SHARES
Amli Residential Properties Trust, a Maryland real estate investment
trust (the "Company"), hereby certifies to the State Department of
Assessments and Taxation of Maryland pursuant to Section 8-203(b) of the
Annotated Code of Maryland (the "Code") that:
FIRST: Under a power contained in Article 2, Section 1 of the
Declaration of Trust of the Company, the Board of Trustees, as required by
Section 8-203(b) of the Code, at a meeting duly called and held on
November 2, 1998, has classified 150,000 unissued shares of the Company as
Series C Junior Participating Preferred Shares, with the following
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and
terms and conditions of redemption, which upon any restatement of the
Declaration of Trust shall be made part of Article 2 of the Declaration,
with any necessary or appropriate changes to the enumeration and lettering
hereof:
SERIES C JUNIOR PARTICIPATING PREFERRED SHARES
Section 1. DESIGNATION AND AMOUNT. There shall be a series of
preferred shares of the Company, $0.01 par value per share, which shall be
designated "Series C Junior Participating Preferred Shares" (the "Series C
Preferred Shares"), and the number of shares constituting that Series C
shall be 150,000. Such number of shares may be increased or decreased by
resolution of the Board of Trustees and by the filing of articles
supplementary in accordance with the provisions of Title 8 of the
Corporations and Associations Code of the State of Maryland stating that
such increase or reduction has been so authorized; PROVIDED, HOWEVER, that
no decrease shall reduce the number of Series C Preferred Shares to a
number less than the number of Series C Preferred Shares then outstanding
plus the number of Series C Preferred Shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Company.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of any
shares of any class or series of preferred shares of the Company ranking
prior and superior to the Series C Preferred Shares with respect to
dividends, the holders of Series C Preferred Shares shall be entitled to
receive, when, as and if authorized by the Board of Trustees out of funds
legally available for the purpose, quarterly dividends payable in cash to
holders of record on the last Business Day of January, April, July and
October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date") (commencing on the first Quarterly
Dividend Payment Date after the first issuance of a Series C Preferred
Share or fraction thereof) in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share
amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in Common Shares (hereinafter defined) or a
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subdivision of the outstanding Common Shares (by a reclassification or
otherwise), authorized on the common shares of beneficial interest, par
value $0.01 per share, of the Company (the "Common Shares") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
Series C Preferred Share or fraction thereof. In the event the Company
shall at any time following November 2, 1998 (i) declare any dividend on
Common Shares payable in Common Shares, (ii) subdivide the outstanding
Common Shares or (iii) combine the outstanding Common Shares into a smaller
number of shares, then in each such case the amount to which holders of
Series C Preferred Shares were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying
each such amount by a fraction the numerator of which is the number of
Common Shares outstanding immediately after such event and the denominator
of which is the number of Common Shares that were outstanding immediately
prior to such event.
(B) The Company shall declare a dividend or distribution on the
Series C Preferred Shares as provided in paragraph (A) above at the time it
declares a dividend or distribution on the Common Shares (other than a
dividend payable in Common Shares).
(C) No dividend or distribution (other than a dividend or
distribution payable in Common Shares) shall be paid or payable to the
holders of Common Shares unless, prior thereto, all accrued but unpaid
dividends to the date of that dividend or distribution shall have been paid
to the holders of Series C Preferred Shares.
(D) Dividends shall begin to accrue and be cumulative on
outstanding Series C Preferred Shares from the Quarterly Dividend Payment
Date next preceding the date of issuance of such Series C Preferred Shares,
unless the date of issuance of such shares is prior to the record date for
the first Quarterly Dividend Payment Date, in which case dividends on such
shares shall begin to accrue and be cumulative from the date of issuance of
such shares, or unless the date of issuance is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of holders of
Series C Preferred Shares entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Series C Preferred Shares in an amount
less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The Board of Trustees
may fix a record date for the determination of holders of Series C
Preferred Shares entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to
the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of Series C Preferred Shares
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each one one-thousandth of a Series C Preferred Share shall entitle the
holder thereof to one vote on all matters submitted to a vote of the
shareholders of the Company. In the event the Company shall at any time
following November 2, 1998 (i) declare any dividend on Common Shares
payable in Common Shares, (ii) subdivide the outstanding Common Shares or
(iii) combine the outstanding Common Shares into a smaller number of
shares, then in each such case the number of votes per share to which
holders of Series C Preferred Shares were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of Common Shares outstanding immediately
after such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event.
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(B) Except as otherwise provided herein, the holders of Series C
Preferred Shares and the holders of Common Shares and any other shares of
beneficial interest of the Company having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders of
the Company.
(C) (i) Whenever, at any time or times, dividends payable on any
Series C Preferred Shares shall be in arrears in an amount equal to
at least six full quarterly dividends (whether or not declared and
whether or not consecutive), the holders of record of the outstanding
Series C Preferred Shares shall have the exclusive right, voting
separately as a single class, to elect two Trustees of the Company at
a special meeting of shareholders of the Company or at the Company's
next annual meeting of shareholders, and at each subsequent annual
meeting of shareholders, as provided below. At elections for such
Trustees, the holders of Series C Preferred Shares shall be entitled
to cast one vote for each one one-thousandth of a Series C Preferred
Share held, subject to adjustment.
(ii) Upon the vesting of such right of the holders of the
Series C Preferred Shares, the maximum authorized number of members
of the Board of Trustees shall automatically be increased by two and
the two vacancies so created shall be filled by vote of the holders
of the outstanding Series C Preferred Shares as hereinafter set
forth. A special meeting of the shareholders of the Company then
entitled to vote shall be called by the Chairman, the President, any
Senior Vice President or the Secretary of the Company, if requested
in writing by the holders of record of not less than 10% of the
Series C Preferred Shares then outstanding. At such special meeting,
or, if no such special meeting shall have been called, then at the
next annual meeting of shareholders of the Company, the holders of
the Series C Preferred Shares shall elect, voting as above provided,
two Trustees of the Company to fill the aforesaid vacancies created
by the automatic increase in the number of members of the Board of
Trustees. At any and all such meetings for such election, the
holders of a majority of the outstanding Series C Preferred Shares
shall be necessary to constitute a quorum for such election, whether
present in person or by proxy, and such two Trustees shall be elected
by the vote of at least a plurality of shares held by such
shareholders present or represented at the meeting. Any Trustee
elected by holders of Series C Preferred Shares pursuant to this
Section may be removed at any annual or special meeting, by vote of a
majority of the shareholders voting as a class who elected such
Trustee, with or without cause. In case any vacancy shall occur
among the Trustees elected by the holders of the Series C Preferred
Shares pursuant to this Section, such vacancy may be filled by the
remaining Trustee so elected, or his successor then in office, and
the Trustee so elected to fill such vacancy shall serve until the
next meeting of shareholders for the election of Trustees. After the
holders of the Series C Preferred Shares shall have exercised their
right to elect Trustees in any default period and during the
continuance of such period, the number of Trustees shall not be
further increased or decreased except by vote of the holders of
Series C Preferred Shares as herein provided or pursuant to the
rights of any equity securities ranking senior to or PARI PASSU with
the Series C Preferred Shares.
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(iii)The right of the holders of the Series C Preferred
Shares, voting separately as a class, to elect two members of the
Board of Trustees of the Company as aforesaid shall continue until,
and only until, such time as all arrears in dividends (whether or not
declared) on the Series C Preferred Shares shall have been paid or
declared and set apart for payment, at which time such right shall
terminate, except as herein or by law expressly provided, subject to
revesting in the event of each and every subsequent default of the
character above-mentioned. Upon any termination of the right of the
holders of the Series C Preferred Shares as a class to vote for
Trustees as herein provided, the term of office of all Trustees then
in office elected by the holders of Series C Preferred Shares
pursuant to this Section shall terminate immediately. Whenever the
term of office of the Trustees elected by the holders of the Series C
Preferred Shares pursuant to this Section shall terminate and the
special voting powers vested in the holders of the Series C Preferred
Shares pursuant to this Section shall have expired, the maximum
number of members of the Board of Trustees of the Company shall be
such number as may be provided for in the Bylaws of the Company
irrespective of any increase made pursuant to the provisions of this
Section.
(D) Except as otherwise provided herein or required by law, holders
of Series C Preferred Shares shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Shares as provided herein)
for taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever any quarterly dividends or other dividends or
distributions payable on the Series C Preferred Shares as provided in
Section 2 are in arrears, then, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on Series C Preferred
Shares outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series C Preferred Shares, other
than dividends paid or payable in such junior shares;
(ii) declare or pay dividends on or make any other
distributions on any shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series C Preferred Shares, except dividends paid ratably on the
Series C Preferred Shares and all such parity shares on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii)redeem or purchase or otherwise acquire for consideration
shares ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series C Preferred
Shares, provided that the Company may at any time redeem, purchase or
otherwise acquire any such parity shares in exchange for shares of
the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series C Preferred
Shares; or
(iv) purchase or otherwise acquire for consideration any
Series C Preferred Shares, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Trustees) to all holders of such shares upon such terms as the Board
of Trustees, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
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(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of the Company
unless the Company could, under paragraph (A) of this Section, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any Series C Preferred Shares
purchased or otherwise acquired by the Company in any manner whatsoever
shall become authorized but unissued shares of beneficial interest and may
be reissued as Common Shares or as part of a new series of preferred shares
to be created by resolution or resolutions of the Board of Trustees,
subject to the conditions and restrictions on issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any
voluntary liquidation, dissolution or winding up of the Company, no
distribution shall be made to the holders of shares ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series C Preferred Shares unless, prior thereto, the holders of Series C
Preferred Shares shall have received $1.00 per share, plus an amount equal
to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series C Liquidation
Preference"). Following the payment of the full amount of the Series C
Liquidation Preference, no additional distributions shall be made to the
holders of Series C Preferred Shares unless, prior thereto, the holders of
Common Shares shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Series C
Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set
forth in subparagraph C below to reflect such events as share splits, share
dividends and recapitalizations with respect to the Common Shares) (such
number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series C Liquidation Preference and the Common
Adjustment in respect of all outstanding Series C Preferred Shares and
Common Shares, respectively, holders of Series C Preferred Shares and
holders of Common Shares shall receive their ratable and proportionate
share of the remaining assets to be distributed in the ratio, on a per
share basis, of the Adjustment Number to 1 with respect to such Series C
Preferred Shares and Common Shares, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series C Liquidation Preference
and the liquidation preferences of all other series of preferred shares, if
any, which rank on a parity with the Series C Preferred Shares, then such
remaining assets shall be distributed ratably to the holders of the Series
C Preferred Shares and such parity shares in proportion to their respective
liquidation preferences.
(C) In the event the Company shall at any time following
November 2, 1998 (i) declare any dividend on Common Shares payable in
Common Shares, (ii) subdivide the outstanding Common Shares or (iii)
combine the outstanding Common Shares into a smaller number of shares, then
in each such case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by a fraction
the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Company shall
enter into any consolidation, merger, combination or other transaction in
which the Common Shares are exchanged for or changed into other shares or
securities, cash and/or any other property, then in any such case, the
Series C Preferred Shares shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of shares,
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securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each Common Share is exchanged or changed.
In the event the Company shall at any time (i) declare any dividend on
Common Shares payable in Common Shares, (ii) subdivide the outstanding
Common Shares or (iii) combine the outstanding Common Shares into a smaller
number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of Series C
Preferred Shares shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such event.
Section 8. REDEMPTION. The Series C Preferred Shares shall not be
redeemable by the Company. The preceding sentence shall not limit the
ability of the Company to purchase or otherwise deal in such shares to the
extent permitted by law.
Section 9. RANKING. The Series C Preferred Shares shall rank junior
to all other series of the Company's preferred shares (whether with or
without par value), including, but not limited to, the Series A Cumulative
Convertible Preferred Shares of Beneficial Interest, par value $0.01 per
share, the Series B Cumulative Convertible Redeemable Preferred Shares of
Beneficial Interest, par value $0.01 per share, and all other series of the
Company's preferred shares ranking senior to or on a parity with such
Series A or Series B preferred shares, as to the payment of dividends and
the distribution of assets, unless the terms of any such series shall
provide otherwise.
Section 10. AMENDMENT. Neither the Company's Declaration of Trust
nor any Articles Supplementary relating to the Series C Preferred Shares
shall be amended in any manner which would materially and adversely alter
or change the preferences, rights or other terms of the Series C Preferred
Shares without the affirmative vote of the holders of a majority or more of
the outstanding Series C Preferred Shares, voting separately as a class.
Section 11. FRACTIONAL SHARES. Series C Preferred Shares may be
issued in fractions of a share that are integral multiples of one-one
thousandth of a share, which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive
dividends and participate in distributions and to have the benefit of all
other rights of holders of Series C Preferred Shares.
SECOND: These Articles Supplementary have been approved by the Board
of Trustees in the manner and by the vote required by law.
THIRD: The undersigned President of the Company acknowledges these
Articles Supplementary to be the act of the Company and, as to all matters
or facts required to be verified under oath, such officer acknowledges that
to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made
under the penalties for perjury.
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IN WITNESS WHEREOF, these Articles Supplementary have been duly
executed by the undersigned officer this 2nd day of November, 1998.
AMLI RESIDENTIAL PROPERTIES TRUST
By: /s/ Allan J. Sweet
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Name: Allan J. Sweet
Title: President
Attest:
By: Fred Shapiro
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Name: Fred Shapiro
Title: Assistant Secretary
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