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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
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
____________________
Host Marriott Corporation
(Exact name of Registrant as specified in its charter)
MARYLAND 53-0085950
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10400 Fernwood Road 20817-1109
Bethesda, Maryland (Zip Code)
(Address of Principal Executive Offices)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A.(c), please check the following A.(d), please check the following
box. [X] box. [_]
Securities Act registration statement file number to which this form relates:
333-67907
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
10 % Class A Cumulative Redeemable Preferred Stock, par value $.01 per share
(Title of Class)
Securities to be registered pursuant to Section 12(g) of the Act:
None
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Item 1. Description of Registrant's Securities to be Registered.
A complete description of the 10% Class A Cumulative Redeemable
Preferred Stock, par value $.01 per share, of Host Marriott Corporation (the
"Registrant"), which is to be registered hereunder is contained under the
caption "Description of the Class A Preferred Stock" in the Prospectus
Supplement, dated July 27, 1999, to Prospectus, dated December 30, 1999,
relating to the offering of 4,000,000 shares of Preferred Stock of the
Registrant (4,600,000 shares if the underwriters' overallotment option is
exercised in full) which was filed pursuant to 424(b) by the Registrant with the
Securities and Exchange Commission on July 28, 1999. Such description is hereby
incorporated by reference.
Item 2. Exhibits
The following exhibits are filed herewith or are incorporated by
reference as indicated below.
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<CAPTION>
Exhibit
Number Description
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<C> <S>
3.1 Articles of Amendment and Restatement of Articles of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.1 of Host
Marriott Corporation Registration Statement No. 333-67907).
4.1 Form of Articles Supplementary for the 10% Class A Cumulative
Redeemable Preferred Stock of the Registrant.
4.2 Specimen Certificate for shares of 10% Class A Cumulative Redeemable
Preferred Stock of the Registrant.
</TABLE>
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SIGNATURE
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.
HOST MARRIOTT CORPORATION
Date: July __, 1999 By: /s/ Christopher G. Townsend
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Name: Christopher G. Townsend
Title: Senior Vice President and
Corporate Secretary
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EXHIBIT INDEX
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<CAPTION>
Exhibit
Number Description
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<C> <S>
3.1 Articles of Amendment and Restatement of Articles of Incorporation of
the Registrant (incorporated by reference to Exhibit 3.1 of Host
Marriott Corporation Registration Statement No. 333-67907).
4.1 Form of Articles Supplementary for the 10% Class A Cumulative
Redeemable Preferred Stock of the Registrant.
4.2 Specimen Certificate for shares of 10% Class A Cumulative Redeemable
Preferred Stock of the Registrant.
</TABLE>
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Exhibit 4.1
HOST MARRIOTT CORPORATION
ARTICLES SUPPLEMENTARY
HOST MARRIOTT CORPORATION, a Maryland corporation having its principal
Maryland office in Baltimore City, Maryland (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to authority expressly vested in the board of directors
(the "Board of Directors") of the Corporation by the charter of the Corporation
(the "Charter"), the Board of Directors of the Corporation at a duly convened
meeting held on May 20, 1999 has duly reclassified 4,600,000 shares of preferred
stock (par value $0.01 per share) ("Preferred Stock") of the Corporation into
4,600,000 shares of a series designated as 10% Class A Cumulative Redeemable
Preferred Stock (par value $0.01 per share) of the Corporation ("Class A
Preferred Stock").
SECOND: The reclassification increases the number of shares classified as
Class A Preferred Stock from no shares immediately prior to the reclassification
to 4,600,000 shares immediately after the reclassification. The
reclassification decreases the number of shares classified as Preferred Stock
(par value $0.01 per share) from 49,350,000 shares immediately prior to the
reclassification to 44,750,000 shares immediately after the reclassification.
THIRD: The following is a description of the preferences, conversion and
other rights, powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of the Class A Preferred Stock of the
Corporation:
10% Class A Cumulative Redeemable Preferred Stock
1. Designation and Amount. A series of Preferred Stock of the Corporation,
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designated as the "10% Class A Cumulative Redeemable Preferred Stock" (the
"Class A Preferred Stock"), par value $0.01 per share, is hereby established.
The number of authorized shares of Class A Preferred Stock is 4,600,000.
2. Ranking. In respect of rights to the payment of dividends and the
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distribution of assets in the event of any liquidation, dissolution or winding
up of the Corporation, the Class A Preferred Stock ranks (i) senior to the
Corporation's common stock, par value $0.01 per share (the "Common Stock"),
senior to the Corporation's Series A Junior Participating Preferred Stock, par
value $0.01 per share (the "Junior Participating Preferred Stock"), and senior
to any other class or series of capital stock of the Corporation other than
capital stock referred to in clauses (ii) and (iii) of this sentence, (ii) on a
parity with any class or series of
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capital stock of the Corporation the terms of which specifically provide that
such class or series of capital stock ranks on a parity with the Class A
Preferred Stock as to the payment of dividends and the distribution of assets in
the event of any liquidation, dissolution or winding up of the Corporation, and
(iii) junior to any class or series of capital stock of the Corporation the
terms of which specifically provide that such class or series of capital stock
ranks senior to the Class A Preferred Stock as to the payment of dividends and
the distribution of assets in the event of any liquidation, dissolution or
winding up of the Corporation. The term "capital stock" does not include
convertible debt securities.
3. Dividends.
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(a) Subject to the preferential rights of the holders of any class or
series of capital stock of the Corporation ranking senior to the Class A
Preferred Stock as to dividends, the holders of the outstanding shares of
Class A Preferred Stock will be entitled to receive, when, as and if
authorized by the Board of Directors of the Corporation (the "Board of
Directors") and declared by the Corporation, out of funds legally available
for the payment of dividends, cumulative cash dividends at the rate of 10%
per annum of the $25.00 per share liquidation preference of the Class A
Preferred Stock (equivalent to an annual rate of $2.50 per share). Such
dividends will accrue daily, will accrue and be cumulative from August 3,
1999 (the "Original Issue Date") and will be payable quarterly in arrears
in cash on January 15, April 15, July 15 and October 15 (each, a "Dividend
Payment Date") of each year, commencing October 15, 1999; provided, that if
any Dividend Payment Date is not a Business Day (as hereinafter defined),
then the dividend which would otherwise have been payable on such Dividend
Payment Date may be paid on the next succeeding Business Day with the same
force and effect as if paid on such Dividend Payment Date and no interest
or additional dividends or other sum will accrue on the amount so payable
for the period from and after such Dividend Payment Date to such next
succeeding Business Day. The period from and including the Original Issue
Date to but excluding the first Dividend Payment Date, and each subsequent
period from and including a Dividend Payment Date to but excluding the next
succeeding Dividend Payment Date, is hereinafter called a "Dividend
Period". Dividends will be payable to holders of record as they appear in
the stock transfer books of the Corporation at the close of business on the
applicable record date (each, a "Record Date"), which will be the 1st day
of the calendar month in which the applicable Dividend Payment Date falls
or such other date designated by the Board of Directors that is not more
than 30 nor less than ten days prior to such Dividend Payment Date. The
amount of any dividend payable for any Dividend Period, or portion thereof,
will be computed on the basis of a 360-day year consisting of twelve 30-day
months (it being understood that the dividend payable on October 15, 1999
will be for less than a full Dividend Period). The dividends payable on any
Dividend Payment Date or any other date will include dividends accrued to
but excluding such Dividend Payment Date or other date, as the case may be.
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"Business Day" means any day, other than a Saturday or Sunday, that is
not a day on which banking institutions in The City of New York are
authorized or required by law, regulation or executive order to be closed.
All references herein to "accrued and unpaid" dividends on the Class A
Preferred Stock (and all references of like import) include, unless
otherwise expressly stated or the context otherwise requires, accumulated
dividends, if any, on the Class A Preferred Stock; and all references
herein to "accrued and unpaid" dividends on any other class or series of
capital stock of the Corporation include, if (and only if) such class or
series of capital stock provides for cumulative dividends and unless
otherwise expressly stated or the context otherwise requires, accumulated
dividends, if any, thereon.
(b) If any shares of Class A Preferred Stock are outstanding, no full
dividends will be authorized or declared or paid or set apart for payment
on any capital stock of the Corporation of any other class or series
ranking, as to dividends, on a parity with or junior to the Class A
Preferred Stock for any period unless full cumulative dividends have been
or contemporaneously are authorized, declared and paid or authorized,
declared and a sum sufficient for the payment thereof set apart for such
payment on the Class A Preferred Stock for all past Dividend Periods
(including, without limitation, any Dividend Period that terminates on any
date upon which dividends on such other class or series of capital stock of
the Corporation are authorized or declared or paid or set apart for
payment, as the case may be). When such cumulative dividends are not paid
in full (or a sum sufficient for such full payment is not set apart
therefor) upon the Class A Preferred Stock and the shares of any other
class or series of capital stock of the Corporation ranking on a parity as
to dividends with the Class A Preferred Stock, all dividends authorized and
declared upon the Class A Preferred Stock and any other class or series of
capital stock of the Corporation ranking on a parity as to dividends with
the Class A Preferred Stock will be authorized and declared pro rata so
that the amount of dividends authorized and declared per share of Class A
Preferred Stock and such other class or series of capital stock of the
Corporation will in all cases bear to each other the same ratio that
accrued and unpaid dividends per share on the shares of Class A Preferred
Stock and such other class or series of capital stock of the Corporation
bear to each other.
Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Class A Preferred Stock have been or
contemporaneously are authorized, declared and paid or authorized, declared
and a sum sufficient for the payment thereof set apart for such payment on
the Class A Preferred Stock for all past Dividend Periods (including,
without limitation, any Dividend Period that terminates on a date that also
is a Subject Date (as defined below)), no dividends (other than in shares
of Common Stock or shares of any other class or series of capital stock of
the Corporation ranking junior to the Class A Preferred Stock as to
dividends and as to the distribution of assets upon liquidation,
dissolution and winding up of the Corporation) will be authorized or
declared or paid or set apart for payment nor will any other distribution
be authorized or declared or
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made upon the Common Stock of the Corporation or any other class or series
of capital stock of the Corporation ranking junior to or on a parity with
the Class A Preferred Stock as to dividends or as to the distribution of
assets upon liquidation, dissolution or winding up of the Corporation, and
no shares of Common Stock of the Corporation or shares of any other class
or series of capital stock of the Corporation ranking junior to or on a
parity with the Class A Preferred Stock as to dividends or as to the
distribution of assets upon liquidation, dissolution or winding up of the
Corporation will be redeemed, purchased or otherwise acquired for any
consideration (or any monies paid to or made available for a sinking fund
for the redemption of any such shares of junior or parity stock) by the
Corporation (except by conversion into or exchange for shares of any other
class or series of capital stock of the Corporation ranking junior to the
Class A Preferred Stock as to dividends and as to the distribution of
assets upon liquidation, dissolution and winding up of the Corporation and
except for the redemption, purchase or acquisition by the Corporation of
capital stock of the Corporation of any class or series pursuant to Article
VIII (or any similar provisions) of the Charter allowing the Corporation to
redeem or repurchase shares of its capital stock to preserve its status as
a real estate investment trust (a "REIT") for federal income tax purposes
or the status of Host Marriott, L.P., a Delaware limited partnership (the
"Operating Partnership", which term includes any successor thereto), as a
partnership for federal income tax purposes). As used in this paragraph,
the term "Subject Date" means (A) any date on which any dividends are
authorized, declared or paid or set apart for payment or other distribution
authorized, declared or made upon the Common Stock or any other class or
series of the Corporation's capital stock ranking junior to or on a parity
with the Class A Preferred Stock as to dividends or as to the distribution
of assets upon liquidation, dissolution or winding up of the Corporation,
and (B) any date on which any shares of Common Stock or any other class or
series of the Corporation's capital stock ranking junior to or on a parity
with the Class A Preferred Stock as to dividends or as to the distribution
of assets upon liquidation, dissolution or winding up of the Corporation
are redeemed, purchased or otherwise acquired for any consideration or any
money paid to or made available for a sinking fund for the redemption of
any such shares of junior or parity stock by the Corporation.
(c) No dividends on the Class A Preferred Stock will be authorized or
declared or paid or set apart for payment at such time as any agreement of
the Corporation, 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 would
constitute a breach thereof or a default thereunder, or if such
declaration, payment or setting apart for payment will be restricted or
prohibited by applicable law.
Anything in these Articles Supplementary to the contrary
notwithstanding (including, without limitation, the provisions set forth in
the immediately preceding paragraph), dividends on the Class A Preferred
Stock will accrue and be cumulative
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from the Original Issue Date whether or not the Corporation has earnings,
whether or not there are funds legally available for the payment of such
dividends and whether or not such dividends are authorized or declared.
(d) No interest, or sum of money in lieu of interest, will be payable
in respect of any dividend payment or payments on the Class A Preferred
Stock which may be in arrears, and holders of the Class A Preferred Stock
will not be entitled to any dividends, whether payable in cash, securities
or other property, in excess of the full cumulative dividends described
herein.
(e) Any dividend payment made on the Class A Preferred Stock will first
be credited against the earliest accrued but unpaid dividend due with
respect to the Class A Preferred Stock.
(f) If, for any taxable year, the Corporation elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue
Code of 1986, as amended (the "Code")), any portion (the "Capital Gains
Amount") of the dividends (within the meaning of the Code) paid or made
available for the year to holders of all classes and series of the
Corporation's capital stock (the "Total Dividends"), then the portion of
the Capital Gains Amount that is allocable to the holders of the Class A
Preferred Stock will be an amount equal to (A) the total Capital Gains
Amount multiplied by (B) a fraction (1) the numerator of which is equal to
the total dividends (within the meaning of the Code) paid or made available
to the holders of the Class A Preferred Stock for that year and (2) the
denominator of which is the Total Dividends for that year.
4. Liquidation Preference.
----------------------
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, then, before any distribution or payment is
made to the holders of any Common Stock of the Corporation or shares of any
other class or series of capital stock of the Corporation ranking junior to
the Class A Preferred Stock as to the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, but subject to
the preferential rights of the holders of shares of any class or series of
capital stock of the Corporation ranking senior to the Class A Preferred
Stock as to such distribution of assets upon such liquidation, dissolution
or winding up, the holders of the shares of Class A Preferred Stock then
outstanding will be entitled to receive and to be paid out of the assets of
the Corporation legally available for distribution to its shareholders
liquidating distributions in the amount of $25.00 per share, plus an amount
equal to all accrued and unpaid dividends thereon to the date of payment.
(b) After payment to the holders of the Class A Preferred Stock of the
full amount of the liquidating distributions (including accrued and unpaid
dividends) to
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which they are entitled, the holders of Class A Preferred Stock, as such,
will have no right or claim to any of the remaining assets of the
Corporation.
(c) If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation legally
available for distribution to its shareholders are insufficient to pay the
full amount of liquidating distributions on all outstanding shares of Class
A Preferred Stock and the full amount of the liquidating distributions
payable on all outstanding shares of any other classes or series of capital
stock of the Corporation ranking on a parity with the Class A Preferred
Stock as to the distribution of assets upon liquidation, dissolution or
winding up of the Corporation, then the holders of the Class A Preferred
Stock and all other such classes or series of capital stock will share
ratably in any such distribution of assets in proportion to the full
liquidating distributions (including, if applicable, accrued and unpaid
dividends) to which they would otherwise respectively be entitled.
(d) If liquidating distributions are made in full to all holders of
Class A Preferred Stock and any other classes or series of capital stock of
the Corporation ranking on a parity with the Class A Preferred Stock as to
the distribution of assets upon liquidation, dissolution or winding up of
the Corporation, then, the remaining assets of the Corporation will be
distributed among the holders of any other classes or series of capital
stock of the Corporation ranking junior to the Class A Preferred Stock as
to the distribution of assets upon liquidation, dissolution or winding up,
according to their respective rights and preferences.
(e) For purposes of this Section 4, neither the consolidation or merger
of the Corporation with or into any other corporation, trust or other
entity, nor the sale, lease or conveyance of all or substantially all of
the property or business of the Corporation, will be deemed to constitute a
liquidation, dissolution or winding up of the Corporation.
5. Redemption.
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(a) The Class A Preferred Stock is not redeemable prior to August 3,
2004, except that the Corporation will be entitled, pursuant to the
provisions of Article VIII (or any similar provision) of the Charter, to
redeem, purchase or acquire shares of Class A Preferred Stock in order to
preserve the status of the Corporation as a REIT for federal income tax
purposes or the status of the Operating Partnership as a partnership for
federal income tax purposes. Any date fixed for the redemption of shares of
Class A Preferred Stock is hereinafter called a "Redemption Date".
(b) On and after August 3, 2004, the Corporation may, at its option,
upon not less than 30 nor more than 60 days' prior written notice to the
holders of record of the Class A Preferred Stock to be redeemed, redeem the
Class A Preferred Stock, in whole or from time to time in part, for a cash
redemption price equal to $25.00 per
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share together with (except as provided in Section 6(f) below) all accrued
and unpaid dividends to the date fixed for redemption (the "Optional
Redemption Price").
(c) In the event of any redemption of Class A Preferred Stock pursuant
to Article VIII (or any similar provision) of the Charter in order to
preserve the status of the Corporation as a REIT for federal income tax
purposes or the status of the Operating Partnership as a partnership for
federal income tax purposes, such redemption shall be made on the terms and
subject to the conditions set forth in Article VIII of the Charter and in
accordance with the further terms and conditions set forth in this Section
5(c) and Section 6 of these Articles Supplementary. If the Corporation
calls for redemption any shares of Class A Preferred Stock pursuant to and
in accordance with such provisions of Article VIII of the Charter and this
Section 5(c), then, anything in the Charter to the contrary
notwithstanding, the redemption price for such shares will be an amount in
cash equal to $25.00 per share together with (except as provided in Section
6(f) below) all accrued and unpaid dividends to the date fixed for
redemption (the "Charter Redemption Price"). Anything in these Articles
Supplementary to the contrary notwithstanding, the provisions of this
Section 5(c) shall apply only to the redemption of Class A Preferred Stock
pursuant to Article VIII (or any similar provisions) of the Charter and not
to any other purchase or acquisition of shares of Class A Preferred Stock
pursuant to Article VIII (or any similar provisions) of the Charter.
(d) Any redemption of shares of Class A Preferred Stock, whether
pursuant to paragraph (b) or (c) of this Section 5, will be made in
accordance with the applicable provisions set forth in Section 6 below.
6. Procedures for Redemption; Limitations on Redemption.
----------------------------------------------------
(a) If fewer than all of the outstanding shares of Class A Preferred
Stock are to be redeemed at the option of the Corporation pursuant to
Section 5(b) above, the number of shares to be redeemed will be determined
by the Corporation and the shares to be so redeemed will be selected by the
Corporation pro rata from the holders of record of such shares in
proportion to the number of such shares held by such holders (as nearly as
may be practicable without creating fractional shares) or by lot or by any
other equitable manner determined by the Corporation that will not result
in the transfer of any shares of Class A Preferred Stock to a trust for the
benefit of a charitable beneficiary pursuant to Article VIII (or any
similar provision) of the Charter.
(b) Notice of redemption will be given by publication in The Wall
Street Journal or, if such newspaper is not then being published, another
newspaper of general circulation in The City of New York, such publication
to be made at least once a week for two successive weeks commencing not
less than 30 nor more than 60 days prior to the Redemption Date, except
that no such notice need be published in the case of a redemption pursuant
to Section 5(c) of these Articles Supplementary.
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Notice of any redemption (whether pursuant to Section 5(b) or 5(c) of these
Articles Supplementary, as the case may be) will also be mailed by or on
behalf of the Corporation, first class postage prepaid, not less than 30
nor more than 60 days prior to the applicable Redemption Date, addressed to
each holder of record of shares of Class A Preferred Stock to be redeemed
at the address set forth in the share transfer records of the Corporation;
provided, that if the Corporation reasonably concludes, based upon the
advice of independent tax counsel experienced in such matters, that any
redemption made pursuant to Section 5(c) must be made on a date (the "Early
Redemption Date") which is earlier than 30 days after the date of such
mailing in order to preserve the status of the Corporation as a REIT for
federal income tax purposes or the status of the Operating Partnership as a
partnership for federal income tax purposes or to comply with federal tax
laws relating to the Corporation's qualification as a REIT, then the
Corporation may give such shorter notice as is necessary to effect such
redemption on the Early Redemption Date. Any notice which has been mailed
in the manner provided for in the preceding sentence will be conclusively
presumed to have been duly given on the date mailed whether or not the
applicable holder receives such notice. In addition to any information
required by law or by the applicable rules of any exchange upon which Class
A Preferred Stock may be listed or admitted to trading, such notice will
state: (1) the Redemption Date; (2) the Optional Redemption Price or the
Charter Redemption Price, as the case may be (the "Redemption Price"); (3)
the number of shares of Class A Preferred Stock to be redeemed and whether
such shares are being redeemed at the option of the Corporation pursuant to
Section 5(b) or in order to preserve the Corporation's status as a real
estate investment trust for federal income tax purposes pursuant to Section
5(c); (4) the place or places (which will include a place in the Borough of
Manhattan, The City of New York) where certificates for such shares are to
be surrendered for payment of the Redemption Price; and (5) that dividends
on the shares of Class A Preferred Stock to be redeemed will cease to
accrue on such Redemption Date. If fewer than all of the outstanding shares
of Class A Preferred Stock are to be redeemed, the notice mailed to each
holder of shares to be redeemed will also specify the number of shares of
Class A Preferred Stock to be redeemed from such holder. No failure to mail
or defect in such mailed notice or in the mailing thereof will affect the
validity of the proceedings for the redemption of any shares of Class A
Preferred Stock except as to the holder to whom notice was defective or not
given.
(c) If notice has been published (with respect to a redemption pursuant
to Section 5(b) only) and mailed in accordance with Section 6(b) above and
all funds necessary for such redemption have been irrevocably set aside by
the Corporation on or before the Redemption Date specified in such notice,
separate and apart from its other funds, in trust for the benefit of the
holders of the Class A Preferred Stock so called for redemption, so as to
be, and to continue to be, available therefor, then, from and after the
Redemption Date, dividends on the shares of Class A Preferred Stock so
called for redemption will cease to accrue, such shares will no longer be
deemed to be outstanding, and all rights of the holders thereof as holders
of such shares (except the
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right to receive the Redemption Price together with, if applicable, accrued
and unpaid dividends thereon to the Redemption Date) will terminate. In the
event any Redemption Date is not a Business Day, then payment of the
Redemption Price may be made on the next succeeding Business Day with the
same force and effect as if made on such Redemption Date and no interest,
additional dividends or other sum will accrue on the amount payable for the
period from and after such Redemption Date to such next succeeding Business
Day.
(d) Upon surrender, in accordance with such notice, of the certificates
for any shares of Class A Preferred Stock to be so redeemed (properly
endorsed or assigned for transfer, if the Corporation so requires and the
redemption notice so states), such shares of Class A Preferred Stock will
be redeemed by the Corporation at the Redemption Price. In case fewer than
all the shares of Class A Preferred Stock evidenced by any such certificate
are redeemed, a new certificate or certificates will be issued evidencing
the unredeemed shares of Class A Preferred Stock without cost to the holder
thereof.
(e) Any deposit of monies with a bank or trust company for the purpose
of redeeming Class A Preferred Stock will be irrevocable and such monies
will be held in trust for the benefit of the holders of Class A Preferred
Stock entitled thereto, except that (1) the Corporation will be entitled to
receive from such bank or trust company the interest or other earnings, if
any, earned on the monies so deposited in trust; and (2) any balance of the
monies so deposited by the Corporation and unclaimed by the holders of the
Class A Preferred Stock entitled thereto at the expiration of two years
from the applicable Redemption Date will be repaid, together with any
interest or other earnings earned thereon, to the Corporation and, after
any such repayment, the holders of the shares entitled to the funds so
repaid to the Corporation will look only to the Corporation for payment
without interest or other earnings thereon.
(f) Anything in these Articles Supplementary to the contrary
notwithstanding, the holders of record of shares of Class A Preferred Stock
at the close of business on a Record Date will be entitled to receive the
dividend payable with respect to such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares after such
Record Date and on or prior to such Dividend Payment Date or the
Corporation's default in the payment of the dividend due on such Dividend
Payment Date, in which case the amount payable upon redemption of such
shares of Class A Preferred Stock will not include the dividend payable on
such Dividend Payment Date and the full amount of the dividend payable on
such Dividend Payment Date will instead be paid on such Dividend Payment
Date to the holders of record at the close of business on such Record Date
as aforesaid. Except as provided in this Section 6(f) and except to the
extent that accrued and unpaid dividends are payable as part of the
Redemption Price pursuant to Section 5, the Corporation will make no
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payment or allowance for unpaid dividends, regardless of whether or not in
arrears, on shares of Class A Preferred Stock called for redemption.
(g) Unless full cumulative dividends on all outstanding shares of Class
A Preferred Stock have been or contemporaneously are authorized, declared
and paid or authorized, declared and a sum sufficient for the payment
thereof set apart for payment for all past Dividend Periods (including,
without limitation, any Dividend Period that terminates on the date of any
redemption of shares of Class A Preferred Stock referred to below or on the
date of any direct or indirect purchase or other acquisition of shares of
Class A Preferred Stock referred to below, as the case may be), (i) no
shares of Class A Preferred Stock will be redeemed unless all outstanding
shares of Class A Preferred Stock are simultaneously redeemed; provided,
however, that the foregoing will not prevent the redemption, repurchase or
acquisition of shares of Class A Preferred Stock pursuant to Article VIII
(or any similar provision) of the Charter in order to preserve the status
of the Corporation as a REIT for federal income tax purposes or the status
of the Operating Partnership as a partnership for federal income tax
purposes or pursuant to a purchase or exchange offer made on the same terms
to the holders of all outstanding shares of Class A Preferred Stock, and
(ii) the Corporation will not purchase or otherwise acquire, directly or
indirectly, any shares of Class A Preferred Stock (except by conversion
into or exchange for capital stock of the Corporation ranking junior to the
Class A Preferred Stock as to the payment of dividends and as to the
distribution of assets upon liquidation, dissolution and winding up of the
Corporation); provided, however, that the foregoing will not prevent the
redemption, purchase or acquisition of shares of Class A Preferred Stock
pursuant to Article VIII (or any similar provision) of the Charter in order
to preserve the status of the Corporation as a REIT for federal income tax
purposes or the status of the Operating Partnership as a partnership for
federal income tax purposes or pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of Class A
Preferred Stock.
7. Voting Rights. Except as required by law and as set forth below in this
-------------
Section 7, the holders of the Class A Preferred Stock do not have any voting
rights.
(a) Whenever dividends on any shares of Class A Preferred Stock are in
arrears for six or more Dividend Periods, whether or not such Dividend
Periods are consecutive, the number of directors then constituting the
Board of Directors of the Corporation will be automatically increased by
two (if not already increased by two by reason of the election of directors
by the holders of any other class or series of capital stock of the
Corporation upon which like voting rights have been conferred and are
exercisable and with which the Class A Preferred Stock is entitled to vote
as a class with respect to the election of such two directors) and the
holders of shares of Class A Preferred Stock (voting together as a single
class with all other classes or series of capital stock of the Corporation
upon which like voting rights have been conferred and are exercisable and
which are entitled to vote as a class with the Class
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A Preferred Stock in the election of such two directors) will be entitled
to vote for the election of a total of two additional directors of the
Corporation at a special meeting called by an officer of the Corporation at
the request of the holders of record of at least 10% of the outstanding
shares of Class A Preferred Stock or by the holders of any other class or
series of capital stock of the Corporation upon which like voting rights
have been conferred and are exercisable and which is entitled to vote as a
class with the Class A Preferred Stock in the election of such two
additional directors (unless such request is received less than 90 days
before the date fixed for the next annual or special meeting of
shareholders of the Corporation, in which case the vote for such two
directors will be held at the earlier of the next such annual or special
meeting of shareholders), and at each subsequent annual meeting of
shareholders, until all dividends accumulated on the Class A Preferred
Stock for all past Dividend Periods and the then current Dividend Period
have been fully paid or authorized and declared and a sum sufficient for
the payment thereof set aside for payment in full, whereupon the right of
the holders of Class A Preferred Stock to elect such two directors will
cease and (unless there are one or more other classes or series of capital
stock of the Corporation upon which like voting rights have been conferred
and are exercisable) the term of office of such two directors previously so
elected will immediately and automatically terminate, such directors will
no longer be qualified to serve and the authorized number of directors of
the Corporation will thereupon return to the number of authorized directors
otherwise in effect, but subject always to the same provisions for the
reinstatement and divestment of the right to elect such two additional
directors in the case of any such future dividend arrearage.
In the case of any such request for a special meeting (unless such
request is received less than 90 days before the date fixed for the next
annual or special meeting of shareholders), such meeting will be held on
the earliest practicable date at the place designated by the holders of
capital stock requesting such meeting or, if none, at a place designated by
the Corporate Secretary of the Corporation, upon notice similar to that
required for an annual meeting of shareholders. If such special meeting is
not called by an officer of the Corporation within 30 days after such
request, then the holders of record of at least 10% of the outstanding
shares of Class A Preferred Stock may designate in writing a holder of
Class A Preferred Stock to call such meeting at the expense of the
Corporation, and such meeting may be called by the holder so designated
upon notice similar to that required for an annual meetings of shareholders
and will be held at the place designated by the holder calling such
meeting. At all times that the voting rights conferred by this Section 7(a)
are exercisable, the holders of Class A Preferred Stock will have access to
the stock transfer records of the Corporation. The Corporation will pay all
costs and expenses of calling and holding any meeting and of electing
directors pursuant to this Section 7(a), including, without limitation, the
cost of preparing, reproducing and mailing the notice of such meeting, the
cost of renting a room for such meeting to be held, and the cost of
collecting and tabulating votes.
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<PAGE>
The procedures in this Section 7(a) for the calling of meetings and the
election of directors will, to the extent permitted by law, supersede
anything inconsistent contained in the Charter or Bylaws of the Corporation
and, without limitation to the foregoing, the provisions of Sections
13(a)(2) and 13(b) of Article II of the Bylaws of the Corporation will not
be applicable to the election of directors by holders of Class A Preferred
Stock pursuant to this Section 7. Notwithstanding the provisions of Section
2 of Article III of the Bylaws of the Corporation, subject to the
limitations on the number of directors set forth in Article VII of the
Charter, the number of directors constituting the entire Board of Directors
of the Corporation will be automatically increased to include the directors
to be elected pursuant to this Section 7(a).
So long as any shares of Class A Preferred Stock are outstanding, the
number of directors constituting the entire Board of Directors of the
Corporation will at all times be such so that the exercise, by the holders
of the Class A Preferred Stock and the holders of any other classes or
series of capital stock of the Corporation upon which like voting rights
have been conferred, of the right to elect directors under the
circumstances provided above will not contravene any provision of the
Corporation's Charter or Bylaws restricting the number of directors which
may constitute the entire Board of Directors of the Corporation.
If at any time when the voting rights conferred upon the Class A
Preferred Stock pursuant to this Section 7(a) are exercisable any vacancy
in the office of a director elected pursuant to this Section 7(a) occurs,
then such vacancy may be filled only by the remaining such director or by
vote of the holders of record of the outstanding Class A Preferred Stock
and any other classes or series of capital stock of the Corporation upon
which like voting rights have been conferred and are exercisable and which
are entitled to vote as a class with the Class A Preferred Stock in the
election of directors pursuant to this Section 7(a). Any director elected
or appointed pursuant to this Section 7(a) may be removed only by the
holders of the outstanding Class A Preferred Stock and any other classes or
series of capital stock of the Corporation upon which like voting rights
have been conferred and are exercisable and which are entitled to vote as a
class with the Class A Preferred Stock in the election of directors
pursuant to this Section 7(a), and may not be removed by the holders of the
Common Stock.
(b) So long as any shares of Class A Preferred Stock remain
outstanding, the Corporation will not, without the affirmative vote or
consent of the holders of at least two-thirds of the shares of Class A
Preferred Stock outstanding at the time, given in person or by proxy either
in writing or at a meeting (with the Class A Preferred Stock voting
separately as a class), (A) authorize, create or issue, or increase the
authorized or issued amount of, any class or series of capital stock of the
Corporation ranking senior to the Class A Preferred Stock as to the payment
of dividends or the distribution of assets upon liquidation, dissolution or
winding up of the Corporation or reclassify any authorized capital stock of
the Corporation into such shares, or create, authorize or
12
<PAGE>
issue any obligation or security convertible into, exchangeable or
exercisable for, or evidencing the right to purchase, any such shares, or
(B) amend, alter or repeal any provisions of the Charter (including,
without limitation, any provision of these Articles Supplementary), whether
by the merger, consolidation or otherwise (an "Event"), so as to materially
and adversely affect any right, preference, privilege or voting power of
the Class A Preferred Stock or the holders thereof; provided, however, with
respect to the occurrence of any Event, so long as each share of Class A
Preferred Stock then outstanding remains outstanding or is converted into
like securities of the surviving or resulting entity, in each case with the
preferences, rights, privileges, voting powers and other terms thereof
materially unchanged, taking into account that upon the occurrence of an
Event the Corporation may not be the surviving entity and the surviving
entity may be a non-corporate entity, such as a limited liability company,
limited partnership or business trust, in which case the Class A Preferred
Stock would be converted into an equity interest, other than capital stock,
having preferences, rights, privileges, voting powers and other terms which
are materially unchanged from those of the Class A Preferred Stock, the
occurrence of such Event will not be deemed to materially and adversely
affect such rights, preferences, privileges or voting powers of the Class A
Preferred Stock or the holders thereof; and provided, further, that (i) any
increase in the amount of authorized Preferred Stock or Common Stock, (ii)
any increase in the amount of authorized shares of Class A Preferred Stock,
or (iii) the creation, issuance or increase in the amount of authorized
shares of any other class or series of capital stock of the Corporation, in
each case ranking on a parity with or junior to the Class A Preferred Stock
as to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Corporation, will not be
deemed to materially and adversely affect such rights, preferences,
privileges or voting powers. For purposes of this paragraph, the filing in
accordance with applicable law of articles supplementary or any similar
document setting forth or changing the designations, preferences,
conversion or other rights, voting powers, restrictions, limitation as to
dividends, qualifications or other terms of any class or series of capital
stock of the Corporation will be deemed an amendment to the Charter.
(c) 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 is effected, all outstanding shares of Class A Preferred Stock
have been redeemed or called for redemption and sufficient funds have been
deposited in trust in accordance with the terms of Section 6 hereof to
effect such redemption.
(d) On any matter submitted to a vote of the holders of Class A
Preferred Stock or on which the Class A Preferred Stock otherwise is
entitled to vote (as expressly provided in the Charter, including these
Articles Supplementary, or as may be required by law), including any action
by written consent, each share of Class A Preferred Stock is entitled to
one vote, except that when shares of any other class or series of Preferred
Stock of the Corporation have the right to vote with the Class A Preferred
Stock as a single class on any matter, the Class A Preferred Stock and the
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<PAGE>
shares of each such other class or series will have one vote for each
$25.00 of liquidation preference (excluding accrued dividends). The
provisions of this paragraph will supersede any inconsistent provisions of
the Bylaws of the Corporation.
8. Conversion. The Class A Preferred Stock is not convertible into or
----------
exchangeable for any other property or securities of the Corporation.
9. Office or Agency in New York City. The Corporation will at all times
---------------------------------
maintain an office or agency in the Borough of Manhattan, The City of New York,
where shares of Class A Preferred Stock may be surrendered for payment
(including upon redemption), registration of transfer or exchange.
10. No Preemptive Rights. The Class A Preferred Stock has no preemptive
--------------------
rights.
11. Status of Redeemed and Reacquired Class A Preferred Stock. In the event
---------------------------------------------------------
any shares of Class A Preferred Stock are redeemed pursuant to Section 5 hereof
or otherwise reacquired by the Corporation, the shares so redeemed or reacquired
will become authorized but unissued shares of Class A Preferred Stock, available
for future issuance and reclassification by the Corporation.
12. Severability. If any preference, right, voting power, restriction,
------------
limitation as to dividends, qualification, term or condition of redemption or
other term of the Class A Preferred Stock is invalid, unlawful or incapable of
being enforced by reason of any rule of law or public policy, then, to the
extent permitted by law, all other preferences, rights, voting powers,
restrictions, limitations as to dividends, qualifications, terms or conditions
of redemption and other terms of the Class A Preferred Stock which can be given
effect without the invalid, unlawful or unenforceable preference, right, voting
power, restriction, limitation as to dividends, qualification, term or condition
of redemption or other term of the Class A Preferred Stock will remain in full
force and effect and will not be deemed dependent upon any other such
preference, right, voting power, restriction, limitation as to dividends,
qualification, term or condition of redemption or other term of the Class A
Preferred Stock unless so expressed herein.
FOURTH: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by the law.
FIFTH: The undersigned Senior Vice President of the Corporation
acknowledges these Articles Supplementary to be the corporate act of the
Corporation and, as to all matters or facts required to be verified under oath,
the undersigned Senior Vice President 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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<PAGE>
IN WITNESS WHEREOF, HOST MARRIOTT CORPORATION has caused these presents
to be signed in its name and on its behalf by its _____________________________,
and witnessed by its ____________________________ on __________________________,
1999.
Witness: HOST MARRIOTT CORPORATION
By: ____________________________________ By: ____________________________
Name: Name:
Title: Title:
15
<PAGE>
Exhibit 4.2
FRONT
HOST MARRIOTT CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
SEE REVERSE FOR IMPORTANT NOTICE ON THE TRANSFER RESTRICTIONS AND OTHER
INFORMATION
CUSIP 44107P203
This Certifies that
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF 10% CLASS A CUMULATIVE REDEEMABLE
PREFERRED STOCK, PAR VALUE $.01 PER SHARE, OF ________________________________
HOST MARRIOTT CORPORATION ____________________________________________________
(the "Company") transferable on the books of the Company by the holder hereof in
person or by duly authorized attorney upon surrender of this Certificate
properly endorsed. This Certificate is not valid until countersigned by the
Transfer Agent and registered by the Registrar. This Certificate and the shares
represented hereby are issued and shall be subject to all of the provisions of
the Charter and the Bylaws of the Company and any amendments thereto.
WITNESS the facsimile seal of the Company and the facsimile signatures of its
duly authorized officers.
Dated:
__________________________________________
Corporate Secretary
[SEAL]
__________________________________________
Chairman
<PAGE>
BACK
THE COMPANY IS AUTHORIZED TO ISSUE TWO CLASSES OF STOCK WHICH ARE DESIGNATED AS
COMMON STOCK AND PREFERRED STOCK. THE PREFERRED STOCK MAY BE ISSUED IN ONE OR
MORE SERIES OR CLASSES. THE BOARD OF DIRECTORS IS AUTHORIZED TO DETERMINE THE
PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS OF EACH SERIES OR CLASS OF
PREFERRED STOCK BEFORE THE ISSUANCE OF ANY SUCH SERIES OR CLASS OF PREFERRED
STOCK. THE COMPANY WILL FURNISH, WITHOUT CHARGE, TO ANY STOCKHOLDER MAKING A
REQUEST THEREFOR, A COPY OF THE COMPANY'S CHARTER AND A FULL STATEMENT OF THE
INFORMATION REQUIRED BY SECTION 2-211(B) OF THE CORPORATIONS AND ASSOCIATIONS
ARTICLE OF THE ANNOTATED CODE OF MARYLAND WITH RESPECT TO THE DESIGNATIONS AND
ANY PREFERENCES, CONVERSION AND OTHER RIGHTS, VOTING POWERS, RESTRICTIONS,
LIMITATIONS AS TO DIVIDENDS AND OTHER DISTRIBUTIONS, QUALIFICATIONS AND TERMS
AND CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE COMPANY HAS
THE AUTHORITY TO ISSUE AND, SINCE THE COMPANY IS AUTHORIZED TO ISSUE PREFERRED
STOCK IN SERIES OR CLASSES, (i) THE DIFFERENCES IN THE RELATIVE RIGHTS AND
PREFERENCES BETWEEN THE SHARES OF EACH SERIES OR CLASS TO THE EXTENT SET, AND
(ii) THE AUTHORITY OF THE BOARD OF DIRECTORS TO SET SUCH RIGHTS AND PREFERENCES
OF SUBSEQUENT SERIES OR CLASSES. REQUEST FOR SUCH WRITTEN STATEMENT MUST BE
DIRECTED TO THE CORPORATE SECRETARY OF THE COMPANY AT ITS PRINCIPAL OFFICE. THE
FOREGOING SUMMARY DOES NOT PURPORT TO BE COMPLETE AND IS SUBJECT TO AND
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE CHARTER OF THE COMPANY.
THE 10% CLASS A CUMULATIVE REDEEMABLE PREFERRED STOCK IS SUBJECT TO CERTAIN
RESTRICTIONS ON OWNERSHIP AND TRANSFER. THE COMPANY WILL FURNISH A FULL
STATEMENT ABOUT THE RESTRICTIONS ON TRANSFERABILITY AND OWNERSHIP OF THE CLASS A
PREFERRED STOCK TO ANY STOCKHOLDER OF THE COMPANY ON REQUEST AND WITHOUT CHARGE.
SUCH REQUEST MUST BE MADE TO THE CORPORATE SECRETARY OF THE COMPANY AT THE
COMPANY'S PRINCIPAL OFFICE.
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
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as 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
[___________________________]
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
_________________ shares of the 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 Company
with full power of substitution in the premises.
Dated _________________________________
X__________________________________________________
X__________________________________________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE
OF THE CERTIFICATE IN EVERY PARTICULAR; WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER
Signature(s) Guaranteed
- --------------------------------------------------------------------------------
THE SIGNATURE(S) MUST 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 S.E.C. 17AD-
15.
