UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported) May 22, 2013

 

AVALONBAY COMMUNITIES, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Maryland

(State or Other Jurisdiction of Incorporation)

 

1-12672

 

77-0404318

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

671 N. Glebe Road, Suite 800, Arlington, Virginia

 

22203

(Address of Principal Executive Offices)

 

(Zip Code)

 

Registrant’s telephone number, including area code (703) 329-6300

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


 

Item 5.03                            Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Following its Annual Meeting of Stockholders, on May 22, 2013, AvalonBay Communities, Inc. (the “Company”) filed an amendment to its Amended and Restated Articles of Incorporation, as amended, in the form attached hereto as Exhibit 3(i).3.  The amendment was effective upon filing and acceptance for record on May 22, 2013, and increased the number of authorized shares of the Company’s common stock, par value $.01 per share, by 140 million shares from 140 million shares to a total of 280 million shares.

 

The information in this Item 5.03 is being filed voluntarily by the Company; Item 5.03 does not require a report in cases where the registrant has disclosed a proposal for an amendment to its articles of incorporation in a proxy statement filed by the registrant.  The Company previously described the proposed amendment in its definitive proxy statement on Form 14A, which was filed with the Securities and Exchange Commission on April 8, 2013 (the “Proxy Statement”).

 

Item 5.07                            Submission of Matters to a Vote of Security Holders.

 

The Company held its Annual Meeting of Stockholders on May 22, 2013.  Proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934.  At the meeting, holders of the Company’s stock were asked (1) to elect nine directors to serve until the 2014 Annual Meeting of Stockholders and until their successors are elected and qualified, (2) to ratify the appointment of Ernst & Young LLP as the Company’s independent auditors for the fiscal year ending December 31, 2013, (3) to cast a non-binding, advisory vote upon the compensation of executive officers of the Company, as described in the Proxy Statement, and (4) to consider and vote upon approval of an amendment to the Company’s Amended and Restated Articles of Incorporation, as amended, to increase the number of authorized shares of the Company’s common stock, par value $.01 per share, by 140 million shares as described in the Proxy Statement.

 

Each share of common stock was entitled to one vote with respect to matters submitted to a vote of the Company’s stockholders, and the voting results reported below are final.

 

Proposal 1

 

Each of the Company’s nominees for director as listed in the proxy statement was re-elected as shown in the table below.  There were no votes abstained with respect to any director nominee.  There were 2,322,877 broker non-votes with respect to Proposal 1.

 

Nominee:

 

Votes “For”

 

Votes Withheld

 

 

 

 

 

 

 

Glyn F. Aeppel

 

115,929,292

 

350,311

 

Alan B. Buckelew

 

115,923,524

 

356,079

 

Bruce A. Choate

 

115,722,992

 

556,611

 

John J. Healy, Jr.

 

115,480,180

 

799,423

 

Timothy J. Naughton

 

109,767,364

 

6,512,239

 

Lance R. Primis

 

110,754,260

 

5,525,343

 

Peter S. Rummell

 

115,925,927

 

353,676

 

H. Jay Sarles

 

116,165,270

 

114,333

 

W. Edward Walter

 

116,163,907

 

115,696

 

 

Proposal 2

 

Stockholders ratified the selection of Ernst & Young LLP as the Company’s independent auditors for fiscal year 2013.  118,099,845 votes were cast in favor of ratifying the selection of Ernst & Young LLP, 438,568 votes were cast against, and 64,067 votes abstained.  There were no broker non-votes with respect to Proposal 2.

 

Proposal 3

 

Stockholders approved the compensation paid to the Company’s named executive officers as disclosed pursuant to Item 402 of Regulation S-K.  110,532,306 votes were cast in favor of approval of such compensation, 5,675,151

 

2


 

votes were cast against, and 72,146 votes abstained. There were 2,322,877 broker non-votes with respect to Proposal 3.

 

Proposal 4

 

Stockholders also approved an amendment to the Company’s Amended and Restated Articles of Incorporation, as amended, to increase the number of authorized shares of the Company’s common stock, par value $.01 per share by 140 million shares to 280 million shares. 114,853,543 votes were cast in favor of the amendment to the Company’s Amended and Restated Articles of Incorporation, as amended, 2,748,955 votes were cast against, and 999,982 votes abstained.  There were no broker non-votes with respect to Proposal 4.

 

ITEM 9.01             Financial Statements and Exhibits.

 

(d)                   Exhibits.

 

Exhibit No.

 

Description

 

 

 

3.(i).1

 

Articles of Amendment and Restatement of Articles of Incorporation of the Company, dated as of June 4, 1998. (Incorporated by reference to Exhibit 3(i).1 to Form 10-K of the Company filed March 1, 2007.)

 

 

 

3.(i).2

 

Articles of Amendment, dated as of October 2, 1998. (Incorporated by reference to Exhibit 3(i).2 to Form 10-K of the Company filed March 1, 2007.)

 

 

 

3.(i).3

 

Amendment to Amended and Restated Articles of Incorporation, as amended, of AvalonBay Communities, Inc., dated May 22, 2013. (Filed herewith.)

 

3


 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

AVALONBAY COMMUNITIES, INC.

 

 

 

May 22, 2013

 

 

 

By:

/s/ Thomas J. Sargeant

 

Name:

Thomas J. Sargeant

 

Title:

Chief Financial Officer

 

4


 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

3.(i).1

 

Articles of Amendment and Restatement of Articles of Incorporation of the Company, dated as of June 4, 1998. (Incorporated by reference to Exhibit 3(i).1 to Form 10-K of the Company filed March 1, 2007.)

 

 

 

3.(i).2

 

Articles of Amendment, dated as of October 2, 1998. (Incorporated by reference to Exhibit 3(i).2 to Form 10-K of the Company filed March 1, 2007.)

 

 

 

3.(i).3

 

Amendment to Amended and Restated Articles of Incorporation, as amended, of AvalonBay Communities, Inc., dated May 22, 2013. (Filed herewith.)

 

5

Exhibit 3(i).3

 

AVALONBAY COMMUNITIES, INC.

 

ARTICLES OF AMENDMENT

 

AvalonBay Communities, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:

 

FIRST :  The charter of the Corporation (the “Charter”) is hereby amended by deleting therefrom in its entirety Section 1.3 of Article I and inserting in lieu thereof a new Section 1.3 of Article I to read as follows:

 

The total number of shares of Stock which the Corporation has authority to issue is three hundred fifty million (350,000,000) shares, consisting of (i) fifty million (50,000,000) shares of Preferred Stock; (ii) two hundred eighty million (280,000,000) shares of Common Stock; and (iii) twenty million (20,000,000) shares of excess stock, par value $.01 per share (“Excess Stock”).  The aggregate par value of all the shares of all classes of stock is $3,500,000.

 

SECOND :  The Charter is hereby further amended by deleting therefrom in their entirety the first two sentences of Section 7.1 of Article VII and inserting in lieu thereof two new sentences to read as follows:

 

The total number of shares of Stock which the Corporation has authority to issue is three hundred fifty million (350,000,000) shares, consisting of (i) fifty million (50,000,000) shares of Preferred Stock, par value $.01 per share; (ii) two hundred eighty million (280,000,000) shares of Common Stock, par value $.01 per share; and (iii) twenty million (20,000,000) shares of Excess Stock, par value $.01 per share.  The aggregate par value of all the shares of all classes of Stock is $3,500,000.

 

THIRD :  The total number of shares of stock which the Corporation had authority to issue immediately prior to the foregoing amendment of the Charter was 210,000,000, consisting of 50,000,000 shares of Preferred Stock, par value $.01 per share, 140,000,000 shares of Common Stock, par value $.01 per share, and 20,000,000 shares of Excess Stock, par value $.01 per share.  The aggregate par value of all authorized shares of stock having a par value was $2,100,000.

 

FOURTH :  The total number of shares of stock which the Corporation has authority to issue pursuant to the foregoing amendment of the Charter is 350,000,000, consisting of 50,000,000 shares of Preferred Stock, par value $.01 per share, 280,000,000 shares of Common Stock, par value $.01 per share, and 20,000,000 shares of Excess Stock, par value $.01

 


 

per share.  The aggregate par value of all authorized shares of stock having a par value was $3,500,000.

 

FIFTH :  The information required by Section 2-607(b)(2)(i) of the Maryland General Corporation Law is not changed by the foregoing amendment of the Charter.

 

SIXTH :  The amendments to the Charter as set forth above have been duly advised by the Board of Directors and approved by the stockholders of the Corporation entitled to vote thereon as required by law.

 

SEVENTH :  The undersigned acknowledges these Articles of Amendment to be the corporate act of the Corporation and as to all matters of facts required to be verified under oath, the undersigned 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 of perjury.

 

[SIGNATURE PAGE FOLLOWS]

 


 

IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be executed under seal in its name and on its behalf by its Chief Executive Officer and President and attested to by its Executive Vice President—General Counsel and Secretary on this 22nd day of May, 2013.

 

 

ATTEST:

 

AVALONBAY COMMUNITIES, INC.

 

 

 

 

 

 

/s/ Edward M. Schulman

 

By:

/s/ Timothy J. Naughton (SEAL)

Name:

Edward M. Schulman

 

 

Name:

Timothy J. Naughton

Title:

Executive Vice President—

 

 

Title:

Chief Executive Officer and President

 

General Counsel and Secretary