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As filed with the Securities and Exchange Commission on April 3, 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 (g) of the
Securities Exchange Act of 1934
Vornado Realty Trust
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(Exact Name of Registrant as Specified in Its Charter)
Maryland 22-1657560
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(State of Incorporation or Organization) (IRS Employer
Identification No.)
Park 80 West, Plaza II,
Saddle Brook, New Jersey 07663
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(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of debt
securities and is effective upon securities and is to become effective
filing pursuant to General simultaneously with the effectiveness
Instruction A(c)(1) please check the of a concurrent registration
following box. |_| 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
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Series A Convertible Preferred New York Stock Exchange
Shares of Beneficial Interest,
liquidation preference $50.00
per share, no par value per
share
Securities to be registered pursuant to Section 12(g) of the Act:
Not Applicable
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
A description of the Series A Convertible Preferred Shares of
Beneficial Interest, liquidation preference $50.00 per share (the "Series A
Preferred Shares"), which are to be registered hereunder is contained under the
caption "Description of Series A Preferred Shares" in the Preliminary Prospectus
Supplement, dated March 26, 1997, to the Prospectus, dated December 26, 1995,
constituting a part of the Registration Statement on Form S-3 (File No.
33-62395) of Vornado Realty Trust (the "Company"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"). Such description, and the related information contained under
the caption "Description of Shares of Beneficial Interest--Description of
Preferred Shares" in the Prospectus, dated December 26, 1995, is hereby
incorporated by reference and any description included in a form of prospectus
supplement subsequently filed by the Company pursuant to Rule 424(b) under the
Securities Act shall be deemed to be incorporated by reference into this
registration statement.
Item 2. Exhibits.
Exhibit No. Exhibit
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3.1 Amended and Restated Declaration of Trust of the Company, as
amended May 23, 1996 (incorporated by reference to the
Company's Registration Statement on Form S-8 (File No.
333-09159), filed on July 30, 1996)
3.2 By-laws of the Company, dated March 10, 1994,
(incorporated by reference to the Company's Annual Report
on Form 10-K for the year ended December 31, 1993
(File No. 1-5098) filed on March 24, 1994)
3.3 Form of Articles of Amendment of the Amended and Restated
Declaration of Trust of the Company
4.1 Form of Articles Supplementary Classifying the Series A
Convertible Preferred Shares of Beneficial Interest
4.2 Form of Specimen Share Certificate for the Series A
Convertible Preferred Shares of Beneficial Interest
4.3 Specimen certificate representing the Company's Common
Shares of Beneficial Interest (incorporated by reference to
Amendment No. 1 to the Company's Registration Statement on
Form S-3 (File No. 33-62395), filed on October 26, 1995)
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
VORNADO REALTY TRUST
Dated: April 2, 1997 By: /s/ Joseph Macnow
--------------------------------
Joseph Macnow
Vice President --
Chief Financial Officer
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EXHIBIT INDEX
Exhibit No. Exhibit
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3.1 Amended and Restated Declaration of Trust of the Company, as
amended May 23, 1996 (incorporated by reference to the
Company's Registration Statement on Form S-8 (File No.
333-09159), filed on July 30, 1996)
3.2 By-laws of the Company, dated March 10, 1994, (incorporated
by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1993 (File No. 1-5098)
filed on March 24, 1994)
3.3 Form of Articles of Amendment of the Amended and Restated
Declaration of Trust of the Company
4.1 Form of Articles Supplementary Classifying the Series A
Convertible Preferred Shares of Beneficial Interest
4.2 Form of Specimen Share Certificate for the Series A
Convertible Preferred Shares of Beneficial Interest
4.3 Specimen certificate representing the Company's Common
Shares of Beneficial Interest (incorporated by reference to
Amendment No. 1 to the Company's Registration Statement on
Form S-3 (File No. 33-62395), filed on October 26, 1995)
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Exhibit 3.3
VORNADO REALTY TRUST
FORM OF ARTICLES OF AMENDMENT OF DECLARATION OF TRUST
THIS IS TO CERTIFY THAT:
FIRST: The Amended and Restated Declaration of Trust, as amended
(the "Declaration of Trust"), of Vornado Realty Trust, a Maryland real estate
investment trust (the "Trust"), is hereby amended by deleting Article VI,
Section 6.1 of the Declaration of Trust in its entirety and replacing it with
the following:
"SECTION 6.1 Authorized Shares. The total number of shares of
beneficial interest which the Trust is authorized to issue is
180,000,000 shares, of which 20,000,000 shall be preferred
shares of beneficial interest, no par value per share
("Preferred Stock"), 70,000,000 shares shall be common shares
of beneficial interest, $.04 par value per share ("Common
Stock"), and 90,000,000 shares shall be excess shares of
beneficial interest, $.04 par value per share ("Excess
Stock")."
SECOND: The foregoing amendment has been approved by the Board of
Trustees of the Trust as required by Section 8-203(a)(7) of the Corporations
and Associations Article of the Annotated Code of Maryland and Article IX,
Section 9.1(b) of the Declaration of Trust .
THIRD: The total number of shares of beneficial interest which the
Trust had authority to issue immediately prior to this amendment was
102,000,000, consisting of 50,000,000 common shares of beneficial interest, $.04
par value per share, 1,000,000 preferred shares of beneficial interest, no par
value per share, and 51,000,000 excess shares of beneficial interest, $.04 par
value per share. The aggregate par value of all authorized shares of beneficial
interest having par value was $4,040,000.
FOURTH: The total number of shares of beneficial interest which the
Trust has authority to issue pursuant to the foregoing amendment is 180,000,000,
consisting of 70,000,000 common shares of beneficial interest, $.04 par value
per share, 20,000,000 preferred shares of beneficial interest, no par value per
share, and 90,000,000 excess shares of beneficial interest, $.04 par value per
share. The aggregate par value of all authorized shares of beneficial interest
having par value is $6,400,000.
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FIFTH: The undersigned Chairman of the Board acknowledges this
amendment to be the trust act of the Trust and, as to all matters or facts
required to be verified under oath, the undersigned Chairman of the Board
acknowledges that, to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this Statement is
made under the penalties for perjury.
IN WITNESS WHEREOF, the Trust has caused this amendment to be signed
in its name and on its behalf by its Chairman of the Board and attested to by
its Secretary on this ___ day of April, 1997.
ATTEST: VORNADO REALTY TRUST
___________________________ _______________________ (SEAL)
Susan D. Schmider Steven Roth
Secretary Chairman of the Board
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Exhibit 4.1
VORNADO REALTY TRUST
FORM OF ARTICLES SUPPLEMENTARY
SERIES A CONVERTIBLE PREFERRED SHARES
(liquidation preference $50.00 per share)
Vornado Realty Trust, a Maryland real estate investment trust (the
"Trust"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Under a power contained in Article VI of the Amended and
Restated Declaration of Trust of the Trust (the "Declaration"), the Board of
Trustees of the Trust (the "Board of Trustees"), by informal action in lieu of a
special meeting, dated April [ ], 1997, classified and designated [ ]
shares (the "Shares") of the Preferred Stock, no par value per share (as defined
in the Declaration), as shares of Series A Convertible Preferred Shares of
Beneficial Interest, liquidation preference $50.00 per share ("Series A
Preferred Shares"), with the following preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption, which upon
any restatement of the Declaration, shall be deemed to be part of Article VI of
the Declaration:
Section 1. Number of Shares and Designation. This series of
Preferred Stock shall be designated as Series A Convertible Preferred Shares of
Beneficial Interest, liquidation preference $50.00 per share (the "Series A
Preferred Shares"), and [ ] shall be the number of shares of Preferred
Stock constituting such series.
Section 2. Definitions. For purposes of the Series A Preferred
Shares, the following terms shall have the meanings indicated:
"Act" shall have the meaning set forth in paragraph (g) of Section 5
hereof.
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series A Preferred Shares.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally
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chartered banking institutions in New York, New York are not required to
be open.
"Redemption Date" shall have the meaning set forth in paragraph (b)
of Section 5 hereof.
"Common Shares" shall mean the common shares of beneficial interest
of the Trust, par value $.04 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 Common Share
for which the Series A Preferred Shares are convertible, as such
Conversion Price may be adjusted pursuant to Section 7 hereof. The initial
conversion price shall be $[ ] (equivalent to a conversion rate of
[ ] Common Shares for each Series A Preferred Share).
"Current Market Price" of publicly traded Common Shares or any other
class of shares of beneficial interest or other security of the Trust 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 ("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 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 of the Trust or the Board of Trustees.
"Dividend Payment Date" shall mean the first calendar day of
January, April, July and October, in each year, commencing on July 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 first Business Day immediately following
such Dividend Payment Date.
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"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 June 30, 1997).
"Fair Market Value" shall mean the average of the daily Current
Market Prices per Common Share during the five (5) consecutive Trading
Days selected by the Trust 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
Shares trade 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" with respect to the Series A Preferred Shares shall
mean the first date on which any of the Series A Preferred Shares are
issued and sold.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of beneficial interest of the Trust constituting junior
stock within the meaning set forth in paragraph (c) of Section 9 hereof.
"Liquidation Preference" shall have the meaning set forth in
paragraph (a) of Section 4 hereof.
"Non-Electing Share" shall have the meaning set forth in paragraph
(e) of Section 7 hereof.
"Parity Shares" shall have the meaning set forth in paragraph (b)
of Section 9 hereof.
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company 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 A Preferred Shares" shall have the meaning set forth in
Section 1 hereof.
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"Set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Trust in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of a dividend or other distribution by the Board
of Trustees, the allocation of funds to be so paid on any series or class
of shares of beneficial interest of the Trust; provided, however, that if
any funds for any class or series of Junior Shares or any class or series
of shares of beneficial interest ranking on a parity with the Series A
Preferred Shares as to the payment of dividends are placed in a separate
account of the Trust or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Series A Preferred
Shares 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 First Union National Bank of North Carolina,
Charlotte, North Carolina, or such other agent or agents of the Trust as
may be designated by the Board of Trustees or its designee as the transfer
agent for the Series A Preferred Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 10 hereof.
Section 3. Dividends. (a) The holders of Series A Preferred Shares
shall be entitled to receive, when, as and if authorized and declared by the
Board of Trustees out of assets legally available for that purpose, dividends
payable in cash at the rate per annum of $[ ] per Series A Preferred Share (the
"Annual Dividend Rate"). Such dividends shall be cumulative from the Issue Date,
whether or not in any Dividend Period or Periods there shall be assets of the
Trust legally available for the payment of such dividends, and shall be payable
quarterly, when, as and if authorized and declared by the Board of Trustees, 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
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Payment Date to which dividends have been paid, whether or not in any Dividend
Period or Periods there shall be assets legally available therefor. Each such
dividend shall be payable in arrears to the holders of record of the Series A
Preferred Shares, as they appear on the stock records of the Trust at the close
of business on such record dates, not more than 30 days preceding the applicable
Dividend Payment Date (the "Dividend Payment Record Date"), as shall be fixed by
the Board of Trustees. Accrued and unpaid dividends for any past Dividend
Periods may be authorized and 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 Trustees.
(b) The amount of dividends payable for each full Dividend Period
for the Series A Preferred Shares 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 A Preferred Shares shall be computed on the basis of twelve 30-day
months and a 360-day year. Holders of Series A Preferred Shares 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 Shares.
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 Shares that may be in
arrears.
(c) So long as any Series A Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
authorized and declared or paid or set apart for payment on any series or class
or classes of Parity Shares for any period unless full cumulative dividends have
been or contemporaneously are authorized and declared and paid or authorized and
declared and a sum sufficient for the payment thereof set apart for such payment
on the Series A Preferred Shares for all Dividend Periods terminating on or
prior to the Dividend Payment Date on such class or series of Parity Shares.
When dividends are not paid in full or a sum sufficient for such payment is not
set apart, as aforesaid, all dividends authorized and declared upon Series A
Preferred Shares and all dividends authorized and declared upon any other series
or class or classes of Parity Shares shall be authorized and declared ratably in
proportion to the respective amounts of dividends accumulated and unpaid on the
Series A Preferred Shares and such Parity Shares.
(d) So long as any Series A Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Junior
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Shares) shall be authorized and declared or paid or set apart for payment or
other distribution authorized and declared or made upon Junior Shares, nor shall
any Junior Shares be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of Common Shares made for purposes of
and in compliance with requirements of an employee incentive or benefit plan of
the Trust or any subsidiary, or as permitted under Article VI of the
Declaration), 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 Trust, directly or indirectly (except by conversion into or exchange for
Junior Shares), unless in each case (i) the full cumulative dividends on all
outstanding Series A Preferred Shares and any other Parity Shares of the Trust
shall have been paid or set apart for payment for all past Dividend Periods with
respect to the Series A Preferred Shares and all past dividend periods with
respect to such Parity Shares 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 A Preferred Shares and any Parity Shares.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Trust, whether voluntary or
involuntary, before any payment or distribution of the assets of the Trust
(whether capital or surplus) shall be made to or set apart for the holders of
Junior Shares, the holders of Series A Preferred Shares shall be entitled to
receive Fifty Dollars ($50.00) per Series A Preferred Share (the "Liquidation
Preference") 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 of Series A Preferred Shares shall not be entitled to
any further payment. If, upon any such liquidation, dissolution or winding up of
the Trust, the assets of the Trust, or proceeds thereof, distributable among the
holders of Series A Preferred Shares shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other Parity
Shares, then such assets, or the proceeds thereof, shall be distributed among
the holders of such Series A Preferred Shares and any such other Parity Shares
ratably in accordance with the respective amounts that would be payable on such
Series A Preferred Shares and any such other Parity Shares if all amounts
payable thereon were paid in full. For the purposes of this Section 4, (i) a
consolidation or merger of the Trust with one or more entities, (ii) a statutory
share exchange and (iii) a sale or transfer of all or substantially all of the
Trust's assets (including, without limitation, the conversion of the Trust into
an Umbrella Partnership REIT), shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary, of the Trust.
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(b) Subject to the rights of the holders of shares of any series or
class or classes of shares of beneficial interest ranking on a parity with or
prior to the Series A Preferred Shares upon liquidation, dissolution or winding
up, upon any liquidation, dissolution or winding up of the Trust, after payment
shall have been made in full to the holders of the Series A Preferred Shares, as
provided in this Section 4, any series or class or classes of Junior Shares
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 A Preferred Shares shall not be entitled to share
therein.
Section 5. Redemption at the Option of the Trust. (a) Except as
otherwise permitted by Article VI of the Declaration, the Series A Preferred
Shares shall not be redeemable by the Trust prior to [ ], 2001. On
and after [ ], 2001, the Trust, at its option, may redeem the shares
of Series A Preferred Shares, in whole or in part, as set forth herein, subject
to the provisions described below.
(b) The Series A Preferred Shares may be redeemed, in whole or in
part, at the option of the Trust, 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 Shares 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 Trust shall 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 Trust shall not issue a Press Release
prior to [ ], 2001. The Press Release shall announce the redemption
and set forth the number of Series A Preferred Shares that the Trust intends to
redeem. The Redemption Date (which may not be before [ ], 2001) shall
be selected by the Trust, 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
Trust issues the Press Release (the "Redemption Date").
(c) Upon redemption of Series A Preferred Shares by the Trust on the
Redemption Date, each Series A Preferred Share so redeemed shall be converted
into a number of Common Shares equal to the aggregate Liquidation Preference of
the shares of Series A Preferred Shares being redeemed divided by the Conversion
Price as of the opening of business on the Redemption Date.
Upon any redemption of Series A Preferred Shares, the Trust shall
pay any accrued and unpaid dividends in arrears for any Dividend Period ending
or on prior to the
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Redemption Date. If the Redemption Date falls after a Dividend Payment Record
Date and prior to the corresponding Dividend Payment Date, then each holder of
Series A Preferred Shares at the close of business on such Dividend Payment
Record Date shall be entitled to the dividend payable on such Series A Preferred
Shares on the corresponding dividend payment date notwithstanding the redemption
of such Series A Preferred Shares before such Dividend Payment Date. Except as
provided above, the Trust shall make no payment or allowance for unpaid
dividends, whether or not in arrears, on Series A Preferred Shares called for
redemption or on the Common Shares issued upon such redemption.
(d) If full cumulative dividends on the Series A Preferred Shares
and any other series or class or classes of Parity Shares of the Trust have not
been paid or declared and set apart for payment, except as otherwise permitted
under Article VI of the Declaration, the Series A Preferred Shares may not be
redeemed in part, and the Trust may not purchase, redeem or otherwise acquire
Series A Preferred Shares or any Parity Shares other than upon redemption for,
by conversion into or in exchange for Junior Shares.
(e) If the Trust shall redeem shares of Series A Preferred Shares
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 Trust issues
the Press Release to each holder of record of the Series A Preferred 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 Trust,
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 Trust elects to provide such notice by publication,
it shall also promptly mail notice of such redemption to the holders of the
Series A Preferred Shares 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 that 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 Redemption Date; (2) the number of Series A
Preferred Shares to be redeemed and, if fewer than all the Series A Preferred
Shares held by such holder are to be redeemed, the number of such Series A
Preferred Shares to be redeemed from such holder; (3) the number of Common
Shares to be issued with respect to each Series A Preferred Share; (4) the place
or places at which certificates for such Series A Preferred Shares are to be
surrendered for certificates representing Common Shares; (5) the then-current
Conversion Price; and (6)
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that dividends on the shares to be redeemed shall cease to accrue on such
Redemption Date except as otherwise provided herein. Notice having been
published or mailed as aforesaid, from and after the Redemption Date (unless the
Trust shall fail to make available a number of Common Shares or amount of cash
necessary to effect such redemption), (i) except as otherwise provided herein,
dividends on the Series A Preferred Shares 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 A Preferred Shares
of the Trust shall cease (except the rights to receive the Common Shares 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 Trust's obligation to provide Common Shares and cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Redemption Date, the Trust shall deposit with a bank or trust company
(which may be an affiliate of the Trust) 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, Common Shares and any cash necessary for such redemption, in trust,
with irrevocable instructions that such Common Shares and cash be applied to the
redemption of the Series A Preferred Shares so called for redemption. At the
close of business on the Redemption Date, each holder of Series A Preferred
Shares to be redeemed (unless the Trust defaults in the delivery of the Common
Shares or cash payable on such Redemption Date) shall be deemed to be the record
holder of the number of Common Shares into which such Series A Preferred Shares
is to be redeemed, regardless of whether such holder has surrendered the
certificates representing the Series A Preferred Shares. No interest shall
accrue for the benefit of the holder of Series A Preferred Shares to be redeemed
on any cash so set aside by the Trust. Subject to applicable escheat laws, any
such cash unclaimed at the end of two years from the Redemption Date shall
revert to the general funds of the Trust, after which reversion the holders of
such shares so called for redemption shall look only to the general funds of the
Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with
said notice of the certificates for any such Series A Preferred Shares so
redeemed (properly endorsed or assigned for transfer, if the Trust shall so
require and if the notice shall so state), such Series A Preferred Shares shall
be exchanged for certificates of Common Shares and any cash (without interest
thereon) for which such Series A Preferred Shares have been redeemed. If fewer
than all of the outstanding Series A Preferred Shares are to be redeemed, the
Series A Preferred Shares to be redeemed shall be selected by the Trust from the
outstanding Series A Preferred Shares not
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previously called for redemption by lot or pro rata (as nearly as may be) or by
any other method determined by the Trust in its sole discretion to be equitable.
If fewer than all the Series A Preferred Shares represented by any certificate
are redeemed, then new certificates representing the unredeemed Series A
Preferred Shares shall be issued without cost to the holder thereof.
(f) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon redemption of a Series A Preferred Share. Instead of
any fractional interest in a Common Share that would otherwise be deliverable
upon the redemption of a share of Series A Preferred Shares, the Trust shall pay
to the holder of such Series A Preferred Share an amount in cash (computed to
the nearest cent) based upon the Current Market Price of Common Shares on the
Trading Day immediately preceding the Redemption Date. If more than one Series A
Preferred Share shall be surrendered for redemption at one time by the same
holder, the number of full Common Shares issuable upon redemption thereof shall
be computed on the basis of the aggregate number of Series A Preferred Shares so
surrendered.
(g) The Trust covenants that any Common Shares issued upon
redemption of the Series A Preferred Shares shall be validly issued, fully paid
and non-assessable. The Trust shall endeavor to list the Common Shares required
to be delivered upon redemption of the Series A Preferred Shares, prior to such
redemption, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
The Trust shall endeavor to take any action necessary to ensure that
any Common Shares issued upon the redemption of Series A Preferred Shares 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 Common Shares issued upon redemption
of any Series A Preferred Shares that are held by an "affiliate" (as defined in
Rule 144 under the Act) of the Trust).
Section 6. Reacquired Shares to Be Retired.
All Series A Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued shares of Preferred Stock, without designation as to
series.
Section 7. Conversion.
Holders of Series A Preferred Shares shall have the right to convert
all or a portion of such shares into Common Shares, as follows:
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(a) Subject to and upon compliance with the provisions of this
Section 7, a holder of Series A Preferred Shares 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 Common Shares obtained by dividing the aggregate Liquidation
Preference of such Series A Preferred 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 Series A Preferred 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 Series A
Preferred Shares called for redemption pursuant to Section 5 hereof shall
terminate at the close of business on the Redemption Date fixed for such
redemption, unless the Trust shall default in making payment of the Common
Shares and any cash payable upon such redemption under Section 5 hereof.
(b) In order to exercise the conversion right, the holder of each
Series A Preferred Share to be converted shall surrender the certificate
representing such Series A Preferred Share, duly endorsed or assigned to the
Trust or in blank, at the office of the Transfer Agent, accompanied by written
notice to the Trust that the holder thereof elects to convert such Series A
Preferred Shares. Unless the Common Shares issuable on conversion are to be
issued in the same name as the name in which such Series A Preferred Shares are
registered, each share surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the Trust, 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 Trust
demonstrating that such taxes have been paid).
Holders of Series A Preferred Shares at the close of business on a
Dividend Payment Record Date shall be entitled to receive the dividend payable
on such Series A Preferred 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, Series A Preferred Shares
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 Series A Preferred Shares converted
after the issuance of a notice of redemption with respect to a Redemption Date
during such period or coinciding with such Dividend Payment Date, such Series A
Preferred Shares 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 Series A Preferred Shares on such Dividend Payment Date. A holder of Series
A Preferred Shares on a Dividend Payment Record Date who (or whose transferees)
tenders any such Series A Preferred Shares for conversion into Common Shares on
such Dividend
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<PAGE> 12
Payment Date will receive the dividend payable by the Trust on such Series A
Preferred Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series A Preferred
Shares for conversion. Except as provided above, the Trust shall make no payment
or allowance for unpaid dividends, whether or not in arrears, on converted
Series A Preferred Shares or for dividends on the Common Shares issued upon such
conversion.
As promptly as practicable after the surrender of certificates for
Series A Preferred Shares as aforesaid, the Trust 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 Common Shares issuable upon the conversion
of such shares in accordance with the provisions of this Section 7, and any
fractional interest in respect of a Common Share 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 Series
A Preferred Shares shall have been surrendered and such notice (and if
applicable, payment of an amount equal to the dividend payable on such Series A
Preferred Shares) received by the Trust as aforesaid, and the person or persons
in whose name or names any certificate or certificates for Common Shares shall
be issuable upon such conversion shall be deemed to have become the holder or
holders of record of the Common 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 Trust 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
Series A Preferred Shares shall have been surrendered and such notice received
by the Trust.
(c) No fractional shares or scrip representing fractions of Common
Shares shall be issued upon conversion of the Series A Preferred Shares. Instead
of any fractional interest in a Common Share that would otherwise be deliverable
upon the conversion of a Series A Preferred Share, the Trust shall pay to the
holder of such Series A Preferred Share an amount in cash based upon the Current
Market Price of Common Shares on the Trading Day immediately preceding the date
of conversion. If more than one Series A Preferred Share shall be surrendered
for conversion at one time by the same holder, the number of full Common Shares
issuable upon conversion thereof shall be computed on the basis of the aggregate
number of Series A Preferred Shares so surrendered.
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(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Trust shall after the Issue Date (A) pay a dividend or
make a distribution on its shares of beneficial interest in Common Shares,
(B) subdivide its outstanding Common Shares into a greater number of
shares, (C) combine its outstanding Common Shares into a smaller number of
shares or (D) issue any shares of beneficial interest by reclassification
of its Common Shares, the Conversion Price in effect at the opening of
business on the day following the date fixed for the determination of
shareholders 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 Series A
Preferred Share thereafter surrendered for conversion shall be entitled to
receive the number of Common Shares that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above had such Series A Preferred 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 upon the opening of
business on the day next following the record date (subject to paragraph
(h) below) in the case of a dividend or distribution and shall become
effective immediately upon the opening of business on the day next
following the effective date in the case of a subdivision, combination or
reclassification.
(ii) If the Trust shall issue after the Issue Date rights, options
or warrants to all holders of Common Shares entitling them (for a period
expiring within 45 days after the record date mentioned below) to
subscribe for or purchase Common Shares at a price per share less than the
Fair Market Value per Common Share on the record date for the
determination of shareholders 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 Common Shares 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 Trust from the
exercise of such rights, options or warrants for Common Shares would
purchase at such Fair Market Value, and the
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<PAGE> 14
denominator of which shall be the sum of (A) the number of Common Shares
outstanding on the close of business on the date fixed for such
determination and (B) the number of additional Common Shares offered for
subscription or purchase pursuant to such rights, options or warrants.
Such adjustment shall become effective immediately upon the opening of
business on the day next following such record date (subject to paragraph
(h) below). In determining whether any rights, options or warrants entitle
the holders of Common Shares to subscribe for or purchase Common Shares at
less than such Fair Market Value, there shall be taken into account any
consideration received by the Trust 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 Trustees, whose determination shall be conclusive.
(iii) If the Trust shall distribute to all holders of its Common
Shares any shares of beneficial interest of the Trust (other than Common
Shares) or evidence of its indebtedness or assets (excluding cash
dividends or distributions paid out of the total equity applicable to
Common Shares, including a determination of equity based upon a fair
valuation of the assets, less the amount of stated capital attributable to
Common Shares, determined on the basis of the most recent annual
consolidated cost basis and current value basis and quarterly consolidated
balance sheets of the Trust 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 Shares 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 Shares,
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
shareholders entitled to receive such distribution by (II) a fraction, the
numerator of which shall be the Fair Market Value per share of the Common
Shares on the record date mentioned below less the then fair market value
(as determined by the Chief Executive Officer or the Board of Trustees,
whose determination shall be conclusive) of the portion of the shares of
beneficial interest or assets or evidences of indebtedness so distributed
or of such rights or warrants applicable to one Common Share, and the
denominator of which shall be the Fair Market Value
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<PAGE> 15
per share of the Common Shares on the record date mentioned below. Such
adjustment shall become effective immediately upon the opening of business
on the day next following (subject to 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 Shares on the date fixed for the determination of
shareholders entitled to such distribution of such Security, but also is
required to be distributed with each Common Share delivered to a Person
converting a Series A Preferred Share 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 Series A Preferred Share would no longer be entitled to
receive such Security with a Common Share (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 shareholders
entitled to receive such distribution" and "the record date" within the
meaning of the two preceding sentences).
The occurrence of a distribution or the occurrence of any other
event as a result of which holders of Series A Preferred Shares shall not
be entitled to receive rights, including exchange rights (the "Rights"),
pursuant to any shareholders protective rights agreement (the "Agreement")
that may be adopted by the Trust as if such holders had converted such
shares into Common Shares immediately prior to the occurence of such
distribution or event shall not be deemed a distribtuion of Securities for
the purposes of any Conversion Price adjustment pursuant to this
subparagraph (iii) or otherise give rise to any Conversion Price
adjustment pursuant to this Section 7; provided, however, that in lieu of
any adjustment to the Conversion Price as a result of any such a
distribution or occurence, the Trust shall make provision so that Rights,
to the extent issuable at the time of conversion of any Series A Preferred
Shares into Common Shares, shall issue and attach to such Common Shares
then issued upon conversion in the amount and manner and to the extent and
as provided in the Agreement in respect of issuances at the time of Common
Shares other than upon conversion.
(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
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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 Common
Shares. Notwithstanding any other provisions of this Section 7, the Trust
shall not be required to make any adjustment of the Conversion Price for
the issuance of any Common Shares pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the Trust
and the investment of additional optional amounts in Common Shares 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 Trust
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 Trust to its shareholders shall
not be taxable.
(e) If the Trust shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for all or substantially all Common Shares, sale of all or
substantially all of the Trust's assets or recapitalization of the Common Shares
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 Common Shares shall be converted into the right
to receive stock, securities or other property (including cash or any
combination thereof), each Series A Preferred Share that 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 Common Shares into which one Series A Preferred Share was
convertible immediately prior to such Transaction, assuming such holder of
Common Shares (i) is not a Person with which the Trust consolidated or into
which the Trust merged or which merged into the Trust or to which such sale or
transfer was made, as the case may be (a "Constituent
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<PAGE> 17
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
Common Share of the Trust 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 Trust 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 Trust 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 Shares that will contain provisions
enabling the holders of the Series A Preferred Shares that remain outstanding
after such Transaction to convert their Series A Preferred Shares into the
consideration received by holders of Common Shares 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 Trust shall declare a dividend (or any other distribution)
on the Common Shares (other than in cash out of the total equity
applicable to Common Shares, including a determination of equity based on
a fair valuation of assets, less the amount of stated capital attributable
to Common Shares, determined on the basis of the most recent annual
consolidated cost basis and current value basis and quarterly consolidated
balance sheets of the Trust and its consolidated subsidiaries available at
the time of the declaration of the dividend or distribution); or
(ii) the Trust shall authorize the granting to the holders of the
Common Shares of rights or warrants to subscribe for or purchase any
shares of any class or any other rights or warrants (other than Rights to
which the second paragraph of subparagraph (d)(iii) of this Section 7
applies); or
(iii) there shall be any reclassification of the Common Shares
(other than an event to which subparagraph (d) (i) of this Section 7
applies) or any consolidation
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or merger to which the Trust is a party and for which approval of any
shareholders of the Trust is required, or a statutory share exchange
involving the conversion or exchange of Common Shares into securities or
other property, or a self tender offer by the Trust for all or
substantially all of its outstanding Common Shares, or the sale or
transfer of all or substantially all of the assets of the Trust as an
entirety and for which approval of any shareholders of the Trust is
required; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Trust,
then the Trust shall cause to be filed with the Transfer Agent and shall cause
to be mailed to the holders of the Series A Preferred Shares at their addresses
as shown on the stock records of the Trust, 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 Shares 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 Shares of record shall be entitled to exchange
their Common Shares 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 Trust 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 Trust 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 holders
of each Series A Preferred Share at such holder's last address as shown on the
stock records of the Trust.
(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 Trust may defer until the occurrence of such event (A)
issuing
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to the holder of any Series A Preferred Share converted after such record date
and before the occurrence of such event the additional Common Shares issuable
upon such conversion by reason of the adjustment required by such event over and
above the Common Shares 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 shares of beneficial interest of the Trust 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 Trust shall take any action affecting the Common Shares,
other than action described in this Section 7, that in the opinion of the Board
of Trustees would materially adversely affect the conversion rights of the
holders of the Series A Preferred Shares, the Conversion Price for the Series A
Preferred Shares may be adjusted, to the extent permitted by law, in such
manner, if any, and at such time, as the Board of Trustees, in its sole
discretion, may determine to be equitable in the circumstances.
(k) The Trust covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued Common Shares, for the purpose of effecting conversion of the
Series A Preferred Shares, the full number of Common Shares deliverable upon the
conversion of all outstanding Series A Preferred Shares not theretofore
converted. For purposes of this paragraph (k), the number of Common Shares that
shall be deliverable upon the conversion of all outstanding shares of Series A
Preferred Shares shall be computed as if at the time of computation all such
outstanding shares were held by a single holder.
The Trust further covenants that any Common Shares issued upon
conversion of the Series A Preferred Shares 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 Common Shares
deliverable upon conversion of the Series A Preferred Shares, the Trust shall
take any corporate action that, in the opinion of its counsel, may be necessary
in order that the Trust may validly and legally issue fully paid and
non-assessable Common Shares at such adjusted Conversion Price.
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<PAGE> 20
The Trust shall endeavor to list the Common Shares required to be
delivered upon conversion of the Series A Preferred Shares, prior to such
delivery, upon each national securities exchange, if any, upon which the
outstanding Common Shares are listed at the time of such delivery.
Prior to the delivery of any securities that the Trust shall be
obligated to deliver upon conversion of the Series A Preferred Shares, the Trust
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.
(l) The Trust shall pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of Common
Shares or other securities or property on conversion of the Series A Preferred
Shares pursuant hereto; provided, however, that the Trust shall not be required
to pay any tax that may be payable in respect of any transfer involved in the
issue or delivery of any Common Shares or other securities or property in a name
other than that of the holder of the Series A Preferred Shares 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 Trust the amount of any such
tax or established, to the reasonable satisfaction of the Trust, that such tax
has been paid.
Section 8. Permissible Distributions. In determining whether a
distribution (other than upon liquidation, dissolution or winding up), whether
by dividend, or upon redemption or other acquisition of shares or otherwise, is
permitted under Maryland law, amounts that would be needed, if the Trust were to
be dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of holders of shares of any class or series of beneficial
interest whose preferential rights upon dissolution are superior or prior to
those receiving the distribution shall not be added to the Trust's total
liabilities.
Section 9. Ranking. Any class or series of shares of beneficial
interest of the Trust shall be deemed to rank:
(a) prior to the Series A Preferred Shares, 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 Shares;
(b) on a parity with the Series A Preferred Shares, as to the
payment of dividends and as to the distribution of
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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 Shares, if the holders
of such class of stock or series and the Series A Preferred Shares 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 Shares"); and
(c) junior to the Series A Preferred Shares, 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 Shares or if the holders of
Series A Preferred Shares 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, and such stock or series shall not in either case rank prior to the
Series A Preferred Shares.
Section 10. Voting. Except as otherwise set forth herein, the Series
A Preferred Shares 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.
If and whenever six quarterly dividends (whether or not consecutive)
payable on the Series A Preferred Shares or any series or class of Parity Shares
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 trustees then constituting the Board of Trustees shall
be increased by two and the holders of Series A Preferred Shares, together with
the holders of shares of every other series or class of Parity Shares having
like voting rights (shares of any such other series, the "Voting Preferred
Shares"), voting as a single class regardless of series, shall be entitled to
elect the two additional trustees to serve on the Board of Trustees at any
annual meeting of shareholders or special meeting held in place thereof, or at a
special meeting of the holders of Series A Preferred Shares and the Voting
Preferred Shares called as hereinafter provided. Whenever all arrears in
dividends on the Series A Preferred Shares and the Voting Preferred Shares then
outstanding shall have been paid and full 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 A Preferred Shares and the
Voting Preferred Shares to elect such additional two trustees shall cease (but
subject always to the same provision for the vesting of such voting rights in
the
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case of any similar future arrearages in six quarterly dividends), and the terms
of office of all persons elected as trustees by the holders of the Series A
Preferred Shares and the Voting Preferred Shares shall forthwith terminate and
the number trustees constituting the Board of Trustees shall be reduced
accordingly. At any time after such voting power shall have been so vested in
the holders of shares of Series A Preferred Shares and the Voting Preferred
Shares, the Secretary of the Trust may, and upon the written request of any
holder of Series A Preferred Shares (addressed to the Secretary at the principal
office of the Trust) shall, call a special meeting of the holders of the Series
A Preferred Shares and of the Voting Preferred Shares for the election of the
two trustees to be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Trust for a special meeting
of the shareholders 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 Series A Preferred Shares
may call such meeting, upon the notice above provided, and for that purpose
shall have access to the stock books of the Trust. The trustees elected at any
such special meeting shall hold office until the next annual meeting of the
shareholders 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 trustees elected by the holders of the Series A Preferred Shares and the
Voting Preferred Shares, a successor shall be elected by the Board of Trustees,
upon the nomination of the then-remaining trustee elected by the holders of the
Series A Preferred Shares and the Voting Preferred Shares or the successor of
such remaining trustee, to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if such office shall not
have previously terminated as provided above.
So long as any Series A Preferred Shares are outstanding, in
addition to any other vote or consent of shareholders required by the
Declaration, the affirmative vote of at least 66-2/3% of the votes entitled to
be cast by the holders of Series A Preferred Shares 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 Declaration or these Articles Supplementary that
materially adversely affects the voting powers, rights or preferences of
the holders of the Series A Preferred Shares or the Voting Preferred
Shares; provided, however, that (i) the amendment of the provisions of the
Declaration so as to authorize or create or to increase the authorized
amount of, any
-22-
<PAGE> 23
Junior Shares or any shares of any class or series ranking on a parity
with the Series A Preferred Shares or the Voting Preferred Shares shall
not be deemed to materially adversely affect the voting powers, rights or
preferences of the holders of Series A Preferred Shares and (ii) any
filing with the State Department of Assessments and Taxation of Maryland
by the Trust in connection with a merger, consolidation or sale of all or
substantially all of the assets of the Trust shall not be deemed to be an
amendment, alteration or repeal of any of the provisions of the
Declaration or these Articles Supplementary; 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 Shares
or one or more but not all series of Voting Preferred Shares at the time
outstanding, 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 cast by the holders of the
Series A Preferred Shares 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 series or any security
convertible into shares of any class or series ranking prior to the Series
A Preferred Shares in the distribution of assets on any liquidation,
dissolution or winding up of the Trust or in the payment of dividends;
provided, however, that, in the case of each of subparagraphs (a) and (b), no
such vote of the holders of Series A Preferred Shares or Voting Preferred
Shares, as the case may be, 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 Series A Preferred Shares or Voting
Preferred Shares, as the case may be, at the time outstanding in accordance with
Section 5 hereof.
For purposes of the foregoing provisions of this Section 10, each
Series A Preferred Share 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 Shares as a single class on any matter, then the Series A Preferred
Shares and such other series shall have with respect to such matters one (1)
vote per $50.00 of stated liquidation preference.
-23-
<PAGE> 24
Section 11. Record Holders. The Trust and the Transfer Agent may
deem and treat the record holder of any Series A Preferred Shares as the true
and lawful owner thereof for all purposes, and neither the Trust nor the
Transfer Agent shall be affected by any notice to the contrary.
Section 12. Restrictions on Ownership and Transfer. The Series A
Preferred Shares constitute Preferred Stock, and Preferred Stock constitutes
Equity Stock of the Trust. Therefore, the Series A Preferred Shares, being
Equity Stock, are governed by and issued subject to all the limitations, terms
and conditions of the Declaration applicable to Equity Stock generally,
including but not limited to the terms and conditions (including exceptions and
exemptions) of Article VI of the Declaration applicable to Equity Stock. The
foregoing sentence shall not be construed to limit the applicability to the
Series A Preferred Shares of any other term or provision of the Declaration.
SECOND: The Shares have been classified and designated by the Board
of Trustees under the authority contained in the Declaration.
THIRD: These Articles Supplementary have been approved by the Board
of Trustees in the manner and by the vote required by law.
FOURTH: Each of the undersigned acknowledges these Articles
Supplementary to be the trust act of the Trust and, as to all matters or facts
required to be verified under oath, the undersigned acknowledges that to the
best of his or her knowledge, information and belief, these matters and facts
are true in all material respects and that this statement is made under the
penalties for perjury.
-24-
<PAGE> 25
IN WITNESS WHEREOF, the Trust has caused these Articles
Supplementary to be executed by a majority of its entire Board of Trustees on
this ___ day of April, 1997.
________________________________
Steven Roth, Trustee
________________________________
Michael D. Fascitelli, Trustee
________________________________
David Mandelbaum, Trustee
________________________________
Stanley Simon, Trustee
________________________________
Richard R. West, Trustee
________________________________
Ronald G. Targan, Trustee
________________________________
Russell B. Wight, Jr., Trustee
-25-
<PAGE> 1
Exhibit 4.2
Number *0* Shares *0*
THIS CERTIFICATE IS TRANSFERABLE SEE REVERSE FOR
IN THE CITIES OF NEW YORK, N.Y. IMPORTANT NOTICE
AND CHARLOTTE, N.C. ON TRANSFER RESTRICTIONS
AND OTHER INFORMATION
CUSIP 929042 20 8
VORNADO REALTY TRUST
------------------------------
a Real Estate Investment Trust
Formed Under the Laws of the State of Maryland
THIS CERTIFIES THAT **Specimen**
is the owner of **Zero (0)**
fully paid and nonassessable Series A Convertible Preferred Shares of Beneficial
Interest, liquidation preference $50.00 per share, no par value, of
VORNADO REALTY TRUST
------------------------------
(the "Trust"), transferable on the books of the Trust by the holder hereof in
person or by its 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 Declaration of Trust
and Bylaws of the Trust and any amendments thereto. This Certificate is not
valid unless countersigned and registered by the Transfer Agent and Registrar.
IN WITNESS WHEREOF, the Trust has caused this Certificate to be executed
on its behalf by its duly authorized officers.
DATED __________________
Countersigned and Registered:
First Union National Bank of North Carolina
(Charlotte, N.C.)
[IMPRESSION OF
Transfer Agent TRUST SEAL] __________________________
and Registrar Chief Executive Officer
By:_____________________________ __________________________
Secretary
<PAGE> 2
IMPORTANT NOTICE
The Trust will furnish to any shareholder, on request and without charge,
a full statement of the information required by Section 8-203(d) of the
Corporations and Associations Article of the Annotated Code of Maryland with
respect to the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, and terms and conditions of redemption of the
shares of each class of beneficial interest which the Trust has authority to
issue and, if the Trust 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
Trustees 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 Declaration of Trust of the Trust, a copy of which
will be sent without charge to each shareholder who so requests. Such request
must be made to the Secretary of the Trust at its principal office or to the
Transfer Agent.
The shares of Preferred Stock represented by this certificate are subject
to restrictions on ownership and transfer for the purpose of the Trust's
maintenance of its status as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code"). No Person may
Beneficially Own shares of Preferred Stock of any class in excess of 9.9% of the
outstanding Preferred Equity Stock of such class and no Person may
Constructively Own Preferred Stock of any class in excess of 9.9% of the
outstanding Preferred Equity Stock of such class (unless such person is an
Existing Constructive Holder). Any Person who attempts to Beneficially Own or
Constructively Own Shares in excess of the above limitations must immediately
notify the Trust. In addition, the shares of Common Stock into which the shares
of Preferred Stock represented by this certificate are convertible are subject
to restrictions on ownership and transfer for the purpose of the Trust's
maintenance of its status as a REIT under the Code. No Person may Beneficially
Own shares of Common Stock in excess of 6.7% of the outstanding Common Equity
Stock of the Trust (unless such Person is an Existing Holder) and no Person may
Constructively Own shares of Common Stock in excess of 9.9% of the outstanding
Common Equity Stock of the Trust (unless such person is an Existing Constructive
Holder). Any Person who attempts to Beneficially Own or Constructively Own
Shares in excess of the above limitations must immediately notify the Trust. Due
to the attribution rules that exist with respect to these ownership limitations,
persons holding, or treated as holding under the relevant attribution rules,
shares of Preferred Stock will be treated, for purposes of the ownership
limitations, as owning the shares of Common Stock into which their shares of
Preferred Stock can be converted even prior to such conversion if such ownership
would cause ownership of shares of Common Stock in excess of the applicable
ownership limit. Accordingly, shareholders should take their direct and
constructive ownership of shares of Common Stock into account in determining
whether they can hold shares of Preferred Stock without violating the ownership
limit with respect to the shares of Common Stock. All capitalized terms used in
this legend have the meanings set forth in the Declaration of Trust, a copy of
which, including the restrictions on ownership and transfer, will be sent
without charge to each stockholder who so requests. Such request must be made to
the Secretary of the Trust at its principal office or to the Transfer Agent. If
the restrictions on ownership and transfer are violated, the shares of Preferred
Stock represented hereby will be automatically exchanged for shares of Excess
Stock which will be held in trust by the Trust.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN
OR DESTROYED, THE TRUST WILL REQUIRE A BOND OF INDEMNITY AS A
CONDITION TO THE ISSUANCE OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JJ TEN - as joint tenants with right
of survivorship and not as tenants
is common
UNIF GIFT MIN ACT ______ Custodian ________
(Cust) (Minor)
Under Uniform Gifts to Minors Act of
____________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, _______________________ HEREBY SELLS, ASSIGNS AND TRANSFERS
UNTO
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE)
________________________ (____________________) of the shares of beneficial
interest of the Trust represented by this Certificate and do hereby irrevocably
constitute and appoint ____________________________ Attorney to transfer the
said shares on the books of the Trust, with full power of substitution in the
premises.
Dated _____________________ ___________________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE
OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
