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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
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For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
CenterPoint Properties Trust
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(Exact name of registrant as specified in its charter)
Maryland 36-3910279
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(State of incorporation or organization) (I.R.S. Employer Identification No.)
1808 Swift Road, Oak Brook, Illinois 60523-1501
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box. /X/
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box. / /
Securities Act registration statement file number to which this form relates:
333-49359 (if applicable).
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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 B Convertible New York Stock Exchange
Cumulative Redeemable Preferred
Shares, par value $.001
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED:
% SERIES B CONVERTIBLE CUMULATIVE REDEEMABLE PREFERRED SHARES
The securities of CenterPoint Properties Trust (the "Registrant") to be
registered on the New York Stock Exchange, Inc. are % Series B Convertible
Cumulative Redeemable Preferred Shares, $.001 par value, $50.00 liquidation
preference ("Series B Preferred Shares").
Incorporated by reference in this Registration Form are:
- description of the general terms and provisions of preferred shares
of the Registrant under the heading "Description of Shares of
Beneficial Interest" set forth in the Prospectus dated April 13, 1998
(File No. 333-49359); and
- description of the Series B Preferred Shares under the heading
"Description of the Series B Preferred Shares" set forth in the
Prospectus Supplement dated June 17, 1999 and filed by the Registrant
on June __, 1999 pursuant to Rule 424(b) under the Securities Act.
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ITEM 2. EXHIBITS
The following exhibits are included as part of this Registration Statement:
EXHIBIT DESCRIPTION
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*1. Declaration of Trust (dated August 12, 1997) as amended by
Articles Supplementary for the 8.48% Series A Cumulative
Redeemable Preferred Shares of Beneficial Interest (dated
November 4, 1997)
*2. By-laws as amended
**3. Articles Supplementary for the Junior Participating
Preferred Shares, Series A (dated July 30, 1998)
4. Articles Supplementary for the Series B Preferred Shares
(dated June __, 1999)
5. Share certificate (specimen) for Series B Preferred Shares
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* Incorporated by reference to the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1998.
** Incorporated by reference to the Registrant's Registration Statement on
Form 8-K (filed on August 3, 1998).
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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, thereto duly authorized.
CENTERPOINT PROPERTIES TRUST
Date:June 17, 1999
By: /s/ Paul S. Fisher
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Paul S. Fisher
Executive Vice President and
Chief Financial Officer (Principal
Financial and Accounting Officer)
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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*1. Declaration of Trust (dated August 12, 1997) as amended
by Articles Supplementary for the 8,48% Series A
Cumulative Redeemable Preferred Shares of Beneficial
Interest (dated November 4, 1997)
*2. By-laws as amended
**3. Articles Supplementary for the Junior Participating
Preferred Shares, Series A (dated July 30, 1998)
4. Articles Supplementary for the Series B Preferred Shares
(dated June __, 1999)
5. Share certificate (specimen) for Series B Preferred Shares
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* Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1998.
** Incorporated by reference from the Registrant's Registration Statement
on Form 8-K (filed on August 3, 1998).
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CENTERPOINT PROPERTIES TRUST
ARTICLES SUPPLEMENTARY
7.50% SERIES B CONVERTIBLE CUMULATIVE
REDEEMABLE PREFERRED SHARES
CenterPoint Properties Trust, a Maryland real estate investment
trust (the "Company"), hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST: Pursuant to authority contained in Section 2.3 of the
Declaration of Trust of the Company (the "Declaration"), the Board of
Trustees, by a duly authorized committee thereof, duly classified and
designated 1,000,000 shares of the 10,000,000 authorized Series of its
Preferred Shares (the "Preferred Shares") of beneficial interest in the
Company, par value $.001 per share, as 7.50% Series B Convertible Cumulative
Redeemable Preferred Shares of Beneficial Interest (the "Series B Preferred
Shares").
SECOND: The terms of the Series B Preferred Shares, including the
preferences, conversions and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption, as set by the Board of Trustees are as follows:
Section 1. DESIGNATION AND NUMBER.
The shares of the series of Preferred Shares hereby created shall be
designated as "7.50% Series B Convertible Cumulative Redeemable Preferred
Shares of Beneficial Interest", par value $.001 per share and the number of
shares constituting such series shall be 1,000,000.
Section 2. RANKING.
The Series B Preferred Shares will, with respect to dividend rights
and rights upon liquidation, dissolution or winding up of the Company, rank
(a) senior to all classes or series of common shares of beneficial interest
of the Company, including its Class B Common Shares (the "Common Shares") and
to all equity securities ranking junior to such Series B Preferred Shares;
(b) on a parity with the 8.48% Series A Cumulative Redeemable Preferred
Shares of Beneficial Interest of the Company (the "Series A Preferred
Shares") and all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank on a parity with the
Series B Preferred Shares (collectively, the "Parity Preferred"); and (c)
junior to all equity securities issued in accordance with subsection 7(d)
below by the Company the terms of which specifically provide that such equity
securities rank senior to the Series B Preferred Shares. The term "equity
securities" does not include convertible debt securities for this purpose.
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Section 3. DIVIDENDS
(a) Holders of the Series B Preferred Shares will be entitled to
receive, when and as authorized by the Board of Trustees, out of funds legally
available for the payment of dividends, cumulative preferential cash dividends
at the rate of 7.50% of the $50.00 liquidation preference per annum (equivalent
to $3.75 per annum per share). Dividends on the Series B Preferred Shares will
accrue and be cumulative from the date of original issue and will be payable
quarterly in arrears on or about the 30th day of each March, June, September and
December or, if not a business day, the next business day (each, a "Dividend
Payment Date"). The first dividend on the Series B Preferred Shares, which will
be paid on or about September 30, 1999, will be for more than a full quarter.
That dividend and any dividend payable on the Series B Preferred Shares for a
partial dividend period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Dividends will be payable to holders of
record as they appear in the share records of the Company at the close of
business on the applicable record date, which shall be the fifteenth (15th) day
of the calendar month in which the applicable Dividend Payment Date falls or
such other date designated by the Board of Trustees for the payment of dividends
that is not more than thirty (30) nor less than ten (10) days prior to such
dividend payment date (each a "Dividend Record Date"). As used herein, the term
"business day" shall mean any day other than a Saturday, Sunday, or a day on
which banking institutions in the state of New York are authorized or obliged by
law or executive order to close.
(b) No dividends on the Series B Preferred Shares will be authorized by
the Board of Trustees of the Company or be paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of the
Company, including any agreement relating to its indebtedness, prohibits such
authorization, payment or setting apart for payment or provides that such
authorization, payment or setting apart for payment would constitute a breach of
or a default under such agreement, or if such authorization or payment is
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series B Preferred
Shares will accrue whether or not the terms and provisions set forth in
subsection 3(b) hereof at any time prohibit the current payment of dividends,
whether or not the Company has earnings, whether or not there are funds legally
available for the payment of such dividends, and whether or not such dividends
are authorized. Accrued but unpaid dividends on the Series B Preferred Shares
will accumulate as of the Dividend Payment Date on which they first become
payable.
(d) Except as provided in subsection 3(e) below, no dividends (other
than a dividend paid in the Common Shares or in shares of any other class of
shares of beneficial interest ranking junior to the Series B Preferred Shares as
to dividends and upon liquidation) shall be authorized or paid or set apart for
payment, nor shall any other distribution be authorized or made, upon the Common
Shares, or on any other shares of beneficial interest of the Company ranking
junior to or on a parity with the Series B Preferred Shares as to dividends or
upon liquidation, for any period unless full cumulative dividends for all past
dividend periods and the then current dividend period have been
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or contemporaneously are (i) authorized and paid or (ii) authorized and a sum
sufficient for the payment thereof is set apart for such payment on the Series B
Preferred Shares.
(e) When dividends are not paid in full (or a sum sufficient for such
full payment is not so set apart) upon the Series B Preferred Shares and the
shares of any other series of Preferred Shares ranking on a parity as to
dividends with the Series B Preferred shares, all dividends authorized upon the
Series B Preferred Shares and any other series of Preferred Shares ranking on a
parity as to dividends with the Series B Preferred Shares shall be authorized
pro rata so that the amount of dividends authorized per share of Series B
Preferred Shares and such other series of Preferred Shares shall in all cases
bear to each other the same ratio that accrued dividends per share on the Series
B Preferred Shares and such other series of Preferred Shares (which shall not
include any accrual in respect of unpaid dividends on such other series of
Preferred Shares for prior dividend periods if such other series of Preferred
Shares does not have a cumulative dividend) bear to each other. No interest, or
sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on the Series B Preferred Shares which may be in arrears.
(f) Unless full cumulative dividends on the Series B Preferred Shares
have been or contemporaneously are authorized and paid or declared and a sum
sufficient for the payment thereof is set apart for payment for all past
dividend periods and the then current dividend period, no Common Shares, or any
other shares of beneficial interest of the Company ranking junior to or on a
parity with the Series B Preferred Shares as to dividends or upon liquidation,
shall be redeemed, purchased or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption of any
such shares) by the Company (except by conversion into or exchange for other
shares of beneficial interest of the Company ranking junior to the Series B
Preferred Shares as to dividends and upon liquidation, and except as set forth
in subsection 5(f) below).
(g) Holders of Series B Preferred Shares shall not be entitled to any
dividend, whether payable in cash, property or shares of beneficial interest, in
excess of full cumulative dividends on the Series B Preferred Shares as provided
above. Any dividend payment made on the Series B Preferred Shares shall first be
credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable.
(h) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")) any portion (the "Capital Gains Amount") of
the dividends (within the meaning of the Code) paid or made available for the
year to holders of all classes of shares of beneficial interest in the Company
(the "Total Dividends"), then the portion of the Capital Gains Amount that will
be allocable to the holders of Series B Preferred Shares will be the Capital
Gains Amount multiplied by a fraction, the numerator of which will be the total
dividends (within the meaning of the Code) paid or made available to the holders
of the Series B Preferred Shares for the year and the denominator of which shall
be the Total Dividends.
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Section 4. LIQUIDATION
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, the holders of the Series B Preferred
Shares then outstanding are entitled to be paid out of the assets of the Company
legally available for distribution to its shareholders liquidating distributions
in cash or property at its fair market value as determined by the Board of
Trustees in the amount of a liquidation preference of $50.00 per share plus an
amount equal to any accrued and unpaid dividends to the date of such
liquidation, dissolution or winding up, before any distribution of assets is
made to holders of Common Shares or any other class or series of beneficial
interest of the Company that rank junior to the Series B Preferred Shares as to
liquidation rights.
(b) In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Company are
insufficient to pay the amount of the liquidating distributions on all
outstanding Series B Preferred Shares and the corresponding amounts payable on
all shares of other classes or series of shares of beneficial interest of the
Company ranking on a parity with the Series B Preferred Shares in the
distribution of assets (such as the Series B Preferred Shares), then the holders
of the Series B Preferred Shares and all other such classes or series of shares
of beneficial interest shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
(c) Written notice of any such liquidation, dissolution or winding up
of the Company, 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 first class mail, postage pre-paid, not less than thirty (30) nor
more than sixty (60) days prior to the payment date stated therein, to each
record holder of the Series B Preferred Shares at the respective addresses of
such holders as the same shall appear on the share transfer records of the
Company.
(d) After payment of the full amount of the liquidating distributions
to which they are entitled, the holders of Series B Preferred Shares will have
no right or claim to any of the remaining assets of the Company.
(e) The consolidation or merger of the Company with or into any other
corporation, trust or entity or of any other corporation, trust or other entity
with or into the Company, or the sale, lease or conveyance of all or
substantially all of the property or business of the Company shall not be deemed
to constitute a liquidation, dissolution or winding up of the Company.
Section 5. REDEMPTION BY THE COMPANY
(a) RIGHT OF OPTIONAL REDEMPTION.
(i) The Series B Preferred Shares are not redeemable
prior to June 30, 2004, except pursuant to this Section 5(f) and Section 6.
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(ii) On and after June 30, 2004, the Company, at its option
and upon not less than thirty (30) nor more than sixty (60) days' written
notice, may redeem the Series B Preferred Shares, in whole or in part, at any
time or from time to time, for cash at a redemption price of $50.00 per share
plus all accrued and unpaid dividends thereon to the date fixed for redemption,
without interest.
(iii) If fewer than all of the outstanding Series B Preferred
Shares are to be redeemed, the Series B Preferred Shares to be redeemed will be
selected pro rata (as nearly as may be practicable without creating fractional
shares) or by any other equitable method determined by the Company.
(iv) The Series B Preferred Shares have no stated maturity and
will not be subject to any sinking fund or mandatory redemption provision,
except as provided in subsection 5(f) below.
(b) LIMITATION ON REDEMPTION.
(i) The redemption price of the Series B Preferred Shares
(other than the portion thereof consisting of accrued and unpaid dividends)
redeemed pursuant to subsection 5(a) above is payable solely out of the sale
proceeds of other shares of beneficial interest of the Company, which may
include other series of Preferred Shares, and not from any other source. For
purposes of the preceding sentence, "shares of beneficial interest" means any
equity securities (including Common Shares and Preferred Shares), shares,
depositary shares, participations, 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.
(ii) Unless full cumulative dividends on all Series B
Preferred Shares and all Parity Preferred shall have been or
contemporaneously are authorized and paid or authorized and a sum sufficient
for the payment thereof set apart for payment for all past dividend periods
and the then current dividend period, no Series B Preferred Shares shall be
redeemed unless all outstanding Series B Preferred Shares and Parity
Preferred are simultaneously redeemed and the Company shall not purchase or
otherwise acquire directly or indirectly any Series B Preferred Shares
(except by exchange for shares of beneficial interest of the Company ranking
junior to the Series B Preferred Shares as to dividends and upon
liquidation); provided, however, that the foregoing shall not prevent the
purchase by the Company of Excess Shares in order to ensure the Company
remains qualified as a REIT for federal income tax purposes or the purchase
or acquisition of Series B Preferred Shares pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding Series B
Preferred Shares.
(c) PROCEDURES FOR REDEMPTION
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(i) Notice of redemption pursuant to subsection 5(a) above
will be given by publication in a newspaper of general circulation in the City
of New York, such publication to be made once a week for two successive weeks
commencing not less than thirty (30) nor more than sixty (60) days prior to the
redemption date. A similar notice will be mailed by the Company, postage
prepaid, not less than thirty (30) nor more than sixty (60) days prior to the
redemption date, addressed to the respective holders of record of the Series B
Preferred Shares to be redeemed at their respective addresses as they appear on
the share transfer records of the Company. A failure to give such notice or any
defect in the notice or in its mailing will not affect the validity of the
proceedings for the redemption of any Series B Preferred Shares except as to the
holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the
applicable rules of any exchange upon which Series B Preferred shares may be
listed or admitted to trading, such notice shall state: (A) the redemption date;
(B) the redemption price; (C) the number of Series B Preferred Shares to be
redeemed; (D) the place or places where the Series B Preferred Shares are to be
surrendered for payment of the redemption price; and (E) that dividends on the
shares to be redeemed will cease to accrue on such redemption date. If fewer
than all the Series B Preferred Shares held by any holder are to be redeemed,
the notice mailed to such holder shall also specify the number of Series B
Preferred Shares held by such holder to be redeemed.
(iii) Holders of Series B Preferred Shares to be redeemed
shall surrender such Series B Preferred Shares at the place designated in such
notice and shall be entitled to the redemption price and any accrued and unpaid
dividends payable upon such redemption following such surrender. In case less
than all the shares of the Series B Preferred Shares represented by any such
certificate are redeemed, a new certificate or new certificates representing the
unredeemed shares of the Series B Preferred shares shall be issued without cost
to the holder thereof.
(iv) If notice of redemption of any Series B Preferred Shares
has been given and if the funds necessary for such redemption have been set
aside by the Company in trust for the benefit of the holders of any Series B
Preferred Shares so called for redemption, then from and after the redemption
date dividends will cease to accrue on such Series B Preferred Shares, such
Series B Preferred Shares will no longer be deemed outstanding and all rights of
the holders of such shares will terminate, except the right to receive the
redemption price plus accrued and unpaid dividends to such redemption date.
(d) RIGHTS TO DIVIDENDS ON SHARES CALLED FOR REDEMPTION
Immediately prior to any redemption of Series B Preferred
Shares, the Company shall pay, in cash, any accumulated and unpaid dividends
through the redemption date, unless a redemption date falls after a Dividend
Record Date and prior to the corresponding Dividend Payment Date, in which case
each holder of Series B Preferred Shares at the close of business on a Dividend
Record Date will be entitled to receive the dividend declared and payable with
respect to the Series
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B Preferred Shares on the corresponding Dividend Payment Date notwithstanding
the redemption of the Series B Preferred Shares between such Dividend Record
Date and the corresponding Dividend Payment Date or any default of the Company
in the payment of the dividend due. Except as provided above, the Company will
make no payment or allowance for unpaid dividends, whether or not in arrears, on
Series B Preferred Shares to be redeemed.
(f) APPLICATION OF ARTICLE IV OF THE DECLARATION OF TRUST. In order to
ensure that the Company remains a qualified real estate investment trust
("REIT") for federal income tax purposes, Series B Preferred Shares shall be
subject to the provisions of Article IV of the Declaration of Trust, pursuant to
which Series B Preferred Shares owned by a shareholder in excess of the
Ownership Limit (as defined in the Declaration of Trust) will constitute Excess
Shares (as defined in the Declaration of Trust) and the Company will have the
right to purchase Excess Shares from the holder. Series B Preferred Shares which
constitute Excess Shares pursuant to the Declaration of Trust shall be deemed to
have been offered for sale to the Company, which offer may be accepted for the
period of time set forth in the Declaration of Trust, at a redemption price per
share equal to the lesser of (i) the price per share in the transaction that
created such Excess Shares (or, in the case of a devise or gift, the Market
Price (as defined in the Declaration of Trust) at the time of such devise or
gift) and (ii) the Market Price of the Series B Preferred on the date the
Company, or its designee, accepts such offer.
(g) STATUS OF REDEEMED SHARES. Any shares of Series B Preferred that
shall at any time have been redeemed shall, after such redemption, have the
status of authorized but unissued Preferred Shares, without designation as to
series until such shares are once more designated as part of a particular series
by the Board of Trustees.
Section 6. OPTIONAL REDEMPTION FOLLOWING THE DEATH OF A HOLDER
OF SERIES B PREFERRED
(a) Subject to the limitation on redemption set forth in subsection
5(b)(ii), on the thirtieth day of each March, June, September and December of
each year or, if not a business day, the next business day, commencing
September 30, 1999, the Company will, following the death of any registered
holder of the Series B Preferred Shares, redeem the Series B Preferred Shares
held by such registered owner upon presentation of the documentation
described below by such registered owner's personal representative or
surviving joint tenant(s). The Company's obligation to redeem such shares
shall be subject to the following limitations: (i) the Company will only
redeem five hundred (500) Series B Preferred Shares per owner per
twelve-month period; and (ii) in any twelve-month period, the Company will
only redeem up to an aggregate of thirty thousand (30,000) Series B Preferred
Shares (each a "Redemption Limitation" and together the "Redemption
Limitations").
(b) To redeem Series B Preferred Shares under these circumstances, the
transfer agent for the Series B Preferred Shares must receive: (i) written
request for redemption in form satisfactory
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to the transfer agent, signed by the personal representative or surviving joint
tenant(s) of the registered owner (each: a "Personal Representative"); (ii) the
Series B Preferred Shares to be redeemed if certificated, or, if not, notice of
the number of shares to be redeemed; (iii) appropriate evidence of death and
ownership of such shares at the time of death; and (iv) appropriate evidence of
the authority of the Personal Representative.
(c) In order for the Series B Preferred Shares to be eligible for the
redemption on any of the dates listed above, the material specified in
subsection 6(b) above must be presented for redemption in full compliance with
the provisions set forth above at least twenty (20) days preceding such dates
and must be deemed acceptable by the transfer agent at least ten (10) days prior
to the applicable redemption date.
(d) A redemption request which exceeds one or both Redemption
Limitations will be held for redemption in subsequent years until redeemed in
full. A redemption request will be applied in order of receipt by the
transfer agent to successive periods, regardless of the number of periods
required to redeem such shares. A redemption request which, if fulfilled,
would violate the provisions of subsection 5(b)(ii) hereof will be held for
redemption at the time such redemption would no longer violate the provisions
of subsection 5(b)(ii) and until redeemed in full. All redemption requests
will be redeemed in order in which received by the transfer agent.
(e) The transfer agent may conclusively assume, without independent
investigation, that the statements contained in each redemption request are true
and correct and shall have no responsibility for reviewing any documents
accompanying a redemption request or for determining whether the applicable
decedent is in fact the owner if the Series B Preferred Shares to be redeemed or
is in fact deceased and whether the Personal Representative is duly authorized
to request redemption on behalf of the applicable owner.
(f) Any redemption by the Company pursuant to this Section 6 may be
made either in cash or in Common Shares. For redemptions made in cash, the
redemption price will be $50.00 per Series B Preferred Share (plus accrued and
unpaid dividends). If the redemption is made in Common Shares, the Company will
notify the Personal Representative that the redemption will be made in Common
Shares at least seven (7) days prior to the redemption settlement date. For
redemptions made in Common Shares, the redemption price will be $50.50 per
Series B Preferred Share based on the Current Market Price (as defined in
subsection 8(c) below) of the Common Shares on the Trading Day (as defined in
subsection 8(c) below) prior to the redemption date (plus cash in an amount
equal to accrued and unpaid dividends). No fractional Common Shares will be
issued. In lieu of any fractional shares, the Company will pay cash in an amount
equal to the product of such fraction multiplied by the closing price of one
Common Share on the Trading Day prior to the redemption date.
(g) The death of a person who, during his lifetime, was entitled to
substantially all of the beneficial interest of ownership (including as a joint
tenant) of Series B Preferred Shares will be deemed the death of a registered
owner, regardless of the registered owner, if such beneficial interest
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can be established to the satisfaction of the transfer agent. Such beneficial
interest shall be deemed to exist in typical cases of street name or nominee
ownership, ownership under the Uniform Transfers to Minors Act or similar
statute, community property or other joint ownership arrangements between
husband and wife, and certain other arrangements where one person has
substantially all of the beneficial ownership interest in the Series B Preferred
Shares during his lifetime. In the case of Series B Preferred Shares registered
in the name of banks, trust companies or broker-dealers who are members of a
national securities exchange or the National Association of Securities Dealers,
Inc. ("Qualified Institutions"), the redemption limitations described above
apply to each beneficial owner of Series B Preferred Shares held by any
Qualified Institution. In connection with the redemption request, each Qualified
Institution must submit evidence, satisfactory to the transfer agent, that it
holds the Series B Preferred Shares subject to request on behalf of such
beneficial owner and must certify the aggregate amount of redemption requests
made on behalf of such beneficial owner.
(h) In the case of a redemption request which is presented on behalf of
a deceased beneficial owner and which has not been fulfilled at the time the
Company gives notice of its election to redeem the Series B Preferred Shares,
the shares which are the subject of such pending redemption request shall be
redeemed prior to any other Series B Preferred Shares.
(i) Any redemption request may be withdrawn upon delivery of a written
request for such withdrawal given to the transfer agent at least ten (10) days
prior to payment for redemption of the shares by reason of the death of a
beneficial owner. Any party withdrawing its redemption request will forfeit its
right to require the Company to redeem the Series B Preferred Shares upon the
death of a shareholder.
Section 7. VOTING RIGHTS
(a) Holders of Series B Preferred Shares will not have any voting
rights, except as set forth below or as otherwise required by law.
(b) Whenever dividends on any Series B Preferred Shares shall be in
arrears for six or more consecutive or non-consecutive quarterly periods (a
"Preferred Dividend Default"), the holders of such Series B Preferred Shares
(voting separately as a class with all other Parity Preferred upon which like
voting rights have been conferred and are exercisable) will be entitled to
vote for the election of a total of two additional trustees of the Company
(the "Preferred Shares Trustees") at a special meeting called by the holders
of record of at least twenty percent (20%) of the outstanding Series B
Preferred Shares or the holders of shares of any series of Parity Preferred
so in arrears, unless such request is received less than ninety (90) days
before the date fixed for the next annual or special meeting of the
shareholders in which case the voting for such additional Trustees shall be
at the next annual or special meeting of shareholders, and at each subsequent
annual meeting until all dividends accumulated on such
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Series B Preferred Shares for the past dividend periods and the accrued dividend
for the then current dividend period shall have been fully paid or a sum
sufficient for the payment thereof set aside for payment in full.
(c) If and when all accumulated dividends and the accrued dividend for
the then current dividend period on the Series B Preferred Shares shall have
been paid in full or set aside for payment in full, the holders of Series B
Preferred Shares shall be divested of the voting rights set forth in subsection
7(b) hereof (subject to revesting in the event of each and every subsequent
Preferred Dividend Default) and, if all accumulated dividends and the accrued
dividend for the current dividend period have been paid in full or set aside for
payment in full on all other series of Parity Preferred upon which like voting
rights have been conferred and are exercisable, the term of office of each
Preferred Shares Trustee so elected shall terminate. Any Preferred Shares
Trustee may be removed at any time with or without cause by the affirmative vote
of, and shall not be removed otherwise than by the affirmative vote of, the
holders of record of the outstanding Series B Preferred Shares when they have
the voting rights set forth in subsection 7(b) and the holders of record of any
other series of Parity Preferred upon which like voting rights have been
conferred and are exercisable representing a majority of such Series B Preferred
Shares and other series of Parity Preferred, if any, entitled to be voted on the
matter, voting as a single class. So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Shares Trustee may be filled
by written consent of the Preferred Shares Trustee remaining in office, or if
none remains in office, by the affirmative vote of the holders of record of the
outstanding Series B Preferred Shares when they have the voting rights set forth
in subsection 7(b) and the holders of record of any other series of Parity
Preferred upon which like voting rights have been conferred and are exercisable
representing a majority of such Series B Preferred Shares and other series of
Parity Preferred, if any, entitled to be voted on the matter, voting as a single
class. Each of the Preferred Shares Trustees shall be entitled to one vote on
any matter.
(d) So long as any Series B Preferred Shares remain outstanding, the
Company shall not, without the affirmative vote of the holders of at least
two-thirds of the Series B Preferred Shares outstanding at the time, given in
person or by proxy, either in writing or at a meeting (such Series B Preferred
Shares voting separately as a class):
(i) authorize or create, or increase the authorized or issued
amount of, any class or series of shares of beneficial interest ranking prior to
the Series B Preferred Shares with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or winding up or reclassify
any authorized shares of beneficial interest of the Company into such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares;
(ii) amend, alter or repeal the provisions of the Articles
Supplementary establishing the Series B Preferred Shares, whether by merger,
consolidation or otherwise, so as to materially and adversely affect any right,
preference, privilege or voting power of the Series B Preferred Shares or the
holders thereof; or
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<PAGE>
(iii) enter into a consolidation or merger in which another
entity is the surviving entity, unless the holders of the Series B Preferred
Shares receive a preference security the rights, preferences, privileges and
voting power of which do not differ from those of the Series B Preferred Shares
in any manner which is material and adverse to the holder of the Series B
Preferred Shares; provided, however, that with respect to the occurrence of any
event set forth in (ii) or (iii) above, so long as the Series B Preferred Shares
remain outstanding with the terms thereof materially unchanged, or the terms of
the securities issued in exchange for the Series B Preferred Shares in the
consolidation or merger are not materially different from those of the Series B
Preferred Shares, the occurrence of any such event shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers of the holders of the Series B Preferred Shares and provided further that
any increase in the amount of the authorized Preferred Shares or the creation or
issuance of any other series of preferred shares, or any increase in the amount
of authorized shares of such series, in each case ranking on a parity with or
junior to the Series B Preferred Shares with respect to payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up, shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting powers.
(e) The foregoing voting provisions shall not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding Series B Preferred Shares shall have
been redeemed or called for redemption upon proper notice and sufficient funds
shall have been deposited in trust to effect such redemption.
Section 8. CONVERSION
Holders of Series B Preferred Shares shall have the right to
convert all or a portion of such shares into Common Shares as follows:
(a) Subject to and upon compliance with the provisions of this Section
8, a holder of Series B 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 (for purpose of this Section 8, "Common Shares"
shall mean voting Common Shares and not Class B Common Shares) obtained by
dividing the aggregate liquidation preference of such shares by the Conversion
Price (as in effect at the time and on the date provided for in subsection
8(b)(iv) below) by surrendering such shares to be converted, such surrender to
be made in the manner provided in subsection 8(b)(iv) below; provided, however,
that the right to convert shares called for redemption pursuant to subsection
5(a) hereof shall terminate at the close of business on the Redemption Date
fixed for such redemption, unless the Company shall default in making payment of
the Common Shares and any cash payable upon such redemption under Section 5(a)
hereof. The initial Conversion Price is equal to $43.50 per Common Share
(equivalent to a conversion rate of 1.1494 Common Shares per Series B Preferred
Share) and is subject to adjustment as provided in subsection 8(d) below.
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<PAGE>
(b) (i) In order to exercise the conversion right, the holder of a
Series B Preferred Share to be converted shall surrender the certificate
representing such share, if certificated, duly endorsed or assigned to the
Company or in blank, at the office of the transfer agent, accompanied by written
notice to the Company that the holder thereof elects to convert such Series B
Preferred Share. If such shares are not certificated, the holder must deliver
evidence of ownership satisfactory to the Company and the transfer agent. Unless
the shares issuable on conversion are to be issued in the same name as the name
in which such Series B Preferred Shares are registered, shares surrendered for
conversion shall be accompanied by written notice of conversion and instruments
of transfer, in form satisfactory to the Company, 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 Company
demonstrating that such taxes have been paid).
(ii) Holders of Series B Preferred Shares at the close of
business on a Dividend Record Date shall be entitled to receive the distribution
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such Dividend Record Date and
prior to such Dividend Payment Date. However, Series B Preferred Shares
surrendered for conversion during the period between the close of business on
any Dividend Record Date and the opening of business on the corresponding
Dividend Payment Date (except shares converted after the issuance of notice of
redemption with respect to a redemption date during such period or coinciding
with such Dividend Payment Date, such Series B Preferred Shares being entitled
to such distribution on the Dividend Payment Date) must be accompanied by
payment of an amount equal to the distribution payable on such shares on such
Dividend Payment Date. A holder of Series B Preferred Shares on a Dividend
Record Date who (or whose transferees) tenders any such shares for conversion
into Common Shares on such Dividend Payment Date will receive the distribution
payable by the Company on such Series B Preferred Shares on such date, and the
converting holder need not include payment of the amount of such distribution
upon surrender of Series B Preferred Shares for conversion. Except as provided
above, the Company shall make no payment or allowance for unpaid distributions,
whether or not in arrears, on converted shares or for distributions on the
Common Shares issued upon such conversion.
(iii) As promptly as practicable after the surrender of Series
B Preferred Shares as aforesaid, the Company 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 8, and any
fractional interest in respect of a Common Share arising upon such conversion
shall be settled as provided in subsection 8(c) below.
(iv) Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which the Series B
Preferred Shares shall have been surrendered and such notice (and if applicable,
payment of an amount equal to the distribution payable on such shares) received
by the Company 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
shares represented thereby at such time
12
<PAGE>
on such date, and such conversion shall be at the Conversion Price in effect at
such time and on such date unless the share transfer books of the Company 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 share transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date on which such
shares have been surrendered and such notice received by the Company.
(c) No fractional shares of scrip representing fractions of Common
Shares shall be issued upon conversion of the Series B Preferred Shares.
Instead, the Company shall pay to the holder of such share an amount in cash
based upon the Current Market Price (as defined below) of Common Shares on the
Trading Day (as defined below) immediately preceding the date of conversion. If
more than one Series B 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 B Preferred Shares so surrendered. As used in these Articles
Supplementary, "Current Market Price" of publicly traded common shares or any
other class of shares or other security of the Company or any other issuer for
any day means 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 (the "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 Company or the Board of Trustees. As used in these Articles
Supplementary, "Trading Day" means 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, of if such
securities are not quoted on such NASDAQ National Market, in the applicable
securities market in which the securities are traded.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Company shall after the first date on which Series
B Preferred Shares are issued and sold (the "Issue Date") (A) pay a distribution
or make a distribution on its Common Shares in Common Shares, (B) subdivide its
outstanding Common Shares into a greater number of shares, (C) combine its
outstanding Common Shares into smaller number of shares or (D) issue any shares
of capital stock by reclassification of its Common Shares, the Conversion Price
in effect at the opening business on the day following the date fixed for the
determination of shareholders entitled to receive such distribution or at the
opening of business on the day following the day on
13
<PAGE>
which such subdivision, combination or reclassification becomes effective, as
the case may be, shall be adjusted so that the holder any Series B Preferred
Shares thereafter surrendered for conversion shall be entitled to receive the
number 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 shares
been converted immediately prior to the record date in the case of a
distribution or the effective date in the case of a subdivision, combination or
reclassification. An adjustment made pursuant to this subsection 8(d)(i) shall
become effective immediately after the opening of business on the day next
following the record date (except as provided in subsection 8(h) below) in the
case of a distribution and shall become effective immediately after the opening
of business on the day next following the effective date in the case of a
subdivision, combination or reclassification.
(ii) If the Company shall issue after the Issue Date rights,
options or warrants to all holders of Common Shares entitling them (for a period
expiring within forty-five (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 (as defined in subsection 8(d)(v) below) 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 Company from the exercise of such rights, options or
warrants for Common Shares would purchase at such Fair Market Value, and the
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 after the opening of business on the day next
following such record date (except as provided in Section 8(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 the Fair
Market Value, there shall be taken into account any consideration received by
the Company 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 of the Company or the Board of Trustees.
(iii) If the Company shall distribute to all holders of its
Common Shares evidence of its indebtedness or assets (excluding cash
distributions out of the total equity applicable to Common Shares, including
revaluation equity, less the amount of stated capital attributable to Common
Shares) and excluding those rights and warrants issued to all holders of Common
Shares entitling them for a period expiring within forty-five (45) days after
the record date referred to in subsection (ii) above to subscribe for or
purchase Common Shares, which rights and warrants are referred to in and treated
under subsection (ii) above) (any of the foregoing being hereinafter in this
subsection (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
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<PAGE>
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 the Common Share on the
record date mentioned below less the then fair market value (as determined by
the chief executive officer of the Company 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 per Common Share on the record date
mentioned below. Such adjustment shall become effective immediately at the
opening of business on the business day next following (except as provided in
Section 8(h) below) the record date for the determination of shareholders
entitled to receive such distribution. For the purposes of this subsection
(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
distributed with each Common Share delivered to a person converting a Series
B Preferred Share after such determination date, shall not require an
adjustment of the Conversion Price pursuant to this subsection (iii);
provided that on the date, if any, on which a person converting a Series B
Preferred Share would no longer be entitled to receive such Security with a
Common Share (other than 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 subsection (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).
(iv) No adjustment in the Conversion Price shall be required
until cumulative adjustments amount to one percent (1%) or more of the
Conversion Price; provided, however, that any adjustments that by reason this
subsection (iv) are not required to be made shall be carried forward and taken
into account in subsequent adjustments; and provided, further, that any
adjustment shall be required and made in accordance with the provisions of this
Section 8 (other than this subsection (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
8, the Company 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 distributions or interest payable on securities of the
Company and the investment of additional optional amounts in Common Shares under
such plan. All calculations under this Section 8 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
Section 8(d) to the contrary notwithstanding, the Company shall be entitled, to
the extent permitted by law, to make such reductions in the Conversion Price, in
addition to those required by this Section 8(d), as it in its discretion shall
determine to be advisable in order that any stock distributions, 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 distributions) hereafter made by the Company to its
shareholders shall not be taxable.
15
<PAGE>
(v) As used in these Articles Supplementary, "Fair Market
Value" means the average of the daily Current Market Prices of a Common Share
during the five (5) consecutive Trading Days selected by the Company commencing
not more than twenty (20) Trading Days before, and ending not later than, the
earlier of the day in question and the day before the "ex date" with respect to
the issuance or distribution requiring such computation. The term "ex date" when
used with respect to any issuance or distribution, means the first day on which
the 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.
(e) If the Company shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange,
self-tender offer for all or substantially all of the Common Shares, sale of all
or substantially all of its assets (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 shares, stock, other securities or
property (including cash or any combination thereof), each Series B Preferred
Shares which is not converted into the right to receive shares, stock, other
securities or property receivable in connection with such Transaction shall
thereafter be convertible into the kind and amount of shares, stock, other
securities and 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 B Preferred Share was convertible immediately prior
to such Transaction, assuming such holder of Common Shares (i) is not a person
with which the Company consolidated or into which the Company merged or which
merged into the Company or to which such sale or transfer was made, as the case
may be (a "Constituent Person"), or an affiliate of a Constituent Person and
(ii) failed to exercise his or her rights of the election, if any, as to the
kind or amount shares, stock, securities and other property (including cash)
receivable upon such Transaction (each a "Non-Electing Share") (provided that
the kind or amount of shares, 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 of receivable per share by a plurality of the
non-electing shares). The Company may not be a party to any Transaction unless
the terms of such Transaction are consistent with the provisions of this
subsection (e), and it shall not consent or agree to the occurrence of any
Transaction until the Company has entered into an agreement with the successor
or purchasing entity, as the case may be, for the benefit of the holders of the
Series B Preferred Shares that will contain provisions enabling the holders of
the Series B Preferred Shares that remain outstanding after such Transaction to
convert into the consideration received by holders of Common Shares at the
Conversion Price in effect immediately prior to such Transaction. The provisions
of this subsection (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Company shall declare a distribution on the Common
Shares (other than in cash out of the total equity applicable to Common Shares,
including revaluation equity, 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
16
<PAGE>
the Company and its consolidated subsidiaries available at the time of the
declaration of this distribution); or
(ii) the Company 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; or
(iii) there shall be any reclassifications of the Common
Shares (other than an event to which subsection 8(d)(i) hereof applied) or any
consolidation or merger to which the Company is a party and for which approval
of any shareholders of the Company 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 Company 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 Company as an entity and for which approval of any
shareholder of the Company is required; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Company,
then the Company shall cause to be filed with the transfer agent for the Series
B Preferred Shares and shall cause to be mailed to the holders of the Series B
Preferred Shares at their addresses as shown on the share records of the
Company, as promptly as possible, but at least fifteen (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 purposes of such 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 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 8.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Company 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 Company shall prepare a
notice of such adjustment of the Conversion Price setting forth the adjusted
Conversion Price and the effective date such adjustment becomes effective and
shall mall such notice of such adjustment of the Conversion Price to the holder
of each Series B Preferred Share at such holder's last address as shown on the
share records of the Company
17
<PAGE>
(h) In any case in which subsection 8(d) hereof provides that an
adjustment shall become effective on the date next following the record date for
an event, the Company may defer until the occurrence of such event (A) issuing
to the holder of any Series B Preferred Shares 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) fractionalizing any Series B Preferred Share and/or
paying to such holder any amount of cash in lieu of any fraction pursuant to
subsection 8(c).
(i) There shall be no adjustment of the Conversion Price in case of the
issuance of any shares of the Company in a reorganization, acquisition or other
similar transaction except as specifically set forth in this Section 8. If any
action or transaction would require adjustment of the Conversion Price pursuant
to more than one subsection of this Section 8, only one adjustment shall be
made, and such adjustment shall be the amount of adjustment that has the highest
absolute value.
(j) If the Company shall take any action affecting the Common Shares,
other than action described in this Section 8, that in the opinion of the Board
of Trustees would have a material adverse effect on the conversion rights of the
holders of the Series B Preferred Shares, the Conversion Price for the Series B
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 Company 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 B Preferred Shares, the full number of Common Shares deliverable upon the
conversion of all outstanding Series B Preferred Shares not theretofore
converted. For purposes of this subsection (k), the number of Common Shares that
shall be deliverable upon the conversion of all outstanding Series B Preferred
Shares shall be computed as if at the time of computation all such outstanding
shares were held by a single holder. The Company covenants that any Common
Shares issued upon conversion of the Series B 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 B Preferred Shares, the
Company will take any action that, in the opinion of its counsel, may be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable Common Shares at such adjusted Conversion Price. The Company
shall endeavor to list the Common Shares required to be delivered upon
conversion of the Series B 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 Company shall be obligated to deliver upon conversion of the Series B
Preferred Shares, the Company 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.
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<PAGE>
(l) The Company will 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 B Preferred Shares
pursuant hereto; provided, however, that the Company shall not be required to
pay any tax that may be payable in respect of any transfer involved in the issue
or delivery of Common Shares or other securities or property in a name other
than that of the holder of the Series B 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 Company the amount of any such tax or
established, to the reasonable satisfaction of the Company, that such tax has
been paid.
(m) In addition to the foregoing adjustments, the Company will be
permitted to make such reductions in the Conversion Price as it considers to be
advisable in order that any event treated for federal income tax purposes as a
dividend of stock or stock rights will not be taxable to the holders of the
Common Shares.
THIRD: The Series B Preferred Shares have been
classified and designated by the Board of Trustees under the authority
contained in the Declaration.
FOURTH: These Articles Supplementary have been approved
by the Board of Trustees in the manner and by the vote required by law.
FIFTH: 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 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 these Articles Supplementary
to be executed under seal in its name and on its behalf by its president and
attested to by its Secretary on this __ day of June, 1999.
ATTEST: CENTERPOINT PROPERTIES TRUST
(Seal)
_________________________ By: _________________________________
Rockford O. Kottka, Paul S. Fisher
Assistant Secretary Title: Executive Vice President
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<PAGE>
% SERIES B
CONVERTIBLE CUMULATIVE REDEEMABLE
PREFERRED SHARES OF BENEFICIAL INTEREST,
PAR VALUE $.001 PER SHARE
(LIQUIDATION PREFERENCE EQUAL TO
$50.00 PER SHARE)
CENTERPOINT
NUMBER PROPERTIES-REGISTERED TRADEMARK-
PB [CENTERPOINT LOGO]-SIGNATURE MARK- SHARES
WHERE INDUSTRY WORKS-SIGNATURE MARK-
ORGANIZED UNDER THE LAWS
OF THE STATE OF MARYLAND
CENTERPOINT PROPERTIES TRUST
CUSIP 151895 30 7
THIS CERTIFIES THAT SEE REVERSE FOR TRANSFER RESTRICTIONS
AND CERTAIN DEFINITIONS
IS THE OWNER OF
FULLY PAID AND NONASSESSABLE PREFERRED SHARES OF BENEFICIAL INTEREST, PAR
VALUE $.001 PER SHARE, OF
CENTERPOINT PROPERTIES TRUST TRANSFERABLE ON THE BOOKS OF THE TRUST IN PERSON
OR BY DULY AUTHORIZED ATTORNEY ON THE 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 OF
THE TRUST, AS THE SAME MAY BE AMENDED. THIS CERTIFICATE IS NOT VALID UNLESS
COUNTERSIGNED AND REGISTERED BY THE TRANSFER AGENT AND REGISTRAR.
WITNESS THE FACSIMILE SEAL OF THE TRUST AND THE FACSIMILE SIGNATURES OF
ITS DULY AUTHORIZED OFFICERS.
DATED:
/s/ Paul S. Fisher John S. Gates, Jr.
SECRETARY PRESIDENT
COUNTERSIGNED AND REGISTERED:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
CENTERPOINT PROPERTIES TRUST
[SEAL]
MARYLAND
1997
AMERICAN BANK NOTE COMPANY
680 BLAIR MILL ROAD
HORSHAM, PA 19044
(215) 657-3480
SALES: P. SHEERIN: 1-708-599-0404
<PAGE>
CENTERPOINT PROPERTIES TRUST
The securities represented by this certificate are subject to restrictions on
transfer for the purpose of the Trust's maintenance of its status as a real
estate investment trust under the Internal Revenue Code of 1986, as amended.
Except as otherwise provided pursuant to the Declaration of Trust of the
Trust, no person may Beneficially Own Common Shares or Preferred Shares in
excess of 9.8% (or such greater percentages as may be determined by the
Trustees of the Trust) of the number or value of the outstanding Equity
Shares of the Trust (unless such person is an Existing Holder). Any Person
who attempts or proposes to Beneficially Own Common Shares or Preferred
Shares in excess of the above limitation must notify the Trust in writing at
least 15 days prior to such proposed or attempted transfer. All capitalized
terms in this legend have the meanings defined in the Declaration of Trust of
the Trust, a copy of which, including the restrictions on transfer, will be
sent without charge to each shareholder who so requests. If the restrictions
on transfer are violated, the securities represented hereby will be
designated and treated as shares of Excess Shares which will be held in trust
by the Trust.
ON WRITTEN REQUEST TO THE TRANSFER AGENT, THE TRUST WILL FURNISH WITHOUT
CHARGE TO ANY SHAREHOLDER A COPY OF THE DECLARATION OF TRUST OF THE TRUST, AS
MAY BE AMENDED FROM TIME TO TIME, INCLUDING THE RESTRICTIONS ON OWNERSHIP AND
TRANSFER. IN ADDITION, THE TRUST WILL FURNISH WITHOUT CHARGE TO ANY
SHAREHOLDER, ON WRITTEN REQUEST TO THE TRANSFER AGENT, A FULL STATEMENT OF
(1) THE DESIGNATIONS AND PREFERENCES, CONVERSIONS AND OTHER RIGHTS, VOTING
POWERS, RESTRICTIONS, LIMITATIONS AS TO THE DIVIDENDS, QUALIFICATIONS, AND
TERMS AND CONDITIONS OF REDEMPTION OF THE SHARES OF EACH CLASS WHICH THE
TRUST IS AUTHORIZED TO ISSUE AND (2) THE AUTHORITY OF THE TRUST TO ISSUE ANY
PREFERRED OR SPECIAL CLASS IN SERIES, THE DIFFERENCES IN THE RELATIVE RIGHTS
AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES TO THE EXTENT THAT THEY
HAVE BEEN SET AND THE AUTHORITY OF THE TRUSTEES TO SET THE RELATIVE RIGHTS
AND PREFERENCES OF SUBSEQUENT SERIES.
The following abbreviations, when used in the inscription on the face of
this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -- ________________ Custodian _________________
(Cust) (Minor)
under Uniform Gifts to Minors
Act _________________________
(State)
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, ______________________hereby sell, assign and transfer unto
(Please insert U.S. social security or other
identifying number of Assignee)
_______________________________________________________________________________
(Please print or typewrite name and address, including zip code, of assignee)
_______________________________________________________________________________
Shares of beneficial interest represented by the within Certificate, and do
hereby irrevocably constitute and appoint
______________________________________________________________________Attorney,
to transfer the Shares on the books of the within-named Trust, with full
power of substitution in the premises.
Dated: ___________________________ Signature: _______________________________
NOTE: 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.
