FORM 8-A/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MID-AMERICA APARTMENT COMMUNITIES, INC.
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(Exact Name of Registrant as Specified in Its Charter)
Tennessee 62-1543819
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
6584 Poplar Avenue, Suite 300, Memphis, Tennessee 38138
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of registration of a class of
securities pursuant to Section securities pursuant to Section
12(b) of the Exchange Act and is 12(g) of the Exchange Act and is
effective pursuant to General effective pursuant to General
Instruction A.(c), please check Instruction A.(d), please check
_ _
the following box. |X| the following box. | |
- -
Securities Act registration statement file number to which this form relates:
333-60285
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on Which
Title of Each Class to be Registered Each Class is to be Registered
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9 1/4 % Series F Cumulative Redeemable New York Stock
Preferred Stock, par Exchange value $.01
per share (liquidation preference $25 per
share)
Securities to be registered pursuant to Section 12(g) of the Act:
NOT APPLICABLE
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(Title of class)
Item 1. Description of Registrant's Securities to be Registered
A description of the 9 1/4 % Series F Cumulative Redeemable Preferred Stock, par
value $.01 per share (liquidation preference $25 per share), of the Registrant
is contained in a Rule 424(b)(5) Prospectus Supplement dated October 10, 2002
and supplementing the Registrant's Registration Statement on Form S-3 declared
effective on September 16, 1998 (No. 333-60285), which Prospectus Supplement
shall be deemed to be incorporated herein by reference for all purposes.
Item 2. Exhibits
The securities described herein are to be registered on the New York Stock
Exchange, on which other securities of the Registrant are registered.
Accordingly, the following exhibits, required in accordance with Part I to the
Instructions as to Exhibits on Form 8-A, are filed herewith and have been duly
filed with the New York Stock Exchange:
4.1* Form of Articles of Amendment to the Amended and Restated Charter
Establishing and Fixing the Rights and Preferences of a Series of
Shares of Preferred Stock.
4.2 Specimen Share Certificate for 91/4% Series F Cumulative Redeemable
Preferred Stock.
4.3 Definitive Articles of Amendment to the Amended and Restated Charter
Establishing and Fixing the Rights and Preferences of a Series of
Shares of Preferred Stock.
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* Previously filed.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the Registrant has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereto duly authorized.
Mid-America Apartment Communities, Inc.
/s/Simon R.C. Wadsworth
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By: Simon R.C. Wadsworth
Title: Chief Financial Officer
DATED: October 11, 2002.
EXHIBIT 4.2
FRONT OF CERTIFICATE
9 1/4% SERIES F 9 1/4% SERIES F
CUMULATIVE REDEEMABLE PREFERED STOCK CUMULATIVE REDEEMABLEPREFERED STOCK
LIQUIDATION PREFERENCE LIQUIDATION PREFERENCE
$25 PER SHARE $25 PER SHARE
INCORPORATED UNDER THE LAWS THIS CERTIFICATE IS TRANSFERABLE IN
OF THE STATE OF TENNESSEE NEW YORK, NEW YORK OR
CHARLOTTE, NORTH CAROLINA
CUSIP 59522J 60 8
SEE REVERSE FOR CERTAIN DEFINITIONS
MID-AMERICA APARTMENT COMMUNITIES, INC.
THIS IS TO CERTIFY that
Is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE 9 1/4% SERIES F CUMMULATIVE
REDEEMABLE PREFERRED STOCK LIQUIDATION PREFERENCE $25 PER SHARE OF
Mid-America Apartment Communities, Inc. (the "Corporation") transferable on the
books of the Corporation in person or by duly authorized attorney upon surrender
of this Certificate properly endorsed. This Certificate and the shares
represented hereby are issued and shall be held subject to all of the provisions
of the Charter of the Corporation as amended and restated, and its Bylaws, as
amended to all of which the holder, by acceptance hereof asserts. This
Certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar.
Witness the facsimile seal signatures of its duly
and the facsimile authorized officers.
Dated: /s/Leslie Wolfgang
ATTEST: Corporate Secretary and
Director of External Reporting
Countersigned and Registered:
WACHOVIA BANK, N.A.
(CHARLOTTE, NC) Transfer Agent
and Registrar
By: /s/ H. Eric Bolton, Jr.
Chairman, President and
Chief Executive Officer
Authorized Signature
BACK OF CERTIFICATE
MID-AMERICA APARTMENT COMMUNITIES, INC.
TO PRESERVE THE QUALIFICATION OF THE COMPANY AS A "REAL ESTATE INVESTMENT
TRUST" UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; UNDER THE COMPAN'S
CHARTER TRANSFER OF THE SHARES REPRESENTED HEREBY, IS RESTRICTED AND MAY BE
STOPPED IF A PERSON OR GROUP OF PERSONS DIRECTLY OR THROUGH THE OPERATION OF
CERTAIN ATTRIBUTION RULES WOULD OWN IN EXCESS OF 9.9% OF THE OUTSTANDING STOCK
OF THE COMPANY AFTER THE TRANSFER.
THE COMPANY MAY REQUIRE EVIDENCE OF A PROPOSED TRANSFEREE'S STATUS AND
OWNERSHIP INTEREST BEFORE PERMITTING ANY TRANSFER AND MAY REDEEM ANY SHARES HELD
IN VIOLATION OF THE PRECEDING PARAGRAPH. THE COMPANY WILL FURNISH TO ANY
SHAREHOLDER WITHOUT CHARGE A FULL STATEMENT OF THE TRANSFER RESTRICTIONS UPON
REQUEST MADE TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE. THE SHARES
REPRESENTED HEREBY ARE SUBJECT TO ALL OF THE PROVISIONS OF THE CHARTER AND
BYLAWS OF THE CORPORATION, EACH AS AMENDED FROM TIME TO TIME, TO ALL OF WHICH
THE HOLDER BY ACCEPTANCE HEREOF ASSENTS. THE CORPORATION WILL FURNISH TO ANY
SHAREHOLDER, UPON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT OF THE
DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES AND LIMITATIONS OF THE SHARES OF EACH
CLASS AUTHORIZED TO BE ISSUED, AS WELL AS VARIATIONS IN THE RIGHTS, PREFERENCES
AND LIMITATIONS DETERMINED FOR EACH SERIES OF A CLASS, SO FAR AS THE SAME HAS
BEEN DETERMINED BY THE BOARD OF DIRECTORS UNDER ITS AUTHORITY.
The following abbreviations, when used in the inscription on the face of
this certificate shall be construed as thou they were written out in full
according to applicable laws and 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
______________________________________
| |
|______________________________________|
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Please print or typewrite name and address including postal zip code of assignee
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Shares represented by this Certificate, and do hereby irrevocably
constitute and appoint________________________________________________________
Attorney to transfer the said shares on the books of the Corporation before
power of substitution and the
premises.
Date:_____________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE, IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT, OR ANY CHANGES WHATEVER.
SIGNATURE GUARANTEED:_________________________________________________________
THE SIGNATURES SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN
ASSOCIATIONS, AND CREDIT UNIONS WITH MEMBERS, APPROVED
SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C.
RULE 17Ad-15.
EXHIBIT 4.3
MID-AMERICA APARTMENT COMMUNITIES, INC.
ARTICLES OF AMENDMENT TO THE AMENDED AND RESTATED CHARTER
DESIGNATING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
Mid-America Apartment Communities, Inc., a Tennessee corporation (the
"Company"), certifies to the Tennessee Secretary of State that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors of
the Company by Section 6 of the Company's Amended and Restated Charter, as
amended by Articles of Amendment dated January 28, 1994, Articles of Merger of
the Cates Company with and into the Company dated February 2, 1994, Articles of
Merger of America First REIT Advisory Company with and into the Company dated
June 29, 1995, Articles of Amendment to the Amended and Restated Charter
Designating and Fixing the Rights and Preferences of a Series of Shares of
Preferred Stock dated October 9, 1996, Articles of Amendment to the Amendment
and Restated Charter dated November 17, 1997, Articles of Amendment to the
Amended and Restated Charter Designating and Fixing the Rights and Preferences
of a Series of Shares of Preferred Stock dated November 17, 1997, Articles of
Merger of Flournoy Development Company with and into the Company dated November
21, 1997, Articles of Amendment to the Amended and Restated Charter dated
December 15, 1997, Articles of Amendment to the Amended and Restated Charter
Designating and Fixing the Rights and Preferences of a Series of Shares of
Preferred Stock dated June 25, 1998, and Articles of Amendment to the Amended
and Restated Charter Designating and Fixing the Rights and Preferences of a
Series of Shares of Preferred Stock dated December 24, 1998 (the "Charter"), and
Section 48-16-102 of the Tennessee Code Annotated, as amended, the Board of
Directors has, by resolution, duly divided and classified 3,000,000 shares of
the preferred stock of the Company into a series designated 9 1/4 % Series F
Cumulative Redeemable Preferred Stock (the "Series F Preferred Stock") and has
provided for the issuance of the Series F Preferred Stock.
SECOND: Section 6 is hereby amended by adding the following:
1. Designation and Number.
A series of Preferred Stock, designated the "91/4% Series F Cumulative
Redeemable Preferred Stock" (the "Series F Preferred"), is hereby
established. The number of shares of the Series F Preferred shall be
3,000,000.
2. Maturity.
The Series F Preferred Stock has no stated maturity and will not be subject
to any sinking fund or mandatory redemption.
3. Rank.
The Series F Preferred Stock, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the Company, will rank (i)
senior to all classes or series of common stock, $.01 par value per share,
of the Company (the "Common Stock"), and to all equity securities ranking
junior to the Series F Preferred Stock with respect to dividend rights or
rights upon liquidation, dissolution or winding up of the Company; (ii) on
a parity with all equity securities issued by the Company, including the
Company's 9.5% Series A Cumulative Preferred Stock (the "Series A Preferred
Stock"), 8.875% Series B Cumulative Preferred Stock (the "Series B
Preferred Stock") and the 9 1/2% Series C Cumulative Preferred Stock (the
"Series C Preferred Stock"), and the 9.5% Series E Cumulative Preferred
Stock (the "Series E Preferred Stock"), the terms of which specifically
provide that such series of equity securities rank on a parity with the
Series F Preferred Stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company (the "Parity
Preferred Stock"); and (iii) junior to all existing and future indebtedness
of the Company. The term "equity securities" does not include convertible
debt securities, which will rank senior to the Series F Preferred Stock
prior to conversion.
4. Dividends.
(a) Holders of shares of the Series F Preferred Stock are entitled to
receive, when and as declared by the Board of Directors (or a duly
authorized committee thereof), out of funds legally available for the
payment of dividends, preferential cumulative cash dividends at the
rate of 9 1/4 % per annum of the $25 liquidation preference (the
"Liquidation Preference") per share (equivalent to a fixed annual
amount of $2.3125 per share). Dividends on the Series F Preferred
Stock shall be cumulative from (but excluding) the date of original
issue and shall be payable monthly in arrears on the 15th day of each
calendar month, or, if not a business day, on the next succeeding
business day (each, a "Dividend Payment Date"). The first dividend,
which will be payable on November 15, 2002, will be for less than a
full month. Such dividend and any dividend payable on the Series F
Preferred Stock for any partial dividend period will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
Dividends will be payable to holders of record as they appear in the
stock records of the Company at the close of business on the
applicable record date, which shall be the first day of the calendar
month in which the applicable Dividend Payment Date falls or on such
other date designated by the Board of Directors of the Company for the
payment of dividends that is not more than 30 nor less than 10 days
prior to such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series F Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the
Company at any time that the terms and provisions of any agreement of
the Company, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment
of such dividends would constitute a breach thereof or a default
thereunder, or if such declaration or payment shall be restricted or
prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series F Preferred
Stock will accumulate whether or not the Company has earnings, whether
or not there are funds legally available for the payment of such
dividends and whether or not such dividends are declared. Accumulated
but unpaid dividends on the Series F Preferred Stock will not bear
interest, and holders of the Series F Preferred Stock will not be
entitled to any distributions in excess of full cumulative
distributions described above. Except as set forth in the next
sentence, no dividends will be declared or paid or set apart for
payment on any common stock of the Company or any other series of
Parity Preferred Stock or any series or class of equity securities
ranking junior to the Series F Preferred Stock (other than a dividend
in shares of the Common Stock or in shares of any other class of stock
ranking junior to the Series F Preferred Stock as to dividends and
upon liquidation) for any period unless full cumulative dividends have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on
the Series F Preferred Stock for all past dividend periods and the
then current dividend period. When dividends are not declared and paid
in full (or a sum sufficient for such full payment is not so set
apart) upon the Series F Preferred Stock and the shares of any other
series of Parity Preferred Stock, all dividends declared upon the
Series F Preferred Stock and any other series of Parity Preferred
Stock, shall be allocated pro rata so that the amount of dividends
declared per share of Series F Preferred Stock and such other series
of Parity Preferred Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the Series F
Preferred Stock and such other series of Parity Preferred Stock (which
shall not include any accrual in respect of unpaid dividends for prior
dividend periods if such Parity Preferred Stock does not have a
cumulative dividend) bear to each other.
(d) Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series F Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for payment for all
past dividend periods and the then current dividend period, no
dividends (other than in shares of Common Stock or other shares of
capital stock ranking junior to the Series F Preferred Stock as to
dividends and upon liquidation) shall be declared or paid or set aside
for payment nor shall any other distribution be declared or made upon
the Common Stock, or any other capital stock of the Company ranking
junior to or on a parity with the Series F Preferred Stock as to
dividends or upon liquidation, nor shall any shares of Common Stock,
or any other shares of capital stock of the Company ranking junior to
or on a parity with the Series F Preferred Stock as to dividends or
upon liquidation be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a
sinking fund for the redemption of any such shares) by the Company
(except by conversion into or exchange for other capital stock of the
Company ranking junior to the Series F Preferred Stock as to dividends
and upon liquidation or redemptions for the purpose of preserving the
Company's qualification as a real estate investment trust ("REIT")).
Holders of shares of the Series F Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock,
in excess of full cumulative dividends on the Series F Preferred Stock
as provided above. Any dividend payment made on shares of the Series F
Preferred Stock shall first be credited against the earliest
accumulated but unpaid dividend due with respect to such shares which
remains payable.
5. Liquidation Preference.
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Company, the holders of shares of Series F Preferred
Stock are entitled to be paid out of the assets of the Company legally
available for distribution to its shareholders a liquidation preference of
$25 per share, plus an amount equal to any accumulated, accrued and unpaid
dividends to and including the date of payment, but without interest,
before any distribution of assets is made to holders of Common Stock or any
other class or series of capital stock of the Company that ranks junior to
the Series F Preferred Stock as to liquidation rights. If the assets of the
Company legally available for distribution to shareholders are insufficient
to pay in full the Liquidation Preference on the Series F Preferred Stock
and the Liquidation Preference on any shares of Parity Preferred Stock, all
assets distributed to the holders of the Series F Preferred Stock and any
other series of Parity Preferred Stock shall be distributed pro rata so
that the amount of assets distributed per share of Series F Preferred Stock
and such other series of Parity Preferred Stock shall in all cases bear to
each other the same ratio that the Liquidation Preference per share on the
Series F Preferred Stock and such other series of Parity Preferred Stock
bear to each other. Holders of Series F Preferred Stock will be entitled to
written notice of any event triggering the right to receive such
Liquidation Preference. After payment of the full amount of the Liquidation
Preference, plus any accumulated and unpaid dividends to which they are
entitled, the holders of Series F Preferred Stock will have no right or
claim to any of the remaining assets of the Company. The consolidation or
merger of the Company with or into any other corporation, trust or entity
or of any other corporation with or into the Company, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
6. Redemption.
(a) The Series F Preferred Stock is not redeemable prior to October 16,
2007. However, in order to ensure that the Company will continue to
meet the requirements for qualification as a REIT, the Series F
Preferred Stock will be subject to provisions in the Company's Charter
(the "Charter") pursuant to which shares of capital stock of the
Company owned by a shareholder in excess of 9.9% in value of the
outstanding shares of capital stock of the Company (the "Ownership
Limit") will be deemed "Excess Shares," and the Company will have the
right to purchase such Excess Shares from the holder. On and after
October 16, 2007, the Company, at its sole option upon not less than
30 nor more than 60 days' written notice, may redeem shares of the
Series F Preferred Stock, in whole or in part, at any time or from
time to time, for cash at a redemption price of $25 per share, plus
all accumulated and unpaid dividends thereon to the date fixed for
redemption (except with respect to Excess Shares), without interest.
Holders of Series F Preferred Stock to be redeemed shall surrender
such Series F Preferred Stock at the place designated in such notice
and upon such surrender shall be entitled to the redemption price and
any accumulated and unpaid dividends payable upon such redemption. If
notice of redemption of any shares of Series F Preferred Stock has
been given and if the Company has set aside the funds necessary for
such redemption in trust for the benefit of the holders of any shares
of Series F Preferred Stock to be redeemed, then from and after the
redemption date dividends will cease to accumulate on such shares of
Series F Preferred Stock, such shares of Series F Preferred Stock
shall no longer be deemed outstanding and all rights of the holders of
such shares will terminate, except the right to receive the redemption
price. If less than all of the outstanding Series F Preferred Stock is
to be redeemed, the Series F Preferred Stock to be redeemed shall be
selected pro rata (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined by the
Company.
(b) Unless full cumulative dividends on all shares of Series F Preferred
Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for
payment for all past dividend periods and the then current dividend
period, no shares of Series F Preferred Stock shall be redeemed unless
all outstanding shares of Series F Preferred Stock are simultaneously
redeemed and in such event, the Company shall not purchase or
otherwise acquire directly or indirectly any shares of Series F
Preferred Stock (except by exchange for capital stock of the Company
ranking junior to the Series F Preferred Stock as to dividends and
upon liquidation); provided, however, that the foregoing shall not
prevent the purchase by the Company of Excess Shares in order to
ensure that the Company continues to meet the requirements for
qualification as a REIT, or the purchase or acquisition of shares of
Series F Preferred Stock pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of Series F
Preferred Stock. So long as no dividends are in arrears, the Company
shall be entitled at any time and from time to time to repurchase
shares of Series F Preferred Stock in open-market transactions duly
authorized by the Board of Directors and effected in compliance with
applicable laws.
(c) Notice of redemption will be given by publication in a newspaper of
general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30
nor more than 60 days prior to the redemption date. A similar notice
will be mailed by the Company, postage prepaid, not less than 30 nor
more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series F Preferred Stock to be
redeemed at their respective addresses as they appear on the stock
transfer records of the Company. No failure to give such notice or any
defect therein or in the mailing thereof shall affect the validity of
the proceedings for the redemption of any shares of Series F Preferred
Stock except as to the holder to whom notice was defective or not
given. Each notice shall state: (i) the redemption date; (ii) the
redemption price, (iii) the number of shares of Series F Preferred
Stock to be redeemed; (iv) the place or places where the Series F
Preferred Stock is to be surrendered for payment of the redemption
price; and (v) that dividends on the shares to be redeemed will cease
to accrue on such redemption date. If less than all of the Series F
Preferred Stock held by any holder is to be redeemed, the notice
mailed to such holder shall also specify the number of shares of
Series F Preferred Stock held by such holder to be redeemed.
(d) Immediately prior to any redemption of Series F Preferred Stock, the
Company shall pay, in cash, any accumulated and unpaid dividends
through the redemption date, unless a redemption date falls after a
Dividend Record Date and prior to the corresponding Dividend Payment
Date, in which case each holder of Series F Preferred Stock at the
close of business on such Dividend Record Date shall be entitled to
the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such
Dividend Payment Date.
(e) The Series F Preferred Stock has no stated maturity and will not be
subject to any sinking fund or mandatory redemption. However, in order
to ensure that the Company continues to meet the requirements for
qualification as a REIT, Series F Preferred Stock acquired by a
shareholder in excess of the Ownership Limit will automatically become
Excess Shares, and the Company will have the right to purchase such
Excess Shares from the holder. In addition, Excess Shares may be
redeemed, in whole or in part, at any time when outstanding shares of
Series F Preferred Stock are being redeemed, for cash at a redemption
price of $25 per share, but excluding accumulated and unpaid dividends
on such Excess Shares, without interest. Such Excess Shares shall be
redeemed in the same proportion and in accordance with the same
procedures as shares of Series F Preferred Stock are being redeemed.
7. Voting Rights.
(a) Holders of the Series F Preferred Stock will not have any voting
rights, except as set forth below or as otherwise from time to time
required by law.
(b) Whenever dividends on any shares of Series F Preferred Stock shall be
in arrears for eighteen or more months (a "Preferred Dividend
Default"), the holders of such shares of Series F Preferred Stock
voting separately as a class together with the holders of the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred
Stock, the Series E Preferred Stock and all other series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable will be entitled to vote separately as a class for the
election of a total of two additional directors of the Company (the
"Preferred Stock Directors") at a special meeting called by the
holders of record of at least 20% of the Series F Preferred Stock or
the holders of record of at least 20% of any series of Parity
Preferred so in arrears (unless such request is received less than 90
days before the date fixed for the next annual or special meeting of
the shareholders) or at the next annual meeting of shareholders, and
at each subsequent annual meeting until all dividends accumulated on
such shares of Series F Preferred Stock for the past dividend periods
and the dividend for the then current dividend period shall have been
fully paid or declared and a sum sufficient for the payment thereof
set aside for payment. A quorum for any such meeting shall exist if at
least a majority of the total outstanding shares of Series F Preferred
Stock and shares of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable are represented in
person or by proxy at such meeting. The Preferred Stock Directors
shall be elected upon the affirmative vote of a plurality of the
shares of Series F Preferred Stock and such Parity Preferred Stock
present and voting in person or by proxy at a duly called and held
meeting at which a quorum is present, voting separately as a single
class. If and when all accumulated dividends and the dividend for the
then current dividend period on the Series F Preferred Stock shall
have been paid in full or declared and set aside for payment in full,
the holders thereof shall be divested of the foregoing voting rights
(subject to revesting in the event of each and every Preferred
Dividend Default) and, if all accumulated dividends and the dividend
for the then current dividend period have been paid in full or
declared and set aside for payment in full on all series of Parity
Preferred Stock upon which like voting rights have been conferred and
are exercisable, the term of office of each Preferred Stock Director
so elected shall terminate. Any Preferred Stock Director may be
removed at any time with or without cause by, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of
the outstanding shares of the Series F Preferred Stock when they have
the voting rights described above (voting separately as a class with
all series of Parity Preferred Stock upon which like voting rights
have been conferred and are exercisable). So long as a Preferred
Dividend Default shall continue, any vacancy in the office of a
Preferred Stock Director may be filled by written consent of the
Preferred Stock Director remaining in office, or if none remains in
office, by a vote of the holders of record of a majority of the
outstanding shares of Series F Preferred Stock when they have the
voting rights described above (voting separately as a class with all
series of Parity Preferred Stock upon which like voting rights have
been conferred and are exercisable). The Preferred Stock Directors
shall be entitled to one vote per director on any matter.
(c) So long as any shares of Series F Preferred Stock remain outstanding,
the Company will not, without the affirmative vote or consent of the
holders of at least two-thirds of the shares of the Series F Preferred
Stock outstanding at the time, given in person or by proxy, either in
writing or at a meeting (voting separately as a class), amend, alter
or repeal the provisions of the Charter or the Designating Amendment,
whether by merger, consolidation or otherwise (an "Event"), so as to
materially and adversely affect any right, preference, privilege or
voting power of the Series F Preferred Stock of the holders thereof;
provided, however, that with respect to the occurrence of any Event
set forth above, so long as the Series F Preferred Stock remains
outstanding with the terms thereof materially unchanged, the
occurrence of any such Event shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting power
of holders of the Series F Preferred Stock and provided, further that
(i) any increase in the amount of the authorized Preferred Stock or
the creation or issuance of any other series of Preferred Stock, or
(ii) any increase in the amount of authorized shares of such series,
in each case ranking on a parity with or junior to the Series F
Preferred Stock with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up,
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers. When exercising the voting
rights described above, each share of Series F Preferred Stock shall
have one vote per share.
(d) The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series F
Preferred Stock shall have been redeemed or called for redemption upon
proper notice and sufficient funds shall have been deposited in trust
to effect such redemption.
8. Conversion.
The Series F Preferred Stock is not convertible into or exchangeable for
any other property or securities of the Company.
THIRD: This Designating Amendment shall be effective at the time Tennessee
Secretary of State accepts this Designating Amendment for filing.
FOURTH: The foregoing amendment was duly adopted by unanimous consent of the
board of directors without shareholder action, such shareholder action not being
required, on October 10, 2002.
IN WITNESS WHEREOF, MID-AMERICA APARTMENT COMMUNITIES, INC. has caused these
presents to be signed in its name and on its behalf by its Chief Financial
Officer on this the 11th day of October 2002.
MID-AMERICA APARTMENT COMMUNITIES, INC.
By: /s/Simon R.C. Wadsworth
Title: Chief Financial Officer