<PAGE> 1
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
EXCEL REALTY TRUST, INC.
(Exact Name of Registrant as Specified in Its Charter)
MARYLAND 33-0160389
(State of Incorporation) (I.R.S. Employer
Identification No.)
16955 VIA DEL CAMPO, SUITE 110 92127
SAN DIEGO, CALIFORNIA (Zip Code)
(Address of Principal
Executive Offices)
If this form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A(c)(1) please
check the following box. / /
If this form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933 pursuant to
General Instruction A(c)(2) please check the following box. / /
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
------------------- ------------------------------
Shares of $_____ Series A Cumulative New York Stock Exchange
Convertible Preferred Stock
(Liquidation Preference $25.00 Per Share)
Securities to be registered pursuant to Section 12(g) of the Act:
None
<PAGE> 2
INFORMATION REQUIRED IN REGISTRATION STATEMENT
-----------------------
Item 1. Description of Registrant's Securities to be Registered.
- -----------------------------------------------------------------
Excel Realty Trust, Inc., a Maryland corporation (the "Company"), will
issue up to 3,450,000 shares of $____ Series A Cumulative Convertible Preferred
Stock (Liquidation Preference $25.00 Per Share) of the Company (the "Series A
Preferred Stock") pursuant to a Registration Statement on Form S-3 (No.
33-59195) under the Securities Act of 1933, as amended (the "Securities Act"),
filed with the Securities and Exchange Commission (the "Commission") on May 9,
1995, as amended by Amendment No. 1 filed with the Commission on May 25, 1995,
Amendment No. 2 filed with the Commission on June 1, 1995, Amendment No. 3 filed
with the Commission on June 12, 1995, and any prospectus and prospectus
supplement filed in accordance with Rule 424(b) under the Securities Act (the
"Registration Statement"). A description of the Series A Preferred Stock
meeting the requirements of this item appears at pages S-5 through S-6 and pages
S-31 through S-36 of the Prospectus Supplement dated January 17, 1997 in the
Registration Statement and is incorporated herein by reference.
Item 2. Exhibits.
- ------------------
3.1. Form of Articles Supplementary.
3.2. Amended and Restated Bylaws.*
4.1. Form of Series A Preferred Stock Certificate.
* Previously filed with the Commission and incorporated herein by
reference from the Company's Registration Statement on Form S-3 (File No.
33-59195) filed with the Commission on May 9, 1995, as amended by Amendment No.
1 filed with the Commission on May 25, 1995, Amendment No. 2 filed with the
Commission on June 1, 1995, and Amendment No. 3 filed with the Commission on
June 12, 1995.
2
<PAGE> 3
SIGNATURE
---------
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Company has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: January 30, 1997
EXCEL REALTY TRUST, INC.
By: /s/
---------------------------
Richard B. Muir
Executive Vice President
and Secretary
3
<PAGE> 1
EXHIBIT 3.1
EXCEL REALTY TRUST, INC.
ARTICLES SUPPLEMENTARY CLASSIFYING
3,450,000 SHARES OF PREFERRED STOCK AT $_________
SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK
Pursuant to Section 2-105 of the Maryland General Corporation Law
("MGCL"), Excel Realty Trust, Inc., a corporation organized and existing under
the laws of the State of Maryland and having its principal office in the State
of Maryland located at c/o The Prentice Hall Corporation System, Maryland, 11
East Chase Street, Baltimore City, Maryland 21202, hereby certifies to the
State Department of Assessments and Taxation of Maryland that:
FIRST: Under a power contained in Article V of the charter of the
Corporation (the "Charter"), and pursuant to the provisions of Section 2-105 of
the MGCL, the Board of Directors of the Corporation by unanimous written
consent dated as of January __, 1997, adopted resolutions appointing a
committee (the "Committee") of the Board of Directors comprised of Gary B.
Sabin and Richard B. Muir, and delegating to the Committee, to the fullest
extent permitted by Maryland law and the Corporation's Charter and Bylaws, all
powers of the Board with respect to classifying or reclassifying any unissued
shares of Preferred Stock, and the setting of the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends and
other distributions, qualifications and terms and conditions of redemption of
the securities to be so classified or reclassified, and determining the terms
and conditions upon which such securities are to be offered, sold and issued.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee on January __, 1997, duly adopted resolutions by
unanimous written consent classifying 3,450,000 shares of Preferred Stock of
the Corporation into a single series of Preferred Stock, to be designated as
$_________ Series A Cumulative Convertible Preferred Stock, which resolution is
as follows:
RESOLVED, that a series of Preferred Stock of this
Corporation, to be designated "$_________ Series A Cumulative Convertible
Preferred Stock", be and hereby is created to consist of 3,450,000 shares, the
preferences, conversion and other rights,
<PAGE> 2
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of which are as follows:
Section 1. Number of Shares and Designation. This series of
Preferred Stock shall, be designated as $_________ Series A Cumulative
Convertible Preferred Stock (the "Series A Preferred Stock") and up to Three
Million Four Hundred Fifty Thousand (3,450,000) shall be the number of shares
of such Preferred Stock constituting such series, subject, however, to increase
or decrease upon further action of the Board of Directors in the future as
permitted by the Charter and applicable law.
Section 2. Definitions. For purposes of the Series A Preferred
Stock, the following terms shall have the meanings indicated:
"Act" shall mean the Securities Act of 1933, as amended.
"Affiliate" of a person means a person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
common control with, the person specified.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to perform
any of its responsibilities with respect to the Series A Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York, New
York are not required to be open.
"Call Date" shall have the meaning set forth in paragraph (b) of
Section 5 hereof.
"Common Stock" shall mean the common stock, $.01 par value per share,
of the Corporation.
"Constituent Person" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Conversion Price" shall mean the conversion price per share of Common
Stock for which each share of Series A Preferred Stock is convertible, as such
Conversion Price may be adjusted
-2-
<PAGE> 3
pursuant to paragraph (d) of Section 7 hereof. The initial conversion price
shall be $__________ (equivalent to a conversion rate of __________ shares of
Common Stock for each share of Series A Preferred Stock).
"Current Market Price" of publicly traded shares of Common Stock or
any other class or series of capital stock or other security of the Corporation
or of any similar security of any other issuer for any day shall mean the last
reported sales price, regular way on such day, or, if no sale takes place on
such day, the average of the reported closing, bid and asked prices regular way
on such day, in either case as reported on the New York Stock Exchange ("NYSE")
or, if such security is not listed or admitted for trading on the NYSE, on the
principal national securities exchange on which such security is listed or
admitted for trading or, if not listed or admitted for trading on any national
securities exchange, on the National Market of the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or, if such
security is not quoted on such National Market, the average of the closing bid
and asked prices on such day in the over-the-counter market as reported by
NASDAQ or, if bid and asked prices for such security on such day shall not have
been reported through NASDAQ, the average of the bid and asked prices on such
day as furnished by any NYSE member firm regularly making a market in such
security selected for such purpose by the Chief Executive Officer or the Board
of Directors or if any class or series of securities are not publicly traded,
the fair value of the shares of such class as determined reasonably and in good
faith by the Board of Directors of the Corporation.
"Distribution" shall have the meaning set forth in paragraph (d)(iii)
of Section 7 hereof.
"Dividend Payment Date" shall mean, with respect to each Dividend
Period, the fifteenth day of January, April, July and October in each year,
commencing, on ______________, 1997; provided, however, that if any Dividend
Payment Date falls on any day other than a Business Day, the dividend payment
due on such Dividend Payment Date shall be paid on the Business Day immediately
following such Dividend Payment Date.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend
- 3 -
<PAGE> 4
Period, which shall commence on the Issue Date and end on and include
_____________, 1997).
"Equity Stock" shall have the meaning set forth in the Charter.
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a share of Common Stock during five (5) consecutive Trading Days
selected by the Corporation commencing not more than twenty (20) Trading Days
before, and ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or distribution requiring
such computation. The term "'ex' date", when used with respect to any issuance
or distribution, means the first day on which the share of Common Stock trades
regular way, without the right to receive such issuance or distribution, on the
exchange or in the market, as the case may be, used to determine that day's
Current Market Price.
"Funds Available for Distribution" shall mean funds from operations
(net income, computed in accordance with generally accepted accounting
principles excluding gains or losses from debt restructuring and sales of
property, plus depreciation and amortization) minus non- revenue generating
capital expenditures, as determined by the Board of Directors on a basis
consistent with the policies and practices
- 4 -
<PAGE> 5
adopted by the Corporation for reporting publicly its results of operations and
financial condition.
"Issue Date" shall mean the date on which shares of Series A Preferred Stock
are first issued by the Corporation.
"Junior Stock" shall mean the Common Stock and any other class or
series of capital stock of the Corporation over which the shares of Series A
Preferred Stock have preference or priority in the payment of dividends or in
the distribution of assets on any liquidation, dissolution or winding up of the
Corporation.
"Non-Electing Share" shall have the meaning set forth in paragraph (e)
of Section 7 hereof.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 8 hereof.
"Permitted Common Stock Cash Distributions" means annual cash
dividends and annual cash distributions paid on Common Stock after [___________,
199_] not in excess of the sum of the Corporation's cumulative undistributed net
earnings at [___________, 199_,] plus the cumulative amount of Funds Available
for Distribution after [___________, 199_,] minus the cumulative amount of
dividends accumulated, accrued or paid on the Series A Preferred Stock or any
other class of Preferred Stock after [_________, 199_].
"Person" shall mean any individual, firm, partnership, corporation or
other entity and shall include any successor (by merger or otherwise) of such
entity.
"Series A Preferred Stock" shall have the meaning set forth in Section
1 hereof.
"Set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its accounting
ledgers of any accounting or bookkeeping entry which indicates, pursuant to a
declaration of dividends or other distribution by the Board of Directors, the
allocation of funds to be so paid on any series or class of capital stock of
the Corporation.
- 5 -
<PAGE> 6
shall mean placing such funds in a separate account or delivering such funds to
a disbursing, paying or other similar agent.
"Trading Day", as to any securities, shall mean any day on which such
securities are traded on the NYSE or, if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities exchange
on which such securities are listed or admitted or, if such securities are not
listed or admitted for trading on any national securities exchange, on the
- 6 -
<PAGE> 7
National Market of NASDAQ or, if such securities are not quoted on such
National Market, in the securities market in which such securities are traded.
"Transaction" shall have the meaning set forth in paragraph (e) of
Section 7 hereof.
"Transfer Agent" means Boston EquiServe Limited Partnership or such
other entity with aggregate capital, surplus and undivided profits, as shown on
its last published report, of at least $50,000,000 as may be designated by the
Board of Directors or their designee as the transfer agent for the Series A
Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth in Section 9
hereof.
Section 3. Dividends.
(a) The holders of Series A Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds legally available for that purpose, cumulative dividends payable in cash
in an amount per share of Series A Preferred Stock equal to the greater of (i)
$________ per quarter (equivalent to $________ per annum) or (ii) the cash
dividends paid or payable on the number of shares of Common Stock, or portion
thereof, into which a share of Series A Preferred Stock is convertible, in each
case with appropriate proration for partial quarters. The amount referred in
clause (ii) of this paragraph (a) with respect to each Dividend Period shall be
determined as of the applicable Dividend Payment Date by multiplying the number
of shares of Common Stock, or portion thereof calculated to the fourth decimal
point, into which a share of Series A Preferred Stock would be convertible at
the opening of business on such Dividend Payment Date (based on the Conversion
Price then in effect) by the quarterly cash dividend payable or paid for such
Dividend Period in respect of a share of Common Stock outstanding as of the
record date for the payment of dividends on the Common Stock with respect to
such Dividend Period or, if different, with respect to the most recent
quarterly period for which dividends with respect to the Common Stock have been
declared. Such dividends shall be cumulative from the Issue Date, whether or
not in any Dividend Period or Periods such dividends shall be declared or there
shall be funds of the Corporation legally available for the payment of such
dividends, and shall be payable quarterly in arrears on the
- 7 -
<PAGE> 8
Dividend Payment Dates, commencing on the first Dividend Payment Date after the
Issue Date. Each such dividend shall be payable in arrears to the holders of
record of the Series A Preferred Stock, as they appear on the stock records of
the Corporation at the close of business on a record date which shall be not
more than 60 days prior to the applicable Dividend Payment Date and shall be
fixed by the Board of Directors to coincide with the record date for the
regular quarterly dividends, if any, payable with respect to the Common Stock.
Accumulated, accrued and unpaid dividends for any past Dividend Periods may be
declared and paid at any time, without reference to any regular Dividend
Payment Date, to holders of record on such date, which date shall not precede
by more than 45 days the payment date thereof, as may be fixed by the Board of
Directors. The amount of accumulated, accrued and unpaid dividends on any
share of Series A Preferred Stock, or fraction thereof, at any date shall be
the amount of any dividends thereon calculated at the applicable rate to and
including such date, whether or not earned or declared, which have not been
paid in cash.
(b) The amount of dividends payable per share of Series A
Preferred Stock for each full Dividend Period shall be computed by dividing the
annual dividend by four. The amount of dividends payable per share of Series A
Preferred Stock for the initial Dividend Period, or any other period shorter or
longer than a full Dividend Period, shall be computed ratably on the basis of
twelve 30-day months and a 360-day year. Holders of Series A Preferred Stock
shall not be entitled to any dividends, whether payable in cash, property or
stock, in excess of cumulative dividends, as herein provided, on the Series A
Preferred Stock. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series A
Preferred Stock that may be in arrears.
(c) So long as any of the shares of Series A Preferred
Stock are outstanding, no dividends, except as described in the immediately
following sentence, shall be declared or paid or set apart for payment by the
Corporation or other distribution of cash or other property declared or made
directly or indirectly by the Corporation with respect to any class or series
of Parity Stock for any period unless dividends equal to the full amount of
accumulated, accrued and unpaid dividends have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof have
been or contemporaneously are set apart for such payment on the Series A
Preferred Stock for all Dividend Periods terminating on or prior to the
Dividend
- 8 -
<PAGE> 9
Payment Date with respect to such class or series of Parity Stock. When
dividends are not paid in full or a sum sufficient for such payment is not set
apart, as aforesaid, all dividends declared upon the Series A Preferred Stock
and all dividends declared upon any other class or series of Parity Stock shall
be declared ratably in proportion to the respective amounts of dividends
accumulated, accrued and unpaid on the Series A Preferred Stock and
accumulated, accrued and unpaid on such Parity Stock.
(d) So long as any of the shares of Series A Preferred
Stock are outstanding, no dividends (other than dividends or distributions paid
in shares of or options, warrants or rights to subscribe for or purchase shares
of Junior Stock) shall be declared or paid or set apart for payment by the
Corporation or other distribution of cash or other property declared or made
directly or indirectly by the Corporation with respect to any shares of Junior
Stock, nor shall any shares of Junior Stock be redeemed, purchased or otherwise
acquired (other than a redemption,
- 9 -
<PAGE> 10
purchase or other acquisition of Common Stock made for purposes of an employee
incentive or benefit plan of the Corporation or any subsidiary, or as permitted
under Article VII of the Charter) for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any shares of any
such stock) directly or indirectly by the Corporation (except by conversion
into or exchange for Junior Stock), nor shall any other cash or other property
otherwise be paid or distributed to or for the benefit of any holder of shares
of Junior Stock in respect thereof, directly or indirectly, by the Corporation
unless in each case (i) the full cumulative dividends (including all
accumulated, accrued and unpaid dividends) on all outstanding shares of Series
A Preferred Stock and any other Parity Stock of the Corporation shall have been
paid or such dividends have been declared and set apart for payment for all
past Dividend Periods with respect to the Series A Preferred Stock and all past
dividend periods with respect to such Parity Stock and (ii) sufficient funds
shall have been paid or set apart for the payment of the full dividend for the
current Dividend Period with respect to the Series A Preferred Stock and the
current dividend period with respect to such Parity Stock.
(e) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the Code)
any portion (the "Capital Gains Amount") of the dividends paid or made
available for the year to holders of all classes of stock (the "Total
Dividends"), then the portion of the Capital Gains Amount that shall be
allocable to holders of the Class A Preferred Stock shall be the amount that
the total dividends paid or made available to the holders of the Class A
Preferred Stock for the year bears to the Total Dividends.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, before any
payment or distribution of the assets of the Corporation (whether capital or
surplus) shall be made to or set apart for the holders of Junior Stock, the
holders of shares of Series A Preferred Stock shall be entitled to receive
Twenty-Five Dollars ($25.00) per share of Series A Preferred Stock plus an
amount equal to all dividends (whether or not earned or declared) accumulated,
accrued and unpaid thereon to the date of final distribution to such holders;
but such holders shall not be entitled to any further payment. Until the
holders of the Series A Preferred Stock have been paid the liquidation
preference in full, no payment will be
- 10 -
<PAGE> 11
made to any holder of Junior Stock upon the liquidation, dissolution or winding
up of the Corporation. If, upon any liquidation, dissolution or winding up of
the Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of Series A Preferred Stock shall be
insufficient to pay in full the preferential amount aforesaid and liquidating
payments on any other shares of any class or series of Parity Stock, then such
assets, or the proceeds thereof, shall be distributed among the holders of
Series A Preferred Stock and any such other Parity Stock ratably in the same
proportion as the respective amounts that would be payable on such Series A
Preferred Stock and any such other Parity Stock if all amounts payable thereon
were paid in full. For the purposes of this Section 4, (i) a consolidation or
merger of the Corporation with one or more corporations, (ii) a sale or
transfer of all or substantially all of the Corporation's assets, or (iii) a
statutory share exchange shall not be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of any shares of
Parity Stock, upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders of
Series A Preferred Stock and any Parity Stock, as provided in this Section 4,
any other series or class or classes of Junior Stock shall, subject to the
respective terms thereof, be entitled to receive any and all assets remaining
to be paid or distributed, and the holders of the Series A Preferred Stock and
any Parity Stock shall not be entitled to share therein.
(c) In determining whether a distribution (other than
upon voluntary or involuntary liquidation) by dividend, redemption or other
acquisition of shares of stock of the Corporation or otherwise is permitted
under the MGCL, no effect shall be given to amounts that would be needed, if
the Corporation were to be dissolved at the time of the distribution, to
satisfy the preferential rights upon dissolution of holders of shares of stock
of the Corporation whose preferential rights upon dissolution are superior to
those receiving the distribution.
Section 5. Redemption at the Option of the Corporation.
(a) Except as otherwise permitted under Article VII of
the Charter, shares of Series A Preferred Stock shall not be redeemable by the
Corporation prior to ____________, 2002. On and
- 11 -
<PAGE> 12
after _______________, 2002, the Corporation, at its option, may redeem shares
of Series A Preferred Stock, in whole or from time to time in part, as set
forth herein, subject to the provisions described below:
(i) Shares of Series A Preferred Stock may be
redeemed, in whole, or in part, at the option of the Corporation, at
any time on or after _____________, 2002 by issuing and delivering to
each holder for each share of Series A Preferred Stock to be redeemed
such number of authorized but previously unissued shares of Common
Stock as equals the liquidation preference (excluding any accumulated,
accrued and unpaid dividends, if any, to the Call Date (as defined in
paragraph (b) below), which are to be paid in cash, whether or not
earned or declared, as provided below) per share of Series A Preferred
Stock divided by the Conversion Price as in effect as of the opening
of business on the Call Date; or
(ii) Shares of Series A Preferred Stock may be
redeemed, in whole or in part, at the option of the Corporation at any
time on or after ___________, 2002 out of funds legally available
therefor at a redemption price payable in cash equal to $25.00 per
share of Series A Preferred Stock (plus an amount equal to all
accumulated, accrued and unpaid dividends, if any, to the Call Date,
whether or not earned or declared, as provided below).
(b) Shares of Series A Preferred Stock shall be redeemed
by the Corporation on the date specified in the notice to holders required
under paragraph (d) of this Section 5 (the "Call Date"). The Call Date shall
be selected by the Corporation, shall be specified in the notice of redemption
and shall be not less than 30 days nor more than 60 days after the date notice
of redemption is sent by the Corporation. Upon any redemption of shares of
Series A Preferred Stock pursuant to paragraph (a)(i) or (a)(ii) of this
Section 5, the Corporation shall pay in cash to the holder of such shares an
amount equal to all accumulated, accrued and unpaid dividends, if any, to the
Call Date, whether or not earned or declared. Immediately prior to authorizing
any redemption of the Series A Preferred Stock, and as a condition precedent
for such redemption, the Company, by resolution of its Board of Directors,
shall declare a mandatory dividend on the Series A Preferred Stock payable in
cash on the Call Date in an amount equal to all accumulated, accrued and unpaid
dividends as of the Call Date on
- 12 -
<PAGE> 13
the Series A Preferred Stock to be redeemed, which amount shall be added to the
redemption price. If the Call Date falls after a dividend payment record date
and prior to the corresponding Dividend Payment Date, then each holder of
Series A Preferred Stock at the close of business on such dividend payment
record date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such
shares prior to such Dividend Payment Date. Except as provided above, the
Corporation shall make no payment or allowance for accumulated or accrued
dividends on shares of Series A Preferred Stock called for redemption or on the
shares of Common Stock issued upon such redemption.
(c) If full cumulative dividends on all outstanding
shares of Series A Preferred Stock and any other class or series of Parity
Stock of the Corporation have not been paid or declared and set apart for
payment, except as otherwise permitted under Article VII of the Charter, no
shares of Series A Preferred Stock may be redeemed unless all outstanding
shares of Series A Preferred Stock are simultaneously redeemed and neither the
Corporation nor any affiliate of the Corporation may purchase or acquire shares
of Series A Preferred Stock, otherwise than pursuant to a purchase or exchange
offer made on the same terms to all holders of shares of Series A Preferred
Stock.
(d) If the Corporation shall redeem shares of Series A
Preferred Stock pursuant to paragraph (a) of this Section 5, notice of such
redemption shall be given to each holder of record of the shares to be
redeemed. Such notice shall be provided by first class mail, postage prepaid,
at such holder's address as the same appears on the stock records of the
Corporation, or by publication in The Wall Street Journal or The New York
Times, or if neither such newspaper is then being published, any other daily
newspaper of national circulation not less than 35 nor more than 60 days prior
to the Call Date. If the Corporation elects to provide such notice by
publication, it shall also promptly mail notice of such redemption to the
holders of the shares of Series A Preferred Stock to be redeemed. Neither the
failure to mail any notice required by this paragraph (d), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect the
sufficiency of the notice or the validity of the proceedings for redemption
with respect to the other holders. Any notice which was mailed in the manner
herein provided shall be conclusively presumed to have been duly given on the
date mailed whether or not the holder receives the notice. Each such mailed or
published notice
- 13 -
<PAGE> 14
shall state, as appropriate: (1) the Call Date; (2) the number of shares of
Series A Preferred Stock to be redeemed and, if fewer than all such shares held
by such holder are to be redeemed, the number of such shares to be redeemed
from such holder; (3) whether redemption will be for shares of Common Stock
pursuant to paragraph (a)(i) of this Section 5 or for cash pursuant to
paragraph (a)(ii) of this Section 5, and, if redemption will be for Common
Stock, the number of shares of Common Stock (or fraction of a share of Common
Stock) to be issued with respect to each share of Series A Preferred Stock to
be redeemed; (4) the place or places at which certificates for such shares are
to be surrendered for certificates representing shares of Common Stock; (5) the
then-current Conversion Price; and (6) that dividends on the shares of Series A
Preferred Stock to be redeemed shall cease to accrue on such Call Date except
as otherwise provided herein. Notice having been published or mailed as
aforesaid, from and after the Call Date (unless the Corporation shall fail to
issue and make available the number of shares of Common Stock and/or amount of
cash necessary to effect such redemption, including all accumulated, accrued
and unpaid dividends to the Call Date, whether or not earned or declared), (i)
except as otherwise provided herein, dividends on the shares of Series A
Preferred Stock so called for redemption shall cease to accumulate or accrue on
the shares of Series A Preferred Stock called for redemption (except that, in
the case of a Call Date after a dividend record date and prior to the related
Dividend Payment Date, holders of Series A Preferred Stock on the dividend
record date will be entitled on such Dividend Payment Date to receive the
dividend payable on such shares), (ii) said shares shall no longer be deemed to
be outstanding, and (iii) all rights of the holders thereof as holders of
Series A Preferred Stock of the Corporation shall cease (except the rights to
receive the shares of Common Stock and/or cash payable upon such redemption,
without interest thereon, upon surrender and endorsement of their certificates
if so required and to receive any dividends payable thereon). The
Corporation's obligation to provide shares of Common Stock and/or cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust
company (which may be an affiliate of the Corporation) that has an office in
the Borough of Manhattan, The City of New York, or in Los Angeles or San Diego,
California, and that has, or is an affiliate of a bank or trust company that
has, a capital and surplus of at least $50,000,000, such number of shares of
Common Stock and such amount of cash as is necessary for such redemption, in
trust, with irrevocable instructions that such shares of Common Stock and/or
cash be
- 14 -
<PAGE> 15
applied to the redemption of the shares of Series A Preferred Stock so called
for redemption. In the case of any redemption pursuant to paragraph (a)(i) of
this Section 5, at the close of business on the Call Date, each holder of
shares of Series A Preferred Stock to be redeemed (unless the Corporation
defaults in the delivery of the shares of Common Stock or cash payable on such
Call Date) shall be deemed to be the record holder of the number of shares of
Common Stock into which such shares of Series A Preferred Stock are to be
converted at redemption, regardless of whether such holder has surrendered the
certificates representing the shares of Series A Preferred Stock to be so
redeemed. No interest shall accrue for the benefit of the holders of shares of
Series A Preferred Stock to be redeemed on any cash so set aside by the
Corporation. Subject to applicable escheat laws, any such cash unclaimed at
the end of two years from the Call Date shall revert to the general funds of
the Corporation, after which reversion the holders of shares of Series A
Preferred Stock so called for redemption shall look only to the general funds
of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and if
the notice shall so state), such certificates shall be exchanged for
certificates representing shares of Common Stock and/or any cash (without
interest thereon) for which such shares have been redeemed in accordance with
such notice. If fewer than all the outstanding shares of Series A Preferred
Stock are to be redeemed, shares to be redeemed shall be selected by the
Corporation from outstanding shares of Series A Preferred Stock not previously
called for redemption by lot or, with respect to the number of shares of Series
A Preferred Stock held of record by each holder of such shares, pro rata (as
nearly as may be) or by any other method as may be determined by the Board of
Directors in its discretion to be equitable. If fewer than all the shares of
Series A Preferred Stock represented by any certificate are redeemed, then a
new certificate representing the unredeemed shares shall be issued without cost
to the holders thereof.
(e) In the case of any redemption pursuant to paragraph
(a)(i) of this Section 5, no fractional shares of Common Stock or scrip
representing fractions of shares of Common Stock shall be issued upon
redemption of the shares of Series A Preferred Stock. Instead of any
fractional interest in a share of Common
- 15 -
<PAGE> 16
Stock that would otherwise be deliverable upon redemption of shares of Series A
Preferred Stock, the Corporation shall pay to the holder of such share an
amount in cash (computed to the nearest cent) based upon the Current Market
Price of the Common Stock on the Trading Day immediately preceding the Call
Date. If more than one share shall be surrendered for redemption at one time
by the same holder, the number of full shares of Common Stock issuable upon
redemption thereof shall be computed or, the basis of the aggregate number of
shares of Series A Preferred Stock so surrendered.
(f) In the case of any redemption pursuant to paragraph
(a)(i) of this Section 5, the Corporation covenants that any shares of Common
Stock issued upon redemption of shares of Series A Preferred Stock shall be
validly issued, fully paid and non-assessable. The Corporation shall use all
commercially reasonable efforts to list, subject to official notice of
issuance, the shares of Common Stock required to be delivered upon any such
redemption of shares of Series A Preferred Stock, prior to such redemption,
upon each national securities exchange, if any, upon which the outstanding
shares of Common Stock are listed at the time of such delivery.
The Corporation shall take any action reasonably necessary to
ensure that any shares of Common Stock issued upon the redemption of Series A
Preferred Stock are freely transferable and not subject to any resale
restrictions under the Act, or any applicable state securities or blue sky laws
(other than any shares of Common Stock issued upon redemption of any Series A
Preferred Stock which are held by an "affiliate" (as defined in Rule 144 under
the Act) of the Corporation).
Section 6. Stock To Be Retired. All shares of Series A
Preferred Stock which shall have been issued and reacquired in any manner by
the Corporation shall be restored to the status of authorized, but unissued
shares of Preferred Stock, without designation as to series. The Corporation
may also retire any unissued shares of Series A Preferred Stock, and such
shares shall then be restored to the status of authorized but unissued shares
of Preferred Stock, without designation as to series.
Section 7. Conversion.
- 16 -
<PAGE> 17
Holders of shares of Series A Preferred Stock shall have the right to
convert all or a portion of such shares into shares of Common Stock, as
follows:
(a) Subject to and upon compliance with the provisions of
this Section 7, a holder of shares of Series A Preferred Stock shall have the
right, at such holder's option, at anytime to convert such shares, in whole or
in part, into the number of fully paid and nonassessable shares of authorized
but previously unissued shares of Common Stock obtained by dividing the
aggregate liquidation preference (excluding any accumulated, accrued and unpaid
dividends) of such shares by the Conversion Price (as in effect at the time and
on the date provided for in the last clause of paragraph (b) of this Section 7)
by surrendering such shares to be converted, such surrender to be made in the
manner provided in paragraph (b) of this Section 7; provided, however, that the
right to convert shares of Series A Preferred Stock called for redemption
pursuant to Section 5 shall terminate at the close of business on the Call Date
fixed for such redemption, unless the Corporation shall default in making
payment of shares of Common Stock and/or cash payable upon such redemption
under Section 5 hereof.
(b) In order to exercise the conversion right, the holder
of each share of Series A Preferred Stock to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied by
written notice to the Corporation that the holder thereof elects to convert
such share of Series A Preferred Stock. Unless the shares issuable on
conversion are to be issued in the same name as the name in which such share of
Series A Preferred Stock is registered, each share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation demonstrating that such
taxes have been paid).
Holders of shares of Series A Preferred Stock at the close of
business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment record
date and prior to such Dividend Payment Date. However, shares of Series A
Preferred
- 17 -
<PAGE> 18
Stock surrendered for conversion during the period between the close of
business on any dividend payment record date and the opening of business on the
corresponding Dividend Payment Date (except shares converted after the issuance
of notice of redemption with respect to a Call Date during such period, such
shares of Series A Preferred Stock being entitled to such dividend on the
Dividend Payment Date) must be accompanied by payment of an amount equal to the
dividend payable on such shares on such Dividend Payment Date. A holder of
shares of Series A Preferred Stock on a dividend payment record date who (or
whose transferee) tenders any such shares for conversion into shares of Common
Stock on such Dividend Payment Date will receive the dividend payable by the
Corporation on such shares of Series A Preferred Stock on such date, and the
converting holder need not include payment of the amount of such dividend upon
surrender of shares of Series A Preferred Stock for conversion. Except as
provided above, the Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the shares of Common Stock issued upon such conversion.
As promptly as practicable after the surrender of certificates
for shares of Series A Preferred Stock as aforesaid, the Corporation shall
issue and shall deliver at such office to such holder, or send on such holder's
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such shares of Series A Preferred
Stock in accordance with provisions of this Section 7, and any fractional
interest in respect of a share of Common Stock arising upon such conversion
shall be settled as provided in paragraph (c) of this Section 7.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the
certificates for shares of Series A Preferred Stock shall have been surrendered
and such notice received by the Corporation as aforesaid, and the person or
persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the shares represented thereby at
such time on such date and such conversion shall be at the Conversion Price in
effect at such time on such date unless the stock transfer books of the
Corporation shall be closed on that date, in which event such person or persons
shall be deemed to have become such holder or holders of record at the close of
business on
- 18 -
<PAGE> 19
the next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date on which such
shares shall have been surrendered and such notice received by the Corporation.
(c) No fractional share of Common Stock or scrip
representing fractions of a share of Common Stock shall be issued upon
conversion of the shares of Series A Preferred Stock. Instead of any
fractional interest in a share of Common Stock that would otherwise be
deliverable upon the conversion of shares of Series A Preferred Stock, the
Corporation shall pay to the holder of such share an amount in cash based upon
the Current Market Price of the Common Stock on the Trading Day immediately
preceding the date of conversion. If more than one share shall be surrendered
for conversion at one time by the same holder, the number of full shares of
Common Stock issuable upon conversion thereof shall be computed on the basis of
the aggregate number of shares of Series A Preferred Stock so surrendered.
(d) The Conversion Price shall be adjusted from time to
time as follows:
(i) If the Corporation shall after
the Issue Date (A) pay a dividend or make a distribution on
its capital stock in shares of Common Stock, (B) subdivide its
outstanding Common Stock into a greater number of shares, (C)
combine its outstanding Common Stock into a smaller number of
shares or (D) issue any shares of capital stock by
reclassification of its Common Stock, the Conversion Price in
effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to
receive such dividend or distribution or at the opening of
business on the day following the day on which such
subdivision, combination or reclassification becomes
effective, as the case may be, shall be adjusted so that the
holder of any share of Series A Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the
number of shares of Common Stock (or fraction of a share of
Common Stock) that such holder would have owned or have been
entitled to receive after the happening of any of the events
described above had such share of Series A Preferred Stock
been converted immediately prior to the record date in the
case of a dividend or distribution or the effective date in
the case of a subdivision,
- 19 -
<PAGE> 20
combination or reclassification. An adjustment made pursuant
to this paragraph (d)(i) of this Section 7 shall become
effective immediately after the opening of business on the day
next following, the record date (except as provided in
paragraph (h) below) in the case of a dividend or distribution
and shall become effective immediately after the opening of
business on the day next following the effective date in the
case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue
after the Issue Date rights, options or warrants to all
holders of Common Stock entitling them (for a period expiring
within 45 days after the record date described below in this
paragraph (d)(ii) of this Section 7) to subscribe for or
purchase Common Stock at a price per share less than the Fair
Market Value per share of the Common Stock on the record date
for the determination of stockholders entitled to receive such
rights or warrants, then the Conversion Price in effect at the
opening of business on the day next following such record date
shall be adjusted to equal the price determined by multiplying
(A) the Conversion Price in effect immediately prior to the
opening of business on the day following the date fixed for
such determination by (B) a fraction, the numerator of which
shall be the sum of (X) the number of shares of Common Stock
outstanding on the close of business on the date fixed for
such determination and (Y) the number of shares that the
aggregate proceeds to the Corporation from the exercise of
such rights or warrants for Common Stock would purchase at
such Fair Market Value, and the denominator of which shall be
the sum of (XX) the number of shares of Common Stock
outstanding on the close of business on the date fixed for
such determination and (YY) the number of additional shares of
Common Stock offered for subscription or purchase pursuant to
such rights or warrants. Such adjustment shall become
effective immediately after the opening of business on the day
next following such record date (except as provided in
paragraph (h) below). In determining whether any rights or
warrants entitle the holders of Common Stock to subscribe for
or purchase Common Stock at less than such Fair Market Value,
there shall be taken into account any consideration received
by the Corporation upon issuance and upon exercise of such
rights or
- 20 -
<PAGE> 21
warrants, the value of such consideration, if other than cash,
to be determined in good faith by the Board of Directors.
(iii) If the Corporation shall
distribute to all holders of its Common Stock any shares of
capital stock of the Corporation (other than Common Stock) or
evidence of its indebtedness or assets (including cash, but
excluding cash dividend or distributions out of current or
accumulated funds from operations to the extent the same
constitute Permitted Common Stock Cash Distributions and cash
dividends which result in a payment of an equal cash dividend
to the holders of the Series A Preferred Stock pursuant to
subparagraph (ii) of Section 3(a) hereof) or rights or warrants
to subscribe for or purchase any of its securities (excluding
those rights and warrants issued to all holders of Common Stock
entitling them for a period expiring within 45 days after the
record date referred to in paragraph (d)(ii) of this Section 7
above to subscribe for or purchase Common Stock, which rights
and warrants are referred to in and treated under such
paragraph (d)(ii) above) (any of the foregoing being
hereinafter in this paragraph (d)(iii) called the
"Distribution"), then in each such case the Conversion Price
shall be adjusted so that it shall equal the price determined
by multiplying (A) the Conversion Price in effect immediately
prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such
Distribution by (B) a fraction, the numerator of which shall be
the Fair Market Value per share of Common Stock on the record
date mentioned below less the then fair market value (as
determined by the Board of Directors, whose determination shall
be conclusive and described in a Board resolution), of the
portion of the capital stock or assets or evidences of
indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator of
which shall be the Fair Market Value per share of Common Stock
on the record date mentioned below. Such adjustment shall
become effective immediately at the opening of business on the
Business Day next following (except as provided in paragraph
(h) below) the record date for the determination of
stockholders entitled to receive such Distribution. For the
purposes of this paragraph (d)(iii), the distribution of a
right or warrant to subscribe or purchase any of the
- 21 -
<PAGE> 22
Corporation's securities, which is distributed not only to the
holders of the Common Stock on the date fixed for the
determination of stockholders entitled to such Distribution
of such right or warrant, but also is distributed with shares
of Common Stock delivered to a Person converting shares of
Series A Preferred Stock after such determination date, shall
not require an adjustment of the Conversion Price pursuant to
this paragraph (d)(iii); provided that if on the date, if any,
on which a person converting shares of Series A Preferred
Stock such person would no longer be entitled to receive such
right or warrant with shares of Common Stock (other than as a
result of the termination of all such right or warrant), a
distribution of such rights or warrants shall be deemed to
have occurred and the Conversion Price shall be adjusted as
provided in this paragraph (d)(iii) and such day shall be
deemed to be "the date fixed for the determination of the
stockholders entitled to receive such distribution" and "the
record date" within the meaning of the two preceding
sentences.
(iv) No adjustment in the Conversion
Price shall be required unless such adjustment would require a
cumulative increase or decrease of at least 1% in such price;
provided, however, that any adjustments that by reason of this
paragraph (d)(iv) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment
until made; and provided, further, that any adjustment shall
be required and made in accordance with the provisions of this
Section 7 (other than this paragraph (d)(iv)) not later than
such time as may be required in order to preserve the tax-free
nature of a distribution to the holders of shares of Common
Stock. Notwithstanding any other provisions of this Section
7, the Corporation shall not be required to make any
adjustment of the Conversion Price for the issuance of any
shares of Common Stock pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of
the Corporation and the investment of additional optional
amounts in shares of Common Stock under such plan. All
calculations under this Section 7 shall be made to the nearest
cent (with $.005 being rounded upward) or to the nearest
one-tenth of a share (with .05 of a share being rounded
upward), as the case may be. Anything in this paragraph (d)
of this
- 22 -
<PAGE> 23
Section 7 to the contrary notwithstanding, the Corporation
shall be entitled, to the extent permitted by law, to make
such reductions in the Conversion Price, in addition to those
required by this paragraph (d), as it in its discretion shall
determine to be advisable in order that any stock dividends,
subdivision of shares, reclassification or combination of
shares, distribution of rights or warrants to purchase stock
or securities, or a distribution of other assets (other than
cash dividends) hereafter made by the Corporation to its
stockholders shall not be taxable, or if that is not
possible, to diminish any income taxes that are otherwise
payable because of such event.
(e) If the Corporation shall be a party to any
transaction (including without limitation a merger, consolidation, statutory
share exchange, issuer or self tender offer for all or a substantial portion of
the shares of Common Stock outstanding, sale of all or substantially all of the
Corporation's assets or recapitalization of the Common Stock, but excluding any
transaction as to which paragraph (d)(i) of this Section 7 applies) (each of
the foregoing being referred to herein as a "Transaction"), in each case as a
result of which shares of Common Stock shall be converted into the right to
receive stock, securities or other property (including, cash or any combination
thereof), each share of Series A Preferred Stock which is not converted into
the right to receive stock, securities or other property in connection with
such Transaction shall thereupon be convertible into the kind and amount of
shares of stock, securities and other property (including cash or any
combination thereof) receivable upon such consummation, by a holder of that
number of shares of Common Stock into which one share of Series A Preferred
Stock was convertible immediately prior to such Transaction, assuming such
holder of Common Stock (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an affiliate of a Constituent Person and (ii) failed
to exercise such holder's rights of election, if any, as to the kind or amount
of stock, securities and other property (including cash) receivable upon such
Transaction (provided that if the kind or amount of stock, securities and other
property (including cash) receivable upon such Transaction is not the same for
each share of Common Stock of the Corporation held immediately prior to such
Transaction by other than a Constituent Person or an affiliate thereof and in
respect of which such rights of election
- 23 -
<PAGE> 24
shall not have been exercised ("Non-Electing Share"), then for the purpose of
this paragraph (e) the kind and amount of stock, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing Share
shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares). The Corporation shall not be a party to
any Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for the
benefit of the holders of the Series A Preferred Stock that will contain
provisions enabling the holders of the Series A Preferred Stock that remain
outstanding after such Transaction to convert into the consideration received
by holders of Common Stock at the Conversion Price in effect immediately prior
to such Transaction. The provisions of this paragraph (e) shall similarly
apply to successive Transactions.
- 24 -
<PAGE> 25
(f) If:
(i) the Corporation shall declare a dividend (or
any other distribution) on the Common Stock (other than cash dividends
and cash distributions to the extent the same constitute Permitted
Common Stock Cash Distributions); or
(ii) the Corporation shall authorize the granting
to the holders of the Common Stock of rights or warrants to subscribe
for or purchase any shares of any class or series of capital stock or
any other rights or warrants; or
(iii) there shall be any reclassification of the
Common Stock or any consolidation or merger to which the Corporation
is a party and for which approval of any stockholders of the
Corporation is required, or a statutory share exchange, or an issuer
or self tender offer by the Corporation for all or a substantial
portion of its outstanding shares of Common Stock (or an amendment
thereto changing the maximum number of shares sought or the amount or
type of consideration being offered therefor) or the sale or transfer
of all or substantially all of the assets of the Corporation as an
entirety; or
(iv) there shall occur the voluntary or
involuntary liquidation, dissolution or winding up of the Corporation,
then the Corporation shall cause to be filed with the Transfer Agent and shall
cause to be mailed to each holder of shares of Series A Preferred Stock at such
holder's address as shown on the stock records of the Corporation, as promptly
as possible, but at least 15 days prior to the applicable date hereinafter
specified, a notice stating (A) the record date for the payment of such
dividend, distribution or rights or warrants, or, if a record date is not
established, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights or warrants are to be
determined or (B) the date on which such reclassification, consolidation,
merger, statutory share exchange, sale, transfer, liquidation, dissolution or
winding up is expected to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be entitled
- 25 -
<PAGE> 26
to exchange their shares of Common Stock for securities or other property, if
any, deliverable upon such reclassification, consolidation, merger, statutory
share exchange, sale, transfer, liquidation, dissolution or winding up or (C)
the date on which such tender offer commenced, the date on which such tender
offer is scheduled to expire unless extended, the consideration offered and the
other material terms thereof (or the material terms of any amendment thereto).
Failure to give or receive such notice or any defect therein shall not affect
the legality or validity of the proceedings described in this Section 7.
(g) Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall promptly file with the Transfer Agent an
officer's certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such certificate,
the Corporation shall prepare a notice of such adjustment of the Conversion
Price setting forth the adjusted Conversion Price and the effective date such
adjustment becomes effective and shall mail such notice of such adjustment of
the Conversion Price to each holder of shares of Series A Preferred Stock at
such holder's last address as shown on the stock records of the Corporation.
(h) In any case in which paragraph (d) of this
Section 7 provides that an adjustment shall become effective on the day next
following the record date for an event, the Corporation may defer until the
occurrence of such event (A) issuing to the holder of any share of Series A
Preferred Stock converted after such record date and before the occurrence of
such event the additional Common Stock issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Stock
issuable upon such conversion before giving, effect to such adjustment and (B)
paying to such holder any amount of cash in lieu of any fraction pursuant to
paragraph (c) of this Section 7.
(i) There shall be no adjustment of the
Conversion Price in case of the issuance of any capital stock of the
Corporation in a reorganization, acquisition or other similar transaction
except as specifically set forth in this Section 7. If any action or
transaction would require adjustment of the Conversion Price pursuant to more
than one paragraph of this Section 7, only one adjustment shall be made and
such adjustment
- 26 -
<PAGE> 27
shall be the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action
affecting the Common Stock, other than action described in this Section 7, that
in the opinion of the Board of Directors would materially adversely affect the
conversion rights of the holders of Series A Preferred Stock, the Conversion
Price for the Series A Preferred Stock may be adjusted, to the extent permitted
by law, in such manner, if any, and at such time as the Board of Directors, in
its sole discretion, may determine to be equitable under the circumstances.
(k) The Corporation shall at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Stock solely for the purpose of effecting
conversion of the Series A Preferred Stock, the full number of shares of Common
Stock deliverable upon the conversion of all outstanding shares of Series A
Preferred Stock not theretofore converted into Common Stock. For purposes of
this paragraph (k), the number of shares of Common Stock that shall be
deliverable upon the conversion of all outstanding shares of Series A Preferred
Stock shall be computed as if at the time of computation all such outstanding
shares were held by a single holder.
The Corporation covenants that any shares of Common
Stock issued upon conversion of the shares of Series A Preferred Stock shall be
validly issued, fully paid and non-assessable.
The Corporation shall use all reasonable efforts to
list the shares of Common Stock required to be delivered upon conversion of the
shares of Series A Preferred Stock, prior to such delivery, upon each national
securities exchange, if any, upon which the outstanding shares of Common Stock
are listed at the time of such delivery.
The Corporation shall take any action reasonably
necessary to ensure that any shares of Common Stock issued upon conversion of
shares of Series A Preferred Stock are freely transferable and not subject to
any resale restrictions under the Act, or any applicable state securities or
blue sky laws (other than any shares of Common Stock which are held by an
"affiliate" (as defined in Rule 144 under the Act)).
- 27 -
<PAGE> 28
(l) The Corporation will pay any and all
documentary stamp or similar issue or transfer taxes payable in respect of the
issue or delivery of shares of Common Stock or other securities or property on
conversion or redemption of shares of Series A Preferred Stock pursuant hereto;
provided, however, that the Corporation shall not be required to pay any tax
that may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock or other securities or property in a name
other than that of the holder of the shares of Series A Preferred Stock to be
converted or redeemed, and no such issue or delivery shall be made unless and
until the person requesting such issue or delivery has paid to the Corporation
the amount of any such tax or established, to the reasonable satisfaction of
the Corporation, that such tax has been paid.
Section 8. Ranking. Any class or series of capital
stock of the Corporation shall be deemed to rank:
(a) prior or senior to the Series A Preferred
Stock, as to the payment of dividends and as to distribution of assets upon
liquidation, dissolution or winding up, if the holders of such class or series
shall be entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of Series A Preferred Stock;
(b) on a parity with the Series A Preferred
Stock, as to the payment of dividends and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per share thereof be
different from those of the Series A Preferred Stock, if the holders of such
class of stock or series and the Series A Preferred Stock shall be entitled to
the receipt of dividends and of amounts distributable upon liquidation,
dissolution or winding up in proportion to their respective amounts of accrued
and unpaid dividends per share or liquidation preferences, without preference
or priority one over the other ("Parity Stock"); and
(c) junior to the Series A Preferred Stock, as to
the payment of dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such stock or series shall be Common Stock or if
the holders of Series A Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon liquidation, dissolution or winding
up, as the
- 28 -
<PAGE> 29
case may be, in preference or priority to the holders of shares of such class
or series ("Junior Stock").
Section 9. Voting.
(a) If and whenever six quarterly dividends
(whether or not consecutive) payable on the Series A Preferred Stock or any
series or class of Parity Stock shall be in arrears (which shall, with respect
to any such quarterly dividend, mean that any such dividend has not been paid
in full), whether or not earned or declared, the number of directors then
constituting the Board of Directors shall be increased by two (if not already
increased by reason of a similar arrearage with respect to any Parity Stock)
and the holders of shares of Series A Preferred Stock, together with the
holders of shares of every other series of Parity Stock (any other such series,
the "Voting Preferred Stock") entitled to vote on the matter, voting as a
single class regardless of series, shall be entitled, to fill the vacancies
thereby created, to elect two additional directors, at the next annual meeting
of stockholders or special meeting held in place thereof, or at a special
meeting of the holders of the Series A Preferred Stock and the Voting Preferred
Stock entitled to vote thereon, called as hereinafter provided, and at each
succeeding annual meeting at which their respective successors are to be
elected. Each such vacancy shall be apportioned among the classes of directors
to prevent stacking in any one class and to ensure that all director in each of
the classes of directors are as equal in number as possible. Each such
director, as a qualification for election as such (and regardless of how
elected) shall submit to the Board a duly-executed, valid, binding and
enforceable letter of resignation from the Board, to be effective immediately
upon the date on which all arrears in dividends on the Series A Preferred Stock
and the Voting Preferred Stock then outstanding and holding similar rights in
respect of the election of additional directors shall have been paid and
dividends thereon for the current quarterly dividend period shall have been
paid or declared and set apart for payment, whereupon the right of the holders
of the Series A Preferred Stock and the Voting Preferred Stock to elect such
additional two directors shall cease (but subject always to the same provision
for the vesting, of such voting rights in the case of any similar future
arrearages in six quarterly dividends), and the terms of office of all persons
elected as directors by the holders of the Series A Preferred Stock and the
Voting Preferred Stock shall, upon the effectiveness of their respective
letters of resignation, forthwith terminate, and the number of the Board of
- 29 -
<PAGE> 30
Directors shall be reduced accordingly. At any time after such voting power
shall have been so vested in the holders of Series A Preferred Stock and the
Voting Preferred Stock, the Secretary of the Corporation may, and upon the
written request of any holder of Series A Preferred Stock (addressed to the
Secretary at the principal office of the Corporation) shall, call a special
meeting of the holders of the Series A Preferred Stock and of the Voting
Preferred Stock for the election of the two Directors to be elected by them as
herein provided, such call to be made by notice similar to that provided in the
Bylaws of the Corporation for a special meeting of the stockholders or as
required by law. If any such special meeting required to be called as above
provided shall not be called by the Secretary within 20 days after receipt of
any such request, then any holder of Series A Preferred Stock may call such
meeting, upon the notice above provided, and for that purpose shall have access
to the stock books of the Corporation. The Directors elected at any such
special meeting shall hold office until the next annual meeting of the
stockholders at which their respective successors are to be elected. If any
vacancy shall occur among the Directors elected by the holders of the Series A
Preferred Stock and the Voting Preferred Stock entitled to vote thereon, a
successor shall be elected by the Board of Directors, upon the nomination of
the then remaining Director elected by the holders of the Series A Preferred
Stock and such Voting Preferred Stock or the successor of such remaining
Director, to serve for the remainder of the term of the director creating the
vacancy, subject however to earlier resignation as herein provided.
(b) So long as any shares of Series A Preferred
Stock are outstanding, in addition to any other vote or consent of stockholders
required by law or by the Charter of the Corporation, the affirmative vote of
at least 66 2/3% of the votes entitled to be cast by the holders of the Series
A Preferred Stock and the Voting Preferred Stock, at the time outstanding,
acting as a single class regardless of series, given in person or by proxy, at
any meeting, called for the purpose, or the affirmative vote of all such
holders delivered by unanimous written consent, shall be necessary for
effecting or validating:
(i) Any amendment, alteration or
repeal of any of the provisions of these Articles
Supplementary or the Charter of the Corporation that
materially adversely affects the voting powers, rights or
preferences of the holders of the Series A Preferred Stock or
the Voting Preferred Stock; provided, however, that the
amendment of
- 30 -
<PAGE> 31
the provisions of the Charter so as to authorize or create, or
to increase the authorized amount of, any Junior Stock or any
shares of any class ranking on a parity with the Series A
Preferred Stock or the Voting Preferred Stock shall not be
deemed to materially adversely affect the voting powers,
rights or preferences of the holders of Series A Preferred
Stock, and provided further, that if any such amendment,
alteration or repeal would materially adversely affect any
voting powers, rights or preferences of the Series A Preferred
Stock or another series of Voting Preferred Stock that are not
enjoyed by some or all of the Series A Preferred Stock or
other series which otherwise would be entitled to vote in
accordance herewith, the affirmative vote of at least 66 2/3%
of the votes entitled to be cast by the holders of all series
similarly affected given in person or by proxy at a meeting
duly called for the purpose, or the affirmative vote of all
such holders delivered by unanimous written consent, shall be
required in lieu of the affirmative vote of at least 66 2/3%
of the votes entitled to be cast by the holders of the shares
of Series A Preferred Stock and the Voting Preferred Stock, or
the affirmative vote of all such holders by unanimous written
consent, which otherwise would be entitled to vote in
accordance herewith; or
(ii) The authorization or creation of,
or the increase in the authorized amount of, any shares of any
class or any security convertible into shares of any class
ranking, prior or senior to the Series A Preferred Stock in
the distribution of assets on any liquidation, dissolution or
winding up of the Corporation or in the payment of dividends;
provided, however, that no such vote of the holders of Series
A Preferred Stock shall be required if, at or prior to the
time when such amendment, alteration or repeal is to take
effect, or when the issuance of any such prior shares or
convertible security is to be made, as the case may be,
provision is made for the redemption of all shares of Series A
Preferred Stock at the time outstanding.
For purposes of the foregoing provisions of this Section 9,
each share of Series A Preferred Stock shall have one (1) vote per share,
except that when any other series of preferred stock shall have the right to
vote with the Series A Preferred Stock as
- 31 -
<PAGE> 32
a single class on any matter, then the Series A Preferred Stock and such other
series shall have with respect to such matters one (1) vote per $25.00 of stated
liquidation preference, and fractional votes shall be ignored. Except as
expressly stated in these Articles Supplementary, the Series A Preferred Stock
shall 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 Corporation or a sale of all or substantially all
of the assets of the Corporation, 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 A Preferred Stock.
Section 10. Restrictions on Transfer, Acquisition and
Redemption of Shares.
(a) The Series A Preferred Stock constitutes
Preferred Stock of the Corporation, and Preferred Stock constitutes Equity
Stock of the Corporation. Therefore, the Series A Preferred Stock, being Equity
Stock, is governed by and issued subject to all of the limitations, terms and
conditions of the Charter of the Corporation applicable to the Equity Stock
generally, including but not limited to the terms and conditions (including
exceptions and exemptions) of Article VII of the Charter applicable to Equity
Stock. The foregoing sentence shall not be construed to limit the
applicability to the Series A Preferred Stock of any other term or provision of
the Charter.
(b) In addition to the legend contemplated by
Article VII, Section 11 of the Charter, each certificate for Class A Preferred
Stock shall bear substantially the following legend:
"The Corporation will furnish to any stockholder, on
request and without charge, 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
redemptions of the stock of each class which the Corporation has authority to
issue and, if the Corporation is authorized to issue any preferred or special
class 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
- 32 -
<PAGE> 33
Directors to set such rights and preferences of subsequent series. 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 Corporation, a
copy of which will be sent without charge to each stockholder who so requests.
Such request must be made to the Secretary of the Corporation at its principal
office."
Section 11. Severability of Provisions.
If any preference, conversion or other right, voting power,
restriction, limitation as to dividends or other distributions, qualification
or term or condition of redemption of the Series A Preferred Stock set forth
herein is invalid, unlawful or incapable of being enforced by reason of any
rule of law or public policy, all other preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption of Series A
Preferred Stock set forth herein which can be given effect without the invalid,
unlawful or unenforceable provision thereof shall, nevertheless, remain in full
force and effect, and no preferences, conversion or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of Series A Preferred Stock
herein set forth shall be deemed dependent upon any other provision thereof
unless so expressed therein.
THIRD: The shares of Series A Preferred Stock have been
classified and designated by the Board of Directors under the authority
contained in the Charter.
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 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 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 or perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed under seal in its name and on
- 33 -
<PAGE> 34
its behalf by its President and attested to by its Secretary on this ___ day of
___________, 1997.
ATTEST: EXCEL REALTY TRUST, INC.
___________________________ By:___________________________(SEAL)
Richard B. Muir, Secretary Name: Gary B. Sabin
Title: President
- 34 -
<PAGE> 1
EXHIBIT 4.0
TEMPORARY CERTIFICATE - EXCHANGEABLE FOR DEFINITIVE CERTIFICATE
WHEN READY FOR DELIVERY
PREFERRED STOCK PREFERRED STOCK
EXCEL REALTY TRUST, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR IMPORTANT NOTICE
IN BOSTON, MA OR IN NEW YORK, NY ON TRANSFER RESTRICTIONS
AND OTHER INFORMATION
CUSIP 3006 7R 30 5
This certifies that
is the record holder of
FULLY PAID AND NONASSESSABLE SHARES OF THE $____ SERIES A CUMULATIVE
CONVERTIBLE PREFERRED STOCK, $.01 PAR VALUE, OF
EXCEL REALTY TRUST, INC.
transferable on the books of the Corporation by the holder hereof in person or
by duly authorized attorney upon surrender of this certificate properly
endorsed. This certificate and the shares represented hereby are issued and
shall be held subject to all of the provisions of the Charter of the
Corporation and the Bylaws of the Corporation and any amendments thereto. This
certificate is not valid unless countersigned and registered by the Transfer
Agent and Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated:
/s/ [SIGNATURE] [EXCEL REALTY TRUST, INC. SEAL] /s/ [SIGNATURE]
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
THE FIRST NATIONAL BANK OF BOSTON
TRANSFER AGENT AND REGISTRAR
BY /s/ [SIGNATURE]
AUTHORIZED SIGNATURE
<PAGE> 2
IMPORTANT NOTICE
The securities represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of its
status as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended. Except as otherwise provided pursuant to the Charter of the
Corporation, no Person may Beneficially Own or Constructively Own shares of
Common Stock and/or Preferred Stock in excess of 9.8% (or such greater
percentage as may be determined by the Board of Directors of the Corporation)
of the value of the outstanding Equity Stock of the Corporation. Any Person who
attempts or proposes to Beneficially Own or Constructively Own shares of
Common Stock and/or Preferred Stock in excess of the above limitation must
notify the Corporation in writing at least 15 days prior to such proposed or
attempted Transfer. All capitalized terms in this legend have the meanings
defined in the Charter of the Corporation, a copy of which, including the
restrictions on transfer, will be sent without charge to each stockholder who
so requests. If the restrictions on transfer are violated, the securities
represented hereby may be automatically transferred to a trust for the benefit
of one or more charitable organizations to be designated by the Corporation.
The Corporation will furnish to any stockholder, on request and without
charge, 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 redemptions of the
stock of each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class 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. The foregoing summary
does not purport to be complete and is subject to and qualified in its entirely
by reference to the Charter of the Corporation, a copy of which will be sent
without charge to each stockholder who so requests. Such request must be made to
the Secretary of the Corporation at its principal office.
Keep this certificate in a safe place. If it is lost, stolen, or
destroyed the corporation will require a bond of indemnity as a condition to
the issuance of a replacement certificate.
<TABLE>
<CAPTION>
<S> <C>
- -------------------------------------------------------------------------
NOTICE OF ELECTION TO CONVERT
(CONVERTIBLE INTO COMMON STOCK) FOR
The undersigned hereby irrevocably elects to convert CONVERSION
__________________________________________________________ shares USE
of $_____ Series A Cumulative Convertible Preferred Stock, ONLY
represented by the within certificate into shares of Common
Stock of EXCEL REALTY TRUST, INC (as such shares may be
constituted on the conversion date) in accordance with the
provisions of the Articles of Incorporation, as amended, of
the Corporation.
Dated ___________________________
________________________________
Signature
- -------------------------------------------------------------------------
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 of regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- _______________Custodian________________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- As joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________________________
in common (State)
UNIF TRF MIN ACT -- _______________Custodian________________
(Cust)
_________________under Uniform Transfers
(Minor)
to Minors Act___________________________
(State)
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
IDENTIFICATION NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------
________________________________________________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNED)
________________________________________________________________________________________________________________________
________________________________________________________________________________________________________________________
_________________________________________________________________________________________________________________ Shares
of the capital 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 Corporation with full power of substitution in the premises.
Dated _________________________________
X _______________________________________________________________________
X _______________________________________________________________________
NOTICE: THE SIGNATURES TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OF ANY CHANGE WHATEVER.
Signature(s) Guaranteed
By ___________________________________________________________
THE SIGNATURE(S) SHOULD 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. RULE 17Add-18.
</TABLE>
