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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 (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEALTH CARE PROPERTY INVESTORS, INC.
(Exact name of registrant as specified in its charter)
Maryland 33-0091377
(State of incorporation or organization) (I.R.S. Employer Identification No.)
4675 MacArthur Court, 9th Floor
Newport Beach, California 92660
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO
SECTION 12(b) OF THE ACT:
8.70% Series B Cumulative Redeemable Preferred Stock
(Title of each class to be registered)
New York Stock Exchange
(Name of each exchange on which each class is to be registered)
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If this Form relates to the registration of a class of If this Form relates to the registration of a class of
debt securities and is effective upon filing pursuant debt securities and is to become effective
to General Instruction A(c)(1) please check the simultaneously with the effectiveness of a concurrent
following box. [_] registration statement under the Securities Act of
1933 pursuant to General Instruction A(c)(2) please check the
following box. [_]
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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.
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A description of the 8.70% Series B Cumulative Redeemable Preferred
Stock (the "Series B Preferred Stock") to be registered hereunder is contained
in the section entitled "Description of Preferred Stock" on pages 11 through 14
of the Prospectus included in the Registrant's Form S-3 Registration Statement,
No. 333-57163, as filed on June 18, 1998, and as declared effective on June 30,
1998 by the Securities and Exchange Commission (the "Commission"), and as
supplemented by the information in the section entitled "Description of Series B
Preferred Stock" on pages S-18 through S-24 of the Prospectus Supplement dated
September 1, 1998 and filed with the Commission pursuant to Rule 424(b) of the
Securities Act of 1933, as amended. Such description is incorporated herein by
reference.
ITEM 2. Exhibits.
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Exhibit
Number Description
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3.1 Articles of Restatement of the Registrant (Incorporated herein
by reference to Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1995).
3.2 Amended and Restated Bylaws of Registrant (Incorporated herein
by reference to Exhibit 3(ii) to the Company's Quarterly Report
on Form 10-Q for the period ended June 30, 1995).
3.3 Articles Supplementary classifying the Series B Cumulative
Redeemable Preferred Stock.
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SIGNATURE
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Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, as amended, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
September 2, 1998 HEALTH CARE PROPERTY INVESTORS, INC.
("Registrant")
By: /s/ Edward J. Henning
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Edward J. Henning
Senior Vice President, General Counsel
and Corporate Secretary
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EXHIBIT 3.3
HEALTH CARE PROPERTY INVESTORS, INC.
ARTICLES SUPPLEMENTARY CLASSIFYING
5,750,000 SHARES OF
8.70% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
Health Care Property Investors, Inc., a Maryland corporation (the "Company"),
certifies to the Maryland State Department of Assessments and Taxation (the
"Department") that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors
of the Company by Article IV of the Articles of Restatement of the Company filed
with the Department on April 27, 1992, as supplemented, (the "Charter") and
Section 2-105 of the Maryland General Corporation Law ("MGCL"), the Board of
Directors has, by unanimous written consent in lieu of a meeting, adopted
resolutions classifying and designating a separate series of authorized but
unissued preferred stock of the Company, $1.00 par value per share ("Preferred
Stock") to consist of not more than 5,750,000 shares of Preferred Stock and,
pursuant to the powers contained in the bylaws of the Corporation and the MGCL,
appointing a Committee (the "Committee") of the Board of Directors comprised of
Kenneth B. Roath and Orville E. Melby, and delegating to the Committee, to the
fullest extent permitted by Maryland law and the Charter and Bylaws of the
Company, all powers of the Board of Directors with respect to designating and
setting the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption and other terms and
conditions of such series of Preferred Stock and determining the number of
shares of such series of Preferred Stock (not in excess of the aforesaid maximum
number) to be issued and the price and other terms and conditions upon which
shares of such series of Preferred Stock are to be offered, sold and issued.
SECOND: Pursuant to the authority conferred upon the Committee as aforesaid,
the Committee has unanimously adopted resolutions classifying and designating
5,750,000 shares of unissued Preferred Stock as a separate series of Preferred
Stock to be known as "8.70% Series B Cumulative Redeemable Preferred Stock,"
setting the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption and other terms and
conditions of such 8.70% Series B Cumulative Redeemable Preferred Stock and
authorizing the issuance of up to 5,750,000 shares of 8.70% Series B Cumulative
Redeemable Preferred Stock.
THIRD: The separate series of Preferred Stock of the Company created by the
resolutions duly adopted by the Board of Directors of the Company and by the
Committee and referred to in Articles FIRST and SECOND of these Articles
Supplementary shall have the
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following designation, number of shares, preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, terms and conditions of redemption and other
terms and conditions.
A. Designation and Number. A series of Preferred Stock, designated
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the "8.70% Series B Cumulative Redeemable Preferred Stock" (the "Series B
Preferred Stock"), is hereby established. The number of shares of the Series B
Preferred Stock shall be 5,750,000. The Series B Preferred Stock shall be
considered a class of stock of the Company which is separate from each of the
Company's common stock, par value $1.00 per share (the "Common Stock"), and the
Series A Preferred Stock (as defined below).
B. Maturity. The Series B Preferred Stock has no stated maturity
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and will not be subject to any sinking fund or mandatory or other redemption,
except as provided in Paragraphs G and I of this Article THIRD.
C. Rank. The Series B Preferred Stock will, with respect to
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dividend rights and rights upon liquidation, dissolution or winding up of the
Company, rank (i) senior to the Common Stock of the Company, and to all equity
securities issued by the Company ranking junior to the Series B Preferred Stock
with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company; (ii) on a parity with the Company's 7 7/8% Series A
Cumulative Redeemable Preferred Stock (the "Series A Preferred Stock") and with
all equity securities issued by the Company the terms of which specifically
provide that such equity securities rank on a parity with the Series B Preferred
Stock with respect to dividend rights or rights issued by the Company upon
liquidation, dissolution or winding up of the Company; and (iii) junior to all
equity securities the terms of which specifically provide that such equity
securities rank senior to the Series B Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the Company.
The term "equity securities" does not include convertible debt securities, which
will rank senior to the Series B Preferred Stock prior to conversion.
D. Dividends
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(1) Holders of shares of the Series B Preferred Stock are entitled to
receive, when, as, and if declared by the Board of Directors, out of funds of
the Company legally available for the payment of dividends, cumulative
preferential cash dividends at the rate of 8.70% of the Liquidation Preference
(as defined below) per annum per share (equivalent to $2.175 per annum per
share). Dividends on the Series B Preferred Stock shall be cumulative from the
date of original issue and shall be payable quarterly in arrears on or about the
last day of each March, June, September and December, or, if not a business day,
the next succeeding business day (each, a "Dividend Payment Date"). The first
dividend on the Series B Preferred Stock is scheduled to be paid on September
30, 1998 and will be for less than a full quarter. Any dividend payable on the
Series B Preferred Stock, including dividends payable for any partial dividend
period will be prorated (including the first dividend), will be computed on the
basis of a
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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 15th 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"). Notwithstanding any
provision to the contrary contained herein, each outstanding share of Series B
Preferred Stock shall be entitled to receive, and shall receive, a dividend with
respect to any Dividend Record Date equal to the dividend paid with respect to
each other share of Series B Preferred Stock which is outstanding on such date.
(2) No dividends on shares of Series B Preferred Stock shall be declared by
the Board of Directors or paid or set apart for payment by the Company at such
time as 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 would constitute a breach thereof or a default thereunder, or
if such declaration or payment shall be restricted or prohibited by law.
(3) Notwithstanding the foregoing, dividends on the Series B Preferred Stock
will accrue 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. Accrued but unpaid dividends on the Series B
Preferred Stock will not bear interest and holders of the Series B Preferred
Stock will not be entitled to any dividends in excess of full cumulative
dividends described above. Any dividend payment made on the Series B Preferred
Stock shall first be credited against the earliest accrued but unpaid dividend
due with respect to such shares that remains payable.
(4) If, for any taxable year, the Company elects to designate as a "capital
gain dividend" (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 (as determined for federal income tax purposes) paid or made available
for the year to holders of all series of stock (the "Total Dividends"), then the
portion of the Capital Gains Amount that shall be allocable to the holders of
Series B Preferred Stock shall be in proportion to the amount that the total
dividends (as determined for federal income tax purposes) paid or made available
to the holders of the Series B Preferred Stock for the year bears to the Total
Dividends. Since January 1, 1998, the Company has made a similar allocation with
respect to any undistributed long-term capital gains of the Company which are to
be included in its stockholders' long-term capital gains, based on the
allocation of the Capital Gains Amount which would have resulted if such
undistributed long-term capital gains had been distributed as "capital gains
dividends" by the Company to its stockholders.
(5) No full dividends will be declared or paid or set apart for payment on
any series of preferred stock ranking, as to dividends, on a parity with or
junior to the Series B Preferred
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Stock (other than a dividend in shares of any series of stock ranking junior to
the Series B 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 B Preferred Stock for all past
dividend periods and the then current dividend period. When dividends are not
paid in full (or a sum sufficient for such full payment is not so set apart)
upon the Series B Preferred Stock and the shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series B Preferred
Stock (including the Series A Preferred Stock), all dividends declared upon the
Series B Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with the Series B Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share of Series B Preferred
Stock and such other series of preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Series B Preferred
Stock and such other series of preferred stock (which shall not include any
accrual in respect of unpaid dividends for prior dividend periods if such
preferred stock does not have a cumulative dividend) bear to each other.
(6) Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series B 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 B 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 B 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 B Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares of any such stock) by the Company
(except by conversion into or exchange for other capital stock of the Company
ranking junior to the Series B Preferred Stock as to dividends and upon
liquidation, pursuant to Paragraph I of this Article THIRD to ensure the
Company's continued status as a REIT (as defined herein), or pursuant to
comparable Charter provisions with respect to other series of the Company's
stock).
F. Liquidation Preference. Upon any liquidation, dissolution or winding up
----------------------
of the affairs of the Company, voluntary or involuntary, the holders of shares
of Series B Preferred Stock will be 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 (the "Liquidation Preference"), plus an amount equal
to any accrued and unpaid dividends to the date of payment, before any
distribution of assets is made to holders of Common Stock or any other series of
capital stock of the Company that ranks junior to the Series B Preferred Stock
as to liquidation rights. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Series B Preferred Stock and any other shares of preferred stock of
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the Company ranking as to any such distribution on a parity with the Series B
Preferred Stock (including the Series A Preferred Stock) are not paid in full,
the holders of the Series B Preferred Stock and of such other shares of
Preferred Stock of the Company (including the Series A Preferred Stock) will
share ratably in any such distribution of assets of the Company in proportion to
the full respective preferential amounts to which they are entitled. After
payment to the holders of the Series B Preferred Stock of the full preferential
amounts of the liquidating distribution to which they are entitled, the holders
of the Series B Preferred Stock will be entitled to no further participation in
any distribution of assets by the Company.
If such payment shall have been made in full to all holders of shares of
Series B Preferred Stock (and any equity securities ranking on a parity with the
Series B Preferred Stock as to rights upon liquidation, dissolution or winding
up of the Company (including the Series A Preferred Stock)), the remaining
assets of the Company shall be distributed among the holders of any other
classes or series of stock ranking junior to the Series B Preferred Stock upon
liquidation, dissolution or winding up, according to their respective rights and
preferences and in each case according to their respective number of shares.
The consolidation or merger of the Company with or into any other corporation,
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.
In determining whether a distribution (other than upon voluntary or
involuntary liquidation) by dividend, redemption or other acquisition of shares
of stock of the Company or otherwise is permitted under the MGCL, no effect
shall be given to amounts that would be needed if the Company would be dissolved
at the time of the distribution to satisfy the preferential rights upon
distribution of holders of shares of stock of the Corporation whose preferential
rights upon distribution are superior to those receiving the distribution.
G. Redemption.
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(1) The Series B Preferred Stock is not redeemable prior to September 30,
2003. To ensure that the Company remains a qualified real estate investment
trust ("REIT") for federal and state income tax purposes, however, the Series B
Preferred Stocks shall be subject to the provisions of Paragraph I of this
Article THIRD pursuant to which Series B Preferred Stock owned by a stockholder
in violation of the restrictions set forth in Paragraph I of this Article THIRD
or certain other limitations shall automatically be transferred to a Trust for
the benefit of a Charitable Beneficiary (as defined in Paragraph I of this
Article THIRD) and the Company shall have the right to purchase such shares, as
provided in Paragraph I of this Article THIRD. On and after September 30, 2003,
the Company, at its option, upon not less than 30 nor more than 60 days' written
notice, may redeem shares of the Series B 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 accrued and unpaid dividends thereon to the date fixed for
redemption, without interest, to the extent the Company has funds legally
available therefor. The redemption price (other than the portion thereof
consisting of accrued and unpaid dividends) is payable solely out of the sale
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proceeds of other capital stock of the Company, which may include shares of
other series of Preferred Stock. For purposes of the preceding sentence,
"capital stock" means any common stock, Preferred Stock, depositary shares,
interests, participation or other ownership interests (however designated) and
any rights (other than debt securities convertible into or exchangeable for
equity securities) or options to purchase any of the foregoing. Holders of
Series B Preferred Stock to be redeemed shall surrender such Series B Preferred
Stock at the place designated in such notice and shall be entitled to the
redemption price and any accrued and unpaid dividends payable upon such
redemption following such surrender. If notice of redemption of any shares of
Series B Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Company in trust for the benefit of the
holders of any shares of Series B Preferred Stock so called for redemption, then
from and after the redemption date dividends will cease to accrue on such shares
of Series B Preferred Stock, such shares of Series B 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 B Preferred Stock is to be redeemed, the Series B
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.
(2) Unless full cumulative dividends on all shares of Series B 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 B
Preferred Stock shall be redeemed unless all outstanding shares of Series B
Preferred Stock are simultaneously redeemed and the Company shall not purchase
or otherwise acquire directly or indirectly any shares of Series B Preferred
Stock (except by exchange for capital stock of the Company ranking junior to the
Series B Preferred Stock as to dividends and upon liquidation); provided,
however, that the foregoing shall not prevent the purchase by the Company of
shares of Series B Preferred Stock in order to ensure that the Company continues
to meet the requirements for qualification as a REIT for federal and state
income tax purposes, or the purchase or acquisition of shares of Series B
Preferred Stock pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of Series B 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 B Preferred Stock in open-market
transactions duly authorized by the Board of Directors and effected in
compliance with applicable laws.
(3) 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 furnished by the Company will be
mailed, 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 B
Preferred Stock to be redeemed at their respective addresses as they appear on
the stock transfer records of the transfer agent. 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
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shares of Series B 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 B Preferred Stock to
be redeemed; (iv) the place or places where the Series B 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 B 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 B Preferred Stock held by such holder to be redeemed.
(4) Immediately prior to any redemption of Series B 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 B 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.
(5) From and after the redemption date (unless default shall be made by the
Company in providing for the payment of the redemption price plus accumulated
and unpaid dividends, if any), dividends shall cease to accumulate on the shares
of Series B Preferred Stock called for redemption and all rights of the holders
thereof (except the right to receive the redemption price plus accumulated and
unpaid dividends, if any) shall cease.
H. Voting Rights.
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(1) Holders of the Series B Preferred Stock will not have any voting rights,
except as set forth below.
(2) Whenever dividends on any shares of Series B Preferred Stock shall be in
arrears for six or more quarterly periods, whether or not consecutive, the
holders of such shares of Series B Preferred Stock (voting separately as a class
with all other series of Preferred Stock upon which like voting rights have been
conferred, including the Series A Preferred Stock, and are exercisable) will be
entitled to vote for the election of a total of two additional directors of the
Company at a special meeting called by the holders of record of at least 25% of
the Series B Preferred Stock or the holders of any other series of Preferred
Stock so in arrears (unless such request is received less than 90 days before
the date fixed for the next annual or special meeting of shareholders) or at the
next annual meeting of shareholders, and at each subsequent annual meeting until
all dividends accumulated on such shares of Series B Preferred Stock for the
past dividend periods and the then current dividend period shall have been fully
paid or declared and a sum sufficient for the payment thereof set aside for
payment. In such case, the entire Board of Directors of the Company will be
increased by two directors.
(3) So long as any shares of Series B Preferred Stock remain outstanding, the
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Company shall not, without the consent or the affirmative vote of the holders of
at least two-thirds of the shares of the Series B Preferred Stock outstanding at
the time, given in person or by proxy, either in writing or at a meeting (such
Series B Preferred Stock voting separately as a class), (i) authorize, create or
issue, or increase the authorized or issued amount of, any series of stock
ranking prior to such Series B Preferred Stock with respect to the payment of
dividends, or the distribution of assets on liquidation, dissolution or winding
up, or reclassify any authorized stock of the Company into any such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares or (ii) repeal, amend, or
otherwise change any of the provisions applicable to the Series B Preferred
Stock in any manner which materially and adversely affects the powers,
preferences, voting power or other rights or privileges of the Series B
Preferred Stock or the holders thereof; provided, however, that any increase in
the amount of the authorized Preferred Stock or the creation or issuance of
other series of Preferred Stock, or any increase in the amount of authorized
shares of the Series B Preferred Stock or of any other series of Preferred
Stock, in each case ranking on a parity, including the Series A Preferred Stock,
with or junior to the Series B Preferred Stock, shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers.
(4) 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 B 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.
(5) Except as expressly stated in these Articles Supplementary, the Series B
Preferred Stock will not have any relative, participating, optional or other
special voting rights and powers, and the consent of the holders thereof shall
not be required for the taking of any corporate action, including but not
limited to, any merger or consolidation involving the Company or a sale of all
or substantially all of the assets of the Company, irrespective of the effect
that such merger, consolidation or sale may have upon the rights, preferences or
voting power of the holders of the Series B Preferred Stock.
I. Restrictions on Ownership and Transfer to Preserve Tax Benefit.
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(1) Definitions. for the purposes of Paragraph I of these Articles
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Supplementary, the following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Series B Preferred
Stock by a Person who is or would be treated as an owner of such Series
B Preferred Stock either actually or constructively through the
application of Section 544 of the Code, as modified by Section
856(h)(1)(B) of the Code. The terms "Beneficial Owner," "Beneficially
Owns" and "Beneficially Owned" shall have the correlative meanings.
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"Charitable Beneficiary" shall mean one or more beneficiaries of a
Trust, as determined pursuant to Subparagraph I(3)(f) of these Articles
Supplementary, each of which shall be an organization described in
Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
All section references to the Code shall include any successor
provisions thereof as may be adopted from time to time.
"Constructive Ownership" shall mean ownership of Series B Preferred
Stock by a Person who is or would be treated as an owner of such Series
B Preferred Stock either actually or constructively through the
application of Section 318 of the Code, as modified by Section 856(d)(5)
of the Code. The terms "Constructive Owner," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
"IRS" shall mean the United States Internal Revenue Service.
"Market Price" shall mean the last reported sales price reported on
the New York Stock Exchange of the Series B Preferred Stock on the
trading day immediately preceding the relevant date, or if the Series B
Preferred Stock is not then traded on the New York Stock Exchange, the
last reported sales price of the Series B Preferred Stock on the trading
day immediately preceding the relevant date as reported on any exchange
or quotation system over which the Series B Preferred Stock may be
traded, or if the Series B Preferred Stock is not then traded over any
exchange or quotation system, then the market price of the Series B
Preferred Stock on the relevant date as determined in good faith by the
Board of Directors of the Company.
"Ownership Limit" shall mean 9.9% (by value or by number of shares,
whichever is more restrictive) of the outstanding Series B Preferred
Stock of the Company.
"Person" shall mean an individual, corporation, partnership,
limited liability company, estate, trust (including a trust qualified
under Section 401(a) or 501(c)(17) of the Code), a portion of a trust
permanently set aside for or to be used exclusively for the purposes
described in Section 642(c) of the Code, association, private foundation
within the meaning of Section 509(a) of the Code, joint stock company or
other entity; but does not include an underwriter acting in a capacity
as such in a public offering of shares of Series B Preferred Stock
provided that the ownership of such shares of Series B Preferred Stock
by such underwriter would not result in the Company being "closely held"
within the
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meaning of Section 856(h) of the Code, or otherwise result in the
Company failing to qualify as a REIT.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer (or other event) which results in a transfer to a
Trust, as provided in Subparagraph I(2)(b) of this these Articles
Supplementary, the Purported Record Transferee, unless the Purported
Record Transferee would have acquired or owned shares of Series B
Preferred Stock for another Person who is the beneficial transferee or
beneficial owner of such shares, in which case the Purported Beneficial
Transferee shall be such Person.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer (or other event) which results in a transfer to a
Trust, as provided in Subparagraph I(2)(b) of these Articles
Supplementary, the record holder of the Series B Preferred Stock if such
Transfer had been valid under Subparagraph I(2)(a) of these Articles
Supplementary.
"REIT" shall mean a real estate investment trust under Sections 856
through 860 of the Code and, for purposes of taxation of the Company
under applicable state law, comparable provisions of the law of such
state.
"Restriction Termination Date" shall mean the first day after the
date hereof on which the Board of Directors of the Company determines
that it is no longer in the best interests of the Company to attempt to,
or continue to, qualify as a REIT.
"Transfer" shall mean any sale, transfer, gift, assignment, devise
or other disposition of Series B Preferred Stock, including (i) the
granting of any option or entering into any agreement for the sale,
transfer or other disposition of Series B Preferred Stock or (ii) the
sale, transfer, assignment or other disposition of any securities (or
rights convertible into or exchangeable for Series B Preferred Stock),
whether voluntary or involuntary, whether such transfer has occurred of
record or of beneficial ownership or Beneficial Ownership or
Constructive Ownership (including but not limited to transfers of
interests in other entities which result in changes in Beneficial or
Constructive Ownership of Series B Preferred Stock), and whether such
transfer has occurred by operation of law or otherwise.
"Trust" shall mean each of the trusts provided for in Subparagraph
I(3) of these Articles Supplementary.
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"Trustee" shall mean any Person unaffiliated with the Company, or a
Purported Beneficial Transferee, or a Purported Record Transferee, that
is appointed by the Company to serve as trustee of a Trust.
(2) Restriction on Ownership and Transfers.
--------------------------------------
(a) Prior to the Restriction Termination Date:
(i) except as provided in Subparagraph I(9) of these Articles
Supplementary, no Person shall Beneficially Own Series B Preferred Stock in
excess of the Ownership Limit;
(ii) except as provided in Subparagraph I(9) of these Articles
Supplementary, no Person shall Constructively Own Series B Preferred Stock in
excess of the Ownership Limit;
(iii) no Person shall Beneficially or Constructively Own Series B
Preferred Stock which, taking into account any other capital stock of the
Company Beneficially or Constructively Owned by such Person, would result in the
Company being "closely held" within the meaning of Section 856(h) of the Code,
or otherwise failing to qualify as a REIT (including but not limited to
Beneficial or Constructive Ownership that would result in the Company owning
(actually or Constructively) an interest in a tenant that is described in
Section 856(d)(2)(B) of the Code if the income derived by the Company (either
directly or indirectly through one or more partnerships) from such tenant would
cause the Company to fail to satisfy any of the gross income requirements of
Section 856(c) of the Code or comparable provisions of any applicable state
law).
(b) If prior to the Restriction Termination Date, any Transfer (whether
or not such Transfer is the result of a transaction entered into through the
facilities of the New York Stock Exchange ("NYSE")) or other event occurs that,
if effective, would result in any Person Beneficially or Constructively Owning
Series B Preferred Stock in violation of Subparagraph I(2)(a) of these Articles
Supplementary, (1) then that number of shares of Series B Preferred Stock that
otherwise would cause such Person to violate Subparagraph I(2)(a) of these
Articles Supplementary (rounded up to the nearest whole share) shall be
automatically transferred to a Trust for the benefit of a Charitable
Beneficiary, as described in Subparagraph I(3), effective as of the close of
business on the business day prior to the date of such Transfer or other event,
and such Purported Beneficial Transferee shall thereafter have no rights in such
shares or (2) if, for any reason, the transfer to the Trust described in clause
(1) of this sentence is not automatically effective as provided therein to
prevent any Person from Beneficially or Constructively Owning Series B Preferred
Stock in violation of Subparagraph I(2)(a) of these Articles Supplementary, then
the Transfer of that number of shares of Series B Preferred Stock that otherwise
would cause any Person to violate Subparagraph I(2)(a) shall be void ab initio,
and the Purported Beneficial Transferee shall have no rights in such shares.
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(c) Notwithstanding any other provisions contained herein, prior to the
Restriction Termination Date, any Transfer of Series B Preferred Stock (whether
or not such Transfer is the result of a transaction entered into through the
facilities of the NYSE) that, if effective, would result in the capital stock of
the Company being beneficially owned by less than 100 Persons (determined
without reference to any rules of attribution) shall be void ab initio, and the
intended transferee shall acquire no rights in such Series B Preferred Stock.
(3) Transfers of Series B Preferred Stock in Trust.
----------------------------------------------
(a) Upon any purported Transfer or other event described in
Subparagraph I(2)(b) of these Articles Supplementary, such Series B Preferred
Stock shall be deemed to have been transferred to the Trustee in his capacity as
trustee of a Trust for the exclusive benefit of one or more Charitable
Beneficiaries. Such transfer to the Trustee shall be deemed to be effective as
of the close of business on the business day prior to the purported Transfer or
other event that results in a transfer to the Trust pursuant to Subparagraph
I(2)(b). The Trustee shall be appointed by the Company and shall be a Person
unaffiliated with the Company, any Purported Beneficial Transferee or any
Purported Record Transferee. Each Charitable Beneficiary shall be designated by
the Company as provided in Subparagraph I(3)(f) of these Articles Supplementary.
(b) Series B Preferred Stock held by the Trustee shall be issued and
outstanding Series B Preferred Stock of the Company. The Purported Beneficial
Transferee or Purported Record Transferee shall have no rights in the shares of
Series B Preferred Stock held by the Trustee. The Purported Beneficial
Transferee or Purported Record Transferee shall not benefit economically from
ownership of any shares held in trust by the Trustee, shall have no rights to
dividends and shall not possess any rights to vote or other rights attributable
to the shares of Series B Preferred Stock held in the Trust.
(c) The Trustee shall have all voting rights and rights to dividends
with respect to Series B Preferred Stock held in the Trust, which rights shall
be exercised for the exclusive benefit of the Charitable Beneficiary. Any
dividend or distribution paid to or on behalf of the Purported Record Transferee
or Purported Beneficial Transferee prior to the discovery by the Company that
shares of Series B Preferred Stock have been transferred to the Trustee shall be
paid to the Trustee upon demand, and any dividend or distribution declared but
unpaid shall be paid when due to the Trustee with respect to such Series B
Preferred Stock. Any dividends or distributions so paid over to the Trustee
shall be held in trust for the Charitable Beneficiary.
The Purported Record Transferee and Purported Beneficial Transferee
shall have no voting rights with respect to the Series B Preferred Stock held in
the Trust and, subject to Maryland law, effective as of the date the Series B
Preferred Stock has been transferred to the Trustee, the Trustee shall have the
authority (at the Trustee's sole discretion) (i) to rescind as void any vote
cast by a Purported Record Transferee with respect to such Series B Preferred
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Stock prior to the discovery by the Company that the Series B Preferred Stock
has been transferred to the Trustee and (ii) to recast such vote in accordance
with the desires of the Trustee acting for the benefit of the Charitable
Beneficiary; provided, however, that if the Company has already taken
irreversible corporate action, then the Trustee shall not have the authority to
rescind and recast such vote. Notwithstanding any other provision of these
Articles Supplementary to the contrary, until the Company has received
notification that the Series B Preferred Stock has been transferred into a
Trust, the Company shall be entitled to rely on its share transfer and other
stockholder records for purposes of preparing lists of stockholders entitled to
vote at meetings, determining the validity and authority of proxies and
otherwise conducting votes of stockholders.
(d) Within 20 days of receiving notice from the Company that shares of
Series B Preferred Stock have been transferred to the Trust, the Trustee of the
Trust shall sell the shares of Series B Preferred Stock held in the Trust to a
Person, designated by the Trustee, whose ownership of the shares of Series B
Preferred Stock will not violate the ownership limitations set forth in
Subparagraph I(2)(a). Upon such sale, the interest of the Charitable Beneficiary
in the shares of Series B Preferred Stock sold shall terminate and the Trustee
shall distribute the net proceeds of the sale to the Purported Record Transferee
and to the Charitable Beneficiary as provided in this Subparagraph I(3)(d). The
Purported Record Transferee shall receive the lesser of (1) the price paid by
the Purported Record Transferee for the shares of Series B Preferred Stock in
the transaction that resulted in such transfer to the Trust (or, if the event
which resulted in the transfer to the Trust did not involve a purchase of such
shares of Series B Preferred Stock at Market Price, the Market Price of such
shares of Series B Preferred Stock on the day of the event which resulted in the
transfer of such shares of Series B Preferred Stock to the Trust) and (2) the
price per share received by the Trustee (net of any commissions and other
expenses of sale) from the sale or other disposition of the shares of Series B
Preferred Stock held in the Trust. Any net sales proceeds in excess of the
amount payable to the Purported Record Transferee shall be immediately paid to
the Charitable Beneficiary together with any dividends or other distributions
thereon. If, prior to the discovery by the Company that shares of such Series B
Preferred Stock have been transferred to the Trustee, such shares of Series B
Preferred Stock are sold by a Purported Record Transferee then (i) such shares
of Series B Preferred Stock shall be deemed to have been sold on behalf of the
Trust and (ii) to the extent that the Purported Record Transferee received an
amount for such shares of Series B Preferred Stock that exceeds the amount that
such Purported Record Transferee was entitled to receive pursuant to this
Subparagraph I(3)(d), such excess shall be paid to the Trustee upon demand.
(e) Series B Preferred Stock transferred to the Trustee shall be deemed
to have been offered for sale to the Company, or its designee, at a price per
share equal to the lesser of (i) the price paid by the Purported Record
Transferee for the shares of Series B Preferred Stock in the transaction that
resulted in such transfer to the Trust (or, if the event which resulted in the
transfer to the Trust did not involve a purchase of such shares of Series B
Preferred Stock at Market Price, the Market Price of such shares of Series B
Preferred Stock on the day of the event which resulted in the transfer of such
shares of Series B Preferred Stock to the Trust) and (ii) the
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<PAGE>
Market Price on the date the Company, or its designee, accepts such offer. The
Company shall have the right to accept such offer until the Trustee has sold the
shares of Series B Preferred Stock held in the Trust pursuant to Subparagraph
I(3)(d). Upon such a sale to the Company, the interest of the Charitable
Beneficiary in the shares of Series B Preferred Stock sold shall terminate and
the Trustee shall distribute the net proceeds of the sale to the Purported
Record Transferee and any dividends or other distributions held by the Trustee
with respect to such Series B Preferred Stock shall thereupon be paid to the
Charitable Beneficiary.
(f) By written notice to the Trustee, the Company shall designate one
or more nonprofit organizations to be the Charitable Beneficiary of the interest
in the Trust such that (i) the Series B Preferred Stock held in the Trust would
not violate the restrictions set forth in Subparagraph I(2)(a) in the hands of
such Charitable Beneficiary.
(4) Remedies For Breach. If the Board of Directors or a committee thereof
-------------------
or other designees if permitted by the MGCL shall at any time determine in good
faith that a Transfer or other event has taken place in violation of
Subparagraph I(2) of these Articles Supplementary or that a Person intends to
acquire, has attempted to acquire or may acquire beneficial ownership
(determined without reference to any rules of attribution), Beneficial Ownership
or Constructive Ownership of any shares of Series B Preferred Stock of the
Company in violation of Subparagraph I(2) of these Articles Supplementary, the
Board of Directors or a committee thereof or other designees if permitted by the
MGCL shall take such action as it deems advisable to refuse to give effect or to
prevent such Transfer, including, but not limited to, causing the Company to
redeem shares of Series B Preferred Stock, refusing to give effect to such
Transfer on the books of the Company or instituting proceedings to enjoin such
Transfer; provided, however, that any Transfers (or, in the case of events other
than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in
violation of Subparagraph I(2)(a) of these Articles Supplementary, shall
automatically result in the transfer to a Trust as described in Subparagraph
I(2)(b) and any Transfer in violation of Subparagraph I(2)(c) shall
automatically be void ab initio irrespective of any action (or non-action) by
the Board of Directors.
(5) Notice of Restricted Transfer. Any Person who acquires or attempts to
-----------------------------
acquire shares of Series B Preferred Stock in violation of Subparagraph I(2) of
these Articles Supplementary, or any Person who is a Purported Beneficial
Transferee such that an automatic transfer to a Trust results under Subparagraph
I(2)(b) of these Articles Supplementary, shall immediately give written notice
to the Company of such event and shall provide to the Company such other
information as the Company may request in order to determine the effect, if any,
of such Transfer or attempted Transfer on the Company's status as a REIT.
(6) Owners Required To Provide Information. Prior to the Restriction
--------------------------------------
Termination Date each Person who is a beneficial owner or Beneficial Owner or
Constructive Owner of Series B Preferred Stock and each Person (including the
shareholder of record) who is holding Series B Preferred Stock for a beneficial
owner or Beneficial Owner or Constructive Owner shall provide
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<PAGE>
to the Company such information that the Company may request, in good faith, in
order to determine the Company's status as a REIT.
(7) Remedies Not Limited. Nothing contained in these Articles Supplementary
--------------------
(but subject to Subparagraph I(13) of these Articles Supplementary) shall limit
the authority of the Board of Directors to take such other action as it deems
necessary or advisable to protect the Company and the interests of its
shareholders by preservation of the Company's status as a REIT.
(8) Ambiguity. In the case of an ambiguity in the application of any of the
---------
provisions of this Paragraph I of these Articles Supplementary, including any
definition contained in Subparagraph I(1), the Board of Directors shall have the
power to determine the application of the provisions of this Paragraph I with
respect to any situation based on the facts known to it (subject, however, to
the provisions of Subparagraph I(13) of these Articles Supplementary). In the
event Paragraph I requires an action by the Board of Directors and these
Articles Supplementary fail to provide specific guidance with respect to such
action, the Board of Directors shall have the power to determine the action to
be taken so long as such action is not contrary to the provisions of Paragraph
I. Absent a decision to the contrary by the Board of Directors (which the Board
may make in its sole and absolute discretion), if a Person would have (but for
the remedies set forth in Subparagraph I(2)) acquired Beneficial or Constructive
Ownership of Series B Preferred Stock in violation of Subparagraph I(2)(a), such
remedies (as applicable) shall apply first to the shares of Series B Preferred
Stock which, but for such remedies, would have been actually owned by such
Person, and second to shares of Series B Preferred Stock which, but for such
remedies, would have been Beneficially Owned or Constructively Owned (but not
actually owned) by such Person, pro rata among the Persons who actually own such
shares of Series B Preferred Stock based upon the relative number of the shares
of Series B Preferred Stock held by each such Person.
(9) Exceptions.
----------
(a) Subject to Subparagraph I(2)(a)(iii), the Board of Directors, in
its sole discretion, may exempt a Person from the limitation on a Person
Beneficially Owning shares of Series B Preferred Stock in violation of
Subparagraph I(2)(a)(i) if the Board of Directors obtains any representations
and undertakings from such Person as are reasonably necessary to ascertain that
no individual's Beneficial Ownership of such shares of Series B Preferred Stock
will violate Section I(2)(a)(i) or that any such violation will not cause the
Company to fail to qualify as a REIT under the Code, and agrees that any
violation of such representations or undertaking (or other action which is
contrary to the restrictions contained in Subparagraph I(2) of these Articles
Supplementary) or attempted violation will result in such Series B Preferred
Stock being transferred to a Trust in accordance with Subparagraph I(2)(b) of
these Articles Supplementary.
(b) Subject to Subparagraph I(2)(a)(iii), the Board of Directors, in
its sole discretion, may exempt a Person from the limitation on a Person
Constructively Owning Series B
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<PAGE>
Preferred Stock in violation of Subparagraph I(2)(a)(ii), if the Company obtains
any representations and undertakings from such Person as are reasonably
necessary to ascertain that such Person does not and will not own, actually or
Constructively, an interest in a tenant of the Company (or a tenant of any
entity owned in whole or in part by the Company) that would cause the Company to
own, actually or Constructively more than a 9.9% interest (as set forth in
Section 856(d)(2)(B) of the Code) in such tenant and that any violation or
attempted violation will result in such Series B Preferred Stock being
transferred to a Trust in accordance with Subparagraph I(2)(b) of these Articles
Supplementary. Notwithstanding the foregoing, the inability of a Person to make
the certification described in this Subparagraph I(9)(b) shall not prevent the
Board of Directors, in its sole discretion, from exempting such Person from the
limitation on a Person Constructively Owning Series B Preferred Stock in
violation of Subparagraph I(2)(a)(ii) if the Board of Directors determines that
the resulting application of Section 856(d)(2)(B) of the Code would affect the
characterization of less than 0.5% of the gross income (as such term is used in
Section 856(c)(2) of the Code) of the Company in any taxable year, after taking
into account the effect of this sentence with respect to all other Series B
Preferred Stock to which this sentence applies.
(c) Prior to granting any exception pursuant to Subparagraph I(9)(a) or
(b) of these Articles Supplementary, the Board of Directors may require a ruling
from the Internal Revenue Service, or an opinion of counsel, in either case in
form and substance satisfactory to the Board of Directors in its sole
discretion, as it may deem necessary or advisable in order to determine or
ensure the Company's status as a REIT.
(10) Preemptive Rights. No holder of shares of Series B Preferred Stock
-----------------
shall have any preemptive or preferential right to subscribe for or to purchase
any additional shares of any series, or any bonds or convertible securities of
any nature.
(11) Legends. Each certificate for Series B Preferred Stock shall bear the
-------
following legends:
CLASSES OF STOCK
"THE COMPANY IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OF CAPITAL STOCK
CONSISTING OF COMMON STOCK AND ONE OR MORE SERIES OF PREFERRED STOCK. THE
BOARD OF DIRECTORS IS AUTHORIZED TO DETERMINE THE PREFERENCES, LIMITATIONS
AND RELATIVE RIGHTS OF EACH SERIES OF PREFERRED STOCK BEFORE THE ISSUANCE
OF ANY SUCH SERIES OF PREFERRED STOCK. THE COMPANY WILL FURNISH, WITHOUT
CHARGE, TO ANY SHAREHOLDER MAKING A REQUEST THEREFOR, A COPY OF THE
COMPANY'S CHARTER AND A FULL STATEMENT WITH RESPECT TO DESIGNATIONS AND ANY
PREFERENCES, CONVERSION OR OTHER RIGHTS, VOTING POWERS, RESTRICTIONS,
LIMITATIONS AS TO
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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, (i) THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES
BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT SET, AND (ii) THE AUTHORITY
OF THE BOARD OF DIRECTORS TO SET SUCH RIGHTS AND PREFERENCES OF SUBSEQUENT
SERIES. REQUEST FOR SUCH WRITTEN STATEMENT MAY BE DIRECTED TO THE SECRETARY
OF THE COMPANY AT ITS PRINCIPAL OFFICE."
RESTRICTION ON OWNERSHIP AND TRANSFER
"THE SHARES OF SERIES B PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND
TRANSFER FOR THE PURPOSE OF THE COMPANY'S MAINTENANCE OF ITS STATUS AS A
REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT
AS EXPRESSLY PROVIDED IN THE ARTICLES SUPPLEMENTARY FOR THE SERIES B
PREFERRED STOCK, (i) NO PERSON MAY BENEFICIALLY OWN SHARES OF THE COMPANY'S
SERIES B PREFERRED STOCK IN EXCESS OF 9.9% (BY VALUE OR BY NUMBER OF
SHARES, WHICHEVER IS MORE RESTRICTIVE) OF THE OUTSTANDING SERIES B
PREFERRED STOCK OF THE COMPANY; (ii) NO PERSON MAY CONSTRUCTIVELY OWN
SHARES OF THE COMPANY'S SERIES B PREFERRED STOCK IN EXCESS OF 9.9% (BY
VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF THE
OUTSTANDING SERIES B PREFERRED STOCK OF THE COMPANY; (iii) NO PERSON MAY
BENEFICIALLY OR CONSTRUCTIVELY OWN SERIES B PREFERRED STOCK THAT, TAKING
INTO ACCOUNT ANY OTHER CAPITAL STOCK OF THE COMPANY BENEFICIALLY OR
CONSTRUCTIVELY OWNED BY SUCH PERSON, WOULD RESULT IN THE COMPANY BEING
"CLOSELY HELD" UNDER SECTION 856(h) OF THE CODE OR OTHERWISE CAUSE THE
COMPANY TO FAIL TO QUALIFY AS A REIT; AND (iv) NO PERSON MAY TRANSFER
SERIES B PREFERRED STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL STOCK
OF THE COMPANY BEING OWNED BY FEWER THAN 100 PERSONS. ANY PERSON WHO
BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO BENEFICIALLY OR
CONSTRUCTIVELY OWN SERIES B PREFERRED STOCK WHICH CAUSES OR WILL CAUSE A
PERSON TO BENEFICIALLY OR
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<PAGE>
CONSTRUCTIVELY OWN SERIES B PREFERRED STOCK IN EXCESS OF THE ABOVE
LIMITATIONS MUST IMMEDIATELY NOTIFY THE COMPANY. IF ANY OF THE RESTRICTIONS
ON TRANSFER OR OWNERSHIP ARE VIOLATED, THE SERIES B PREFERRED STOCK
REPRESENTED HEREBY IN EXCESS OF SUCH RESTRICTIONS WILL BE AUTOMATICALLY
TRANSFERRED TO THE TRUSTEE OF A TRUST FOR THE BENEFIT OF ONE OR MORE
CHARITABLE BENEFICIARIES. IN ADDITION, THE COMPANY MAY REDEEM SHARES UPON
THE TERMS AND CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE
DISCRETION IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A
TRANSFER OR OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE.
FURTHERMORE, UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN
VIOLATION OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL
TERMS IN THIS LEGEND WHICH ARE DEFINED IN THE ARTICLES SUPPLEMENTARY FOR
THE SERIES B PREFERRED STOCK SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN
SUCH ARTICLES SUPPLEMENTARY, AS THE SAME MAY BE AMENDED FROM TIME TO TIME,
A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND OWNERSHIP, WILL
BE FURNISHED TO EACH HOLDER OF SERIES B PREFERRED STOCK ON REQUEST AND
WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY
OF THE COMPANY AT ITS PRINCIPAL OFFICE."
(12) Severability. If any provision of this Paragraph I or any
------------
application of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with the determination of
such court.
(13) NYSE. Nothing in this Paragraph I shall preclude the settlement of
----
any transaction entered into through the facilities of the NYSE. The shares of
Series B Preferred Stock that are the subject of such transaction shall continue
to be subject to the provisions of this Paragraph I after such settlement.
(14) Applicability of Paragraph I. The provisions set forth in this
----------------------------
Paragraph I shall apply to the Series B Preferred Stock notwithstanding any
contrary provisions of the Series B Preferred Stock provided for elsewhere in
these Articles Supplementary.
J. Conversion. The Series B Preferred Stock is not convertible into
----------
or exchangeable for any other property or securities of the Company.
18
<PAGE>
FOURTH: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned Executive Vice President and Chief Financial Officer
of the Company acknowledges these Articles Supplementary to be the corporate act
of the Company and, as to all matters or facts required to be verified under
oath, the undersigned Executive Vice President and Chief Financial Officer of
the Company 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.
19
<PAGE>
IN WITNESS WHEREOF, HEALTH CARE PROPERTY INVESTORS, INC., has caused
these Articles Supplementary to be executed under seal in its name and on its
behalf by its Executive Vice President and Chief Financial Officer and attested
to by its Secretary on this 1st day of September, 1998.
HEALTH CARE PROPERTY INVESTORS, INC.
By: _______________________________
Name: James G. Reynolds
Title: Executive Vice President and
Chief Financial Officer
Attest: ____________________________
Name: Edward J. Henning
Title: Senior Vice President, General
Counsel and Corporate Secretary
20
