RESTATED ARTICLES OF INCORPORATION
OF
WESTFIELD AMERICA, INC.
Westfield America, Inc., a Missouri corporation organized on
September 24, 1924, does hereby restate its Articles of Incorporation and
certifies that the Restated Articles of Incorporation correctly sets forth,
without change, the corresponding provisions of the Articles of
Incorporation as heretofore amended and that the Restated Articles of
Incorporation supersede the original Articles of Incorporation and all
amendments thereto.
The Restated Articles of Incorporation were adopted May 12, 1997
by unanimous consent of the share holders of the corporation and are
attached hereto as Exhibit A.
IN WITNESS WHEREOF, the undersigned, Co-President has executed
this instrument and its Assistant Secretary has attested to said instrument
on the 16th day of May, 1997.
WESTFIELD AMERICA, INC.
ATTEST: By: /s/ Peter Lowy
---------------------------
Co-President
/s/ Barry Mills
------------------------
Assistant Secretary
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
I, Gail Shulman, a notary public, do hereby certify that on this
16th day of May, 1997, personally appeared before me Peter S. Lowy, and
being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foregoing document as
Co-President of the corporation, and that the statements therein contained
are true.
[SEAL] /s/ Gail Shulman
------------------------------
Notary Public
My Commission Expires: February 28, 1998
EXHIBIT A
ARTICLE FIRST
The name of the corporation is: Westfield America, Inc.
ARTICLE SECOND
The Corporation's registered agent in the State of Missouri shall
be The Corporation Company, 7733 Forsyth Boulevard, Clayton, Missouri
631015-1817.
ARTICLE THIRD
The Corporation is formed for the following purposes:
(a) To take, purchase or otherwise acquire, and to hold, own,
use, manage, develop, control, improve, sell, exchange, convey, transfer,
assign, mortgage or otherwise encumber, and to let, lease as lessor or
lessee, invest in and otherwise deal in and with real property, or any
estate or interest therein, within and without the State of Missouri and in
any part of the world; and
(b) To have and exercise all powers which are or may be conferred
upon corporations organized under and pursuant to The General and Business
Corporation Law of Missouri (the "GBCL").
ARTICLE FOURTH
SECTION 4.1 Classes and Number of Shares.
The total number of shares of all classes of stock that the
Corporation shall have authority to issue is four hundred ten million, and
two hundred (410,000,200) shares, consisting of (i) two hundred (200)
shares of non-voting senior preferred stock, par value $1.00 per share (the
"Senior Preferred Shares"), (ii) five million (5,000,000) shares of
preferred stock, par value $1.00 per share (the "Preferred Shares"), of
which nine hundred forty thousand (940,000) shares shall be designated
Series A cumulative redeemable preferred stock (the "Series A Preferred 2
Shares"), (iii) two-hundred million (200,000,000) shares of common stock,
par value $.01 per share (the "Common Shares"), and (iv) two hundred five
million (205,000,000) shares of excess stock, par value $.01 per share (the
"Excess Shares"). Excess Shares, if any, that are exchanged pursuant to
Sections 4.5(c) and 4.7 hereof (i) for Common Shares, are sometimes
referred to herein as "Excess Common Shares", (ii) for Preferred Shares,
are sometimes referred to herein as "Excess Preferred Shares", and together
with the Preferred Shares, as "Preferred Equity Shares", and (iii) for
Series A Preferred Shares, are sometimes referred to herein as "Excess
Series A Preferred Shares", and together with the Series A Preferred
Shares, as "Series A Equity Shares". The Preferred Shares and Excess
Preferred Shares may be issued, from time to time, in one or more series as
authorized by the Board of Directors of the Corporation (the "Board of
Directors"). Prior to issuance of a series, the Board of Directors by
resolution shall designate that series to distinguish it from other series
and classes of stock of the Corporation, shall specify the number of shares
to be included in the series, and shall fix the terms, rights, restrictions
and qualifications of the shares of the series, including any preferences,
voting powers, dividend rights and redemption, sinking fund and conversion
rights. Subject to the express terms of any other series of Preferred
Equity Shares outstanding at the time, the Board of Directors may increase
or decrease the number of shares or alter the designation or classify or
reclassify any unissued shares of a particular series of Preferred Equity
Shares by fixing or altering in any one or more respects from time to time
before issuing the shares any terms, rights, restrictions and
qualifications of the shares. The Senior Preferred Shares and the Preferred
Shares are sometimes referred to herein collectively as the "Senior
Shares". The Common Shares and the Excess Common Shares are sometimes
referred to herein collectively as the "Common Equity Shares".
SECTION 4.2 Senior Preferred Shares.
(a) General Terms. Each Senior Preferred Share shall be identical
in all respects with each other Senior Preferred Share. Senior Preferred
Shares that are redeemed or purchased by the Corporation may, at the
election of the Corporation either (i) be reissued by the Corporation or
(ii) be canceled and if so canceled shall revert to authorized but unissued
Senior Preferred Shares. No other shares of the Corporation may be
authorized that are senior to or pari passu with the Senior Preferred
Shares with respect to rights to receive dividends and rights upon
liquidation of the Corporation.
(b) Dividend Rights. (i) The holders of Senior Preferred Shares
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor, cash dividends
at the annual rate of $35.00 per share, and no more, payable quarterly on
the first day of January, April, July and October, respectively, in each
year with respect to the quarterly dividend period (or portion thereof)
ending on the day preceding such respective dividend payment date, to
shareholders of record on the respective date, not exceeding fifty days
preceding such dividend payment date, fixed for the purpose by the Board of
Directors in advance of payment of each particular dividend.
(ii) So long as any Senior Preferred Shares remain outstanding,
no dividend whatever shall be paid or declared and no distribution made on
any Preferred Shares or Common Equity Shares other than a dividend payable
in Preferred Shares or Common Equity Shares, and no shares of Preferred
Shares or Common Equity Shares shall be purchased, redeemed or otherwise
acquired for consideration by the Corporation, directly or indirectly
(other than as a result of a reclassification of Preferred Shares or Common
Equity Shares, or the exchange or conversion of one Preferred Share or
Common Equity Share for or into another Preferred Share or Common Equity
Share or other than through the use of the proceeds of a substantially
contemporaneous sale of other Preferred Shares or Common Shares), unless
the full dividend payable with respect to the Senior Preferred Shares for
the then current quarterly-yearly dividend period shall have been paid or
declared and set apart for payment. Subject to the foregoing, and not
otherwise, dividends may be declared by the Board of Directors and paid on
any Series A Equity Shares or Common Equity Shares from time to time out of
any funds legally available therefor, and the Senior Preferred Shares shall
not be entitled to participate in any such dividends, whether payable in
cash, stock or otherwise.
(c) Rights Upon Liquidation. In the event of any voluntary
liquidation, dissolution or winding up of the affairs of the Corporation,
the holders of Senior Preferred Shares shall be entitled, before any
distribution or payment is made to the holders of any Preferred Shares or
Common Equity Shares, to be paid in full an amount equal to $550.00 per
share (which amount is hereinafter referred to as the "senior voluntary
liquidation amount"), together with the full dividend thereon for the then
current quarterly-yearly dividend period. In the event of any involuntary
liquidation, dissolution or winding up of the affairs of the Corporation,
then, before any distribution or payment shall be made to the holders of
any Preferred Shares or Common Equity Shares, the holders of Senior
Preferred Shares shall be entitled to be paid in full an amount equal to
$550.00 per share (which amount is hereinafter referred to as the "senior
involuntary liquidation amount"), together with the full dividend thereon
for the then current quarterly-yearly dividend period.
If payment shall have been made in full to all holders of Senior
Preferred Shares, the remaining assets of the Corporation shall be
distributed among the holders of Preferred Shares or Common Equity Shares,
according to their respective numbers of shares. For the purposes of this
Section 4.2(c), the consolidation or merger of the Corporation with any
other corporation shall not be deemed to constitute a liquidation,
dissolution or winding up of the Corporation.
(d) Redemption. The Corporation, at the option of the Board of
Directors, may redeem in whole, but not in part, the Senior Preferred
Shares at the time outstanding at any time from and after February 20,
1999, upon notice given as hereinafter specified, at a redemption price for
each Senior Preferred Share equal to $550.00, together with the full
dividend thereon for the then current quarterly-yearly dividend period.
Notice of redemption of the Senior Preferred Shares shall be
mailed by first class mail, postage prepaid, addressed to the holders of
record of the shares to be redeemed at their respective last addresses as
they shall appear on the books of the Corporation. Such mailing shall be at
least 30 days and not more than 60 days prior to the date fixed for
redemption. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the
shareholder receives such notice, and failure duly to give such notice by
mail, or any defect in such notice, to any holder of Senior Preferred
Shares designated for redemption shall not affect the validity of the
proceedings for the redemption of any other Senior Preferred Shares.
The Board of Directors shall have full power and authority,
subject to the provisions herein contained, to prescribe the terms and
conditions upon which Senior Preferred Shares shall be redeemed.
If notice of redemption shall have been duly given, and if, on or
before the redemption date specified therein, all funds necessary for such
redemption shall have been set aside by the Corporation, separate and apart
from its other funds, in trust for the pro rata benefit of the holders of
the shares called for redemption, so as to be and continue to be available
therefor, then, notwithstanding that any certificate for shares so called
for redemption shall not have been surrendered for cancellation, all shares
so called for redemption shall no longer be deemed outstanding on and after
such redemption date, and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the
right of the holders thereof to receive the amount payable on redemption
thereof, without interest.
Any funds so set aside and unclaimed at the end of three years
from such redemption date shall, to the extent permitted by law, be
released or repaid to the Corporation, after which repayment the holders of
the shares so called for redemption shall look only to the Corporation for
payment thereof.
(e) Voting Rights. Except as required by applicable law, the holders
of Senior Preferred Shares shall have no voting rights in the Corporation.
(f) No Other Rights. The Senior Preferred Shares shall not have any
relative, participating, optional or other special rights and powers other
than as set forth herein.
(g) Legend. Any certificate evidencing Senior Preferred Shares shall
be stamped or endorsed with a legend in substantially the following form:
THE SHARES OF SENIOR PREFERRED STOCK REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND
ACCORDINGLY NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE
SOLD, TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID
ACT AND ANY
SUCH LAWS APPLICABLE THERETO AND THE RULES AND
REGULATIONS THEREUNDER.
SECTION 4.2A Series A Preferred Shares.
(a) General Terms. Each Series A Preferred Share shall be
identical in all respects to each other Series A Preferred Share. Each
Excess Series A Preferred Share shall be identical in all respects to each
other Excess Series A Preferred Share, and except as otherwise provided
herein, shall be identical in all respects to each Series A Preferred
Share. Series A Preferred Shares that are redeemed or purchased by the
Corporation may, at the election of the Corporation either (i) be reissued
by the Corporation or (ii) be canceled and if so canceled shall revert to
authorized but unissued Preferred Shares.
(b) Dividend Rights. (i) The holders of Series A Equity Shares
shall be entitled to receive, when and as declared by the Board of
Directors, but only out of funds legally available therefor, cumulative
cash dividends payable to shareholders of record on the respective date,
not exceeding 50 days preceding such dividend payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend in an amount equal to the greater of (A) $8.50 per share per annum
and (B) an amount per share equal to 6.2461 (subject to proportional
adjustment in the case of any subdivision, stock split, stock dividend,
combination or reverse split of the Common Equity Shares or the Preferred
Equity Shares) (as so adjusted from time to time, the "Common Equivalent
Factor") times the dollar amount of dividends declared with respect to each
Common Equity Share (such product, the "Common Equivalent Amount") for the
same annual period; provided, however, that if, as a result of the
quarterly dividends paid in accordance with the following sentence, the
holders of Series A Equity Shares shall have received for any calendar year
more dividends than such Shares shall be entitled under clauses (A) and (B)
above, the dividends payable in respect of Series A Preferred Shares in
subsequent calendar years shall be reduced to the extent of such
overpayment. Subject to the proviso of the preceding sentence of this
Section 4.2A(b)(i), the dividend paid in respect of each quarterly period
in each calendar year shall be determined as follows: (1) for the first
quarter, the greater of $2.125 per share and the Common Equivalent Amount
for same quarter; (2) for the second quarter, an amount such that the
aggregate amount to be received per Series A Equity Share in respect of the
first two quarters of such calendar year shall be the greater of $4.25 per
share and the Common Equivalent Amount for the same two quarters; (3) for
the third quarter, an amount such that the aggregate amount to be received
per Series A Equity Share in respect of the first three quarters of such
calendar year shall be the greater of $6.375 per share and the Common
Equivalent Amount for the same three quarters; and (4) for the fourth
quarter, an amount such that the aggregate amount to be received per Series
A Equity Share in respect of such calendar year shall be the amount
provided in the preceding sentence of this Section 4.2A(b)(i). Dividends
paid on shares of Series A Equity Shares in an amount less than the total
amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all Series A
Equity Shares as are outstanding at the time. Accumulated but unpaid
dividends for any past quarterly dividend periods may be declared and paid
at any time, without reference to any regularly scheduled quarterly
dividend payment date, to holders of record on such date, not exceeding 50
days preceding such dividend payment date, fixed for the purpose by the
Board of Directors in advance of payment of each particular dividend.
(ii) So long as any Series A Equity Shares remain outstanding, no
dividend whatever shall be paid or declared and no distribution made on any
Common Equity Shares other than a dividend payable in Common Equity Shares,
and no shares of Common Equity Shares shall be purchased, redeemed or
otherwise acquired for consideration by the Corporation, directly or
indirectly (other than as a result of a reclassification of Common Equity
Shares, or the exchange or conversion of one Common Equity Share for or
into another Common Equity Share, or other than through the use of the
proceeds of a substantially contemporaneous sale of other Common Shares),
unless the full dividend thereon for the then current quarterly dividend
period and all prior dividend periods shall have been paid or declared and
set apart for payment. Subject to the foregoing, and not otherwise, such
dividends may be declared by the Board of Directors and paid on any Common
Equity Shares from time to time out of any funds legally available
therefor, and the Series A Equity Shares shall not be entitled to
participate in any such dividends, whether payable in cash, stock or
otherwise.
(c) Rights Upon Liquidation. In the event of any voluntary
liquidation, dissolution or winding up of the affairs of the Corporation,
the holders of Series A Equity Shares shall be entitled, before any
distribution or payment is made to the holders of any Common Equity Shares,
to be paid in full an amount per share equal to $100.00 (which amount is
hereinafter referred to as the "Series A Preferred voluntary liquidation
amount"), together with (x) all accrued and unpaid dividends through the
end date of the calender quarter most recently completed prior to the date
of liquidation, dissolution or winding up of the affairs of the Corporation
(any such date, a "Series A Voluntary Liquidation Date") plus (y) $2.125
times a fraction equal to the actual number of days elapsed from the end
date of the calendar quarter most recently completed to the relevant Series
A Voluntary Liquidation Date over ninety days. In the event of any
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, then, before any distribution or payment shall be made to the
holders of any Common Equity Shares, the holders of Series A Equity Shares
shall be entitled to be paid in full an amount per share equal to $100.00
(which amount is hereinafter referred to as the "Series A Preferred
involuntary liquidation amount"), together with (x) all accrued and unpaid
dividends through the end date of the calender quarter most recently
completed prior to the date of involuntary liquidation, dissolution or
winding up of the affairs of the Corporation (any such date, a "Series A
Involuntary Liquidation Date"); plus (y) $2.125 times a fraction equal to
the actual number of days elapsed from the end date of the calendar quarter
most recently completed to the relevant Series A Involuntary Liquidation
Date over ninety days.
Payment shall be made in full to all holders of Series A Equity
Shares and other Shares ranking pari passu on liquidation with the Series A
Equity Shares, before any remaining assets of the Corporation shall be
distributed among the holders of Common Equity Shares, according to their
respective numbers of shares. For the purposes of this Section 4.2A(c), the
consolidation or merger of the Corporation with any other corporation shall
not be deemed to constitute a liquidation, dissolution or winding up of the
Corporation, but shall, to the extent appropriate, cause an adjustment to
the Common Equivalent Factor.
(d) Redemption. The Corporation, at the option of the Board of
Directors, with approval of a majority of the Independent Directors (as
defined in Section 4.5 hereof), may redeem in whole, or in part, the Series
A Equity Shares at the time outstanding at any time and from time to time
from and after July 1, 2003, upon notice given as hereinafter specified, at
a redemption price for each Series A Equity Share equal to $100.00,
together with (i) all accrued and unpaid dividends through the end date of
the calender quarter most recently completed prior to the date of
redemption of the Series A Equity Shares (each a "Series A Redemption
Date"); plus (ii) $2.125 times a fraction equal to the actual number of
days elapsed from the end date of the calendar quarter most recently
completed to the relevant Series A Redemption Date over ninety days (such
fraction, the "Pro Rata Adjustment"); plus (iii) a right to receive on the
payment date for dividends declared on the Common Equity Shares with
respect to the calendar quarter during which the relevant Series A
Redemption Date occurs (the "Relevant Quarter"), the excess of (x) the
Common Equivalent Factor times (A) the dollar amount of the per share
dividends declared on the Common Equity Shares for the Relevant Quarter
times the Pro Rata Adjustment plus (B) the dollar amount of the per share
dividends declared on the Common Equity Shares from the beginning of the
calendar year in which such redemption occurs through the end date of the
calendar quarter prior to the Relevant Quarter over (y) the dollar amount
calculated in the preceding clause (ii) plus all other dividends paid on
the Preferred Shares from the beginning of the calendar year during which
the relevant Series A Redemption Date occurs.
If the Corporation shall determine to redeem less than all the
Series A Equity Shares then outstanding, the shares to be redeemed shall be
selected pro rata (as nearly as may be) so that the number of shares
redeemed from each holder shall be the same proportion of all the shares to
be redeemed that the total number of Series A Equity Shares then held by
such holder bears to the total number of Series A Equity Shares then
outstanding.
Notice of redemption of the Series A Equity Shares shall be
mailed by first class mail, postage prepaid, addressed to the holders of
record of the shares to be redeemed at their respective last addresses as
they shall appear on the books of the Corporation. Such mailing shall be at
least 30 days and not more than 60 days prior to the date fixed for
redemption. Any notice which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the
shareholder receives such notice, and failure duly to give such notice by
mail, or any defect in such notice, to any holder of Series A Equity Shares
designated for redemption shall not affect the validity of the proceedings
for the redemption of any other Series A Equity Shares.
The Board of Directors shall have full power and authority,
subject to the provisions herein contained, to prescribe the terms and
conditions upon which Preferred Shares shall be redeemed.
If notice of redemption shall have been duly given, and if, on or
before the redemption date specified therein, the Corporation shall deposit
all funds necessary for such redemption with a bank or trust company in an
account that is separate and apart from its other accounts and shall hold
such funds in trust for the pro rata benefit of the holders of the shares
called for redemption, so as to be and continue to be available therefor,
then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, all shares so
called for redemption shall no longer be deemed outstanding on and after
such redemption date, and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the
right of the holders thereof to receive the amount payable on redemption
thereof, without interest.
Any funds so deposited and unclaimed at the end of two years from
such redemption date shall, to the extent permitted by law, be released or
repaid to the Corporation, after which repayment the holders of the shares
so called for redemption shall look only to the Corporation for payment
thereof.
(e) Voting Rights. The holders of Series A Equity Shares shall
have no voting rights in the Corporation except: (i) in the event that the
Board of Directors has not declared a dividend payable to holders of any
series of Preferred Shares that were authorized with the consent of the
holders of a majority of the Series A Equity Shares or were issued to the
original holder of the Series A Equity Shares (all such Preferred Shares,
collectively the "Ranking Preferred Shares") or the Series A Preferred
Shares for four (4) quarterly dividend periods, the number of directors
constituting the Board of Directors shall, without further action, be
increased by one (1) and the holders of a majority of the Series A Equity
Shares shall have the exclusive right together with holders of all other
series of Ranking Preferred Shares, to elect one (1) director to fill such
newly created directorship until such time as all such dividends in arrears
are made current and paid in full, at which time the director so elected
shall cease to be a director, the number of directors constituting the
Board of Directors shall be reduced by one (1) and such additional voting
rights of the holders of the Series A Equity Shares shall terminate,
subject to revesting in the event of each and every subsequent event of the
character indicated above, (ii) the affirmative vote of the holders of a
majority of the Series A Equity Shares voting together as a class shall be
required to approve any amendment to these Articles of Incorporation that
materially and adversely affects the rights, preferences or powers of the
Series A Equity Shares, including, without limitation, the definition of
Ownership Limit with respect to the Series A Equity Shares, provided, that
(x) except as required by clause (y) where the amendment to these Articles
of Incorporation for which the vote is required pursuant to this clause
(ii) adversely affects the rights, powers and preferences of other series
of Ranking Preferred Shares, then such amendment shall be approved by a
vote of a majority of the Ranking Preferred Shares affected thereby, voting
together as a class and (y) the unanimous approval of the holders of Series
A Equity Shares shall be required for any amendment to these Articles of
Incorporation that would decrease the rate or change the time of payment of
any dividend or distribution on the Series A Equity Shares, decrease the
amount payable upon redemption of the Series A Equity Shares or upon the
voluntary or involuntary liquidation of the Corporation, or advance the
date on which the Series A Equity Shares may be redeemed by the
Corporation, amend the number of shares of Series A Equity Shares required
to effect amendments to these Articles of Incorporation or amend this
Section 4.2A(e), (iii) the affirmative vote of the holders of a majority of
the Ranking Preferred Shares of each affected series voting together as a
class shall be required to approve any merger or consolidation of the
Corporation and another entity in which the Corporation is not the
surviving corporation and each holder of such series of Ranking Preferred
Shares does not receive shares of the surviving corporation with
substantially similar rights, preferences and powers in the surviving
corporation as the Ranking Preferred Shares have with respect to the
Corporation, (iv) the affirmative vote of the holders of a majority of the
Ranking Preferred Shares of each affected series voting together as a class
shall be required to approve any voluntary action by the Board of Directors
intended to cause the Corporation to cease to have the status as a REIT (as
defined in Section 4.5 hereof) and (v) as otherwise required by applicable
law.
(f) No Other Rights. The Series A Equity Shares shall not have
any relative, participating, optional or other special rights and powers
other than as set forth herein.
SECTION 4.3 Common Equity Shares.
(a) Common Equity Shares Subject to Terms of Shares. The Common
Equity Shares shall be subject to the express priorities and limitations of
the Senior Shares.
(b) Dividend Rights. (i) The holders of Common Equity Shares
shall be entitled to receive such dividends as may be declared by the Board
of Directors out of funds legally available therefor.
(ii) Each of the Common Shares, and the Excess Common Shares
shall rank in parity with one another with respect to the declaration and
payment of any dividend or the making of any distribution by, or out of the
property and assets of the Corporation, or the issuance of any rights or
warrants to subscribe for, or purchase securities convertible into, stock
or other securities of the Corporation. No dividend or distribution,
whether payable in cash, securities or other property or assets of the
Corporation, shall be declared or paid or made, and no such rights or
warrants shall be issued, in respect of any of the Common Shares unless an
identical dividend or distribution is concurrently declared and paid or
made, or identical rights or warrants are issued, in respect of each of the
Excess Common Shares, nor shall any dividend or distribution be declared or
paid or made, nor any rights or warrants issued, in respect of any of the
Common Shares or any class thereof unless an identical dividend or
distribution is concurrently declared and paid or made, or identical rights
or warrants are issued, in respect of each of the Excess Common Shares, nor
any rights or warrants issued, in respect of any of the Excess Common
Shares unless an identical dividend or distribution is concurrently
declared and paid or made, or identical rights or warrants are issued, in
respect of each of the Common Shares; provided, however, that in the case
of any dividend or distribution payable in, or rights or warrants to
subscribe for, or purchase securities convertible into Common Shares, such
dividend or distribution shall only be payable in, and such rights or
warrants shall only provide subscription or purchase rights relating to
securities convertible into, Common Shares to holders of Common Shares and
Excess Common Shares to holders of Excess Common Shares.
(c) Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution
of the assets of, the Corporation, each holder of Common Equity Shares
shall be entitled to receive, ratably with each other holder of Common
Equity Shares, that portion of the assets of the Corporation available for
distribution to the holders of its Common Equity Shares, as the number of
Common Equity Shares held by such holder bears to the total number of
Common Equity Shares then outstanding.
(d) Voting Rights. Except as otherwise provided herein, the
holders of Common Shares shall vote together as a single class. At all
meetings of the shareholders of the Corporation each holder of Common
Shares shall be entitled to one vote for each Common Share entitled to vote
at such meeting. The affirmative vote of a majority of the holders of
Common Shares voting together as a class shall be required to approve: (1)
an election to change the Corporation's status as a REIT, and (2) other
matters as required by applicable law.
(e) Election of Directors. (i) The cumulative voting rights set
forth in Section 351.245(3) of the GBCL are hereby eliminated.
SECTION 4.4 Preemptive Rights. No holder of Common Equity Shares or
of Senior Shares shall be entitled as a matter of right to subscribe for or
purchase, or have any preemptive right with respect to, any part of any new
or additional issue of stock of any class whatsoever, or of securities
convertible into any stock of any class whatsoever, whether now or
hereafter authorized and whether issued for cash or other consideration or
by way of dividend.
SECTION 4.5 Restrictions on Ownership and Transfer; Exchange For
Excess Shares.
(a) Definitions. As used in these Articles of Incorporation, the
following terms shall have the following meanings:
"Affiliate" shall mean with respect to any person, any other
person that, directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such person
and the term "Affiliated" has a meaning correlative to the foregoing. As
used herein the term "control" shall mean either (i) having (directly or
indirectly through one or more intermediaries) the exclusive power to
direct the management and policies of a person or (ii) having both (A) at
least fifty percent (50%) of the economic interest in a person and (B) at
least fifty percent (50%) of the voting rights with respect to such person
with the full right to exercise such vote, and the term "controlled" has a
meaning correlative to the foregoing. Notwithstanding the foregoing, (i)
with respect to Westfield American Investments Pty Limited ("Westfield")
only, the term "Affiliate" shall include any United States real estate
investment trust or foreign trust with shares publicly traded on an
internationally recognized national securities exchange, provided that
Westfield and its Affiliates own in the aggregate at least twenty-five
percent (25%) of the economic and voting interests in such real estate
investment trust or foreign trust and Westfield or one of its Affiliates is
the manager of all or substantially all of the properties in which such
real estate investment trust or foreign trust has a direct or indirect
interest and for which such real estate investment trust or foreign trust
has the right to designate the manager thereof or is a manager of such
trust. As used herein the term "person" shall mean an individual,
corporation, partnership, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity that may be
treated as a person under applicable law.
"Beneficial Ownership" shall mean ownership of Shares either
directly or constructively through the application of Section 544 of the
Code, as modified by Section 856(h) of the Code. The terms "Beneficial
Owner", "Beneficially Owns" and "Beneficially Owned" shall have the
correlative meanings.
"Beneficiary" shall mean the beneficiary or beneficiaries of the
Special Trust which shall be the United Jewish Appeal and, if necessary to
avoid the Corporation being "closely held" within the meaning of Section
856(h) of the Code or to assure that the Corporation satisfies the
requirement of Section 856(a)(5) of the Code that it has at least 100
shareholders, one or more additional persons exempt from tax under Section
501(c)(3) of the Code as shall be designated by the Board of Directors or a
duly authorized officer of the Corporation.
"Closely Held" shall have the meaning prescribed in Section
856(h) of the Code.
"Closing Date" shall mean the date of the initial closing of the
offerings of Common Shares by the Corporation as described to the
registration statement on Form S-11 as filed with the Securities and
Exchange Commission (Registration No. 333-22731).
"Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and references to sections thereof shall include any
appropriate successor provisions.
"Existing Holder" shall mean Mr. Frank P. Lowy and all of the members
of his family, as such term is defined for purposes of Section 544(a)(2) of the
Code.
"Existing Holder Limit" shall mean, (A) for the period prior to
the Closing Date 33% of the value of the total outstanding Shares of the
Corporation, and (B) for the period on and after the Closing Date, 26% of
the value of the total outstanding Shares of the Corporation.
"Independent Director" shall mean a director of the Company who
(i) is not, and has not for the last 12 months been, an officer, director
or employee of any of the Westfield Group or the WAT Trustee, (ii) is not
an affiliate of any of the Westfield Group or the WAT Trustee or an officer
or employee of such an affiliate, (iii) is not a member of the immediate
family of any natural person described in clauses (i) and (ii) above, and
(iv) is free from any relationship that would interfere with the exercise
of independent judgment as a Director. For purposes of this definition of
Independent Director only, an "Affiliate" shall mean any person directly or
indirectly controlling, controlled by, or under common control with, such
other person; "Control" shall mean the power to exercise a controlling
influence over the management or policies of a company, unless such power
is solely the result of an official position with any of the Westfield
Group or the WAT Trustee; and "Member of the Immediate Family" shall mean
any parent, spouse of a parent, child, spouse of a child, spouse, brother
or sister and includes step and adoptive relationships.
"Individual" shall mean any Person that is treated as an
individual for purposes of Section 542(a)(2) of the Code as the application
of such Section may be modified by Section 856(h) of the Code.
"Institutional Investor" shall mean any "qualified institutional
buyer" as defined in Section (a)(1)(i)(A), (a)(1)(i)(D), (a)(1)(i)(E),
(a)(1)(i)(F), (a)(1)(i)(H) (but limited to any organization exempt from tax
under Section 501(c)(3) of the Code), (a)(1)(iv) or (a)(1)(vi) of Rule 144A
under the Securities Act of 1933, as amended. The term Institutional
Investor shall be deemed to include any foreign entity that would otherwise
qualify under the foregoing definition, including, without limitation, a
foreign insurance company.
"Market Price" shall mean, with respect to Shares of the relevant
class or series on the relevant date, the closing sale price regular way on
such day, or, in case no such sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in each case on the
New York Stock Exchange, or, if such Shares are not listed or admitted to
trading on such exchange, on the principal national securities exchange or
quotation system on which such Shares are quoted or listed or admitted to
trading, or, if not quoted or listed on any national securities exchange or
quotation system, the average of the closing bid and asked prices of such
Shares on the over-the-counter market on the day in question as reported by
the National Quotation Bureau Incorporated, or a similarly generally
accepted reporting service, or, if not so available in such manner, the
fair market value of such Shares as determined by a nationally recognized
investment banking firm selected by the Board of Directors.
"Ownership Limit", shall mean, (A) with respect to Shares
Beneficially Owned by any Individual (other than an Existing Holder), (i)
for the period prior to the Closing Date, 4% of the total value of the
outstanding Shares of all classes and series, and (ii) for the period on
and after the Closing Date, 5.5% of the total value of the outstanding
Shares of all classes and series, and (B) with respect to the Senior
Preferred Shares during the period prior to the Closing Date, one Senior
Preferred Share, in each case subject to adjustment as set forth in
Sections 4.5(i) and 4.5(j).
"Ownership Limitation Termination Date" shall mean the first day,
if any, on which holders of Shares determine, in accordance with any class
voting procedures as provided in these Articles that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as
a REIT.
"Person" shall mean an individual, corporation, partnership,
estate, trust (including a trust qualified under section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for or
to be used exclusively for the purposes described in Section 642(c) of the
Code, association, private foundation within the meaning of Section 509(a)
of the Code, joint stock company or other entity or any government or
agency or political subdivision thereof and also includes a group as that
term is used for purposes of Section 13(d)(3) of the Exchange Act.
"Purported Beneficial Holder" shall mean, with respect to any
event other than a purported Transfer which results in Shares being
automatically exchanged for Excess Shares, the person for whom the
Purported Record Holder of the Shares that were, pursuant to Section
4.5(c), automatically exchanged for Excess Shares upon the occurrence of
such event held such exchanged Shares.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer which results in Shares being automatically exchanged
for Excess Shares, the purported beneficial transferee for whom the
Purported Record Transferee would have acquired such exchanged Shares, if
such Transfer had been valid under Sections 4.5(b) and 4.5(c).
"Purported Record Holder" shall mean, with respect to any event
other than a purported Transfer which results in Shares being automatically
exchanged for Excess Shares, the record holder of the Shares that were,
pursuant to Section 4.5(c), automatically exchanged for Excess Shares upon
the occurrence of such event.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in Shares being automatically exchanged
for Excess Shares, the record holder of such exchanged Shares if such
Transfer had been valid under Sections 4.5(b) and 4.5(c).
"REIT" shall mean a real estate investment trust under Section
856 of the Code.
"Shares" shall mean Senior Shares or Common Shares (all as
defined in section 4.1).
"Special Trust" shall mean a trust created pursuant to Section
4.7(a).
"Special Trust Transferee" shall mean the ultimate transferee or
transferees of New Shares that are to be transferred from a Special Trust
upon transfer of Excess Shares pursuant to Section 4.7(e) below.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Shares (including the granting or transfer
of any option or entering into any agreement for the sale, transfer or
other disposition of Shares), whether voluntary or involuntary, whether of
record or beneficially and whether by operation of law or otherwise.
"Trustee" shall mean such person, as trustee of the Special
Trust, as shall be selected from time to time by the Board of Directors.
(b) Restrictions on Ownership and Transfer.
(1) Prior to the Ownership Limitation Termination Date, no
Individual (other than an Existing Holder) shall Beneficially Own Shares
(and, with respect to the Senior Preferred Shares, during the period prior
to the Closing Date, no Person shall beneficially own (without reference to
any rules of attribution) Senior Preferred Shares, in each case in excess
of the applicable Ownership Limit.) In addition, prior to the Ownership
Limitation Termination Date, no Existing Holder shall Beneficially Own
Shares in excess of the Existing Holder Limit.
(2) Prior to the Ownership Limitation Termination Date, to the
extent that any Transfer, if effective, would result in any Individual
(other than an Existing Holder) Beneficially Owning Shares in excess of the
Ownership Limit, the Transfer of such Shares which would be otherwise
Beneficially Owned by such Individual in excess of such Ownership Limit
shall be void ab initio; and the intended transferee shall acquire no
rights to such Shares.
(3) Prior to the Ownership Limitation Termination Date, any
Transfer that, if effective, would result in any Existing Holder
Beneficially Owning Shares in excess of the Existing Holder Limit shall be
void ab initio as to the Transfer of such Shares which would be otherwise
Beneficially Owned by such Existing Holder in excess of such Existing
Holder Limit; and such Existing Holder shall acquire no rights to such
Shares.
(4) Prior to the earlier of the Closing Date and the Ownership
Limitation Termination Date, any Transfer of Senior Preferred Shares that,
if effective, would result in any Person (determined without reference to
any rules of attribution) beneficially owning Senior Preferred Shares in
excess of the Ownership Limit with respect to Senior Preferred Shares shall
be void ab initio as to the Transfer of such Preferred Shares which would
be otherwise beneficially owned by such Person (determined without
reference to any rules of attribution) in excess of such amount; and the
intended transferee shall acquire no rights in such Senior Preferred
Shares.
(5) Prior to the Ownership Limitation Termination Date, any
Transfer that, if effective, would result in the Shares being beneficially
owned by less than 100 Persons (determined without reference to any rules
of attribution) or which would otherwise cause the Corporation to fail to
satisfy the requirements for qualification as a REIT, shall be void ab
initio as to the Transfer of such Shares which would be otherwise
beneficially owned by the transferee (determined without reference to any
rules of attribution); and the intended transferee shall acquire no rights
in such Shares.
(6) Prior to the Ownership Limitation Termination Date, any
Transfer that, if effective, would result in the Corporation being "Closely
Held" shall be void ab initio as to the Transfer of the Shares which would
cause the Corporation to be "Closely Held" and the intended transferee
shall acquire no rights in such Shares.
(c) Shares Exchanged for Excess Shares.
(1) If at any time prior to the Ownership Limitation Termination
Date, there is a purported Transfer such that, notwithstanding the other
provisions contained in this Article Fourth, any Individual (other than an
Existing Holder) would Beneficially Own Shares in excess of the Ownership
Limit, such number of Shares in excess of such Ownership Limit (rounded up
to the nearest whole Share) shall be automatically exchanged for Excess
Shares, and shall be subject to the terms of Section 4.7 hereof.
(2) If at any time prior to the Ownership Limitation Termination
Date, there is a purported Transfer such that, notwithstanding the other
provisions contained in this Article Fourth, an Existing Holder would
Beneficially Own Shares in excess of the applicable Existing Holder
Limit, then such number of Shares in excess of such Existing Holder Limit
(rounded up to the nearest whole Share) shall be automatically exchanged
for Excess Shares, and shall be subject to the terms of Section 4.7 hereof.
(3) If at any time prior to the Ownership Limitation Termination
Date, there is a purported Transfer of Shares which would, notwithstanding
the other provisions contained in this Article Fourth, cause the
Corporation to become Closely Held, then the Shares being Transferred which
would cause the Corporation to be Closely Held (rounded up to the nearest
whole Share) shall be automatically exchanged for Excess Shares, and shall
be subject to the terms of Section 4.7 hereof.
(4) If, at any time prior to the Ownership Limitation Termination
Date, there is a purported Transfer such that, notwithstanding the other
provisions contained in this Article Fourth, the total outstanding Shares
would be beneficially owned (without reference to any rules of attribution)
by fewer than 100 Persons, then such number of Shares as would otherwise
cause the Corporation to fail to satisfy the ownership requirements of
Section 856(a)(5) of the Code shall automatically be exchanged for Excess
Shares and shall be subject to the terms of Section 4.7 hereof.
(5) If, at any time prior to the Ownership Limitation Termination
Date, an event other than a purported Transfer (an "Event") occurs which
would (i) cause any Individual (other than an Existing Holder) to
Beneficially Own Shares in excess of the Ownership Limit, (ii) cause an
Existing Holder to Beneficially Own Shares in excess of the Existing Holder
Limit, or (iii) cause the Corporation to be Closely Held, or then
outstanding Shares Beneficially Owned by such Individual or Existing
Holder, as the case may be, shall be automatically exchanged for Excess
Shares, and shall be subject to the terms of Section 4.7 hereof to the
extent necessary to eliminate such excess ownership. In determining which
outstanding Shares shall be exchanged for Excess Shares, outstanding
Shares, if any, directly held or Beneficially Owned by any Individual who
caused the Event to occur shall be exchanged for Excess Shares before any
outstanding Shares not so Beneficially Owned are exchanged for Excess
Shares, and to the extent not inconsistent therewith, in such manner as
minimizes the aggregate value of the Shares that are exchanged for Excess
Shares (except to the extent that the Board of Directors determines that
the Shares to be exchanged for Excess Shares are to be those held through a
Person that caused or contributed to the occurrence of such Event, rather
than Shares held through a different chain of ownership). Where several
such Individuals or Persons exist, the outstanding Shares shall be
exchanged for Excess Shares in such manner as minimizes the aggregate value
of the Shares that are exchanged for Excess Shares (except to the extent
that the Board of Directors determines that the Shares to be exchanged for
Excess Shares are to be those held through Persons that caused or
contributed to the occurrence of such Event, rather than Shares held
through a different chain of ownership), and to the extent not inconsistent
therewith, on a pro rata basis. If no Persons or Individuals caused the
Event to occur, outstanding Shares shall be exchanged for Excess Shares in
such manner as minimizes the aggregate value of Shares that are exchanged
for Excess Shares.
(6) Any exchange of Shares for Excess Shares pursuant to this
Section 4.5(c) and Section 4.7 hereof shall be effective as of the close of
business on the business day prior to the date of the Transfer or other
Event that resulted in such exchange.
(7) A Special Trust that, in accordance with Section 4.7(a) and
these Articles is the holder of any Excess Shares shall, except as
otherwise specifically provided herein, have the same rights hereunder,
including without limitation, voting rights and distribution rights, to
which a permitted holder of the Shares exchanged therefor would be entitled
in respect of such Shares had such Shares not been exchanged for Excess
Shares. Such Excess Shares shall be treated as Shares of the same class or
series as the Shares exchanged therefor.
(d) Remedies For Breach. If the Board of Directors or its designees
shall at any time determine in good faith that a Transfer has taken place
in violation of Section 4.5(b) or 4.5(c) or that a Person intends to
acquire or has attempted to acquire beneficial ownership (determined
without reference to any rules of attribution) or an Individual intends to
acquire or has attempted to acquire Beneficial Ownership of any Shares in
violation of Sections 4.5(b) or 4.5(c), the Board of Directors or its
designees shall take such action as it deems advisable to refuse to give
effect to or to prevent such Transfer (or any Transfer related to such
intent), including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to
prevent such Transfers, provided, however, that nothing contained in this
Section 4.5(d) shall prevent the automatic application and
operation of Section 4.5(b) (regarding certain attempted Transfers of
Shares being void ab initio) and, failing the operation and application of
Section 4.5(b) for any reason, the automatic application and operation of
Section 4.5(c) (regarding the exchange of Shares for Excess Shares), in
each case without the need for any further action by the Corporation or the
Board of Directors.
(e) Notice of Ownership or Attempted Ownership in Violation of Section
4.5(b). Any Individual or Person who acquires or attempts to acquire Beneficial
Ownership of Shares in violation of Sections 4.5(b) or 4.5(c), shall
immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may
request in order to determine the effect, if any, of such acquisition or
attempted acquisition on the Corporation's status as a REIT.
(f) Owners Required to Provide Information. Prior to the Ownership
Limitation Termination Date,
each Person who is a Beneficial Owner of Shares and each Person
(including the shareholder of record) who is holding Shares for a
Beneficial Owner shall provide to the Corporation such information as the
Corporation may request, in good faith, in order to determine the
Corporation's status as a REIT or to comply with regulations promulgated
under the REIT provisions of the Code including, without limitation,
Treasury Regulations Section 1.857-8 or any successor regulation.
(g) Remedies Not Limited. Nothing contained in this Article
Fourth shall (i) preclude the settlement of Shares on the New York Stock
Exchange or (ii) limit the authority of the Board of Directors to take such
other action as it deems necessary or advisable to protect the Corporation
and the interests of its shareholders by preservation of the Corporation's
status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application of any
of the provisions of this Article Fourth, including any definition
contained in Section 4.5(a) and any ambiguity with respect to which Shares
are to be exchanged for Excess Shares in a given situation, the Board of
Directors shall have the power to determine in good faith the application
of the provisions of this Article Fourth with respect to any situation
based on the facts known to it.
(i) Modifications of Ownership Limit. Subject to the limitations
provided in Section 4.5(j), the Board of Directors may from time to time
increase or decrease the Ownership Limit with respect to any Individual or
Person, or any Shares or class or series thereof.
(j) Limitations on Modifications.
(1) The Ownership Limit may not be increased if, after giving
effect to such increase, five Individuals could Beneficially Own, in the
aggregate, more than 49.9% of the value of the outstanding Shares.
(2) Prior to the modification of any Ownership Limit pursuant to
Section 4.5(i), the Board of Directors may require such opinions of
counsel, affidavits, undertakings or agreements as it may deem necessary or
advisable in order to determine or ensure the Corporation's status as a
REIT.
(3) The Ownership Limit may not be increased to a percentage
which is greater than 9.8% of the value of the outstanding Shares of the
Corporation of all classes and series.
SECTION 4.6 Legend. (a) Each certificate issued on or after the
Closing Date in respect of Common Shares shall bear the following legend:
"The Common Shares represented by this certificate are subject to
restrictions on ownership and transfer for the purpose of the
Corporation's maintenance of its status as a real estate investment
trust under the Internal Revenue Code of 1986, as amended. No
Individual may Beneficially Own Shares in excess of the then
applicable Ownership Limit, which may decrease or increase from time
to time, unless such Individual is an Existing Holder. In general, any
Individual who attempts to Beneficially Own shares in excess of the
Ownership Limit must immediately notify the Corporation. All
capitalized terms used in this legend have the meanings set forth in
the Articles of Incorporation, a copy of which, including the
restrictions on ownership and transfer, will be sent without charge to
each shareholder who so requests. If the restrictions on ownership and
transfer are violated, the Common Shares represented hereby may be
automatically exchanged for Excess Shares and deemed transferred to a
Special Trust as provided in the Articles of Incorporation."
(b) Each certificate issued prior to the Closing Date in respect
of Senior Preferred Shares shall bear the following legend:
"The Preferred Shares represented by this certificate are subject
to restrictions on ownership and transfer for the purpose of the
Corporation's maintenance of its status as a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the
"Code"). No Person may beneficially own more than one share of the
outstanding Preferred Shares. Any Person who attempts to beneficially
own Preferred Shares in excess of the above limitations must
immediately notify the Corporation and any transfer which would result
in ownership of Preferred Shares in excess of the above limitation
shall be void. All capitalized terms used in this legend have the
meanings set forth in the Articles of Incorporation, a copy of which,
including the restrictions on ownership and transfer, will be sent
without charge to each shareholder who so requests."
The stock certificates evidencing any Senior Preferred Shares issued on or
after the Closing Date shall bear a legend in the form as set forth in
Section 4.6(c) hereof, provided, however, that the term "Senior Preferred
Shares" shall be substituted in place of the term "Preferred Shares" in
every place in which the term "Preferred Shares" appears in such legend.
(c) Each certificate issued on or after the Closing Date in
respect of Preferred Shares shall bear the following legend:
"The Preferred Shares represented by this certificate are subject
to restrictions on ownership and transfer for the purpose of the
Corporation's maintenance of its status as a real estate investment
trust under the Internal Revenue Code of 1986, as amended. No
Individual may Beneficially Own Shares in excess of the then
applicable Ownership Limit, which may decrease or increase from time
to time, unless such Individual is an Existing Holder. In general, any
Individual who attempts to Beneficially Own Shares in excess of the
Ownership Limit must immediately notify the Corporation. All
capitalized terms used in this legend have the meanings set forth in
the Articles of Incorporation, a copy of which, including the
restrictions on ownership and transfer, will be sent
without charge to each shareholder who so requests. If the
restrictions on ownership and transfer are violated, the Preferred
Shares represented hereby may be automatically exchanged for Excess
Shares and deemed transferred to a Special Trust as provided in the
Articles of Incorporation."
SECTION 4.7 Excess Shares.
(a) Ownership in Trust. Upon any purported Transfer or other
Event that results in the exchange of Shares for Excess Shares pursuant to
Section 4.5(c), such Excess Shares shall be deemed to have been transferred
to a Trustee, as trustee of a Special Trust for the exclusive benefit of a
Beneficiary. Excess Shares of any class or series that are held in trust as
provided in this Section 4.7 shall constitute issued and outstanding Common
Shares or Senior Shares of the Corporation, as the case may be. The
Purported Record Transferee or Purported Record Holder shall have no rights
in such Excess Shares, but shall have the rights provided in Sections
4.7(c) and 4.7(e). Where a Transfer or other Event results in an automatic
exchange of Shares of more than one class or series for Excess Shares of
more than one class or series, separate Special Trusts shall be deemed to
have been established for the Excess Shares of each such class or series.
Each exchange of Shares for Excess Shares pursuant to Section 4.5(c)(5)
hereof (relating to the requirement of Section 856(a)(5) of the Code that
the Corporation have at least 100 shareholders) shall, with respect to each
such Transfer that caused such exchange, be effected through a transfer of
Excess Shares to a separate and distinct Special Trust for the benefit of a
separate and distinct Beneficiary.
(b) Dividend Rights. Dividends or other distributions that have been
declared on any Shares that have been exchanged for Excess Shares pursuant
to Section 4.5(c) shall be paid when due to the appropriate Trustee, as
trustee of the particular Special Trust for the exclusive benefit of the
Beneficiary of such Special Trust until such time as the Trustee shall
transfer New Shares in respect of such Excess Shares pursuant to Section
4.7(e). Any dividend or distribution paid prior to the discovery by the
Corporation that the Shares with respect to which the dividend or
distribution was made had been exchanged for Excess Shares shall be
returned to the Corporation and promptly thereafter paid over to the
Trustee, as trustee of the Special Trust for the exclusive benefit of the
Beneficiary.
(c) Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any distribution
of the assets of, the Corporation, the Trustee of each Special Trust that
is the holder of any Excess Shares shall be entitled to receive a portion
of the assets of the Corporation available for distribution to the holders
of that class or series of Shares for which such Excess Shares were
exchanged originally pursuant to Section 4.5(c) and this Section 4.7. The
Trustee shall distribute to the Purported Record Transferee or Purported
Record Holder of the Excess Shares held in the Special Trust an amount (the
"Original Value Amount") not to exceed (A) in the case of a Purported
Record Holder or in the case of a Purported Record Transferee that did not
give value for the Shares for which such Excess Shares were exchanged
(through a gift, devise or other transaction), the Market Price of the
Shares for which such Excess Shares were exchanged as of the date of such
exchange or (B) in the case of a Purported Record Transferee that did give
value - for the Shares for which such Excess Shares were exchanged, the
price such Purported Record Transferee paid for such Shares, out of the
assets received by the Trustee in respect of the Excess Shares held in such
Special Trust in connection with any liquidation, dissolution or winding up
of, or any distribution of the assets of, the Corporation, and the Trustee
shall distribute to the Beneficiary of the particular Special Trust any
amounts in excess of the Original Common Amount.
(d) Voting Rights. Each Trustee, as holder of any Excess Shares and
as trustee of a Special Trust for the exclusive benefit of a Beneficiary,
shall have the same right to vote any such Excess Shares as the Shares
exchanged therefore would have had if they had not been so exchanged in
connection with any matter on which the holders of Shares are entitled to
vote until such time as the Trustee shall transfer New Shares in respect of
such Excess Shares pursuant to Section 4.7(e).
(e) Transfer of Excess Shares.
(1) Any Excess Shares which were issued in exchange for Shares
pursuant to Section 4.5(c) and are held by a Trustee in a Special Trust for
the benefit of a Beneficiary pursuant to Section 4.7(a) shall be
Transferred by the Trustee only as provided in this Section 4.7(e). Such
Trustee shall, within one hundred eighty (180) days after the date of the
purported Transfer or other Event that resulted in such Excess Shares being
issued in exchange for Shares, or, if later, one hundred eighty (180) days
after the date on which the Corporation first became aware of the issuance
of Excess Shares (the "Excess Shares Exchange Date"), Transfer the Excess
Shares held in a Special Trust to a Special Trust Transferee, provided that
(i) simultaneously with such Transfer such Excess Shares shall be
automatically exchanged for an equal number of Shares of the same class or
series that had originally been exchanged for such Excess Shares (the "New
Shares"), (ii) such New Shares would not as a result of such Transfer to
such Special Trust Transferee be automatically exchanged for Excess Shares
pursuant to Section 4.5(c) and (iii) such Special Trust Transferee is an
Institutional Investor or, if designated by the Corporation as provided
below, an Affiliate of a shareholder. The Corporation shall have the right
to designate a Special Trust Transferee within the first ninety (90) days
after the Excess Shares Exchange Date provided that (i) such Special Trust
Transferee is either (A) an Affiliate of a shareholder or (B) an
Institutional Investor and (ii) the New Shares would not as a result of a
Transfer to such Special Trust Transferee be automatically exchanged for
Excess Shares pursuant to Section 4.5(c). Notwithstanding anything to the
contrary in this Section 4.7(e), each Trustee shall Transfer New Shares in
respect of the Excess Shares held in each Special Trust to a Special Trust
Transferee designated by the Corporation pursuant to the immediately
preceding sentence and, during the first ninety (90) days after the
relevant Excess Shares Exchange Date, the Trustee shall not Transfer New
Shares in respect of the Excess Shares to a Special Trust Transferee that
has not been designated by the Corporation pursuant to the immediately
preceding sentence.
Each Trustee shall distribute to the particular Purported Record
Transferee or Purported Record Holder of the Excess Shares held in the
Special Trust out of the purchase price received by the Trustee from a
Special Trust Transferee for New Shares in respect of such Excess Shares an
amount (the "Original Transfer Amount") not to exceed (A) in the case of a
Purported Record Holder or in the case of a Purported Record Transferee
that did not give value for the Shares for which such Excess Shares were
exchanged (through a gift, devise or other transaction), the lesser of (w)
the Market Price of such Shares as of the date such Shares were exchanged
for Excess Shares and (x) the purchase price received by the Trustee from
the Special Trust Transferee for the New Shares or (B) in the case of a
Purported Record Transferee that did give value for the Shares for which
such Excess Shares were exchanged, the lesser of (y) the purchase price
received by the Trustee from the Special Trust Transferee for the New
Shares and (z) the price such Purported Record Transferee paid for such
Shares. The Trustee shall distribute to the particular Beneficiary of the
Special Trust any amounts in excess of the Original Transfer Amount.
(2) Notwithstanding the foregoing, if a Purported Record
Transferee or Purported Record Holder receives any amounts in respect of
any Excess Shares held in a Special Trust that exceeds the amounts
allowable under Section 4.7(e)(1), such Purported Record Transferee or
Purported Record Holder shall pay such excess to the Trustee for the
benefit of the Beneficiary of such Special Trust.
SECTION 4.8 Severability. If any provision of this Article Fourth
or any application of any such provision is determined to be invalid by any
federal or state court having jurisdiction over the issues, the validity of
the remaining provisions shall not be affected and other applications of
such provision shall be affected only to the extent necessary to comply
with the determination of such court.
ARTICLE FIFTH
The Corporation shall have perpetual existence.
ARTICLE SIXTH
(a) The Board of Directors shall have the power without the assent or
vote of the stockholders to adopt, amend, alter or repeal the By-Laws of
the Corporation, except to the extent that the By-Laws or these Articles of
Incorporation otherwise provide.
(b) The Corporation may in its By-Laws confer powers upon the
Board of Directors in addition to the powers and authorities expressly
conferred upon the Board of Directors by applicable law.
ARTICLE SEVENTH
(a) The number of directors of the Corporation shall be fixed by
the By-Laws of the Corporation but in no event shall be less than three (3)
or more than fourteen (14) and may be increased or decreased within such
limitations from time to time in such a manner as may be prescribed by the
By-Laws and in accordance with the terms hereof. In the event that the
Board is increased by such a resolution, the vacancy or vacancies so
resulting shall be filled by a vote of the majority of the directors then
in office. No decrease in number in the Board shall shorten the term of any
incumbent directors. Any change shall be reported to the Secretary of State
within thirty (30) calendar days of such change. The Board of Directors
shall be divided into three (3) classes, as nearly equal in number as
possible, with the mode of such classification to be provided for in the
By-Laws. Except as otherwise provided in the By-Laws with respect to the
implementation of this Article 7, directors shall be elected to hold office
for a term of three (3) years, with the term of office of one class
expiring each year. Any director or the entire Board of Directors may be
removed, for cause only, by the holders of 66 2/3 of all shares then
entitled to vote at an election of directors. The provisions of this
Section 7(a) shall not be amended, altered, changed or repealed unless
approved by the affirmative vote of the holders of not less than
seventy-five percent of the total voting power of all outstanding shares of
voting stock.
(b) Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of directors of the Corporation
need not be by written ballot.
(c) Notwithstanding anything contained in these Articles of
Incorporation to the contrary (other than Section 4.3(d) above), the
affirmative vote of the holders of a majority in interest of the then
outstanding Common Shares shall be required to terminate the Corporation's
status as a real estate investment trust.
(d) Any action required or permitted to be taken by the holders
of any class or series of stock of the Corporation, including but not
limited to the election of directors, may be taken by written consent or
consents but only if such consent or consents are signed by all holders of
the class or series of stock entitled to vote on such action.
ARTICLE EIGHTH
(a) The Corporation shall, to the fullest extent permitted by the
GBCL, including the provisions of Section 351.355.7 RSMo, indemnify and
advance expenses to any person who was or is a party or threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a Director or Officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of any other corporation or enterprise. Such right of
indemnification shall inure to the benefit of the heirs, executors,
administrators and personal representatives of such a person. The
indemnification and advancement of expenses provided for herein shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
By-Law, agreement, vote of shareholders or disinterested directors or
otherwise.
(b) The Corporation may, to such extent as it deems appropriate
and as may be permitted by the GBCL, indemnify any other person acting in
any of the other capacities referred to in Section 351.355 of the GBCL
against any such claim by reason of the fact that he is or was serving the
Corporation or at the request of the Corporation in any of such capacities
or arising out of his status in any such capacity.
(c) The Corporation may, but shall not be required to, supplement
the right of indemnification under paragraph (a) above by (1) the purchase
of insurance on behalf of any one or more of such persons, whether or not
the Corporation would be obligated to indemnify such person under paragraph
(a) above, (2) individual or group indemnification agreements with any one
or more of such persons and (3) advances for related expenses of such a
person.
ARTICLE NINTH
(a) In addition to any affirmative vote required by law, the
Articles of Incorporation, any agreement with any national securities
exchange or otherwise, any Business Combination (as hereinafter defined)
involving the Corporation shall be subject to approval in the manner set
forth in this Article 9.
(b) No Business Combination shall be consummated or effected with
an Interested Shareholder (as hereinafter defined) during the five-year
period after which a person or an entity becomes an Interested Shareholder
unless such Business Combination or the transaction in which the person or
entity becomes an Interested Shareholder is approved by the Board of
Directors on or before the date of the Acquisition Transaction (as
hereinafter defined).
(c) After the five-year period following the Acquisition
Transaction, Business Combinations may occur only if (i) prior to the
Acquisition Transaction, the board of directors approved the Acquisition
Transaction or approved the Business Combination in question; (ii) the
holders of a majority of the outstanding stock, other than stock owned by
the Interested Shareholder, approve the Business Combination or (iii) the
Business Combination meets all of the following conditions:
(A) The aggregate amount of the cash and the market value as of
the consummation date of consideration other than cash to be received per
share by holders of outstanding shares of Common Equity Shares is at least
equal to the higher of the following:
1. The highest per share price paid by such Interested
Shareholder at a time when he was the beneficial owner, directly or
indirectly, of five percent or more of the outstanding voting stock of the
Corporation, for any shares of common stock of the same class or series
acquired by it within the five-year period immediately prior to the
announcement date with respect to such Business Combination, or within the
five-year period immediately prior to, or in, the transaction in which such
Interested Shareholder became an Interested Shareholder, whichever is
higher; plus, in either case, interest compounded annually from the
earliest date on which such highest per share acquisition price was paid
through the consummation date at an amount equal to the greater of (i) the
rate for one-year United States treasury obligations from time to time in
effect and (ii) 8 1/2%; less the aggregate amount of any cash dividends
paid, and the market value of any dividends paid other than in cash, per
share of common stock since such earliest date, up to the amount of such
interest; and
2. The market value per share of common stock on the announcement
date with respect to such Business Combination or on such Interested
Shareholder's stock acquisition date, whichever is higher; plus interest
compounded annually from such date through the consummation date at an
amount equal to the greater of (i) the rate for one-year United States
treasury obligations from time to time in effect and (ii) 8 1/2%; less the
aggregate amount of any cash dividend paid, and the market value of any
dividends paid other than in cash, per share of common stock since such
date, up to the amount of such interest;
(B) The aggregate amount of the cash and the market value as of
the consummation date of consideration other than cash to be received per
share by holders of outstanding shares of any class or series of stock
other than the Common Equity Shares is at least equal to the highest of the
following, whether or not such Interested Shareholder has previously
acquired any shares of such class or series of stock:
1. The highest per share price paid by such Interested
Shareholder at a time when he was the beneficial owner, directly or
indirectly, of five percent or more of the outstanding voting stock of the
Corporation, for any shares of such class or series of stock acquired by
him within the five-year period immediately prior to the announcement date
with respect to such Business Combination, or within the five-year period
immediately prior to, or in, the transaction in which such Interested
Shareholder became an Interested Shareholder, whichever is higher; plus, in
either case, interest compounded annually from the earliest date on which
such highest per share acquisition price was paid through the consummation
date at an amount equal to the greater of (i) the rate for one-year United
States treasury obligations from time to time in effect and (ii) 8 1/2%;
less the aggregate amount of any cash dividends paid, and the market value
of any dividends paid other than in cash, per share of such class or series
of stock since such earliest date, up to the amount of such interest;
2. The highest preferential amount per share to which the holders
of shares of such class or series of stock are entitled in the event of any
voluntary liquidation, dissolution or winding up of the Corporation, plus
the aggregate amount of any dividends declared or due as to which such
holders are entitled prior to payment of dividends on some other class or
series of stock, unless the aggregate amount of such dividends is included
in such preferential amount; and
3. The market value per share of such class or series of stock on
the announcement date with respect to such business combination or on such
Interested Shareholder's stock acquisition date, whichever is higher; plus
interest compounded annually from such date through the consummation date
at an amount equal to the greater of (i) the rate for one-year United
States treasury obligations from time to time in effect and (ii) 8 1/2%;
less the aggregate amount of any cash dividends paid, and the market value
of any dividends paid other than in cash, per share of such class or series
of stock since such date, up to the amount of such interest;
(C) The consideration to be received by holders of a particular
class or series of outstanding stock, including the Common Equity Shares,
of the Corporation in such Business Combination is in cash or in the same
form as the Interested Shareholder has used to acquire the largest numbers
of shares of such class of series of stock previously acquired by it, and
such consideration shall be distributed promptly;
(D) The holders of all outstanding shares of stock of the
Corporation not beneficially owned by such Interested Shareholder
immediately prior to the consummation of such Business Combination are
entitled to receive in such Business Combination cash or other
consideration for such shares in compliance with paragraphs (A), (B) and
(C) of this clause (iii) of this paragraph (c) of this Article Ninth;
(E) After such Interested Shareholder's stock acquisition date
and prior to the consummation date with respect to such Business
Combination, such Interested Shareholder has not become the beneficial
owner of any additional shares of voting stock of the Corporation except:
1. As part of the transaction which resulted in such Interested
Shareholder becoming an Interested Shareholder;
2. Through a Business Combination meeting all of the conditions of
clause (ii) of this paragraph (c) of this Article Ninth and this clause (iii) of
this paragraph (c) of this Article Ninth;
3. Through purchase by such Interested Shareholder at any price
which, if such price had been paid in an otherwise permissible Business
Combination the announcement date and consummation date of which were the
date of such purchase, would have satisfied the requirements of paragraphs
(A), (B) and (C) of this clause (iii) of this paragraph (c) of this Article
Ninth.
(e) Definitions. As used in this Article Nine, the following terms
shall have the following meanings:
"Acquisition Transaction" shall mean any transaction in which any
Person becomes an Interested Shareholder.
"Business Combination" shall mean (i) any merger, consolidation
or exchange of shares of capital stock of the Corporation of any of its
subsidiaries with or into an interested Shareholder, in each case
irrespective of which corporation or company is to be the surviving entity;
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition to or with an Interested Shareholder (in a single transaction
or a series of related transactions), other than in the ordinary course of
business, of all or a substantial part of the assets of the Corporation
(including without limitation any securities or assets of a subsidiary of
the Corporation) or all or a substantial part of the assets of any of its
subsidiaries; (iii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition to or with the Corporation or to or with any of its
subsidiaries (in a single transaction or a series of related transactions)
other than in the ordinary course of business, of all or a substantial part
of the assets of an Interested Shareholder; (iv) the issuance or transfer
by the Corporation or any of its subsidiaries of any securities of the
Corporation or any of its subsidiaries to an Interested Shareholder (other
than an issuance or transfer of securities which is effected on a pro rata
basis to all shareholders of the Corporation); (v) the acquisition by the
Corporation or any of its subsidiaries from an Interested Shareholder of
any securities issued by an Interested Shareholder (other than an issuance
or transfer of securities which is effected on a pro rata basis to all
shareholders of the Interested Shareholder); (vi) any recapitalization or
reclassification of shares of any class of capital stock of the Corporation
or any merger or consolidation of the Corporation with any of its
subsidiaries which would have the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of capital stock of the Corporation (or any securities convertible into any
class of such capital stock) owned by any Interested Shareholder; (vii) any
merger or consolidation of the Corporation with any of its subsidiaries
after which the provisions of this Article 9 of the Articles of
Incorporation shall not appear in the Articles of Incorporation of the
surviving entity; (viii) a plan of partial or complete liquidation or
dissolution of the Corporation or spin-off or sale of a substantial part of
the assets of the Corporation or any of its subsidiaries proposed by or on
behalf of an Interested Shareholder; and (ix) any agreement, contract,
plan, proposal or other arrangement providing for any of the foregoing.
"Interested Shareholder" shall mean a Person which beneficially
owns or controls 20% or more of the outstanding voting shares of the
Corporation provided that any Person who would be an Interested Shareholder
as of April 15, 1997 shall be excluded from the definition of Interested
Shareholder.
"Person" shall mean any individual, corporation, partnership or
other person or entity.
(f) The provisions of this Article 9 shall not be amended,
altered, changed or repealed nor may any provision inconsistent with any of
such provisions be added to the Articles of Incorporation unless approved
by the affirmative vote of the holders of not less than the greater of (i)
seventy-five percent of the total voting power of all outstanding shares of
voting stock of the Corporation, voting as a single class and (ii) a
majority of shareholders -- other than any Interested Shareholder.
ARTICLE TENTH
The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in these
Articles of Incorporation, and any other provisions authorized by the laws
of the State of Missouri at the time in force may be added or inserted in
the manner now or hereafter prescribed herein or by applicable law, and all
rights, preferences and privileges of whatsoever nature conferred upon
shareholders, directors or any other persons whomsoever by and pursuant to
these Articles of Incorporation in their present form or as hereafter
amended are granted subject to the rights reserved in this Article Ninth;
provided, however, that any amendment or repeal of Article Eighth of these
Articles of Incorporation shall not adversely affect any right or
protection existing hereunder immediately prior to such amendment or
repeal.
ARTICLE ELEVENTH
The names of the original incorporators were Morton D. May, David May
and S.B. Butler, all of St. Louis, Missouri.
* * *
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES B PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
PURSUANT TO THE PROVISIONS OF SECTION 351.180(7) OF THE
GENERAL AND BUSINESS CORPORATION LAW OF THE STATE
OF MISSOURI, AS AMENDED
I, the undersigned, a Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"Corporation"), hereby certify as follows:
FIRST: That under the provisions of Article Fourth of the
Restated Articles of Incorporation, as amended, of the Corporation, the
total number of shares of all classes of capital stock which the
Corporation may issue is 410,000,200 shares, of which (i) 200 shares shall
be non-voting senior preferred stock, par value $1.00 per share (the
"Senior Preferred Shares"), (ii) 5,000,000 shares shall be Preferred
Shares, with par value of $1.00 per share (the "Preferred Shares"), 940,000
of which have been designated as Series A Preferred Shares, with a
liquidation value of $100 per share (the "Series A Preferred Shares"),
(iii) 200,000,000 shall be shares of common stock, par value $.01 per share
(the "Common Shares"), (iv) 200,000,000 shall be shares of excess common
stock, par value $.01 per share (the "Excess Common Shares", and together
with the Common Shares, the "Common Equity Shares") and (v) 5,000,000
shares shall be excess preferred stock, par value $1.00 per share (the
"Excess Preferred Shares", and together with the Preferred Shares, the
"Preferred Equity Shares"), and under said Article of Incorporation (as
amended, the "Article of In corporation"), the shares of Preferred Stock
are authorized to be issued by the Board of Directors and the Board of
Directors is expressly authorized to determine in the Resolution, the
designation, powers, rights, preferences and qualifications, limitations or
restrictions, not fixed and determined by the Articles of Incorporation.
SECOND: That the Pricing Committee of the Board of Directors of the
Corporation pursuant to the authority so vested in it by the Board of
Directors and Article Fourth of the Certificate of Incorporation, and in
accordance with the provisions of Section 351.180(7) of the General and
Business Corporation Law of Missouri, as amended, adopted on May 15, 1997
the following resolution creating a series of Preferred Stock designated as
"Series B Preferred Shares", which resolution has not been amended,
modified, rescinded or revoked and is in full force and effect on the date
hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES B PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that, pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "Corporation", by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution,
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof, set forth in the Articles of
Incorporation which are applicable to the Series B Preferred Shares) as
follows:
SECTION 1. DESIGNATION; NUMBER OF SHARES. The number and designation
of the series of Preferred Stock authorized hereby shall be 400,000 shares
of "Series B Preferred Shares", par value $1.00 per share, and is
hereinafter in this Resolution called the "Series B Preferred Shares."
SECTION 2. RANK. The Series B Preferred Shares shall with respect to
dividend rights and rights on liquidation, dissolution and winding up of
the affairs of the Corporation, rank pari passu to the Series A Preferred
Shares. Each Series B Preferred Share shall be identical in all respects to
each other Series B Preferred Share. Each Excess Series B Preferred Share
shall be identical in all respects to each other Excess Series B Preferred
Share, and except as otherwise provided herein, shall be identical in all
respects to each Series B Preferred Share (the Series B Preferred Shares
together with the Excess Series B Preferred Shares being hereinafter
referred to as the "Series B Equity Shares"). Series B Preferred Shares
that are redeemed or purchased by the Corporation may, at the election of
the Corporation either (i) be reissued by the Corporation or (ii) be
canceled and if so canceled shall revert to authorized but unissued
Preferred Shares.
SECTION 3. DIVIDEND RIGHTS. (a) The holders of shares of Series B
Preferred Shares shall be entitled to receive, when and as declared by the
Board of Directors of the Corporation, but only out of funds legally
available therefor, cumulative cash dividends payable to shareholders of
record on the respective date, not exceeding 50 days preceding such
dividend payment date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend in an amount equal to the
greater of (A) $8.50 per share per annum and (B) an amount per share equal
to 6.6667 (subject to proportional adjustment in the case of any
subdivision, stock split, stock dividend, combination or reverse split of
the Common Equity Shares or the Preferred Equity Shares) (as so adjusted
from time to time, the "Common Equivalent Factor") times the dollar amount
of dividends declared with respect to each Common Equity Share (such
product, the "Common Equivalent Amount") for the same annual period;
provided, however, that if, as a result of the quarterly dividends paid in
accordance with the following sentence, the holders of Series B Equity
Shares shall have received for any calendar year more dividends than such
Shares shall be entitled under clauses (A) and (B) above, the dividends
payable in respect of Series B Equity Shares in subsequent calendar years
shall be reduced to the extent of such overpayment. Subject to the proviso
of the preceding sentence of this Section 3(a), the dividend paid in
respect of each quarterly period in each calendar year shall be determined
as follows: (1) for the first quarter, the greater of $2.125 per share and
the Common Equivalent Amount for same quarter; (2) for the second quarter,
an amount such that the aggregate amount to be received per Series B Equity
Share in respect of the first two quarters of such calendar year shall be
the greater of $4.250 per share and the Common Equivalent Amount for the
same two quarters; (3) for the third quarter, an amount such that the
aggregate amount to be received per Series B Equity Share in respect of the
first three quarters of such calendar year shall be the greater of $6.375
per share and the Common Equivalent Amount for the same three quarters; and
(4) for the fourth quarter, an amount such that the aggregate amount to be
received per Series B Equity Share in respect of such calendar year shall
be the amount provided in the preceding sentence of this Section 3(a).
Dividends paid on shares of Series B Equity Shares in an amount less than
the total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all
Series B Equity Shares as are outstanding at the time. Accumulated but
unpaid dividends for any past quarterly dividend periods may be declared
and paid at any time, without reference to any regularly scheduled
quarterly dividend payment date, to holders of record on such date, not
exceeding 50 days preceding such dividend payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend.
(b) So long as any shares of the Series B Equity Shares are
outstanding, no dividend whatever shall be paid or declared and no
distribution made on any Common Equity Shares other than a dividend payable
in Common Equity Shares, and no shares of Common Equity shall be purchased,
redeemed, or otherwise acquired for consideration by the Corporation,
directly or indirectly (other than as a result of a reclassification of
Common Equity Shares, or the exchange or conversion of one Common Equity
Share for or into another Common Equity Share, or other than through the
use of proceeds of a substantially contemporaneous sale of other Common
Shares), unless the full dividend thereon for the then current quarterly
dividend period and all prior dividend periods shall have been paid or
declared and set apart for payment. Subject to the foregoing, and not
otherwise, such dividends may be declared by the Board of Directors and
paid on any Common Equity Shares from time to time out of any funds legally
available therefor, and the Series B Equity Shares shall not be entitled to
participate in any such dividends, whether payable in cash, stock or
otherwise.
SECTION 4. RIGHTS UPON LIQUIDATION. (a) In the event of any voluntary
liquidation, dissolution or winding up of affairs of the Corporation, the
holders of the Series B Equity Shares shall be entitled, before any
distribution or payment is made to the holders of any Common Equity Shares,
to be paid in full an amount per share equal to $100.00 (which amount is
hereinafter referred to as the "Series B Preferred Voluntary Liquidation
Amount"), together with (x) all accrued but unpaid dividends through the
end date of the calendar quarter most recently completed prior to the date
of liquidation, dissolution or winding up of the affairs of the Corporation
(any such date, a "Series B Voluntary Liquidation Date") plus (y) 2.125
times a fraction equal to the actual number of days elapsed from the end
date of the calendar quarter most recently completed to the relevant Series
B Voluntary Liquidation Date over ninety days. In the event of any
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, then, before any distribution or payment is made to the
holders of any Common Equity Shares, the holders of the Series B Equity
Shares shall be entitled to be paid in full an amount per share equal to
$100.00 (which amount is hereinafter referred to as the "Series B Preferred
Involuntary Liquidation Amount"), together with (x) all accrued and unpaid
dividends through the end date of the calendar quarter most recently
completed prior to the involuntary liquidation (any such date, a "Series B
Involuntary Liquidation Date") plus (y) $2.125 times a fraction equal to
the actual number of days elapsed from the date of the calendar quarter
most recently completed to the relevant Series B Involuntary Liquidation
Date over ninety days.
(b) Payment shall be made in full to all holders of the Series B
Equity Shares and other shares ranking pari passu on liquidation with the
Series B Equity Shares, before any remaining assets of the Corporation
shall be distributed among the holders of Common Equity Shares, according
to their respective numbers of shares. For the purposes of this Section 4,
the consolidation or merger of the Corporation with any other corporation
shall not be deemed to constitute a liquidation, dissolution or winding up
of the Corporation but shall, to the extent appropriate, cause an
adjustment to the Common Equivalent Factor.
SECTION 5. (A) REDEMPTION. The Corporation, at the option of the Board
of Directors, with approval of a majority of the Independent Directors (as
defined in the Articles of Incorporation), may redeem in whole, or in part,
the Series B Equity Shares at the time outstanding at any time and from
time to time from and after May 21, 2004, upon notice given as hereinafter
specified, at a redemption price for each Series B Equity Share equal to
$100.00 together with (i) all accrued and unpaid dividends through the end
date of the calendar quarter most recently completed prior to the date of
redemption of the Series B Equity Shares (each a "Series B Redemption
Date"); plus (ii) $2.125 times a fraction equal to the actual number of
days elapsed from the end date of the calendar quarter most recently
completed to the relevant Series B Equity Date over ninety days (such
fraction, the "Pro Rata Adjustment"); plus (iii) a right to receive on the
payment date for dividends declared on the Common Equity Shares with
respect to the calendar quarter during which the relevant Series B
Redemption Date occurs (the "Relevant Quarter"), the excess of (x) the
Common Equivalent Factor times (A) the dollar amount of the per share
dividends declared on the Common Equity Shares for the Relevant Quarter
times the Pro Rata Adjustment plus (B) the dollar amount of the per share
dividends declared on the Common Equity Shares from the beginning of the
calendar year in which such redemption occurs through the end date of the
calendar quarter prior to the Relevant Quarter over (y) the dollar amount
calculated in the preceding clause (ii) plus all other dividends paid on
the Preferred Shares from the beginning of the calendar year during which
the relevant Series B Redemption Date occurs.
(b) If the Corporation shall determine to redeem less than all the
Series B Equity Shares then outstanding, the shares to be redeemed shall be
selected pro rata (as nearly as may be) so that the number of shares
redeemed from each holder shall be the same proportion of all the shares to
be redeemed that the total number of Series B Equity Shares then held by
such holder bears to the total number of Series B Equity Shares then
outstanding.
SECTION 6. MANNER AND EFFECT OF REDEMPTIONS. Notice of any proposed
redemption of shares of Series B Equity Shares shall be mailed by first
class mail, postage prepaid, addressed to the holders of record of the
shares to be redeemed, at their respective last addresses as they shall
appear on the books of the Corporation. Such mailing shall be at least 30
days and not more than 60 days prior to the date fixed for such redemption.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
shareholder receives such notice, and failure duly to give such notice by
mail, or any defect in such notice, to any holder of Series B Equity Shares
designated for redemption shall not affect the validity of the proceedings
for the redemption of any other Series B Equity Shares.
The Board of Directors shall have full power and authority, subject to
the provisions herein contained, to prescribe the terms and conditions upon
which Series B Equity Shares shall be redeemed.
If notice of redemption shall have been duly given, and if, on or
before the redemption date specified therein, the Corporation shall deposit
all funds necessary for such redemption with a bank or trust company in an
account that is separate and apart from its other accounts and shall hold
such funds in trust for the pro rata benefit of the holders of the shares
called for redemption, so as to be and continue to be available therefor,
then, not withstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, all shares so
called for redemption shall no longer be deemed outstanding on and after
such redemption date, and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the
right of the holders thereof to receive the amount payable on redemption
thereof, without interest.
Any funds so deposited and unclaimed at the end of two years from such
redemption date shall, to the extent permitted by law, be released or
repaid to the Corporation, after which repayment the holders of the shares
so called for redemption shall look only to the Corporation for payment
thereof.
SECTION 7. VOTING RIGHTS. The holders of Series B Equity Shares shall
not be entitled to any voting rights except (i) in the event that the Board
of Directors has not declared a dividend payable to holders of any Series
of Preferred Shares ranking pari passu with the Series B Equity Shares that
were authorized prior to the issuance of the Series B Preferred Shares or
with the consent of the holders of a majority of the Series B Equity Shares
or were issued to the original holder of the Series B Equity Shares (all
such Preferred Shares, collectively, the "Ranking Preferred Shares") for
four (4) quarterly dividend periods, the number of directors constituting
the Board of Directors shall, without further action, be increased by one
(1) and the holders of a majority of the Series B Equity Shares shall have
the exclusive right, together with holders of all other series of Ranking
Preferred Shares, to elect one (1) director to fill such newly created
directorship until such time as all such dividends in arrears are made
current and paid in full, at which time the director so elected shall cease
to be a director, the number of directors constituting the Board of
Directors shall be reduced by one (1) and such additional voting rights of
the holders of the Series B Equity Shares shall terminate, subject to
revesting in the event of each and every subsequent event of the character
indicated above, (ii) the affirmative vote of the holders of a majority of
the Series B Equity Shares voting together as a class shall be required to
approve any amendment to the Articles of Incorporation that materially and
adversely affects the rights, preferences or powers of the Series B Equity
Shares, including, without limitation, the definition of Ownership Limit
with respect to the Series B Equity Shares, provided, that (x) except as
required by clause (y) where the amendment to these Articles of
Incorporation for which the vote is required pursuant to this clause (ii)
adversely affects the rights, powers and preferences of other series of
Ranking Preferred Shares, then such amendment shall be approved by a vote
of a majority of the Ranking Preferred Shares affected thereby, voting
together as a class and (y) the unanimous approval of the holders of Series
B Equity Shares shall be required for any amendment to these Articles of
Incorporation that would decease the rate or change the time of payment of
any dividend or distribution on the Series B Equity Shares, decrease the
amount payable upon redemption of the Series B Equity Shares or upon the
voluntary or involuntary liquidation of the Corporation, or advance the
date on which the Series B Equity Shares may be redeemed by the
Corporation, amend the number of shares of Series B Equity Shares required
to effect amendments to the Articles of Incorporation, (iii) the
affirmative vote of the holders of a majority of the Ranking Preferred
Shares of each affected series voting together as a class shall be required
to approve any merger or consolidation of the Corporation and another
entity in which the Corporation is not the surviving corporation and each
holder of such series of Ranking Preferred Shares does not receive shares
of the surviving corporation with substantially similar rights, preferences
and powers in the surviving corporation as the Ranking Preferred Shares
have with respect to the Corporation, (iv) the affirmative vote of the
holders of a majority of the Preferred Shares voting together as a class
shall be required to approve any voluntary action by the Board of Directors
intended to cause the Corporation to cease to have the status as a REIT (as
defined in Section 4.5 of the Articles of Incorporation) and (v) as
otherwise required by applicable law.
SECTION 8. TITLE. This resolution shall be known and may be referred
to as "A Resolution of the Board of Directors of Westfield America, Inc.
Designating Series B Preferred Shares and Fixing Preferences and Rights
Thereof".
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended".
IN WITNESS WHEREOF, the undersigned, Co-President has executed
this instrument and its Assistant Secretary has attested to said instrument
on the 16th day of May, 1997.
WESTFIELD AMERICA, INC.
ATTEST: By: /s/ Peter Lowy
---------------------------
Co-President
------------
/s/ Barry Mills
------------------------
Assistant Secretary
STATE OF NEW YORK )
: ss.
COUNTY OF NEW YORK )
I, Gail Shulman, a notary public, do hereby certify that on this
16th day of May, 1997, personally appeared before me Peter S. Lowy, and
being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foregoing document as
Co-President of the corporation, and that the statements therein contained
are true.
[SEAL] /s/ Gail Shulman
------------------------------
Notary Public
My Commission Expires: February 28, 1998
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION" DESIGNATING
SERIES C PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF@
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
PURSUANT TO THE PROVISIONS OF SECTION 351.180 (7) OF THE
GENERAL AND BUSINESS CORPORATION LAW OF THE STATE
OF MISSOURI, AS AMENDED
I, the undersigned, Co-President of Westfield America, Inc., a Missouri
corporation (hereinafter sometimes referred to as the "Corporation") , hereby
certify as follows:
FIRST: that under the provisions of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares of all classes of capital stock which the Corporation may issue
is 410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share (the "Senior Preferred Shares"),
(ii) 5,000,000 shares shall be Preferred Shares, with par value of $1.00
per share (the "Preferred Shares"), 940,000 of which have been designated
as Series A Preferred Shares, with liquidation value of $100 per share (the
"Series A Preferred Shares") and 400,000 of which have been designated as
Series B Preferred Shares, with a liquidation value of $100 per share (the
"Series B Preferred Shares"), (iii) 200,000,000 shall be shares of common
stock, par value $.01 per share (the "Common Shares"), (iv) 205,000,000
will be shares of excess stock, par value $.01 ("Excess Shares"). Any
Excess Shares which are issued with respect to Common Stock shall be
"Excess Common Shares" and, together with the Common Shares, the "Common
Equity Shares" and any Excess Shares which are issued with respect to
Preferred Shares shall be "Excess Preferred Shares", and, together with the
Preferred Shares, the "Preferred Equity Shares" and under said Articles of
Incorporation (as amended, the "Articles of Incorporation"), the shares of
Preferred Stock are authorized to be issued by the Board of Directors and
the Board of Directors is expressly authorized to determine in the
Resolution, the designation, powers, rights, preferences and
qualifications, limitations or restrictions, not fixed and determined by
the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to the
authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351,180 (7)
of the General and Business Corporation Law of Missouri, as amended,
adopted on July 20, 1998 the following resolution creating a series of
Preferred Stock designated as "Series C Preferred Shares", which resolution
has not been amended, modified, rescinded or revoked and is in full force
and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
"SERIES C PREFERRED SHARES"
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "Corporation", by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution,
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series C Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class of
preferred stock shall be designated as Series C Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 416,667 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "Series C Preferred Shares". Each Series C Preferred Share shall
be identical in all respects to each other Series C Preferred Share. Each
Excess Series C Preferred Share shall be identical in all respects to each
other Excess Series C Preferred Share, and except as otherwise provided
herein, shall be identical in all respects to each Series C Preferred Share
(the Series C Preferred Shares together with the Excess Series C Preferred
Shares being hereinafter referred to as the "Series C Equity Shares").
Section 2. Definitions. For purposes of the Series C Preferred Shares,
the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person, shall
mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate shall
include, without limitation, Westfield Holdings Limited ("WHL"), Westfield
America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy (such
individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series C Equity Share
equal to 8.5% of the Liquidation Preference per Series C Equity Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series C Preferred
Shares.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated EBITDA" for any quarter shall mean the consolidated net
income of the Corporation (before extraordinary income or gains and less
equity in income of unconsolidated real estate partnerships), calculated in
a manner consistent with the Corporation's financial statements filed with
the Securities and Exchange Commission, increased by the sum of the
following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated real
estate partnerships calculated in a manner consistent with this definition of
Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such quarter
(other than income taxes attributable to extraordinary, unusual or non-
recurring gains or losses except to the extent that such gains were not
included in Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP for such
quarter (including financing fees and amortization of deferred financing fees
or amortization of original issue discount, but excluding capitalized
interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs (only to the
extent that such amounts have not been previously included in the amount
of Consolidated EBITDA pursuant to clause (c) above), goodwill, other
intangibles and management fees, and
f. any other non-cash charges, to the extent deducted from consolidated
net income (including, but not limited to, income allocated to minority
interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum of:
a. the Corporation's pro rata share of fixed charges from unconsolidated
real estate partnerships calculated in a manner consistent with this
definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP for such
quarter (including, without duplication, financing fees and amortization of
deferred financing fees or amortization of original issue discount),
c. dividend and distribution requirements with respect to preferred
stock and any other preferred securities for such quarter (not including
any portion of preferred stock dividends the calculation of which is
based on the dividend paid in such quarter to the holders of Common
Shares), whether or not declared or paid,
d. regularly scheduled amortization of principal of debt during such
quarter (other than any balloon payments at maturity) and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section 6(e).
"Conversion Date" shall have the meaning set forth in Section 6(a).
"Conversion Price" shall mean the conversion price per Common Equity Share
for which the Series C Equity Share is convertible, as such Conversion
Price may be adjusted pursuant to Section 6. The initial conversion price
shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any other
class of stock or other security of the Corporation or any other issuer for
any day shall mean the last reported sales price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported
on the New York Stock Exchange ("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 ("NASDAQ") or, if such security is not quoted on
NASDAQ, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. (the "NASD") or, if bid and asked prices for such
security on such day shall not have been reported through the NASD, 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 Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Periods" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Series C Equity Shares (other than the initial
Dividend Period, which shall commence on the Issue Date for such Series C
Equity Shares and end on and include the last day of the calendar quarter
immediately following such Issue Date, and other than the Dividend Period
during which any Series C Equity Shares shall be redeemed pursuant to
Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series C
Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share on the five (5) consecutive Trading Days selected
by the Corporation commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day
before the "ex date" with respect to the issuance or distribution requiring
such computation. The term "ex date," when used with respect to any
issuance or distribution, means the first day on which the Common 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.
"Fixed Charge Coverage Violation" shall have the meaning set forth in
Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series C Preferred Shares has preference or
priority in both (i) the payment of dividends and (ii) the distribution of
assets on any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth Incorporated
and controlled Affiliates thereof.
"Issue Date" shall mean the date on which the Series C Preferred
Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of stock of the Corporation now or hereafter issued and outstanding
over which the Series C Preferred Shares has preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Non-Electing Share" shall have the meaning set forth in Section 6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section 10(b).
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section
6(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the Corporation for
any taxable year on which the Corporation does not compute its income as
a real estate investment trust;
(ii) the approval by the shareholders of the Corporation of a proposal
for the Corporation to cease to qualify as a real estate investment trust;
(iii) a determination by the Board of Directors of the Corporation,
based on the advice of counsel, that the Corporation has ceased to
qualify as a real estate investment trust; or
(iv) a "determination" within the meaning of Section 1313(a) of the
Code that the Corporation has ceased to qualify as a real estate
investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series C Preferred Shares" shall have the meaning given such term in the
preamble to this Certificate of Designation.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series C Preferred Shares as to the payment of dividends
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment"
with respect to the Series C Preferred Shares shall mean placing such funds
in a separate account or delivering such funds to a disbursing, paying or
other similar agent.
"Trading Day" shall mean any day on which the securities in question are
traded on the NYSE, or if such securities are not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which
such securities are listed or admitted, or if not listed or admitted for
trading on any national securities exchange, on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for the Series C Preferred Shares.
Capitalized terms not otherwise defined herein have the meanings ascribed to
them in the Articles.
Section 3. Dividends.
(a) Subject to the preferential rights of the holders of any Preferred
Stock that ranks senior in the payment of dividends to the Series C Equity
Shares and subject to paragraph (b) of this Section 3, the holders of
Series C Equity Shares shall be entitled to receive, when, as and if
declared by the Board of Directors, but only out of funds legally available
for the payment of dividends, cumulative preferential dividends payable in
cash to shareholders of record on the respective date, not exceeding 50
days preceding such dividend payment date, fixed for the purpose by the
Board of Directors in advance of payment of each particular dividend in an
amount equal to the greater of (A) the Base Rate per share per annum and
(B) an amount per share equal to the Liquidation Preference of a Series C
Equity Share (exclusive of accrued but unpaid dividends) divided by the
Conversion Price (the "Series C Common Equivalent Factor") times the dollar
amount of cash dividends declared with respect to each Common Equity Share
that does not result in an adjustment to the Conversion Price pursuant to
Subparagraph (d)(iii) of Section 6 (such product, the "Series C Common
Equivalent Amount") for the same annual period; provided, however, that if
as a result of the quarterly dividends paid in accordance with the
following sentence, the holders of Series C Equity Shares shall have
received for any calendar year more dividends than such Shares shall be
entitled under clauses (A) and (B) above (as adjusted pursuant to the third
and eighth sentences of this Section 3), the dividends payable in respect
of Series C Equity Shares in subsequent calendar years shall be reduced to
the extent of such overpayment. Subject to the proviso of the preceding
sentence of this Section 3 (a), the dividend paid in respect of each
quarterly period in each calendar year shall be determined as follows (in
each case, excluding any additional payment made pursuant to the following
sentence) : (1) for the first quarter, the greater of 25% of the Base Rate
per share and the Series C Common Equivalent Amount for the same quarter;
(2) for the second quarter, an amount such that the aggregate amount to be
received per Series C Equity Share in respect of the first two quarters of
such calendar year shall be the greater of 50% of the Base Rate per share
and the Series C Common Equivalent Amount for the same two quarters; (3)
for the third quarter, an amount such that the aggregate amount to be
received per Series C Equity Share in respect of the first three quarters
of such calendar year shall be the greater of 75% of the Base Rate per
share and the Series C Common Equivalent Amount for the same three
quarters; and (4) for the fourth quarter, an amount such that the aggregate
amount to be received per Series C Equity Share in respect of such calendar
year shall be the amount provided in the preceding sentence of this Section
3(a). Notwithstanding the foregoing, for any quarter in which a Fixed
Charge Coverage Violation (as defined below) has occurred, the dividend
payable per Series C Equity Share shall be 1.20 times the amount provided
in the preceding sentence. A "Fixed Charge Coverage Violation" shall occur
for any quarter that the ratio of the Corporation's Consolidated EBITDA to
its Consolidated Fixed Charges is below 1.40 to 1. The dividends shall
begin to accrue as set forth above and shall be fully cumulative from the
first day of the applicable Dividend Period, whether or not in any Dividend
Period or Periods there shall be funds of the Corporation legally available
for the payment of such dividends, and shall be payable quarterly, when, as
and if declared by the Board of Directors, in arrears on Dividend Payment
Dates. Accumulated but unpaid dividends for any past quarterly dividend
periods may be declared and paid at any time, without reference to any
regularly scheduled quarterly dividend payment date, to holders of record
on such date, not exceeding 50 days preceding such dividend payment date,
fixed for the purpose by the Board of Directors in advance of payment of
each particular dividend. Any dividend payment made on Series C Equity
Shares shall first be credited against the earliest accrued but unpaid
dividend due with respect to Series C Equity Shares which remains payable.
Beginning with the quarter in which a REIT Termination Event occurs, all
dividends payable per Series C Equity Share pursuant to this Section shall
be multiplied by 2.5.
(b) The initial Dividend Period for the Series C Equity Shares will
include a partial dividend for the period from the Issue Date until the
last day of the calendar quarter immediately following such Issue Date. The
amount of dividends payable for such initial period, or any other period
shorter than a full quarterly Dividend Period, on the Series C Equity
Shares shall be computed by dividing the number of days in such period by
90 and multiplying the result by the Series C Equity dividend determined in
accordance with Section 3(a). Holders of Series C Equity Shares shall not
be entitled to any dividends, whether payable in cash, property or shares,
in excess of cumulative dividends, as herein provided, on the Series C
Equity Shares. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series C
Equity Shares which may be in arrears.
(c) So long as any Series C Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series C Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series C Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series C Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series C Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series C Equity Shares and
any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series C Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series C Equity Shares
shall not be entitled to participate in any such dividends, whether payable
in cash, stock or otherwise.
(e) No distributions on Series C Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebted ness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, subject to the prior
preferences and other rights of any series of stock ranking senior to the
Series C Preferred Shares upon liquidation, distribution or winding up of
the Corporation, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for
the holders of Junior Shares, the holders of the Series C Equity Shares
shall be entitled to receive One Hundred Eighty Dollars ($180.00) (the
"Liquidation Preference") per share of Series C Equity Shares plus an
amount equal to all dividends (whether or not earned or declared) accrued
and unpaid thereon to the date of liquidation, dissolution or winding up of
the affairs of the Corporation (any such date, a "Series C Liquidation
Date") but such holders shall not be entitled to any further payment;
provided, that the dividend payable with respect to the Dividend Period
containing the Series C Liquidation Date shall be equal to the dividend
determined pursuant to Section 3 above for the preceding Dividend Period
times a fraction equal to the actual number of days elapsed from the end
date of the calendar quarter most recently completed to the relevant Series
C Liquidation Date over 90 days. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the Series C Equity Shares
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity
Shares, then such assets, or the proceeds thereof, shall be distributed
among the holders of Series C Equity Shares and any such other Parity
Shares ratably in accordance with the respective amounts that would be
payable on such Series C Equity Shares and any such other Parity Shares if
all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or
more corporations, real estate investment trusts or other entities, (ii) a
sale, lease or conveyance of all or substantially all of the Corporation's
property or business or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with or prior to the Series C
Equity Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of the Series C Equity Shares,
as provided in this Section 4, the holders of Series C Equity Shares shall
have no other claim to the remaining assets of the Corporation and any
other series or class or classes of Junior Shares shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the
holders of the Series C Equity Shares shall not be entitled to share
therein.
Section 5. Redemption at the Option of the Corporation.
(a) The Series C Equity Shares shall not be redeemable by the
Corporation prior to _____ __, 2008./1/ On and after _________, 2008, the
Corporation, at its option, may redeem the Series C Equity Shares, in whole
at any time or from time to time in part, in minimum increments of $10.0
million of aggregate Liquidation Preference of such shares, out of funds
legally available therefor at a redemption price payable in cash equal to
100% of the Liquidation Preference per Series C Equity Shares (plus all
accumulated, accrued and unpaid dividends as provided in paragraph (b)
below).
(b) Upon any redemption of Series C Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series C Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series C Equity Shares called for redemption.
(c) If full cumulative dividends on the Series C Equity Shares and any
other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, the Series C
Equity Shares may not be redeemed under this Section 5 in part and the
Corporation may not purchase or acquire Series C Equity Shares, otherwise
than pursuant to a purchase or exchange offer made on the same terms to all
holders of Series C Equity Shares.
(d) Notice of the redemption of any Series C Equity Shares under this
Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series C Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (d), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of Series C Equity
Shares to be redeemed and, if fewer than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places at which
certificates for such shares are to be surrendered; (5) the then-current
Conversion Price; and (6) that dividends on the shares to be redeemed shall
cease to accrue on such Call Date except as otherwise provided herein.
Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash
necessary to effect such redemption), (i) except
-----------------
/1/. This date is the tenth anniversary of the Closing.
as otherwise provided herein, dividends on the Series C Equity Shares so
called for redemption shall cease to accrue, (ii) such shares shall no
longer be deemed to be outstanding, and (iii) all rights of the holders
thereof as holders of Series C Equity Shares shall cease (except the rights
to receive the cash payable upon such redemption, without interest thereon,
upon surrender and endorsement of their certificates if so required and to
receive any dividends payable thereon). The Corporation's obligation to
provide cash in accordance with the preceding sentence shall be deemed
fulfilled if, on or before the Call Date, the Corporation shall deposit
with a bank or trust company that has an office in the Borough of
Manhattan, City of New York, and that has capital and surplus of at least
$150,000,000, necessary for such redemption, in trust, with irrevocable
instructions that such cash be applied to the redemption of the Series C
Equity Shares so called for redemption. No interest shall accrue for the
benefit of the holders of Series C Equity Shares to be redeemed on any cash
so set aside by the Corporation. Subject to applicable escheat laws, any
such cash unclaimed at the end of two years from the Call Date shall revert
to the general funds of the Corporation, after which reversion the holders
of such shares so called for redemption shall look only to the general
funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series C Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series C Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series C Equity Shares evidenced by any certificate are redeemed, then new
certificates evidencing the unredeemed shares shall be issued without cost
to the holder thereof.
Section 6. Conversion. Holders of Series C Equity Shares shall have the
right to convert all or a portion of such shares into Common Equity Shares,
as follows:
(a) Subject to and upon compliance with the provisions of this Section
6, a holder of Series C Preferred Shares or Excess C Preferred Shares shall
have the right, at his or her option, at any time (such time being, the
"Conversion Date"), to convert all or any portion of such shares into the
number of fully paid and non-assessable Common Shares or Excess Common
Shares, respectively obtained by dividing the aggregate Liquidation
Preference of such shares (inclusive of accrued but unpaid dividends) by
the Conversion Price (as in effect at the time and on the date provided for
in the last paragraph of paragraph (b) of this Section 6) by surrendering
such shares to be converted, such surrender to be made in the manner
provided in paragraph (b) of this Section 6; provided, however, that the
right to convert shares called for redemption pursuant to Section 5 shall
terminate at the close of business on the fifth Business Day prior to the
Call Date fixed for such redemption, unless the Corporation shall default
in making payment of the cash payable upon such redemption under Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series C Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series C Equity Shares. Unless the shares issuable
on conversion are to be issued in the same name as the name in which such
Series C Equity Shares are registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series C Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series C
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series C Equity Shares being entitled to such
dividend on the Dividend Payment Date) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series C Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series C
Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series C Equity
Shares for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Equity Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates for
Series C Equity Shares as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full Common Equity Shares
issuable upon the conversion of such shares in accordance with provisions
of this Section 6, and any fractional interest in respect of a Common
Equity Share arising upon such conversion shall be settled as provided in
paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series C Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity 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 on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Equity Shares shall be issued upon conversion of the Series C Equity
Shares. Instead of any fractional interest in a Common Equity Share that
would otherwise be deliverable upon the conversion of a Series C Equity
Share, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of the Common Shares on the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series C Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Corporation shall after the Issue Date (A) pay a dividend
or make a distribution on its Common Equity Shares in Common Equity
Shares, (B) subdivide its outstanding Common Equity Shares into a greater
number of shares, (C) combine its outstanding Common Equity Shares into a
smaller number of shares or (D) issue any shares of stock by
reclassification of its Common Equity Shares, the Conversion Price in
effect at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such dividend or
distribution or at the opening of business on the Business Day next
following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any Series C Equity Shares thereafter surrendered
for conversion shall be entitled to receive the number of Common Equity
Shares that such holder would have owned or have been entitled to receive
after the happening of any of the events described above as if such
Series C Equity Shares had been converted immediately prior to the record
date in the case of a dividend or distribution or the effective date in
the case of a subdivision, combination or reclassification. An adjustment
made pursuant to this subparagraph (i) shall become effective immediately
after the opening of business on the Business Day next following the
record date (except as provided in paragraph (h) below) in the case of a
dividend or distribution and shall become effective immediately after the
opening of business on the Business Day next following the effective date
in the case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Equity Shares entitling them
(for a period expiring within 45 days after the record date mentioned
below) to subscribe for or purchase Common Equity Shares at a price per
share less than 95% (100% if a stand-by underwriter is used and charges
the Corporation a commission) of the Fair Market Value per Common Share
on the record date for the determination of shareholders entitled to
receive such rights, options or warrants, then the Conversion Price in
effect at the opening of business on the Business Day next following such
record date shall be adjusted to equal the price determined by
multiplying (A) the Conversion Price in effect immediately prior to the
opening of business on the Business Day next following the date fixed for
such determination by (B) a fraction, the numerator of which shall be the
sum of (x) the number of Common Equity Shares outstanding on the close of
business on the date fixed for such determination and (y) the number of
shares that the aggregate proceeds to the Corporation from the exercise
of such rights, options or warrants for Common Equity Shares would
purchase at 95% of such Fair Market Value (or 100% in the case of a
stand-by underwriting), and the denominator of which shall be the sum of
(x) the number of Common Equity Shares outstanding on the close of
business on the date fixed for such determination and (y) the number of
additional Common Equity 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 paragraph (h)
below). In determining whether any rights, options or warrants entitle
the holders of Common Equity Shares to subscribe for or purchase Common
Equity Shares at less than 95% of such Fair Market Value (or 100% in the
case of a stand-by underwriting), there shall be taken into account any
consideration received by the Corporation upon issuance and upon exercise
of such rights, options or warrants, the value of such consideration, if
other than cash, to be determined by the Board of Directors whose
determination shall be conclusive. To the extent that Common Equity
Shares are not delivered pursuant to such rights, options or warrants,
upon the expiration or termination of such rights, options or warrants,
the Conversion Price shall be readjusted to the Conversion Price which
would then be in effect had the adjustments made upon the issuance of
such rights, options or warrants been made on the basis of delivery of
only the number of Common Equity Shares actually delivered. In the event
that such rights, options or warrants are not so issued, the Conversion
Price shall again be adjusted to be the Conversion Price which would then
be in effect if such date fixed for the determination of stockholders
entitled to receive such rights, options or warrants had not been fixed.
(iii) If the Corporation shall distribute to all holders of its Common
Equity Shares any securities of the Corporation (other than Common Equity
Shares) or evidence of its indebtedness or assets (excluding cumulative
cash dividends or distributions paid with respect to the Common Equity
Shares after December 31, 1997 which are not in excess of the following:
the sum of (A) the Corporation's cumulative undistributed Funds from
Operations at December 31, 1997, plus (B) the cumulative amount of Funds
from Operations, as determined by the Board of Directors, after December
31, 1997, minus (C) the cumulative amount of dividends accrued or paid in
respect of the Series C Equity Shares or any other class or series of
preferred stock of the Corporation after the Issue Date) or rights,
options or warrants to subscribe for or purchase any of its securities
(excluding those rights, options and warrants issued to all holders of
Common Equity Shares entitling them for a period expiring within 45 days
after the record date referred to in subparagraph (ii) above to subscribe
for or purchase Common Equity Shares, which rights and warrants are
referred to in and treated under subparagraph (ii) above) (any of the
foregoing being hereinafter in this subparagraph
(iii) collectively called the "Securities" and individually a
"Security"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying (x)
the Conversion Price in effect immediately prior to the close of business
on the date fixed for the determination of shareholders entitled to
receive such distribution by (y) a fraction, the numerator of which shall
be the Fair Market Value per Common Share on the record date mentioned
below less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of the
Securities or assets or evidences of indebtedness so distributed or of
such rights, options or warrants applicable to one Common Equity 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 on the date of distribution retroactive to the opening of
business on the Business Day next following (except as provided in
paragraph (h) below) the record date for the determination of
shareholders entitled to receive such distribution. For the purposes of
this subparagraph (iii), the distribution of a Security, which is
distributed not only to the holders of the Common Equity Shares on the
date fixed for the determination of shareholders entitled to such
distribution of such Security, but also is distributed with each Common
Equity Share delivered to a Person converting a share of Series C Equity
Shares after such determination date, shall not require an adjustment of
the Conversion Price pursuant to this subparagraph (iii); provided that
on the -------- date, if any, on which a Person converting a share of
Series C Equity Shares would no longer be entitled to receive such
Security with a Common Equity Share (other than as a result of the
termination of all such Securities), a distribution of such Securities
shall be deemed to have occurred and the Conversion Price shall be
adjusted as provided in this subparagraph (iii) (and such day shall be
deemed to be "the date fixed for the determination of the shareholders
entitled to receive such distribution" and "the record date" within the
meaning of the two preceding sentences). If any dividend or distribution
of the type described in this paragraph (iii) is declared but not so paid
or made, the Conversion Price shall again be adjusted to the Conversion
Price which would then be in effect if such dividend or distribution had
not been declared.
Rights or warrants distributed by the Corporation to all holders of
Common Equity Shares entitling the holders thereof to subscribe for or
purchase shares of the Corporation's capital stock (either initially or
under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events ("Trigger Event"): (i) are
deemed to be transferred with such shares of Common Equity Shares; (ii)
are not exercisable; and (iii) are also issued in respect of future
issuances of Common Equity Shares, shall be deemed not to have been
distributed for purposes of this subparagraph (iii) (and no adjustment to
the Conversion Price under this subparagraph (iii) will be required)
until the occurrence of the earliest Trigger Event. If such right or
warrant is subject to subsequent events, upon the occurrence of which
such right or warrant shall become exercisable to purchase different
securities, evidences of indebtedness or other assets or entitle the
holder to purchase a different number or amount of the foregoing or to
purchase any of the foregoing at a different purchase price, then the
occurrence of each such event shall be deemed to be the date of issuance
and record date with respect to a new right or warrant (and a termination
or expiration of the existing right or warrant without exercise by the
holder thereof to the extent not exercised). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any
Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto, that resulted in an adjustment to the
Conversion Price under this Subparagraph (iii), (1) in the case of any
such rights or warrants which shall all have been redeemed or repurchased
without exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were
a cash distribution (but not a distribution paid exclusively in cash),
equal to the per share redemption or repurchase price received by a
holder of Common Equity Shares with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to all
holders of Common Equity Shares as of the date of such redemption or
repurchase, and (2) in the case of such rights or warrants all of which
shall have expired or been terminated without exercise, the Conversion
Price shall be readjusted as if such rights and warrants had never been
issued.
(iv) In case a tender or exchange offer (which term shall not include
open market repurchases by the Corporation) made by the Corporation or
any subsidiary or controlled Affiliate of the Corporation for all or any
portion of the Common Equity Shares shall expire and such tender or
exchange offer shall require the payment by the Corporation or such
subsidiary or controlled Affiliate of consideration per Common Equity
Share having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described
in a resolution of the Board of Directors), at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer, that exceeds the Current Market Price per
Common Share on the Trading Day next succeeding the Expiration Time, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction contemplated
by this subparagraph, by a fraction of which the numerator shall be the
number of Common Equity Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time, multiplied by the Current
Market Price per Common Share on the Trading Day next succeeding the
Expiration Time, and the denominator shall be the sum of (A) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any maximum, being referred to as
the "Purchased Shares") and (B) the product of the number of Common
Equity Shares outstanding (less any Purchased Shares) at the Expiration
Time and the Current Market Price per Common Share on the Trading Day
next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time. In the event the Corporation or any subsidiary or
controlled Affiliate is obligated to purchase shares pursuant to any such
tender offer, but the Corporation or such subsidiary or controlled
Affiliate is permanently prevented by applicable law from effecting any
such purchases, or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required unless
such adjustment would require a cumulative increase or decrease of at
least 1% in such price; provided, however, that any adjustments that by
reason of this subparagraph (v) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment until
made; and provided, further, that any adjustment shall be required and
made in accordance with the provisions of this Section 6 (other than this
subparagraph (v)) 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 6, the
Corporation shall not be required to make any adjustment of the
Conversion Price for the issuance of any Common Equity Shares pursuant to
any plan providing for the reinvestment of dividends or interest payable
on securities of the Corporation and the investment of additional
optional amounts in Common Equity Shares under such plan. All
calculations under this Section 6 shall be made to the nearest cent (with
$.005 being rounded upward) or to the nearest one-hundredth of a share
(with .005 of a share being rounded upward), as the case may be. Anything
in this paragraph (d) to the contrary notwithstanding, the Corporation
shall be entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable in
order that any share dividends, subdivision of shares, reclassification
or combination of shares, distribution of rights or warrants to purchase
shares or securities, or distribution of other assets (other than cash
dividends) hereafter made by the Corporation to its shareholders shall
not be taxable. To the extent permitted by applicable law, the Corpora
tion from time to time may reduce the Conversion Price by any amount for
any period of time if the period is at least 20 days, the reduction is
irrevocable during the period and the Board of Directors shall have made
a determination that such reduction would be in the best interests of the
Corporation, which determination shall be conclusive. Whenever the
Conversion Price is reduced pursuant to the preceding sentence, the
Corporation shall mail to the holder of each Series C Equity Share at his
or her last address appearing on the share register a notice of reduction
prior to the date the reduced Conversion Price takes effect and such
notice shall state the reduced Conversion Price and the period during
which it will be in effect.
(e) If the Corporation shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for 40% or more of its Common Equity Shares, sale of all or
substantially all of the Corporation's assets or recapitalization of the
Common Equity Shares and excluding any transaction as to which subparagraph
(d)(i) of this Section 6 applies) (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which all or
substantially all of the Common Equity Shares are converted into the right
to receive different securities or other property (including cash or any
combination thereof), each Series C Equity Share which is not redeemed or
converted into the right to receive different securities or other property
prior to such Transaction shall thereafter be convertible, in lieu of
Common Equity Shares into the kind and amount of different securities and
other property (including cash or any combination thereof) receivable upon
the consummation of such Transaction by a holder of that number of Common
Equity Shares into which one Series C Equity Share was convertible
immediately prior to such Transaction, assuming such holder of Common
Equity Shares (i) is not a Person with which the Corporation consolidated
or into which the Corporation merged or which merged into the Corporation
or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of shares, securities
and other property (including cash) receivable upon such Transaction is not
the same for each Common Share held immediately prior to such Transaction
by other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised ("Non-
Electing Share"), then for the purpose of this paragraph (e) the kind and
amount of shares, securities and other property (including cash) receivable
upon such Transaction by each Non-Electing Share shall be deemed to be the
kind and amount so receivable per share by holders of a plurality of the
Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series C Equity Shares that will contain
provisions enabling the holders of the Series C Equity 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 paragraph (e)
shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends or
distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997, plus
the cumulative amount of Funds from Operations, as determined by the
Board of Directors, after December 31, 1997, minus the cumulative amount
of dividends accrued or paid in respect of the Series C Equity Shares or
any other class or series of preferred stock of the Corporation after the
Issue Date); or
(ii) the Corporation shall authorize the granting to all holders of
Common Equity Shares of rights, options or warrants to subscribe for or
purchase any shares of any class or any other rights, options or
warrants; or
(iii) there shall be any reclassification of the Common Equity Shares
(other than an event to which subparagraph (d)(i) of this Section 6
applies) or any consolidation or merger to which the Corporation is a
party (other than a merger in which the Corporation is the surviving
entity) and for which approval of any shareholders of the Corporation is
required, or a statutory share exchange, or a self tender offer by the
Corporation 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
Corporation as an entirety; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation; then the Corporation shall
cause to be filed with the Transfer Agent and shall cause to be mailed to
the holders of Series C Equity Shares at their addresses as shown on the
records of the Corporation, as promptly as possible, but at least 10 days
prior to the applicable date hereinafter specified, a notice stating (A)
the date on which a record is to be taken for the purpose of such
dividend, distribution or granting of rights, options or warrants, or, if
a record is not to be taken, the date as of which the holders of Common
Equity Shares of record to be entitled to such dividend, distribution or
rights, options 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 Equity Shares of record shall be entitled to exchange their Common
Equity 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 6.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series C
Equity Shares at such holder's last address as shown on the records of the
Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides that
an adjustment shall become effective on the day next following the record
date for an event, the Corporation may defer until the occurrence of such
event (A) issuing to the holder of any share of Series C Equity Shares
converted after such record date and before the occurrence of such event
the additional Common Equity Shares issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Equity
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth
in this Section 6. If any action or transaction would require adjustment of
the Conversion Price pursuant to both paragraph (d) and paragraph (e) of
this Section 6, only one adjustment shall be made and such adjustment shall
be the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series C Equity Shares, the
Conversion Price for the Series C Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Equity Shares, for the purpose of effecting
conversion of the Series C Equity Shares, the full number of Common Equity
Shares deliverable upon the conversion of all outstanding Series C Equity
Shares not theretofore converted. For purposes of this paragraph (k), the
number of Common Shares that shall be deliverable upon the conversion of
all outstanding Series C Preferred Shares shall be computed as if at the
time of computation all such outstanding shares were held by a single
holder.
Any Common Equity Shares issued upon conversion of the Series C Equity
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 Equity Shares deliverable upon
conversion of the Series C Equity Shares, the Corporation will take any
action that, in the opinion of its counsel, may be necessary in order that
the Corporation may validly and legally issue fully paid and (subject to
any customary qualification based upon the nature of a real estate
investment trust) non-assessable Common Equity Shares at such adjusted
Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series C Equity 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.
The Corporation shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series C Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
Common Equity Shares or other securities or property on conversion of the
Series C Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series C 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 Corporation the amount of any such tax or
established, to the reasonable satisfaction of the Corporation, that such
tax has been paid.
Section 7. Change of Control.
-----------------
(a) If a Change of Control (as defined below) occurs (a "Change of
Control Repurchase Event"), the holders of Series C Equity Shares shall
have the right to require the Corporation, to the extent the Corporation
shall have funds legally available therefor, to redeem any or all of the
Series C Equity Shares held by such holder at a repurchase price payable in
cash (the "Change of Control Repurchase Payment") in an amount equal to
105% of the Liquidation Preference thereof, plus accrued and unpaid
dividends whether or not declared, if any, to the date of repurchase or the
date payment is made available (the "Change of Control Date") pursuant to
the offer described in subsection (b) below (the "Change of
Control-Repurchase Offer").
(b) Within 15 days following the Corporation becoming aware that a
Change of Control Repurchase Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to the each
holder of Series C Equity Shares stating (A) that a Change of Control
Repurchase Event has occurred and that such holder has the right to require
the Corporation to repurchase any or all of the Series C Equity Shares then
held by such holder, (B) the date of repurchase (which shall be a Business
Day, no earlier than 30 days and no later than 60 days from the date such
notice is mailed, or such later date as may be necessary to comply with the
requirements of the Exchange Act), (C) the repurchase price and (D) the
instructions determined by the Corporation, consistent with this
subsection, that such investor must follow in order to have the Series C
Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to the
extent lawful, shall accept for payment Series C Equity Shares or portions
thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series C Equity
Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "Change of Control" means the occurrence of
any of the following: (i) the first acquisition, directly or indirectly, by
any individual or entity or group (as such term is used in Section 13(d)(3)
of the Exchange Act) of beneficial ownership (as defined in Rule 13d-3
under the Exchange Act, except that such individual or entity shall be
deemed to have beneficial ownership of all shares that any such individual
or entity has the right to acquire, whether such right is exercisable
immediately or only after passage of time) of more than 25% of the
Corporation's or Westfield America Trust=s outstanding equity securities
with voting power, under ordinary circumstances, to elect Directors of the
Corporation; (ii) other than with respect to the election, resignation or
replacement of any Director designated, appointed or elected by the holders
of any Series of Preferred Shares (each a "Preferred Director"), during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation (excluding
Preferred Directors) then still in office who were Directors at the
beginning of such period, or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors then in office of the Corporation; and (iii) (A) Any
of the Corporation or Westfield America Trust consolidating with or merging
into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into the any of the Corporation or Westfield
America Trust, which in either event (A) or (B) is pursuant to a
transaction in which the outstanding voting securities of the Corporation
or Westfield America Trust is reclassified or changed into or exchanged for
cash, securities or other property; provided, however, that the events
described in clauses (i), (ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of the event described in clause (iii), if the
sole purpose of such event is that the Corporation or Westfield America
Trust is seeking to change its domicile or to convert from a corporation to
a trust or vice versa; (b) in the case of the event described in clause
(iii), if the holders of the exchanged securities of the Corporation or
Westfield America Trust immediately after such transaction beneficially own
at least a majority of the securities of the merged or consolidated entity
normally entitled to vote in elections of Directors of the Corporation or
Westfield America Trust; (c) if any of Westfield Holdings Limited or its
wholly-owned subsidiaries remains as manager of the Corporation's
properties and as adviser of the Corporation, in each case, in a manner
substantially similar to that on the date hereof; or (d) if the Change of
Control results solely from the purchase or other acquisition of equity
securities by Westfield Holdings Limited, Westfield America Trust, the Lowy
Family or the Investor.
Section 8. Redemption at the Option of the Holder.
--------------------------------------
(a) At any time after _________, 2008/2/, the holders of Series C
Equity Shares shall have the right at any time that the Corporation=s
common stock has a Current Market Price at or below the Conversion Price
per share, to require the Corporation, to the extent the Corporation shall
have funds legally available therefor, to redeem any or all of the Series C
Equity Shares held by such holder at a repurchase price payable, at the
option of the Corporation, in either (i) cash, or (ii) such number of
Common Equity Shares as shall have a Current Market Price in the aggregate
on the day prior to the day such holder gives notice pursuant to Section
8(b) of its intention to redeem, equal to in either case, 100% of the
liquidation preference thereof plus accrued and unpaid dividends whether or
not declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
(b) For purposes of this Section 8, redemption at the option of the
holder shall be deemed to occur upon receipt by the Corporation of written
notice that the holder of Series C Equity Shares wishes to tender shares to
be redeemed. The holders of such shares to be redeemed shall then have 30
days from the date of such notice to deliver such shares to the Transfer
Agent. Upon the surrender of the certificate or certificates of Series C
Preferred Shares to be redeemed, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, the
Corporation shall promptly, either (i) by wire transfer of immediately
available funds to such holder, as directed by such holder, send an amount
equal to the Redemption Payment in respect of all Series C Equity Shares or
portions thereof so tendered or (ii) issue and deliver to such holder, or
on his or her written order, a certificate or certificates for the number
of full Common Equity Shares issuable in respect of all Series C Equity
Shares or portions thereof so tendered.
Section 9. Shares To Be Retired. All Series C Equity Shares which shall
have been issued and reacquired in any manner by the Corporation shall be
restored to the status of authorized but unissued preferred stock, without
discretion as to class or series, and subject to applicable limitations set
forth in the Articles may thereafter be reissued as shares of any series of
preferred stock.
Section 10. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series C Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution
or winding up, if the holders of such class or series shall be entitled
to the receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority
to the holders of Series C Preferred Shares, which shall expressly
include the Corporation's non-voting senior preferred stock, par value
$1.00 per share;
-----------------------
/2/. This date is the tenth anniversary of the Closing hereunder.
(b) on a parity with the Series C Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof
shall be different from those of the Series C Preferred Shares, if the
holders of such class or series and the Series C Preferred Shares shall
be entitled to the receipt of dividends and of amounts distributable
upon liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the
other ("Parity Shares"), which shall expressly include the Corporation's
Series A Cumulative Redeemable Preferred Shares, Series B Cumulative
Redeemable Preferred Shares and Series D Cumulative Convertible
Redeemable Preferred Shares;
(c) junior to the Series C Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior
Shares; and
(d) junior to the Series C Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Voting. (a) Except as expressly provided in this
Certificate of Designation, the holders of Series C Equity Shares shall
have no voting rights. If and whenever (i) for two consecutive quarterly
Dividend Periods the Corporation fails to pay dividends on the Series C
Equity Shares (which shall, with respect to any such quarterly dividend,
mean that any such dividend has not been paid in full), then the number of
directors then constituting the Board of Directors shall be increased by
two and the holders of Series C Equity Shares, voting as a single class,
shall be entitled to elect the two additional directors to serve on the
Board of Directors or (ii) for two consecutive quarterly Dividend Periods
the Corporation fails to pay dividends on the Common Shares in an amount
per share at least equal to $0.32 (subject to adjustment consistent with
any adjustment of the Conversion Price pursuant to Section 6(a) of this
Article), then the number of directors then constituting the Board of
Directors shall be increased by one and the holders of Series C Equity
Shares, voting as a single class, shall be entitled to elect the one
additional director to serve on the Board of Directors, in either case, at
any annual meeting of shareholders or special meeting held in place
thereof, or at a special meeting of the holders of the Series C Equity
Shares called as hereinafter provided; provided, however, that except as
set forth in the next sentence hereto, the holders of Series C Equity
Shares shall not have the right to elect more than two directors. If, other
than through the operation of this Section 11(a) or pursuant to the
provisions of the Articles of Incorporation relating to the Corporation=s
Series A and B Preferred Shares (but only with respect to one director
elected by the holders of the Series A and B Preferred Shares), the Board
of Directors shall be increased at any time to more than ten directors,
then, upon the occurrence or continuance of any of the events described in
this Section 11(a), the Board of Directors shall be increased by such
number of additional directors, and the holders of Series C Equity Shares
shall be entitled to elect such number of additional directors, as shall be
necessary to maintain the ratio of directors elected by the holders of the
Series C Shares to the directors otherwise elected, as nearly as possible
(rounding to the next larger whole number), equal to the ratio that would
have existed if the holders of the Series C Equity Shares were able to
elect the full number of directors then permitted to be elected by them
under this Section 11 and the directors otherwise elected numbered only
ten. Whenever, as the case may be, (i) all arrears in dividends on the
Series C Equity Shares then outstanding shall have been paid and the
Corporation has paid dividends thereon for two consecutive quarters and
(ii) the Corporation has paid dividends on the Common Shares in an amount
per share at least equal to $0.32 (subject to adjustment consistent with
any adjustment of the Conversion Price pursuant to Section 6(a) of this
Article) for two consecutive quarters, then the right of the holders of the
Series C Equity Shares to elect such additional directors shall cease (but
subject always to the same provision for the vesting of such voting rights
in the case of any similar future arrearage in quarterly dividends), and
the terms of office of all persons elected as Directors by the holders of
the Series C Equity Shares shall forthwith terminate and the number of the
Board of Directors shall be reduced accordingly. At any time after such
voting power shall have been so vested in the holders of Series C Equity
Shares, the Secretary of the Corporation may, and upon the written request
of any holders of 5% of the outstanding Series C Equity Shares (addressed
to the Secretary at the principal office of the Corporation) shall, call a
special meeting of the holders of the Series C Equity Shares for the
election of the Directors to be elected by them as herein provided, such
call to be made by notice similar to that provided in the Bylaws of the
Corporation for a special meeting of the shareholders or as required by
law. If any such special meeting required to be called as above provided
shall not be called by the Secretary within 20 days after receipt of any
such request, then any holder of Series C Equity Shares may call such
meeting, upon the notice above provided, and for that purpose shall have
access to the records of the Corporation. The directors elected at any such
special meeting shall hold office until the next annual meeting of the
shareholders or special meeting held in lieu thereof if such office shall
not have previously terminated as above provided. If any vacancy shall
occur among the Directors elected by the holders of the Series C Equity
Shares, a successor shall be elected by the Board of Directors, upon the
nomination of the then-remaining Director elected by the holders of the
Series C Equity Shares or the successor of such remaining Director (or, if
there are then no such Directors or Director elected by the holders of
Series C Equity Shares, such Director shall be elected by the holders of
Series C Equity Shares as described above), to serve until the next annual
meeting of the shareholders or special meeting held in place thereof if the
term of such director shall not have previously terminated as provided
above.
(b) The holders of the Series C Equity Shares, voting together with
the holders of the Common Shares as a single class, shall be entitled to
vote on any matter involving any transaction between the Corporation and
any Affiliate of the Corporation which is brought to a vote of the holders
of the Common Shares (other than any vote on the conversion of the Series D
Preferred Shares into Common Shares). In any matter for which a holder of
Series C Equity Shares is permitted to vote under this Section 11(b), such
holder shall have the number of votes equal to the number of Common Shares
into which the Series C Equity Shares of such holder is convertible on the
record date for such vote.
(c) So long as any Series C Equity Shares are outstanding, in addition
to any other vote or consent of shareholders required by law or by the
Articles, the affirmative vote of the holders of a majority of the Series C
Equity Shares, voting together as a class, given in person or by proxy,
either in writing without a meeting or by vote at any meeting called for
the purpose, shall be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the provisions of
the Articles of Incorporation or this Certificate of Designation that
materially and adversely affects the voting powers, rights or
preferences of the holders of the Series C Equity Shares; or
(ii) Any merger or consolidation of the Corporation and another entity
in which the Corporation is not the surviving corporation and each
holder of Series C Equity Shares does not receive shares of the
surviving corporation with substantially similar rights, preferences and
powers in the surviving corporation as the Series C Equity Shares have
with respect to the Corporation (except for changes that do not
materially and adversely affect the holders of the Series C Equity Stock).
provided, however, that no such vote of the holders of Series C Equity Shares
shall be required if, at or prior to the time when such amendment,
alteration or repeal is to take effect, or when the issuance of any such
prior shares or convertible security is to be made, as the case may be,
provision is made for the redemption of all Series C Equity Shares at the
time outstanding to the extent such redemption is authorized by Section 5
of this Certificate of Designation.
(iii) For purposes of the foregoing provisions of this Section 11(c),
each share of Series C Equity Shares shall have one (1) vote per share,
except that when any other series of Equity Shares shall have the right
to vote with the Series C Equity Shares as a single class on any matter,
then the Series C Equity Shares and such other series shall have with
respect to such matters one (1) vote per $180.00 (or less pursuant to
Section 4(a)) of stated liquidation preference. Except as otherwise
required by applicable law or as set forth herein, the Series C Equity
Shares shall not have any relative, participating, optional or other
special voting rights and powers other than as set forth herein, and the
consent of the holders thereof shall not be required for the taking of
any corporate action.
Section 12. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any Series C Preferred Shares as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 13. Title. This resolution shall be known and may be referred to
as "A Resolution of the Board of Directors of Westfield America, Inc.
Designating Series C Preferred Shares and Fixing Preferences and Rights
Thereof".
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President this 10 day of August,
1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
-----------------
Name: Peter S. Lowy
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS:
COUNTY OF LOS ANGELES )
I, Annie M. Gary, a notary public, do hereby certify that on this 6th
day of August, 1998, personally appeared before me Peter Lowy, and being
first duly sworn by me, declared that he is the Co-President of Westfield
America, Inc., that he signed the foregoing document as Co-President of the
corporation, and that the statements therein contained are true.
[SEAL] /s/ Annie M. Gary
----------------------------------
Notary Public
My Commission Expires:
March 31, 2000
AMENDMENT TO
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION AMENDING DESIGNATION
OF SERIES C PREFERRED SHARES"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
AND APPROVED BY THE HOLDERS OF
SERIES C PREFERRED STOCK
AND COMMON STOCK OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180(7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"CORPORATION"), hereby certify as follows:
FIRST: that under the provision of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares, of all classes of capital stock which the Corporation may issue is
410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share, (ii) 5,000,000 shares shall be
Preferred Shares, with par value of $1.00 per share (the "PREFERRED
SHARES"), 940,000 of which have been designated as Series A Preferred
Shares, with a liquidation value of $100 per share, 400,000 of which have
been designated as Series B Preferred Shares, with a liquidation value of
$100 per share, 416,667 of which have been designated as Series C Preferred
Shares, with a liquidation value of $180 per share (the "SERIES C PREFERRED
SHARES"), 138,889 of which have been designated as Series C-1 Preferred
Shares, with a liquidation value of $180 per share, 138,889 of which have
been designated as Series C-2 Preferred Shares, with a liquidation value of
$180 per share, 694,445 of which have been designated as Series D Preferred
Shares, with a liquidation value of $180 per share and 138,889 of which
have been designated as Series D-1 Preferred Shares, with a liquidation
value of $180 per share, (iii) 200,000,000 shall be shares of common stock,
par value $.01 per share (the "COMMON SHARES"), (iv) 205,000,000 will be
shares of excess stock, par value $.01 per share ("EXCESS SHARES"). Any
Excess Shares which are issue with respect to Common stock shall be "EXCESS
COMMON SHARES" and, together with the Common Shares, the "COMMON EQUITY
SHARES" and any Excess Shares which are issued with respect to Preferred
Shares shall be "EXCESS PREFERRED SHARES" and, together with the Preferred
Shares, the "PREFERRED EQUITY SHARES" and under said Articles of
Incorporation (as amended, the "ARTICLES OF INCORPORATION"), the shares of
Preferred Stock are authorized to be issued by the Board of Directors and
the Board of Directors is expressly authorized to determine in the
Resolution, the designation, powers, rights, preferences and
qualifications, limitations or restrictions, not fixed and determined by
the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to the
authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180(7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on January 21, 1999, the resolution, following the third
recital, amending the Certificate of Designation setting forth "Resolution
of the Board of Directors of Westfield America, Inc. Designating Series C
Preferred Shares and Fixing Preferences and Rights Thereof" (the "Series C
Certificate of Designation"), which resolution has not been amended,
modified, rescinded or revoked and is in full force and effect on the date
hereof.
THIRD: That a majority of the holders of issued and outstanding Series
C Preferred Shares and Common Shares approved at the Corporation's Annual
Meeting of Shareholders held on April 29, 1999, the amendment of the Series
C Certificate of Designation in the form approved by the Board of Directors
of the Corporation.
"RESOLUTION OF THE BOARD OF DIRECTORS
OF WESTFIELD AMERICA, INC AMENDING
DESIGNATION OF SERIES C PREFERRED SHARES"
NOW, THEREFORE, IT IS:
RESOLVED, that Section 11(a) of the Series C Preferred Certificate
of Designation be amended in its entirety to read as follows:
"Section 11. VOTING. (a) Except as expressly provided in this
Certificate of Designation, the holders of Series C Equity Shares
shall have no voting rights. If and whenever (i) for two consecutive
quarterly Dividend Periods the Corporation fails to pay dividends on
the Series C Equity Shares, the Series C-1 Equity Shares (as defined
in the Corporation's Certificate of Designation authorizing the Series
C-1 Equity Shares) or the Series C-2 Equity Shares (as defined in the
Corporation's Certificate of Designation authorizing the Series C-2
Equity Shares) (which shall, with respect to any such quarterly
dividend, mean that any such dividend has not been paid in full), then
the number of directors then constituting the Board of Directors shall
be increased by two and the holders of Series C Equity Shares, the
Series C-1 Equity Shares and the Series C-2 Equity Shares, voting
together as a single class, shall be entitled to elect the two
additional directors to serve on the Board of Directors or (ii) for
two consecutive quarterly Dividend Periods the Corporation fails to
pay dividends on the Common Shares in an amount per share at least
equal to $0.32 (subject to adjustment consistent with any adjustment
of the Conversion Price pursuant to Section 6(a) of this Article),
then the number of directors then constituting the Board of Directors
shall be increased by one and the holders of Series C Equity Shares,
the Series C-1 Equity Shares and the Series C-2 Equity Shares, voting
together as a single class, shall be entitled to elect the one
additional director to serve on the Board of Directors, in either
case, at any annual meeting of shareholders or special meeting held in
place thereof, or at a special meeting of the holders of the Series C
Equity Shares, the Series C-1 Equity Shares and the Series C-2 Equity
Shares called as hereinafter provided; PROVIDED, HOWEVER, that except
as set forth below, the holders of the Series C Equity Shares, the
Series C-1 Equity Shares and the Series C-2 Equity Shares shall not
have the right to elect more than two directors. If other than through
the operation of this Section 11(a) or pursuant to the provisions of
the Articles of Incorporation relating to the Corporation's Series A
and B Preferred Shares (but only with respect to one director elected
by the holders of the Series A and B Preferred Shares), the Board of
Directors shall be increased at any time to more than ten directors,
then, upon the occurrence or continuance of any of the events
described in this Section 11(a), the Board of Directors shall be
increased by such number of additional directors, and the holders of
the Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares, voting together as a single class, shall be
entitled to elect such number of additional directors, as shall be
necessary to maintain the ratio of directors elected by the holders of
the Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares to the directors otherwise elected, as nearly
as possible (rounding to the next larger whole number), equal to the
ratio that would have existed if the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares
were able to elect the full number of directors then permitted to be
elected by them under this Section 11(a) and the directors otherwise
elected numbered only ten. Whenever, as the case may be, (i) all
arrears dividends on the Series C Equity Shares, the Series C-1 Equity
Shares and the Series C-2 Equity Shares then outstanding shall have
been paid and the Corporation has paid dividends thereon for two
consecutive quarters and (ii) the Corporation has paid dividends on
the Common Shares in an amount per share at least equal to $0.32
(subject to adjustment consistent with any adjustment of the
Conversion Price pursuant to Section 6(a) of this Article) for two
consecutive quarters, then the right of the holders of the Series C
Equity Shares, the Series C-1 Equity Shares and the Series C-2 Equity
Shares to elect such additional directors shall cease (but subject
always to the same provision for the vesting of such voting rights in
the case of any similar future arrearage in quarterly dividends), and
the terms of office of all persons elected as Directors by the holders
of the Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares shall forthwith terminate and the number of
the Board of Directors shall be reduced accordingly. At any time after
such voting power shall have been so vested in the holders of Series C
Equity Shares, the Series C-1 Equity Shares and the Series C-2 Equity
Shares, the Secretary of the Corporation may, and upon the written
request of any holders of 5% of the outstanding Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares
(addressed to the Secretary at the principal office of the
Corporation) shall call a special meeting of the holders of the Series
C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares for the election of the Directors to be elected by them
as herein provided, such call to be made by notice similar to that
provided in the Bylaws of the Corporation for a special meeting of the
shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the
Secretary within 20 days after receipt of any such request, then any
holder of Series C Equity Shares, Series C-1 Equity Shares or the
Series C-2 Equity Shares may call such meeting, upon the notice above
provided, and for that purpose shall have access to the records of the
Corporation. The directors elected at any such special meeting shall
hold office until the next annual meeting of the shareholders or
special meeting held in lieu thereof if such office shall not have
previously terminated as above provided. If any vacancy shall occur
among the Directors elected by the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares
a successor shall be elected by the Board of Directors, upon the
nomination of the then-remaining Director elected by the holders of
the Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares or the successor of such remaining Director
(or, if there are then no such Directors or Director elected by the
holders of Series C Equity Shares, the Series C-1 Equity Shares and
the Series C-2 Equity Shares, such Director shall be elected by the
holders of the Series C Equity Shares, the Series C-1 Equity Shares
and the Series C-2 Equity Shares as described above), to serve until
the next annual meeting of the shareholders or special meeting held in
place thereof if the term of such director shall not have previously
terminated as provided above.";
RESOLVED that such amendment be submitted for a vote of the
holders of the Corporation's Common Stock, par value $0.01 (the
"COMMON SHARES") and the holders of the Series C Preferred Shares for
their approval at the annual meeting of shareholders of the
Corporation to be held on April 29, 1999;
RESOLVED that the proper officers of the Corporation are
authorized and directed to solicit such shareholder approval, and to
take such further action as they deem necessary or advisable in
connection therewith; and
RESOLVED that subject to the requisite approval of such amendment
by the holders of the Corporation's Common Shares and Series C
Preferred Shares, the proper officers are authorized and directed to
prepare and file with the Missouri Secretary of State a certificate of
amendment of the Series C Preferred Certificate of Designation, and to
take all other steps deemed necessary or advisable to give effect to
the forgoing amendment.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to
Certificate of Designation to be duly executed by its Co-President this 8th
day of July, 1999.
WESTFIELD AMERICA, INC.
By: /s/ Richard E. Green
-----------------------------------
Name: Richard E. Green
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss:
COUNTY OF LOS ANGELES )
I, Leesa A. Ashley, a notary public, do hereby certify that on this
8th day of July, 1999, personally appeared before me Richard E. Green, and
being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foreign document as
Co-President of the corporation, and that the statements therein contained
are true.
[SEAL] /s/ Leesa A. Ashley
------------------------------
Notary Public
My Commission Expires: April 30, 2001
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES D PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a Missouri
corporation (hereinafter sometimes referred to as the "Corporation"), hereby
certify as follows:
FIRST: that under the provisions of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares of all classes of capital stock which the Corporation may issue
is 410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share (the "Senior Preferred Shares"),
(ii) 5,000,000 shares shall be Preferred Shares, with par value of $1.00
per share (the "Preferred Shares"), 940,000 of which have been designated
as Series A Preferred Shares, with a liquidation value of $100 per share
(the "Series A Preferred Shares") and 400,000 of which have been designated
as Series B Preferred Shares, with a liquidation value of $100 per share
(the "Series B Preferred Shares"), (iii) 200,000,000 shall be shares of
common stock, par value $.01 per share (the "Common Shares"), (iv)
205,000,000 will be shares of excess stock, par value $.01 ("Excess
Shares"). Any Excess Shares which are issued with respect to Common Stock
shall be "Excess Common Shares" and, together with the Common Shares, the
"Common Equity Shares" and any Excess Shares which are issued with respect
to Preferred Shares shall be "Excess Preferred Shares", and, together with
the Preferred Shares, the "Preferred Equity Shares" and under said Articles
of Incorporation (as amended, the "Articles of Incorporation"), the shares
of Preferred Stock are authorized to be issued by the Board of Directors
and the Board of Directors is expressly authorized to determine in the
Resolution, the designation, powers, rights, preferences and
qualifications, limitations or restrictions, not fixed and determined by
the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to the
authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on July 20, 1998 the following resolution creating a
series of Preferred Stock designated as "Series D Preferred Shares," which
resolution has not been amended, modified, rescinded or revoked and is in
full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES D PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "Corporation," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series D Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class of
preferred stock shall be designated as Series D Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 694,445 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "Series D Preferred Shares." Each Series D Preferred Share shall
be identical in all respects to each other Series D Preferred Share, and
except as otherwise provided herein, shall be identical in all respects to
each Series D Preferred Share (the Series D Preferred Shares together with
the Excess Series D Preferred Shares being hereinafter referred to as the
"Series D Equity Shares").
Section 2. Definitions. For purposes of the Series D Preferred Shares,
the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person, shall
mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate shall
include, without limitation, Westfield Holdings Limited ("WHL"), Westfield
America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy (such
individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series D Equity Share
equal to 8.5% of the Liquidation Preference per Series D Equity Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series D Preferred
Shares.
"Business Day "shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"Code "shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated EBITDA" for any quarter shall mean the consolidated net
income of the Corporation (before extraordinary income or gains and less
equity in income of unconsolidated real estate partnerships), calculated in
a manner consistent with the Corporation's financial statements filed with
the Securities and Exchange Commission, increased by the sum of the
following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated real
estate partnerships calculated in a manner consistent with this
definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to extraordinary,
unusual or non-recurring gains or losses except to the extent
that such gains were not included in Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP for
such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs (only
to the extent that such amounts have not been previously included
in the amount of Consolidated EBITDA pursuant to clause (c)
above), goodwill, other intangibles and management fees, and
f. any other non-cash charges, to the extent deducted from consolidated
net income (including, but not limited to, income allocated to
minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP for
such quarter including, without duplication, financing fees and
amortization of deferred financing fees or amortization of
original issue discount),
c. dividend and distribution requirements with respect to preferred
stock (not including any portion of preferred stock dividends the
calculation of which is based on the dividend paid in such
quarter to the holders of common shares) whether or not declared
or paid,
d. regularly scheduled amortization of principal of debt during such
quarter (other than any balloon payments at maturity), and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section 6(e).
"Conversion Date" shall have the meaning set forth in Section 6(a).
"Conversion Price" shall mean the conversion price per Common Equity
Share for which the Series D Equity Share is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any other
class of stock or other security of the Corporation or any other issuer for
any day shall mean the last reported sales price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported
on the New York Stock Exchange ("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 ("NASDAQ") or, if such security is not quoted on
NASDAQ, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. (the "NASD") or, if bid and asked prices for such
security on such day shall not have been reported through the NASD, 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 Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Period" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Series D Equity Shares (other than the initial
Dividend Period, which shall commence on the Issue Date for such Series D
Equity Shares and end on and include the last day of the calendar quarter
immediately following such Issue Date, and other than the Dividend Period
during which any Series D Equity Shares shall be redeemed pursuant to
Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series D
Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current Market
Prices of a Common Share on the five (5) consecutive Trading Days selected
by the Corporation commencing not more than 20 Trading Days before, and
ending not later than, the earlier of the day in question and the day
before the "ex date" with respect to the issuance or distribution requiring
such computation. The term "ex date," when used with respect to any
issuance or distribution, means the first day on which the Common 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.
"Fixed Charge Coverage Violation" shall have the meaning set forth in
Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series D Preferred Shares preference or priority
in both (i) the payment of dividends and (ii) the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth Incorporated
and controlled affiliates thereof.
"Issue Date" shall mean the date on which Series D Preferred Stock is
issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of stock of the Corporation now or hereafter issued and outstanding
over which the Series D Preferred Shares have preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Non-Electing Share" shall have the meaning set forth in Section 6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section 11(b).
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section
6(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the Corporation
for any taxable year on which the Corporation does not compute
its income as a real estate investment trust,
(ii) the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real
estate investment trust,
(iii) a determination by the Board of Directors of the Corporation,
based on the advice of counsel, that the Corporation has ceased
to qualify as a real estate investment trust, or
(iv) a "determination" within the meaning of Section 1313(a) of the
Code that the Corporation has ceased to qualify as a real
estate investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series D Preferred Shares" shall have the meaning given such term in
the preamble to the Certificate of Designation.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series D Preferred Shares as to the payment of dividends
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment"
with respect to the Series D Preferred Shares shall mean placing such funds
in a separate account or delivering such funds to a disbursing, paying or
other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted
for trading on the NYSE, on the principal national securities exchange on
which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for Series D Preferred Shares and notified to the holders of the
Series D Preferred Stock.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles.
Section 3. Dividends. (a) Subject to the preferential rights of the
holders of any Preferred Stock that ranks senior in the payment of
dividends to the Series D Equity Shares and subject to paragraph (b) of
this Section 3, the holders of Series D Equity Shares shall be entitled to
receive, when, as and if declared by the Board of Directors, but only out
of funds legally available for the payment of dividends, cumulative
preferential dividends payable in cash to shareholders of record on the
respective date, not exceeding 50 days preceding such dividend payment
date, fixed for the purpose by the Board of Directors in advance of payment
of each particular dividend in an amount equal to the greater of (A) the
Base Rate per share per annum and (B) an amount per share equal to the
Liquidation Preference of a Series D Equity Share (exclusive of accrued but
unpaid dividends) divided by the Conversion Price (the "Series D Common
Equivalent Factor") times the dollar amount of cash dividends declared with
respect to each Common Equity Share that does not result in an adjustment
to the Conversion Price pursuant to subparagraph (d)(iii) of Section 6
(such product, the "Series D Common Equivalent Amount") for the same annual
period; provided, however, that if as a result of the quarterly dividends
paid in accordance with the following sentence, the holders of Series D
Equity Shares shall have received for any calendar year more dividends than
such Shares shall be entitled under clauses (A) and (B) above (as adjusted
pursuant to the third and eighth sentences of this Section 3), the
dividends payable in respect of Series D Equity Shares in subsequent
calendar years shall be reduced to the extent of such overpayment. Subject
to the proviso of the preceding sentence of this Section 3(a), the dividend
paid in respect of each quarterly period in each calendar year shall be
determined as follows (in each case, excluding any additional payment made
pursuant to the following sentence): (1) for the first quarter, the greater
of 25% of the Base Rate per share and the Series D Common Equivalent Amount
for the same quarter; (2) for the second quarter, an amount such that the
aggregate amount to be received per Series D Equity Share in respect of the
first two quarters of such calendar year shall be the greater of 50% of the
Base Rate per share and the Series D Common Equivalent Amount for the same
two quarters; (3) for the third quarter, an amount such that the aggregate
amount to be received per Series D Equity Share in respect of the first
three quarters of such calendar year shall be the greater of 75% of the
Base Rate per share and the Series D Common Equivalent Amount for the same
three quarters; and (4) for the fourth quarter, an amount such that the
aggregate amount to be received per Series D Equity Share in respect of
such calendar year shall be the amount provided in the preceding sentence
of this Section 3(a). Notwithstanding the foregoing, for any quarter in
which a Fixed Charge Coverage Violation (as defined below) has occurred,
the dividend payable per Series D Equity Share shall be 1.20 times the
amount provided in the preceding sentence. A "Fixed Charge Coverage
Violation" shall occur for any quarter that the ratio of the Corporation's
Consolidated EBITDA to its Consolidated Fixed Charges is below 1.40 to 1.
The dividends shall begin to accrue as set forth above and shall be fully
cumulative from the first day of the applicable Dividend Period, whether or
not in any Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such dividends, and shall
be payable quarterly, when, as and if declared by the Board of Directors,
in arrears on Dividend Payment Dates. Accumulated but unpaid dividends for
any past quarterly dividend periods may be declared and paid at any time,
without reference to any regularly scheduled quarterly dividend payment
date, to holders of record on such date, not exceeding 50 days preceding
such payment date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend. Any dividend payment made
on Series D Equity Shares shall first be credited against the earliest
accrued but unpaid dividend due with respect to Series D Equity Shares
which remains payable. Beginning with the quarter in which a REIT
Termination Event occurs, all dividends payable per Series D Equity Share
pursuant to this Section shall be multiplied by 2.5.
(b) The initial Dividend Period for the Series D Equity Shares will
include a partial dividend for the period from the Issue Date until the
last day of the calendar quarter immediately following such Issue Date. The
amount of dividends payable for such initial period, or any other period
shorter than a full quarterly Dividend Period, on the Series D Equity
Shares shall be computed by dividing the number of days in such period by
90 and multiplying the result by the Series D Equity dividend determined in
accordance with Section 3(a). Holders of Series D Equity Shares shall not
be entitled to any dividends, whether payable in cash, property or shares,
in excess of cumulative dividends, as herein provided, on the Series D
Equity Shares. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series D
Equity Shares which may be in arrears.
(c) So long as any Series D Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series D Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series D Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series D Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series D Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series D Equity Shares and
any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series D Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series D Equity Shares
shall not be entitled to participate in any such dividends, whether payable
in cash, stock or otherwise.
(e) No distributions on Series D Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the prior preferences and other rights
of any series of stock ranking senior to the Series D Preferred Shares upon
liquidation, distribution or winding up of the Corporation, before any
payment or distribution of the assets of the Corporation (whether capital
or surplus) shall be made to or set apart for the holders of Junior Shares,
the holders of the Series D Equity Shares shall be entitled to receive One
Hundred Eighty Dollars ($180.00) (the "Liquidation Preference") per Series
D Equity Share plus an amount equal to all dividends (whether or not earned
or declared) accrued and unpaid thereon to the date of liquidation,
dissolution or winding up of the affairs of the Corporation (any such date,
a "Series D Liquidation Date") but such holders shall not be entitled to
any further payment; provided, that the dividend payable with respect to
the Dividend Period containing the Series D Liquidation Date shall be equal
to the dividend determined pursuant to Section 3 above for the preceding
Dividend Period times a fraction equal to the actual number of days elapsed
from the end date of the calendar quarter most recently completed to the
relevant Series D Liquidation Date over ninety days. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of
the Corporation, or proceeds thereof, distributable among the holders of
the Series D Equity Shares shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares
of any class or series of Parity Shares, then such assets, or the proceeds
thereof, shall be distributed among the holders of Series D Equity Shares
and any such other Parity Shares ratably in accordance with the respective
amounts that would be payable on such Series D Equity Shares and any such
other Parity Shares if all amounts payable thereon were paid in full. For
the purposes of this Section 4, (i) a consolidation or merger of the
Corporation with one or more corporations, real estate investment trusts or
other entities, (ii) a sale, lease or conveyance of all or substantially
all of the Corporation's property or business or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with or prior to the Series D
Equity Shares upon liquidation, dissolution or winding up, upon any
liquidation, dissolution or winding up of the Corporation, after payment
shall have been made in full to the holders of the Series D Equity Shares,
as provided in this Section 4, the holders of Series D Equity Shares shall
have no other claim to the remaining assets of the Corporation and any
other series or class or classes of Junior Shares shall, subject to the
respective terms and provisions (if any) applying thereto, be entitled to
receive any and all assets remaining to be paid or distributed, and the
holders of the Series D Equity Shares shall not be entitled to share
therein.
Section 5. Redemption at the Option of the Corporation. (a) The Series
D Equity Shares shall not be redeemable by the Corporation prior to
________ __, 2008./1/ On and after ________ __, 2008, the Corporation, at
its option, may redeem the Series D Equity Shares, in whole at any time or
from time to time in part, in minimum increments of $10.0 million of
aggregate Liquidation Preference of such shares, out of funds legally
available therefor at a redemption price payable in cash equal to 100% of
the Liquidation Preference per Series D Equity Share (plus all accumulated,
accrued and unpaid dividends as provided in paragraph (d) below).
-------------------------
/1/ This date is the tenth anniversary of the Closing.
(b) In the event that WHL and its subsidiaries and the trustee of
Westfield America Trust on behalf of Westfield America Trust do not vote to
approve the conversion of the Series D Equity Shares into Common Equity
Shares at the Corporation's 1999 Annual Shareholder Meeting or at any other
meeting of the Corporation's shareholders at which such proposal is raised,
the Corporation shall have the right to redeem the Series D Equity Shares,
in whole or in part, out of funds legally available therefor at a
redemption price payable in cash equal to 100% of the Liquidation
Preference per Series D Equity Share (plus all accumulated, accrued and
unpaid dividends as provided in paragraph (c) below).
(c) Upon any redemption of Series D Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series D Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend Payment
Date. Except as provided above, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series D
Equity Shares called for redemption.
(d) If full cumulative dividends on the Series D Equity Shares and any
other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, the Series D
Equity Shares may not be redeemed under this Section 5 in part and the
Corporation may not purchase or acquire Series D Equity Shares, otherwise
than pursuant to a purchase or exchange offer made on the same terms to all
holders of Series D Equity Shares.
(e) Notice of the redemption of any Series D Equity Shares under this
Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series D Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (e), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of Series D Equity
Shares to be redeemed and, if fewer than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places at which
certificates for such shares are to be surrendered; (5) the then-current
Conversion Price; and (6) that dividends on the shares to be redeemed shall
cease to accrue on such Call Date except as otherwise provided herein.
Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash
necessary to effect such redemption), (i) except as otherwise provided
herein, dividends on the Series D Equity Shares so called for redemption
shall cease to accrue, (ii) such shares shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as holders of
Series D Equity Shares shall cease (except the rights to receive the cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any
dividends payable thereon). The Corporation's obligation to provide cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust
company that has an office in the Borough of Manhattan, City of New York,
and that has capital and surplus of at least $150,000,000, necessary for
such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the Series D Equity Shares so called for
redemption. Notwithstanding the foregoing the Corporation shall, in the
first instance, send the money to any holder of Series D Equity Shares that
has notified the Corporation in writing of the location of delivery of
funds. No interest shall accrue for the benefit of the holders of Series D
Equity Shares to be redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws, any such cash unclaimed at the end of
two years from the Call Date shall revert to the general funds of the
Corporation, after which reversion the holders of such shares so called for
redemption shall look only to the general funds of the Corporation for the
payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series D Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series D Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series D Equity Shares evidenced by any certificate are redeemed, then new
certificates evidencing the unredeemed shares shall be issued without cost
to the holder thereof.
Section 6. Conversion. The Series D Equity Shares shall not be
convertible into Common Equity Shares prior to (i) a vote of the
shareholders of the Corporation approving the conversion of Series D Equity
Shares into Common Equity Shares or (ii) the transfer of the Series D
Equity Shares to an individual to whom the Corporation is permitted to
issue Common Equity Shares without shareholder approval, in accordance with
the rules of the NYSE. Subject to the foregoing, holders of Series D Equity
Shares shall have the right to convert all or a portion of such shares into
Common Equity Shares, as follows:
(a) Subject to and upon compliance with the provisions of this Section
6, a holder of Series D Preferred Shares or Excess Series D Preferred
Shares shall have the right, at his or her option, at any time (such time
being, the "Conversion Date"), to convert all or any portion of such shares
into the number of fully paid and non-assessable Common Shares or Excess
Common Shares, respectively, obtained by dividing the aggregate Liquidation
Preference of such shares (inclusive of accrued but unpaid dividends) by
the Conversion Price (as in effect at the time and on the date provided for
in the last paragraph of paragraph (b) of this Section 6) by surrendering
such shares to be converted, such surrender to be made in the manner
provided in paragraph (b) of this Section 6; provided, however, that the
right to convert shares called for redemption pursuant to Section 5 shall
terminate at the close of business on the fifth Business Day prior to the
Call Date fixed for such redemption, unless the Corporation shall default
in making payment of the cash payable upon such redemption under Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series D Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series D Equity Shares. Unless the shares issuable
on conversion are to be issued in the same name as the name in which such
Series D Equity Shares are registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series D Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series D
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series D Equity Shares being entitled to such
dividend on the Dividend Payment Date) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series D Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series D
Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series D Equity
Shares for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Equity Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates for
Series D Equity Shares as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full Common Equity Shares
issuable upon the conversion of such shares in accordance with provisions
of this Section 6, and any fractional interest in respect of a Common
Equity Share arising upon such conversion shall be settled as provided in
paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series D Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity 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 on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Equity Shares shall be issued upon conversion of the Series D Equity
Shares. Instead of any fractional interest in a Common Equity Share that
would otherwise be deliverable upon the conversion of a Series D Equity
Share, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of the Common Shares on the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series D Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in Common
Equity Shares, (B) subdivide its outstanding Common Equity Shares into
a greater number of shares, (C) combine its outstanding Common Equity
Shares into a smaller number of shares or (D) issue any shares of
stock by reclassification of its Common Equity Shares, the Conversion
Price in effect at the opening of business on the day following the
date fixed for the determination of shareholders entitled to receive
such dividend or distribution or at the opening of business on the
Business Day next following the day on which such subdivision,
combination or reclassification becomes effective, as the case may be,
shall be adjusted so that the holder of any Series D Equity Shares
thereafter surrendered for conversion shall be entitled to receive the
number of Common Equity Shares that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such Series D Equity Shares had been converted
immediately prior to the record date in the case of a dividend or
distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening
of business on the Business Day next following the record date (except
as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the Business Day next following the effective date in
the case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Equity Shares entitling
them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Common Equity Shares at
a price per share less than 95% (100% if a stand-by underwriter is
used and charges the Corporation a commission) of the Fair Market
Value per Common Share on the record date for the determination of
shareholders entitled to receive such rights, options or warrants,
then the Conversion Price in effect at the opening of business on the
Business Day next following such record date shall be adjusted to
equal the price determined by multiplying (A) the Conversion Price in
effect immediately prior to the opening of business on the Business
Day next following the date fixed for such determination by (B) a
fraction, the numerator of which shall be the sum of (x) the number of
Common Equity Shares outstanding on the close of business on the date
fixed for such determination and (y) the number of shares that the
aggregate proceeds to the Corporation from the exercise of such
rights, options or warrants for Common Equity Shares would purchase at
95% of such Fair Market Value (or 100% in the case of a stand-by
underwriting), and the denominator of which shall be the sum of (x)
the number of Common Equity Shares outstanding on the close of
business on the date fixed for such determination and (y) the number
of additional Common Equity 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
paragraph (h) below). In determining whether any rights, options or
warrants entitle the holders of Common Equity Shares to subscribe for
or purchase Common Equity Shares at less than 95% of such Fair Market
Value (or 100% in the case of a stand-by underwriting), there shall be
taken into account any consideration received by the Corporation upon
issuance and upon exercise of such rights, options or warrants, the
value of such consideration, if other than cash, to be determined by
the Board of Directors whose determination shall be conclusive. To the
extent that Common Equity Shares are not delivered pursuant to such
rights, options or warrants, upon the expiration or termination of
such rights, options or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then be in effect had
the adjustments made upon the issuance of such rights, options or
warrants be made on the basis of delivery of only the number of Common
Equity Shares actually delivered. In the event that such rights,
options or warrants are not so issued, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect if such date fixed for the determination of stockholders
entitled to receive such rights, options or warrants had not been
fixed.
(iii) If the Corporation shall distribute to all holders of its
Common Equity Shares any securities of the Corporation (other than
Common Equity Shares) or evidence of its indebtedness or assets
(excluding cumulative cash dividends or distributions paid with
respect to the Common Equity Shares after December 31, 1997) which are
not in excess of the following: the sum of (A) the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as determined
by the Board of Directors, after December 31, 1997, minus (C) the
cumulative amount of dividends accrued or paid in respect of the
Series D Equity Shares or any other class or series of preferred stock
of the Corporation after the Issue Date) or rights, options or
warrants to subscribe for or purchase any of its securities (excluding
those rights, options and warrants issued to all holders of Common
Equity Shares entitling them for a period expiring within 45 days
after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Equity Shares, which rights and
warrants are referred to in and treated under subparagraph (ii) above)
(any of the foregoing being hereinafter in this subparagraph (iii)
collectively called the "Securities" and individually a "Security"),
then in each such case the Conversion Price shall be adjusted so that
it shall equal the price determined by multiplying (x) the Conversion
Price in effect immediately prior to the close of business on the date
fixed for the determination of shareholders entitled to receive such
distribution by (y) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of
the Securities or assets or evidences of indebtedness so distributed
or of such rights, options or warrants applicable to one Common Equity
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 on the date of distribution retroactive to the
opening of business on the Business Day next following (except as
provided in paragraph (h) below) the record date for the determination
of shareholders entitled to receive such distribution. For the
purposes of this subparagraph (iii), the distribution of a Security,
which is distributed not only to the holders of the Common Equity
Shares on the date fixed for the determination of shareholders
entitled to such distribution of such Security, but also is
distributed with each Common Equity Share delivered to a Person
converting a share of Series D Equity Shares after such determination
date, shall not require an adjustment of the Conversion Price pursuant
to this subparagraph (iii); provided that on the date, if any, on
which a Person converting a Series D Equity Share would no longer be
entitled to receive such Security with a Common Equity Share (other
than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and
the Conversion Price shall be adjusted as provided in this
subparagraph (iii) (and such day shall be deemed to be "the date fixed
for the determination of the shareholders entitled to receive such
distribution" and "the record date" within the meaning of the two
preceding sentences). If any dividend or distribution of the type
described in this paragraph (iii) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
Rights or warrants distributed by the Corporation to all holders
of Common Equity Shares entitling the holders thereof to subscribe for
or purchase shares of the Corporation's capital stock (either
initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common Equity
Shares; (ii) are not exercisable; and (iii) are also issued in respect
of future issuances of Common Equity Shares, shall be deemed not to
have been distributed for purposes of this subparagraph (iii) (and no
adjustment to the Conversion Price under this subparagraph (iii) will
be required) until the occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other
assets or entitle the holder to purchase a different number or amount
of the foregoing or to purchase any of the foregoing at a different
purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right
or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof to the extent not
exercised). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect
thereto, that resulted in an adjustment to the Conversion Price under
this subparagraph (iii), (1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it
were a cash distribution (but not a distribution paid exclusively in
cash), equal to the per share redemption or repurchase price received
by a holder of Common Equity Shares with respect to such rights or
warrants (assuming such holder had retained such rights or warrants),
made to all holders of Common Equity Shares as of the date of such
redemption or repurchase, and (2) in the case of such rights or
warrants all of which shall have expired or been terminated without
exercise, the Conversion Price shall be readjusted as if such rights
and warrants had never been issued.
(iv) In case a tender or exchange offer (which term shall not
include open market repurchases by the Corporation) made by the
Corporation or any subsidiary or controlled Affiliate of the
Corporation for all or any portion of the Common Equity Shares shall
expire and such tender or exchange offer shall require the payment by
the Corporation or such subsidiary or controlled Affiliate of
consideration per Common Equity Share having a fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors), at the last time (the "Expiration Time") tenders
or exchanges may be made pursuant to such tender or exchange offer,
that exceeds the Current Market Price per Common Share on the Trading
Day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph, by a fraction of which the numerator shall be the number
of Common Equity Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time, multiplied by the Current
Market Price per Common Share on the Trading Day next succeeding the
Expiration Time, and the denominator shall be the sum of (A) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any maximum, being referred
to as the "Purchased Shares") and (B) the product of the number of
Common Equity Shares outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event the Corporation or any
subsidiary or controlled Affiliate is obligated to purchase shares
pursuant to any such tender offer, but the Corporation or such
subsidiary or controlled Affiliate is permanently prevented by
applicable law from effecting any such purchases, or all such
purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be in effect if such
tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such price; provided, however, that any adjustments
that by reason of this subparagraph (v) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment until made; and provided, further, that any adjustment
shall be required and made in accordance with the provisions of this
Section 6 (other than this subparagraph (v)) 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 6, the Corporation shall not be
required to make any adjustment of the Conversion Price for the
issuance of any Common Equity Shares pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of
the Corporation and the investment of additional optional amounts in
Common Equity Shares under such plan. All calculations under this
Section 6 shall be made to the nearest cent (with $.005 being rounded
upward) or to the nearest one-hundredth of a share (with .005 of a
share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall
be entitled, to the extent permitted by law, to make such reductions
in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable
in order that any share dividends, subdivision of shares,
reclassification or combination of shares, distribution of rights or
warrants to purchase shares or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Corporation
to its shareholders shall not be taxable. To the extent permitted by
applicable law, the Corporation from time to time may reduce the
Conversion Price by any amount for any period of time if the period is
at least 20 days, the reduction is irrevocable during the period and
the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Corporation, which
determination shall be conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Corporation shall mail
to the holder of each Series D Equity Share at his or her last address
appearing on the share register a notice of reduction prior to the
date the reduced Conversion Price takes effect and such notice shall
state the reduced Conversion Price and the period during which it will
be in effect.
(e) If the Corporation shall be a party to any transaction (including
without limitation a merger, consolidation, statutory share exchange, self
tender offer for 40% or more of its Common Equity Shares, sale of all or
substantially all of the Corporation's assets or recapitalization of the
Common Equity Shares and excluding any transaction as to which subparagraph
(d)(i) of this Section 6 applies) (each of the foregoing being referred to
herein as a "Transaction"), in each case as a result of which all or
substantially all of the Common Equity Shares are converted into the right
to receive different securities or other property (including cash or any
combination thereof), each Series D Equity Share which is not redeemed or
converted into the right to receive different securities or other property
prior to such Transaction shall thereafter be convertible, in lieu of
Common Equity Shares into the kind and amount of different securities and
other property (including cash or any combination thereof) receivable upon
the consummation of such Transaction by a holder of that number of Common
Equity Shares into which one Series D Equity Share was convertible
immediately prior to such Transaction, assuming such holder of Common
Equity Shares (i) is not a Person with which the Corporation consolidated
or into which the Corporation merged or which merged into the Corporation
or to which such sale or transfer was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of shares, securities
and other property (including cash) receivable upon such Transaction is not
the same for each Common Share held immediately prior to such Transaction
by other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised
("Non-Electing Share"), then for the purpose of this paragraph (e) the kind
and amount of shares, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be
deemed to be the kind and amount so receivable per share by holders of a
plurality of the Non-Electing Shares). The Corporation shall not be a party
to any Transaction unless the terms of such Transaction are consistent with
the provisions of this paragraph (e), and it shall not consent or agree to
the occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series D Equity Shares that will contain
provisions enabling the holders of the Series D Equity Shares that remain
outstanding after such Transaction to convert into the consideration
received by holders of Common Equity Shares at the Conversion Price in
effect immediately prior to such Transaction. The provisions of this
paragraph (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends
or distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus the cumulative amount of Funds from Operations, as determined by
the Board of Directors, after December 31, 1997, minus the cumulative
amount of dividends accrued or paid in respect of the Series D Equity
Shares or any other class or series of preferred stock of the
Corporation after the Issue Date); or
(ii) the Corporation shall authorize the granting to all holders
of Common Equity Shares of rights, options or warrants to subscribe
for or purchase any shares of any class or any other rights, options
or warrants; or
(iii) there shall be any reclassification of the Common Equity
Shares (other than an event to which subparagraph (d)(i) of this
Section 6 applies) or any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation
is the surviving entity) and for which approval of any shareholders of
the Corporation is required, or a statutory share exchange, or a self
tender offer by the Corporation 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 Corporation as an entirety; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series D Equity Shares at their
addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options 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 Equity Shares of record shall be entitled
to exchange their Common Equity 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 6.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series D
Equity Shares at such holder's last address as shown on the records of the
Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides that
an adjustment shall become effective on the day next following the record
date for an event, the Corporation may defer until the occurrence of such
event (A) issuing to the holder of any share of Series D Equity Shares
converted after such record date and before the occurrence of such event
the additional Common Equity Shares issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Equity
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case of
issuance of any stock of the Corporation in a reorganization, acquisition
or other similar transaction except as specifically set forth in this
Section 6. If any action or transaction would require adjustment of the
Conversion Price pursuant to both paragraph (d) and paragraph (e) of this
Section 6, only one adjustment shall be made and such adjustment shall be
the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series D Equity Shares, the
Conversion Price for the Series D Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Equity Shares, for the purpose of effecting
conversion of the Series D Equity Shares, the full number of Common Equity
Shares deliverable upon the conversion of all outstanding Series D Equity
Shares not theretofore converted. For purposes of this paragraph (k), the
number of Common Shares that shall be deliverable upon the conversion of
all outstanding Series D Preferred Shares shall be computed as if at the
time of computation all such outstanding shares were held by a single
holder.
Any Common Equity Shares issued upon conversion of the Series D Equity
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 Equity Shares deliverable upon
conversion of the Series D Equity Shares, the Corporation will take any
action that, in the opinion of its counsel, may be necessary in order that
the Corporation may validly and legally issue fully paid and (subject to
any customary qualification based upon the nature of a real estate
investment trust) non assessable Common Equity Shares at such adjusted
Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series D 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.
The Corporation shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series D Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
Common Equity Shares or other securities or property on conversion of the
Series D Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series D Equity 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 Corporation the amount of any such tax or established, to
the reasonable satisfaction of the Corporation, that such tax has been
paid.
Section 7. Change of Control. (a) If a Change of Control (as defined
below) occurs (a "Change of Control Repurchase Event"), the holders of
Series D Equity Shares shall have the right to require the Corporation, to
the extent the Corporation shall have funds legally available therefor, to
redeem any or all of the Series D Equity Shares held by such holder at a
repurchase price payable in cash (the "Change of Control Repurchase
Payment") in an amount equal to 105% of the Liquidation Preference thereof,
plus accrued and unpaid dividends whether or not declared, if any, to the
date of repurchase or the date payment is made available (the "Change of
Control Date"), pursuant to the offer described in subsection (b) below
(the "Change of Control Repurchase Offer").
(b) Within 15 days following the Corporation becoming aware that a
Change of Control Repurchase Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to the each
holder of Series D Equity Shares stating (A) that a Change of Control
Repurchase Event has occurred and that such holder has the right to require
the Corporation to repurchase any or all of the Series D Equity Shares then
held by such bolder, (B) the date of repurchase (which shall be a Business
Day, no earlier than 30 days and no later than 60 days from the date such
notice is mailed, or such later date as may be necessary to comply with the
requirements of the Exchange Act), (C) the repurchase price and (D) the
instructions determined by the Corporation, consistent with this
subsection, that such investor must follow in order to have the Series D
Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to the
extent lawful, shall accept for payment Series D Equity Shares or portions
thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series D Equity
Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "Change of Control" means the occurrence of
any of the following: (i) the first acquisition, directly or indirectly, by
any individual or entity or group (as such term is used in Section 13(d)(3)
of the Exchange Act) of beneficial ownership (as defined in Rule 13d-3
under the Exchange Act, except that such individual or entity shall be
deemed to have beneficial ownership of all shares that any such individual
or entity has the right to acquire, whether such right is exercisable
immediately or only after passage of time) of more than 25% of the
Corporation's outstanding stock with voting power, under ordinary
circumstances, to elect Directors of the Corporation, (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation then still in
office who were either Directors at the beginning of such period, or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office of the Corporation; and (iii) (A) the Corporation consolidating with
or merging into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into the Corporation, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting
stock of the Corporation is reclassified or changed into or exchanged for
cash, securities or other property; provided, however, that the events
described in clauses (i)(ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of an event described in clause (iii), if the
sole purpose of such event is that the Corporation is seeking to change its
domicile or to convert from a corporation to a trust or vice versa; (b) in
the case of an event described in clause (iii), if the holders of the
exchanged securities of the Corporation immediately after such transaction
beneficially own at least a majority of the securities of the merged or
consolidated entity normally entitled to vote in elections of Directors of
the Corporation; (c) if any of WHL or its wholly-owned subsidiaries remain
as manager of the Corporation's properties and remains as adviser of the
Corporation, in each case, in a manner substantially similar to that on
date hereof; or (d) if the Change of Control results solely from the
purchase or other acquisition of equity securities by WHL or its
wholly-owned subsidiaries, Westfield America Trust, the Lowy Family or the
Investor or the sale of equity securities by WHL or any of its wholly-owned
subsidiaries or Westfield America Trust.
Section 8. Redemption at the Option of the Holder. (a) At any time
after __________, 2008,/2/ the holders of Series D Equity Shares thereof
shall have the right at any time that the Corporation's Common Shares has a
Current Market Price at or below and the Conversion Price per share, to
require the Corporation, to the extent the Corporation shall have funds
legally available therefor, to redeem any or all of the Series D Equity
Shares held by such holder at a repurchase price payable, at the option of
the Corporation, in either (i) cash, or (ii) such number of Common Equity
Shares as shall have a Current Market Price in the aggregate on the day
prior to the day such holder gives notice pursuant to Section 8(b) of its
intention to redeem, equal to in either case, 100% of the Liquidation
Preference thereof plus accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
----------------------------
/2/. This date is the tenth anniversary of the Closing hereunder.
(b) Notwithstanding paragraph (a) of this Section 8, in the event that
WHL and its subsidiaries and the trustee of Westfield America Trust on
behalf of Westfield America Trust vote to approve the conversion of the
Series D Equity Shares into Common Equity Shares at a meeting of
shareholders at which such proposal is raised, but the shareholders of the
Corporation as a whole reject the foregoing proposal, then from and after
the later of such rejection date and the second anniversary of the Issue
Date, the Series D Equity Stock shall be redeemable at the option of the
holder, to the extent that the Corporation shall have funds legally
available therefor, at a redemption price payable in cash equal to the
product of (a) the Series D Common Equivalent Factor times (b) the Current
Market Price on the date of the notice provided pursuant to paragraph (c)
below, plus all accumulated, accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available.
(c) For purposes of this Section 8, redemption at the option of the
holder shall be deemed to occur upon receipt by the Corporation of written
notice that the holder of Series D Equity Shares wishes to tender shares to
be redeemed. The holders of such shares to be redeemed shall then have 30
days from the date of such notice to deliver such shares to the Transfer
Agent. Upon the surrender of the certificate or certificates of Series D
Equity Shares to be redeemed, duly endorsed or assigned to the Corporation
or in blank, at the office of the Transfer Agent, the Corporation shall
promptly, either (i) by wire transfer of immediately available funds to
such holder, as directed by such holder, send an amount equal to the
Redemption Payment in respect of all Series D Equity Shares or portions
thereof so tendered or (ii) issue and deliver to such holder, or on his or
her written order, a certificate or certificates for the number of full
Common Equity Shares issuable in respect of all Series D Equity Shares or
portions thereof so tendered.
Section 9. Shares To Be Retired. All Series D Equity Shares which
shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued preferred stock,
without discretion as to class or series, and subject to applicable
limitations set forth in the Articles may thereafter be reissued as shares
of any series of preferred stock.
Section 10. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series D Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Series D Preferred Shares, which shall expressly include the
Corporation's non-voting senior preferred stock, par value $1.00 per share;
(b) on a parity with the Series D Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution
or winding up, whether or not the dividend rates, dividend payment dates or
redemption or liquidation prices per share thereof shall be different from
those of the Series D Preferred Shares, if the holders of such class or
series and the Series D Preferred Shares shall be entitled to the receipt
of dividends and of amounts distributable upon liquidation, dissolution or
winding up in proportion to their respective amounts of accrued and unpaid
dividends per share or liquidation preferences, without preference or
priority one over the other ("Parity Shares"), which shall expressly
include the Corporation's Series A Cumulative Redeemable Preferred Shares,
Series B Cumulative Redeemable Preferred Shares and Series C Cumulative
Convertible Preferred Stock;
(c) junior to the Series D Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Shares; and
(d) junior to the Series D Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Voting. So long as any Series D Equity Shares are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the Articles, the affirmative vote of the holders of
a majority of the Series D Equity Shares, voting together as a class, given
in person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the provisions
of the Articles of Incorporation or this Certificate of Designation
that materially and adversely affects the voting powers, rights or
preferences of the holders of the Series D Equity Shares; or
(ii) Any merger or consolidation of the Corporation and another
entity in which the Corporation is not the surviving corporation and
each holder of Series D Equity Shares does not receive shares of the
surviving corporation with substantially similar rights, preferences
and powers in the surviving corporation as the Series D Equity Shares
have with respect to the Corporation (except for changes that do not
materially and adversely affect the holders of the Series D Equity
Stock). provided, however, that no such vote of the holders of Series
D Equity Shares shall be required if, at or prior to the time when
such amendment, alteration or repeal is to take effect, or when the
issuance of any such prior shares or convertible security is to be
made, as the case may be, provision is made for the redemption of all
Series D Equity Shares at the time outstanding to the extent such
redemption is authorized by Section 5 of this Certificate of
Designation.
(iii) For purposes of the foregoing provisions of this Section
13, each share of Series D Equity Shares shall have one (1) vote per
share, except that when any other series of Equity Shares shall have
the right to vote with the Series D Equity Shares as a single class on
any matter, then the Series D Equity Shares and such other series
shall have with respect to such matters one (1) vote per $180.00 (or
less pursuant to Section 4(a)) of stated Liquidation Preference.
Except as otherwise required by applicable law or as set forth herein,
the Series D Equity Shares shall not have any relative, participating,
optional or other special voting rights and powers other than as set
forth herein, and the consent of the holders thereof shall not be
required for the taking of any corporate action.
Section 12. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any Series D Preferred Shares as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 13. Title. This resolution shall be known and may be referred
to as "A Resolution of the Board of Directors of Westfield America, Inc.
Designating Series D Preferred Shares and Fixing Preferences and Rights
Thereof."
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President this 10 day of August,
1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
--------------------
Name: Peter S. Lowy
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS:
COUNTY OF LOS ANGELES )
I, Annie M. Gary, a notary public, do hereby certify that on this 6 day
of August, 1998, personally appeared before me Peter Lowy, and being first
duly sworn by me, declared that he is the Co-President of Westfield
America, Inc., that he signed the foregoing document as Co-President of the
corporation, and that the statements therein contained are true.
[SEAL] /s/ Annie M. Gary
---------------------------------
Notary Public
My Commission Expires: March 31, 2000
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES C-1 PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business corporation Law of the State
of Missouri, as amended
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"Corporation"), hereby certify as follows:
FIRST: that under the provisions of Article Fourth of the
Restated Articles of Incorporation, as amended, of the Corporation, the
total number of shares of all classes of capital stock which the
Corporation may issue is 410,000,200 shares, of which (i) 200 shares shall
be non-voting senior preferred stock, par value $1.00 per share (the
"Senior Preferred Shares"), (ii) 5,000,000 shares shall be Preferred
Shares, with par value of $1.00 per share (the "Preferred Shares"), 940,000
of which have been designated as Series A Preferred Shares, with
liquidation value of $100 per share (the "Series A Preferred Shares"),
400,000 of which have been designated as Series B Preferred Shares, with a
liquidation value of $100 per share (the "Series B Preferred Shares"),
416,667 of which have been designated as Series C Preferred Shares, with a
Liquidation value of $180 per share (the "Series C Preferred Shares") and
694,445 of which have been designated as Series D Preferred Shares, with a
liquidation value of $180 per share (the "Series D Preferred Shares"),
(iii) 200,000,000 shall be shares of common stock, par value $.01 per share
(the "Common Shares"), (iv) 205,000,000 shall be shares of excess stock,
par value $.01 per share (the "Excess Shares"). Any Excess Shares which are
issued with respect to Common Stock shall be "Excess Common Shares" and,
together with the Common Shares, the "Common Equity Shares" and any Excess
Shares which are issued with respect to the Preferred Shares shall be
"Excess Preferred Shares" and, together with the Preferred Shares, the
"Preferred Equity Shares" and under said Articles of Incorporation (as
amended, the "Articles of Incorporation"), the shares of Preferred Stock
are authorized to be issued by the Board of Directors and the Board of
Directors is expressly authorized to determine in the Resolution, the
designation, powers, rights, preferences and qualifications, limitations or
restrictions, not fixed and determined by the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant
to the authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of Missouri, as amended,
adopted on December 14, 1998 the following resolution creating a series of
Preferred Stock designated as "Series C-1 Preferred Shares", which
resolution has not been amended, modified, rescinded or revoked and is in
full force and effect on the date hereof.
"RESOLUTION OF BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING 'SERIES C-1 PREFERRED
SHARES' AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to
and vested in the Board of Directors of Westfield America, Inc.,
hereinafter called the "Corporation", by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution,
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series C-1 Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class
of preferred stock shall be designated as Series C-1 Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 138,889 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "Series C-1 Preferred Shares". Each Series C-1 Preferred Share
shall be identical in all respects to each other Series C-1 Preferred
Share. Each Excess Series C-1 Preferred Share shall be identical in all
respects to each other Excess Series C-1 Preferred Share, and except as
otherwise provided herein, shall be identical in all respects to each
Series C-1 Preferred Share (the Series C-1 Preferred Shares together with
the Excess Series C-1 Preferred Shares being hereinafter referred to as the
"Series C-1 Equity Shares").
Section 2. Definitions. For purposes of the Series C-1 Preferred
Shares, the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person,
shall mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate shall
include, without limitation, Westfield Holdings Limited ("WHL") Westfield
America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy (such
individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series C-1 Equity
Share equal to 8.5% of the Liquidation Preference per Series C-1 Equity
Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series C-1
Preferred Shares.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in New York City, New York are authorized or required by Law,
regulation or executive order to close.
"Call Date" shall mean the date specified in the notice to
holders required under Section 5(d) as the Call Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Shares" shall mean the Corporation's common stock, par
value $0.01 per share.
"Consolidated EBITDA" for any quarter shall mean the consolidated
net income of the Corporation (before extraordinary income or gains and
less equity in income of unconsolidated real estate partnerships),
calculated in a manner consistent with the Corporation's financial
statements filed with the Securities and Exchange Commission, increased by
the sum of the following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated
real estate partnerships calculated in a manner consistent with
this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to
extraordinary, usual or non-recurring gains or losses except
to the extent that such gains were not included in
Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP for
such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs
(only to the extent that such amounts have not been
previously included in the amount of Consolidated EBITDA
pursuant to clause (c) above) goodwill, other intangibles
and management fees, and
f. any other non-cash charges, to the extent deducted from
consolidated net income (including, but not limited to, income
allocated to minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum
of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP for
such quarter (including, without duplication, financing fees and
amortization of deferred financing fees or amortization of
original issue discount),
c. dividend and distribution requirements with respect to
preferred stock and any other preferred securities for such
quarter (not including any portion of preferred stock
dividends the calculation of which is based on the dividend
paid in such quarter to the holders of Common Shares),
whether or not declared or paid,
d. regularly scheduled amortization of principal of debt during such
quarter (other than any balloon payments at maturity) and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section
6(e).
"Conversion Date" shall have the meaning set forth in Section
6(a).
"Conversation Price" shall mean the conversion price per Common
Share for which the Series C-1 Preferred Shares is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any
other class of Stock or other security of the Corporation or any other
issuer for any day shall mean the last reported sales price, regular way,
on such day, or, if no sale takes place on such day, the average of the
reported closing bid and asked prices on such day, regular way, in either
case as reported on the New York Stock Exchange ("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 ("NASDAQ") or,
if such security is not quoted on NASDAQ, the average of the closing bid
and asked prices on such day in the over-the-counter market as reported by
the National Association of Securities Dealers, Inc. (the "NASD") or, if
bid and asked prices for such security on such day shall not have been
reported through the NASD, the average of the bid and asked prices on such
day as furnished by any NYSE member after regularly making a market in such
security selected for such purpose by the Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Periods" shall mean quarterly dividend periods
commencing on January 1, April 1, July 1 and October 1 of each year and
ending on and including the day preceding the first day of the next
succeeding Dividend Period with respect to any Series C-1 Equity Shares
(other than the initial Dividend Period, which shall commence on the Issue
Date for such Series C-1 Equity Shares and end on and include the last day
of the calendar quarter immediately following such Issue Date, and other
than the Dividend Period during which any Series C-1 Equity Shares shall be
redeemed pursuant to Section 5 or converted pursuant to Section 6, which
shall end on and include the Call Date or Conversion Date with respect to
the Series C-1 Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current
Market Prices of a Common Share on the five (5) consecutive Trading Days
selected by the Corporation commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and
the day before the "ex date" with respect to the issuance or distribution
requiring such computation. The term "ex date," when used with respect to
any issuance or distribution, means the first day on which the Common
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.
"Fixed Charge Coverage Violation" shall have the meaning set
forth in Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other
class or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series C-1 Preferred Shares has preference or
priority in both (i) the payment of dividends and (ii) the distribution of
assets on any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth
Incorporated and controlled Affiliates thereof.
"Issue Date" shall mean the date on which the Series C-1
Preferred Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series C-1 Preferred Shares has preference or
priority in the payment of dividends or in the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"Non-Electing Shares" shall have the meaning set forth in Section
6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section
10(b).
"Person" shall mean any individual, firm, partnership,
corporation, limited liability company, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section
6(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the
Corporation for any taxable year on which the Corporation
does not compute its income as a real estate investment
trust;
(ii) the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real
estate investment trust;
(iii) a determination by the Board of Directors of the
Corporation, based on the advice of counsel, that the
Corporation has ceased to qualify as a real estate
investment trust; or
(iv) a "determination" within the meaning of Section 1313(a) of
the Code that the Corporation has ceased to qualify as a
real estate investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Series C-1 Preferred Shares" shall have the meaning given such term
in the preamble to this Certificate of Designation.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series C-1 Preferred Shares as to the payment of
dividends are placed in a separate account of the Corporation or delivered
to a disbursing, paying or other similar agent, then "set apart for
payment" with respect to the Series C-1 Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Trading Day" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted
for trading on the NYSE, on the principal national securities exchange on
which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for the Series C-1 Preferred Shares.
Capitalized terms not otherwise defined herein have the meanings ascribed to
them in the Articles.
Section 3. Dividends.
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(a) Subject to the preferential rights of the holders of any Senior
Preferred Stock or Preferred Shares that rank senior in the payment of
dividends to the Series C-1 Equity Shares and subject to paragraph (b) of
this Section 3, the holders of Series C-1 Equity Shares shall be entitled
to receive, when, as and if declared by the Board of Directors, but only
out of funds legally available for the payment of dividends, cumulative
preferential dividends payable in cash to shareholders of record on the
respective date, not exceeding 50 days preceding such dividend payment
date, fixed for the purpose by the Board of Directors in advance of payment
of each particular dividend in an amount equal to the greater of (A) the
Base Rate per share per annuum and (B) an amount per share equal to the
Liquidation Preference of a Series C-1 Equity Share (exclusive of accrued
but unpaid dividends) divided by the Conversion Price (the "Series C-1
Common Equivalent Factor") times the dollar amount of cash dividends
declared with respect to each Common Equity Share that does not result in
an adjustment to the Conversion Price pursuant to Subparagraph (d)(iii) of
Section 6 (such product, the "Series C-1 Common Equivalent Amount") for the
same annual period; provided, however, that if as a result of the quarterly
dividends paid in accordance with the following sentence, the holders of
Series C-1 Equity Shares shall have received for any calendar year more
dividends than such Series C-1 Equity Shares shall be entitled under
clauses (A) and (B) above (as adjusted pursuant to the third and eighth
sentences of this Section 3), the dividends payable in respect of Series
C-1 equity Shares in subsequent calendar years shall be reduced to the
extent of such overpayment. Subject to the proviso of the preceding
sentence of this Section 3 (a), the dividend paid in respect of each
quarterly period in each calendar year shall be determined as follows (in
each case, excluding any additional payment made pursuant to the following
sentence): (1) for the first quarter, the greater of 25 % of the Base Rate
per share and the Series C-1 Common Equivalent Amount for the same quarter;
(2) for the second quarter, an amount such that the aggregate amount to be
received per Series C-1 Equity Share in respect of the first two quarters
of such calendar year shall be the greater of 50% of the Base Rate per
share and the Series C-1 Common Equivalent Amount for the same two
quarters; (3) for the third quarter, an amount such that the aggregate
amount to be received per Series C-1 Equity Share in respect of the first
three quarters of such calendar year shall be the greater of 75 % of the
Base Rate per share and the Series C-1 Common Equivalent Amount for the
same three quarters; and (4) for the fourth quarter, an amount such that
the aggregate amount to be received per Series C-1 Equity Share in respect
of such calendar year shall be the amount provided in the preceding
sentence of this Section 3(a). Notwithstanding the foregoing, for any
quarter in which a Fixed Charge Coverage Violation (as defined below) has
occurred, the dividend payable per Series C-1 Equity Share shall be 1.20
times the amount provided in the preceding sentence. A "Fixed Charge
Coverage Violation" shall occur for any quarter that the ratio of the
Corporation's Consolidated EBITDA to its Consolidated Fixed Charges is
below 1.40 to 1. The dividends shall begin to accrue as set forth above and
shall be fully cumulative from the first day of the applicable Dividend
Period, whether or not in any Dividend Period or Periods there shall be
funds of the Corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the
Board of Directors, in arrears on Dividend Payment Dates. Accumulated but
unpaid dividends for any past quarterly dividend periods may be declared
and paid at any time, without reference to any regularly scheduled
quarterly dividend payment date, to holders of record on such date, not
exceeding 50 days preceding such dividend payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend. Any dividend payment made on Series C-1 Equity Shares shall first
be credited against the earliest accrued but unpaid dividend due with
respect to Series C-1 Equity Shares which remains payable. Beginning with
the quarter in which a REIT Termination Event occurs, all dividends payable
per Series C-1 Equity Share pursuant to this Section shall be multiplied by
2.5.
(b) The initial Dividend Period for the Series C-1 Equity Shares will
include a partial dividend for the period from the Issue Date until the
last day of the calendar quarter immediately following such Issue Date. The
amount of dividends payable for such initial period, or any other period
shorter than a full quarterly Dividend Period, on the Series C-1 Equity
Shares shall be computed by dividing the number of days in such period by
90 and multiplying the result by the Series C-1 Preferred dividend
determined in accordance with Section 3(a). Holders of Series C-1 Equity
Shares shall not be entitled to any dividends, whether payable in cash,
property or shares, in excess of cumulative dividends, as herein provided,
on the Series C-1 Equity Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
on the Series C-1 Equity Shares which may be in arrears.
(c) So long as any Series C-1 Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series C-1 Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series C-1 Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series C-1 Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series C-1 Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking for the redemption of any Junior
Shares) by the Corporation, directly or indirectly (except by conversion
into or exchange for Fully Junior Shares), unless in each case the full
cumulative dividends on all outstanding Series C-1 Equity Shares and any
other Parity Shares of the Corporation shall have been or contemporaneously
are declared and paid or declared and set apart for payment for all
Dividend Periods terminating on or prior to the date of declaration or
payment with respect to the Series C-1 Equity Shares and all dividend
periods terminating on or prior to the date of declaration or payment with
respect to such Parity Shares. Subject to the foregoing, and not otherwise,
such dividends and distributions may be declared by the Board of Directors
and paid on any Common Equity Shares from time to time out of any funds
legally available therefor, and the Series C-1 Equity Shares shall not be
entitled to participate in any such dividends, whether payable in cash
stock or otherwise.
(e) No distributions on Series C-1 Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference.
----------------------
(a) In the event of any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, subject to the prior
preferences and other rights of any series of stock ranking senior to the
Series C-1 Preferred Shares upon liquidation, distribution or winding up of
the Corporation, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for
the holders of Junior Shares, the holders of the Series C-1 Equity Shares
shall be entitled to receive One Hundred Eighty Dollars ($180.00) (the
"Liquidation Preference") per share of Series C-1 Equity Shares plus an
amount equal to all dividends (whether or not earned or declared) accrued
and unpaid thereon to the date of liquidation, dissolution or winding up of
the affairs of the Corporation (any such date, a "Series C-1 Liquidation
Date") but such holders shall not be entitled to any further payment;
provided, that the dividend payable with respect to the Dividend Period
containing the Series C-1 Liquidation Date shall be equal to the dividend
determined pursuant to Section 3 above for the preceding Dividend Period
times a fraction equal to the actual number of days elapsed from the end
date of the calendar quarter most recently contemplated to the relevant
Series C-1 Liquidation Date over 90 days. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders of the
Series C-1 Equity Shares shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares
of any class or series of Parity Shares, then such assets, or the proceeds
thereof, shall be distributed among the holders of Series C-1 Equity Shares
and any such other Parity Shares ratably in accordance with the respective
amounts that would be payable on such Series C-1 Equity Shares and any such
other Parity Shares if all amounts payable thereon were paid in full. For
the purposes of this Section 4, (i) a consolidation or merger of the
Corporation with one or more corporations, real estate investment trusts or
other entities, (ii) a sale, lease or conveyance of all or substantially
all of the Corporation's property or business or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with (including the Parity
Shares) or prior to the Series C-1 Equity Shares upon Liquidation,
dissolution or winding up, upon any liquidation, dissolution or winding up
of the Corporation, after payment shall have been made in full to the
holders of the Series C-1 Equity Shares, as provided in this Section 4, the
holders of Series C-1 Equity Shares shall have no other claim to the
remaining assets of the Corporation and any other series or class or
classes of Junior Shares shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series
C-1 Equity Shares shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
-------------------------------------------
(a) The Series C-1 Equity Shares shall not be redeemable by the
Corporation prior to August 12, 2008. On and after August 12, 2008, the
Corporation, at its option, may redeem the Series C-1 Equity Shares, in
whole at any time or from time to time in part, in minimum increments of
$10.0 million of aggregate Liquidation Preference of such shares, out of
funds legally available therefor at a redemption price payable in cash
equal to 100% of the Liquidation Preference per Series C-1 Equity Shares
(plus all accumulated, accrued and unpaid dividends as provided in
paragraph (b) below).
(b) Upon any redemption of Series C-1 Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series C-1 Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series C-1 Equity Shares called for redemption.
(c) If full cumulative dividends on the Series C-1 Equity Shares and
any other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, the Series C-1
Equity Shares may not be redeemed under this Section 5 in part and may not
be redeemed unless the Series C Equity Shares and Series C-2 Equity Shares
(as defined below), if any, are also redeemed in whole and the Corporation
may not purchase or acquire Series C Equity Shares, Series C-1 Equity
Shares or Series C-2 Equity Shares, if any, otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of Series
C Equity Shares, Series C-1 Equity Shares and Series C-2 Equity Shares, if
any.
(d) Notice of the redemption of any Series C-1 Equity Shares under
this Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series C-1 Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (d), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of Series C-1
Equity Shares to be redeemed and, if fewer than all the shares held by such
holder are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or places at which
certificates for such shares are to be surrendered; (5) the then-current
Conversion Price; and (6) that dividends on the shares to be redeemed shall
cease to accrue on such Call Date except as otherwise provided herein.
Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash
necessary to effect such redemption), (i) except as otherwise provided
herein, dividends on the Series C-1 Equity Shares so called for redemption
shall cease to accrue, (ii) such shares shall no longer he deemed to be
outstanding, and (iii) all rights of the holders thereof as holders of
Series C-1 Equity Shares shall cease (except the rights to receive the cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any
dividends payable thereon). The Corporation's obligation to provide cash in
accordance with the preceding sentence shall he deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust
company that has an office in the Borough of Manhattan, City of New York,
and that has capital and surplus of at least $150,000,000, necessary for
such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the Series C-1 Equity Shares so called for
redemption. No interest shall accrue for the benefit of the holders of
Series C-1 Equity Shares to be redeemed on any cash so set aside by the
Corporation. Subject to applicable escheat laws, any such cash unclaimed at
the end of two years from the Call Date shall revert to the general funds
of the Corporation, after which reversion the holders of such shares so
called for redemption shall look only to the general funds of the
Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with such
notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series C-1 Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series C-1 Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series C-1 Equity Shares evidenced by any certificate are redeemed, then
new certificates evidencing the unredeemed shares shall be issued without
cost to the holder thereof.
Section 6. Conversion. Holders of Series C-1 Equity Shares shall have
the right to convert all or a portion of such shares into Common Equity
Shares, as follows:
(a) Subject to and upon compliance with the provisions of this Section
6, a holder of Series C-1 Preferred Shares or Excess Preferred Shares shall
have the right, at his or her option, at any time (such time being, the
"Conversion Date"), to convert all or any portion of such shares into the
number of fully paid and non-assessable Common Shares or excess Common
Shares obtained by dividing the aggregate Liquidation Preference of such
shares (inclusive of accrued but unpaid dividends) by the Conversion Price
(as in effect at the time and on the date provided for in the last
paragraph of paragraph (b) of this Section 6) by surrendering such shares
to be converted, such surrender to be made in the manner provided in
paragraph (b) of this Section 6; provided, however, that the right to
convert shares called for redemption pursuant to Section 5 shall terminate
at the close of business on the fifth Business Day prior to the Call Date
fixed for such redemption, unless the Corporation shall default in making
payment of the cash payable upon such redemption under Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series C-1 Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series C-1 Equity Shares. Unless the shares
issuable on conversion are to be issued in the same name as the name in
which such Series C-1 Equity Shares are registered, each share surrendered
for conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series C-1 Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series C-1
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series C-1 Equity Shares being entitled to
such dividend on the Dividend Payment Date) must be accompanied by payment
of an amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series C-1 Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series
C-1 Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series C-1 Equity
Shares for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Equity Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates for
Series C-1 Equity Shares as aforesaid, the Corporation shall issue and
shall deliver at such office to such holder, on his or her written order, a
certificate or certificates for the number of full Common Equity Shares
issuable upon the conversion of such shares in accordance with provisions
of this Section 6, and any fractional interest in respect of a Common Share
arising upon such conversion shall be settled as provided in paragraph (c)
of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series C-1 Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity 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 on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Equity Shares shall be issued upon conversion of the Series C-1 Equity
Shares. Instead of any fractional interest in a Common Share that would
otherwise be deliverable upon the conversion of a Series C-1 Equity Share,
the Corporation shall pay to the holder of such share an amount in cash
based upon the Current Market Price of the Common Equity Shares of the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series C-1 Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in Common
Equity Shares, (B) subdivide its outstanding Common Equity Shares into a
greater number of shares, (C) combine its outstanding Common Equity Shares
into a smaller number of shares or (D) issue any shares of stock by
reclassification of its Common Equity Shares, the Conversion Price in
effect at the opening of business on the day following the date fixed for
the determination of shareholders entitled to receive such dividend or
distribution or at the opening of business on the Business Day next
following the day on which such subdivision, combination or
reclassification becomes effective, as the case may be, shall be adjusted
so that the holder of any Series C-1 Equity Shares thereafter surrendered
for conversion shall be entitled to receive the number of Common Equity
Shares that such holder would have owned or have been entitled to receive
after the happening of any of the events described above as if such Series
C-1 Equity Shares had been converted immediately prior to the record date
in the case of a dividend or distribution or the effective date in the case
of a subdivisions combination or reclassification. An adjustment made
pursuant to this subparagraph (i) shall become effective immediately after
the opening of business on the Business Day next following the record date
(except as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening of
business on the Business Day next following the effective date in the case
of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Equity Shares entitling them
(for a period expiring within 45 days after the record date mentioned
below) to subscribe for or purchase Common Equity Shares at a price per
share less than 95% (100% if a stand-by underwriter is used and charges the
Corporation a commission) of the Fair Market Value per Common Share on the
record date for the determination of shareholders entitled to receive such
rights, options or warrants, then the Conversion Price in effect at the
opening of business on the Business Day next following such record date
shall be adjusted to equal the price determined by multiplying (A) the
Conversion Price in effect immediately prior to the opening of business on
the Business Day next following the date fixed for such determination by
(B) a fraction, the numerator of which shall be the sum of (x) the number
of Common Equity Shares outstanding on the close of business on the date
fixed for such determination and (y) the number of shares that the
aggregate proceeds to the Corporation from the exercise of such rights,
options or warrants for Common Equity Shares would purchase at 95 % of such
Fair Market Value (or 100% in the case of a stand-by underwriting), and the
denominator of which shall be the sum of (x) the number of Common Equity
Shares outstanding on the close of business on the date fixed for such
determination and (y) the number of additional Common Equity 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
paragraph (h) below). In determining whether any rights, options or
warrants entitle the holders of Common Equity Shares to subscribe for or
purchase Common Equity Shares at less than 95% of such Fair Market Value
(or 100% in the case of a stand-by underwriting), there shall be taken into
account any consideration received by the Corporation upon issuance and
upon exercise of such rights, options or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors whose determination shall be conclusive. To the extent that
Common Equity Shares are not delivered pursuant to such rights, options or
warrants, upon the expiration or termination of such rights, options or
warrants, the Conversion Price shall be readjusted to the Conversion Price
which would then be in effect had the adjustments made upon the issuance of
such rights, options or warrants been made on the basis of delivery of only
the number of Common Equity Shares actually delivered. In the event that
such rights, options or warrants are not so issued, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such date fixed for the determination of stockholders entitled to
receive such rights, options or warrants had not been fixed.
(iii) If the Corporation shall distribute to all holders of its
Common Equity Shares any securities of the Corporation (other than Common
Equity Shares) or evidence of its indebtedness or assets (excluding
cumulative cash dividends or distributions paid with respect to the Common
Equity Shares after December 31, 1997 which are not in excess of the
following: the sum of (A) the Corporation's cumulative undistributed Funds
from Operations at December 31, 1997, plus (B) the cumulative amount of
Funds from Operations, as determined by the Board of Directors, after
December 31, 1997, minus (C) the cumulative amount of dividends accrued or
paid in respect of the Series C-1 Equity Shares or any other class or
series of preferred stock of the Corporation after the Issue Date) or
rights, options or warrants to subscribe for or purchase any of its
securities (excluding those rights, options and warrants issued to all
holders of Common Equity Shares entitling them for a period expiring within
45 days after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Equity Shares, which rights and warrants
are referred to in and treated under subparagraph (ii) above) (any of the
foregoing being hereinafter in this subparagraph (iii) collectively called
the "Securities" and individually a "Securities"), then in each such case
the Conversion Price shall be adjusted so that it shall equal the price
determined by multiplying (x) the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination of
shareholders entitled to receive such distribution by (y) a fraction, the
numerator of which shall be the Fair Market Value per Common Share on the
record date mentioned below less the then fair market value (as determined
by the Board of Directors, whose determination shall be conclusive) of the
portion of the Securities or assets or evidences of indebtedness so
distributed or of such rights, options 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 on the date of distribution retroactive to the opening of
business on the Business Day next following (except as provided in
paragraph (h) below) the record date for the determination of shareholders
entitled to receive such distribution. For the purposes of this
subparagraph (iii), the distribution of a Security, which is distributed
not only to the holders of the Common Equity 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 share of Series C-1 Equity Shares after such
determination date, shall not require an adjustment of the Conversion Price
pursuant to this subparagraph (iii); provided that on the date, if any, on
which a Person converting a share of Series C-1 Equity Shares would no
longer be entitled to receive such Security with a Common Share (other than
as a result of the termination of all such Securities), a distribution of
such Securities shall be deemed to have occurred and the Conversion Price
shall be adjusted as provided in this subparagraph (iii) (and such day
shall be deemed to be "the date fixed for the determination of the
shareholders entitled to receive such distribution" and "the record date"
within the meaning of the two preceding sentences). If any dividend or
distribution of the type described in this paragraph (iii) is declared but
not so paid or made, the Conversion Price shall again be adjusted to the
Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
Rights or warrants distributed by the Corporation to all holders
of Common Equity Shares entitling the holders thereof to subscribe for or
purchase shares of the Corporation's capital stock (either initially or
under certain circumstances), which rights or warrants, until the
occurrence of a specified event or events ("Trigger Event"): (i) are deemed
to be transferred with such shares of Common Equity Shares; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of
Common Equity Shares, shall be deemed not to have been distributed for
purposes of this subparagraph (iii) (and no adjustment to the Conversion
Price under this subparagraph (iii) will be required) until the occurrence
of the earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant shall
become exercisable to purchase different securities, evidences of
indebtedness or other assets entitle the holder to purchase a different
number or amount of the foregoing or to purchase any of the foregoing at a
different purchase price, then the occurrence of each such event shall be
deemed to be the date of issuance and record date with respect to a new
right or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof to the extent not
exercised). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto,
that resulted in an adjustment to the Conversion Price under this
Subparagraph (iii), (1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Price shall be readjusted upon such redemption or
repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution (but not a distribution
paid exclusively in cash), equal to the per share redemption or repurchase
price received by a holder of Common Equity Shares with respect to such
rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Equity Shares as of the date of
such redemption or repurchase, and (2) in the case of such rights or
warrants all of which shall have expired or been terminated without
exercise, the Conversion Price shall be readjusted as if such rights and
warrants had never been issued.
(iv) In case a tender or exchange offer (which term shall not
include open market repurchases by the Corporation) made by the Corporation
or any subsidiary or controlled Affiliate of the Corporation for all or any
portion of the Common Equity Shares shall expire and such tender or
exchange offer shall require the payment by the Corporation or such
subsidiary or controlled Affiliate of consideration per Common Share having
a fair market value (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of
the board of Directors), at the last time (the "Expiration Time") tenders
or exchanges may be made pursuant to such tender or exchange offer, that
exceeds the Current Market Price per Common Share on the Trading Day next
succeeding the Expiration Time, the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subparagraph, by a fraction
of which the numerator shall be the number of Common Equity Shares
outstanding (including any tendered or exchanged shares) at the Expiration
Time, multiplied by the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, and the denominator shall
be the sum of (A) the fair market value (determined as aforesaid) of the
aggregate consideration payable to shareholders based upon the acceptance
(up to any maximum specified in the terms of the tender or exchange offer)
of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any maximum, being
referred to as the "Purchased Shares") and (B) the product of the number of
Common Equity Shares outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day following
the Expiration Time. In the event the Corporation or any subsidiary or
controlled Affiliate is obligated to purchase shares pursuant to any such
tender offer, but the Corporation or such subsidiary or controlled
Affiliate is permanently prevented by applicable law from effecting any
such purchases, or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease of
at least 1% in such price; provided, however, that any adjustments that by
reason of this subparagraph (v) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment until
made; and provided, further, that any adjustment shall be required and made
in accordance with the provisions of this Section 6 (other than this
subparagraph (v)) 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 6, the
Corporation shall not be required to make any adjustment of the Conversion
Price for the issuance of any Common Equity Shares pursuant to any plan
providing for the reinvestment of dividends or interest payable on
securities of the Corporation and the investment of additional optional
amounts in Common Equity Shares under such plan. All calculations under
this Section 6 shall be made to the nearest cent (with $.005 being rounded
upward) or to the nearest one-hundredth of a share (with .005 of a share
being rounded upward), as the case may be. Anything in this paragraph (d)
to the contrary notwithstanding, the Corporation shall be entitled, to the
extent permitted by law, to make such reductions in the Conversion Price,
in addition to those required by this paragraph (d), as it in its
discretion shall determine to be advisable in order that any share
dividends, subdivision of shares, reclassification or combination of
shares, distribution of rights or warrants to rights of election shall not
have been exercised ("Non-Electing Share"), then for the purpose of this
paragraph (e) the kind and amount of shares, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing
Share shall be deemed to be the kind and amount so receivable per share by
holders of a plurality of the Non-Electing Shares). The Corporation shall
not be a party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this paragraph (e), and it shall not
consent or agree to the occurrence of any Transaction until the Corporation
has entered into an agreement with the successor or purchasing entity, as
the case may be, for the benefit of the holders of the Series C-1 Equity
Shares that will contain provisions enabling the holders of the Series C-1
Equity 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 paragraph (e) shall similarly apply to successive
Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends or
distributions paid with respect to the Common Equity Shares after December
31, 1997 not in excess of the sum of the Corporation's cumulative
undistributed Funds from Operations at December 31, 1997, plus the
cumulative amount of Funds from Operations, as determined by the Board of
Directors, after December 31, 1997, minus the cumulative amount of
dividends accrued or paid in respect of the Series C-1 Equity Shares or any
other class or series of preferred stock of the Corporation after the Issue
Date); or
(ii) the Corporation shall authorize the granting to all holders
of Common Equity Shares of rights, options or warrants to subscribe for or
purchase any shares of any class or any other rights, options or warrants;
or
(iii) there shall be any reclassification of the Common Equity
Shares (other than an event to which subparagraph (d)(i) of this Section 6
applies) or any consolidation or merger to which the Corporation is a party
(other than a merger in which the Corporation is the surviving entity) and
for which approval of any shareholders of the Corporation is required, or a
statutory share exchange, or a self tender offer by the Corporation 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 Corporation as an
entirety; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series C-1 Equity Shares at
their addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options 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 Equity Shares of record shall be entitled
to exchange their Common Equity 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 6.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series
C-1 Equity Shares at such holder's last address as shown on the records of
the Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides that an
adjustment shall become effective on the day next following the record date
for an event, the Corporation may defer until the occurrence of such event
(A) issuing to the holder of any share of Series C-1 Equity Shares
converted after such record date and before the occurrence of such event
the additional Common Equity Shares issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Equity
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case of
the issuance of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth
in this Section 6. If any action or transaction would require adjustment of
the Conversion Price pursuant to both paragraph (d) and paragraph (e) of
this Section 6, only one adjustment shall be made and such adjustment shall
be the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series C-1 Equity Shares, the
Conversion Price for the Series C-1 Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Equity Shares, for the purpose of effecting
conversion of the Series C-1 Equity Shares, the full number of Common
Equity Shares deliverable upon the conversion of all outstanding Series C-1
Equity Shares not theretofore converted. For purposes of this paragraph
(k), the number of Common Shares that shall be deliverable upon the
conversion of all outstanding Series C-1 Preferred Shares shall be computed
as if at the time of computation all such outstanding shares were held by a
single holder.
Any Common Equity Shares issued upon conversion of the Series C-1
Equity 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 Equity Shares
deliverable upon conversion of the Series C-1 24 Equity Shares, the
Corporation will take any action that, in the opinion of its counsel, may
be necessary in order that the Corporation may validly and legally issue
fully paid and (subject to any customary qualification based upon the
nature of a real estate investment trust) non-assessable Common Equity
Shares at such adjusted Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series C-1 Equity 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.
The Corporation shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series C-1 Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of
Common Equity Shares or other securities or property on conversion of the
Series C-1 Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series C-1 Equity 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 Corporation the amount of any such tax or established, to
the reasonable satisfaction of the Corporation, that such tax has been
paid.
Section 7. Change of Control.
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(a) If a Change of Control (as defined below) occurs (a "Change of
Control Repurchase Event"), the holders of Series C-1 Equity Shares shall
have the right to require the Corporation, to the extent the Corporation
shall have funds legally available therefor, to redeem any or all of the
Series C-1 Equity Shares held by such holder at a repurchase price payable
in cash (the "Change of Control Repurchase Payment") in an amount equal to
105% of the Liquidation Preference thereof, plus accrued and unpaid
dividends whether or not declared, if any, to the date of repurchase or the
date payment is made available (the "Change of Control Date") pursuant to
the offer described in subsection (b) below (the "Change of Control-
Repurchase Offer" ).
(b) Within 15 days following the Corporation becoming aware that a
Change of Control Repurchase Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to each holder
of Series C-1 Equity Shares stating (A) that a Change of Control Repurchase
Event has occurred and that such holder has the right to require the
Corporation to repurchase any or all of the Series C-1 Equity Shares then
held by such holder, (B) the date of repurchase (which shall be a Business
Day, no earlier than 30 days and no later than 60 days from the date such
notice is mailed, or such later date as may be necessary to comply with the
requirements of the Exchange Act), (C) the repurchase price and (D) the
instructions determined by the Corporation, consistent with this
subsection, that such investor must follow in order to have the Series C-1
Equity Shares repurchased.
(c) On the Change of Control repurchase Date, the Corporation, to the
extent lawful, shall accept for payment Series C-1 Equity Shares or
portions thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series C-1
Equity Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "Change of Control" means the occurrence of
any of the following: (i) the first acquisition, directly or indirectly, by
any individual or entity or group (as such term is used in Section 13(d)(3)
of the Exchange Act) of beneficial ownership (as defined in Rule 1 3d-3
under the Exchange Act, except that such individual or entity shall be
deemed to have beneficial ownership of all shares that any such individual
or entity has the right to acquire, whether such right is exercisable
immediately or only after passage of time) of more than 25% of the
Corporation's or Westfield America Trust's outstanding equity securities
with voting power, under ordinary circumstances, to elect Directors of the
Corporation; (ii) other than with respect to the election, resignation or
replacement of any Director designated, appointed or elected by the holders
of any Series of Preferred Shares (each a "Preferred Director"), during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation (excluding
Preferred Directors) then still in office who were Directors at the
beginning of such period, or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors then in office of the Corporation; and (iii) (A) any
of the Corporation or Westfield America Trust consolidating with or merging
into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into any of the Corporation or Westfield
America Trust, which in either event (A) or (B) is pursuant to a
transaction in which the outstanding voting securities of the Corporation
or Westfield America Trust is reclassified or changed into or exchanged for
cash, securities or other property; provided, however, that the events
described in clauses (i), (ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of the event described in clause (iii), if the
sole purpose of such event is that the Corporation or Westfield America
Trust is seeking to change its domicile or to convert from a corporation to
a trust or vice versa; (b) in the case of the event described in clause
(iii), if the holders of the exchanged securities of the Corporation or
Westfield America Trust immediately after such transaction beneficially own
at least a majority of the securities of the merged or consolidated entity
normally entitled to vote in elections of Directors of the Corporation or
Westfield America Trust; (c) if any of Westfield holdings Limited or its
wholly-owned subsidiaries remains as manager of the Corporation's
properties and as adviser of the Corporation, in each case, in a manner
substantially similar to that on the date hereof, or (d) if the Change of
Control results solely from the purchase or other acquisition of equity
securities by Westfield Holdings Limited, Westfield America Trust the Lowy
Family or the Investor.
Section 8. Redemption at the Option of the Holder.
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(a) At any time after August 12, 2008, the holders of Series C-1
Equity Shares shall have the right at any time that the Corporation's
common stock has a Current Market Price at or below the Conversion Price
per share, to require the Corporation, to the extent the Corporation shall
have funds legally available therefor, to redeem any or all of the Series
C-1 Equity Shares held by such holder at a repurchase price payable, at the
option of the Corporation, in either (i) cash, or (ii) such number of
Common Equity Shares as shall have a Current Market Price in the aggregate
on the day prior to the day such holder gives notice pursuant to Section
8(b) of its intention to redeem, equal to in either case, 100% of the
liquidation preference thereof plus accrued and unpaid dividends whether or
not declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
(b) For purposes of this Section 8, redemption at the option of the
holder shall be deemed to occur upon receipt by the Corporation of written
notice that the holder of Series C-1 Equity Shares wishes to tender shares
to be redeemed. The holders of such shares to be redeemed shall then have
30 days from the date of such notice to deliver such shares to the Transfer
Agent. Upon the surrender of the certificate or certificates of Series C-1
Preferred Shares to be redeemed, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, the
Corporation shall promptly, either (i) by wire transfer of immediately
available funds to such holder, as directed by such holder, send an amount
equal to the Redemption Payment in respect of all Series C-1 Equity Shares
or portions thereof so tendered, or (ii) issue and deliver to such holder,
or on his or her written order, a certificate or certificates for the
number of full Common Equity Shares issuable in respect of all Series C-1
Equity Shares or portions thereof so tendered.
Section 9. Shares To Be Retired. All Series C-1 Equity Shares which
shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued preferred stock,
without discretion as to class or series, and subject to applicable
limitations set forth in the Articles may thereafter be reissued as shares
of any series of preferred stock.
Section 10. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series C-1 Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of such class or series shall be entitled to the
receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Series C-1 Preferred Shares, which shall expressly include
the Corporation's non-voting senior preferred stock, par value $1.00 per
share;
(b) on a parity with the Series C-1 Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof shall
be different from those of the Series C-1 Preferred Shares, if the holders
of such class or series and the Series C-1 Preferred Shares shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in proportion to their respective
amounts of accrued and unpaid dividends per share or liquidation
preferences, without preference or priority one over the other ("Parity
Shares"), which shall expressly include the ------------- Corporation's
Series A Preferred Shares, Series B Preferred Shares, Series C Preferred
Shares, Series C-2 Preferred Shares (as defined below), if any, Series D
Preferred Shares and Series D-1 Cumulative Convertible Redeemable Preferred
Shares;
(c) junior to the Series C-1 Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution
or winding up, if such class or series shall be Junior Shares; and
(d) junior to the Series C-1 Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Voting.
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(a) Except as expressly provided in this Certificate of Designation,
the holders of Series C-1 Equity Shares shall have no voting rights. If the
Corporation has obtained shareholder approval and made the amendments as
described in Section 11(b) below, and if and whenever (i) for two
consecutive quarterly Dividend Periods the Corporation fails to pay
dividends on the Series C Equity Shares, the Series C-1 Equity Shares or,
if any Series C-2 Cumulative Convertible Redeemable Preferred Shares, par
value $1.00 per share (the "Series C-2 Preferred Shares"), shall have been
authorized and initially issued by the Corporation to Security Capital
Preferred Growth Incorporated, the Series C-2 Equity Shares (which shall,
with respect to any such quarterly dividend, mean that any such dividend
has not been paid in full), then the number of directors then constituting
the Board of Directors shall be increased by two and the holders of Series
C Equity Shares, the Series C-1 Equity Shares and the Series C-2 Equity
Shares, if any, voting together as a single class, shall be entitled to
elect the two additional directors to serve on the Board of Directors or
(ii) for two consecutive quarterly Dividend Periods the Corporation fails
to pay dividends on the Common Shares in an amount per share at least equal
to $0.32 (subject to adjustment consistent with any adjustment of the
Conversion Price pursuant to Section 6(a) of this Article), then the number
of directors then constituting the Board of Directors shall be increased by
one and the holders of Series C Equity Shares, the Series C-1 Equity Shares
and the Series C-2 Equity Shares, if any, voting together as a single
class, shall be entitled to elect the one additional director to serve on
the Board of Directors, in either case, at any annual meeting of
shareholders or special meeting held in place thereof, or at a special
meeting of the holders of the Series C Equity Shares, the Series C-1 Equity
Shares and the Series C-2 Equity Shares, if any, called as hereinafter
provided; provided, however, that except as set forth below, the holders of
the Series C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares, if any, shall not have the right to elect more than two
directors. For purposes hereof, "Series C-2 Equity Shares" shall mean
Series C-2 Preferred Shares together with the Excess Series C-2 Preferred
Shares. If, other than through the operation of this Section 11 or pursuant
to the provisions of the Articles of Incorporation relating to the
Corporation's Series A and B Preferred Shares (but only with respect to one
director elected by the holders of the Series A and B Preferred Shares),
the Board of Directors shall be increased at any time to more than ten
directors, then, upon the occurrence or continuance of any of the events
described in this Section 11, the Board of Directors shall be increased by
such number of additional directors, and the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares, if
any, voting together as a single class, shall be entitled to elect such
number of additional directors, as shall be necessary to maintain the ratio
of directors elected by the holders of the Series C Equity Shares, the
Series C-1 Equity Shares and the Series C-2 Equity Shares, if any, to the
directors otherwise elected, as nearly as possible (rounding to the next
larger whole number), equal to the ratio that would have existed if the
holders of the Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares, if any, were able to elect the full number of
directors then permitted to be elected by them under this Section 11 and
the directors otherwise elected numbered only ten. Whenever, as the case
may be, (i) all arrears in dividends on the Series C Equity Shares, the
Series C-1 Equity Shares and the Series C-2 Equity Shares, if any, then
outstanding shall have been paid and the Corporation has paid dividends
thereon for two consecutive quarters and (ii) the Corporation has paid
dividends on the Common Shares in an amount per share at least equal to
$0.32 (subject to adjustment consistent with any adjustment of the
Conversion Price pursuant to Section 6(a) of this Article) for two
consecutive quarters, then the right of the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares, if
any, to elect such additional directors shall cease (but subject always to
the same provision for the vesting of such voting rights in the case of any
similar future arrearage in quarterly dividends), and the terms of office
of all persons elected as Directors by the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares, if
any, shall forthwith terminate and the number of the Board of Directors
shall be reduced accordingly. At any time after such voting power shall
have been so vested in the holders of Series C Equity Shares, the Series
C-1 Equity Shares and the Series C-2 Equity Shares, if any, the Secretary
of the Corporation may, and upon the written request of any holders of 5%
of the outstanding Series C Equity Shares, the Series C-1 Equity Shares and
the Series C-2 Equity Shares, if any (addressed to the Secretary at the
principal office of the Corporation), shall, call a special meeting of the
holders of the Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares, if any, for the election of the Directors to be
elected by them as herein provided, such call to be made by notice similar
to that provided in the Bylaws of the Corporation for a special meeting of
the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the
Secretary within 20 days after receipt of any such request, then any holder
of Series C Equity Shares, Series C-1 Equity Shares or the Series C-2
Equity Shares, if any, may call such meeting, upon the notice above
provided, and for that purpose shall have access to the records of the
Corporation. The directors elected at any such special meeting shall hold
office until the next annual meeting of the share holders or special
meeting held in lieu thereof if such office shall not have previously
terminated as above provided. If any vacancy shall occur among the
Directors elected by the holders of the Series C Equity Shares, the C-1
Equity Shares and the Series C-2 Equity Shares, if any, a successor shall
be elected by the Board of Directors, upon the nomination of the
then-remaining Director elected by the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares, if
any, or the successor of such remaining Director (or, if there are then no
such Directors or Director elected by the holders of Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares, if
any, such Director shall be elected by the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares, if
any, as described above), to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if the term of such
director shall not have previously terminated as provided above.
(b) Notwithstanding anything to the contrary contained in this Section
11, if the Corporation shall fail to obtain the required shareholder
approval and amend its Certificate of Designation for the Series C
Preferred Shares so that the holders of Series C Equity Shares vote
together as a single class with the holders of Series C-1 Equity Shares and
the Series C-2 Equity Shares, if any, with respect to the election of
directors for which such holders are entitled to vote, as provided above,
then the voting rights of the holders of Series C-1 Preferred Shares shall
automatically be altered to be as follows:
if and whenever (i) for two consecutive quarterly Dividend Periods the
Corporation fails to pay dividends on the Series C-1 Equity Shares
(which shall, with respect to any such quarterly dividend, mean that
any such dividend has not been paid in full), then the number of
directors then constituting the Board of Directors shall be increased
by two and the holders of Series C-1 Equity Shares and the Series C-2
Equity Shares, if any, voting together as a single class, shall be
entitled to elect the two additional directors to serve on the Board
of Directors or (ii) for two consecutive quarterly Dividend Periods
the Corporation fails to pay dividends on the Common Shares in an
amount per share at least equal to $0.32 (subject to adjustment
consistent with any adjustment of the Conversion Price pursuant to
Section 6(a) of this Article), then the number of directors then
constituting the Board of Directors shall be increased by one and the
holders of Series C-1 Equity Shares and the Series C-2 Equity Shares,
if any, voting together as a single class, shall be entitled to elect
the one additional director to serve on the Board of Directors, in
either case, at any annual meeting of shareholders or special meeting
held in place thereof, or at a special meeting of the holders of the
Series C-1 Equity Shares and the Series C-2 Equity Shares, if any,
called as hereinafter provided; provided, however, that except as set
forth below, the holders of Series C-1 Equity Shares and the Series
C-2 Equity Shares, if any, shall not have the right to elect more than
two directors. If, other than through the operation of this Section 11
or pursuant to the provisions of the Articles of Incorporation
relating to the Corporation's Series A and B Preferred Shares (but
only with respect to one director elected by the holders of the Series
A and B Preferred Shares), the Board of Directors shall be increased
at any time to more than ten directors, then, upon the occurrence or
continuance of any of the events described in this Section 11, the
Board of Directors shall be increased by such number of additional
directors, and the holders of Series C-1 Equity Shares and the Series
C-2 Equity Shares, if any, voting together as a single class, shall be
entitled to elect such number of additional directors, as shall be
necessary to maintain the ratio of directors elected by the holders of
the Series C-1 Shares and the Series C-2 Equity Shares,
if any, to the directors otherwise elected, as nearly as possible
(rounding to the next larger whole number), equal to the ratio that
would have existed if the holders of the Series C-1 Equity Shares and
the Series C-2 Equity Shares, if any, were able to elect the full
number of directors then permitted to be elected by them under this
Section 11 and the directors otherwise elected numbered only ten.
Whenever, as the case may be, (i) all arrears in dividends on the
Series C-1 Equity Shares and the Series C-2 Equity Shares, if any,
then outstanding shall have been paid and the Corporation has paid
dividends thereon for two consecutive quarters and (ii) the
Corporation has paid dividends on the Common Shares in an amount per
share at least equal to $0.32 (subject to adjustment consistent with
any adjustment of the Conversion Price pursuant to Section 6(a) of
this Article) for two consecutive quarters, then the right of the
holders of the Series C-1 Equity Shares and the Series C-2 Equity
Shares, if any, to elect such additional directors shall cease (but
subject always to the same provision for the vesting of such voting
rights in the case of any similar future arrearage in quarterly
dividends), and the terms of office of all persons elected as
Directors by the holders of the Series C-1 Equity Shares and the
Series C-2 Equity Shares, if any, shall forthwith terminate and the
number of the Board of Directors shall be reduced accordingly. At any
time after such voting power shall have been so vested in the holders
of Series C-1 Equity Shares and the Series C-2 Equity Shares, if any,
the Secretary of the Corporation may, and upon the written request of
any holders of 5% of the outstanding Series C-1 Equity Shares and the
Series C-2 Equity Shares, if any (addressed to the Secretary at the
principal office of the Corporation), shall, call a special meeting of
the holders of the Series C-1 Equity Shares and the Series C-2 Equity
Shares, if any, for the election of the Directors to be elected by
them as herein provided, such call to be made by notice similar to
that provided in the Bylaws of the Corporation for a special meeting
of the shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by the
Secretary within 20 days after receipt of any such request, then any
holder of Series C-1 Equity Shares or the Series C-2 Equity Shares, if
any, may call such meeting, upon the notice above provided, and for
that purpose shall have access to the records of the Corporation. The
directors elected at any such special meeting shall hold office until
the next annual meeting of the shareholders or special meeting held in
lieu thereof if such office shall not have previously terminated as
above provided. If any vacancy shall occur among the Directors elected
by the holders of the Series C-1 Equity Shares and the Series C-2
Equity Shares, if any, a successor shall be elected by the Board of
Directors, upon the nomination of the then-remaining Director elected
by the holders of the Series C-1 Equity Shares and the Series C-2
Equity Shares, if any, or the successor of such remaining Director
(or, if there are then no such Directors or Director elected by the
holders of the Series C-1 Equity Shares and the Series C-2 Equity
Shares, if any, such Director shall be elected by the holders of the
Series C-1 Equity Shares and the Series C-2 Equity Shares, if any, as
described above), to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if the term of
such director shall not have previously terminated as provided above.
(c) The holders of the Series C-1 Equity Shares, voting together with
the holders of the Common Shares as a single class shall be entitled to
vote on any matter involving any transaction between the Corporation and
any Affiliate of the Corporation which is brought to a vote of the holders
of the Common Shares (other than any vote on the conversion of the Series D
Preferred Shares or the Series D-1 Preferred Shares into Common Shares). In
any matter for which a holder of Series C-1 Equity Shares is permitted to
vote under this Section 11(c), such holder shall have the number
of votes equal to the number of Common Shares into which the Series C-1
Equity Shares of such holder is convertible on the record date for such
vote.
(d) So long as any Series C-1 Equity Shares are outstanding, in
addition to any other vote or consent of shareholders requested by law or
by the Articles, the affirmative vote of the holders of a majority of the
Series C-1 Equity Shares, voting together as a class, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called
for the purpose, shall be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the provisions
of the Articles of Incorporation or this Certificate of Designation
that materially and adversely affects the voting powers, rights or
preferences of the holders of the Series C-1 Equity Shares; or
(ii) Any merger or consolidation of the Corporation and another
entity in which the Corporation is not the surviving corporation and
each holder of Series C-1 Equity Shares does not receive shares of the
surviving corporation with substantially similar rights, preferences
and powers in the surviving corporation as the Series C-1 Equity
Shares have with respect to the Corporation (except for changes that
do not materially and adversely affect the holders of the Series C-1
Preferred Stock).
provided, however, that no such vote of the holders of Series C-1 Equity Shares
shall be required if, at or prior to the time when such amendment,
alteration or repeal is to take effect, or when the issuance of any such
prior shares or convertible security is to be made, as the case may be,
provision is made for the redemption of all Series C-1 Equity Shares at the
time outstanding to the extent such redemption is authorized by Section 5
of this Certificate of Designation.
(iii) For purposes of the foregoing provisions of this Section
11(d), each share of Series C-1 Equity Shares shall have one (1) vote
per share, except that when any other series of Equity Shares shall
have the right to vote with the Series C-1 Equity Shares as a single
class on any matter, then the Series C-1 Equity Shares and such other
series shall have with respect to such matters one (1) vote per
$180.00 (or less pursuant to Section 4(a)) of stated liquidation
preference. Except as otherwise required by applicable law or as set
forth herein, the Series C-1 Equity Shares shall not have any
relative, participating, optional or other special voting rights and
powers other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any corporate action.
Section 12. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any Series C-1 Preferred Shares as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 13. Title. This resolution shall be known and may be referred
to as "A Resolution of the Board of Directors of Westfield America, Inc.
Designating Series C-1 Preferred Shares and Fixing Preferences and Rights
Thereof".
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President and attested by its
Secretary this 15th day of December, 1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter Lowy
--------------------
Its: Co-President
Attest:
/s/ Irv Hepner
--------------------
Its Secretary
CORPORATION ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On the 15th day of December, 1998, before me personally appeared Peter
Lowy, known to me or proved to me on the basis of satisfactory evidence to
be the Co-President of Westfield America, Inc., the corporation that
executed the foregoing instrument, who, being duly sworn, acknowledged that
he resides at Los Angeles; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by the order of the Board of Directors of said corporation; and
that he signed his name thereto by like order.
/s/ Leesa A. Ashley
--------------------
Notary Public
My commission expires: April 30, 2001
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES C-2 PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business corporation Law of the State
of Missouri, as amended
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri Corporation (hereinafter sometimes referred to as the "Corporation"),
hereby certify as follows:
FIRST: that under the provisions of Article Fourth of the
Restated Articles of Incorporation, as amended, of the Corporation, the
total number of shares of all classes of capital stock which the
Corporation may issue is 410,000,200 shares, of which (i) 200 shares shall
be nonvoting senior preferred stock, par value $1.00 per share (the "Senior
Preferred Shares"), (ii) 5,000,000 shares shall be Preferred Shares, with
par value of $1.00 per share (the "Preferred Shares"), 940,000 of which
have been designated as Series A Preferred Shares, with liquidation value
of $100 per share (the "Series A Preferred Shares"), 400,000 of which have
been designated as Series B Preferred Shares, with a liquidation value of
$100 per share (the "Series B Preferred Shares"), 416,667 of which have
been designated as Series C Preferred Shares, with a liquidation value of
$180 per share (the "Series C Preferred Shares"), 138,889 of which have
been designated as Series C-1 Preferred Shares, with a liquidation value of
$180 per share (the "Series C-1 Preferred Shares"), 694,445 of which have
been designated as Series D Preferred Shares, with a liquidation value of
$180 per share (the "Series D Preferred Shares") and 138,889 of which have
been designated as Series D-1 Preferred Shares, with a liquidation value of
$180 per share (the "Series D-1 Preferred Shares"), (iii) 200,000,000 shall
be shares of common stock, par value $.01 per share (the "Common Stock"),
(iv) 205,000,000 shall be shares of excess stock, par value $.01 per share
(the "Excess Shares"). Any Excess Shares which are issued with respect to
Common Stock shall be "Excess Common Shares" and, together with the Common
Shares, the "Common Equity Shares" and any Excess Shares which are issued
with respect to the Preferred Shares shall be "Excess Preferred Shares,"
and, together with the Preferred Shares, (the "Preferred Equity Shares" and
under said Articles of Incorporation (as amended, the "Articles of
Incorporation") the shares of Preferred Stock are authorized to be issued
by the Board of Directors and the Board of Directors is expressly
authorized to determine in the Resolution, the designation, powers, rights,
preferences and qualifications, limitations or restrictions, not fixed and
determined by the Articles of Incorporation.
SECOND: That the board of Directors of the Corporation pursuant
to the authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of Missouri, as amended,
adopted on December __, 1998 the following resolution creating a series of
Preferred Stock designated as "Series C-2 Preferred Shares," which
resolution has not been amended, modified, rescinded or revoked and is in
full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES C-2 PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to
and vested in the Board of Directors of Westfield America, Inc.,
hereinafter called the "Corporation," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution,
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
1imitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series C-2 Preferred Shares) as
follows:
Section 1. Number of Shares, Designation. This class of preferred
stock shall be designated as Series C-2 Cumulative Convertible Redeemable
Preferred Stock and the number of shares which shall constitute such series
shall not be more than 138,889 shares, par value $1.00 per share, which
number may be decreased (but not below the aggregate number thereof then
outstanding and/or which have been reserved for issuance) from time to time
by the Board of Directors and is hereafter in this resolution called the
"Series C-2 Preferred Shares". Each Series C-2 Preferred Share shall be
identical in all respects to each other Series C-2 Preferred Share. Each
Excess Series C-2 Preferred Share shall be identical in all respects to
each other Excess Series C-2 Preferred Share, and except as otherwise
provided herein, shall be identical in all respects to each Series C-2
Preferred Share (the Series C-2 Preferred Shares together with the Excess
Series C-2 Preferred Shares being hereinafter referred to as the "Series
C-2 Equity Shares").
Section 2. Definitions. For purposes of the Series C-2 Preferred
Shares, the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person,
shall mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate shall
include, without limitation, Westfield Holdings Limited ("WHL") Westfield
America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy (such
individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series C-2 Equity
Share equal to 8.5% of the Liquidation Preference per Series C-2 Equity
Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series C-2
Preferred Shares.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Shares" shall mean the Corporation's common stock, par
value $0.01 per share.
"Consolidated EBITDA" for any quarter shall mean the consolidated
net income of the Corporation (before extraordinary income or gains and
less equity in income of unconsolidated real estate partnerships),
calculated in a manner consistent with the Corporation's financial
statements filed with the Securities and Exchange Commission, increased by
the sum of the following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated
real estate partnerships calculated in a manner consistent with
this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to
extraordinary, unusual or nonrecurring gains or losses
except to the extent that such gains were not included in
Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP for
such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs
(only to the extent that such amounts have not been
previously included in the amount of Consolidated EBITDA
pursuant to clause (c) above), goodwill, other intangibles
and management fees, and
f. any other noncash charges, to the extent deducted from
consolidated net income (including, but not limited to, income
allocated to minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum
of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP
for such quarter (including, without duplication, financing
fees and amortization of deferred fees or amortization of
original issue discount),
c. dividend and distribution requirements with respect to
preferred stock and any other preferred securities for such
quarter (not including any portion of preferred stock
dividends the calculation of which is based on the dividend
paid in such quarter to the holders of Common Shares),
whether or not declared or paid,
d. regularly scheduled amortization of principal of debt during
such quarter (other than any balloon payments at maturity)
and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section
6(e).
"Conversion Date" shall have the meaning set forth in Section
6(a).
"Conversion Price" shall mean the conversion price per Common Share
for which the Series C-2 Preferred Shares is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any
other class of stock or other security of the Corporation or any other
issuer for any day shall mean the last reported sales price, regular way,
on such day, or, if no sale takes place on such day, the average of the
reported closing bid and asked prices on such day, regular way, in either
case as reported on the New York Stock Exchange ("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 ("NASDAQ") or,
if such security is not quoted on NASDAQ, the average of the closing bid
and asked prices on such day in the over-the-counter market as reported by
the National Association of Securities Dealers, Inc. (the "NASD") or, if
bid and asked prices for such security on such day shall not have been
reported through the NASD, 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 Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period
with respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Periods" shall mean quarterly dividend periods
commencing on January 1, April 1, July 1 and October 1 of each year and
ending on and including the day preceding the first day of the next
succeeding Dividend Period with respect to any Series C-2 Equity Shares
(other than the initial Dividend Period, which shall commence on the Issue
Date for such Series C-2 Equity Shares and end on and include the last day
of the calendar quarter immediately following such Issue Date, and other
than the Dividend Period during which any Series C-2 Equity Shares shall be
redeemed pursuant to Section 5 or converted pursuant to Section 6, which
shall end on and include the Call Date or Conversion Date with respect to
the Series C-2 Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current
Market Prices of a Common Share on the five (5) consecutive Trading Days
selected by the Corporation commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and
the day before the "ex date" with respect to the issuance or distribution
requiring such computation. The term "ex date," when used with respect to
any issuance or distribution, means the first day on which the Common
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.
"Fixed Charge Coverage Violation" shall have the meaning set
forth in Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other
class or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series C-2 Preferred Shares has preference or
priority in both (i) the payment of dividends and (ii) the distribution of
assets on any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth
Incorporated and controlled Affiliates thereof.
"Issue Date" shall mean the date on which the Series C-2
Preferred Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series C-2 Preferred Shares has preference or
priority in the payment of dividends or in the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"Non-Electing Share" shall have the meaning set forth in Section
6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section
10(b).
"Person" shall mean any individual, firm, partnership,
corporation, limited liability company, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section 6
(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the
Corporation for any taxable year on which the Corporation
does not compute its income as a real estate investment
trust;
(ii) the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real
estate investment trust;
(iii) a determination by the Board of Directors of the
Corporation, based on the advice of counsel, that the
Corporation has ceased to qualify as a real estate
investment trust; or
(iv) a "determination" within the meaning of Section 1313(a) of
the Code that the Corporation has ceased to qualify as a
real estate investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended,
"Series C-2 Preferred Shares" shall have the meaning given such term
in the preamble to this Certificate of Designation.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series C-2 Preferred Shares as to the payment of
dividends are placed in a separate account of the Corporation or delivered
to a disbursing, paying or other similar agent, then "set apart for
payment" with respect to the Series C-2 Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Trading Days" shall mean any day on which the securities in
question are traded on the NYSE, or if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted, or if not listed
or admitted for trading on any national securities exchange, on NASDAQ, or
if such securities are not quoted on NASDAQ, in the securities market in
which the securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent
or agents of the Corporation as may be designated by the Board of Directors
or their designee as the transfer agent, registrar and dividend disbursing
agent for the Series C-2 Preferred Shares.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles.
Section 3. Dividends.
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(a) Subject to the preferential rights of the holders of any
Senior Preferred Stock or Preferred Shares that rank senior in the payment
of dividends to the Series C-2 Equity Shares and subject to paragraph (b)
of this Section 3, the holders of Series C-2 Equity Shares shall be
entitled to receive, when, as and if declared by the Board of Directors,
but only out of funds legally available for the payment of dividends,
cumulative preferential dividends payable in cash to shareholders of record
on the respective date, not exceeding 50 days preceding such dividend
payment date, fixed for the purpose by the Board of Directors in advance of
payment of each particular dividend in an amount equal to the greater of
(A) the Base Rate per share per annum and (B) an amount per share equal to
the Liquidation Preference of a Series C-2 Equity Share (exclusive of
accrued but unpaid dividends) divided by the Conversion Price (the "Series
C-2 Common Equivalent Factor") times the dollar amount of cash dividends
declared with respect to each Common Equity Share that does not result in
an adjustment to the Conversion Price pursuant to Subparagraph (d)(iii) of
Section 6 (such product, the "Series C-2 Common Equivalent Amount") for the
same annual period; provided, however, that if as a result of the quarterly
dividends paid in accordance with the following sentence, the holders of
Series C-2 Equity Shares shall have received for any calendar year more
dividends than such Series C-2 Equity Shares shall be entitled under
clauses (A) and (B) above (as adjusted pursuant to the third and eighth
sentences of this Section 3), the dividends payable in respect of Series
C-2 Equity Shares in subsequent calendar years shall be reduced to the
extent of such overpayment. Subject to the provisio of the preceding
sentence of this Section 3(a), the dividend paid in respect of each
quarterly period in each calendar year shall be determined as follows (in
each case, including any additional payment made pursuant to the following
sentence): (1) for the first quarter, the greater of 25% of the Base Rate
per share and the Series C-2 Common Equivalent Amount for the same quarter;
(2) for the second quarter, an amount such that the aggregate amount to be
received per Series C-2 Equity Share in respect of the first two quarters
of such calendar year shall be the greater of 50% of the Base Rate per
share and the Series C-2 Common Equivalent Amount for the same two
quarters; (3) for the third quarter, an amount such that the aggregate
amount to be received per Series C-2 Equity Share in respect of the first
three quarters of such calendar year shall be the greater of 75% of the
Base Rate per share and the Series C-2 Common Equivalent Amount for the
same three quarters; and (4) for the fourth quarter, an amount such that
the aggregate amount to be received per Series C-2 Equity Share in respect
of such calendar year shall be the amount provided in the preceding
sentence of this Section 3(a). Notwithstanding the foregoing, for any
quarter in which a Fixed Charge Coverage Violation (as defined below) has
occurred, the dividend payable per Series C-2 Equity Share shall be 1.20
times the amount provided in the preceding sentence. A "Fixed Charge
Coverage Violation" shall occur for any quarter that the ratio of the
Corporation's Consolidated EBITDA to its Consolidated Fixed Charges is
below 1.40 to 1. The dividends shall begin to accrue as set forth above and
shall be fully cumulative from the first day of the applicable Dividend
Period, whether or not in any Dividend Period or Periods there shall be
funds of the Corporation legally available for the payment of such
dividends, and shall be payable quarterly, when, as and if declared by the
Board of Directors, in arrears on Dividend Payment Dates. Accumulated but
unpaid dividends for any past quarterly dividend periods may be declared
and paid at any time, without reference to any regularly scheduled
quarterly dividend payment date, to holders of record on such date, not
exceeding 50 days preceding such dividend payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend. Any dividend payment made on Series C-2 Equity Shares shall first
be credited against the earliest accrued but unpaid dividend due with
respect to Series C-2 Equity Shares which remains payable. Beginning with
the quarter in which a REIT Termination Event occurs, all dividends payable
per Series C-2 Equity Share pursuant to this Section shall be multiplied by
2.5.
(b) The initial Dividend Period for the Series C-2 Equity Shares
will include a partial dividend for the period from the Issue Date until
the last day of the calendar quarter immediately following such Issue Date.
The amount of dividends payable for such initial period, or any other
period shorter than a full quarterly Dividend Period, on the Series C-2
Equity Shares shall be computed by dividing the number of days in such
period by 90 and multiplying the result by the Series C-2 Preferred
dividend determined in accordance with Section 3(a). Holders of Series C-2
Equity Shares shall not be entitled to any dividends, whether payable in
cash, property or shares, in excess of cumulative dividends, as herein
provided, on the Series C-2 Equity Shares. No interest, or sum of money in
lieu of interest, shall be payable in respect of any dividend payment or
payments on the Series C-2 Equity Shares which may be in arrears.
(c) So long as any Series C-2 Equity Shares remain outstanding,
no dividends, except as described in the immediately following sentence,
shall be declared or paid or set apart for payment on any class or series
of Parity Shares for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series C-2 Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in fu1l or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series C-2 Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series C-2 Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series C-2 Equity Shares remain outstanding,
no dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series C-2 Equity Shares
and any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series C-2 Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series C-2 Equity
Shares shall not be entitled to participate in any such dividends, whether
payable in cash, stock or otherwise.
(e) No distributions on Series C-2 Equity Shares shall be
declared by the Board of Directors or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of
the Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption
or other acquisition of Shares or otherwise is permitted under Missouri
law, 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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference.
-----------------------
(a) In the event of any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, subject to the prior
preferences and other rights of any series of stock ranking senior to the
Series C-2 Preferred Shares upon liquidation, distribution or winding up of
the Corporation, before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for
the holders of Junior Shares, the holders of the Series C-2 Equity Shares
shall be entitled to receive One Hundred Eighty Dollars ($180.00) (the
"Liquidation Preference") per share of Series C-2 Equity Shares plus an
amount equal to all dividends (whether or not earned or declared) accrued
and unpaid thereon to the date of liquidation, dissolution or winding up of
the affairs of the Corporation (any such date, a "Series C-2 Liquidation
Date") but such holders shall not be entitled to any further payment;
provided, that the dividend payable with respect to the Dividend Period
containing the Series C-2 Liquidation Date shall be equal to the dividend
determined pursuant to Section 3 above for the preceding Dividend Period
times a fraction equal to the actual number of days elapsed from the end
date of the calendar quarter most recently completed to the relevant Series
C-2 Liquidation Date over 90 days. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the Series C-2 Equity Shares
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity
Shares, then such assets, or the proceeds thereof, shall be distributed
among the holders of Series C-2 Equity Shares and any such other Parity
Shares ratably in accordance with the respective amount that would be
payable on such Series C-2 Equity Shares and any such other Parity Shares
if all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or
more corporations, real estate investment trusts or other entities, (ii) a
sale, lease or conveyance of all or substantially all of the Corporation's
Property or business or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series
or class or classes of stock ranking on a parity with (including the Parity
Shares) or prior to the Series C-2 Equity Shares upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or winding up
of the Corporation, after payment shall have been made in full to the
holders of the Series C-2 Equity Shares, as provided in this Section 4, the
holders of Series C-2 Equity Shares shall have no other claim to the
remaining assets of the Corporation and any other series or class or
classes of Junior Shares shall, subject to the respective terms and
provisions (if any) applying thereto, he entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series
C-2 Equity Shares shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation.
-------------------------------------------
(a) The Series C-2 Equity Shares shall not be redeemable by the
Corporation prior to August 12, 2008. On and after August 12, 2008, the
Corporation, at its option, may redeem the Series C-2 Equity Shares, in
whole at any time or from time to time in part, in minimum increments of
$10.0 million of aggregate Liquidation Preference of such shares, out of
funds legally available therefor at a redemption price payable in cash
equal to 100% of the Liquidation Preference per Series C-2 Equity Shares
(plus all accumulated, accrued and unpaid dividends as provided in
paragraph (b) below).
(b) Upon any redemption of Series C-2 Equity Shares pursuant to
this Section 5, the Corporation shall pay all accrued and unpaid dividends,
if any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series C-2 Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series C-2 Equity Shares called for redemption.
(c) If full cumulative dividends on the Series C-2 Equity Shares
and any other class or series of Parity Shares of the Corporation have not
been declared and paid or declared and set apart for payment, the Series
C-2 Equity Shares may not be redeemed under this Section 5 in part and may
not be redeemed unless the Series C Equity Shares and Series C-1 Equity
Shares are also redeemed in whole and the Corporation may not purchase or
acquire Series C Equity Shares, Series C-1 Equity Shares or Series C-2
Equity Shares otherwise than pursuant to a purchase or exchange offer made
on the same terms to all holders of Series C Equity Shares, Series C-1
Equity Shares and Series C-2 Equity Shares.
(d) Notice of the redemption of any Series C-2 Equity Shares
under this Section 5 shall he mailed by first class mail or recognized
overnight courier to each holder of record of Series C-2 Equity Shares to
be redeemed at the address of each such holder as shown on the
Corporation's records, not less than 30 nor more than 90 days prior to the
Call Date. Neither the failure to mail any notice required by this
paragraph (d), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the
validity of the proceedings for redemption with respect to the other
holders. Each such mailed notice shall state, as appropriate: (1) the Call
Date; (2) the number of Series C-2 Equity Shares to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder; (3) the redemption
price; (4) the place or places at which certificates for such shares are to
be surrendered; (5) the then-current Conversion Price; and (6) that
dividends on the shares to be redeemed shall cease to accrue on such Call
Date except as otherwise provided herein. Notice having been mailed as
aforesaid, from and after the Call Date (unless the Corporation fail to
make available an amount of cash necessary to effect such redemption), (i)
except as otherwise provided herein, dividends on the Series C-2 Equity
Shares so called for redemption shall cease to accrue, (ii) such shares
shall no longer be deemed to be, outstanding, and (iii) all rights of the
holders thereof as holders of Series C-2 Equity Shares shall cease (except
the rights to receive the cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if
so required and to receive any dividends payable thereon). The
Corporation's obligation to provide cash in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Call Date, the
Corporation shall deposit with a bank or trust company that has an office
in the borough of Manhattan, City of New York, and that has capital and
surplus of at least $150,000,000, necessary for such redemption, in trust,
with irrevocable instructions that such cash be applied to the redemption
of the Series C-2 Equity Shares so called for redemption. No interest shall
accrue for the benefit of the holders of Series C-2 Equity Shares to be
redeemed on any cash so set aside by the Corporation. Subject to applicable
escheat laws, any such cash unclaimed at the end of two years from the Call
Date shall revert to the general finds of the Corporation, after which
reversion the holders of such shares so called for redemption shall look
only to the general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with
such notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series C-2 Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series C-2 Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series C-2 Equity Shares evidenced by any certificate are redeemed, then
new certificates evidencing the unredeemed shares shall be issued without
cost to the holder thereof.
Section 6. Conversion. Holders of Series C-2 Equity Shares shall have
the right to convert all or a portion of such shares into Common Equity
Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series C-2 Preferred Shares or Excess Preferred
Shares shall have the right, at his or her option, at any time (such time
being, the "Conversion Date"), to convert all or any portion of such shares
into the number of fully paid and nonassessable Common Shares or Excess
Common Shares obtained by dividing the aggregate Liquidation Preference of
such shares (inclusive of accrued but unpaid dividends) by the Conversion
Price (as in effect at the time and on the date provided for in the last
paragraph of paragraph (b) of this Section 6) by surrendering such shares
to be converted, such surrender to be made in the manner provided in
paragraph (b) of this Section 6; provided, however, that the right to
convert shares called for redemption pursuant to Section 5 shall terminate
at the close of business on the fifth Business Day prior to the Call Date
fixed for such redemption, unless the Corporation shall default in making
payment of the cash payable upon such redemption under Section 5.
(b) In order to exercise the conversion right, the holder of each
share of C-2 Equity Shares to be converted shall surrender the certificate
representing such share, duly endorsed or assigned to the Corporation or in
blank, at the office of the Transfer Agent, accompanied by written notice
to the Corporation that the holder thereof irrevocably elects to convert
such Series C-2 Equity Shares. Unless the shares issuable on conversion
are to be issued in the same name as the name in which such Series C-2
Equity Shares are registered, each share surrendered for conversion shall
be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation demonstrating that such
taxes have been paid).
Holders of Series C-2 Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the correspondence Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series C-2
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series C-2 Equity Shares being entitled to
such dividend on the Dividend Payment Date) must be accompanied by payment
of an amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series C-2 Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series
C-2 Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series C-2 Equity
Shares for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Equity Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates for
Series C-2 Equity Shares as aforesaid, the Corporation shall issue and
shall deliver at such office to such holder, or on his or her written
order, a certificate or certificates for the number of full Common Equity
Shares issuable upon the conversion of such shares in accordance with
provisions of this Section 6, and any fractional interest in respect of a
Common Share arising upon such conversion shall be settled as provided in
paragraph (c) of this Section 6.
Each conversion should be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series C-2 Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity 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 on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of
Common Equity Shares shall be issued upon conversion of the Series C-2
Equity Shares. Instead of any fractional interest in a Common Share that
would otherwise be deliverable upon the conversion of a Series C-2 Equity
Share, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of the Common Equity Shares on the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series C-2 Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in Common
Equity Shares, (B) subdivide its outstanding Common Equity Shares into
a greater number of shares, (C) combine its outstanding Common Equity
Shares into a smaller number of shares or (D) issue any shares of
stock by reclassification of its Common Equity Shares, the Conversion
Price in effect at the opening of business on the day following the
date fixed for the determination of shareholders entitled to receive
such dividend or distribution or at the opening of business on the
Business Day next following the day on which such subdivision,
combination or reclassification becomes effective, as the case may be,
shall be adjusted so that the holder of any Series C-2 Equity Shares
thereafter surrendered for conversion shall be entitled to receive the
number of Common Equity Shares that such holder would have owned or
have been entitled to receive after the happening of any of the events
described above as if such Series C-2 Equity Shares had been converted
immediately prior to the record date in the cases of a dividend or
distribution or the effective date in the case of a subdivision,
combination or reclassification. An adjustment made pursuant to this
subparagraph (i) shall become effective immediately after the opening
of business on the Business Day next following the record date (except
as provided in paragraph (h) below) in the case of a dividend or
distribution and shall become effective immediately after the opening
of business on the Business Day next following the effective date in
the case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to all holders of Common Equity Shares
entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase Common Equity
Shares at a price per share less than 95% (100% if a stand-by
underwriter is used and charges the Corporation a commission) of the
Fair Market Value per Common Share on the record date for the
determination of shareholders entitled to receive such rights, options
or warrants, then the Conversion Price in effect at the opening of
business on the Business Day next following such record date shall be
adjusted to equal the price determined by multiplying (A) the
Conversion Price in effect immediately prior to the opening of
business on the Business Day next following the date fixed for such
determination by (B) a fraction, the numerator of which shall be the
sum of (x) the number of Common Equity Shares outstanding on the close
of business on the date fixed for such determination and (y) the
number of shares that the aggregate proceeds to the Corporation from
the exercise of such rights, options or warrants for Common Equity
Shares would purchase at 95 % of such Fair Market Value (or 100% in
the case of a stand-by underwriting), and the denominator of which
shall be the sum of (x) the number of Common Equity Shares outstanding
on the close of business on the date fixed for such determination and
(y) the number of additional Common Equity 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 paragraph (h) below). In determining whether any rights,
options or warrants entitle the holders of Common Equity Shares to
subscribe for or purchase Common Equity Shares at less than 95% of
such Fair Market Value (or 100% in the case of a stand-by
underwriting), there shall be taken into account any consideration
received by the Corporation upon issuance and upon exercise of such
rights, options or warrants, the value of such consideration, if other
than cash, to be determined by the Board of Directors whose
determination shall be conclusive. To the extent that Common Equity
Shares are not delivered pursuant to such rights, options or warrants,
upon the expiration or termination of such rights, options or
warrants, the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made upon the
issuance of such rights, options or warrants been made on the basis of
delivery of only the number of Common Equity Shares actually
delivered. In the event that such rights, options or warrants are not
so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for
the determination of stockholders entitled to receive such rights,
options or warrants had not been fixed.
(iii) If the Corporation shall distribute to all holders of
its Common Equity Shares any securities of the Corporation (other than
Common Equity Shares) or evidence of its indebtedness or assets
(excluding cumulative cash dividends or distributions paid with
respect to the Common Equity Shares after December 31, 1997 which are
not in excess of the following: the sum of (A) the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as determined
by the Board of Directors, after December 31, 1997, minus (C) the
cumulative amount of dividends accrued or paid in respect of the
Series C-2 Equity Shares or any other class or series of preferred
stock of the Corporation after the Issue Date) or rights, options or
warrants to subscribe for or purchase any of its securities (excluding
those rights, options and warrants issued to all holders of Common
Equity Shares entitling them for a period expiring within 45 days
after the record date referred to in subparagraph (ii) above to
subscribe for or purchase Common Equity Shares, which rights and
warrants are referred to in and treated under subparagraph (ii) above)
(any of the foregoing being hereinafter in this subparagraph (iii)
collectively called the "Securities" and individually a "Security"),
then in each such case the Conversion Price shall be adjusted so that
it shall equal the price determined by multiplying (x) the Conversion
Price in effect immediately prior to the close of business on the date
fixed for the determination of shareholders entitled to receive such
distribution by (y) a fraction, the numerator of which shall be the
Fair Market Value per Common Share on the record date mentioned below
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive) of the portion of
the Securities or assets or evidences of indebtedness so distributed
or of such rights, options 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 on the date of distribution retroactive to the opening of
business on the Business Day next following (except as provided in
paragraph (h) below) the record date for the determination of
shareholders entitled to receive such distribution. For the purposes
of this subparagraph (iii), the distribution of a Security, which is
distributed not only to the owners of the Common Equity 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 share of Series C-2
Equity Shares after such determination date, shall not require an
adjustment of the Conversion Price pursuant to this subparagraph
(iii); provided that on the date, if any, on which a Person converting
a share of Series C-2 Equity Shares would no longer be entitled to
receive such Security with a Common Share (other than as a result of
the termination of all such Securities), a distribution of such
Securities shall be deemed to have occurred and the Conversion Price
shall be adjusted as worded in this subparagraph (iii) (and such day
shall be deemed to be "the date fixed for the determination of the
shareholders entitled to receive such distribution" and "the record
date" within the meaning of the two preceding sentences). If any
dividend or distribution of the type described in this paragraph (iii)
is declared but not so paid or made, the Conversion Price shall again
be adjusted to the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
Rights or warrants distributed by the Corporation to all
holders of Common Equity Shares entitling the holders thereof to
subscribe for or purchase shares of the Corporation's capital stock
(either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such shares
of Common Equity Shares; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of Common Equity Shares, shall
be deemed not to have been distributed for purposes of this
subparagraph (iii) (and no adjustment to the Conversion Price under
this subparagraph (iii) will be required) until the occurrence of the
earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant
shall become exercisable to purchase different securities, evidences
of indebtedness or other assets or entitle the holder to purchase a
different number or amount of the foregoing or to purchase any of the
foregoing at a different purchase price, then the occurrence of each
such event shall be deemed to be the date of issuance and record date
with respect to a new right or warrant (and a termination or
expiration of the existing right or warrant without exercise by the
holder thereof to the extent not exercised). In addition, in the event
of any distribution (or deemed distribution) of rights or warrants, or
any Trigger Event or other event (of the type described in the
preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Price under this Subparagraph (iii), (1)
in the case of any such rights or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as
the case may be, as though it were a cash distribution (but not a
distribution paid exclusively in cash), equal to the per share
redemption or repurchase price received by a holder of Common Equity
Shares with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common
Equity Shares as of the date of such redemption or repurchase, and (2)
in the case of such rights or warrants all of which shall have expired
or been terminated without exercise, the Conversion Price shall be
readjusted as if such rights and warrants had never been issued.
(iv) In case a tender or exchange offer (which term shall
not include open market repurchases by the Corporation) made by the
Corporation or any subsidiary or controlled Affiliate of the
Corporation for all or any portion of the Common Equity Shares shall
expire and such tender or exchange offer shall require the payment by
the Corporation or such subsidiary or controlled Affiliate of
consideration per Common Share having a fair market value (as
determined in good faith by the Board of Directors whose determination
shall be conclusive and described in a resolution of the Board of
Directors), at the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer, that
exceeds the Current Market Price per Common Share on the Trading Day
next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph, by a fraction of which the numerator shall be the number
of Common Equity Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time, multiplied by the Current
Market Price per Common Share on the Trading Day next succeeding the
Expiration Time, and the denominator shall be the sum of (A) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any maximum, being referred
to as the "Purchased Shares") and (B) the product of the number of
Common Equity Shares outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event the Corporation or any
subsidiary or controlled Affiliate is obligated to purchase shares
pursuant to any such tender offer, but the Corporation or such
subsidiary or controlled Affiliate is permanently prevented by
applicable law from effecting any such purchases, or all such
purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price which would then be if effect if such
tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease
of at least 1% in such price; provided, however, that any adjustments
that by reason of this subparagraph (v) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment until made; and provided, further, that any adjustment
shall be required and made in accordance with the provisions of this
Section 6 (other than this subparagraph (v)) 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 6, the Corporation shall not be
required to make any adjustment of the Conversion Price for the
issuance of any Common Equity Shares pursuant to any plan providing
for the reinvestment of dividends or interest payable on securities of
the Corporation and the investment of additional optional amounts in
Common Equity Shares under such plan. All calculations under this
Section 6 shall be made to the nearest cent (with $.005 being rounded
upward) or to the nearest one-hundredth of a share (with $.005 of a
share being rounded upward), as the case may be. Anything in this
paragraph (d) to the contrary notwithstanding, the Corporation shall
be entitled, to the extent permitted by law, to make such reductions
in the Conversion Price, in addition to those required by this
paragraph (d), as it in its discretion shall determine to be advisable
in order that any share dividends, subdivision of shares,
reclassification or combination of shares, distribution of rights or
warrants to purchase shares or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Corporation
to its shareholders shall not be taxable. To the extent permitted by
applicable law, the Corporation from time to time may reduce the
Conversion Price by any amount for any period of time if the period is
at least 20 days, the reduction is irrevocable during the period and
the Board of Directors shall have made a determination that such
reduction would be in the best interest of the Corporation, which
determination shall be conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Corporation shall mail
to the holder of each Series C-2 Preferred Share at his or her last
address appearing on the share register a notice of reduction prior to
the date the reduced Conversion Price takes effect and such notice
shall state the reduced Conversion Price and the period during which
it will be in effect.
(e) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share
exchange, self tender offer for 40% or more of its Common Equity Shares,
sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Equity Shares and excluding any transaction
as to which subparagraph (d)(i) of this Section 6 applies) (each of the
foregoing being referred to herein as a "Transaction"), in each case as a
result of which all or substantially all of the Common Equity Shares are
converted into the right to receive different securities or other property
(including cash or any combination thereof), each Series C-2 Equity Share
which is not redeemed or converted into the right to receive different
securities or other property prior to such Transaction shall thereafter be
convertible, in lieu of Common Equity Shares into the kind and amount of
different securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder
of that number of Common Equity Shares into which one Series C-2 Equity
Share was convertible immediately prior to such Transaction, assuming such
holder of Common Equity Shares (i) is not a Person with which the
Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such sale or transfer was made, as
the case may be ("Constituent Person"), or an Affiliate of a Constituent
Person and (ii) failed to exercise his rights of election, if any, as to
the kind or amount of shares, securities and other property (including
cash) receivable upon such Transaction (provided that if the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction is not the same for each Common Share held immediately
prior to such Transaction by other than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not
have been exercised ("Non-Electing Share"), then for the purpose of this
paragraph (e) the kind and amount of shares, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing
Share shall be deemed to be the kind and amount so receivable per share by
holders of a plurality of the Non-Electing Shares). The Corporation shall
not be a party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this paragraph (e), and it shall not
consent or agree to the occurrence of any Transaction until the Corporation
has entered into an agreement with the successor or purchasing entity, as
the case may be, for the benefit of the holders of the Series C-2 Equity
Shares that will contain provisions enabling the holders of the Series C-2
Equity 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 paragraph (e) shall similarly apply to successive
Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends
or distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus the cumulative amount of Funds from Operations, as determined by
the Board of Directors, after December 31, 1997, minus the cumulative
amount of dividends accrued or paid in respect of the Series C-2
Equity Shares or any other class or series of preferred stock of the
Corporation after the Issue Date); or
(ii) the Corporation shall authorize the granting to all
holders of Common Equity Shares of rights, options or warrants to
subscribe for or purchase any shares of any class or any other rights,
options or war rants; or
(iii) there shall be any reclassification of the Common
Equity Shares (other than an event to which subparagraph (d)(i) of
this Section 6 applies) or any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation
is the surviving entity) and for which approval of any shareholders of
the Corporation is required, or a statutory share exchange, or a self
tender offer by the Corporation 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 Corporation as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series C-2 Equity Shares at
their addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options 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 Equity Shares of record shall be entitled
to exchange their Common Equity 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 6.
(g) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series
C-2 Equity Shares at such holder's last address as shown on the records of
the Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides
that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of
such event (A) issuing to the holder of any share of Series C-2 Equity
Shares converted after such record date and before the occurrence of such
event the additional Common Equity Shares issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Equity Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case
of the issuance of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth
in this Section 6. If any action or transaction would require adjustment of
the Conversion Price pursuant to both paragraph (d) and paragraph (e) of
this Section 6, only one adjustment shall be made and such adjustment shall
be the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series C-2 Equity Shares, the
Conversion Price for the Series C-2 Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Equity Shares, for the purpose of
effecting conversion of the Series C-2 Equity Shares, the full number of
Common Equity Shares deliverable upon the conversion of all outstanding
Series C-2 Equity Shares not theretofore converted. For purposes of this
paragraph (k), the number of Common Shares that shall be deliverable upon
the conversion of all outstanding Series C-2 Preferred Shares shall be
computed as if at the time of computation all such outstanding shares were
held by a single holder.
Any Common Equity Shares issued upon conversion of the Series C-2
Equity Shares shall be validly issued, fully paid and nonassessable. Before
taking any action that would cause an adjustment reducing the Conversion
Price below the then-par value of the Common Equity Shares deliverable upon
conversion of the Series C-2 Equity Shares, the Corporation will take any
action that, in the opinion of its counsel, may be necessary in order that
the Corporation may validly and legally issue fully paid and (subject to
any customary qualification based upon the nature of a real estate
investment trust) nonassessable Common Equity Shares at such adjusted
Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series C-2 Equity 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.
The Corporation shall use its best efforts to comply with all federal
and state securities laws and regulations thereunder in connection with the
issuance of any securities that the Corporation shall be obligated to
deliver upon conversion of the Series C-2 Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Common Equity Shares or other securities or property on conversion of
the Series C-2 Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series C-2 Equity 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 Corporation the amount of any such tax or established, to
the reason able satisfaction of the Corporation, that such tax has been
paid.
Section 7. Change of Control.
(a) If a Change of Control (as defined below) occurs (a "Change
of Control Repurchase Event"), the holders of Series C-2 Equity Shares
shall have the right to require the Corporation, to the extent the
Corporation shall have funds legally available therefor, to redeem any or
all of the Series C-2 Equity Shares held by such holder at a repurchase
price payable in cash (the "Change of Control Repurchase Payment") in an
amount equal to 105% of the Liquidation Preference thereof plus accrued and
unpaid dividends whether or not declared, if any, to the date of repurchase
or the date payment is made available (the "Change of Control Date")
pursuant to the offer described in subsection (b) below (the "Change of
Control-Repurchase Offer").
(b) Within 15 days following the Corporation becoming aware that
a Change of Control Repurchase Event has occurred, the Corporation shall
mail by first class mail or recognized overnight courier a notice to each
holder of Series C-2 Equity Shares stating (A) that a Change of Control
Repurchase Event has occurred and that such holder has the right to require
the Corporation to repurchase any or all of the Series C-2 Equity Shares
then held by such holder, (B) the date of repurchase (which shall be a
Business Day, no earlier than 30 days and no later than 60 days from the
date such notice is mailed, or such later date as may be necessary to
comply with the requirements of the Exchange Act), (C) the repurchase price
and (D) the instructions determined by the Corporation, consistent with
this subsection, that such investor must follow in order to have the Series
C-2 Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to
the extent lawful, shall accept for payment Series C-2 Equity Shares or
portions thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series C-2
Equity Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly
(e) For purposes hereof, "Change of Control" means the occurrence
of any of the following: (i) the first acquisition, directly or indirectly,
by any individual or entity or group (as such term is used in Section
13(d)(3) of the Exchange Act) of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act, except that such individual or entity shall
be deemed to have beneficial ownership of all shares that any such
individual or entity has the right to acquire, whether such right is
exercisable immediately or only after passage of time) of more than 25% of
the Corporation's or Westfield America Trust's outstanding equity
securities with voting power, under ordinary circumstances, to elect
Directors of the Corporation; (ii) other than with respect to the election,
resignation or replacement of any Director designated, appointed or elected
by the holders of any Series of Preferred Shares (each a "Preferred
Director"), during any period of two consecutive years, ------------------
individuals who at the beginning of such period constituted the Board of
Directors of the Corporation (together with any new Directors whose
election by such Board of Directors or whose nomination for election by the
shareholders of the Corporation was approved by a vote of 66 2/3% of the
Directors of the Corporation (excluding Preferred Directors) then still in
office who were Directors at the beginning of such period, or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office of the Corporation; and (iii) (A) any of the Corporation or
Westfield America Trust consolidating with or merging into another entity
or conveying, transferring or leasing all or substantially all of its
assets (including, but not limited to, real property investments) to any
individual or entity, or (B) any entity consolidating with or merging into
any of the Corporation or Westfield America Trust, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting
securities of the Corporation or Westfield America Trust is reclassified or
changed into or exchanged for cash, securities or other property; provided,
however, that the events described in clauses (i), (ii) and (iii) shall not
be deemed to be a Change of Control (a) in the case of the event described
in clause (iii), if the sole purpose of such event is that the Corporation
or Westfield America Trust is seeking to change its domicile or to convert
from a corporation to a trust or vice versa; (b) in the case of the event
described in clause (iii), if the holders of the exchanged securities of
the Corporation or Westfield America Trust immediately after such
transaction beneficially own at least a majority of the securities of the
merged or consolidated entity normally entitled to vote in elections of
Directors of the Corporation or Westfield America Trust; (c) if any of
Westfield Holdings Limited or its wholly owned subsidiaries remains as
manager of the Corporation's properties and as adviser of the Corporation,
in each case, in a manner substantially similar to that on the date hereof;
or (d) if the Change of Control results solely from the purchase or other
acquisition of equity securities by Westfield Holdings Limited, Westfield
America Trust, the Lowy Family or the Investor.
Section 8. Redemption at the Option of the Holder.
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(a) At any time after August 12, 2008, the holders of Series C-2
Equity Shares shall have the right at any time that the Corporation's
common stock has a Current Market Price at or below the Conversion Price
per share, to require the Corporation, to the extent the Corporation shall
have funds legally available therefor, to redeem any or all of the Series
C-2 Equity Shares held by such holder at a repurchase price payable, at the
option of the Corporation, in either (i) cash, or (ii) such number of
Common Equity Shares as shall have a Current Market Price in the aggregate
on the day prior to the day such holder gives notice pursuant to Section
8(b) of its intention to redeem, equal to in either case, 100% of the
liquidation preference thereof plus accrued and unpaid dividends whether or
not declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
(b) For purposes of this Section 8, redemption at the option of
the holder shall be deemed to occur upon receipt by the Corporation of
written notice that the holder of Series C-2 Equity Shares wishes to tender
shares to be redeemed. The holders of such shares to be redeemed shall then
have 30 days from the date of such notice to deliver such shares to the
Transfer Agent. Upon the surrender of the certificate or certificates of
Series C-2 Preferred Shares to be redeemed, duly endorsed or assigned to
the Corporation or in blank, at the office of the Transfer Agent, the
Corporation shall promptly, either (i) by wire transfer of immediately
available funds to such holder, as directed by such holder, send an amount
equal to the Redemption Payment in respect of all Series C-2 Equity Shares
or portions thereof so tendered or (ii) issue and deliver to such holder,
or on his or her written order, a certificate or certificates for the
number of full Common Equity Shares issuable in respect of
all Series C-2 Equity Shares or portions thereof so tendered.
Section 9. Shares To Be Retired. All Series C-2 Equity Shares which
shall have been issued and reacquired in any manner by the Corporation shall be
restored to the status of authorized but unissued preferred stock, without
discretion as to class or series, and subject to applicable limitations set
forth in the Articles may thereafter be reissued as shares of any series of
preferred stock.
Section 10. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series C-2 Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation, dissolution
or winding up, if the holders of such class or series shall be entitled to
the receipt of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or priority to
the holders of Series C-2 Preferred Shares, which shall expressly include
the Corporation's nonvoting senior preferred stock, par value $1.00 per
share;
(b) on a parity with the Series C-2 Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof shall
be different from those of the Series C-2 Preferred Shares, if the holders
of such class or series and the Series C-2 Preferred Shares shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in proportion to their respective
amounts of accrued and unpaid dividends per share or liquidation
preferences, without preference or priority one over the other ("Parity
Shares"), which shall expressly include the Corporation's Series
A Preferred Shares, Series B Preferred Shares, Series C Pre ferred Shares,
Series C-l Preferred Shares, Series D Preferred Shares and Series D-l Preferred
Shares;
(c) junior to the Series C-2 Preferred Shares, as to the payment
of dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior Shares;
and
(d) junior to the Series C-2 Preferred Shares, as to the payment
of dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Voting.
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(a) Except as expressly provided in this Certificate of
Designation, the holders of Series C-2 Equity Shares shall have no voting
rights. If the Corporation has obtained shareholder approval and made the
amendments as described in Section 11(b) below, and if and whenever (i) for
two consecutive quarterly Dividend Periods the Corporation fails to pay
dividends on the Series C Equity Shares, the Series C-1 Equity Shares or
the Series C-2 Equity Shares (which shall, with respect to any such
quarterly dividend, mean that any such dividend has not been paid in full),
then the number of directors then constituting the Board of Directors shall
be increased by two and the holders of Series C Equity Shares, the Series
C-1 Equity Shares and the Series C-2 Equity Shares, voting together as a
single class, shall be entitled to elect the two additional directors to
serve on the Board of Directors or (ii) for two consecutive quarterly
Dividend Periods the Corporation fails to pay dividends on the Common
Shares in an amount per share at least equal to $0.32 (subject to
adjustment consistent tent with any adjustment of the Conversion Price
pursuant to Section 6(a) of this Article), then the number of directors
then constituting the Board of Directors shall be increased by one and the
holders of Series C Equity Shares, the Series C-1 Equity Shares and the
Series C-2 Equity Shares, voting together as a single class, shall be
entitled to elect the one additional director to serve on the Board of
Directors, in either case, at any annual meeting of shareholders or special
meeting held in place thereof, or at a special meeting of the holders of
the Series C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares called as hereinafter provided; provided, however, that
except as set forth below, the holders of the Series C Equity Shares, the
Series C-1 Equity Shares and the Series C-2 Equity Shares shall not have
the right to elect more than two directors. If, other than through the
operation of this Section 11 or pursuant to the provisions of the Articles
of Incorporation relating to the Corporation's Series A and B Preferred
Shares (but only with respect to one director elected by the holders of the
Series A and B Preferred Shares), the Board of Directors shall be increased
at any time to more than ten directors, then, upon the occurrence or
continuance of any of the events described in this Section 11, the Board of
Directors shall be increased by such number of additional directors, and
the holders of the Series C Equity Shares, the Series C-i Equity Shares and
the Series C-2 Equity Shares, voting together as a single class, shall be
entitled to elect such number of additional directors, as shall be
necessary to maintain the ratio of directors elected by the holders of the
Series C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares to the directors otherwise elected, as nearly as possible
(rounding to the next larger whole number), equal to the ratio that would
have existed if the holders of the Series C Equity Shares, the Series C-1
Equity Shares and the Series C-2 Equity Shares were able to elect the full
number of directors then permitted to be elected by them under this Section
11 and the directors otherwise elected numbered only ten. Whenever, as the
case may be, (i) all arrears in dividends on the Series C Equity Shares,
the Series C-1 Equity Shares and the Series C-2 Equity Shares then
outstanding shall have been paid and the Corporation has paid dividends
thereon for two consecutive quarters and (ii) the Corporation has paid
dividends on the Common Shares in an amount per share at least equal to
$0.32 (subject to adjustment consistent with any adjustment of the
Conversion Price pursuant to Section 6(a) of this Article) for two
consecutive quarters, then the right of the holders of the Series C Equity
Shares, the Series C-1 Equity Shares and the Series C-2 Equity Shares to
elect such additional directors shall cease (but subject always to the same
provision for the vesting of such voting rights in the case of any similar
future arrearage in quarterly dividends), and the terms of once of all
persons elected as Directors by the holders of the Series C Equity Shares,
the Series C-i Equity Shares and the Series C-2 Equity Shares shall
forthwith terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of Series C Equity Shares, the Series C-1 Equity
Shares and the Series C-2 Equity Shares, the Secretary of the Corporation
may, and upon the written request of any holders of 5% of the outstanding
Series C Equity Shares, the Series C-1 Equity Shares and the Series C-2
Equity Shares (ad dressed to the Secretary at the principal office of the
Corporation) shall, call a special meeting of the holders of the Series C
Equity Shares, the Series C-i Equity Shares and the Series C-2 Equity
Shares for the election of the Directors to be elected by them as herein
provided, such call to be made by notice similar to that provided in the
Bylaws of the Corporation for a special meeting of the shareholders or as
required by law. If any such special meeting required to be called as above
provided shall not be called by the Secretary within 20 days after receipt
of any such request, then any holder of Series C Equity Shares, Series C-1
Equity Shares or the Series C-2 Equity Shares may call such meeting, upon
the notice above provided, and for that purpose shall have access to the
records of the Corporation. The directors elected at any such special
meeting shall hold office until the next annual meeting of the shareholders
or special meeting held in lieu thereof if such office shall not have
previously terminated as above provided. If any vacancy shall occur among
the Directors elected by the holders of the Series C Equity Shares, the C-1
Equity Shares and the Series C-2 Equity Shares a successor shall be elected
by the Board of Directors, upon the nomination of the then-remaining
Director elected by the holders of the Series C Equity Shares, the Series
C-1 Equity Shares and the Series C-2 Equity Shares or the successor of such
remaining Director (or, if there are then no such Directors or Director
elected by the holders of Series C Equity Shares, the Series C-1 Equity
Shares and the Series C-2 Equity Shares, such Director shall be elected by
the holders of the Series C Equity Shares, the Series C-1 Equity Shares and
the Series C-2 Equity Shares as described above), to serve until the next
annual meeting of the shareholders or special meeting held in place thereof
if the term of such director shall not have previously terminated as
provided above.
(b) Notwithstanding anything to the contrary contained in this
Section 11, if the Corporation shall fail to obtain the required
shareholder approval and amend its Certificate of Designation for the
Series C Preferred Shares so that the holders of Series C Equity Shares
vote together as a single class with the holders of Series C-1 Equity
Shares and the Series C-2 Equity Shares with respect to the election of
directors for which such holders are entitled to vote, as provided above,
then the voting rights of the holders of Series C-2 Preferred Shares shall
automatically be altered to be as follows:
if and whenever (i) for two consecutive quarterly Dividend
Periods the Corporation fails to pay dividends on the Series C-2
Equity Shares (which shall, with respect to any such quarterly
dividend, mean that any such dividend has not been paid in full),
then the number of directors then constituting the Board of
Directors shall be increased by two and the holders of Series C-1
Equity Shares and the Series C-2 Equity Shares, voting together
as a single class, shall be entitled to elect the two additional
directors to serve on the Board of Directors or (ii) for two
consecutive quarterly Dividend Periods the Corporation fails to
pay dividends on the Common Shares in an amount per share at
least equal to $0.32 (subject to adjustment consistent with any
adjustment of the Conversion Price pursuant to Section 6(a) of
this Article), then the number of directors then constituting the
Board of Directors shall be increased by one and the holders of
Series C-1 Equity Shares and the Series C-2 Equity Shares, voting
together as a single class, shall be entitled to elect the one
additional director to serve on the Board of Directors, in either
case, at any annual meeting of shareholders or special meeting
held in place thereof, or at a special meeting of the holders of
the Series C-1 Equity Shares and the Series C-2 Equity Shares
called as hereinafter provided; provided, however, that except as
set forth below, the holders of Series C-1 Equity Shares and the
Series C-2 Equity Shares shall not have the right to elect more
than two directors. If, other than through the operation of this
Section 11 or pursuant to the provisions of the Articles of
Incorporation relating to the Corporation's Series A and B
Preferred Shares (but only with respect to one director elected
by the holders of the Series A and B Preferred Shares), the Board
of Directors shall be increased at any time to more than ten
directors, then, upon the occurrence or continuance of any of the
events described in this Section 11, the Board of Directors shall
be increased by such number of additional directors, and the
holders of Series C-1 Equity Shares and the Series C-2 Equity
Shares, voting together as a single class, shall be entitled to
elect such number of additional directors, as shall be necessary
to maintain the ratio of directors elected by the holders of the
Series C-1 Shares and the Series C-2 Equity Shares to the
directors otherwise elected, as nearly as possible (rounding to
the next larger whole number), equal to the ratio that would have
existed if the holders of the Series C-1 Equity Shares and the
Series C-2 Equity Shares were able to elect the full number of
directors then permitted to be elected by them under this Section
11 and the directors otherwise elected numbered only ten.
Whenever, as the case may be, (i) all arrears in dividends on the
Series C-1 Equity Shares and the Series C-2 Equity Shares then
outstanding shall have been paid and the Corporation has paid
dividends thereon for two consecutive quarters and (ii) the
Corporation has paid dividends on the Common Shares in an amount
per share at least equal to $0.32 (subject to adjustment
consistent with any adjustment of the Conversion Price pursuant
to Section 6(a) of this Article) for two consecutive quarters,
then the right of the holders of the Series C-1 Equity Shares and
the Series C-2 Equity Shares to elect such additional directors
shall cease (but subject always to the same provision for the
vesting of such voting rights in the case of any similar future
arrearage in quarterly dividends), and the terms of office of all
persons elected as Directors by the holders of the Series C-1
Equity Shares and the Series C-2 Equity Shares shall forthwith
terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall
have been so vested in the holders of Series C-1 Equity Shares
and the Series C-2 Equity Shares, the Secretary of the
Corporation may, and upon the written request of any holders of
5% of the outstanding Series C-1 Equity Shares and the Series C-2
Equity Shares (addressed to the Secretary at the principal office
of the Corporation) shall, call a special meeting of the holders
of the Series C-1 Equity Shares and the Series C-2 Equity Shares
for the election of the Directors to be elected by them as herein
provided, such call to be made by notice similar to that provided
in the Bylaws of the Corporation for a special meeting of the
shareholders or as required by law. If any such special meeting
required to be called as above provided shall not be called by
the Secretary within 20 days after receipt of any such request,
then any holder of Series C-1 Equity Shares or Series C-2 Equity
Shares may call such meeting, upon the notice above provided, and
for that purpose shall have access to the records of the
Corporation. The directors elected at any such special meeting
shall hold office until the next annual meeting of the
shareholders or special meeting held in lieu thereof if such
office shall not have previously terminated as above provided. If
any vacancy shall occur among the Directors elected by the
holders of the Series C-1 Equity Shares and the Series C-2 Equity
Shares, a successor shall be elected by the Board of Directors,
upon the nomination of the then-remaining Director elected by
the holders of the Series C-1 Equity Shares and the Series C-2
Equity Shares or the successor of such remaining Director (or, if
there are then no such Directors or Director elected by the
holders of the Series C-1 Equity Shares and the Series C-2 Equity
Shares, such Director shall be elected by the holders of the
Series C-1 Equity Shares and the Series C-2 Equity Shares as
described above), to serve until the next annual meeting of the
shareholders or special meeting held in place thereof if the term
of such director shall not have previously terminated as provided
above.
(c) The holders of the Series C-2 Equity Shares, voting together
with the holders of the Common Shares as a single class, shall be entitled
to vote on any matter involving any transaction between the Corporation and
any Affiliate of the Corporation which is brought to a vote of the holders
of the Common Shares (other than any vote on the conversion of the Series D
Preferred Shares or the Series D-1 Preferred Shares into Common Shares). In
any matter for which a holder of Series C-2 Equity Shares is permitted to
vote under this Section 11(c), such holder shall have the number of votes
equal to the number of Common Shares into which the Series C-2 Equity
Shares of such holder is convertible on the record date for such vote.
(d) So long as any Series C-2 Equity Shares are outstanding, in
addition to any other vote or consent of shareholders required by law or by
the Articles, the affirmative vote of the holders of a majority of the
Series C-2 Equity Shares, voting together as a class, given in person or by
proxy, either in writing without a meeting or by vote at any meeting called
for the purpose, shall be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or this Certificate of
Designation that materially and adversely affects the voting powers,
rights or preferences of the holders of the Series C-2 Equity shares;
or
(ii) Any merger or consolidation of the Corporation and
another entity in which the Corporation is not the surviving
corporation and each holder of Series C-2 Equity Shares does not
receive shares of the surviving corporation with substantially similar
rights, preferences and powers in the surviving corporation as the
Series C-2 Equity Shares have with respect to the Corporation (except
for changes that do not materially and adversely affect the holders of
the Series C-2 Preferred Stock).
provided, however, that no such vote of the holders of Series C-2 Equity Shares
shall be required if, at or prior to the time when such amendment,
alteration or repeal is to take effect, or when the issuance of any such
prior shares or convertible securities to be made, as the case may be,
provision is made for the redemption of all Series C-2 Equity Shares at the
time outstanding to the extent such redemption is authorized by Section 5
of this Certificate of Designation.
(iii) For purposes of the foregoing provisions of this Section
11(d), each share of Series C-2 Equity Shares shall have one (1) vote
per share, except that when any other series of Equity Shares shall
have the right to vote with the Series C-2 Equity Shares as a single
class on any matter, then the Series C-2 Equity Shares and such other
series shall have with respect to such matters one (1) vote per
$180.00 (or less pursuant to Section 4(a)) of stated liquidation
preference. Except as otherwise required by applicable law or as set
forth herein, the Series C-2 Equity Shares shall not have any
relative, participating, optional or other special voting rights and
powers other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any corporate action.
Section 12. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any Series C-2 Preferred Shares as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 13. Title. This resolution shall be known and may be referred
to as "A Resolution of the Board of Directors of Westfield America, Inc.
Designating Series C-2 Preferred Shares and Fixing Preferences and Rights
Thereof."
FURTHER RESOLVED, that the appropriate officers of the Corporation are
hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President and attested by its
Secretary this 18th day of December, 1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter Lowy
--------------------------
Its: Co-President
Attest:
/s/ Irv Hepner
--------------------------
Its: Secretary
CORPORATION ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS.
COUNTY OF LOS ANGELES )
On the 18th day of December 1998, before me personally appeared
Peter Lowy known to me or proved to me on the basis of satisfactory
evidence to be the Co-President of Westfield America, Inc. , the
corporation that executed the foregoing instrument, who, being duly sworn,
acknowledged that he resides at Los Angeles; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by the order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
/s/ Leesa A. Ashley
--------------------------------------
Notary Public
My commission expires: April 30, 2001
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES D-1 PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the "Corporation"),
hereby certify as follows:
FIRST: that under the provisions of Article Fourth of the
Restated Articles of Incorporation, as amended, of the Corporation, the
total number of shares of all classes of capital stock which the
Corporation may issue is 410,000,200 shares, of which (i) 200 shares shall
be non-voting senior preferred stock, par value $1.00 per share (the
"Senior Preferred Shares"), (ii) 5,000,000 shares shall be Preferred
Shares, with par value of $1.00 per share (the "Preferred Shares"), 940,000
of which have been designated as Series A Preferred Shares, with a
liquidation value of $100 per share (the "Series A Preferred Shares") and
400,000 of which have been designated as Series B Preferred Shares, with a
liquidation value of $100 per share (the "Series B Preferred Shares"),
416,667 of which have been designated as Series C Preferred Shares, with a
liquidation value of $180 per share (the "Series C Preferred Shares") and
694,445 of which have been designated as Series D Preferred Shares, with a
liquidation value of $180 per share (the "Series D Preferred Shares") (iii)
200,000,000 shall be shares of common stock, par value $.01 per share (the
"Common Shares"), (iv) 205,000,000 will be shares of excess stock, par
value $.01 ("Excess Shares"). Any Excess Shares which are issued with
respect to Common Stock shall be "Excess Common Shares" and, together with
the Common Shares, the "Common Equity Shares" and any Excess Shares which
are issued with respect to Preferred Shares shall be "Excess Preferred
Shares", and, together with the Preferred Shares, the "Preferred Equity
Shares" and under said Articles of Incorporation (as amended, the "Articles
of Incorporation"), the shares of Preferred Stock are authorized to be
issued by the Board of Directors and the Board of Directors is expressly
authorized to determine in the Resolution, the designation, powers, rights,
preferences and qualifications, limitations or restrictions, not fixed and
determined by the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant
to the authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on December 14, 1998 the following resolution creating a
series of Preferred Stock designated as "Series D-1 Preferred Shares,"
which resolution has not been amended, modified, rescinded or revoked and
is in full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES D-1 PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to
and vested in the Board of Directors of Westfield America, Inc.,
hereinafter called the "Corporation," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series D-1 Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class
of preferred stock shall be designated as Series D-1 Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 138,889 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "Series D-1 Preferred Shares." Each Series D-1 Preferred Share
shall be identical in all respects to each other Series D Preferred Share.
Each Excess Series D-1 Preferred Share shall be identical in all respects
to each other Excess Series D-1 Preferred Share, and except as otherwise
provided herein, shall be identical in all respects to each Series D-1
Preferred Share (the Series D-1 Preferred Shares together with the Excess
Series D-1 Preferred Shares being hereinafter referred to as the "Series
D-1 Equity Shares").
Section 2. Definitions. For purposes of the Series D-1 Preferred
Shares, the following terms shall have the meanings indicated:
"Affiliate" of, or Person "Affiliated" with, a specified Person,
shall mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate shall
include, without limitation, Westfield Holdings Limited ("WHL"), Westfield
America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy (such
individuals being the "Lowy Family").
"Base Rate" shall mean an annual dividend per Series D-1 Equity
Share equal to 8.5% of the Liquidation Preference per Series D-1 Equity
Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series D-1
Preferred Shares.
"Business Day "shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"Code "shall mean the Internal Revenue Code of 1986, as amended.
"Consolidated EBITDA" for any quarter shall mean the consolidated
net income of the Corporation (before extraordinary income or gains and
less equity in income of unconsolidated real estate partnerships),
calculated in a manner consistent with the Corporation's financial
statements filed with the Securities and Exchange Commission, increased by
the sum of the following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated
real estate partnerships calculated in a manner consistent
with this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to
extraordinary. unusual or non-recurring gains or losses except
to the extent that such gains were not included in
Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP
for such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs
(only to the extent that such amounts have not been previously
included in the amount of Consolidated EBITDA pursuant to
clause (c) above), goodwill, other intangibles and management
fees, and
f. any other non-cash charges, to the extent deducted from
consolidated net income (including, but not limited to, income
allocated to minority interests).
"Consolidated Fixed Charges" for any quarter shall mean the sum
of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP
for such quarter including, without duplication, financing
fees and amortization of deferred financing fees or
amortization of original issue discount),
c. dividend and distribution requirements with respect to
preferred stock (not including any portion of preferred stock
dividends the calculation of which is based on the dividend
paid in such quarter to the holders of common shares) whether
or not declared or paid,
d. regularly scheduled amortization of principal of debt during
such quarter (other than any balloon payments at maturity),
and
e. all ground rent payments.
"Constituent Person" shall have the meaning set forth in Section
6(e).
"Conversion Date" shall have the meaning set forth in Section
6(a).
"Conversion Price" shall mean the conversion price per Common
Equity Share for which the Series D-1 Equity Share is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"Current Market Price" of publicly traded Common Shares or any
other class of stock or other security of the Corporation or any other
issuer for any day shall mean the last reported sales price, regular way,
on such day, or, if no sale takes place on such day, the average of the
reported closing bid and asked prices on such day, regular way, in either
case as reported on the New York Stock Exchange ("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 ("NASDAQ") or,
if such security is not quoted on NASDAQ, the average of the closing bid
and asked prices on such day in the over-the-counter market as reported by
the National Association of Securities Dealers, Inc. (the "NASD") or, if
bid and asked prices for such security on such day shall not have been
reported through the NASD, 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 Board of Directors.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Period" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Series D-1 Equity Shares (other than the initial
Dividend Period, which shall commence on the Issue Date for such Series D-1
Equity Shares and end on and include the last day of the calendar quarter
immediately following such Issue Date, and other than the Dividend Period
during which any Series D-1 Equity Shares shall be redeemed pursuant to
Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series D-1
Equity Shares being redeemed or converted, as applicable).
"Expiration Time" shall have the meaning set forth in Section
6(d)(iv).
"Fair Market Value" shall mean the average of the daily Current
Market Prices of a Common Share on the five (5) consecutive Trading Days
selected by the Corporation commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and
the day before the "ex date" with respect to the issuance or distribution
requiring such computation. The term "ex date," when used with respect to
any issuance or distribution, means the first day on which the Common
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.
"Fixed Charge Coverage Violation" shall have the meaning set
forth in Section 3(a).
"Fully Junior Shares" shall mean the Common Shares and any other
class or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series D-1 Preferred Shares preference or
priority in both (i) the payment of dividends and (ii) the distribution of
assets on any liquidation, dissolution or winding up of the Corporation.
"Funds from Operations" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"Investor" shall mean Security Capital Preferred Growth
Incorporated and controlled affiliates thereof.
"Issue Date" shall mean the date on which Series D-1 Preferred
Stock is issued.
"Junior Shares" shall mean the Common Shares and any other class
or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series D-1 Preferred Shares have preference or
priority in the payment of dividends or in the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"Non-Electing Share" shall have the meaning set forth in Section
6(e).
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section
10(b).
"Person" shall mean any individual, firm, partnership,
corporation, limited liability company, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
"Purchased Shares" shall have the meaning set forth in Section
6(d)(iv).
"REIT Termination Event" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the
Corporation for any taxable year on which the Corporation
does not compute its income as a real estate investment
trust,
(ii) the approval by the shareholders of the Corporation of a
proposal for the Corporation to cease to qualify as a real
estate investment trust,
(iii) a determination by the Board of Directors of the
Corporation, based on the advice of counsel, that the
Corporation has ceased to qualify as a real estate
investment trust, or
(iv) a "determination" within the meaning of Section 1313(a) of
the Code that the Corporation has ceased to qualify as a
real estate investment trust.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Series D-1 Preferred Shares" shall have the meaning given such term
in Section 1of the Certificate of Designation.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series D-1 Preferred Shares as to the payment of
dividends are placed in a separate account of the Corporation or delivered
to a disbursing, paying or other similar agent, then "set apart for
payment" with respect to the Series D-1 Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Trading Day" shall mean any day on which the securities in
question are traded on the NYSE, or if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities
exchange on which such securities are listed or admitted, or if not listed
or admitted for trading on any national securities exchange, on NASDAQ, or
if such securities are not quoted on NASDAQ, in the securities market in
which the securities are traded.
"Transaction" shall have the meaning set forth in Section 6(e).
"Transfer Agent" shall mean the Corporation, or such other agent
or agents of the Corporation as may be designated by the Board of Directors
or their designee as the transfer agent, registrar and dividend disbursing
agent for Series D-1 Preferred Shares and notified to the holders of the
Series D-1 Preferred Stock.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles.
Section 3. Dividends. (a) Subject to the preferential rights of
the holders of any Senior Preferred Stock or Preferred Shares that rank
senior in the payment of dividends to the Series D-1 Equity Shares and
subject to paragraph (b) of this Section 3, the holders of Series D-1
Equity Shares shall be entitled to receive, when, as and if declared by the
Board of Directors, but only out of funds legally available for the payment
of dividends, cumulative preferential dividends payable in cash to
shareholders of record on the respective date, not exceeding 50 days
preceding such dividend payment date, fixed for the purpose by the Board of
Directors in advance of payment of each particular dividend in an amount
equal to the greater of (A) the Base Rate per share per annum and (B) an
amount per share equal to the Liquidation Preference of a Series D-1 Equity
Share (exclusive of accrued but unpaid dividends) divided by the Conversion
Price (the "Series D-1 Common Equivalent Factor") times the dollar amount
of cash dividends declared with respect to each Common Equity Share that
does not result in an adjustment to the Conversion Price pursuant to
subparagraph (d)(iii) of Section 6 (such product, the "Series D Common
Equivalent Amount") for the same annual period; provided, however, that if
as a result of the quarterly dividends paid in accordance with the
following sentence, the holders of Series D-1 Equity Shares shall have
received for any calendar year more dividends than such Series D-1 Equity
Shares shall be entitled under clauses (A) and (B) above (as adjusted
pursuant to the third and eighth sentences of this Section 3), the
dividends payable in respect of Series D-1 Equity Shares in subsequent
calendar years shall be reduced to the extent of such overpayment. Subject
to the proviso of the preceding sentence of this Section 3(a), the dividend
paid in respect of each quarterly period in each calendar year shall be
determined as follows (in each case, excluding any additional payment made
pursuant to the following sentence): (1) for the first quarter, the greater
of 25% of the Base Rate per share and the Series D-1 Common Equivalent
Amount for the same quarter; (2) for the second quarter, an amount such
that the aggregate amount to be received per Series D-1 Equity Share in
respect of the first two quarters of such calendar year shall be the
greater of 50% of the Base Rate per share and the Series D-1 Common
Equivalent Amount for the same two quarters; (3) for the third quarter, an
amount such that the aggregate amount to be received per Series D-1 Equity
Share in respect of the first three quarters of such calendar year shall be
the greater of 75% of the Base Rate per share and the Series D-1 Common
Equivalent Amount for the same three quarters; and (4) for the fourth
quarter, an amount such that the aggregate amount to be received per Series
D-1 Equity Share in respect of such calendar year shall be the amount
provided in the preceding sentence of this Section 3(a). Notwithstanding
the foregoing, for any quarter in which a Fixed Charge Coverage Violation
(as defined below) has occurred, the dividend payable per Series D-1 Equity
Share shall be 1.20 times the amount provided in the preceding sentence. A
"Fixed Charge Coverage Violation" shall occur for any quarter that the
ratio of the Corporation's Consolidated EBITDA to its Consolidated Fixed
Charges is below 1.40 to 1. The dividends shall begin to accrue as set
forth above and shall be fully cumulative from the first day of the
applicable Dividend Period, whether or not in any Dividend Period or
Periods there shall be funds of the Corporation legally available for the
payment of such dividends, and shall be payable quarterly, when, as and if
declared by the Board of Directors, in arrears on Dividend Payment Dates.
Accumulated but unpaid dividends for any past quarterly dividend periods
may be declared and paid at any time, without reference to any regularly
scheduled quarterly dividend payment date, to holders of record on such
date, not exceeding 50 days preceding such payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend. Any dividend payment made on Series D-1 Equity Shares shall first
be credited against the earliest accrued but unpaid dividend due with
respect to Series D-1 Equity Shares which remains payable. Beginning with
the quarter in which a REIT Termination Event occurs, all dividends payable
per Series D-1 Equity Share pursuant to this Section shall be multiplied by
2.5.
(b) The initial Dividend Period for the Series D-1 Equity Shares
will include a partial dividend for the period from the Issue Date until
the last day of the calendar quarter immediately following such Issue Date.
The amount of dividends payable for such initial period, or any other
period shorter than a full quarterly Dividend Period, on the Series D-1
Equity Shares shall be computed by dividing the number of days in such
period by 90 and multiplying the result by the Series D-1 Equity dividend
determined in accordance with Section 3(a). Holders of Series D-1 Equity
Shares shall not be entitled to any dividends, whether payable in cash,
property or shares, in excess of cumulative dividends, as herein provided,
on the Series D-1 Equity Shares. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments
on the Series D-1 Equity Shares which may be in arrears.
(c) So long as any Series D-1 Equity Shares remain outstanding,
no dividends, except as described in the immediately following sentence,
shall be declared or paid or set apart for payment on any class or series
of Parity Shares for any period unless full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series D-1 Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series D-1 Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series D-1 Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series D-1 Equity Shares remain outstanding,
no dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series D-1 Equity Shares
and any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series D-1 Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series D-1 Equity
Shares shall not be entitled to participate in any such dividends, whether
payable in cash, stock or otherwise.
(e) No distributions on Series D-1 Equity Shares shall be
declared by the Board of Directors or paid or set apart for payment by the
Corporation at such time as the terms and provisions of any agreement of
the Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption
or other acquisition of Shares or otherwise is permitted under Missouri
law, 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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the prior preferences and other rights
of any series of stock ranking senior to the Series D-1 Preferred Shares
upon liquidation, distribution or winding up of the Corporation, before any
payment or distribution of the assets of the Corporation (whether capital
or surplus) shall be made to or set apart for the holders of Junior Shares,
the holders of the Series D-1 Equity Shares shall be entitled to receive
One Hundred Eighty Dollars ($180.00) (the "Liquidation Preference") per
Series D-1 Equity Share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of
liquidation, dissolution or winding up of the affairs of the Corporation
(any such date, a "Series D-1 Liquidation Date") but such holders shall not
be entitled to any further payment; provided, that the dividend payable
with respect to the Dividend Period containing the Series D-1 Liquidation
Date shall be equal to the dividend determined pursuant to Section 3 above
for the preceding Dividend Period times a fraction equal to the actual
number of days elapsed from the end date of the calendar quarter most
recently completed to the relevant Series D-1 Liquidation Date over ninety
days. If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the Series D-1 Equity Shares shall be
insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other shares of any class or series of Parity
Shares, then such assets, or the proceeds thereof, shall be distributed
among the holders of Series D-1 Equity Shares and any such other Parity
Shares ratably in accordance with the respective amounts that would be
payable on such Series D-1 Equity Shares and any such other Parity Shares
if all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or
more corporations, real estate investment trusts or other entities, (ii) a
sale, lease or conveyance of all or substantially all of the Corporation's
property or business or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series
or class or classes of stock ranking on a parity with (including the Parity
Shares) or prior to the Series D-1 Equity Shares upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or winding up
of the Corporation, after payment shall have been made in full to the
holders of the Series D-1 Equity Shares, as provided in this Section 4, the
holders of Series D-1 Equity Shares shall have no other claim to the
remaining assets of the Corporation and any other series or class or
classes of Junior Shares shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series
D-1 Equity Shares shall not be entitled to share therein.
Section 5. Redemption at the Option of the Corporation. (a) The
Series D-1 Equity Shares shall not be redeemable by the Corporation prior
to August 12, 2008. On and after August 12, 2008, the Corporation, at its
option, may redeem the Series D-1 Equity Shares, in whole at any time or
from time to time in part, in minimum increments of $10.0 million of
aggregate Liquidation Preference of such shares, out of funds legally
available therefor at a redemption price payable in cash equal to 100% of
the Liquidation Preference per Series D-1 Equity Share (plus all
accumulated, accrued and unpaid dividends as provided in paragraph (d)
below).
(b) In the event that WHL and its subsidiaries and the trustee of
Westfield America Trust on behalf of Westfield America Trust do not vote to
approve the conversion of the Series D-1 Equity Shares into Common Equity
Shares at the Corporation's 1999 Annual Shareholder Meeting or at any other
meeting of the Corporation's shareholders at which such proposal is raised,
the Corporation shall have the right to redeem the Series D-1 Equity
Shares, in whole or in part, out of funds legally available therefor at a
redemption price payable in cash equal to 100% of the Liquidation
Preference per Series D-1 Equity Share (plus all accumulated, accrued and
unpaid dividends as provided in paragraph (c) below).
(c) Upon any redemption of Series D-1 Equity Shares pursuant to
this Section 5, the Corporation shall pay all accrued and unpaid dividends,
if any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series D-1 Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series D-1 Equity Shares called for redemption.
(d) If full cumulative dividends on the Series D-1 Equity Shares
and any other class or series of Parity Shares of the Corporation have not
been declared and paid or declared and set apart for payment, the Series
D-1 Equity Shares may not be redeemed under this Section 5 in part and may
not be redeemed unless the Series D Equity Shares are also redeemed in
whole and the Corporation may not purchase or acquire Series D Equity
Shares or Series D-1 Equity Shares, otherwise than pursuant to a purchase
or exchange offer made on the same terms to all holders of Series D Equity
Shares and Series D-1 Equity Shares.
(e) Notice of the redemption of any Series D-1 Equity Shares
under this Section 5 shall be mailed by first-class mail or recognized
overnight courier to each holder of record of Series D-1 Equity Shares to
be redeemed at the address of each such holder as shown on the
Corporation's records, not less than 30 nor more than 90 days prior to the
Call Date. Neither the failure to mail any notice required by this
paragraph (e), nor any defect therein or in the mailing thereof, to any
particular holder, shall affect the sufficiency of the notice or the
validity of the proceedings for redemption with respect to the other
holders. Each such mailed notice shall state, as appropriate: (1) the Call
Date; (2) the number of Series D-1 Equity Shares to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder; (3) the redemption
price; (4) the place or places at which certificates for such shares are to
be surrendered; (5) the then-current Conversion Price; and (6) that
dividends on the shares to be redeemed shall cease to accrue on such Call
Date except as otherwise provided herein. Notice having been mailed as
aforesaid, from and after the Call Date (unless the Corporation shall fail
to make available an amount of cash necessary to effect such redemption),
(i) except as otherwise provided herein, dividends on the Series D-1 Equity
Shares so called for redemption shall cease to accrue, (ii) such shares
shall no longer be deemed to be outstanding, and (iii) all rights of the
holders thereof as holders of Series D-1 Equity Shares shall cease (except
the rights to receive the cash payable upon such redemption, without
interest thereon, upon surrender and endorsement of their certificates if
so required and to receive any dividends payable thereon). The
Corporation's obligation to provide cash in accordance with the preceding
sentence shall be deemed fulfilled if, on or before the Call Date, the
Corporation shall deposit with a bank or trust company that has an office
in the Borough of Manhattan, City of New York, and that has capital and
surplus of at least $150,000,000, necessary for such redemption, in trust,
with irrevocable instructions that such cash be applied to the redemption
of the Series D-1 Equity Shares so called for redemption. Notwithstanding
the foregoing the Corporation shall, in the first instance, send the money
to any holder of Series D-1 Equity Shares that has notified the Corporation
in writing of the location of delivery of funds. No interest shall accrue
for the benefit of the holders of Series D-1 Equity Shares to be redeemed
on any cash so set aside by the Corporation. Subject to applicable escheat
laws, any such cash unclaimed at the end of two years from the Call Date
shall revert to the general funds of the Corporation, after which reversion
the holders of such shares so called for redemption shall look only to the
general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance with
such notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series D-1 Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series D-1 Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series D-1 Equity Shares evidenced by any certificate are redeemed, then
new certificates evidencing the unredeemed shares shall be issued without
cost to the holder thereof.
Section 6. Conversion. The Series D-1 Equity Shares shall not be
convertible into Common Equity Shares prior to (i) a vote of the
shareholders of the Corporation approving the conversion of Series D-1
Equity Shares into Common Equity Shares or (ii) the transfer of the Series
D-1 Equity Shares to an individual to whom the Corporation is permitted to
issue Common Equity Shares without shareholder approval, in accordance with
the rules of the NYSE. Subject to the foregoing, holders of Series D-1
Equity Shares shall have the right to convert all or a portion of such
shares into Common Equity Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series D-1 Preferred Shares or Excess Series D-1
Preferred Shares shall have the right, at his or her option, at any time
(such time being, the "Conversion Date"), to convert all or any portion of
such shares into the number of fully paid and non-assessable Common Shares
or Excess Common Shares, respectively, obtained by dividing the aggregate
Liquidation Preference of such shares (inclusive of accrued but unpaid
dividends) by the Conversion Price (as in effect at the time and on the
date provided for in the last paragraph of paragraph (b) of this Section 6)
by surrendering such shares to be converted, such surrender to be made in
the manner provided in paragraph (b) of this Section 6; provided, however,
that the right to convert shares called for redemption pursuant to Section
5 shall terminate at the close of business on the fifth Business Day prior
to the Call Date fixed for such redemption, unless the Corporation shall
default in making payment of the cash payable upon such redemption under
Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series D-1 Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series D-1 Equity Shares. Unless the shares issuable
on conversion are to be issued in the same name as the name in which such
Series D-1 Equity Shares are registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series D-1 Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series D-1
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series D-1 Equity Shares being entitled to
such dividend on the Dividend Payment Date) must be accompanied by payment
of an amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series D-1 Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series
D-1 Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series D-1 Equity
Shares for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Equity Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates
for Series D-1 Equity Shares as aforesaid, the Corporation shall issue and
shall deliver at such office to such holder, or on his or her written
order, a certificate or certificates for the number of full Common Equity
Shares issuable upon the conversion of such shares in accordance with
provisions of this Section 6, and any fractional interest in respect of a
Common Equity Share arising upon such conversion shall be settled as
provided in paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series D-1 Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity 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 on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of
Common Equity Shares shall be issued upon conversion of the Series D-1
Equity Shares. Instead of any fractional interest in a Common Equity Share
that would otherwise be deliverable upon the conversion of a Series D-1
Equity Share, the Corporation shall pay to the holder of such share an
amount in cash based upon the Current Market Price of the Common Shares on
the Trading Day immediately preceding the date of conversion. If more than
one share shall be surrendered for conversion at one time by the same
holder, the number of full Common Equity Shares issuable upon conversion
thereof shall be computed on the basis of the aggregate number of Series
D-1 Equity Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in Common
Equity Shares, (B) subdivide its outstanding Common Equity Shares
into a greater number of shares, (C) combine its outstanding Common
Equity Shares into a smaller number of shares or (D) issue any shares
of stock by reclassification of its Common Equity Shares, the
Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders
entitled to receive such dividend or distribution or at the opening
of business on the Business Day next following the day on which such
subdivision, combination or reclassification becomes effective, as
the case may be, shall be adjusted so that the holder of any Series
D-1 Equity Shares thereafter surrendered for conversion shall be
entitled to receive the number of Common Equity Shares that such
holder would have owned or have been entitled to receive after the
happening of any of the events described above as if such Series D-1
Equity Shares had been converted immediately prior to the record date
in the case of a dividend or distribution or the effective date in
the case of a subdivision, combination or reclassification. An
adjustment made pursuant to this subparagraph (i) shall become
effective immediately after the opening of business on the Business
Day next following the record date (except as provided in paragraph
(h) below) in the case of a dividend or distribution and shall become
effective immediately after the opening of business on the Business
Day next following the effective date in the case of a subdivision,
combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to all holders of Common Equity Shares
entitling them (for a period expiring within 45 days after the record
date mentioned below) to subscribe for or purchase Common Equity
Shares at a price per share less than 95% (100% if a stand-by
underwriter is used and charges the Corporation a commission) of the
Fair Market Value per Common Share on the record date for the
determination of shareholders entitled to receive such rights,
options or warrants, then the Conversion Price in effect at the
opening of business on the Business Day next following such record
date shall be adjusted to equal the price determined by multiplying
(A) the Conversion Price in effect immediately prior to the opening
of business on the Business Day next following the date fixed for
such determination by (B) a fraction, the numerator of which shall be
the sum of (x) the number of Common Equity Shares outstanding on the
close of business on the date fixed for such determination and (y)
the number of shares that the aggregate proceeds to the Corporation
from the exercise of such rights, options or warrants for Common
Equity Shares would purchase at 95% of such Fair Market Value (or
100% in the case of a stand-by underwriting), and the denominator of
which shall be the sum of (x) the number of Common Equity Shares
outstanding on the close of business on the date fixed for such
determination and (y) the number of additional Common Equity 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 paragraph (h) below). In determining whether
any rights, options or warrants entitle the holders of Common Equity
Shares to subscribe for or purchase Common Equity Shares at less than
95% of such Fair Market Value (or 100% in the case of a stand-by
underwriting), there shall be taken into account any consideration
received by the Corporation upon issuance and upon exercise of such
rights, options or warrants, the value of such consideration, if
other than cash, to be determined by the Board of Directors whose
determination shall be conclusive. To the extent that Common Equity
Shares are not delivered pursuant to such rights, options or
warrants, upon the expiration or termination of such rights, options
or warrants, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the adjustments
made upon the issuance of such rights, options or warrants be made on
the basis of delivery of only the number of Common Equity Shares
actually delivered. In the event that such rights, options or
warrants are not so issued, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such date fixed for the determination of stockholders entitled to
receive such rights, options or warrants had not been fixed.
(iii) If the Corporation shall distribute to all holders of
its Common Equity Shares any securities of the Corporation (other
than Common Equity Shares) or evidence of its indebtedness or assets
(excluding cumulative cash dividends or distributions paid with
respect to the Common Equity Shares after December 31, 1997) which
are not in excess of the following: the sum of (A) the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as
determined by the Board of Directors, after December 31, 1997, minus
(C) the cumulative amount of dividends accrued or paid in respect of
the Series D-1 Equity Shares or any other class or series of
preferred stock of the Corporation after the Issue Date) or rights,
options or warrants to subscribe for or purchase any of its
securities (excluding those rights, options and warrants issued to
all holders of Common Equity Shares entitling them for a period
expiring within 45 days after the record date referred to in
subparagraph (ii) above to subscribe for or purchase Common Equity
Shares, which rights and warrants are referred to in and treated
under subparagraph (ii) above) (any of the foregoing being
hereinafter in this subparagraph (iii) collectively called the
"Securities" and individually a "Security"), then in each such case
the Conversion Price shall be adjusted so that it shall equal the
price determined by multiplying (x) the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of shareholders entitled to receive such distribution
by (y) a fraction, the numerator of which shall be the Fair Market
Value per Common Share on the record date mentioned below less the
then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) of the portion of the
Securities or assets or evidences of indebtedness so distributed or
of such rights, options or warrants applicable to one Common Equity
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 on the date of distribution retroactive to the
opening of business on the Business Day next following (except as
provided in paragraph (h) below) the record date for the
determination of shareholders entitled to receive such distribution.
For the purposes of this subparagraph (iii), the distribution of a
Security, which is distributed not only to the holders of the Common
Equity Shares on the date fixed for the determination of shareholders
entitled to such distribution of such Security, but also is
distributed with each Common Equity Share delivered to a Person
converting a share of Series D-1 Equity Shares after such
determination date, shall not require an adjustment of the Conversion
Price pursuant to this subparagraph (iii); provided that on the date,
if any, on which a Person converting a Series D-1 Equity Share would
no longer be entitled to receive such Security with a Common Equity
Share (other than as a result of the termination of all such
Securities), a distribution of such Securities shall be deemed to
have occurred and the Conversion Price shall be adjusted as provided
in this subparagraph (iii) (and such day shall be deemed to be "the
date fixed for the determination of the shareholders entitled to
receive such distribution" and "the record date" within the meaning
of the two preceding sentences). If any dividend or distribution of
the type described in this paragraph (iii) is declared but not so
paid or made, the Conversion Price shall again be adjusted to the
Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
Rights or warrants distributed by the Corporation to all
holders of Common Equity Shares entitling the holders thereof to
subscribe for or purchase shares of the Corporation's capital stock
(either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such shares
of Common Equity Shares; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of Common Equity Shares, shall
be deemed not to have been distributed for purposes of this
subparagraph (iii) (and no adjustment to the Conversion Price under
this subparagraph (iii) will be required) until the occurrence of the
earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant
shall become exercisable to purchase different securities, evidences
of indebtedness or other assets or entitle the holder to purchase a
different number or amount of the foregoing or to purchase any of the
foregoing at a different purchase price, then the occurrence of each
such event shall be deemed to be the date of issuance and record date
with respect to a new right or warrant (and a termination or
expiration of the existing right or warrant without exercise by the
holder thereof to the extent not exercised). In addition, in the
event of any distribution (or deemed distribution) of rights or
warrants, or any Trigger Event or other event (of the type described
in the preceding sentence) with respect thereto, that resulted in an
adjustment to the Conversion Price under this subparagraph (iii), (1)
in the case of any such rights or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Conversion Price shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as
the case may be, as though it were a cash distribution (but not a
distribution paid exclusively in cash), equal to the per share
redemption or repurchase price received by a holder of Common Equity
Shares with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common
Equity Shares as of the date of such redemption or repurchase, and
(2) in the case of such rights or warrants all of which shall have
expired or been terminated without exercise, the Conversion Price
shall be readjusted as if such rights and warrants had never been
issued.
(iv) In case a tender or exchange offer (which term shall
not include open market repurchases by the Corporation) made by the
Corporation or any subsidiary or controlled Affiliate of the
Corporation for all or any portion of the Common Equity Shares shall
expire and such tender or exchange offer shall require the payment by
the Corporation or such subsidiary or controlled Affiliate of
consideration per Common Equity Share having a fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of
the Board of Directors), at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange
offer, that exceeds the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph, by a fraction of which the numerator shall be the
number of Common Equity Shares outstanding (including any tendered or
exchanged shares) at the Expiration Time, multiplied by the Current
Market Price per Common Share on the Trading Day next succeeding the
Expiration Time, and the denominator shall be the sum of (A) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based upon the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration
Time (the shares deemed so accepted, up to any maximum, being
referred to as the "Purchased Shares") and (B) the product of the
number of Common Equity Shares outstanding (less any Purchased
Shares) at the Expiration Time and the Current Market Price per
Common Share on the Trading Day next succeeding the Expiration Time,
such reduction to become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event
the Corporation or any subsidiary or controlled Affiliate is
obligated to purchase shares pursuant to any such tender offer, but
the Corporation or such subsidiary or controlled Affiliate is
permanently prevented by applicable law from effecting any such
purchases, or all such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would then
be in effect if such tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; provided, however, that any
adjustments that by reason of this subparagraph (v) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment until made; and provided, further, that any
adjustment shall be required and made in accordance with the
provisions of this Section 6 (other than this subparagraph (v)) 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 6, the
Corporation shall not be required to make any adjustment of the
Conversion Price for the issuance of any Common Equity Shares
pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Corporation and the investment
of additional optional amounts in Common Equity Shares under such
plan. All calculations under this Section 6 shall be made to the
nearest cent (with $.005 being rounded upward) or to the nearest
one-hundredth of a share (with .005 of a share being rounded upward),
as the case may be. Anything in this paragraph (d) to the contrary
notwithstanding, the Corporation shall be entitled, to the extent
permitted by law, to make such reductions in the Conversion Price, in
addition to those required by this paragraph (d), as it in its
discretion shall determine to be advisable in order that any share
dividends, subdivision of shares, reclassification or combination of
shares, distribution of rights or warrants to purchase shares or
securities, or distribution of other assets (other than cash
dividends) hereafter made by the Corporation to its shareholders
shall not be taxable. To the extent permitted by applicable law, the
Corporation from time to time may reduce the Conversion Price by any
amount for any period of time if the period is at least 20 days, the
reduction is irrevocable during the period and the Board of Directors
shall have made a determination that such reduction would be in the
best interests of the Corporation, which determination shall be
conclusive. Whenever the Conversion Price is reduced pursuant to the
preceding sentence, the Corporation shall mail to the holder of each
Series D-1 Equity Share at his or her last address appearing on the
share register a notice of reduction prior to the date the reduced
Conversion Price takes effect and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(e) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share
exchange, self tender offer for 40% or more of its Common Equity Shares,
sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Equity Shares and excluding any transaction
as to which subparagraph (d)(i) of this Section 6 applies) (each of the
foregoing being referred to herein as a "Transaction"), in each case as a
result of which all or substantially all of the Common Equity Shares are
converted into the right to receive different securities or other property
(including cash or any combination thereof), each Series D-1 Equity Share
which is not redeemed or converted into the right to receive different
securities or other property prior to such Transaction shall thereafter be
convertible, in lieu of Common Equity Shares into the kind and amount of
different securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder
of that number of Common Equity Shares into which one Series D-1 Equity
Share was convertible immediately prior to such Transaction, assuming such
holder of Common Equity Shares (i) is not a Person with which the
Corporation consolidated or into which the Corporation merged or which
merged into the Corporation or to which such sale or transfer was made, as
the case may be ("Constituent Person"), or an Affiliate of a Constituent
Person and (ii) failed to exercise his rights of election, if any, as to
the kind or amount of shares, securities and other property (including
cash) receivable upon such Transaction (provided that if the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction is not the same for each Common Share held immediately
prior to such Transaction by other than a Constituent Person or an
Affiliate thereof and in respect of which such rights of election shall not
have been exercised ("Non-Electing Share"), then for the purpose of this
paragraph (e) the kind and amount of shares, securities and other property
(including cash) receivable upon such Transaction by each Non-Electing
Share shall be deemed to be the kind and amount so receivable per share by
holders of a plurality of the Non-Electing Shares). The Corporation shall
not be a party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this paragraph (e), and it shall not
consent or agree to the occurrence of any Transaction until the Corporation
has entered into an agreement with the successor or purchasing entity, as
the case may be, for the benefit of the holders of the Series D-1 Equity
Shares that will contain provisions enabling the holders of the Series D-1
Equity Shares that remain outstanding after such Transaction to convert
into the consideration received by holders of Common Equity Shares at the
Conversion Price in effect immediately prior to such Transaction. The
provisions of this paragraph (e) shall similarly apply to successive
Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends
or distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus the cumulative amount of Funds from Operations, as determined by
the Board of Directors, after December 31, 1997, minus the cumulative
amount of dividends accrued or paid in respect of the Series D-1
Equity Shares or any other class or series of preferred stock of the
Corporation after the Issue Date); or
(ii) the Corporation shall authorize the granting to all
holders of Common Equity Shares of rights, options or warrants to
subscribe for or purchase any shares of any class or any other
rights, options or warrants; or
(iii) there shall be any reclassification of the Common
Equity Shares (other than an event to which subparagraph (d)(i) of
this Section 6 applies) or any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation
is the surviving entity) and for which approval of any shareholders
of the Corporation is required, or a statutory share exchange, or a
self tender offer by the Corporation 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 Corporation as an entirety; or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;f
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series D-1 Equity Shares at
their addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options 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 Equity Shares of record shall be entitled
to exchange their Common Equity 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 6.
(g) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series
D-1 Equity Shares at such holder's last address as shown on the records of
the Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides
that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of
such event (A) issuing to the holder of any share of Series D-1 Equity
Shares converted after such record date and before the occurrence of such
event the additional Common Equity Shares issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Equity Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case
of issuance of any stock of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth
in this Section 6. If any action or transaction would require adjustment of
the Conversion Price pursuant to both paragraph (d) and paragraph (e) of
this Section 6, only one adjustment shall be made and such adjustment shall
be the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series D-1 Equity Shares, the
Conversion Price for the Series D-1 Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Equity Shares, for the purpose of
effecting conversion of the Series D-1 Equity Shares, the full number of
Common Equity Shares deliverable upon the conversion of all outstanding
Series D-1 Equity Shares not theretofore converted. For purposes of this
paragraph (k), the number of Common Shares that shall be deliverable upon
the conversion of all outstanding Series D-1 Preferred Shares shall be
computed as if at the time of computation all such outstanding shares were
held by a single holder.
Any Common Equity Shares issued upon conversion of the Series D-1
Equity 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 Equity Shares
deliverable upon conversion of the Series D-1 Equity Shares, the
Corporation will take any action that, in the opinion of its counsel, may
be necessary in order that the Corporation may validly and legally issue
fully paid and (subject to any customary qualification based upon the
nature of a real estate investment trust) nonassessable Common Equity
Shares at such adjusted Conversion Price.
The Corporation shall use its best efforts to list the Common
Shares required to be delivered upon conversion of the Series D-1 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.
The Corporation shall use its best efforts to comply with all
federal and state securities laws and regulations thereunder in connection
with the issuance of any securities that the Corporation shall be obligated
to deliver upon conversion of the Series D-1 Equity Shares. The
certificates evidencing such securities shall bear such legends restricting
transfer thereof in the absence of registration under applicable securities
laws or an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Common Equity Shares or other securities or property on conversion of
the Series D-1 Equity Shares pursuant hereto; provided, however, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series D-1 Equity 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 Corporation the amount of any such tax or established, to
the reasonable satisfaction of the Corporation, that such tax has been
paid.
Section 7. Change of Control. (a) If a Change of Control (as
defined below) occurs (a "Change of Control Repurchase Event"), the holders
of Series D-1 Equity Shares shall have the right to require the
Corporation, to the extent the Corporation shall have funds legally
available therefor, to redeem any or all of the Series D-1 Equity Shares
held by such holder at a repurchase price payable in cash (the "Change of
Control Repurchase Payment") in an amount equal to 105% of the Liquidation
Preference thereof, plus accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available (the "Change of Control Date"), pursuant to the offer described
in subsection (b) below (the "Change of Control Repurchase Offer").
(b) Within 15 days following the Corporation becoming aware that
a Change of Control Repurchase Event has occurred, the Corporation shall
mail by first class mail or recognized overnight courier a notice to the
each holder of Series D-1 Equity Shares stating (A) that a Change of
Control Repurchase Event has occurred and that such holder has the right to
require the Corporation to repurchase any or all of the Series D-1 Equity
Shares then held by such bolder, (B) the date of repurchase (which shall be
a Business Day, no earlier than 30 days and no later than 60 days from the
date such notice is mailed, or such later date as may be necessary to
comply with the requirements of the Exchange Act), (C) the repurchase price
and (D) the instructions determined by the Corporation, consistent with
this subsection, that such investor must follow in order to have the Series
D-1 Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to
the extent lawful, shall accept for payment Series D-1 Equity Shares or
portions thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series D-1
Equity Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "Change of Control" means the occurrence
of any of the following: (i) the first acquisition, directly or indirectly,
by any individual or entity or group (as such term is used in Section
13(d)(3) of the Exchange Act) of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act, except that such individual or entity shall
be deemed to have beneficial ownership of all shares that any such
individual or entity has the right to acquire, whether such right is
exercisable immediately or only after passage of time) of more than 25% of
the Corporation's outstanding stock with voting power, under ordinary
circumstances, to elect Directors of the Corporation, (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation then still in
office who were either Directors at the beginning of such period, or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office of the Corporation; and (iii) (A) the Corporation consolidating with
or merging into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into the Corporation, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting
stock of the Corporation is reclassified or changed into or exchanged for
cash, securities or other property; provided, however, that the events
described in clauses (i)(ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of an event described in clause (iii), if the
sole purpose of such event is that the Corporation is seeking to change its
domicile or to convert from a corporation to a trust or vice versa; (b) in
the case of an event described in clause (iii), if the holders of the
exchanged securities of the Corporation immediately after such transaction
beneficially own at least a majority of the securities of the merged or
consolidated entity normally entitled to vote in elections of Directors of
the Corporation; (c) if any of WHL or its wholly-owned subsidiaries remain
as manager of the Corporation's properties and remains as adviser of the
Corporation, in each case, in a manner substantially similar to that on
date hereof; or (d) if the Change of Control results solely from the
purchase or other acquisition of equity securities by WHL or its
wholly-owned subsidiaries, Westfield America Trust, the Lowy Family or the
Investor or the sale of equity securities by WHL or any of its wholly-owned
subsidiaries or Westfield America Trust.
Section 8. Redemption at the Option of the Holder. (a) At any
time after August 12, 2008, the holders of Series D-1 Equity Shares thereof
shall have the right at any time that the Corporation's Common Shares has a
Current Market Price at or below and the Conversion Price per share, to
require the Corporation, to the extent the Corporation shall have funds
legally available therefor, to redeem any or all of the Series D-1 Equity
Shares held by such holder at a repurchase price payable, at the option of
the Corporation, in either (i) cash, or (ii) such number of Common Equity
Shares as shall have a Current Market Price in the aggregate on the day
prior to the day such holder gives notice pursuant to Section 8(b) of its
intention to redeem, equal to in either case, 100% of the Liquidation
Preference thereof plus accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available (in the aggregate, the "Redemption Payment").
(b) Notwithstanding paragraph (a) of this Section 8, in the event
that WHL and its subsidiaries and the trustee of Westfield America Trust on
behalf of Westfield America Trust vote to approve the conversion of the
Series D-1 Equity Shares into Common Equity Shares at a meeting of
shareholders at which such proposal is raised, but the shareholders of the
Corporation as a whole reject the foregoing proposal, then from and after
the later of such rejection date and the second anniversary of the Issue
Date, the Series D-1 Equity Stock shall be redeemable at the option of the
holder, to the extent that the Corporation shall have funds legally
available therefor, at a redemption price payable in cash equal to the
product of (a) the Series D-1 Common Equivalent Factor times (b) the
Current Market Price on the date of the notice provided pursuant to
paragraph (c) below, plus all accumulated, accrued and unpaid dividends
whether or not declared, if any, to the date of repurchase or the date
payment is made available.
(c) For purposes of this Section 8, redemption at the option of
the holder shall be deemed to occur upon receipt by the Corporation of
written notice that the holder of Series D-1 Equity Shares wishes to tender
shares to be redeemed. The holders of such shares to be redeemed shall then
have 30 days from the date of such notice to deliver such shares to the
Transfer Agent. Upon the surrender of the certificate or certificates of
Series D-1 Equity Shares to be redeemed, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, the
Corporation shall promptly, either (i) by wire transfer of immediately
available funds to such holder, as directed by such holder, send an amount
equal to the Redemption Payment in respect of all Series D-1 Equity Shares
or portions thereof so tendered or (ii) issue and deliver to such holder,
or on his or her written order, a certificate or certificates for the
number of full Common Equity Shares issuable in respect of all Series D-1
Equity Shares or portions thereof so tendered.
Section 9. Shares To Be Retired. All Series D-1 Equity Shares
which shall have been issued and reacquired in any manner by the
Corporation shall be restored to the status of authorized but unissued
preferred stock, without discretion as to class or series, and subject to
applicable limitations set forth in the Articles may thereafter be reissued
as shares of any series of preferred stock.
Section 10. Ranking. Any class or series of stock of the
Corporation shall be deemed to rank:
(a) prior to the Series D-1 Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class or series shall
be entitled to the receipt of dividends or of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of Series D-1 Preferred Shares,
which shall expressly include the Corporation's non-voting senior
preferred stock, par value $1.00 per share;
(b) on a parity with the Series D-1 Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof
shall be different from those of the Series D-1 Preferred Shares, if the
holders of such class or series and the Series D-1 Preferred Shares
shall be entitled to the receipt of dividends and of amounts
distributable upon liquidation, dissolution or winding up in proportion
to their respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the
other ("Parity Shares"), which shall expressly include the Corporation's
Series A Cumulative Redeemable Preferred Shares, Series B Cumulative
Redeemable Preferred Shares, Series C Cumulative Convertible Preferred
Stock, Series C-1 Cumulative Convertible Preferred Stock, Series C-2
Cumulative Convertible Preferred Stock, if any shall have been
authorized and issued, and Series D Cumulative Convertible Preferred
Stock;
(c) junior to the Series D-1 Preferred Shares, as to the payment
of dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior
Shares; and
(d) junior to the Series D-1 Preferred Shares, as to the payment
of dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully Junior
Shares.
Section 11. Series D Preferred Shares. The Company shall be
entitled to treat the Series D Preferred Shares and the Series D-1
Preferred Shares as one class for accounting purposes.
Section 12. Voting. So long as any Series D-1 Equity Shares are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the Articles, the affirmative vote of the holders of
a majority of the Series D Equity Shares and the Series D-1 Equity Shares,
voting together as a class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall
be necessary for effecting or validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or this Certificate of
Designation that materially and adversely affects the voting powers,
rights or preferences of the holders of the Series D Equity Shares or
the Series D-1 Equity Shares; or
(ii) Any merger or consolidation of the Corporation and
another entity in which the Corporation is not the surviving
corporation and each holder of Series D Equity Shares and Series D-1
Equity Shares does not receive shares of the surviving corporation
with substantially similar rights, preferences and powers in the
surviving corporation as the Series D Equity Shares and Series D-1
Equity Shares have with respect to the Corporation (except for
changes that do not materially and adversely affect the holders of
the Series D Equity Shares or Series D-1 Equity Shares).
provided, however, that no such vote of the holders of the Series D Equity
Shares and Series D-1 Equity Shares shall be required if, at or prior
to the time when such amendment, alteration or repeal is to take
effect, or when the issuance of any such prior shares or convertible
security is to be made, as the case may be, provision is made for the
redemption of all Series D Equity Shares and Series D-1 Equity Shares
at the time outstanding to the extent such redemption is authorized
by Section 5 of this Certificate of Designation.
(iii) For purposes of the foregoing provisions of this
Section 13, each share of Series D-1 Equity Shares shall have one (1)
vote per share, except that when any other series of Equity Shares
shall have the right to vote with the Series D-1 Equity Shares as a
single class on any matter, then the Series D-1 Equity Shares and
such other series shall have with respect to such matters one (1)
vote per $180.00 (or less pursuant to Section 4(a)) of stated
Liquidation Preference. Except as otherwise required by applicable
law or as set forth herein, the Series D-1 Equity Shares shall not
have any relative, participating, optional or other special voting
rights and powers other than as set forth herein, and the consent of
the holders thereof shall not be required for the taking of any
corporate action.
Section 13. Record Holders. The Corporation and the Transfer Agent
may deem and treat the record holder of any Series D-1 Preferred Shares as
the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 14. Title. This resolution shall be known and may be
referred to as "A Resolution of the Board of Directors of Westfield America,
Inc. Designating Series D-1 Preferred Shares and Fixing Preferences and Rights
Thereof."
FURTHER RESOLVED, that the appropriate officers of the
Corporation are hereby authorized and directed to execute and acknowledge a
certificate setting forth these resolutions and to cause such certificate
to be filed and recorded, all in accordance with the requirements of
Section 351.046 of the General and Business Corporation Law of the State of
Missouri, as amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Designation to be duly executed by its Co-President this 15th day of
December, 1998.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
----------------------------------
Name: Peter S. Lowy
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)SS:
COUNTY OF LOS ANGELES)
I, Leesa A. Ashley, a notary public, do hereby certify that on this
15/th/ day of December, 1998, personally appeared before me Peter S. Lowy,
and being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foregoing document as
Co-President of the corporation, and that the statements therein contained
are true.
[SEAL] /s/ Lessa A. Ashley
---------------------------------
Notary Public
My Commission Expires:
April 30, 2001
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES E PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"CORPORATION"), hereby certify as follows:
FIRST: That under the provisions of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares of all classes of capital stock which the Corporation may issue
is 410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share (the "SENIOR PREFERRED SHARES"),
(ii) 5,000,000 shares shall be Preferred Shares, with par value of $1.00
per share (the "PREFERRED SHARES"), 940,000 of which have been designated
as Series A Preferred Shares, with a liquidation value of $100 per share
(the "SERIES A PREFERRED SHARES"), 400,000 of which have been designated as
Series B Preferred Shares, with a liquidation value of $100 per share (the
"SERIES B PREFERRED SHARES"), 416,667 of which have been designated as
Series C Preferred Shares, with a liquidation value of $180 per share (the
"SERIES C PREFERRED SHARES"), 138,889 of which have been designated as
Series C-1 Preferred Shares, with a liquidation value of $180 per share
(the "SERIES C-1 PREFERRED SHARES"), 138,889 of which have been designated
as Series C-2 Preferred Shares, with a liquidation value of $180 per share
(the "SERIES C-2 PREFERRED SHARES"), 694,445 of which have been designated
as Series D Preferred Shares, with a liquidation value of $180 per share
(the "SERIES D PREFERRED SHARES") and 138,889 of which have been designated
as Series D-1 Preferred Shares, with a liquidation value of $180 per share
(the "Series D-1 Preferred Shares"), (iii) 200,000,000 shall be shares of
common stock, par value $.01 per share (the "Common Shares"), and (iv)
205,000,000 will be shares of excess stock, par value $.01 ("EXCESS
SHARES"). Any Excess Shares which are issued with respect to Common Stock
shall be "EXCESS COMMON SHARES" and, together with the Common Shares, the
"COMMON EQUITY SHARES" and any Excess Shares which are issued with respect
to Preferred Shares shall be "EXCESS PREFERRED SHARES", and, together with
the Preferred Shares, the "PREFERRED EQUITY SHARES", and under said
Articles of Incorporation (as amended, the "ARTICLES OF INCORPORATION"),
the shares of Preferred Stock are authorized to be issued by the Board of
Directors and the Board of Directors is expressly authorized to determine
in the Resolution, the designation, powers, rights, preferences and
qualifications, limitations or restrictions, not fixed and determined by
the Articles of Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to
the authority so vested in it by Article Fourth of the Certificate of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on July 16, 1999 the following resolution creating a
series of Preferred Stock designated as "Series E Preferred Shares," which
resolution has not been amended, modified, rescinded or revoked and is in
full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES E PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "CORPORATION," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series E Preferred Shares) as
follows:
Section 1. NUMBER OF SHARES, DESIGNATION AND RANKING. This class of
preferred stock shall be designated as Series E Cumulative Convertible
Redeemable Preferred Stock and the number of shares which shall constitute
such series shall not be more than 477,778 shares, par value $1.00 per
share, which number may be decreased (but not below the aggregate number
thereof then outstanding and/or which have been reserved for issuance) from
time to time by the Board of Directors and is hereafter in this resolution
called the "SERIES E PREFERRED SHARES." Each Series E Preferred Share shall
be identical in all respects to each other Series E Preferred Share. Each
Excess Series E Preferred Share shall be identical in all respects to each
other Excess Series E Preferred Share, and except as otherwise provided
herein, shall be identical in all respects to each Series E Preferred Share
(the Series E Preferred Shares together with the Excess Series E Preferred
Shares being hereinafter referred to as the "SERIES E EQUITY SHARES").
Section 2. DEFINITIONS. For purposes of the Series E Preferred
Shares, the following terms shall have the meanings indicated:
"AFFILIATE" of, or Person "AFFILIATED" with, a specified Person,
shall mean a Person that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with the Person specified. For purposes of the Corporation, Affiliate shall
include, without limitation, Westfield Holdings Limited ("WHL"), Westfield
America Trust, Frank Lowy, David Lowy, Peter Lowy and Steven Lowy (such
individuals being the "LOWY FAMILY").
"BASE RATE" shall mean an annual dividend per Series E Equity Share
equal to 8.5% of the Liquidation Preference per Series E Equity Share.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series E Preferred
Shares.
"BUSINESS DAY" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"CALL DATE" shall mean the date specified in the notice to holders
required under Section 5(d) as the Call Date.
"CHANGE OF CONTROL" shall have the meaning set forth in Section
7(e).
"CHANGE OF CONTROL REPURCHASE DATE" shall have the meaning set forth
in Section 7(a).
"CHANGE OF CONTROL REPURCHASE EVENT" shall have the meaning set
forth in Section 7(a).
"CHANGE OF CONTROL REPURCHASE OFFER" shall have the meaning set
forth in Section 7(a).
"CHANGE OF CONTROL REPURCHASE PAYMENT" shall have the meaning set
forth in Section 7(a).
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"CONSOLIDATED EBITDA" for any quarter shall mean the consolidated
net income of the Corporation (before extraordinary income or gains and
less equity in income of unconsolidated real estate partnerships),
calculated in a manner consistent with the Corporation's financial
statements filed with the Securities and Exchange Commission, increased by
the sum of the following (without duplication):
a. the Corporation's pro rata share of EBITDA from unconsolidated
real estate partnerships calculated in a manner consistent with
this definition of Consolidated EBITDA,
b. all income taxes paid or accrued according to GAAP for such
quarter (other than income taxes attributable to extraordinary.
unusual or non-recurring gains or losses except to the extent
that such gains were not included in Consolidated EBITDA),
c. all interest expense paid or accrued in accordance with GAAP
for such quarter (including financing fees and amortization of
deferred financing fees or amortization of original issue
discount, but excluding capitalized interest),
d. depreciation and depletion reflected in such net income,
e. amortization reflected in such net income including, without
limitation, amortization of capitalized debt issuance costs
(only to the extent that such amounts have not been previously
included in the amount of Consolidated EBITDA pursuant to
clause (c) above), goodwill, other intangibles and management
fees, and
f. any other non-cash charges, to the extent deducted from
consolidated net income (including, but not limited to, income
allocated to minority interests).
"CONSOLIDATED FIXED CHARGES" for any quarter shall mean the sum of:
a. the Corporation's pro rata share of fixed charges from
unconsolidated real estate partnerships calculated in a manner
consistent with this definition of Consolidated Fixed Charges,
b. all interest expense paid or accrued in accordance with GAAP
for such quarter including, without duplication, financing fees
and amortization of deferred financing fees or amortization of
original issue discount),
c. dividend and distribution requirements with respect to
preferred stock (not including any portion of preferred stock
dividends the calculation of which is based on the dividend
paid in such quarter to the holders of common shares) whether
or not declared or paid,
d. regularly scheduled amortization of principal of debt during
such quarter (other than any balloon payments at maturity), and
e. all ground rent payments.
"CONSTITUENT PERSON" shall have the meaning set forth in Section
6(e).
"CONVERSION DATE" shall have the meaning set forth in Section 6(a).
"CONVERSION PRICE" shall mean the conversion price per Common Equity
Share for which the Series E Equity Share is convertible, as such
Conversion Price may be adjusted pursuant to Section 6. The initial
conversion price shall be $18.00.
"CURRENT MARKET PRICE" of publicly traded Common Shares or any other
class of stock or other security of the Corporation or any other issuer for
any day shall mean the last reported sales price, regular way, on such day,
or, if no sale takes place on such day, the average of the reported closing
bid and asked prices on such day, regular way, in either case as reported
on the New York Stock Exchange ("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 ("NASDAQ") or, if such security is not quoted on
NASDAQ, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of
Securities Dealers, Inc. (the "NASD") or, if bid and asked prices for such
security on such day shall not have been reported through the NASD, 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 Board of Directors.
"DIVIDEND PAYMENT DATE" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"DIVIDEND PERIOD" shall mean quarterly dividend periods commencing
on January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to any Series E Equity Shares (other than the initial
Dividend Period, which shall commence on the Issue Date for such Series E
Equity Shares and end on and include the last day of the calendar quarter
immediately following such Issue Date, and other than the Dividend Period
during which any Series E Equity Shares shall be redeemed pursuant to
Section 5 or converted pursuant to Section 6, which shall end on and
include the Call Date or Conversion Date with respect to the Series E
Equity Shares being redeemed or converted, as applicable).
"EXPIRATION TIME" shall have the meaning set forth in Section
6(d)(iv).
"FAIR MARKET VALUE" shall mean the average of the daily Current
Market Prices of a Common Share on the five (5) consecutive Trading Days
selected by the Corporation commencing not more than 20 Trading Days
before, and ending not later than, the earlier of the day in question and
the day before the "ex date" with respect to the issuance or distribution
requiring such computation. The term "ex date," when used with respect to
any issuance or distribution, means the first day on which the Common
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.
"FIXED CHARGE COVERAGE VIOLATION" shall have the meaning set forth
in Section 3(a).
"FULLY JUNIOR SHARES" shall mean the Common Shares and any other
class or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series E Preferred Shares preference or priority
in both (i) the payment of dividends and (ii) the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"FUNDS FROM OPERATIONS" shall mean net income (loss) (computed in
accordance with generally accepted accounting principles) excluding gains
(or losses) from debt restructuring, and distributions in excess of
earnings allocated to other operating partnership interests or minority
interests (as reflected in the financial statements of the Corporation)
plus depreciation/amortization of assets unique to the real estate
industry, all computed in a manner consistent with the revised definition
of Funds From Operations adopted by the National Association of Real Estate
Investment Trusts (NAREIT), in its White Paper dated March 1995, as such
definitions may be modified from time to time.
"INVESTOR" shall mean Security Capital Preferred Growth Incorporated
and controlled affiliates thereof.
"ISSUE DATE" shall mean the date on which Series E Preferred Shares
are originally issued.
"JUNIOR SHARES" shall mean the Common Shares and any other class or
series of stock of the Corporation now or hereafter issued and outstanding
over which the Series E Preferred Shares have preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"NON-ELECTING SHARE" shall have the meaning set forth in Section
6(e).
"OPERATING PARTNERSHIP" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"PARITY SHARES" shall have the meaning set forth in Section 10(b).
"PERSON" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"PURCHASED SHARES" shall have the meaning set forth in Section
6(d)(iv).
"REIT TERMINATION EVENT" shall mean the earliest to occur of:
(i) the filing of a federal income tax return by the Corporation
for any taxable year on which the Corporation does not
compute its income as a real estate investment trust,
(ii) the approval by the shareholders of the Corporation of a proposal
for the Corporation to cease to qualify as a real estate
investment trust,
(iii) a determination by the Board of Directors of the Corporation,
based on the advice of counsel, that the Corporation has
ceased to qualify as a real estate investment trust, or
(iv) a "determination" within the meaning of Section 1313(a) of
the Code that the Corporation has ceased to qualify as a real
estate investment trust.
"SECURITIES" and "SECURITY" shall have the meanings set forth in
Section 6(d)(iii).
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SERIES E PREFERRED SHARES" shall have the meaning given such term
in Section 1 of the Certificate of Designation.
"SET APART FOR PAYMENT" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; PROVIDED, HOWEVER, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series E Preferred Shares as to the payment of dividends
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for payment"
with respect to the Series E Preferred Shares shall mean placing such funds
in a separate account or delivering such funds to a disbursing, paying or
other similar agent.
"TRADING DAY" shall mean any day on which the securities in question
are traded on the NYSE, or if such securities are not listed or admitted
for trading on the NYSE, on the principal national securities exchange on
which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on NASDAQ, or if such
securities are not quoted on NASDAQ, in the securities market in which the
securities are traded.
"TRANSACTION" shall have the meaning set forth in Section 6(e).
"TRANSFER AGENT" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for Series E Preferred Shares and notified to the holders of the
Series E Preferred Shares.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles.
Section 3. DIVIDENDS. (a) Subject to the preferential rights of the
holders of any Senior Preferred Stock or Preferred Shares that rank senior
in the payment of dividends to the Series E Equity Shares and subject to
paragraph (b) of this Section 3, the holders of Series E Equity Shares
shall be entitled to receive, when, as and if declared by the Board of
Directors, but only out of funds legally available for the payment of
dividends, cumulative preferential dividends payable in cash to
shareholders of record on the respective date, not exceeding 50 days
preceding such dividend payment date, fixed for the purpose by the Board of
Directors in advance of payment of each particular dividend in an amount
equal to the greater of (A) the Base Rate per share per annum and (B) an
amount per share equal to the Liquidation Preference of a Series E Equity
Share (exclusive of accrued but unpaid dividends) divided by the Conversion
Price (the "SERIES E COMMON EQUIVALENT FACTOR") times the dollar amount of
cash dividends declared with respect to each Common Equity Share that does
not result in an adjustment to the Conversion Price pursuant to
subparagraph (d)(iii) of Section 6 (such product, the "SERIES E COMMON
EQUIVALENT AMOUNT") for the same annual period; PROVIDED, HOWEVER, that if
as a result of the quarterly dividends paid in accordance with the
following sentence, the holders of Series E Equity Shares shall have
received for any calendar year more dividends than such Series E Equity
Shares shall be entitled under clauses (A) and (B) above (as adjusted
pursuant to the third and eighth sentences of this Section 3), the
dividends payable in respect of Series E Equity Shares in subsequent
calendar years shall be reduced to the extent of such overpayment. Subject
to the proviso of the preceding sentence of this Section 3(a), the dividend
paid in respect of each quarterly period in each calendar year shall be
determined as follows (in each case, excluding any additional payment made
pursuant to the following sentence): (1) for the first quarter, the greater
of 25% of the Base Rate per share and the Series E Common Equivalent Amount
for the same quarter; (2) for the second quarter, an amount such that the
aggregate amount to be received per Series E Equity Share in respect of the
first two quarters of such calendar year shall be the greater of 50% of the
Base Rate per share and the Series E Common Equivalent Amount for the same
two quarters; (3) for the third quarter, an amount such that the aggregate
amount to be received per Series E Equity Share in respect of the first
three quarters of such calendar year shall be the greater of 75% of the
Base Rate per share and the Series E Common Equivalent Amount for the same
three quarters; and (4) for the fourth quarter, an amount such that the
aggregate amount to be received per Series E Equity Share in respect of
such calendar year shall be the amount provided in the preceding sentence
of this Section 3(a). Notwithstanding the foregoing, for any quarter in
which a Fixed Charge Coverage Violation (as defined below) has occurred,
the dividend payable per Series E Equity Share shall be 1.20 TIMES the
amount provided in the preceding sentence. A "Fixed Charge Coverage
Violation" shall occur for any quarter that the ratio of the Corporation's
Consolidated EBITDA to its Consolidated Fixed Charges is below 1.40 to 1.
The dividends shall begin to accrue as set forth above and shall be fully
cumulative from the first day of the applicable Dividend Period, whether or
not in any Dividend Period or Periods there shall be funds of the
Corporation legally available for the payment of such dividends, and shall
be payable quarterly, when, as and if declared by the Board of Directors,
in arrears on Dividend Payment Dates. Accumulated but unpaid dividends for
any past quarterly dividend periods may be declared and paid at any time,
without reference to any regularly scheduled quarterly dividend payment
date, to holders of record on such date, not exceeding 50 days preceding
such payment date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend. Any dividend payment made
on Series E Equity Shares shall first be credited against the earliest
accrued but unpaid dividend due with respect to Series E Equity Shares
which remains payable. Beginning with the quarter in which a REIT
Termination Event occurs, all dividends payable per Series E Equity Share
pursuant to this Section shall be multiplied by 2.5.
(b) The initial Dividend Period for the Series E Equity Shares will
include a partial dividend for the period from the Issue Date until the
last day of the calendar quarter immediately following such Issue Date. The
amount of dividends payable for such initial period, or any other period
shorter than a full quarterly Dividend Period, on the Series E Equity
Shares shall be computed by dividing the number of days in such period by
90 and multiplying the result by the Series E Equity dividend determined in
accordance with Section 3(a). Holders of Series E Equity Shares shall not
be entitled to any dividends, whether payable in cash, property or shares,
in excess of cumulative dividends, as herein provided, on the Series E
Equity Shares. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on the Series E
Equity Shares which may be in arrears.
(c) So long as any Series E Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Series E Equity
Shares for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon Series E Equity Shares and all
dividends declared upon any other class or series of Parity Shares shall be
declared ratably in proportion to the respective amounts of dividends
accumulated and unpaid on the Series E Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series E Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
Junior Shares, nor shall any Junior Shares be redeemed, purchased or
otherwise acquired (other than a redemption, purchase or other acquisition
of Common Shares made for purposes of an employee incentive or benefit plan
of the Corporation or any subsidiary) for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any
Junior Shares) by the Corporation, directly or indirectly (except by
conversion into or exchange for Fully Junior Shares), unless in each case
the full cumulative dividends on all outstanding Series E Equity Shares and
any other Parity Shares of the Corporation shall have been or
contemporaneously are declared and paid or declared and set apart for
payment for all Dividend Periods terminating on or prior to the date of
declaration or payment with respect to the Series E Equity Shares and all
dividend periods terminating on or prior to the date of declaration or
payment with respect to such Parity Shares. Subject to the foregoing, and
not otherwise, such dividends and distributions may be declared by the
Board of Directors and paid on any Common Equity Shares from time to time
out of any funds legally available therefor, and the Series E Equity Shares
shall not be entitled to participate in any such dividends, whether payable
in cash, stock or otherwise.
(e) No distributions on Series E Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, subject to the prior preferences and other rights
of any series of stock ranking senior to the Series E Preferred Shares upon
liquidation, distribution or winding up of the Corporation, before any
payment or distribution of the assets of the Corporation (whether capital
or surplus) shall be made to or set apart for the holders of Junior Shares,
the holders of the Series E Equity Shares shall be entitled to receive One
Hundred Eighty Dollars ($180.00) (the "LIQUIDATION PREFERENCE") per Series
E Equity Share plus an amount equal to all dividends (whether or not earned
or declared) accrued and unpaid thereon to the date of liquidation,
dissolution or winding up of the affairs of the Corporation (any such date,
a "SERIES E LIQUIDATION DATE") but such holders shall not be entitled to
any further payment; PROVIDED, that the dividend payable with respect to
the Dividend Period containing the Series E Liquidation Date shall be equal
to the dividend determined pursuant to Section 3 above for the preceding
Dividend Period times a fraction equal to the actual number of days elapsed
from the end date of the calendar quarter most recently completed to the
relevant Series E Liquidation Date over ninety days. If, upon any
liquidation, dissolution or winding up of the Corporation, the assets of
the Corporation, or proceeds thereof, distributable among the holders of
the Series E Equity Shares shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any other shares
of any class or series of Parity Shares, then such assets, or the proceeds
thereof, shall be distributed among the holders of Series E Equity Shares
and any such other Parity Shares ratably in accordance with the respective
amounts that would be payable on such Series E Equity Shares and any such
other Parity Shares if all amounts payable thereon were paid in full. For
the purposes of this Section 4, (i) a consolidation or merger of the
Corporation with one or more corporations, real estate investment trusts or
other entities, (ii) a sale, lease or conveyance of all or substantially
all of the Corporation's property or business or (iii) a statutory share
exchange shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with (including the Parity
Shares) or prior to the Series E Equity Shares upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or winding up
of the Corporation, after payment shall have been made in full to the
holders of the Series E Equity Shares, as provided in this Section 4, the
holders of Series E Equity Shares shall have no other claim to the
remaining assets of the Corporation and any other series or class or
classes of Junior Shares shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all
assets remaining to be paid or distributed, and the holders of the Series E
Equity Shares shall not be entitled to share therein.
Section 5. REDEMPTION AT THE OPTION OF THE CORPORATION. (a) The
Series E Equity Shares shall not be redeemable by the Corporation prior to
the tenth anniversary of the Issue Date. On and after the tenth anniversary
of the Issue Date, the Corporation, at its option, may redeem the Series E
Equity Shares, in whole at any time or from time to time in part, in
minimum increments of $10.0 million of aggregate Liquidation Preference of
such shares, out of funds legally available therefor at a redemption price
payable in cash equal to 100% of the Liquidation Preference per Series E
Equity Share (plus all accumulated, accrued and unpaid dividends as
provided in paragraph (d) below).
(b) In the event that WHL and its subsidiaries and the trustee of
Westfield America Trust on behalf of Westfield America Trust do not vote to
approve the conversion of the Series E Equity Shares into Common Equity
Shares at the Corporation's 2000 Annual Shareholder Meeting or at any other
meeting of the Corporation's shareholders at which such proposal is raised,
the Corporation shall have the right to redeem the Series E Equity Shares,
in whole or in part, out of funds legally available therefor at a
redemption price payable in cash equal to 100% of the Liquidation
Preference per Series E Equity Share (plus all accumulated, accrued and
unpaid dividends as provided in paragraph (c) below).
(c) Upon any redemption of Series E Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series E Equity Shares at the
close of business on such dividend payment record date shall be entitled to
the dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding any redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series E Equity Shares called for redemption.
(d) If full cumulative dividends on the Series E Equity Shares and
any other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, the Series E
Equity Shares may not be redeemed under this Section 5 in part and the
Corporation may not purchase or acquire Series E Equity Shares, otherwise
than pursuant to a purchase or exchange offer made on the same terms to all
holders of Series E Equity Shares.
(e) Notice of the redemption of any Series E Equity Shares under
this Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series E Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (e), nor any defect
therein or in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other holders. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of Series E Equity
Shares to be redeemed and, if fewer than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from such
holder; (3) the redemption price; (4) the place or places at which
certificates for such shares are to be surrendered; (5) the then-current
Conversion Price; and (6) that dividends on the shares to be redeemed shall
cease to accrue on such Call Date except as otherwise provided herein.
Notice having been mailed as aforesaid, from and after the Call Date
(unless the Corporation shall fail to make available an amount of cash
necessary to effect such redemption), (i) except as otherwise provided
herein, dividends on the Series E Equity Shares so called for redemption
shall cease to accrue, (ii) such shares shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as holders of
Series E Equity Shares shall cease (except the rights to receive the cash
payable upon such redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive any
dividends payable thereon). The Corporation's obligation to provide cash in
accordance with the preceding sentence shall be deemed fulfilled if, on or
before the Call Date, the Corporation shall deposit with a bank or trust
company that has an office in the Borough of Manhattan, City of New York,
and that has capital and surplus of at least $150,000,000, necessary for
such redemption, in trust, with irrevocable instructions that such cash be
applied to the redemption of the Series E Equity Shares so called for
redemption. Notwithstanding the foregoing the Corporation shall, in the
first instance, send the money to any holder of Series E Equity Shares that
has notified the Corporation in writing of the location of delivery of
funds. No interest shall accrue for the benefit of the holders of Series E
Equity Shares to be redeemed on any cash so set aside by the Corporation.
Subject to applicable escheat laws, any such cash unclaimed at the end of
two years from the Call Date shall revert to the general funds of the
Corporation, after which reversion the holders of such shares so called for
redemption shall look only to the general funds of the Corporation for the
payment of such cash.
As promptly as practicable after the surrender in accordance with
such notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series E Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series E Equity Shares not previously called for redemption pro rata (as
nearly as may be), by lot or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than all the
Series E Equity Shares evidenced by any certificate are redeemed, then new
certificates evidencing the unredeemed shares shall be issued without cost
to the holder thereof.
Section 6. CONVERSION. The Series E Equity Shares shall not be
convertible into Common Equity Shares prior to (i) a vote of the
shareholders of the Corporation approving the conversion of Series E Equity
Shares into Common Equity Shares or (ii) the transfer of the Series E
Equity Shares to an individual to whom the Corporation is permitted to
issue Common Equity Shares without shareholder approval, in accordance with
the rules of the NYSE. Subject to the foregoing, holders of Series E Equity
Shares shall have the right to convert all or a portion of such shares into
Common Equity Shares, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 6, a holder of Series E Preferred Shares or Excess Series E
Preferred Shares shall have the right, at his or her option, at any time
(such time being, the "CONVERSION DATE"), to convert all or any portion of
such shares into the number of fully paid and non-assessable Common Shares
or Excess Common Shares, respectively, obtained by dividing the aggregate
Liquidation Preference of such shares (inclusive of accrued but unpaid
dividends) by the Conversion Price (as in effect at the time and on the
date provided for in the last paragraph of paragraph (b) of this Section 6)
by surrendering such shares to be converted, such surrender to be made in
the manner provided in paragraph (b) of this Section 6; PROVIDED, HOWEVER,
that the right to convert shares called for redemption pursuant to Section
5 shall terminate at the close of business on the fifth Business Day prior
to the Call Date fixed for such redemption, unless the Corporation shall
default in making payment of the cash payable upon such redemption under
Section 5.
(b) In order to exercise the conversion right, the holder of each
share of Series E Equity Shares to be converted shall surrender the
certificate representing such share, duly endorsed or assigned to the
Corporation or in blank, at the office of the Transfer Agent, accompanied
by written notice to the Corporation that the holder thereof irrevocably
elects to convert such Series E Equity Shares. Unless the shares issuable
on conversion are to be issued in the same name as the name in which such
Series E Equity Shares are registered, each share surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
Holders of Series E Equity Shares at the close of business on a
dividend payment record date shall be entitled to receive the dividend
payable on such shares on the corresponding Dividend Payment Date
notwithstanding the conversion thereof following such dividend payment
record date and prior to such Dividend Payment Date. However, Series E
Equity Shares surrendered for conversion during the period between the
close of business on any dividend payment record date and the opening of
business on the corresponding Dividend Payment Date (except shares
converted after the issuance of notice of redemption with respect to a Call
Date during such period, such Series E Equity Shares being entitled to such
dividend on the Dividend Payment Date) must be accompanied by payment of an
amount equal to the dividend payable on such shares on such Dividend
Payment Date. A holder of Series E Equity Shares on a dividend payment
record date who (or whose transferee) tenders any such shares for
conversion into Common Equity Shares on the corresponding Dividend Payment
Date will receive the dividend payable by the Corporation on such Series E
Equity Shares on such date, and the converting holder need not include
payment of the amount of such dividend upon surrender of Series E Equity
Shares for conversion. Except as provided above, the Corporation shall make
no payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends on the Common Equity Shares issued upon
such conversion.
As promptly as practicable after the surrender of certificates for
Series E Equity Shares as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or on his or her written order, a
certificate or certificates for the number of full Common Equity Shares
issuable upon the conversion of such shares in accordance with provisions
of this Section 6, and any fractional interest in respect of a Common
Equity Share arising upon such conversion shall be settled as provided in
paragraph (c) of this Section 6.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for
Series E Equity Shares shall have been surrendered and such notice shall
have been received by the Corporation as aforesaid (and if applicable,
payment of an amount equal to the dividend payable on such shares shall
have been received by the Corporation as described above), and the Person
or Persons in whose name or names any certificate or certificates for
Common Equity 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 on such date and such conversion shall be at the
Conversion Price in effect at such time on such date unless the share
transfer books of the Corporation shall be closed on that date, in which
event such Person or Persons shall be deemed to have become such holder or
holders of record at the close of business on the next succeeding day on
which such share transfer books are open, but such conversion shall be at
the Conversion Price in effect on the date on which such shares shall have
been surrendered and such notice received by the Corporation.
(c) No fractional shares or scrip representing fractions of Common
Equity Shares shall be issued upon conversion of the Series E Equity
Shares. Instead of any fractional interest in a Common Equity Share that
would otherwise be deliverable upon the conversion of a Series E Equity
Share, the Corporation shall pay to the holder of such share an amount in
cash based upon the Current Market Price of the Common Shares on the
Trading Day immediately preceding the date of conversion. If more than one
share shall be surrendered for conversion at one time by the same holder,
the number of full Common Equity Shares issuable upon conversion thereof
shall be computed on the basis of the aggregate number of Series E Equity
Shares so surrendered.
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the Issue Date (A) pay a
dividend or make a distribution on its Common Equity Shares in
Common Equity Shares, (B) subdivide its outstanding Common Equity
Shares into a greater number of shares, (C) combine its outstanding
Common Equity Shares into a smaller number of shares or (D) issue
any shares of stock by reclassification of its Common Equity Shares,
the Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of shareholders
entitled to receive such dividend or distribution or at the opening
of business on the Business Day next following the day on which such
subdivision, combination or reclassification becomes effective, as
the case may be, shall be adjusted so that the holder of any Series
E Equity Shares thereafter surrendered for conversion shall be
entitled to receive the number of Common Equity Shares that such
holder would have owned or have been entitled to receive after the
happening of any of the events described above as if such Series E
Equity Shares had been converted immediately prior to the record
date in the case of a dividend or distribution or the effective date
in the case of a subdivision, combination or reclassification. An
adjustment made pursuant to this subparagraph (i) shall become
effective immediately after the opening of business on the Business
Day next following the record date (except as provided in paragraph
(h) below) in the case of a dividend or distribution and shall
become effective immediately after the opening of business on the
Business Day next following the effective date in the case of a
subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date
rights, options or warrants to all holders of Common Equity Shares
entitling them (for a period expiring within 45 days after the
record date mentioned below) to subscribe for or purchase Common
Equity Shares at a price per share less than 95% (100% if a stand-by
underwriter is used and charges the Corporation a commission) of the
Fair Market Value per Common Share on the record date for the
determination of shareholders entitled to receive such rights,
options or warrants, then the Conversion Price in effect at the
opening of business on the Business Day next following such record
date shall be adjusted to equal the price determined by multiplying
(A) the Conversion Price in effect immediately prior to the opening
of business on the Business Day next following the date fixed for
such determination by (B) a fraction, the numerator of which shall
be the sum of (x) the number of Common Equity Shares outstanding on
the close of business on the date fixed for such determination and
(y) the number of shares that the aggregate proceeds to the
Corporation from the exercise of such rights, options or warrants
for Common Equity Shares would purchase at 95% of such Fair Market
Value (or 100% in the case of a stand-by underwriting), and the
denominator of which shall be the sum of (x) the number of Common
Equity Shares outstanding on the close of business on the date fixed
for such determination and (y) the number of additional Common
Equity 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 paragraph (h) below). In
determining whether any rights, options or warrants entitle the
holders of Common Equity Shares to subscribe for or purchase Common
Equity Shares at less than 95% of such Fair Market Value (or 100% in
the case of a stand-by underwriting), there shall be taken into
account any consideration received by the Corporation upon issuance
and upon exercise of such rights, options or warrants, the value of
such consideration, if other than cash, to be determined by the
Board of Directors whose determination shall be conclusive. To the
extent that Common Equity Shares are not delivered pursuant to such
rights, options or warrants, upon the expiration or termination of
such rights, options or warrants, the Conversion Price shall be
readjusted to the Conversion Price which would then be in effect had
the adjustments made upon the issuance of such rights, options or
warrants be made on the basis of delivery of only the number of
Common Equity Shares actually delivered. In the event that such
rights, options or warrants are not so issued, the Conversion Price
shall again be adjusted to be the Conversion Price which would then
be in effect if such date fixed for the determination of
stockholders entitled to receive such rights, options or warrants
had not been fixed.
(iii) If the Corporation shall distribute to all holders of
its Common Equity Shares any securities of the Corporation (other
than Common Equity Shares) or evidence of its indebtedness or assets
(excluding cumulative cash dividends or distributions paid with
respect to the Common Equity Shares after December 31, 1997) which
are not in excess of the following: the sum of (A) the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus (B) the cumulative amount of Funds from Operations, as
determined by the Board of Directors, after December 31, 1997, minus
(C) the cumulative amount of dividends accrued or paid in respect of
the Series E Equity Shares or any other class or series of preferred
stock of the Corporation after the Issue Date) or rights, options or
warrants to subscribe for or purchase any of its securities
(excluding those rights, options and warrants issued to all holders
of Common Equity Shares entitling them for a period expiring within
45 days after the record date referred to in subparagraph (ii) above
to subscribe for or purchase Common Equity Shares, which rights and
warrants are referred to in and treated under subparagraph (ii)
above) (any of the foregoing being hereinafter in this subparagraph
(iii) collectively called the "SECURITIES" and individually a
"SECURITY"), then in each such case the Conversion Price shall be
adjusted so that it shall equal the price determined by multiplying
(x) the Conversion Price in effect immediately prior to the close of
business on the date fixed for the determination of shareholders
entitled to receive such distribution by (y) a fraction, the
numerator of which shall be the Fair Market Value per Common Share
on the record date mentioned below less the then fair market value
(as determined by the Board of Directors, whose determination shall
be conclusive) of the portion of the Securities or assets or
evidences of indebtedness so distributed or of such rights, options
or warrants applicable to one Common Equity 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 on the date of distribution retroactive to the opening of
business on the Business Day next following (except as provided in
paragraph (h) below) the record date for the determination of
shareholders entitled to receive such distribution. For the purposes
of this subparagraph (iii), the distribution of a Security, which is
distributed not only to the holders of the Common Equity Shares on
the date fixed for the determination of shareholders entitled to
such distribution of such Security, but also is distributed with
each Common Equity Share delivered to a Person converting a share of
Series E Equity Shares after such determination date, shall not
require an adjustment of the Conversion Price pursuant to this
subparagraph (iii); PROVIDED that on the date, if any, on which a
Person converting a Series E Equity Share would no longer be
entitled to receive such Security with a Common Equity Share (other
than as a result of the termination of all such Securities), a
distribution of such Securities shall be deemed to have occurred and
the Conversion Price shall be adjusted as provided in this
subparagraph (iii) (and such day shall be deemed to be "the date
fixed for the determination of the shareholders entitled to receive
such distribution" and "the record date" within the meaning of the
two preceding sentences). If any dividend or distribution of the
type described in this paragraph (iii) is declared but not so paid
or made, the Conversion Price shall again be adjusted to the
Conversion Price which would then be in effect if such dividend or
distribution had not been declared.
Rights or warrants distributed by the Corporation to all
holders of Common Equity Shares entitling the holders thereof to
subscribe for or purchase shares of the Corporation's capital stock
(either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such shares
of Common Equity Shares; (ii) are not exercisable; and (iii) are
also issued in respect of future issuances of Common Equity Shares,
shall be deemed not to have been distributed for purposes of this
subparagraph (iii) (and no adjustment to the Conversion Price under
this subparagraph (iii) will be required) until the occurrence of
the earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or
warrant shall become exercisable to purchase different securities,
evidences of indebtedness or other assets or entitle the holder to
purchase a different number or amount of the foregoing or to
purchase any of the foregoing at a different purchase price, then
the occurrence of each such event shall be deemed to be the date of
issuance and record date with respect to a new right or warrant (and
a termination or expiration of the existing right or warrant without
exercise by the holder thereof to the extent not exercised). In
addition, in the event of any distribution (or deemed distribution)
of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto, that
resulted in an adjustment to the Conversion Price under this
subparagraph (iii), (1) in the case of any such rights or warrants
which shall all have been redeemed or repurchased without exercise
by any holders thereof, the Conversion Price shall be readjusted
upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were
a cash distribution (but not a distribution paid exclusively in
cash), equal to the per share redemption or repurchase price
received by a holder of Common Equity Shares with respect to such
rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Equity Shares as of the
date of such redemption or repurchase, and (2) in the case of such
rights or warrants all of which shall have expired
or been terminated without exercise, the Conversion Price shall be
readjusted as if such rights and warrants had never been issued.
(iv) In case a tender or exchange offer (which term shall
not include open market repurchases by the Corporation) made by the
Corporation or any subsidiary or controlled Affiliate of the
Corporation for all or any portion of the Common Equity Shares shall
expire and such tender or exchange offer shall require the payment
by the Corporation or such subsidiary or controlled Affiliate of
consideration per Common Equity Share having a fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of
the Board of Directors), at the last time (the "EXPIRATION TIME")
tenders or exchanges may be made pursuant to such tender or exchange
offer, that exceeds the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, the Conversion
Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph, by a fraction of which the
numerator shall be the number of Common Equity Shares outstanding
(including any tendered or exchanged shares) at the Expiration Time,
multiplied by the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, and the denominator
shall be the sum of (A) the fair market value (determined as
aforesaid) of the aggregate consideration payable to shareholders
based upon the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any maximum, being referred to as the
"PURCHASED SHARES") and (B) the product of the number of Common
Equity Shares outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per Common Share on the
Trading Day next succeeding the Expiration Time, such reduction to
become effective immediately prior to the opening of business on the
day following the Expiration Time. In the event the Corporation or
any subsidiary or controlled Affiliate is obligated to purchase
shares pursuant to any such tender offer, but the Corporation or
such subsidiary or controlled Affiliate is permanently prevented by
applicable law from effecting any such purchases, or all such
purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such tender offer had not been made.
(v) No adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or
decrease of at least 1% in such price; PROVIDED, HOWEVER, that any
adjustments that by reason of this subparagraph (v) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment until made; and PROVIDED, FURTHER, that any
adjustment shall be required and made in accordance with the
provisions of this Section 6 (other than this subparagraph (v)) 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 6, the
Corporation shall not be required to make any adjustment of the
Conversion Price for the issuance of any Common Equity Shares
pursuant to any plan providing for the reinvestment of dividends or
interest payable on securities of the Corporation and the investment
of additional optional amounts in Common Equity Shares under such
plan. All calculations under this Section 6 shall be made to the
nearest cent (with $.005 being rounded upward) or to the nearest
one-hundredth of a share (with .005 of a share being rounded
upward), as the case may be. Anything in this paragraph (d) to the
contrary notwithstanding, the Corporation shall be entitled, to the
extent permitted by law, to make such reductions in the Conversion
Price, in addition to those required by this paragraph (d), as it in
its discretion shall determine to be advisable in order that any
share dividends, subdivision of shares, reclassification or
combination of shares, distribution of rights or warrants to
purchase shares or securities, or distribution of other assets
(other than cash dividends) hereafter made by the Corporation to its
shareholders shall not be taxable. To the extent permitted by
applicable law, the Corporation from time to time may reduce the
Conversion Price by any amount for any period of time if the period
is at least 20 days, the reduction is irrevocable during the period
and the Board of Directors shall have made a determination that such
reduction would be in the best interests of the Corporation, which
determination shall be conclusive. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Corporation shall
mail to the holder of each Series E Equity Share at his or her last
address appearing on the share register a notice of reduction prior
to the date the reduced Conversion Price takes effect and such
notice shall state the reduced Conversion Price and the period
during which it will be in effect.
(e) If the Corporation shall be a party to any transaction
(including without limitation a merger, consolidation, statutory share
exchange, self tender offer for 40% or more of its Common Equity Shares,
sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Equity Shares and excluding any transaction
as to which subparagraph (d)(i) of this Section 6 applies) (each of the
foregoing being referred to herein as a "TRANSACTION"), in each case as a
result of which all or substantially all of the Common Equity Shares are
converted into the right to receive different securities or other property
(including cash or any combination thereof), each Series E Equity Share
which is not redeemed or converted into the right to receive different
securities or other property prior to such Transaction shall thereafter be
convertible, in lieu of Common Equity Shares into the kind and amount of
different securities and other property (including cash or any combination
thereof) receivable upon the consummation of such Transaction by a holder
of that number of Common Equity Shares into which one Series E Equity Share
was convertible immediately prior to such Transaction, assuming such holder
of Common Equity Shares (i) is not a Person with which the Corporation
consolidated or into which the Corporation merged or which merged into the
Corporation or to which such sale or transfer was made, as the case may be
("CONSTITUENT PERSON"), or an Affiliate of a Constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount
of shares, securities and other property (including cash) receivable upon
such Transaction (provided that if the kind or amount of shares, securities
and other property (including cash) receivable upon such Transaction is not
the same for each Common Share held immediately prior to such Transaction
by other than a Constituent Person or an Affiliate thereof and in respect
of which such rights of election shall not have been exercised
("NON-ELECTING SHARE"), then for the purpose of this paragraph (e) the kind
and amount of shares, securities and other property (including cash)
receivable upon such Transaction by each Non-Electing Share shall be deemed
to be the kind and amount so receivable per share by holders of a plurality
of the Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of such Transaction are consistent with the
provisions of this paragraph (e), and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series E Equity Shares that will contain
provisions enabling the holders of the Series E Equity Shares that remain
outstanding after such Transaction to convert into the consideration
received by holders of Common Equity Shares at the Conversion Price in
effect immediately prior to such Transaction. The provisions of this
paragraph (e) shall similarly apply to successive Transactions.
(f) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Equity Shares (other than cash dividends
or distributions paid with respect to the Common Equity Shares after
December 31, 1997 not in excess of the sum of the Corporation's
cumulative undistributed Funds from Operations at December 31, 1997,
plus the cumulative amount of Funds from Operations, as determined
by the Board of Directors, after December 31, 1997, minus the
cumulative amount of dividends accrued or paid in respect of the
Series E Equity Shares or any other class or series of preferred
stock of the Corporation after the Issue Date); or
(ii) the Corporation shall authorize the granting to all
holders of Common Equity Shares of rights, options or warrants to
subscribe for or purchase any shares of any class or any other
rights, options or warrants; or
(iii) there shall be any reclassification of the Common
Equity Shares (other than an event to which subparagraph (d)(i) of
this Section 6 applies) or any consolidation or merger to which the
Corporation is a party (other than a merger in which the Corporation
is the surviving entity) and for which approval of any shareholders
of the Corporation is required, or a statutory share exchange, or a
self tender offer by the Corporation 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 Corporation as an entirety;
or
(iv) there shall occur the voluntary or involuntary
liquidation, dissolution or winding up of the Corporation;
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of Series E Equity Shares at their
addresses as shown on the records of the Corporation, as promptly as
possible, but at least 10 days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken
for the purpose of such dividend, distribution or granting of rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Equity Shares of record to be entitled to such
dividend, distribution or rights, options 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 Equity Shares of record shall be entitled
to exchange their Common Equity 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 6.
(g) Whenever the Conversion Price is adjusted as herein provided,
the Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment
which certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of
the Conversion Price setting forth the adjusted Conversion Price and the
effective date of such adjustment and shall mail such notice of such
adjustment of the Conversion Price to the holder of each share of Series E
Equity Shares at such holder's last address as shown on the records of the
Corporation.
(h) In any case in which paragraph (d) of this Section 6 provides
that an adjustment shall become effective on the day next following the
record date for an event, the Corporation may defer until the occurrence of
such event (A) issuing to the holder of any share of Series E Equity Shares
converted after such record date and before the occurrence of such event
the additional Common Equity Shares issuable upon such conversion by reason
of the adjustment required by such event over and above the Common Equity
Shares issuable upon such conversion before giving effect to such
adjustment and (B) paying to such holder any amount of cash in lieu of any
fraction pursuant to paragraph (c) of this Section 6.
(i) There shall be no adjustment of the Conversion Price in case of
issuance of any stock of the Corporation in a reorganization, acquisition
or other similar transaction except as specifically set forth in this
Section 6. If any action or transaction would require adjustment of the
Conversion Price pursuant to both paragraph (d) and paragraph (e) of this
Section 6, only one adjustment shall be made and such adjustment shall be
the amount of adjustment that has the highest absolute value.
(j) If the Corporation shall take any action affecting the Common
Equity Shares, other than action described in this Section 6, that in the
opinion of the Board of Directors would materially and adversely affect the
conversion rights of the holders of the Series E Equity Shares, the
Conversion Price for the Series E Equity Shares may be adjusted, to the
extent permitted by law, in such manner, if any, and at such time, as the
Board of Directors, in its sole discretion, may determine to be equitable
in the circumstances.
(k) The Corporation covenants that it will at all times reserve and
keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued Common Equity Shares, for the purpose of effecting
conversion of the Series E Equity Shares, the full number of Common Equity
Shares deliverable upon the conversion of all outstanding Series E Equity
Shares not theretofore converted. For purposes of this paragraph (k), the
number of Common Shares that shall be deliverable upon the conversion of
all outstanding Series E Preferred Shares shall be computed as if at the
time of computation all such outstanding shares were held by a single
holder.
Any Common Equity Shares issued upon conversion of the Series E
Equity 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 Equity Shares
deliverable upon conversion of the Series E Equity Shares, the Corporation
will take any action that, in the opinion of its counsel, may be necessary
in order that the Corporation may validly and legally issue fully paid and
(subject to any customary qualification based upon the nature of a real
estate investment trust) nonassessable Common Equity Shares at such
adjusted Conversion Price.
The Corporation shall use its best efforts to list the Common Shares
required to be delivered upon conversion of the Series E 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.
The Corporation shall use its best efforts to comply with all
federal and state securities laws and regulations thereunder in connection
with the issuance of any securities that the Corporation shall be obligated
to deliver upon conversion of the Series E Equity Shares. The certificates
evidencing such securities shall bear such legends restricting transfer
thereof in the absence of registration under applicable securities laws or
an exemption therefrom as the Corporation may in good faith deem
appropriate.
(l) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery
of Common Equity Shares or other securities or property on conversion of
the Series E Equity Shares pursuant hereto; PROVIDED, HOWEVER, that the
Corporation shall not be required to pay any tax that may be payable in
respect of any transfer involved in the issue or delivery of Common Shares
or other securities or property in a name other than that of the holder of
the Series E Equity 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 Corporation the amount of any such tax or established, to
the reasonable satisfaction of the Corporation, that such tax has been
paid.
Section 7. CHANGE OF CONTROL. (a) If a Change of Control (as defined
below) occurs (a "CHANGE OF CONTROL REPURCHASE EVENT"), the holders of
Series E Equity Shares shall have the right to require the Corporation, to
the extent the Corporation shall have funds legally available therefor, to
redeem any or all of the Series E Equity Shares held by such holder at a
repurchase price payable in cash (the "CHANGE OF CONTROL REPURCHASE
PAYMENT") in an amount equal to 105% of the Liquidation Preference thereof,
plus accrued and unpaid dividends whether or not declared, if any, to the
date of repurchase or the date payment is made available (the "CHANGE OF
CONTROL REPURCHASE DATE"), pursuant to the offer described in SUBSECTION
(b) below (the "CHANGE OF CONTROL REPURCHASE OFFER").
(b) Within 15 days following the Corporation becoming aware that a
Change of Control Repurchase Event has occurred, the Corporation shall mail
by first class mail or recognized overnight courier a notice to each holder
of Series E Equity Shares stating (A) that a Change of Control Repurchase
Event has occurred and that such holder has the right to require the
Corporation to repurchase any or all of the Series E Equity Shares then
held by such holder, (B) the date of repurchase (which shall be a Business
Day, no earlier than 30 days and no later than 60 days from the date such
notice is mailed, or such later date as may be necessary to comply with the
requirements of the Exchange Act), (C) the repurchase price and (D) the
instructions determined by the Corporation, consistent with this
subsection, that such investor must follow in order to have the Series E
Equity Shares repurchased.
(c) On the Change of Control Repurchase Date, the Corporation, to
the extent lawful, shall accept for payment Series E Equity Shares or
portions thereof tendered by such holder pursuant to the Change of Control
Repurchase Offer and promptly by wire transfer of immediately available
funds to such holder, as directed by such holder, send an amount equal to
the Change of Control Repurchase Payment in respect of all Series E Equity
Shares or portions thereof so tendered.
(d) Notwithstanding anything else herein, to the extent they are
applicable to any Change of Control Repurchase Offer, the Corporation will
comply with any federal and state securities laws, rules and regulations
and all time periods and requirements shall be adjusted accordingly.
(e) For purposes hereof, "CHANGE OF CONTROL" means the occurrence of
any of the following: (i) the first acquisition, directly or indirectly, by
any individual or entity or group (as such term is used in Section 13(d)(3)
of the Exchange Act (or any similar provision then in force)) of beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act (or any similar
provision then in force), except that such individual or entity shall be
deemed to have beneficial ownership of all shares that any such individual
or entity has the right to acquire, whether such right is exercisable
immediately or only after passage of time) of more than 25% of the
Corporation's outstanding stock with voting power, under ordinary
circumstances, to elect Directors of the Corporation, (ii) during any
period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Corporation (together with
any new Directors whose election by such Board of Directors or whose
nomination for election by the shareholders of the Corporation was approved
by a vote of 66 2/3% of the Directors of the Corporation then still in
office who were either Directors at the beginning of such period, or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office of the Corporation; and (iii) (A) the Corporation consolidating with
or merging into another entity or conveying, transferring or leasing all or
substantially all of its assets (including, but not limited to, real
property investments) to any individual or entity, or (B) any entity
consolidating with or merging into the Corporation, which in either event
(A) or (B) is pursuant to a transaction in which the outstanding voting
stock of the Corporation is reclassified or changed into or exchanged for
cash, securities or other property; PROVIDED, HOWEVER, that the events
described in clauses (i), (ii) and (iii) shall not be deemed to be a Change
of Control (a) in the case of an event described in clause (iii), if the
sole purpose of such event is that the Corporation is seeking to change its
domicile or to convert from a corporation to a trust or vice versa; (b) in
the case of an event described in clause (iii), if the holders of the
exchanged securities of the Corporation immediately after such transaction
beneficially own at least a majority of the securities of the merged or
consolidated entity normally entitled to vote in elections of Directors of
the Corporation; (c) if any of WHL or its wholly-owned subsidiaries remain
as manager of the Corporation's properties and remains as adviser of the
Corporation, in each case, in a manner substantially similar to that on the
date hereof; or (d) if the Change of Control results solely from the
purchase or other acquisition of equity securities by WHL or its
wholly-owned subsidiaries, Westfield America Trust, the Lowy Family or the
Investor or the sale of equity securities by WHL or any of its wholly-owned
subsidiaries or Westfield America Trust.
Section 8. REDEMPTION AT THE OPTION OF THE HOLDER. (a) At any time
after the tenth anniversary of the Issue Date, the holders of Series E
Equity Shares thereof shall have the right at any time that the
Corporation's Common Shares has a Current Market Price at or below and the
Conversion Price per share, to require the Corporation, to the extent the
Corporation shall have funds legally available therefor, to redeem any or
all of the Series E Equity Shares held by such holder at a repurchase price
payable, at the option of the Corporation, in either (i) cash, or (ii) such
number of Common Equity Shares as shall have a Current Market Price in the
aggregate on the day prior to the day such holder gives notice pursuant to
Section 8(b) of its intention to redeem, equal to in either case, 100% of
the Liquidation Preference thereof plus accrued and unpaid dividends
whether or not declared, if any, to the date of repurchase or the date
payment is made available (in the aggregate, the "REDEMPTION PAYMENT").
(b) Notwithstanding paragraph (a) of this Section 8, in the event
that WHL and its subsidiaries and the trustee of Westfield America Trust on
behalf of Westfield America Trust vote to approve the conversion of the
Series E Equity Shares into Common Equity Shares at a meeting of
shareholders at which such proposal is raised, but the shareholders of the
Corporation as a whole reject the foregoing proposal, then from and after
the later of such rejection date and the second anniversary of the Issue
Date, the Series E Equity Shares shall be redeemable at the option of the
holder, to the extent that the Corporation shall have funds legally
available therefor, at a redemption price payable in cash equal to the
product of (a) the Series E Common Equivalent Factor times (b) the Current
Market Price on the date of the notice provided pursuant to paragraph (c)
below, plus all accumulated, accrued and unpaid dividends whether or not
declared, if any, to the date of repurchase or the date payment is made
available.
(c) For purposes of this Section 8, redemption at the option of the
holder shall be deemed to occur upon receipt by the Corporation of written
notice that the holder of Series E Equity Shares wishes to tender shares to
be redeemed. The holders of such shares to be redeemed shall then have 30
days from the date of such notice to deliver such shares to the Transfer
Agent. Upon the surrender of the certificate or certificates of Series E
Equity Shares to be redeemed, duly endorsed or assigned to the Corporation
or in blank, at the office of the Transfer Agent, the Corporation shall
promptly, either (i) by wire transfer of immediately available funds to
such holder, as directed by such holder, send an amount equal to the
Redemption Payment in respect of all Series E Equity Shares or portions
thereof so tendered or (ii) issue and deliver to such holder, or on his or
her written order, a certificate or certificates for the number of full
Common Equity Shares issuable in respect of all Series E Equity Shares or
portions thereof so tendered.
Section 9. SHARES TO BE RETIRED. All Series E Equity Shares which
shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued preferred stock,
without discretion as to class or series, and subject to applicable
limitations set forth in the Articles may thereafter be reissued as shares
of any series of preferred stock.
Section 10. RANKING. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to the Series E Preferred Shares, as to the payment
of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class or series
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of Series E
Preferred Shares, which shall expressly include the Corporation's
non-voting senior preferred stock, par value $1.00 per share;
(b) on a parity with the Series E Preferred Shares, as to the
payment of dividends and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the dividend
rates, dividend payment dates or redemption or liquidation prices
per share thereof shall be different from those of the Series E
Preferred Shares, if the holders of such class or series and the
Series E Preferred Shares shall be entitled to the receipt of
dividends and of amounts distributable upon liquidation, dissolution
or winding up in proportion to their respective amounts of accrued
and unpaid dividends per share or liquidation preferences, without
preference or priority one over the other ("PARITY SHARES"), which
shall expressly include the Corporation's Series A Cumulative
Redeemable Preferred Shares, Series B Cumulative Redeemable
Preferred Shares, Series C Cumulative Convertible Redeemable
Preferred Stock, Series C-1 Cumulative Convertible Redeemable
Preferred Stock, Series C-2 Cumulative Convertible Redeemable
Preferred Stock, Series D Cumulative Convertible Redeemable
Preferred Stock and Series D-1 Cumulative Convertible Redeemable
Preferred Stock;
(c) junior to the Series E Preferred Shares, as to the payment
of dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior
Shares; and
(d) junior to the Series E Preferred Shares, as to the payment
of dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully
Junior Shares.
Section 11. VOTING. So long as any Series E Equity Shares are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the Articles, the affirmative vote of the holders of
a majority of the Series E Equity Shares, voting together as a class, given
in person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the
provisions of the Articles of Incorporation or this Certificate of
Designation that materially and adversely affects the voting powers,
rights or preferences of the holders of the Series E Equity Shares;
or
(ii) Any merger or consolidation of the Corporation and
another entity in which the Corporation is not the surviving
corporation and each holder of Series E Equity Shares does not
receive shares of the surviving corporation with substantially
similar rights, preferences and powers in the surviving corporation
as the Series E Equity Shares have with respect to the Corporation
(except for changes that do not materially and adversely affect the
holders of the Series E Equity Shares).
PROVIDED, HOWEVER, that no such vote of the holders of the Series E
Equity Shares shall be required if, at or prior to the time when
such amendment, alteration or repeal is to take effect, or when the
issuance of any such prior shares or convertible security is to be
made, as the case may be, provision is made for the redemption of
all Series E Equity Shares at the time outstanding to the extent
such redemption is authorized by Section 5 of this Certificate of
Designation.
(iii) For purposes of the foregoing provisions of this
Section 11, each share of Series E Equity Shares shall have one (1)
vote per share, except that when any other series of Equity Shares
shall have the right to vote with the Series E Equity Shares as a
single class on any matter, then the Series E Equity Shares and such
other series shall have with respect to such matters one (1) vote
per $180.00 (or less pursuant to Section 4(a)) of stated Liquidation
Preference. Except as otherwise required by applicable law or as set
forth herein, the Series E Equity Shares shall not have any
relative, participating, optional or other special voting rights and
powers other than as set forth herein, and the consent of the
holders thereof shall not be required for the taking of any
corporate action.
Section 12. RECORD HOLDERS. The Corporation and the Transfer Agent
may deem and treat the record holder of any Series E Preferred Shares as
the true and lawful owner thereof for all purposes, and neither the
Corporation nor the Transfer Agent shall be affected by any notice to the
contrary.
Section 13. TITLE. This resolution shall be known and may be
referred to as "A Resolution of the Board of Directors of Westfield America,
Inc. Designating Series E Preferred Shares and Fixing Preferences and Rights
Thereof."
FURTHER RESOLVED, that the appropriate officers of the Corporation
are hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President this 22nd day of July,
1999.
WESTFIELD AMERICA, INC.
By: /s/ Peter S. Lowy
--------------------------------
Name: Peter S. Lowy
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF CALIFORNIA )
) SS:
COUNTY OF LOS ANGELES )
I, LEESA A. ASHLEY, a notary public, do hereby certify that on this
22nd day of July, 1999, personally appeared before me PETER S. LOWY, and
being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foregoing document as
Co-President of the corporation, and that the statements therein contained
are true.
[SEAL] /s/ Leesa A. Ashley
-----------------------------------
Notary Public
My Commission Expires:
April 30, 2001
CERTIFICATE OF DESIGNATION
SETTING FORTH "RESOLUTION DESIGNATING
SERIES F PREFERRED SHARES
AND FIXING PREFERENCES AND RIGHTS THEREOF"
ADOPTED BY THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC.
Pursuant to the Provisions of Section 351.180 (7) of the
General and Business Corporation Law of the State
of Missouri, as amended,
I, the undersigned, Co-President of Westfield America, Inc., a
Missouri corporation (hereinafter sometimes referred to as the
"Corporation"), hereby certify as follows:
FIRST: That under the provisions of Article Fourth of the Restated
Articles of Incorporation, as amended, of the Corporation, the total number
of shares of all classes of capital stock which the Corporation may issue
is 410,000,200 shares, of which (i) 200 shares shall be non-voting senior
preferred stock, par value $1.00 per share (the "Senior Preferred Shares"),
(ii) 5,000,000 shares shall be Preferred Shares, with par value of $1.00
per share (the "Preferred Shares"), 940,000 of which have been designated
as Series A Preferred Shares, with a liquidation value of $100 per share
(the "Series A Preferred Shares"), 400,000 of which have been designated as
Series B Preferred Shares, with a liquidation value of $100 per share (the
"Series B Preferred Shares"), 416,667 of which have been designated as
Series C Preferred Shares, with a liquidation value of $180 per share (the
"Series C Preferred Shares"), 138,889 of which have been designated as
Series C-1 Preferred Shares, with a liquidation value of $180 per share
(the "Series C-1 Preferred Shares"), 138,889 of which have been designated
as Series C-2 Preferred Shares, with a liquidation value of $180 per share
(the "Series C-2 Preferred Shares"), 694,445 of which have been designated
as Series D Preferred Shares, with a liquidation value of $180 per share
(the "Series D Preferred Shares"), 138,889 of which have been designated as
Series D-1 Preferred Shares, with a liquidation value of $180 per share
(the "Series D-1 Preferred Shares"), and 477,778 of which have been
designated as Series E Preferred Shares, with a liquidation value of $180
per share (the "Series E Preferred Shares"), (iii) 200,000,000 shall be
shares of common stock, par value $.01 per share (the "Common Shares"), and
(iv) 205,000,000 will be shares of excess stock, par value $.01 ("Excess
Shares"). Any Excess Shares which are issued with respect to Common Shares
shall be "Excess Common Shares" and, together with the Common Shares, the
"Common Equity Shares" and any Excess Shares which are issued with respect
to Preferred Shares shall be "Excess Preferred Shares", and, together with
the Preferred Shares, the "Preferred Equity Shares", and under said
Articles of Incorporation (as amended, the "Articles of Incorporation"),
the shares of Preferred Stock are authorized to be issued by the Board of
Directors and the Board of Directors is expressly authorized to determine
the designation, powers, rights, preferences and qualifications,
limitations or restrictions, not fixed and determined by the Articles of
Incorporation.
SECOND: That the Board of Directors of the Corporation pursuant to
the authority so vested in it by Article Fourth of the Articles of
Incorporation, and in accordance with the provisions of Section 351.180 (7)
of the General and Business Corporation Law of the State of Missouri, as
amended, adopted on May 8, 2000 the following resolution creating a series
of Preferred Stock designated as "Series F Preferred Shares," which
resolution has not been amended, modified, rescinded or revoked and is in
full force and effect on the date hereof.
"RESOLUTION OF THE BOARD OF DIRECTORS OF
WESTFIELD AMERICA, INC. DESIGNATING
'SERIES F PREFERRED SHARES'
AND FIXING PREFERENCES AND RIGHTS THEREOF"
BE IT RESOLVED, that pursuant to authority expressly granted to and
vested in the Board of Directors of Westfield America, Inc., hereinafter
called the "Corporation," by the provisions of the Articles of
Incorporation, as amended, the Board of Directors of the Corporation hereby
fixes the designation, voting powers, rights on liquidation or dissolution
and other preferences and rights, and the qualifications, limitations or
restrictions thereof, of the shares of such series (in addition to the
designations, preferences and relative rights, and the qualifications,
limitations or restrictions thereof set forth in the Articles of
Incorporation which are applicable to the Series F Preferred Shares) as
follows:
Section 1. Number of Shares, Designation and Ranking. This class of
preferred stock shall be designated as Series F Cumulative Redeemable
Preferred Stock and the number of shares which shall constitute such series
shall not be more than 107,483 shares, par value $1.00 per share, which
number may be decreased (but not below the aggregate number thereof then
outstanding and/or which have been reserved for issuance) from time to time
by the Board of Directors and is hereafter in this resolution called the
"Series F Preferred Shares." Each Series F Preferred Share shall be
identical in all respects to each other Series F Preferred Share. Each
Excess Series F Preferred Share shall be identical in all respects to each
other Excess Series F Preferred Share, and except as otherwise provided
herein, shall be identical in all respects to each Series F Preferred Share
(the Series F Preferred Shares together with the Excess Series F Preferred
Shares being hereinafter referred to as the "Series F Equity Shares").
Section 2. Definitions. For purposes of the Series F Preferred
Shares, the following terms shall have the meanings indicated:
"Base Rate" shall mean an annual dividend per Series F Equity Share
equal to 8.5% of the Liquidation Preference per Series F Equity Share.
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Series F Preferred
Shares.
"Business Day "shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in
New York City, New York are authorized or required by law, regulation or
executive order to close.
"Call Date" shall mean the date specified in the notice of redemption
to Holders sent pursuant to Section 5(d) as the date on which the
Corporation intends to effect a redemption pursuant to Section 5.
"Code "shall mean the Internal Revenue Code of 1986, as amended.
"Dividend Factor" shall be equal to 51.4933, subject to adjustment
from time to time as provided in the following sentence. If the Corporation
shall after the Issue Date (i) (A) subdivide its Common Stock by stock
split or otherwise, or (B) combine its capital stock by reverse stock split
or otherwise, or (C) issue additional securities as a dividend with respect
to any shares of its Common Stock, the Dividend Factor shall be adjusted so
that each Holder shall be entitled to receive the dividend that such holder
would have received or have been entitled to receive after the happening of
any of the events described above as if the Dividend Payment Date had been
fixed pursuant to Section 3(b) immediately after the effective date in the
case of a subdivision or combination, or as of the record date in the case
of a dividend, or in the event that no record date is fixed, upon payment
of such dividend or (ii) effect a capital reconstruction (other than a
subdivision, combination or stock dividend covered by (i) above), merger,
in which it is the surviving entity, consolidation, in which it is the
surviving entity, or any return of capital or other capital distribution,
except for periodic distributions made pro rata among the shareholders of a
class of stock or units which are not in redemption of any shares of Common
Stock, or any similar capital transaction that would affect the capital
structure of the Corporation, excluding any payment of an ordinary cash
dividend in respect of the operations of the Corporation, then in such
event the Dividend Factor shall be adjusted, as appropriate, in a manner
(x) approved by the Corporation and each Holder and (y) which is fair and
equitable to each Holder and the holders of the Preferred Shares.
"Dividend Payment Date" shall mean (i) for any Dividend Period with
respect to which the Corporation pays a dividend on the Common Equity
Shares, the date on which such dividend is paid, or (ii) for any Dividend
Period with respect to which the Corporation does not pay a dividend on the
Common Equity Shares, a date to be set by the Board of Directors, which
date shall not be later than the thirtieth calendar day after the end of
the applicable Dividend Period.
"Dividend Period" shall mean quarterly dividend periods commencing on
January 1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding Dividend
Period with respect to each Series F Equity Share currently outstanding
(other than the initial Dividend Period, which shall commence on the
applicable Issue Date for each Series F Equity Share and end on and include
the last day of the calendar quarter immediately following such Issue Date,
and other than the Dividend Period during which any Series F Equity Shares
shall be redeemed pursuant to Section 5, which shall end on and include the
Call Date or Conversion Date with respect to the Series F Equity Shares
being redeemed or converted, as applicable).
"Fully Junior Shares" shall mean the Common Shares and any other
class or series of stock of the Corporation now or hereafter issued and
outstanding over which the Series F Preferred Shares preference or priority
in both (i) the payment of dividends and (ii) the distribution of assets on
any liquidation, dissolution or winding up of the Corporation.
"Holder" shall mean a Holder of a Series F Equity Share.
"Issue Date" shall mean, with respect to each Series F Preferred
Share, the date on which such Series F Preferred Share is originally
issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of stock of the Corporation now or hereafter issued and outstanding
over which the Series F Preferred Shares have preference or priority in the
payment of dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Operating Partnership" shall mean Westfield America Limited
Partnership, a Delaware limited partnership.
"Parity Shares" shall have the meaning set forth in Section 7(b).
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company, trust or other entity, and shall include any
successor (by merger or otherwise) of such entity.
"Securities" and "Security" shall have the meanings set forth in
Section 6(d)(iii).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series F Preferred Shares" shall have the meaning given such term in
Section 1 of this Certificate of Designation.
"set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of dividends or other distribution by the Board
of Directors, the allocation of funds to be so paid on any series or class
of stock of the Corporation; provided, however, that if any funds for any
class or series of Junior Shares or any class or series of stock ranking on
a parity with the Series F Preferred Shares as to the payment of dividends
are placed in a separate account of the Corporation or delivered to a
disbursing, paying or other similar agent, then "set apart for
payment" with respect to the Series F Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Transfer Agent" shall mean the Corporation, or such other agent or
agents of the Corporation as may be designated by the Board of Directors or
their designee as the transfer agent, registrar and dividend disbursing
agent for Series F Preferred Shares and notified to the holders of the
Series F Preferred Shares.
Capitalized terms not otherwise defined herein have the meanings ascribed
to them in the Articles of Incorporation.
Section 3. Dividends. (a) Subject to the preferential rights of the
holders of any Senior Preferred Shares or Preferred Shares that rank senior
in the payment of dividends to the Series F Equity Shares and subject to
paragraph (b) of this Section 3, the Holders shall be entitled to receive,
when, as and if declared by the Board of Directors, but only out of funds
legally available for the payment of dividends, cumulative preferential
dividends payable in cash to shareholders of record on the respective date,
not exceeding 50 days preceding such dividend payment date, fixed for the
purpose by the Board of Directors in advance of payment of each particular
dividend in an amount equal to the greater of (A) the Base Rate per share
per annum and (B) an amount (the "Series F Alternative Amount") per share
equal to (i) the Dividend Factor, times (ii) the dollar amount of cash
dividends paid with respect to each Common Equity Share for the same annual
period; provided, however, that if as a result of the quarterly dividends
paid in accordance with the following sentence, any Holder shall have
received for any calendar year more dividends than such Series F Equity
Shares shall be entitled under clauses (A) and (B) above (as adjusted in
accordance with this Section 3), the dividends payable in respect of Series
F Equity Shares in subsequent calendar years shall be reduced to the extent
of such overpayment; and, provided further, that the amount of the
dividends will be calculated as further set forth in this Section 3.
Subject to the proviso of the preceding sentence of this Section
3(a), and subject to the last sentence of this paragraph, the dividend paid
with respect to each Series F Equity Share in respect of each quarterly
period in each calendar year, commencing with the first full calendar year
following the Issue Date, shall be determined as follows: (1) for the first
quarter, the greater of 25% of the Base Rate per share and the Series F
Alternative Amount for the same quarter; (2) for the second quarter, an
amount such that the aggregate amount to be received per Series F Equity
Share in respect of the first two quarters of such calendar year shall be
the greater of 50% of the Base Rate per share and the Series F Alternative
Amount for the same two quarters; (3) for the third quarter, an
amount such that the aggregate amount to be received per Series F Equity
Share in respect of the first three quarters of such calendar year shall be
the greater of 75% of the Base Rate per share and the Series F Alternative
Amount for the same three quarters; and (4) for the fourth quarter, an
amount such that the aggregate amount to be received per Series F Equity
Share in respect of such calendar year shall be the amount provided in the
preceding sentence of this Section 3(a). The dividend paid with respect to
each Series F Equity Share in respect of each full quarterly period
following the applicable Issue Date, until the beginning of the first full
calendar year following the applicable Issue Date, shall be determined as
follows:(1) (if applicable) for the first full quarter following the
applicable Issue Date, the greater of 25% of the Base Rate per share and
the Series F Alternative Amount for the same quarter; (2) (if applicable)
for the second full quarter following the applicable Issue Date, an amount
such that the aggregate amount to be received per Series F Equity Share in
respect of the first two full quarters following the applicable Issue Date
shall be the greater of 50% of the Base Rate per share and the Series F
Alternative Amount for the same two quarters; (3) (if applicable) for the
third full quarter following the applicable Issue Date, an amount such that
the aggregate amount to be received per Series F Equity Share in respect of
the first three full quarters following the applicable Issue Date shall be
the greater of 75% of the Base Rate per share and the Series F Alternative
Amount for the same three quarters.
Except as set forth in Section 3(b) below, the dividends shall begin
to accrue as set forth above and shall be fully cumulative from the first
day of the applicable Dividend Period, whether or not in any Dividend
Period or Periods there shall be funds of the Corporation legally available
for the payment of such dividends, and shall be payable quarterly, when, as
and if declared by the Board of Directors, in arrears on Dividend Payment
Dates. Accumulated but unpaid dividends for any past quarterly dividend
periods may be declared and paid at any time, without reference to any
regularly scheduled quarterly dividend payment date, to holders of record
on such date, not exceeding 50 days preceding such payment date, fixed for
the purpose by the Board of Directors in advance of payment of each
particular dividend. Any dividend payment made on Series F Equity Shares
shall first be credited against the earliest accrued but unpaid dividend
due with respect to Series F Equity Shares which remains payable.
(b) The initial Dividend Period for each Series F Equity Share will
include a partial dividend for the period from its Issue Date until the
last day of the calendar quarter immediately following such Issue Date. The
amount of dividends payable for such initial period, or any other period
shorter than a full quarterly Dividend Period, on any Series F Equity
Shares shall be computed by dividing the number of days in such period by
90 and multiplying the result by the Series F Equity dividend determined in
accordance with Section 3(a). Holders shall not be entitled to any
dividends, whether payable in cash, property or shares, in excess of
cumulative dividends, as herein provided, on such Series F Equity Shares.
No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on any Series F Equity Shares
which may be in arrears.
(c) So long as any Series F Equity Shares remain outstanding, no
dividends, except as described in the immediately following sentence, shall
be declared or paid or set apart for payment on any class or series of
Parity Shares for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on each Series F Equity
Share for all Dividend Periods terminating on or prior to the dividend
payment date on such class or series of Parity Shares. When dividends are
not paid in full or a sum sufficient for such payment is not set apart, as
aforesaid, all dividends declared upon each Series F Equity Share and all
dividends declared upon any other class or series of Parity Shares shall be
declared pro rata in proportion to the respective amounts of dividends
accumulated and unpaid on the Series F Equity Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series F Equity Shares remain outstanding, no
dividends (other than dividends or distributions paid solely in Fully
Junior Shares, or options, warrants or rights to subscribe for or purchase,
Fully Junior Shares) shall be declared or paid or set apart for payment or
other distribution shall be declared or made or set apart for payment upon
the Common Equity Shares, and no other distribution of cash or other
property shall be made, directly or indirectly, by the Corporation with
respect to any Common Equity Shares or shall any Common Equity Shares be
redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of Common Shares made for purposes of an
employee incentive or benefit plan of the Corporation or any subsidiary)
for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any Common Equity Shares) by the
Corporation, directly or indirectly by the corporation (except by
conversion into or exchange for Fully Junior Shares), nor shall any other
cash or other property otherwise be paid or distributed to or for the
benefit of any holder of Common Equity Shares in respect thereof, directly
or indirectly, by the Corporation, unless in each case the full cumulative
dividends on all outstanding Series F Equity Shares and any other Parity
Shares of the Corporation shall have been or contemporaneously are declared
and paid or declared and set apart for payment for all Dividend Periods
terminating on or prior to the date of declaration or payment with respect
to each Series F Equity Share and all dividend periods terminating on or
prior to the date of declaration or payment with respect to such Parity
Shares. Subject to the foregoing, such dividends and distributions may be
declared by the Board of Directors and paid on any Common Equity Shares
from time to time out of any funds legally available therefor, and the
Series F Equity Shares shall not be entitled to participate in any such
dividends, whether payable in cash, stock or otherwise.
(e) No distributions on Series F Equity Shares shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the
Corporation, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such declaration
or payment shall be restricted or prohibited by law.
(f) In determining whether a distribution by dividend, redemption or
other acquisition of Shares or otherwise is permitted under Missouri law,
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 shareholders whose
preferential rights on dissolution are superior to those receiving the
distribution.
Section 4. Liquidation Preference. (a) In the event of any
liquidation, dissolution or winding up of the affairs of the Corporation,
whether voluntary or involuntary, subject to the prior preferences and
other rights of any series of stock ranking senior to the Series F
Preferred Shares upon liquidation, distribution or winding up of the
affairs of the Corporation, before any payment or distribution of the
assets of the Corporation (whether capital or surplus) shall be made to or
set apart for the holders of Junior Shares, the Holders shall be entitled
to receive: One Thousand Dollars ($1,000.00) (the "Liquidation Preference")
per Series F Equity Share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon through the end date of
the calendar quarter most recently completed prior to the date of
liquidation, dissolution or winding up of the affairs of the Corporation
(any such date, a "Series F Liquidation Date"), plus (ii) $21.25 times a
fraction with a numerator equal to the actual number of days elapsed from
the end date of the calendar quarter most recently completed to the
relevant Series F Liquidation Date, and a denominator equal to 90 days. If,
upon any liquidation, dissolution or winding up of the Corporation, the
assets of the Corporation, or proceeds thereof, distributable among the
Holders shall be insufficient to pay in full the preferential amount
aforesaid and liquidating payments on any other shares of any class or
series of Parity Shares, then such assets, or the proceeds thereof, shall
be distributed among the Holders and the holders of any such other Parity
Shares pro rata in accordance with the respective amounts that would be
payable on such Series F Equity Shares and any such other Parity Shares if
all amounts payable thereon were paid in full. For the purposes of this
Section 4, (i) a consolidation or merger of the Corporation with one or more
corporations, real estate investment trusts or other entities, (ii) a sale,
lease or conveyance of all or substantially all of the Corporation's
property or business or (iii) a statutory share exchange shall not be
deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any series or
class or classes of stock ranking on a parity with (including the Parity
Shares) or prior to the Series F Equity Shares upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or winding up
of the Corporation, after payment shall have been made in full to the
Holders, as provided in this Section 4, the Holders shall have no other
claim to the remaining assets of the Corporation and any other series or
class or classes of Junior Shares shall, subject to the respective terms
and provisions (if any) applying thereto, be entitled to receive any and
all assets remaining to be paid or distributed, and the Holders shall not
be entitled to share therein.
Section 5. Redemption at the Option of the Corporation. (a) No Series
F Equity Share shall be redeemable by the Corporation until after the
twentieth anniversary of its Issue Date. After the twentieth anniversary of
the Issue Date corresponding to a Series F Equity Share, the Corporation,
at its option, may redeem such Series F Equity Share, at any time or from
time to time, out of funds legally available therefor at a redemption price
payable in cash equal to 100% of the Liquidation Preference per Series F
Equity Share (plus all accumulated, accrued and unpaid dividends as
provided in paragraph (c) below).
(b) Upon any redemption of Series F Equity Shares pursuant to this
Section 5, the Corporation shall pay all accrued and unpaid dividends, if
any, thereon to the Call Date, without interest. If the Call Date falls
after a dividend payment record date and prior to the corresponding
Dividend Payment Date, then each holder of Series F Equity Shares being
redeemed at the close of business on such dividend payment record date
shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding any redemption of such
shares before such Dividend Payment Date. Except as provided above, the
Corporation shall make no payment or allowance for unpaid dividends,
whether or not in arrears, on Series F Equity Shares called for redemption.
(c) If full cumulative dividends on the Series F Equity Shares and
any other class or series of Parity Shares of the Corporation have not been
declared and paid or declared and set apart for payment, no Series F Equity
Share may be redeemed under this Section 5 and the Corporation may not
purchase or acquire Series F Equity Shares, other than pursuant to a
purchase or exchange offer made on the same terms to all holders of Series
F Equity Shares.
(d) Notice of the redemption of any Series F Equity Shares under this
Section 5 shall be mailed by first-class mail or recognized overnight
courier to each holder of record of Series F Equity Shares to be redeemed
at the address of each such holder as shown on the Corporation's records,
not less than 30 nor more than 90 days prior to the Call Date. Neither the
failure to mail any notice required by this paragraph (d), nor any defect
therein or in the mailing thereof, to any particular Holder, shall affect
the sufficiency of the notice or the validity of the proceedings for
redemption with respect to the other Holders. Each such mailed notice shall
state, as appropriate: (1) the Call Date; (2) the number of Series F Equity
Shares to be redeemed and, if fewer than all the shares held by such Holder
are to be redeemed, the number of such shares to be redeemed from such
Holder; (3) the redemption price; (4) the place or places at which
certificates for such shares are to be surrendered; and (5) that dividends
on the shares to be redeemed shall cease to accrue on such Call Date except
as otherwise provided herein. Notice having been mailed as aforesaid, from
and after the Call Date (unless the Corporation shall fail to provide an
amount of cash necessary to effect such redemption), (i) except as
otherwise provided herein, dividends on the Series F Equity Shares so
called for redemption shall cease to accrue, (ii) such shares shall no
longer be deemed to be outstanding, and (iii) all rights of the Holders
thereof as holders of Series F Equity Shares shall cease (except the rights
to receive the cash payable upon such redemption, without interest thereon,
upon surrender and endorsement of their certificates if so required and to
receive any dividends payable thereon). The Corporation's obligation to
provide cash in accordance with the preceding sentence shall be deemed
fulfilled if, on or before the Call Date, the Corporation shall deposit
such cash with a bank or trust company that has an office in the Borough of
Manhattan, The City of New York, and that has capital and surplus of at
least $150,000,000, necessary for such redemption, in trust, with
irrevocable instructions that such cash be applied to the redemption of the
Series F Equity Shares so called for redemption. Notwithstanding the
foregoing the Corporation shall, in the first instance, send the cash to
any Holder that has notified the Corporation in writing of the location of
delivery of funds. No interest shall accrue for the benefit of the Holders
to be redeemed on any cash so set aside by the Corporation. Subject to
applicable escheat laws, any such cash unclaimed at the end of two years
from the Call Date shall revert to the general funds of the Corporation,
after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Corporation for the payment of
such cash.
As promptly as practicable after the surrender in accordance with
such notice of the certificates for any such shares so redeemed (properly
endorsed or assigned for transfer, if the Corporation shall so require and
if the notice shall so state), such shares shall be exchanged for any cash
(without interest thereon) for which such shares have been redeemed. If
fewer than all the outstanding Series F Equity Shares are to be redeemed,
shares to be redeemed shall be selected by the Corporation from outstanding
Series F Equity Shares eligible for redemption not previously called for
redemption pro rata (as nearly as may be), by lot or by any other method
determined by the Corporation in its sole discretion to be equitable. If
fewer than all the Series F Equity Shares evidenced by any certificate are
redeemed, then new certificates evidencing the unredeemed shares shall be
issued without cost to the holder thereof.
Section 6. Shares To Be Retired. All Series F Equity Shares which
shall have been issued and reacquired in any manner by the Corporation
shall be restored to the status of authorized but unissued preferred stock,
without discretion as to class or series, and subject to applicable
limitations set forth in the Articles may thereafter be reissued as shares
of any series of preferred stock.
Section 7. Ranking. Any class or series of stock of the Corporation
shall be deemed to rank:
(a) prior to or senior to the Series F Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class or series shall
be entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in
preference or priority to the Holders which shall expressly include the
Corporation's Senior Preferred Shares;
(b) on a parity with the Series F Preferred Shares, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates, dividend
payment dates or redemption or liquidation prices per share thereof
shall be different from those of the Series F Preferred Shares, if the
holders of such class or series and the Series F Preferred Shares shall
be entitled to the receipt of dividends and of amounts distributable
upon liquidation, dissolution or winding up in proportion to their
respective amounts of accrued and unpaid dividends per share or
liquidation preferences, without preference or priority one over the
other ("Parity Shares"), which shall expressly include the
Corporation's Series A Shares, Series B Shares, Series C Preferred
Shares, Series C-1 Preferred Shares, Series C-2 Preferred Shares,
Series D Preferred Shares, Series D-1 Preferred Shares and Series E
Preferred Shares;
(c) junior to the Series F Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Junior
Shares; and
(d) junior to the Series F Preferred Shares, as to the payment of
dividends and as to the distribution of assets upon liquidation,
dissolution or winding up, if such class or series shall be Fully
Junior Shares.
Section 8. Voting. So long as any Series F Equity Shares are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the Articles:
(a) Each Holder shall be entitled to the number of votes equal to
the number of such Holder's Series F Preferred Shares multiplied by the
Dividend Factor, as adjusted, and shall have voting rights and powers
equal to the voting rights and powers of the Common Shares (except as
otherwise expressly provided herein or as required by law, voting
together with the Common Shares as a single class) and shall be
entitled to notice of any stockholders' meeting in accordance with the
Bylaws of the Corporation. Fractional votes shall not, however, be
permitted and any fractional voting rights resulting from the above
formula (after aggregating all Series F Preferred Shares held by each
Holder) shall be rounded down to the nearest whole number.
(b) In addition, the affirmative vote of the Holders of a majority
of the Series F Equity Shares, voting together as a class, given in
person or by proxy, either in writing without a meeting or by vote at
any meeting called for the purpose, shall be necessary for effecting or
validating:
(i) Any amendment, alteration or repeal of any of the provisions
of the Articles of Incorporation or this Certificate of Designation
that materially and adversely affects the voting powers, rights or
preferences of the Holders; or
(ii) Any merger or consolidation of the Corporation and another
entity in which the Corporation is not the surviving corporation and
each Holder does not receive shares of the surviving corporation with
substantially similar rights, preferences and powers in the surviving
corporation as the Series F Equity Shares have with respect to the
Corporation (except for changes that do not materially and adversely
affect the Holders).
provided, however, that no such vote of the Holders shall be required
if, at or prior to the time when such amendment, alteration or repeal
is to take effect, or when the issuance of any such prior shares or
convertible security is to be made, as the case may be, provision is
made for the redemption of all Series F Equity Shares at the time
outstanding to the extent such redemption is authorized by Section 5
of this Certificate of Designation.
(iii) Solely for purposes of this Section 8(b), each Series F
Equity Share shall have one (1) vote per share, except that when any
other series of Preferred Equity Shares shall have the right to vote
with the Series F Equity Shares as a single class on any matter, then
the Series F Equity Shares shall have with respect to such matters
one (1) vote per $1,000.00 (or less pursuant to Section 4(a)) of
stated Liquidation Preference.
Section 9. Record Holders. The Corporation and the Transfer Agent may
deem and treat the record holder of any Series F Preferred Shares as the
true and lawful owner thereof for all purposes, and neither the Corporation
nor the Transfer Agent shall be affected by any notice to the contrary.
Section 10. Title. This resolution shall be known and may be referred
to as "A Resolution of the Board of Directors of Westfield America, Inc.
Designating Series F Preferred Shares and Fixing Preferences and Rights
Thereof."
FURTHER RESOLVED, that the appropriate officers of the Corporation
are hereby authorized and directed to execute and acknowledge a certificate
setting forth these resolutions and to cause such certificate to be filed
and recorded, all in accordance with the requirements of Section 351.046 of
the General and Business Corporation Law of the State of Missouri, as
amended.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Designation to be duly executed by its Co-President this 20th day of May,
2000.
WESTFIELD AMERICA, INC.
By: /s/ Richard E. Green
---------------------------
Name: Richard E. Green
Title: Co-President
CORPORATE ACKNOWLEDGMENT
STATE OF )
) SS:
COUNTY OF )
I, LEESA A. ASHLEY, a notary public, do hereby certify that on this
20th day of May, 2000, personally appeared before me RICHARD E. GREEN, and
being first duly sworn by me, declared that he is the Co-President of
Westfield America, Inc., that he signed the foregoing document as
Co-President of the corporation, and that the statements therein contained
are true.
[SEAL] /s/ Leesa A. Ashley
---------------------
Notary Public
My Commission Expires: April 30, 2001
