As filed with the Securities and Exchange Commission on
February 18, 1997
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
THE ROUSE COMPANY
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(Exact name of registrant as specified in its charter)
Maryland 52-0735512
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(State of incorporation or (I.R.S. Employer
organization) Identification No.)
10275 Little Patuxent Parkway
Columbia, Maryland 21044-3456
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(Address of principal executive (Zip Code)
offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange on
Title of each class which each class is to be
to be so registered registered
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Series B Convertible Preferred New York Stock Exchange
Stock, par value $0.01 per share
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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(g) of the Act:
None
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(Title of class)
Exhibit Index Located at Page 2
Item 1. Description of the Registrant's Securities to be
------------------------------------------------
Registered.
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This registration statement relates to the Series B
Convertible Preferred Stock, par value $.01 per share (the
"Series B Preferred Stock"), of The Rouse Company (the
"Company"). Reference is made to the information set forth under
the caption "Description of Series B Preferred Stock" in the
preliminary Prospectus Supplement hereinafter referred to (the
"Prospectus Supplement") and the caption "Description of
Preferred Stock" in the Prospectus, dated February 6, 1997 (the
"Base Prospectus"), relating to $500,000,000 aggregate issue
amount of (i) Common Stock, par value $0.01 per share, of the
Company, (ii) Preferred Stock, par value $0.01 per share, of the
Company and (iii) Debt Securities of the Company. The Base
Prospectus constitutes a part of the Registration Statement on
Form S-3 (File No. 333-20781) of the Company, as amended by
Amendment No. 1 thereto (as so amended, the "Registration
Statement"), which Registration Statement was declared effective
by the Securities and Exchange Commission (the "Commission") on
February 6, 1997. The Prospectus Supplement, which supplements
the Base Prospectus, was filed with the Commission, together with
the Base Prospectus, on February 7, 1997 pursuant to Rule
424(b)(2) under the Securities Act of 1933, as amended (the
"Securities Act"), and the information set forth therein is
incorporated herein by reference. Such Prospectus Supplement as
may hereafter be amended and filed pursuant to Rule 424(b) under
the Securities Act is hereby incorporated by reference.
Item 2. Exhibits.
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The securities described herein are to be registered
on the New York Stock Exchange, where the Company's Common Stock,
par value $0.01 per share, is listed. Accordingly, except as
otherwise indicated, the following exhibits required pursuant to
Part II to the Instructions as to exhibits on Form 8-A have been
or will be duly filed with the New York Stock Exchange.
1. Preliminary Prospectus Supplement and Base
Prospectus, filed with the Commission on February 7,
1997, pursuant to Rule 424(b)(2) under the Securities
Act.
2. Charter of the Company, as amended and restated eff
ective May 27, 1988, (which is incorporated by
reference from the Exhibits to the Company's Form 10-K
Annual Report for the fiscal year ended December 31,
1988 (Commission File No. 0-1743)).
3. Articles of Amendment to the Charter of the Company,
effective January 10, 1991, (which are incorporated by
reference from the Exhibits to the Company's Form 10-K
Annual Report for the fiscal year ended December 31,
1990 (Commission File No. 0-1743)).
4. The Articles Supplementary to the Charter of the
Company, dated February 17, 1993 (which are
incorporated by reference from the Exhibits to the
Company's Form 10-K Annual Report for the fiscal year
ended December 31, 1992 (Commission File No. 0-1743)).
5. The Articles Supplementary to the Charter of the Co
mpany, dated September 26, 1994 (which are incorporated
by reference from the Exhibits to the Company's Form S-
3 Registration Statement (File No. 33-57707)).
6. The Articles Supplementary to the Charter of the Co
mpany, dated December 27, 1994 (which are incorporated
by reference from the Exhibits to the Company's Form S-
3 Registration Statement (File No. 33-57707)).
7. The Articles Supplementary to the Charter of the Co
mpany, dated June 5, 1996 (which are incorporated by
reference from the Exhibits to the Registration
Statement (333-20781)).
8. The Articles Supplementary to the Charter of the Co
mpany, dated June 11, 1996 (which are incorporated by
reference from the Exhibits to the Registration
Statement).
9. Form of the Articles Supplementary to the Charter of
the Company, relating to the Series B Preferred Stock.
10. The Bylaws of the Company, as amended November 19,
1996 and January 30, 1997 (which are incorporated by
reference from the Exhibits to the Registration
Statement).
SIGNATURE
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.
Date: February 18, 1997
THE ROUSE COMPANY
By: /s/ Anthony W. Deering
-----------------------------------
Name: Anthony W. Deering
Title: President, Chief Executive
Officer and Director
EXHIBITS
Exhibit No. Description
- ---------- -----------
9 Form of Articles Supplementary
to the Charter of The Rouse
Company relating to the Series
B Convertible Preferred Stock,
par value $0.01 per share, of
The Rouse Company.
EXHIBIT 9
FORM OF ARTICLES SUPPLEMENTARY TO THE CHARTER
OF THE ROUSE COMPANY
The Rouse Company, a Maryland corporation, having its
principal office in Columbia, Maryland (hereinafter called the
"Corporation"), hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST: Pursuant to authority expressly vested in the Board
of Directors of the Corporation by Article FIFTH of the Articles
of Incorporation, as amended and restated in the Articles of
Amendment and Restatement of the Corporation (the "Charter"), the
Board of Directors has duly divided and classified
_______________ shares of the Preferred Stock of the Corporation,
par value $.01 per share, into a class designated Series B
Convertible Preferred Stock, and provided for the issuance of
such Preferred Stock.
SECOND: The terms of the Series B Convertible Preferred
Stock established by the Board of Directors, in addition to those
set forth in Article FIFTH of the Charter of the Corporation
applicable to all classes of Preferred Stock, are as follows:
Section 1. Number of Shares and Designation. This
class of Preferred Stock shall be designated as Series B
Convertible Preferred Stock (the "Series B Preferred Stock") and
_______________ shall be the number of shares of Preferred Stock
constituting such class.
Section 2. Definitions. For purposes of the Series B
Preferred Stock, the following terms shall have the meanings
indicated:
"Act" shall have the meaning set forth in paragraph
(g) of Section 5 hereof.
"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 B 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 Columbia, Maryland or
New York, New York are not required to be open.
"Call Date" shall have the meaning set forth in
paragraph (c) of Section 5 hereof.
"Common Stock" shall mean the common stock of the
Corporation, par value $.01 per share.
"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 the Series B
Preferred Stock is convertible, as such Conversion Price
may be adjusted pursuant to Section 7. The initial
conversion price shall be $__________ (equivalent to a
conversion rate of ___________ shares of Common Stock
for each share of Series B Preferred Stock).
"Current Market Price" of publicly traded shares of
common stock or any other class of capital stock or
other security of the Corporation or 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 on such day, regular way, in either case as
reported on the New York Stock Exchange or, if such
security is not listed or admitted for trading on the
New York Stock Exchange ("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 NASDAQ National Market or, if such
security is not quoted on such NASDAQ 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.
"Dividend Payment Date" shall mean the first
calendar day of January, April, July and October, in
each year, commencing on April 1, 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 Period,
which shall commence on the Issue Date and end on and
include March 31, 1997).
"Fair Market Value" shall mean the average of the
daily Current Market Prices of a share of Common Stock
during the five (5) consecutive Trading Days selected by
the Corporation commencing not more than 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 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.
"Issue Date" shall mean the first date on which
shares of Series B Preferred Stock are issued and
sold.
"Junior Stock" shall mean the Common Stock, the
Increasing Rate Cumulative Preferred Stock, par value
$0.01 per share, the 10.25% Junior Preferred Stock,
1996 Series, par value $0.01 per share, and any other
class or series of shares of capital stock of the
Corporation constituting junior stock within the meaning
set forth in paragraph (c) of Section 8.
"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.
"Person" shall mean any individual, firm,
partnership, corporation or other entity, and shall
include any successor (by merger or otherwise) of such
entity.
"Press Release" shall have the meaning set forth in
paragraph (b) of Section 5 hereof.
"Securities" shall have the meaning set forth in
paragraph (d)(iii) of Section 7 hereof.
"Series B 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; provided, however, that if any
funds for any class or series of Junior Stock or any
class or series of stock ranking on a parity with the
Series B Preferred Stock as to the payment of dividends
are placed in a separate account of the Corporation or
delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the
Series B Preferred Stock shall mean placing such funds
in a separate account or delivering such funds to a
disbursing, paying or other similar agent.
"Trading Day" shall mean any day on which the
securities in question 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 not listed or admitted for trading on
any national securities exchange, on the NASDAQ National
Market, or if such securities are not quoted on such
NASDAQ National Market, in the applicable securities
market in which the securities are traded.
"Transaction" shall have the meaning set forth in
paragraph (e) of Section 7 hereof.
"Transfer Agent" means The Bank of New York, New
York, New York, or such other agent or agents of the
Corporation as may be designated by the Board of
Directors or their designee as the transfer agent for
the Series B Preferred Stock.
"Voting Preferred Shares" shall have the meaning
set forth in Section 9 hereof.
Section 3. Dividends. (a) The holders of shares of the
Series B 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, dividends payable in cash at the rate
per annum of $______ per share of Series B Preferred Stock. Such
dividends shall be cumulative from the Issue Date, whether or not
in any Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such dividends,
and shall be payable quarterly, when, as and if declared by the
Board of Directors, in arrears on Dividend Payment Dates,
commencing on the first Dividend Payment Date after the Issue
Date. Dividends are cumulative from the most recent Dividend
Payment Date to which dividends have been paid, whether or not in
any Dividend Period or Periods there shall be funds legally
available therefor. Each such dividend shall be payable in
arrears to the holders of record of shares of the Series B
Preferred Stock, as they appear on the stock records of the
Corporation at the close of business on such record dates, not
more than 60 days preceding such Dividend Payment Dates thereof,
as shall be fixed by the Board of Directors. 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, not exceeding 45 days
preceding the payment date thereof, as may be fixed by the Board
of Directors.
(b) The amount of dividends payable for each full Dividend
Period for the Series B Preferred Stock shall be computed by
dividing the annual dividend rate by four. The amount of
dividends payable for the initial Dividend Period, or any other
period shorter or longer than a full Dividend Period, on the
Series B Preferred Stock shall be computed on the basis of twelve
30-day months and a 360-day year. Holders of shares of Series B
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 B 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 B Preferred Stock that may be in arrears.
(c) So long as any shares of the Series B Preferred Stock
are outstanding, no dividends, except as described in the
immediately following sentence, shall be declared or paid or set
apart for payment on any class or series of Parity Stock 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 set apart for such payment on
the Series B Preferred Stock for all Dividend Periods terminating
on or prior to the Dividend Payment Date on 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 shares of the Series B 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 and unpaid on the
Series B Preferred Stock and accumulated and unpaid on such
Parity Stock.
(d) So long as any shares of the Series B 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 or other distribution
declared or made upon Junior Stock, nor shall any Junior Stock be
redeemed, purchased or otherwise acquired (other than (i) a
redemption, purchase or other acquisition of shares of Common
Stock made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary or (ii) a purchase or other
acquisition of shares of Common Stock made for purposes of
distribution pursuant to the Contingent Stock Agreement, effective
as of January 1, 1996 (the "Agreement"), by the Corporation, in
favor of and for the benefit of the Holders and the Representatives
(as such terms are defined in the Agreement)), for any consideration
(or any moneys to be paid to or made available for a sinking fund
for the redemption of any shares of such stock) by the Corporation,
directly or indirectly (except by conversion into or exchange for
Junior Stock), unless in each case (i) the full cumulative dividends
on all outstanding shares of the Series B Preferred Stock and any
other Parity Stock of the Corporation shall have been paid or set
apart for payment for all past Dividend Periods with respect to the
Series B 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 dividend for the current Dividend
Period with respect to the Series B Preferred Stock and the current
dividend period with respect to such Parity Stock.
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 the shares of Series B Preferred Stock
shall be entitled to receive Fifty Dollars ($50.00) per share of
Series B Preferred Stock plus an amount equal to all dividends
(whether or not earned or declared) accrued and unpaid thereon to
the date of final distribution to such holder; but such holders
shall not be entitled to any further payment. If, upon any
liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or proceeds thereof, distributable
among the holders of the shares of Series B 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 any shares of
Series B Preferred Stock and any such other Parity Stock ratably
in accordance with the respective amounts that would be payable
on such shares of Series B 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 shares of any
series or class or classes of stock ranking on a parity with or
prior to the Series B Preferred Stock upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made
in full to the holders of the Series B Preferred Stock, as
provided in this Section 4, any other series or class or classes
of Junior Stock shall, subject to any respective terms and
provisions, applying thereto, be entitled to receive any
and all assets remaining to be paid or distributed, and the
holders of the Series B Preferred Stock shall not be entitled to
share therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series B Preferred Stock shall not be redeemable by the
Corporation prior to April 1, 2000. On and after April 1, 2000,
the Corporation, at its option, may redeem the shares of Series B
Preferred Stock, in whole or in part, as set forth herein,
subject to the provisions described below.
(b) The Series B Preferred Stock may be redeemed, in whole
or in part, at the option of the Corporation, at any time, only
if for 20 Trading Days within any period of 30 consecutive
Trading Days, including the last Trading Day of such period, the
Current Market Price of the Common Stock on each of such 20
Trading Days exceeds 120% of the Conversion Price in effect on
such Trading Day. In order to exercise its redemption option,
the Corporation must issue a press release announcing the
redemption (the "Press Release") prior to the opening of business
on the second Trading Day after the condition in the preceding
sentence has, from time to time, been met. The Corporation may
not issue a Press Release prior to February 1, 2000. The Press
Release shall announce the redemption and set forth the number of
shares of Series B Preferred Stock which the Corporation intends
to redeem. The Call Date (which may not be before April 1, 2000)
shall be selected by the Corporation, shall be specified in the
notice of redemption and shall be not less than 30 days or more
than 60 days after the date on which the Corporation issues the
Press Release.
(c) Upon redemption of Series B Preferred Stock by the
Corporation on the date specified in the notice to holders
required under paragraph (e) of this Section 5 (the "Call
Date"), each share of Series B Preferred Stock so redeemed shall
be converted into a number of shares of Common Stock equal to the
liquidation preference of the shares of Series B Preferred Stock
being redeemed divided by the Conversion Price as of the opening
of business on the Call Date.
Upon any redemption of Series B Preferred Stock, the
Corporation shall pay any accrued and unpaid dividends in arrears
for any Dividend Period ending or on prior to the Call Date. If
the Call Date falls after a dividend payment record date and
prior to the corresponding Dividend Payment Date, then each
holder of Series B 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 before
such Dividend Payment Date. Except as provided above, the
Corporation shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on shares of Series B
Preferred Stock called for redemption or on the shares of Common
Stock issued upon such redemption.
(d) If full cumulative dividends on the Series B 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, the Series B Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire shares of Series
B Preferred Stock, otherwise than pursuant to a purchase or
exchange offer made on the same terms to all holders of shares of
Series B Preferred Stock.
(e) If the Corporation shall redeem shares of Series B
Preferred Stock pursuant to paragraph (a) of this Section 5,
notice of such redemption shall be given not more than four
Business Days after the date on which the Corporation issues the
Press Release 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. If the Corporation elects to provide such
notice by publication, it shall also promptly mail notice of such
redemption to the holders of the Series B Preferred Stock to be
redeemed. Neither the failure to mail any notice required by
this paragraph (e), 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 shall
state, as appropriate: (1) the Call Date; (2) the number of
shares of Series B Preferred Stock to be redeemed and, if fewer
than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder; (3) the
number of shares of Common Stock to be issued with respect to
each share of Series B Preferred Stock; (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 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 make available a number of
shares of Common Stock or amount of cash necessary to effect such
redemption), (i) except as otherwise provided herein, dividends
on the shares of the Series B Preferred Stock so called for
redemption shall cease to accrue, (ii) said shares shall no
longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Series B Preferred Stock of the
Corporation shall cease (except the rights to receive the shares
of Common Stock and 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 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, City of New York, or in Baltimore, Maryland
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, shares of
Common Stock and any cash necessary for such redemption, in
trust, with irrevocable instructions that such shares of Common
Stock and cash be applied to the redemption of the shares of
Series B Preferred Stock so called for redemption. At the close
of business on the Call Date, each holder of Series B Preferred
Stock to be redeemed (unless the Company 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 Series B Preferred Stock is to be
redeemed, regardless of whether such holder has surrendered the
certificates representing the Series B Preferred Stock. No
interest shall accrue for the benefit of the holder of Series B
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 such shares 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 shares shall be exchanged for certificates of shares of
Common Stock and any cash (without interest thereon) for which
such shares have been redeemed. If fewer than all the
outstanding shares of Series B Preferred Stock are to be
redeemed, shares to be redeemed shall be selected by the
Corporation from outstanding shares of the Series B Preferred
Stock not previously called for redemption by lot or pro rata (as
nearly as may be) or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer
than all the shares of Series B Preferred Stock represented by
any certificate are redeemed, then new certificates representing
the unredeemed shares shall be issued without cost to the holder
thereof.
(f) No fractional shares or scrip representing fractions of
shares of Common Stock shall be issued upon redemption of the
Series B Preferred Stock. Instead of any fractional interest in
a share of Common Stock that would otherwise be deliverable upon
the redemption of a share of Series B 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 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 on the basis of the aggregate number of shares of Series
B Preferred Stock so surrendered.
(g) The Corporation covenants that any shares of Common
Stock issued upon redemption of the Series B Preferred Stock
shall be validly issued, fully paid and non-assessable. The
Corporation shall endeavor to list the shares of Common Stock
required to be delivered upon redemption of the Series B
Preferred Stock, prior to such redemption, upon each national
securities exchange, if any, upon which the outstanding Common
Stock is listed at the time of such delivery.
The Corporation shall endeavor to take any action necessary
to ensure that any shares of Common Stock issued upon the
redemption of Series B Preferred Stock are freely transferable
and not subject to any resale restrictions under the Securities
Act of 1933, as amended (the "Act"), or any applicable state
securities or blue sky laws (other than any shares of Common
Stock issued upon redemption of any Series B Preferred Stock
which are held by an "affiliate" (as defined in Rule 144 under
the Act) of the Corporation).
Section 6. Shares to Be Retired.
All shares of Series B 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.
Section 7. Conversion.
Holders of shares of Series B 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 B Preferred Stock
shall have the right, at his or her option, at any time to
convert such shares into the number of fully paid and non-
assessable shares of Common Stock obtained by dividing the
aggregate liquidation preference of such shares by the Conversion
Price (as in effect at the time and on the date provided for in
the last paragraph 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 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 the shares of
Common Stock and any cash payable upon such redemption under
Section 5 hereof.
(b) In order to exercise the conversion right, the holder
of each share of Series B 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 Series B 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 B
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 B 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 B Preferred 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 or coinciding with such Dividend Payment Date, such
shares of Series B 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 B
Preferred Stock on a dividend payment record date who (or whose
transferees) 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 B
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 B 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 B Preferred Stock as aforesaid,
the Corporation shall issue and shall deliver at such office to
such holder, or on his or her written order, a certificate or
certificates for the number of full shares of Common Stock
issuable upon the conversion of such shares in accordance with
the 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 B Preferred Stock shall
have been surrendered and such notice (and if applicable, payment
of an amount equal to the dividend payable on such shares)
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 and 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 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 shares or scrip representing fractions of
shares of Common Stock shall be issued upon conversion of the
Series B Preferred Stock. Instead of any fractional interest in
a share of Common Stock that would otherwise be deliverable upon
the conversion of a share of Series B Preferred Stock, the
Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of 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 B 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 its 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 B Preferred Stock thereafter surrendered for
conversion shall be entitled to receive the number of shares
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 shares 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, combination or reclassification. An
adjustment made pursuant to this subparagraph (i) 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 mentioned below) to subscribe for or
purchase Common Stock at a price per share less than the
Fair Market Value per share of Common Stock on the record
date for the determination of stockholders entitled to
receive such rights, options 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 (I) the Conversion Price in
effect immediately prior to the opening of business on the
day following the date fixed for such determination by (II)
a fraction, the numerator of which shall be the sum of (A)
the number of shares of Common Stock outstanding on the
close of business on the date fixed for such determination
and (B) the number of shares that the aggregate proceeds to
the Corporation from the exercise of such rights, options or
warrants for Common Stock would purchase at such Fair Market
Value, and the denominator of which shall be the sum of (A) the
number of shares of Common Stock outstanding on the close of
business on the date fixed for such determination and (B)
the number of additional shares of Common Stock offered for
subscription or purchase pursuant to such rights, options 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, options or
warrants entitle the holders of Common Stock to subscribe for
or purchase shares of 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, options or warrants, the value
of such consideration, if other than cash, to be determined by
the Chief Executive Officer or 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 (excluding cash dividends or
distributions paid out of the total equity applicable to
Common Stock, including revaluation equity, less the amount
of stated capital attributable to Common Stock, determined
on the basis of the most recent annual consolidated cost basis
and current value basis and quarterly consolidated balance
sheets of the Corporation and its consolidated subsidiaries
available at the time of the declaration of the dividend or
distribution) 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 subparagraph (ii) above to subscribe for
or purchase Common Stock, which rights and warrants are
referred to in and treated under subparagraph (ii) above)
(any of the foregoing being hereinafter in this subparagraph
(iii) called the "Securities"), then in each case the
Conversion Price shall be adjusted so that it shall equal
the price determined by multiplying (I) 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 (II) a fraction, the numerator
of which shall be the Fair Market Value per share of the
Common Stock on the record date mentioned below less the
then fair market value (as determined by the Chief Executive
Officer or the Board of Directors, whose determination shall
be conclusive) 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 the 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 shareholders
entitled to receive such distribution. For the purposes of
this subparagraph (iii), the distribution of a Security, 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 Security, but also is
distributed with each share of Common Stock delivered to a
Person converting a share of Series B Preferred Stock after
such determination date, shall not require an adjustment of
the Conversion Price pursuant to this subparagraph (iii);
provided that on the date, if any, on which a person converting
a share of Series B Preferred Stock would no longer be
entitled to receive such Security with a share of Common
Stock (other than as a result of the termination of all such
Securities), a distribution of such Securities shall be
deemed to have occurred, and the Conversion Price shall be
adjusted as provided in this subparagraph (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
subparagraph (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 subparagraph
(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) 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, options 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.
(e) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory
share exchange, self tender offer for all or substantially all
shares of Common Stock, sale of all or substantially all of the
Corporation's assets or recapitalization of the Common Stock and
excluding any transaction as to which subparagraph (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 B Preferred Stock
which is not converted into the right to receive stock,
securities or other property in connection with such Transaction
shall thereafter be convertible into the kind and amount of
shares of stock, securities and other property (including cash or
any combination thereof) receivable upon the consummation of such
Transaction by a holder of that number of shares of Common Stock
into which one share of Series B 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 (a "Constituent Person"), or an affiliate of a
Constituent Person and (ii) failed to exercise his or her rights of
the 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 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 B Preferred Stock that will contain provisions enabling
the holders of the Series B Preferred Stock that remains
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.
(f) If:
(i) the Corporation shall declare a dividend (or any
other distribution) on the Common Stock (other than in cash
out of the total equity applicable to Common Stock,
including revaluation equity, less the amount of stated
capital attributable to Common Stock, determined on the
basis of the most recent annual consolidated cost basis and
current value basis and quarterly consolidated balance
sheets of the Corporation and its consolidated subsidiaries
available at the time of the declaration of the dividend or
distribution); 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 any
other rights or warrants; or
(iii) there shall be any reclassification of the
Common Stock (other than an event to which subparagraph (d)
(i) of this Section 7 applies) 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 involving the conversion or
exchange of Common Stock into securities or other property,
or a self tender offer by the Company for all or substantially
all of its outstanding shares of Common Stock, or the sale
or transfer of all or substantially all of the assets of the
Corporation as an entirety and for which approval of any
stockholders of the Corporation is required; 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 the holders of shares of
the Series B Preferred Stock at their addresses 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 date on which a record is to be taken
for the purpose of such dividend, distribution or rights or
warrants, or, if a record is not to be taken, 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 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. 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 of such adjustment becomes effective and shall
mail such notice of such adjustment of the Conversion Price to
the holder of each share of Series B 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 B Preferred Stock converted after
such record date and before the occurrence of such event the
additional shares of 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 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 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 the
shares of Series B Preferred Stock, the Conversion Price for the
Series B 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
in the circumstances.
(k) The Corporation covenants that it will at all times
reserve and keep available, free from preemptive rights, out of
the aggregate of its authorized but unissued shares of Common
Stock, for the purpose of effecting conversion of the Series B
Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of
Series B Preferred Stock not theretofore converted. 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 B 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 Series B Preferred Stock shall be
validly issued, fully paid and non-assessable. Before taking any
action that would cause an adjustment reducing the Conversion
Price below the then-par value of the shares of Common Stock
deliverable upon conversion of the Series B Preferred Stock, the
Corporation will take any corporate action that, in the opinion
of its counsel, may be necessary in order that the Corporation
may validly and legally issue fully paid and non-assessable
shares of Common Stock at such adjusted Conversion Price.
The Corporation shall endeavor to list the shares of Common
Stock required to be delivered upon conversion of the Series B
Preferred Stock, prior to such delivery, upon each national
securities exchange, if any, upon which the outstanding Common
Stock is listed at the time of such delivery.
Prior to the delivery of any securities that the Corporation
shall be obligated to deliver upon conversion of the Series B
Preferred Stock, the Corporation shall endeavor to comply with
all federal and state laws and regulations thereunder requiring
the registration of such securities with, or any approval of or
consent to the delivery thereof, by any governmental authority.
(1) 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 of the Series B 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 Series B Preferred Stock to be
converted, 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 stock of the
Corporation shall be deemed to rank:
(a) prior to the Series B 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 B Preferred Stock;
(b) on a parity with the Series B Preferred Stock, as
to the payment of dividends and as to the 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 B Preferred Stock, if the
holders of such class of stock or series and the Series B
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 B 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, Increasing Rate Cumulative
Preferred Stock, par value $0.01 per share, or 10.25% Junior
Preferred Stock, 1996 Series, par value $0.01 per share, or
if the holders of Series B Preferred Stock shall be entitled
to 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 shares of such
stock or series.
Section 9. Voting. If and whenever six quarterly dividends
(whether or not consecutive) payable on the Series B 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 and the holders of
shares of Series B Preferred Stock, together with the holders of
shares of every other series of Parity Stock (any such other
series, the "Voting Preferred Shares"), voting as a single class
regardless of series, shall be entitled to elect the two
additional directors to serve on the Board of Directors at any
annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the Series B
Preferred Stock and the Voting Preferred Shares called as
hereinafter provided. Whenever all arrears in dividends on the
Series B Preferred Stock and the Voting Preferred Shares then
outstanding shall have been paid and dividends thereon for the
current quarterly dividend period shall have been paid or
declared and set apart for payment, then the right of the holders
of the Series B Preferred Stock and the Voting Preferred Shares
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 B Preferred
Stock and the Voting Preferred Shares shall forthwith terminate
and the number of the Board of Directors shall be reduced
accordingly. At any time after such voting power shall have been
so vested in the holders of shares of Series B Preferred Stock
and the Voting Preferred Shares, the secretary of the Corporation
may, and upon the written request of any holder of Series B
Preferred Stock (addressed to the secretary at the principal
office of the Corporation) shall, call a special meeting of the
holders of the Series B Preferred Stock and of the Voting
Preferred Shares 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 such request, then any holder of shares of
Series B 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 or special meting held in lieu
thereof if such office shall not have previously terminated as
above provided. If any vacancy shall occur among the directors
elected by the holders of the Series B Preferred Stock and the
Voting Preferred Shares, 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 B Preferred Stock
and the Voting Preferred Shares or the successor of such
remaining director, to serve until the next annual meeting of the
stockholders or special meeting held in place thereof if such
office shall not have previously terminated as provided above.
So long as any shares of Series B Preferred Stock are
outstanding, in addition to any other vote or consent of
stockholders required by law or by the Charter, as amended, the
affirmative vote of at least 66-2/3% of the votes entitled to be
cast by the holders of the shares of Series B Preferred Stock and
the Voting Preferred Shares, at the time outstanding, voting as a
single class regardless of series, given in person or by proxy,
either in writing without a meeting or by vote at any meeting
called for the purpose, shall be necessary for effecting or
validating:
(a) Any amendment, alteration or repeal of any of the
provisions of the Charter or these Articles Supplementary
that materially adversely affects the voting powers, rights
or preferences of the holders of the Series B Preferred
Stock or the Voting Preferred Shares; provided, however,
that the amendment of 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 B Preferred Stock or the Voting
Preferred Shares shall not be deemed to materially adversely
affect the voting powers, rights or preferences of the
holders of Series B 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 B Preferred Stock or another
series of Voting Preferred Shares that are not enjoyed by
some or all of the other series otherwise 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, similarly given, shall be
required in lieu of the affirmative vote of at least 66-2/3%
of the votes entitled to be case by the holders of the
shares of Series B Preferred Stock and the Voting Preferred
Shares otherwise entitled to vote in accordance herewith; or
(b) 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
to the Series B 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 B
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 B Preferred Stock at the
time outstanding.
For purposes of the foregoing provisions of this Section 9,
each share of Series B 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 B Preferred Stock as
a single class on any matter, then the Series B Preferred Stock
and such other series shall have with respect to such matters one
(1) vote per $50.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the
shares of Series B Preferred Stock shall not have any relative,
participating, optional or other special voting rights and powers
other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any corporate
action.
Section 10. Record Holders. The Corporation and the
Transfer Agent may deem and treat the record holder of any shares
of Series B Preferred Stock as the true and lawful owner thereof
for all purposes, and neither the Corporation nor the Transfer
Agent shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, the Corporation has caused these
Articles Supplementary to be made under the seal of the
Corporation and signed in its name and attested by its duly
authorized officers this _____ day of ____________, _____.
THE ROUSE COMPANY
By:---------------------------
Anthony W. Deering
President and
Chief Executive Officer
Attest:
- ---------------------------------
David R. Schwiesow
Vice-President and
Assistant Secretary
THE UNDERSIGNED, President and Chief Exective Officer of The Rouse
Company, who executed on behalf of the Corporation Articles Supplementary
of which this Certificate is made a part, acknowledges in the name and on
behalf of said Corporation the foregoing Articles Supplementary to be the
corporate act of said Corporation and certifies that the matters and facts
set forth herein with respect to the authorization and approval thereof are
true in all material respects under the penalties of perjury.
By:
---------------------------
Anthony W. Deering
President and
Chief Executive Officer
