ARTICLES OF AMENDMENT TO ARTICLES OF INCORPORATION OF
REGENCY REALTY CORPORATION
DESIGNATING THE PREFERENCES, RIGHTS AND
LIMITATIONS OF 240,000 SHARES OF
8.75% SERIES F CUMULATIVE REDEEMABLE PREFERRED STOCK
$0.01 Par Value
Pursuant to Section 607.0602 of the Florida Business Corporation Act
("FBCA"), Regency Realty Corporation, a Florida corporation (the "Corporation"),
does hereby certify that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation by Section 4.2 of the Amended and Restated Articles
of Incorporation of the Corporation (the "Charter") and Section 607.0602 of the
FBCA, the Board of Directors of the Corporation (the "Board of Directors"), by
resolutions duly adopted on May 15, 2000 and resolutions duly adopted by the
Pricing Committee, a committee of the Board of Directors, on September 8, 2000
has classified 240,000 shares of the authorized but unissued Preferred Stock par
value $.01 per share ("Preferred Stock") as a separate class of Preferred Stock,
authorized the issuance of a maximum of 240,000 shares of such class of
Preferred Stock, set certain of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, terms
and conditions of redemption and other terms and conditions of such class of
Preferred Stock, and pursuant to the powers contained in the Bylaws of the
Corporation and the FBCA, appointed a committee (the "Committee") of the Board
of Directors and delegated to the Committee, to the fullest extent permitted by
the FBCA and the Charter and Bylaws of the Corporation, all powers of the Board
of Directors with respect to designating, and setting all other preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of, such class of Preferred Stock determining the number of shares of
such class of Preferred Stock (not in excess of the aforesaid maximum number) to
be issued and the consideration and other terms and conditions upon which such
shares of such class of Preferred Stock are to be issued. Shareholder approval
was not required under the Charter with respect to such designation.
SECOND:Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has unanimously adopted resolutions designating the
aforesaid class of Preferred Stock as the "8.75% Series F Cumulative Redeemable
Preferred Stock," setting the preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, terms and
conditions of redemption and other terms and conditions of such 8.75% Series F
Cumulative Redeemable Preferred Stock (to the extent not set by the Board of
Directors in the resolutions referred to in Article FIRST of these Articles of
Amendment) and authorizing the issuance of up to 240,000 shares of 8.75% Series
F Cumulative Redeemable Preferred Stock.
THIRD: The class of Preferred Stock of the Corporation created by the
resolutions duly adopted by the Board of Directors of the Corporation and by the
Committee and referred to in Articles FIRST and SECOND of these Articles of
Amendment shall have the following designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitation as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions:
(i) Designation and Number. A series of Preferred Stock, designated the "8.75%
Series F Cumulative Redeemable Preferred Stock" (the "Series F Preferred Stock")
is hereby established. The number of shares of Series F Preferred Stock shall be
240,000.
(ii) Rank. The Series F Preferred Stock will, with respect to distributions and
rights upon voluntary or involuntary liquidation, winding-up or dissolution of
the Corporation, rank senior to all classes or series of Common Stock (as
defined in the Charter) and to all classes or series of equity securities of the
Corporation now or hereafter authorized, issued or outstanding, other than any
class or series of equity securities of the Corporation expressly designated as
ranking on a parity with or senior to the Series F Preferred Stock as to
distributions or rights upon voluntary or involuntary liquidation, winding-up or
dissolution of the Corporation or both. For purposes of these Articles of
Amendment, the term "Parity Preferred Stock" shall be used to refer to any class
or series of equity securities of the Corporation now or hereafter authorized,
issued or outstanding expressly designated by the Corporation to rank on a
parity with Series F Preferred Stock with respect to distributions or rights
upon voluntary or involuntary liquidation, winding-up or dissolution of the
Corporation or both, as the context may require, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices per share or
conversion rights or exchange rights shall be different from those of the Series
F Preferred Stock and includes the Series A Cumulative Redeemable Preferred
Stock, the Series B Cumulative Redeemable Preferred Stock, the Series C
Cumulative Redeemable Preferred Stock, the Series D Cumulative Redeemable
Preferred Stock, the Series E Cumulative Redeemable Preferred Stock, the Series
1 Cumulative Convertible Redeemable Preferred Stock and the Series 2 Cumulative
Convertible Redeemable Preferred Stock of the Corporation. The term "equity
securities" does not include debt securities, which will rank senior to the
Series F Preferred Stock prior to conversion.
(iii) Distributions.
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1) Payment of Distributions. Subject to the rights of holders of Parity
Preferred Stock as to the payment of distributions and holders of equity
securities issued after the date hereof in accordance herewith ranking senior to
the Series F Preferred Stock as to payment of distributions, holders of Series F
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors of the Corporation, out of funds legally available for the
payment of distributions, cumulative cash distributions at the rate per annum of
8.75% of the $100.00 liquidation preference per share of Series F Preferred
Stock. Such distributions shall be cumulative, shall accrue from the original
date of issuance and will be payable in cash (A) quarterly (such quarterly
periods for purposes of payment and accrual will be the quarterly periods ending
on the dates specified in this sentence) in arrears, on or before March 31, June
30, September 30 and December 31 of each year commencing on the first of such
dates to occur after the original date of issuance and, (B) in the event of a
redemption, on the redemption date (each a "Preferred Stock Distribution Payment
Date"). The amount of the distribution payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and for any period
shorter than a full quarterly period for which distributions are computed, the
amount of the distribution payable will be computed on the basis of the ratio of
the actual number of days elapsed in such period to ninety (90) days. If any
date on which distributions are to be made on the Series F Preferred Stock is
not a Business Day (as defined herein), then payment of the distribution to be
made on such date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date. Distributions on the Series F
Preferred Stock will be made to the holders of record of the Series F Preferred
Stock on the relevant record dates to be fixed by the Board of Directors of the
Corporation, which record dates shall be not less than 10 days and not more than
30 Business Days prior to the relevant Preferred Stock Distribution Payment Date
(each a "Distribution Record Date "). Notwithstanding anything to the contrary
set forth herein, each share of Series F Preferred Stock shall also continue to
accrue all accrued and unpaid distributions, whether or not declared, up to the
exchange date on any Series F Preferred Unit (as defined in the Third Amended
and Restated Agreement of Limited Partnership of Regency Centers, L.P., dated as
September 1, 1999 as amended by Amendment No. 1 to the Third Amended and
Restated Agreement of Limited Partnership of Operating Partnership, dated as of
September 3, 1999, Amendment No. 2 to the Third Amended and Restated Agreement
of Limited Partnership of Operating Partnership, dated as of September 3, 1999,
that certain Third Amendment to Third Amended and Restated Agreement of Limited
Partnership dated as of September 29, 1999, Amendment No. 4 to the Third Amended
and Restated Agreement of Limited Partnership of Operating Partnership, undated,
Amendment No. 5 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 7, 2000, and that
certain Amendment No. 6 to the Third Amended and Restated Agreement of Limited
Partnership of Operating Partnership, dated as of September 8, 2000 (as amended
the "Partnership Agreement")) validly exchanged into such share of Series F
Preferred Stock in accordance with the provisions of such Partnership Agreement.
The term "Business Day" shall mean each day, other than a
Saturday or a Sunday, which is not a day on which banking institutions in New
York, New York are authorized or required by law, regulation or executive order
to close.
2) Limitation on Distributions. No distribution on the Series F Preferred Stock
shall be declared or paid or set apart for payment by the Corporation at such
time as the terms and provisions of any agreement of the Corporation (other than
any agreement with a holder or affiliate of holder of Capital Stock (as defined
in the Charter) of the Corporation) relating to its indebtedness, prohibit such
declaration, payment or setting apart for payment or provide that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, payment or setting
apart for payment shall be restricted or prohibited by law. Nothing in this
Section 3(b) shall be deemed to modify or in any manner limit the provisions of
Section 3(c) and 3(d).
3) Distributions Cumulative. Distributions on the Series F Preferred Stock will
accrue whether or not the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness at any time
prohibit the current payment of distributions, whether or not the Corporation
has earnings, whether or not there are funds legally available for the payment
of such distributions and whether or not such distributions are authorized or
declared. Accrued but unpaid distributions on the Series F Preferred Stock will
accumulate as of the Preferred Stock Distribution Payment Date on which they
first become payable. Distributions on account of arrears for any past
distribution periods may be declared and paid at any time, without reference to
a regular Preferred Stock Distribution Payment Date to holders of record of the
Series F Preferred Stock on the record date fixed by the Board of Directors
which date shall be not less than 10 days and not more than 30 Business Days
prior to the payment date. Accumulated and unpaid distributions will not bear
interest.
4) Priority as to Distributions.
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a) So long as any Series F Preferred Stock is outstanding, no distribution of
cash or other property shall be authorized, declared, paid or set apart for
payment on or with respect to any class or series of Common Stock or any class
or series of other stock of the Corporation ranking junior to the Series F
Preferred Stock as to the payment of distributions (such Common Stock or other
junior stock, collectively, "Junior Stock"), nor shall any cash or other
property be set aside for or applied to the purchase, redemption or other
acquisition for consideration of any Series F Preferred Stock, any Parity
Preferred Stock with respect to distributions or any Junior Stock, unless, in
each case, all distributions accumulated on all Series F Preferred Stock and all
classes and series of outstanding Parity Preferred Stock with respect to
distributions have been paid in full. Without limiting Section 6(b) hereof, the
foregoing sentence will not prohibit (i) distributions payable solely in shares
of Junior Stock, (ii) the conversion of Junior Stock or Parity Preferred Stock
into Junior Stock, and (iii) purchases by the Corporation of such Series F
Preferred Stock or Parity Preferred Stock or Junior Stock pursuant to Article 5
of the Charter to the extent required to preserve the Corporation's status as a
real estate investment trust.
b) So long as distributions have not been paid in full (or a sum sufficient for
such full payment is not irrevocably deposited in trust for payment) upon the
Series F Preferred Stock, all distributions authorized and declared on the
Series F Preferred Stock and all classes or series of outstanding Parity
Preferred Stock with respect to distributions shall be authorized and declared
so that the amount of distributions authorized and declared per share of Series
F Preferred Stock and such other classes or series of Parity Preferred Stock
shall in all cases bear to each other the same ratio that accrued distributions
per share on the Series F Preferred Stock and such other classes or series of
Parity Preferred Stock (which shall not include any accumulation in respect of
unpaid distributions for prior distribution periods if such class or series of
Parity Preferred Stock does not have cumulative distribution rights) bear to
each other.
5)No Further Rights. Holders of Series F Preferred Stock shall not be
entitled to any distributions, whether payable in cash, other property or
otherwise, in excess of the full cumulative distributions described herein.
(iv) Liquidation Preference.
1) Payment of Liquidating Distributions. Subject to the rights of holders of
Parity Preferred Stock with respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation and subject to equity
securities ranking senior to the Series F Preferred Stock with respect to rights
upon any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, the holders of Series F Preferred Stock shall be entitled to
receive out of the assets of the Corporation legally available for distribution
or the proceeds thereof, after payment or provision for debts and other
liabilities of the Corporation, but before any payment or distributions of the
assets shall be made to holders of Common Stock or any other class or series of
shares of the Corporation that ranks junior to the Series F Preferred Stock as
to rights upon liquidation, dissolution or winding-up of the Corporation, an
amount equal to the sum of (i) a liquidation preference of $100 per share of
Series F Preferred Stock, and (ii) an amount equal to any accumulated and unpaid
distributions thereon, whether or not declared, to the date of payment. In the
event that, upon such voluntary or involuntary liquidation, dissolution or
winding-up, there are insufficient assets to permit full payment of liquidating
distributions to the holders of Series F Preferred Stock and any Parity
Preferred Stock as to rights upon liquidation, dissolution or winding-up of the
Corporation, all payments of liquidating distributions on the Series F Preferred
Stock and such Parity Preferred Stock shall be made so that the payments on the
Series F Preferred Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the Series F
Preferred Stock and such other Parity Preferred Stock (which shall not include
any accumulation in respect of unpaid distributions for prior distribution
periods if such Parity Preferred Stock do not have cumulative distribution
rights) upon liquidation, dissolution or winding-up of the Corporation bear to
each other.
2) Notice. Written notice of any such voluntary or involuntary liquidation,
dissolution or winding-up of the Corporation, stating the payment date or dates
when, and the place or places where, the amounts distributable in such
circumstances shall be payable, shall be given by (i) fax and (ii) by first
class mail, postage pre-paid, not less than 30 and not more than 60 days prior
to the payment date stated therein, to each record holder of the Series F
Preferred Stock at the respective addresses of such holders as the same shall
appear on the share transfer records of the Corporation.
3) No Further Rights. After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series F Preferred
Stock will have no right or claim to any of the remaining assets of the
Corporation.
4) Consolidation, Merger or Certain Other Transactions. The voluntary sale,
conveyance, lease, exchange or transfer (for cash, shares of stock, securities
or other consideration) of all or substantially all of the property or assets of
the Corporation to, or the consolidation or merger or other business combination
of the Corporation with or into, any corporation, trust or other entity (or of
any corporation, trust or other entity with or into the Corporation) shall not
be deemed to constitute a liquidation, dissolution or winding-up of the
Corporation.
5) Permissible Distributions. In determining whether a distribution (other than
upon voluntary liquidation) by dividend, redemption or other acquisition of
shares of stock of the Corporation or otherwise is permitted under the FBCA, no
effect shall be given to amounts that would be needed, if the Corporation were
to be dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of holders of shares of stock of the Corporation whose
preferential rights upon dissolution are superior to those receiving the
distribution.
(v) Optional Redemption.
1) Right of Optional Redemption. The Series F Preferred Stock may not be
redeemed prior to September 8, 2005. On or after such date, the Corporation
shall have the right to redeem the Series F Preferred Stock, in whole or in
part, at any time or from time to time, upon not less than 30 nor more than 60
days' written notice, at a redemption price, payable in cash, equal to $100 per
share of Series F Preferred Stock plus accumulated and unpaid distributions,
whether or nor declared, to the date of redemption. If fewer than all of the
outstanding shares of Series F Preferred Stock are to be redeemed, the shares of
Series F Preferred Stock to be redeemed shall be selected pro rata (as nearly as
practicable without creating fractional units).
2) Limitation on Redemption.
a) The redemption price of the Series F Preferred Stock (other than the portion
thereof consisting of accumulated but unpaid distributions) will be payable
solely out of sale proceeds of capital stock of the Corporation and from no
other source. For purposes of the preceding sentence, "capital stock" means any
equity securities (including Common Stock and Preferred Stock), shares,
participation or other ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable for equity
securities) or options to purchase any of the foregoing.
b) The Corporation may not redeem fewer than all of the outstanding shares of
Series F Preferred Stock unless all accumulated and unpaid distributions have
been paid on all Series F Preferred Stock for all quarterly distribution periods
terminating on or prior to the date of redemption.
3) Procedures for Redemption.
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a) Notice of redemption will be (i) faxed, and (ii) mailed by the Corporation,
postage prepaid, not less than 30 nor more than 60 days prior to the redemption
date, addressed to the respective holders of record of the Series F Preferred
Stock to be redeemed at their respective addresses as they appear on the
transfer records of the Corporation. No failure to give or defect in such notice
shall affect the validity of the proceedings for the redemption of any Series F
Preferred Stock except as to the holder to whom such notice was defective or not
given. In addition to any information required by law or by the applicable rules
of any exchange upon which the Series F Preferred Stock may be listed or
admitted to trading, each such notice shall state: (i) the redemption date, (ii)
the redemption price, (iii) the number of shares of Series F Preferred Stock to
be redeemed, (iv) the place or places where such shares of Series F Preferred
Stock are to be surrendered for payment of the redemption price, (v) that
distributions on the Series F Preferred Stock to be redeemed will cease to
accumulate on such redemption date and (vi) that payment of the redemption price
and any accumulated and unpaid distributions will be made upon presentation and
surrender of such Series F Preferred Stock. If fewer than all of the shares of
Series F Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series F
Preferred Stock held by such holder to be redeemed.
b) If the Corporation gives a notice of redemption in respect of Series F
Preferred Stock (which notice will be irrevocable) then, by 12:00 noon, New York
City time, on the redemption date, the Corporation will deposit irrevocably in
trust for the benefit of the Series F Preferred Stock being redeemed funds
sufficient to pay the applicable redemption price, plus any accumulated and
unpaid distributions, whether or not declared, if any, on such shares to the
date fixed for redemption, without interest, and will give irrevocable
instructions and authority to pay such redemption price and any accumulated and
unpaid distributions, if any, on such shares to the holders of the Series F
Preferred Stock upon surrender of the certificate evidencing the Series F
Preferred Stock by such holders at the place designated in the notice of
redemption. If fewer than all Series F Preferred Stock evidenced by any
certificate is being redeemed, a new certificate shall be issued upon surrender
of the certificate evidencing all Series F Preferred Stock, evidencing the
unredeemed Series F Preferred Stock without cost to the holder thereof. On and
after the date of redemption, distributions will cease to accumulate on the
Series F Preferred Stock or portions thereof called for redemption, unless the
Corporation defaults in the payment thereof. If any date fixed for redemption of
Series F Preferred Stock is not a Business Day, then payment of the redemption
price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date fixed for redemption. If
payment of the redemption price or any accumulated or unpaid distributions in
respect of the Series F Preferred Stock is improperly withheld or refused and
not paid by the Corporation, distributions on such Series F Preferred Stock will
continue to accumulate from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the applicable redemption price and any
accumulated and unpaid distributions.
4) Status of Redeemed Stock. Any Series F Preferred Stock that shall at any time
have been redeemed shall after such redemption, have the status of authorized
but unissued Preferred Stock, without designation as to class or series until
such shares are once more designated as part of a particular class or series by
the Board of Directors.
(vi) Voting Rights.
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1) General. Holders of the Series F Preferred Stock will not have any
voting rights, except as set forth below.
2) Right to Elect Directors.
a) If at any time distributions shall be in arrears (which means that, as to any
such quarterly distributions, the same have not been paid in full) with respect
to six (6) prior quarterly distribution periods (including quarterly periods on
the Series F Preferred Units prior to the exchange into Series F Preferred
Stock), whether or not consecutive, and shall not have been paid in full (a
"Preferred Distribution Default"), the authorized number of members of the Board
of Directors shall automatically be increased by two and the holders of record
of such Series F Preferred Stock, voting together as a single class with the
holders of each class or series of Parity Securities (as defined below), will be
entitled to fill the vacancies so created by electing two additional directors
to serve on the Corporation's Board of Directors (the "Preferred Stock
Directors") at a special meeting called in accordance with Section 6(b)(ii) or
at the next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders or special meeting held in place thereof, until all such
distributions in arrears and distributions for the current quarterly period on
the Series F Preferred Stock and each such class or series of Parity Securities
have been paid in full.
b) At any time when such voting rights shall have vested, a proper officer of
the Corporation shall call or cause to be called, upon written request of
holders of record of at least 10% of the outstanding shares of Series F
Preferred Stock, a special meeting of the holders of Series F Preferred Stock
and all the series of Parity Preferred Stock which are (i) on parity with the
Series F Preferred Stock both as to distributions and rights upon liquidation,
dissolution and winding up, (ii) with respect to Parity Preferred Stock
outstanding as a result of an acquisition of another corporation, on parity with
the Series F Preferred Stock as to distributions only or with respect to
distributions and rights upon liquidation, dissolution or winding up or (iii) on
parity with the Series F Preferred Stock as to distributions, but junior as to
rights upon liquidation, dissolution and winding up, but if any such Parity
Preferred Stock referred to in this clause (iii) was issued for an amount less
than its liquidation preference, the holders thereof shall be entitled to one
vote for each $25.00 of issuance price, in lieu of one vote for each $25.00 of
liquidation preference, and upon which like voting rights have been conferred
and are exercisable (collectively, the "Parity Securities") by mailing or
causing to be mailed to such holders a notice of such special meeting to be held
not less than ten and not more than 45 days after the date such notice is given.
The record date for determining holders of the Parity Securities entitled to
notice of and to vote at such special meeting will be the close of business on
the third Business Day preceding the day on which such notice is mailed. At any
annual or special meeting at which Parity Securities are entitled to vote, all
of the holders of the Parity Securities, by plurality vote, voting together as a
single class without regard to series will be entitled to elect two directors on
the basis of one vote per $25.00 of liquidation preference to which such Parity
Securities are entitled by their terms (excluding amounts in respect of
accumulated and unpaid dividends) and not cumulatively. The holder or holders of
the Parity Securities representing one-third of the total voting power of the
Parity Securities then outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred Stock Directors except as
otherwise provided by law. Notice of all meetings at which holders of the Series
F Preferred Stock shall be entitled to vote will be given to such holders at
their addresses as they appear in the transfer records. At any such meeting or
adjournment thereof in the absence of a quorum, subject to the provisions of any
applicable law, the holders of the Parity Securities representing a majority of
the voting power of the Parity Securities present in person or by proxy shall
have the power to adjourn the meeting for the election of the Preferred Stock
Directors, without notice other than an announcement at the meeting, until a
quorum is present. If a Preferred Distribution Default shall terminate after the
notice of an annual or special meeting has been given but before such meeting
has been held, the Corporation shall, as soon as practicable after such
termination, mail or cause to be mailed notice of such termination to holders of
the Series F Preferred Stock that would have been entitled to vote at such
meeting.
c) If and when all accumulated distributions and the distribution for the
current distribution period on the Series F Preferred Stock shall have been paid
in full or a sum sufficient for such payment is irrevocably deposited in trust
for payment, the holders of the Series F Preferred Stock shall be divested of
the voting rights set forth in Section 6(b) herein (subject to revesting in the
event of each and every Preferred Distribution Default) and, if all
distributions in arrears and the distributions for the current distribution
period have been paid in full or set aside for payment in full on all other
classes or series of Parity Securities upon which like voting rights have been
conferred and are exercisable, the term and office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of record of a majority of the
outstanding Series F Preferred Stock when they have the voting rights set forth
in Section 6(b) (voting separately as a single class with all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable). So long as a Preferred Distribution Default
shall continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in office,
or if none remains in office, by a vote of the holders of record of a majority
of the outstanding Series F Preferred Stock when they have the voting rights set
forth in Section 6(b) (voting separately as a single class with all other
classes or series of Parity Securities upon which like voting rights have been
conferred and are exercisable). The Preferred Stock Directors shall each be
entitled to one vote per director on any matter.
3) Certain Voting Rights. So long as any Series F Preferred Stock remains
outstanding, the Corporation shall not, without the affirmative vote of the
holders of at least two-thirds of the Series F Preferred Stock and the Series F
Preferred Units outstanding at such time and not previously surrendered in
exchange for Series F Preferred Stock together, if applicable, voting as a
single class based on the number of shares into which such Series F Preferred
Units are then convertible (collectively, the "Series F Voting Securities") (i)
designate or create, or increase the authorized or issued amount of, any class
or series of shares ranking senior to the Series F Preferred Stock with respect
to payment of distributions or rights upon liquidation, dissolution or
winding-up or reclassify any authorized shares of the Corporation into any such
shares, or create, authorize or issue any obligations or securities convertible
into or evidencing the right to purchase any such shares, (ii) designate or
create, or increase the authorized or issued amount of, any Parity Preferred
Stock or reclassify any authorized shares of the Corporation into any such
shares, or create, authorize or issue any obligations or securities convertible
into or evidencing the right to purchase any such shares, but only to the extent
such Parity Preferred Stock is issued to an affiliate of the Corporation (other
than Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates if issued upon arms-length terms in the good faith determination of
the Board of Directors), or (iii) either (A) consolidate, merge into or with, or
convey, transfer or lease its assets substantially as an entirety, to any
corporation or other entity, or (B) amend, alter or repeal the provisions of the
Corporation's Charter (including these Articles of Amendment) or By-laws,
whether by merger, consolidation or otherwise, in each case that would
materially and adversely affect the powers, special rights, preferences,
privileges or voting power of the Series F Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of a merger,
consolidation or a sale or lease of all of the Corporation's assets as an
entirety, so long as (a) the Corporation is the surviving entity and the Series
F Preferred Stock remains outstanding with the terms thereof unchanged, or (b)
the resulting, surviving or transferee entity is a corporation organized under
the laws of any state and substitutes the Series F Preferred Stock for other
preferred stock having substantially the same terms and same rights as the
Series F Preferred Stock, including with respect to distributions, voting rights
and rights upon liquidation, dissolution or winding-up, then the occurrence of
any such event shall not be deemed to materially and adversely affect such
rights, privileges or voting powers of the holders of the Series F Preferred
Stock and no vote of the Series F Voting Securities shall be required in such
case; and provided further that any increase in the amount of authorized
Preferred Stock or the creation or issuance of any other class or series of
Preferred Stock, or any increase in an amount of authorized shares of each class
or series, in each case ranking either (a) junior to the Series F Preferred
Stock with respect to payment of distributions or the distribution of assets
upon liquidation, dissolution or winding-up, or (b) on a parity with the Series
F Preferred Stock with respect to payment of distributions or the distribution
of assets upon liquidation, dissolution or winding-up to the extent such
Preferred Stock is not issued to a affiliate of the Corporation (other than
Security Capital U.S. Realty, Security Capital Holdings, S.A. or their
affiliates if issued upon arms-length terms in the good faith determination of
the Board of Directors), shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers and no vote of the Series
F Preferred Stock shall be required in such case.
(vii) No Conversion Rights. The holders of the Series F Preferred Stock shall
not have any rights to convert such shares into shares of any other class or
series of stock or into any other securities of, or interest in, the
Corporation.
(viii) No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series F Preferred Stock.
(ix) No Preemptive Rights. No holder of the Series F Preferred Stock of the
Corporation shall, as such holder, have any preemptive rights to purchase or
subscribe for additional shares of stock of the Corporation or any other
security of the Corporation which it may issue or sell.
