exv10w2






Exhibit 10.2




SECOND AMENDED AND RESTATED

DISTRIBUTION REINVESTMENT PLAN

Apartment Trust of America, Inc.




     Apartment Trust of America, Inc., a Maryland corporation (the “Company”), has adopted this
Second Amended and Restated Distribution Reinvestment Plan (the “Plan”), to be administered by the
Company or an unaffiliated third party (the “Administrator”) as agent for participants in the Plan
(“Participants”), on the terms and conditions set forth below.



     1. Election to Participate. Any holder of shares of common stock of the Company, par value
$0.01 per share (the “Shares”) may become a Participant in the Plan by making a written election to
participate in the Plan on such purchaser’s subscription agreement at the time of subscription for
Shares or by completing and executing the enrollment form enclosed herein or any other appropriate
documentation as may be acceptable to the Administrator. Participants in the Plan are required to
have the full amount of their cash distributions (other than “Excluded Distributions” as defined
below) with respect to all Shares owned by them reinvested pursuant to the Plan. If a
stockholder’s Shares are held by a broker or nominee and the stockholder wants to participate in
the Plan, the stockholder must make appropriate arrangements with its broker or nominee.



     2. Distribution Reinvestment. The Administrator will receive all cash distributions (other
than Excluded Distributions) paid by the Company with respect to Shares of Participants
(collectively, the “Distributions”). Participation will commence with the next Distribution payment
after receipt of the Participant’s election pursuant to Paragraph 1 hereof, provided it is received
on or before 10 days prior to the last day of the period to which such Distribution relates. The
election will apply to all Distributions attributable to such period and to all periods thereafter,
unless and until termination of participation in the Plan, in accordance with Section 8. As used in
this Plan, the term “Excluded Distributions” shall mean those cash or other distributions
designated as Excluded Distributions by the Company’s board of directors (the “Board”). A written
election to participate must be received by the Administrator prior to the last business day of the
month, in order to become a Plan Participant with respect to that month’s Distributions. If the
period for Distribution payments shall be changed, then this paragraph shall also be changed,
without the need for advance notice to Participants.



     3. General Terms of Plan Investments.



     The Administrator will apply all Distributions subject to this Plan, as follows:



          (a) Until such time as the Board determines a reasonable estimate of the value of the Shares,
the Administrator will invest Distributions in Shares at a price equal to $9.50 less the aggregate
distributions per Share of any net sale proceeds from the sale of one or more of the Company’s
assets, or other special distributions so designated by the Board, distributed to stockholders,
regardless of the price per Share paid by the Participant for the Shares in respect of which the
Distributions are paid. On or after the date the Board determines a reasonable estimate of the
value of the Shares (the “Initial Board Valuation”) under the Company’s valuation policy, as such
valuation policy is amended from time to time (the “Valuation Policy”), the Administrator will
invest Distributions in Shares at a price equal to the most recently disclosed estimated value as
determined in accordance with the Valuation Policy less the aggregate distributions per Share of
any net sale proceeds from the sale of one or more of the Company’s assets, or other special
distributions so designated by the Board, distributed to stockholders. No advance notice of pricing
pursuant to this Paragraph 3(a) shall be required other than to the extent the issue is a material
event requiring the public filing of a Form 8-K.




          (b) Selling commissions will not be paid for the Shares purchased pursuant to the Plan.




          (c) Dealer manager fees will not be paid for the Shares purchased pursuant to the Plan.




          (d) Organizational and offering expenses will not be paid or reimbursed for the Shares
purchased pursuant to the Plan.




          (e) all costs of administration of the Plan will be paid by the Administrator. However, any
interest earned on distributions on shares within the Plan will be paid to the Administrator to
defray certain costs relating to the Plan.




          (f) For each Participant, the Administrator will maintain an account which shall reflect for
each period in which Distributions are paid (a “Distribution Period”) the Distributions received by
the Administrator on behalf of such Participant. A Participant’s account shall be reduced as
purchases of Shares are made on behalf of such Participant.







 









 








          (g) Distributions shall be invested in Shares by the Administrator within 30 days following
the payment date with respect to such Distributions to the extent Shares are available for purchase
under the Plan. If sufficient Shares are not available, any such funds that have not been invested
in Shares within 30 days after receipt by the Administrator will be distributed to Participants.
Any interest earned on such accounts will be returned to the respective Participant.




          (h) Participants may acquire fractional Shares, computed to four decimal places, so that 100%
of the Distributions will be used to acquire Shares. The ownership of the Shares shall be reflected
on the books of the Company or its transfer agent.




          (i) A Participant will not be able to acquire Shares under the Plan to the extent that such
purchase would cause the Participant to exceed the ownership limits set forth in the Company’s
charter, as amended, unless exempted by the Board.




     4. Absence of Liability. Neither the Company nor the Administrator shall have any
responsibility or liability as to the value of the Shares or any change in the value of the Shares
acquired for the Participant’s account. Neither the Company nor the Administrator shall be liable
for any act done in good faith, or for any good faith omission to act hereunder. This includes,
without limitation, any claim of liability arising out of failure to terminate a Participant’s
account upon a Participant’s death, the prices at which Shares are purchased, the times when
purchases are made, or fluctuations in the market price of the Shares.



     5. Suitability. Each Participant shall notify the Administrator in the event that, at any
time during his participation in the Plan, there is any material change in the Participant’s
financial condition, as compared to information previously provided to the stockholder’s broker or
financial advisors, or inaccuracy of any representation under the subscription agreement for the
Participant’s initial purchase of Shares. A material change shall include any anticipated or actual
material decrease in net worth or annual gross income, or any other material change in
circumstances that may be likely to cause the Participant to fail to meet the minimum income and
net worth standards set forth in the Company’s prospectus for the Participant’s initial purchase of
Shares or cause the Participant’s broker or financial advisor to determine that an investment in
Shares is no longer suitable and appropriate for the Participant.



     6. Reports to Participants. Within ninety (90) days after the end of each calendar year, the
Administrator will mail to each Participant a statement of account describing, as to such
Participant, the Distributions received, the number of Shares purchased and the per Share purchase
price for such Shares pursuant to the Plan during the prior year. Each statement also shall advise
the Participant that, in accordance with Section 5 hereof, the Participant is required to notify
the Administrator in the event there is any material change in the Participant’s financial
condition or if any representation made by the Participant under the subscription agreement for the
Participant’s initial purchase of Shares becomes inaccurate. Tax information regarding a
Participant’s participation in the Plan will be sent to each Participant by the Company or the
Administrator at least annually.



     7. Taxes. The following discussion summarizes the principal federal income tax consequences,
under current law, of participation in the Plan. It does not address all potentially relevant
federal income tax matters, including consequences peculiar to persons subject to special
provisions of federal income tax law (such as tax-exempt organizations, insurance companies,
financial institutions, broker-dealers and foreign persons). The discussion is based on various
rulings of the Internal Revenue Service regarding several types of distribution reinvestment plans.
No ruling, however, has been issued or requested regarding the Plan. The following discussion is
for your general information only, and you must consult your own tax advisor to determine the
particular tax consequences (including the effects of any changes in law) that may result from your
participation in the Plan and the disposition of any Shares purchased pursuant to the Plan.



     Reinvested Distributions. Stockholders subject to federal income taxation who elect to
participate in the Plan will incur a tax liability for distributions allocated to them even though
they have elected not to receive their distributions in cash but rather to have their distributions
reinvested pursuant to the Plan. Specifically, Participants will be treated as if they received the
distribution from the Company and then applied such distribution to purchase the Shares pursuant to
the Plan. To the extent that a stockholder purchases Shares through the Plan at a discount to fair
market value, the stockholders will be treated for tax purposes as receiving an additional
distribution equal to the amount of such discount. A stockholder designating a distribution for
reinvestment will be taxed on the amount of such distribution as ordinary income to the extent such
distribution is from current or accumulated earnings and profits, unless the Company has designated
all or a portion of the distribution as a capital gain dividend. In such case, such designated
portion of the distribution will be taxed as a capital gain. The amount treated as a distribution
to Participants will constitute a dividend for federal income tax purposes to the same extent as a
cash distribution.



     Receipt of Share Certificates and Cash. Participants will not realize any income if they
receive certificates for whole shares credited to their account pursuant to the Plan. Any cash
received for a fractional share held in the Participant’s account will be treated



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as an amount realized on the sale of the fractional share. Participants therefore will
recognize gain or loss equal to any difference between the amount of cash received for a fractional
share and their tax basis in the fractional share.




     8. Termination.



          (a) A Participant may terminate his participation in the Plan with respect to all, but not
less of than all, of the Participant’s Shares (including Shares held for the Participant’s account
pursuant to the Plan) at any time by written notice to the Administrator. To be effective for any
Distribution, such notice must be received by the Administrator on or before 10 days prior to the
last day of the period to which such Distribution relates.




          (b) As the Distribution Period is presently monthly, a written election to terminate must be
received by the Administrator on or before 10 days prior to the last day of the month in order to
terminate participation in the Plan for that month. If the period for Distribution payments shall
be changed, then this paragraph shall also be changed, without the need for advance notice to
Participants.




          (c) A Participant’s transfer of Shares will terminate participation in the Plan with respect
to such transferred Shares as of the first day of the Distribution Period in which such transfer is
effective, unless the transferee of such Shares in connection with such transfer demonstrates to
the Administrator that such transferee meets the requirements for participation hereunder and
affirmatively elects participation by delivering an executed authorization form or other instrument
required by the Administrator.




          (d) Upon termination of a Participant’s participation in the Plan (either by the Participant
or the Company), the stock ownership records will be updated to include the number of whole shares
in the Participant’s Plan account. For any fractional shares of stock in the Participant’s Plan
account, the Administrator may either (i) send the Participant a check in payment for any
fractional shares in their account, or (ii) credit their stock ownership account with any such
fractional shares.




     9. Eligibility Restrictions. The Administrator is authorized to deny participation in the
Plan to residents of any state or foreign jurisdiction that imposes restrictions on participation
in the Plan that conflict with the general terms and provisions of this Plan, including states and
foreign jurisdictions where the Shares are neither registered under applicable securities laws nor
exempt from registration. The Company reserves the right to prohibit certain employee benefit
plans from participating in the Plan if such participation could cause the underlying assets of the
Company to constitute “plan assets” of such plans.



     10. Amendment or Termination by Company.



          (a) The terms and conditions of this Plan may be amended by the Company at any time,
including but not limited to an amendment to the Plan to substitute a new Administrator to act as
agent for the Participants, by mailing an appropriate notice at least 10 days prior to the
effective date thereof to each Participant; provided, however, the Company may not amend the Plan
to (a) provide for selling commissions or dealer merger fees to be paid for shares purchased
pursuant to the Plan or (b) revoke a Participant’s right to terminate his participation in the
Plan.




          (b) The Administrator may terminate a Participant’s individual participation in the Plan and
the Company may terminate the Plan itself, at any time by providing 10 days’ prior written notice
to a Participant, or to all Participants, as the case may be; provided, however, that the Company
may terminate any Participant’s participation in the Plan at any time by notice to such Participant
if continued participation will, in the opinion of the Board, jeopardize the status of the Company
as a real estate investment trust under the Internal Revenue Code of 1986, as amended; provided,
further, that any participation that is subsequently determined, in the opinion of the Board, to
jeopardize the status of the Company as a real estate investment trust under the Internal Revenue
Code of 1986, as amended, will be voiced, ab initio.




          (c) After termination of the Plan or termination of a Participant’s participation in the
Plan, the Administrator will send to each Participant a check for the amount of any Distributions
in the Participant’s account that have not been invested in Shares. Any future Distributions with
respect to such former Participant’s Shares made after the effective date of the termination of the
Participant’s participation will be sent directly to the former Participant.




     11. Voting. Participants in the Plan will be able to vote all Shares (including fractional
shares) credited to their account pursuant to the Plan at the same time they vote the Shares
registered in their name on the records of the Company.



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     12. Stock Dividends, Stock Splits and Rights Offerings. A Participant’s Plan account will be
amended to reflect the effect of any stock dividends, splits, reverse splits or other combinations
or recapitalizations by the Company on Shares held by the Participant pursuant to the Plan. If the
Company issues to its stockholders rights to subscribe to additional shares, such rights will be
issued to Participants based on their total share holdings, including Shares held in their Plan
account.



     13. Interpretation and Regulation of the Plan. The Company reserves the right, without
notice to Participants, to interpret and regulate the Plan as it deems necessary or desirable in
connection with its operation. Any such interpretation and regulation shall be conclusive.



     14. Participation by Limited Partners of Apartment Trust of America Holdings, LP. For
purposes of this Plan, “stockholders” shall be deemed to include limited partners of Apartment
Trust of America Holdings, LP (the “Partnership”), “Participants” shall be deemed to include
limited partners of the Partnership that elect to participate in the Plan, and “Distribution,” when
used with respect to a limited partner of the Partnership, shall mean cash distributions on limited
partnership interests held by such limited partner.



     15. Governing Law. This Plan and the Participants’ election to participate in the Plan shall
be governed by the laws of the State of Maryland.



     16. Notice. Any notice or other communication required or permitted to be given by any
provision of this Plan shall be in writing and, if to the Administrator, addressed to Investor
Services Department, 4901 Dickens Road, Suite 101, Richmond, Virginia 23230, or such other address
as may be specified by the Administrator by written notice to all Participants. Notices to a
Participant may be given by letter addressed to the Participant at the Participant’s last address
of record with the Administrator, which will satisfy the Administrator’s duty to give notice. Each
Participant shall notify the Administrator promptly in writing of any changes of address. If a
Participant moves his or her residence to a state where Shares offered pursuant to the Plan are
neither registered nor exempt from registration under applicable securities laws, the Company may
deem the Participant to have terminated participation in the Plan.



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ENROLLMENT FORM




APARTMENT TRUST OF AMERICA, INC.



SECOND AMENDED AND RESTATED DISTRIBUTION REINVESTMENT PLAN



To Join the Second Amended and Restated Distribution Reinvestment Plan:




     Complete and return this form. Be sure to include your signature in order to indicate your
participation in the Plan.



     I hereby appoint Apartment Trust of America, Inc. (the “Company”) (or any designee or
successor), acting as Plan Administrator, as my agent to receive cash distributions that may
hereafter become payable to me on shares of the Company’s common stock, $0.01 par value per share
(the “Common Stock”) registered in my name as set forth below, and authorize the Company to apply
such distributions to the purchase of full shares and fractional interests in shares of the Common
Stock.



     I understand that the purchases will be made under the terms and conditions of the Plan as
described in the applicable prospectus, and that I may revoke this authorization at any time by
notifying the Plan Administrator, in writing, of my desire to terminate my participation.



     Sign below if you would like to participate in the Second Amended and Restated Distribution
Reinvestment Plan. You must participate with respect to 100% of your shares.



	 	 	 
	 
	 	 
	
	 	 
	Signature

	 	Date
	 

	 	 
	 
	 	 
	 

	 	 
	Signature of Joint Owner

	 	Date







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