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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Crescent Real Estate Equities Company
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(Exact Name of Registrant as Specified in its Charter)
Texas 52-1862813
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(State of Incorporation or Organization) (I.R.S. Employer
Identification no.)
777 Main Street, Suite 2100
Fort Worth, TX 76102
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the registration of a If this form relates to the
class of debt securities and is effective registration of a class of
upon filing pursuant to General debt securities and is to
Instruction A(c)(1) please check the become simultaneously
following box. [ ] with the effectiveness of a
concurrent registration
statement under the
Securities Act of 1933
pursuant to General
Instruction A(c)(2) please
check the following box.[ ]
Securities Act registration statement file number to which this form relates:
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(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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New York Stock Exchange, Inc.
6-3/4% Series A Convertible Cumulative
Preferred Shares, par value $0.01 per share
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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(Title of Class)
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Item 1. Description of Registrant's Securities to be Registered.
Information concerning the % Series A Convertible Cumulative Preferred
Shares of beneficial interest, par value $0.01 per share (the "Preferred
Shares"), of Crescent Real Estate Equities Company (the "Company"), to be
registered hereunder is incorporated by reference to the section entitled
"Description of Preferred Shares" in the prospectus forming a part of the
Registration Statement on Form S-3 (Registration No. 333-38071), filed by the
Company under the Securities Act of 1933, as amended (the "Securities Act"), and
the prospectus supplement, relating to the Preferred shares, to be filed by the
Company under the Securities Act and Rule 424 promulgated thereunder on or about
February 17, 1998.
Item 2. Exhibits.
1. Restated Declaration of Trust of the Company (filed as Exhibit 4.01
to the Company's Registration Statement on Form S-3 (Registration No. 333-21905)
and incorporated herein by reference).
2. Form of Statement of Designation of 6-3/4% Series A Convertible
Cumulative Preferred Shares of the Company (filed herewith).
3. Amended and Restated Bylaws of the Company, as amended (filed as
Exhibit 4.02 to the Company's Current Report on Form 8-K dated October 8, 1997
and filed October 14, 1997 and incorporated herein by reference).
4. Form of Certificate of 6-3/4% Series A Convertible Cumulative
Preferred Shares of the Company (filed herewith).
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
CRESCENT REAL ESTATE EQUITIES COMPANY
Date: February 13, 1998 By:
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David M. Dean
Senior Vice President, Law
and Secretary
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
1 Restated Declaration of Trust of the Company (filed as Exhibit
4.01 to the Company's Registration Statement on Form S-3
(Registration No. 333-21905) and incorporated herein by
reference).
2 Form of Statement of Designation of 6-3/4% Series A Convertible
Cumulative Preferred Shares of the Company (filed herewith).
3 Amended and Restated Bylaws of the Company, as amended (filed as
Exhibit 4.02 to the Company's Current Report on Form 8-K dated
October 8, 1997 and filed October 14, 1997 and incorporated
herein by reference).
4 Form of Certificate of 6-3/4% Series A Convertible Cumulative
Preferred Shares of the Company (filed herewith).
</TABLE>
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EXHIBIT 2
STATEMENT OF DESIGNATION
OF
6-3/4% SERIES A CUMULATIVE CONVERTIBLE PREFERRED SHARES
OF
CRESCENT REAL ESTATE EQUITIES COMPANY
The undersigned, the _____________________ of Crescent Real Estate
Equities Company, a real estate investment trust organized and existing under
the Texas Real Estate Investment Trust Act, as amended (the "Company"),
certifies that pursuant to the authority granted to and vested in the Board of
Trust Managers of the Company by the provisions of the Restated Declaration of
Trust of the Company, the Board of Trust Managers, acting through an authorized
committee thereof, has adopted the following resolution designating a new series
of preferred shares of beneficial interest of the Company.
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board of Trust Managers of the Company by the provisions of the
Restated Declaration of Trust of the Company, the Board of Trust Managers hereby
designates 9,200,000 6-3/4% Series A Convertible Cumulative Preferred Shares of
beneficial interest, $.01 par value per share (Liquidation Preference $25.00 Per
Share) (the "Series A Preferred Shares"), and authorizes the issuance thereof,
and hereby fixes the designation and number thereof and the voting powers,
preferences and relative, participating, optional and other special rights of
such shares, and the qualifications, limitations or restrictions thereto as
follows:
A. Certain Definitions.
Unless the context otherwise requires, the terms defined in
this Paragraph A shall have, for all purposes of these Statement of Designation,
the meanings herein specified (with terms defined in the singular having
comparable meanings when used in the plural).
"Board of Trust Managers" shall mean the Board of Trust
Managers of the Company or any committee authorized by such Board of Trust
Managers to perform any of its responsibilities with respect to the Series A
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 or Dallas, Texas are authorized or required by law,
regulation or executive order to close.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, from time to time.
"Common Shares" shall mean the common shares of beneficial
interest, $.01 par value per share, of the Company.
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"Constituent Person" shall have the meaning set forth in
subsection (e) of subparagraph (7) of paragraph B.
"Conversion Price" shall mean the conversion price per Common
Share for which the Series A Preferred Shares are convertible, as such
Conversion Price may be adjusted pursuant to subparagraph (7) hereof. The
initial conversion price shall be $40.868 (equivalent to a conversion rate of
.6119 Common Shares for each Series A Preferred Share).
"Current Market Price" of publicly traded common shares or any
other class of shares of beneficial interest or other security of the Company or
any other issuer for any day shall mean the last reported sales price, regular
way, on such day or, if no sale takes place on such day, the average of the
reported closing bid and asked prices on such day, regular way, in either case
as reported on the New York Stock Exchange ("NYSE") or, if such security is not
listed or admitted for trading on the NYSE, on the principal national securities
exchange on which such security is listed or admitted for trading or, if not
listed or admitted for trading on any national securities exchange, on the
Nasdaq National Market or, if such security is not quoted on such Nasdaq
National Market, the average of the closing bid and asked prices on such day in
the over-the-counter market as reported by Nasdaq or, if bid and asked prices
for such security on such day shall not have been reported through Nasdaq, the
average of the bid and asked prices on such day as furnished by any NYSE member
firm regularly making a market in such security and selected for such purpose by
the Chief Executive Officer of the Company or the Board of Trust Managers.
"Distribution Payment Date" shall have the meaning set forth
in subparagraph (3) of paragraph B.
"Distribution Period" shall have the meaning set forth in
subparagraph (3) of paragraph B.
"Fair Market Value" shall mean the average of the daily
Current Market Prices of a Common Share during the five (5) consecutive Trading
Days selected by the Company commencing not more than 20 Trading Days before,
and ending not later than, the earlier of the day in question and the day before
the "ex date" with respect to the issuance or distribution requiring such
computation. The term "ex date" when used with respect to any issuance or
distribution, means the first day on which the Common Shares trade regular way,
without the right to receive such issuance or distribution, on the exchange or
in the market, as the case may be, used to determine that day's Current Market
Price.
"Issue Date" shall mean the first date on which Series A
Preferred Shares are issued and sold.
"Junior Shares" shall have the meaning set forth in
subparagraph (2) of paragraph B.
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"Non-Electing Share" shall have the meaning set forth in
subsection (e) of subparagraph (7) of paragraph B.
"Parity Shares" shall have the meaning set forth in
subparagraph (2) of paragraph B.
"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, and also includes a group as that
term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended; but does not include an underwriter which participates in a
public offering of the Series A Preferred Shares provided that the ownership of
Series A Preferred Shares by such Underwriter would not result in the Company
being "closely held" within the meaning of Section 856(h) of the Code, or would
otherwise result in the Company failing to qualify as a REIT.
"Preferred Shares" shall mean preferred shares of beneficial
interest, $.01 par value per share.
"Record Date" shall have the meaning set forth in subparagraph
(3) of paragraph B.
"REIT" shall mean a real estate investment trust under Section
856 of the Code.
"Securities" shall have the meaning set forth in subsection
(d)(iii) of subparagraph (7) of paragraph B.
"Series A Preferred Shares" shall mean the Company's __%
Series A Convertible Cumulative Preferred Shares of beneficial interest, $.01
par value per share, liquidation value $25.00 per share.
"Series A Preferred Shares Redemption Date" shall have the
meaning set forth in subsection (d) of subparagraph (5) of paragraph B hereof.
"Set apart for payment" shall be deemed to include, without
any action other than the following, the recording by the Company in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of distributions by the Board of Trust Managers, the
allocation of funds to be so paid on any series or class of shares of beneficial
interest; provided, however, that if any funds for any class or series of Junior
Shares or any class or series of shares of beneficial interest ranking on a
parity with the Series A Preferred Shares as to the payment of distributions are
placed in a separate account of the Company or delivered to a disbursing, paying
or other similar agent, then "set apart for payment" with respect to the Series
A Preferred Shares shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
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"Trading Day" shall mean any day on which the securities in
question are traded on the NYSE, or if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities exchange
on which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on the Nasdaq National Market,
or if such securities are not quoted on such Nasdaq National Market, in the
applicable securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in subsection
(e) of subparagraph (7) of paragraph B hereof.
"Transfer Agent" means BankBoston, N.A. or such other agent or
agents of the Company as may be designated by the Board of Trust Managers or
their designee as the transfer agent for the Series A Preferred Shares.
B. Series A Preferred Shares
(1) Number. The maximum number of shares of the Series A
Preferred Shares shall be 9,200,000.
(2) Relative Seniority. In respect of rights to receive
distributions and to participate in distributions or payments in the event of
any liquidation, dissolution or winding up of the Company, the Series A
Preferred Shares shall rank pari passu with any other preferred shares of
beneficial interest of the Company (the "Parity Shares"), and will rank senior
to the Common Shares and any other class or series of shares of beneficial
interest of the Company ranking, as to distributions and upon liquidation,
junior (collectively, the "Junior Shares") to the Parity Shares.
(3) Distributions. The holders of the then outstanding Series
A Preferred Shares shall be entitled to receive, when and as declared by the
Board of Trust Managers out of any funds legally available therefor, cumulative
cash distributions at the rate of $[1.688] per share per year, payable in equal
amounts of $[.422] per share quarterly in cash on the 15th day, or if not a
Business Day, the next succeeding Business Day, of February, May, August and
November in each year, beginning November 15, 1998 (each such day being
hereinafter called a "Distribution Payment Date" and each period ending on a
Distribution Payment Date being hereinafter called a "Distribution Period"),
with respect to each Distribution Period, to shareholders of record at the close
of business on such date as shall be fixed by the Board of Trust Managers at the
time of declaration of the distribution (the "Record Date"), which shall not be
less than 10 nor more than 30 days preceding the Distribution Payment Date. The
amount of any distribution payable for the initial Distribution Period and for
any other Distribution Period shorter than a full Distribution Period shall be
prorated and computed on the basis of a 360-day year of twelve 30-day months.
Distributions on each Series A Preferred Share shall accrue and be cumulative
from and including the date of original issue thereof, whether or not (i)
distributions on such shares are earned or declared or (ii) on any Distribution
Payment Date there shall be funds legally available for the payment of
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distributions. Distributions paid on the Series A Preferred Shares in an amount
less than the total amount of such distributions at the time accrued and payable
on such shares shall be allocated pro rata on a per share basis among all such
shares at the time outstanding. Distributions on account of arrears for any past
distribution periods may be declared and paid at any time, without reference to
any regular distribution, as may be fixed by the Board of Trust Managers.
The amount of any distributions accrued on any Series A
Preferred Shares at any Distribution Payment Date shall be the amount of any
unpaid distributions accumulated thereon through and during such Distribution
Period, to and including such Distribution Payment Date, whether or not earned
or declared, and the amount of distributions accrued on any Series A Preferred
Shares at any date other than a Distribution Payment Date shall be equal to the
sum of the amount of any unpaid distributions accumulated thereon, to and
including the last preceding Distribution Payment Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual distribution rate
of $[1.688] for the period after such last preceding Distribution Payment Date
to and including the date as of which the calculation is made, based on a
360-day year of twelve 30-day months.
If any Series A Preferred Shares are outstanding, no full
distributions shall be declared or paid or set apart for payment on any other
class or series of Parity Shares or Junior Shares for any period unless full
cumulative distributions have been declared and paid or declared and a sum
sufficient for the payment thereof has been set apart for such payment on the
Series A Preferred Shares for all past distribution periods and the then current
distribution period. If distributions are not paid in full, or not declared in
full and a sum sufficient for such full payment is not set apart for the payment
thereof, upon the Series A Preferred Shares and any class or series of Parity
Shares, all distributions declared upon Series A Preferred Shares and upon any
other class or series of Parity Shares shall be paid or declared pro rata so
that in all cases the amount of distributions paid or declared per share on the
Series A Preferred Shares and Parity Shares shall bear to each other the same
ratio that accumulated distributions per share, including distributions accrued
or in arrears, if any, on the Series A Preferred Shares and Parity Shares bear
to each other. Except as provided in the preceding sentence, unless full
cumulative distributions on the Series A Preferred Shares have been paid or
declared and a sum sufficient for such full payment set apart for payment for
all past distribution periods and the then current distribution period, no
distributions (other than distributions in shares of Common Shares or in any
other Junior Shares) shall be declared or paid or set apart for payment or other
distribution upon the Company's Common Shares, or, except as provided above, on
any other Junior Shares or Parity Shares, nor shall any Common Shares or any
other Junior Shares or Parity Shares be redeemed, purchased or otherwise
acquired for any consideration (or any payment made to or available for a
sinking fund for the redemption of any such shares) by the Company or any
subsidiary of the Company (except by conversion into or exchange for Junior
Shares). Holders of the Series A Preferred Shares shall not be entitled to any
distributions, whether payable in cash, property or shares of beneficial
interest, in excess of full accrued and cumulative distributions as herein
provided. No interest
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or sum of money in lieu of interest shall be payable in respect of any
distribution payment or payments on the Series A Preferred Shares that may be in
arrears.
Except as provided in this Statement of Designation, the
Series A Preferred Shares shall not be entitled to participate in the earnings
or assets of the Company.
(4) Liquidation Preference.
(a) Upon the voluntary or involuntary
dissolution, liquidation or winding up of
the Company, the holders of the Series A
Preferred Shares then outstanding shall be
entitled to receive and to be paid out of
the assets of the Company legally available
for distribution to its shareholders, before
any payment or distribution shall be made on
any Junior Shares, the amount of $25.00 per
Series A Preferred Share, plus accrued and
unpaid distributions thereon.
(b) After the payment to the holders of the
Series A Preferred Shares of the full
preferential amounts provided for in this
paragraph B, the holders of the Series A
Preferred Shares as such shall have no right
or claim to any of the remaining assets of
the Company.
(c) If, upon any voluntary or involuntary
dissolution, liquidation, or winding up of
the Company, the amounts payable with
respect to the preference value of the
Series A Preferred Shares and any other
shares of beneficial interest of the Company
ranking as to any such distribution on a
parity with the Series A Preferred Shares
are not paid in full, the holders of the
Series A Preferred Shares and of such other
shares will share ratably in any such
distribution of assets of the Company in
proportion to the full respective
preferential amounts provided for in this
paragraph B to which they are entitled.
(d) Neither the sale of all or substantially all
the property or business of the Company, nor
the merger or consolidation of the Company
into or with any other entity or the merger
or consolidation of any other entity into or
with the Company, shall be deemed to be a
dissolution, liquidation or winding up,
voluntary or involuntary, for the purposes
of this paragraph B.
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(5) Redemption at the Option of the Company.
(a) Subject to paragraph C, the Series A
Preferred Shares shall not be redeemable by
the Company prior to February 18, 2003. On
and after February 18, 2003, the Company, at
its option, may redeem the Series A
Preferred Shares, in whole or in part, as
set forth herein, subject to the provisions
described below.
(b) On and after February 18, 2003, the Series A
Preferred Shares may be redeemed at the
option of the Company, in whole or from time
to time in part, at a redemption price of
$25.00 per Series A Preferred Share, upon
giving of notice as provided below:
(c) If fewer than all of the outstanding Series
A Preferred Shares are to be redeemed, the
shares to be redeemed will be determined pro
rata or by lot or in such other manner as
prescribed by the Company's Board of Trust
Managers in its sole discretion. In the
event that such redemption is to be by lot,
if as a result of such redemption any holder
of Series A Preferred Shares would own, or
be deemed to own by virtue of certain
attribution provisions of the Internal
Revenue Code of 1986, as amended (the
"Code"), as specified in the Company's
Declaration of Trust, in excess of 9.9% of
the Series A Preferred Shares issued and
outstanding because such holder's Series A
Preferred Shares were not redeemed, or were
only redeemed in part, then, except in
certain instances, the Company will redeem
the requisite number of Series A Preferred
Shares of such shareholder such that he will
not own, or be deemed to own by virtue of
certain attribution provisions of the Code,
as specified in the Company's Declaration of
Trust in excess of 9.9% of Series A
Preferred Shares issued and outstanding
subsequent to such redemption. A new
certificate shall be issued representing any
unredeemed Series A Preferred Shares without
cost to the holder thereof.
(d) Notice of redemption will be mailed, not
less than 30 nor more than 60 days prior to
the date fixed for redemption, to each
holder of record of Series A Preferred
Shares to be redeemed, notifying such holder
of the Company's election to redeem such
shares, stating the date fixed for
redemption thereof (the "Series A Preferred
Shares Redemption Date"), the redemption
price, the number of shares to be redeemed
(and, if fewer than all the Series A
Preferred Shares are to be redeemed, the
number of shares to be redeemed from such
holder), the place(s) where the
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Series A Preferred Share certificates are to
be surrendered for payment, that
distributions on the Series A Preferred
Shares will cease to accrue on the specified
redemption date and the date on which such
holder's conversion rights as to the Series
A Preferred Shares shall terminate.
(e) On or after the Series A Preferred Shares
Redemption Date, each holder of Series A
Preferred Shares to be redeemed must present
and surrender his Series A Preferred Share
certificates to the Company at the place
designated in such notice and thereupon the
redemption price of such shares will be paid
to or on the order of the person whose name
appears on such Series A Preferred Share
certificates as the owner thereof and each
such Series A Preferred Share certificates
surrendered will be canceled. From and after
the Series A Preferred Shares Redemption
Date (unless the Company defaults in payment
of the redemption price), all distributions
on the Series A Preferred Shares designated
for redemption in such notice will cease to
accrue and all rights of the holders thereof
(including conversion rights), except the
right to receive the redemption price
thereof (including all accrued and unpaid
distributions up to the Series A Preferred
Shares Redemption Date), will cease and
terminate and such shares will not
thereafter be transferred (except with the
consent of the Company) on the Company's
books, and such shares shall not be deemed
to be outstanding for any purpose
whatsoever. At its election, the Company,
prior to the Series A Preferred Shares
Redemption Date, may irrevocably deposit the
redemption price (including accrued and
unpaid distributions) of the Series A
Preferred Shares so called for redemption in
trust for the holders thereof with a bank or
trust company, in which case such notice to
holders of the Series A Preferred Shares to
be redeemed will (i) state the date of such
deposit, (ii) specify the office of such
bank or trust company as the place of
payment of the redemption price and (iii)
call upon such holders to surrender the
Series A Preferred Share certificates
representing such shares at such place on or
about the date fixed in such redemption
notice (which may not be later than the
Series A Preferred Shares Redemption Date)
against payment of the redemption price
(including all accrued and unpaid
distributions up to the Series A Preferred
Shares Redemption Date). Any monies so
deposited which remain unclaimed by the
holders of the Series A Preferred Shares at
the end of two years after the Series A
Preferred Shares Redemption Date will be
returned by such bank or trust company to
the Company.
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(f) Notwithstanding the foregoing, unless full
cumulative distributions on all outstanding
Series A Preferred Shares for all past
distribution periods and the then current
distribution period have been paid, or
declared and a sum sufficient for the
payment thereof set apart for payment, no
Series A Preferred Shares shall be redeemed
unless all outstanding Series A Preferred
Shares are simultaneously redeemed;
provided, however, that the foregoing shall
not prevent the purchase or acquisition of
Series A Preferred Shares pursuant to a
purchase or exchange offer made on the same
terms to holders of all outstanding Series A
Preferred Shares, and, unless full
cumulative distributions on all outstanding
Series A Preferred Shares for all past
distribution periods and the then current
distribution period have been paid, or
declared and a sum sufficient for the
payment thereof set apart, the Company shall
not purchase or otherwise acquire directly
or indirectly any Series A Preferred Shares
(except by conversion into or exchange for
shares of beneficial interest of the Company
ranking junior to the Series A Preferred
Shares as to distribution rights and
liquidation preference).
(g) The holders of Series A Preferred Shares at
the close of business on a Distribution
Record Date will be entitled to receive the
distribution payable with respect to such
Series A Preferred Shares on the
corresponding Distribution Payment Date
notwithstanding the redemption thereof
between such Distribution Record Date and
the corresponding Distribution Payment Date
or the Company's default in the payment of
the distribution due. Except as provided
above, the Company will make no payment or
allowance for unpaid distributions, whether
or not in arrears, on Series A Preferred
Shares which have been called for
redemption.
(h) The Series A Preferred Shares have no stated
maturity date and will not be subject to any
sinking fund or mandatory redemption
provisions.
(6) Shares to be Retired.
All Series A Preferred Shares which shall have been issued and
reacquired in any manner by the Company shall be restored to the status of
authorized but unissued Preferred Shares, without designation as to series.
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(7) Conversion.
Holders of Series A Preferred Shares shall have the right to
convert all or a portion of such shares into Common Shares, as follows:
(a) Subject to and upon compliance with the
provisions of this subparagraph (7), a
holder of Series A Preferred Shares shall
have the right, at his option, at any time
to convert such shares into the number of
fully paid and nonassessable Common Shares
obtained by dividing the aggregate
liquidation preference of such shares by the
Conversion Price (as in effect at the time
and on the date provided for in the last
paragraph of subsection (b) of this
subparagraph (7)) by surrendering such
shares to be converted, such surrender to be
made in the manner provided in subsection
(b) of this subparagraph (7); provided,
however, that the right to convert shares
called for redemption pursuant to
subparagraph (5) shall terminate at the
close of business on the Series A Preferred
Shares Redemption Date fixed for such
redemption, unless the Company shall default
in making payment of any amounts payable
upon such redemption under subparagraph (5)
hereof.
(b) In order to exercise the conversion right,
the holder of each Series A Preferred Share
to be converted shall surrender the
certificate representing such share, duly
endorsed or assigned to the Company or in
blank, at the office of the Transfer Agent,
accompanied by written notice to the Company
that the holder thereof elects to convert
such Series A Preferred Share. Unless the
shares issuable on conversion are to be
issued in the same name as the name in which
such Series A Preferred Share is registered,
each share surrendered for conversion shall
be accompanied by instruments of transfer,
in form satisfactory to the Company, duly
executed by the holder or such holder's duly
authorized attorney and an amount sufficient
to pay any transfer or similar tax (or
evidence reasonably satisfactory to the
Company demonstrating that such taxes have
been paid).
Holders of Series A Preferred Shares at the
close of business on a distribution payment
record date shall be entitled to receive the
distribution payable on such shares on the
corresponding Distribution Payment Date
notwithstanding the conversion thereof
following such distribution payment record
date and prior to such Distribution Payment
Date. However, Series A Preferred Shares
surrendered for conversion during the period
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between the close of business on any
distribution payment record date and the
opening of business on the corresponding
Distribution Payment Date (except shares
converted after the issuance of notice of
redemption with respect to a Series A
Preferred Shares Redemption Date during such
period or coinciding with such Distribution
Payment Date, such Series A Preferred Shares
being entitled to such distribution on the
Distribution Payment Date) must be
accompanied by payment of an amount equal to
the distribution payable on such shares on
such Distribution Payment Date. A holder of
Series A Preferred Shares on a distribution
payment record date who (or whose
transferees) tenders any such shares for
conversion into Common Shares on such
Distribution Payment Date will receive the
distribution payable by the Company on such
Series A Preferred Shares on such date, and
the converting holder need not include
payment of the amount of such distribution
upon surrender of Series A Preferred Shares
for conversion. Except as provided above,
the Company shall make no payment or
allowance for unpaid distributions, whether
or not in arrears, on converted shares or
for distributions on the Common Shares
issued upon such conversion.
As promptly as practicable after the
surrender of certificates for Series A
Preferred Shares as aforesaid, the Company
shall issue and shall deliver at such office
to such holder, or on his written order, a
certificate or certificates for the number
of full Common Shares issuable upon the
conversion of such shares in accordance with
the provisions of this subparagraph (7), and
any fractional interest in respect of a
Common Share arising upon such conversion
shall be settled as provided in subsection
(c) of this subparagraph (7).
Each conversion shall be deemed to have been
effected immediately prior to the close of
business on the date on which the
certificates for Series A Preferred Shares
shall have been surrendered and such notice
(and if applicable, payment of an amount
equal to the distribution payable on such
shares) received by the Company as
aforesaid, and the person or persons in
whose name or names any certificate or
certificates for Common Shares shall be
issuable upon such conversion shall be
deemed to have become the holder or holders
of record of the shares represented thereby
at such time on such date, and such
conversion shall be at the Conversion Price
in effect at such time and on such date
unless the share transfer books of the
Company
11
<PAGE> 12
shall be closed on that date, in which event
such person or persons shall be deemed to
have become such holder or holders of record
at the close of business on the next
succeeding day on which such share transfer
books are open, but such conversion shall be
at the Conversion Price in effect on the
date on which such shares have been
surrendered and such notice received by the
Company.
(c) No fractional shares of scrip representing
fractions of Common Shares shall be issued
upon conversion of the Series A Preferred
Shares. Instead of any fractional interest
in a Common Share that would otherwise be
deliverable upon the conversion of a share
of Series A Preferred Shares, the Company
shall pay to the holder of such share an
amount in cash based upon the Current Market
Price of Common Shares on the Trading Day
immediately preceding the date of
conversion. If more than one Series A
Preferred Share shall be surrendered for
conversion at one time by the same holder,
the number of full Common Shares issuable
upon conversion thereof shall be computed on
the basis of the aggregate number of Series
A Preferred Shares so surrendered.
(d) The Conversion Price shall be adjusted from
time to time as follows:
(i) If the Company shall after the Issue
Date (A) pay a distribution or make
a distribution on its Common Shares,
(B) subdivide its outstanding Common
Shares into a greater number of
shares, (C) combine its outstanding
Common Shares into a smaller number
of shares or (D) issue any shares of
beneficial interest by
reclassification of its Common
Shares, the Conversion Price in
effect at the opening of business on
the day following the date fixed for
the determination of shareholders
entitled to receive such
distribution or at the opening of
business on the day following the
day on which such subdivision,
combination or reclassification
becomes effective, as the case may
be, shall be adjusted so that the
holder of any Series A Preferred
Shares thereafter surrendered for
conversion shall be entitled to
receive the number of Common Shares
that such holder would have owned or
have been entitled to receive after
the happening of any of the events
described above had such shares been
converted immediately prior to the
record
12
<PAGE> 13
date in the case of a distribution
or the effective date in the case of
a subdivision, combination or
reclassification. An adjustment made
pursuant to this subsection (i)
shall become effective immediately
after the opening of business on the
day next following the record date
(except as provided in paragraph (h)
below) in the case of a distribution
and shall become effective
immediately after the opening of
business on the day next following
the effective date in the case of a
subdivision, combination or
reclassification. Such adjustment(s)
shall be made successively whenever
any of the events listed above shall
occur.
(ii) If the Company shall issue after the
Issue Date rights, options or
warrants to all holders of Common
Shares entitling them (for a period
expiring within 45 days after the
record date mentioned below) to
subscribe for or purchase Common
Shares at a price per share less
than the Fair Market Value per
Common Share on the record date for
the determination of shareholders
entitled to receive such rights,
options or warrants, then the
Conversion Price in effect at the
opening of business on the day next
following such record date shall be
adjusted to equal the price
determined by multiplying (I) the
Conversion Price in effect
immediately prior to the opening of
business on the day following the
date fixed for such determination by
(II) a fraction, the numerator of
which shall be the sum of (A) the
number of Common Shares outstanding
on the close of business on the date
fixed for such determination and (B)
the number of Common Shares that the
aggregate proceeds to the Company
from the exercise of such rights,
options or warrants for Common
Shares would purchase at such Fair
Market Value, and the denominator of
which shall be the sum of (A) the
number of Common Shares outstanding
on the close of business on the date
fixed for such determination and (B)
the number of additional Common
Shares offered for subscription or
purchase pursuant to such rights,
options or warrants. Such adjustment
shall be made successively whenever
any such rights or warrants are
issued, and shall become effective
immediately after the opening of
business on the day next following
such record date (except as provided
in subsection (h) below). In
determining whether any
13
<PAGE> 14
rights, options or warrants entitle
the holders of Common Shares to
subscribe for or purchase Common
Shares at less than the Fair Market
Value, there shall be taken into
account any consideration received
by the Company upon issuance and
upon exercise of such rights,
options or warrants, the value of
such consideration, if other than
cash, to be determined by the Chief
Executive Officer of the Company or
the Board of Trust Managers.
(iii) If the Company shall distribute to
all holders of its Common Shares any
shares of beneficial interest of the
Company (other than Common Shares)
or evidence of its indebtedness or
assets (excluding cash distributions
paid out of the total equity
applicable to Common Shares,
including revaluation equity, less
the amount of stated capital
attributable to Common Shares,
determined on the basis of the most
recent annual consolidated cost
basis and current value basis and
quarterly consolidated balance
sheets of the Company and its
consolidated subsidiaries available
at the time of the declaration of
the distribution) or rights or
warrants to subscribe for or
purchase any of its securities
(excluding those rights and warrants
issued to all holders of Common
Shares entitling them for a period
expiring within 45 days after the
record date referred to in
subsection (ii) above to subscribe
for or purchase Common Shares, which
rights and warrants are referred to
in and treated under subsection (ii)
above) (any of the foregoing being
hereinafter in this subsection (iii)
called the "Securities"), then in
each case the Conversion Price shall
be adjusted so that it shall equal
the price determined by multiplying
(I) the Conversion Price in effect
immediately prior to the close of
business on the date fixed for the
determination of shareholders
entitled to receive such
distribution by (II) a fraction, the
numerator of which shall be the Fair
Market Value per Common Share on the
record date mentioned below less the
then fair market value (as
determined by the Chief Executive
Officer of the Company or the Board
of Trust Managers, whose
determination shall be conclusive)
of the portion of the shares of
beneficial interest or assets or
evidences of indebtedness so
distributed or of such rights or
warrants applicable to one Common
Share, and the denominator of which
shall be the Fair Market Value per
Common Share on the record date
mentioned below.
14
<PAGE> 15
Such adjustment shall become
effective immediately at the opening
of business on the Business Day next
following (except as provided in
subsection (h) below) the record
date for the determination of
shareholders entitled to receive
such distribution. For the purposes
of this subsection (iii), the
distribution of a Security, which is
distributed not only to the holders
of the Common Shares on the date
fixed for the determination of
shareholders entitled to such
distribution of such Security, but
also is distributed with each Common
Share delivered to a Person
converting a Series A Preferred
Share after such determination date,
shall not require an adjustment of
the Conversion Price pursuant to
this subsection (iii); provided that
on the date, if any, on which a
person converting a Series A
Preferred Share would no longer be
entitled to receive such Security
with a Common Share (other than as a
result of the termination of all
such Securities), a distribution of
such Securities shall be deemed to
have occurred, and the Conversion
Price shall be adjusted as provided
in this subsection (iii) (and such
day shall be deemed to be "the date
fixed for the determination of the
shareholders entitled to receive
such distribution" and "the record
date" within the meaning of the two
preceding sentences).
(iv) No adjustment in the Conversion
Price shall be required 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 subsection (iv)
are not required to be made shall be
carried forward and taken into
account in any subsequent adjustment
until made; and provided, further,
that any adjustment shall be
required and made in accordance with
the provisions of this subparagraph
(7) (other than this subsection
(iv)) not later than such time as
may be required in order to preserve
the tax-free nature of a
distribution to the holders of
Common Shares. Notwithstanding any
other provisions of this
subparagraph (7), the Company shall
not be required to make any
adjustment of the Conversion Price
for the issuance of any Common
Shares pursuant to any plan
providing for the reinvestment of
distributions or interest payable on
securities of the Company and the
investment of additional optional
amounts in Common Shares under
15
<PAGE> 16
such plan. All calculations under
this subparagraph (7) shall be made
to the nearest cent (with $.05 being
rounded upward) or to the nearest
one-ten-thousandth of a share (with
.0005 of a share being rounded
upward), as the case may be.
Anything in this subsection (d) to
the contrary notwithstanding, the
Company shall be entitled, to the
extent permitted by law, to make
such reductions in the Conversion
Price, in addition to those required
by this subsection (d), as it in its
discretion shall determine to be
advisable in order that any share
distributions, subdivision of
shares, reclassification or
combination of shares, distribution
of rights, options or warrants to
purchase shares or securities, or a
distribution of other assets (other
than cash distributions) hereafter
made by the Company to its
shareholders shall not be taxable.
(e) If the Company shall be a party to any
transaction (including without limitation a
merger, consolidation, statutory share
exchange, self tender offer for all or
substantially all of the Common Shares, sale
of all or substantially all of the Company's
assets or recapitalization of the Common
Shares and excluding any transaction as to
which subsection (d)(i) of this subparagraph
(7) applied) (each of the foregoing being
referred to herein as a "Transaction"), in
each case as a result of which Common Shares
shall be converted into the right to receive
shares, stock, securities or other property
(including cash or any combination thereof),
each Series A Preferred Share which is not
converted into the right to receive shares,
stock, securities or other property in
connection with such Transaction shall
thereafter be convertible into the kind and
amount of shares, stock, securities and
other property (including cash or any
combination thereof) receivable upon the
consummation of such Transaction by a holder
of that number of Common Shares into which
one Series A Preferred Share was convertible
immediately prior to such Transaction,
assuming such holder of Common Shares (i) is
not a Person with which the Company
consolidated or into which the Company
merged or which merged into the Company or
to which such sale or transfer was made, as
the case may be (a "Constituent Person"), or
an affiliate of a Constituent Person and
(ii) failed to exercise his or her rights of
the election, if any, as to the kind or
amount of shares, stock, securities and
other property (including
16
<PAGE> 17
cash) receivable upon such Transaction (each
a "Non-Electing Share") (provided that if
the kind or amount of shares, stock,
securities and other property (including
cash) receivable upon such Transaction by
each Non-Electing Share is not the same for
each Non-Electing Share, then the kind and
amount of shares, stock, securities and
other property (including cash) receivable
upon such Transaction for each Non-Electing
Share shall be deemed to be the kind and
amount so receivable per share by a
plurality of the Non-Electing Shares). The
Company shall not be a party to any
Transaction unless the terms of such
Transaction are consistent with the
provisions of this subsection (e), and it
shall not consent or agree to the occurrence
of any Transaction until the Company has
entered into an agreement with the successor
or purchasing entity, as the case may be,
for the benefit of the holders of the Series
A Preferred Shares that will require such
successor or purchasing entity, as the case
may be, to make provision in its certificate
or articles of incorporation or other
constituent documents to the end that the
provisions of this subsection (e) shall
thereafter correspondingly be made
applicable as nearly as may reasonably be,
in relation to any shares of stock or other
securities or property thereafter
deliverable upon conversion of the Series A
Preferred Shares. The provisions of this
subsection (e) shall similarly apply to
successive Transactions.
(f) If:
(i) the Company shall declare a
distribution on the Common Shares
(other than in cash out of the total
equity applicable to Common Shares,
including revaluation equity, less
the amount of stated capital
attributable to Common Shares,
determined on the basis of the most
recent annual consolidated cost
basis and current value basis and
quarterly consolidated balance
sheets of the Company and its
consolidated subsidiaries available
at the time of the declaration of
the distribution); or
(ii) the Company shall authorize the
granting to the holders of the
Common Shares of rights or warrants
to subscribe for or purchase any
shares of any class or any other
rights or warrants; or
(iii) there shall be any reclassifications
of the Common Shares (other than an
event to which subsection (d)(i) of
this subparagraph (7) applied) or
any consolidation or merger to which
the Company is a party and for which
approval of any shareholders of the
Company is required, or a
17
<PAGE> 18
statutory share exchange involving
the conversion or exchange of Common
Shares into securities or other
property, or a self tender offer by
the Company for all or substantially
all of its outstanding Common
Shares, or the sale or transfer of
all or substantially all of the
assets of the Company as an entity
and for which approval of any
stockholder of the Company is
required; or
(iv) there shall occur the voluntary or
involuntary liquidation, dissolution
or winding up of the Company,
then the Company shall cause to be filed
with the Transfer Agent and shall cause to
be mailed to the holders of the Series A
Preferred Shares at their addresses as shown
on the share records of the Company, as
promptly as possible, but at least 15 days
prior to the applicable date hereinafter
specified, a notice stating (A) the date on
which a record is to be taken for the
purpose of such distribution or grant of
rights or warrants, or, if a record is not
to be taken, the date as of which the
holders of Common Shares of record to be
entitled to such distribution or grant of
rights or warrants are to be determined,
provided, however, that no such notification
need be made in respect of a record or
determination date for a distribution or
grant of rights unless the corresponding
adjustment in the Conversion Price would be
an increase or decrease of at least 1% or
(B) the date on which such reclassification,
consolidation, merger, statutory share
exchange, sale, transfer, liquidation,
dissolution or winding up is expected to
become effective, and the date as of which
it is expected that holders of Common Shares
of record shall be entitled to exchange
their Common Shares for securities or other
property, if any, deliverable upon such
reclassification, consolidation, merger,
statutory share exchange, sale, transfer,
liquidation, dissolution or winding up.
Failure to give or receive such notice or
any defect therein shall not affect the
legality or validity of the proceedings
described in this subparagraph (7).
(g) Whenever the Conversion Price is adjusted as
herein provided, the Company shall promptly
file with the Transfer Agent an officer's
certificate setting forth the Conversion
Price after such adjustment and setting
forth a brief statement of the facts
requiring such adjustment, which certificate
shall be conclusive evidence of the
correctness of such adjustment absent
manifest error. Promptly after delivery of
such certificate, the Company shall prepare
a notice of such adjustment of the
Conversion Price
18
<PAGE> 19
setting forth the adjusted Conversion Price
and the effective date such adjustment
becomes effective and shall mail such notice
of such adjustment of the Conversion Price
to the holder of each Series A Preferred
Share at such holder's last address as shown
on the share records of the Company.
(h) In any case in which subsection (d) of this
subparagraph (7) provides that an adjustment
shall become effective on the date next
following the record date for an event, the
Company may defer until the occurrence of
such event (A) issuing to the holder of any
Series A Preferred Shares converted after
such record date and before the occurrence
of such event the additional Common Shares
issuable upon such conversion by reason of
the adjustment required by such event over
and above the Common Shares issuable upon
such conversion before giving effect to such
adjustment and (B) fractionalizing any
Series A Preferred Share and/or paying to
such holder any amount of cash in lieu of
any fraction pursuant to subsection (c) of
this subparagraph (7).
(i) There shall be no adjustment of the
Conversion Price in case of the issuance of
any shares of beneficial interest of the
Company in a reorganization, acquisition or
other similar transaction except as
specifically set forth in this subparagraph
(7). If any action or transaction would
require adjustment of the Conversion Price
pursuant to more than one subsection of this
subparagraph (7), only one adjustment shall
be made, and such adjustment shall be the
amount of adjustment that has the highest
absolute value.
(j) If the Company shall take any action
affecting the Common Shares, other than
action described in this subparagraph (7),
that in the opinion of the Board of Trust
Managers would materially adversely affect
the conversion rights of the holders of the
Series A Preferred Shares, the Conversion
Price for the Series A Preferred Shares may
be adjusted, to the extent permitted by law,
in such manner, if any, and at such time, as
the Board of Trust Managers, in its sole
discretion, may determine to be equitable in
the circumstances.
(k) The Company covenants that it will at all
times reserve and keep available, free from
preemptive rights, out of the aggregate of
its authorized but unissued Common Shares,
for the purpose of effecting conversion of
the Series A Preferred Shares, the full
number of Common Shares deliverable upon the
conversion of
19
<PAGE> 20
all outstanding Series A Preferred Shares
not theretofore converted. For purposes of
this subsection (k), the number of Common
Shares that shall be deliverable upon the
conversion of all outstanding Series A
Preferred Shares shall be computed as if at
the time of computation all such outstanding
shares were held by a single holder.
The Company covenants that any Common Shares
issued upon conversion of the Series A
Preferred 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 Shares deliverable
upon conversion of the Series A Preferred
Shares, the Company will take any action
that, in the opinion of its counsel, may be
necessary in order that the Company may
validly and legally issue fully paid and
nonassessable Common Shares at such adjusted
Conversion Price.
The Company shall endeavor to list the
Common Shares required to be delivered upon
conversion of the Series A Preferred Shares,
prior to such delivery, upon each national
securities exchange, if any, upon which the
outstanding Common Shares are listed at the
time of such delivery.
Prior to the delivery of any securities that
the Company shall be obligated to deliver
upon conversion of the Series A Preferred
Shares, the Company shall endeavor to comply
with all federal and state laws and
regulations thereunder requiring the
registration of such securities with, or any
approval of or consent to the delivery
thereof by any governmental authority.
(l) The Company will pay any and all documentary
stamp or similar issue or transfer taxes
payable in respect of the issue or delivery
of Common Shares or other securities or
property on conversion of the Series A
Preferred Shares pursuant hereto; provided,
however, that the Company shall not be
required to pay any tax that may be payable
in respect of any transfer involved in the
issue or delivery of Common Shares or other
securities or property in a name other than
that of the holder of the Series A Preferred
Shares to be converted, and no such issue or
delivery shall be made unless and until the
person requesting such issue or delivery has
paid to the Company the amount of any such
tax or has established, to the reasonable
satisfaction of the Company, that such tax
has been paid.
20
<PAGE> 21
(m) In addition to the foregoing adjustments,
the Company will be permitted to make such
reductions in the Conversion Price as it
considers to be advisable in order that any
event treated for federal income tax
purposes as a dividend of stock or stock
rights will not be taxable to the holders of
the Common Shares.
(8) Voting Rights. Except as required by law or as provided
below, the holders of the Series A Preferred Shares shall not be entitled to
vote at any meeting of the shareholders for election of trustees or for any
other purposes or otherwise to participate in any action taken by the Company or
the shareholders thereof, or to receive notice of any meeting of shareholders.
(a) In any matter in which the Series A
Preferred Shares are entitled to vote (as
expressly provided herein or as may be
required by law), including any action by
written consent, each Series A Preferred
Share shall be entitled to one vote.
(b) Whenever distributions on any Series A
Preferred Shares shall be in arrears for six
or more quarterly periods, the holders of
the Series A Preferred Shares, voting
separately as a class with all other series
of Preferred Shares upon which like voting
rights have been conferred and are
exercisable, will be entitled to vote for
the election of two additional Trust
Managers of the Company at a special meeting
called by the holders of record of at least
ten percent (10%) of any series of Preferred
Shares so in arrears (unless such request is
received less than 90 days before the date
fixed for the next annual or special meeting
of the shareholders) or at the next annual
meeting of shareholders, and all other Trust
Managers of the Company shall be elected by
the holders of the Company's Common Shares.
In such case, the entire Board of Trust
Managers of the Company will be increased by
two Trust Managers. Voting rights of the
holders of the Series A Preferred Shares
shall continue at each subsequent annual
meeting until all distributions accumulated
on such Series A Preferred Shares for the
past distribution periods and the then
current distribution period shall have been
fully paid or declared and a sum sufficient
for the payment thereof set aside for
payment.
(c) As long as any Series A Preferred Shares
remain outstanding, the Company will not,
without the affirmative vote or consent of
the holders of at least two-thirds of the
Series A Preferred Shares outstanding at the
time, given in person or by proxy, either in
writing or at a meeting (such series voting
separately as a class)
21
<PAGE> 22
(i) authorize or create, or increase the
authorized or issued amount of, any class or
series of shares of beneficial interest
ranking prior to the Series A Preferred
Shares with respect to the payment of
distributions or the distribution of assets
upon liquidation, dissolution or winding up
or reclassify any authorized shares of
beneficial interest of the Company into such
shares, or create, authorize or issue any
obligation or security convertible into or
evidencing the right to purchase any such
shares; or (ii) amend, alter or repeal the
provisions of the Company's Declaration of
Trust or the Statement of Designation for
the Series A Preferred Shares whether by
merger, consolidation or otherwise (an
"Event"), so as to materially and adversely
affect any right, preference, privilege or
voting power of the Series A Preferred
Shares or the holders thereof; provided,
however, with respect to the occurrence of
any of the Events set forth in (ii) above,
so long as the Series A Preferred Shares (or
shares into which the Series A Preferred
Shares have been converted in any successor
entity to the Company) remain outstanding
with the terms thereof materially unchanged,
taking into account that upon the occurrence
of an Event, the Company may not be the
surviving entity, the occurrence of any such
Event shall not be deemed to materially and
adversely affect such rights, preferences,
privileges or voting power of holders of
Series A Preferred Shares and provided
further that (x) any increase in the amount
of the authorized Preferred Shares or the
creation or issuance of any other Series A
Preferred Shares, or (y) any increase in the
amount of authorized Series A Preferred
Shares or any other Preferred Shares, in
each case ranking on a parity with or junior
to the Series A Preferred Shares with
respect to payment of distributions or the
distribution of assets upon liquidation,
dissolution or winding up, shall not be
deemed to materially and adversely affect
such rights, preferences, privileges or
voting powers.
The foregoing voting provisions will not
apply if, at or prior to the time when the
act with respect to which such vote would
otherwise be required shall be effected, all
outstanding Series A Preferred Shares shall
have been redeemed or called for redemption
and sufficient funds shall have been
deposited in trust to effect such
redemption.
22
<PAGE> 23
C. Exclusion of Other Rights.
Except as may otherwise be required by law, the Series A
Preferred Shares shall not have any voting powers, preferences and relative,
participating, optional or other special rights, other than those specifically
set forth in this Statement of Designation (as such Statement of Designation may
be amended from time to time) and in the Declaration of Trust. The Series A
Preferred Shares shall have no preemptive or subscription rights.
D. Headings of Subdivisions.
The headings of the various subdivisions hereof are for
convenience of reference only and shall not affect the interpretation of any of
the provisions hereof.
E. Severability of Provisions.
If any voting powers, preferences and relative, participating,
optional and other special rights of the Series A Preferred Shares and
qualifications, limitations and restrictions thereof set forth in this Statement
of Designation (as such Statement of Designation may be amended from time to
time) is invalid, unlawful or incapable of being enforced by reason of any rule
of law or public policy, all other voting powers, preferences and relative,
participating, optional and other special rights of Series A Preferred Shares
and qualifications, limitations and restrictions thereof set forth in this
Statement of Designation (as so amended) which can be given effect without the
invalid, unlawful or unenforceable voting powers, preferences and relative,
participating, optional or other special rights of Series A Preferred Shares and
qualifications, limitations and restrictions thereof herein set forth shall be
deemed dependent upon any other such voting powers, preferences and relative,
participating, optional or other special right of Series A Preferred Shares and
qualifications, limitations and restrictions thereof unless so expressed herein.
F. This Statement of Designation was duly adopted by the Board of
Trust Managers of the Company. Shareholder action was not required.
* * *
23
<PAGE> 24
IN WITNESS WHEREOF, I hereby certify that I, ________________, am
______________________ of Crescent Real Estates Equities Company (the "Company")
and that as such, I am authorized to execute and file with the County Clerk of
Tarrant County, Texas this Statement of Designation (the "Statement of
Designation") on behalf of the Company and I further certify on behalf of the
Company that this Statement of Designation was authorized by the Board of Trust
Managers by unanimous written consent dated _________________ and is still in
full force and effect as of the date hereof. I further certify that my signature
to this document is my free act and deed, that to the best of my knowledge,
information and belief, the matters and facts set forth herein are true in all
material respects and that this statement is made under penalty of perjury.
CRESCENT REAL ESTATE EQUITIES COMPANY
--------------------------------------
Name:
Title:
The undersigned, David M. Dean, the Senior Vice President, Law and
Secretary of the Company, hereby certifies that ________________ is the
________________ of the Company and that the signature set forth above is his
genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ____
day of ________________, 1998.
--------------------------------------
Name: David M. Dean
24
<PAGE> 1
EXHIBIT 4
[FRONT]
6 3/4% SERIES A CONVERTIBLE 6 3/4% SERIES A CONVERTIBLE
CUMULATIVE PREFERRED SHARES OF CUMULATIVE PREFERRED SHARES OF
BENEFICIAL INTEREST BENEFICIAL INTEREST
PAR VALUE $.01 PAR VALUE $.01
NUMBER FORMED UNDER THE LAWS OF THIS CERTIFICATE IS TRANSFERABLE SHARES
THE STATE OF TEXAS IN NEW YORK, NEW YORK OR
BOSTON, MASS.
CUSIP (PENDING)
SEE REVERSE FOR CERTAIN DEFINITIONS
CRESCENT
REAL ESTATE EQUITIES COMPANY
A TEXAS REAL ESTATE INVESTMENT TRUST
- --------------------------------------------------------------------------------
THIS CERTIFIES THAT
IS THE OWNER OF
- --------------------------------------------------------------------------------
FULLY PAID AND NONASSESSABLE 6-3/4% SERIES A CONVERTIBLE CUMULATIVE
PREFERRED SHARES OF BENEFICIAL INTEREST OF
Crescent Real Estate Equities Company (the "Company"), transferable to the
Company by the holder hereof in person, or by duly authorized attorney upon
surrender of this Certificate properly endorsed. This Certificate is not valid
unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Company and the facsimile signatures of its
duly authorized representatives.
Dated:
Countersigned and Registered
BANKBOSTON, N.A.
[SIG] [SIG] By Transfer Agent
Secretary President and Registrar
Authorized Signature
THERE ARE RESTRICTIONS ON THE TRANSFER OF THE SHARES EVIDENCED BY THIS
CERTIFICATE AS MORE FULLY SET FORTH ON THE REVERSE SIDE HEREOF.
<PAGE> 2
[REVERSE]
[CRESCENT REAL ESTATE EQUITIES COMPANY LOGO]
THE COMPANY WILL FURNISH TO ANY SHAREHOLDER ON REQUEST AND WITHOUT CHARGE A
FULL STATEMENT OF THE DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER
RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO THE DIVIDENDS,
QUALIFICATIONS AND TERMS AND CONDITIONS OF REDEMPTION OF THE SHARES OF
BENEFICIAL INTEREST OF EACH CLASS WHICH THE COMPANY IS AUTHORIZED TO ISSUE, OR
THE DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE SHARES OF
EACH SERIES WHICH THE COMPANY IS AUTHORIZED TO ISSUE, TO THE EXTENT THEY HAVE
BEEN SET, AND OF THE AUTHORITY OF THE BOARD OF TRUST MANAGERS TO SET THE
RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES. SUCH REQUEST MAY BE MADE
TO THE SECRETARY OF THE COMPANY OR TO ITS TRANSFER AGENT.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER AND OWNERSHIP FOR THE PURPOSE OF THE MAINTENANCE OF THE COMPANY'S
STATUS AS A REAL ESTATE INVESTMENT TRUST (A "REIT") UNDER SECTIONS 856 THROUGH
860 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"). EXCEPT AS
OTHERWISE PROVIDED PURSUANT TO THE RESTATED DECLARATION OF TRUST, NO PERSON MAY
(i) BENEFICIALLY OR CONSTRUCTIVELY OWN COMMON SHARES OF BENEFICIAL INTEREST OF
THE COMPANY IN EXCESS OF 8.0 PERCENT (OR SUCH GREATER PERCENT AS MAY BE
DETERMINED BY THE BOARD OF TRUST MANAGERS OF THE COMPANY) OF THE OUTSTANDING
COMMON SHARES OF BENEFICIAL INTEREST (EXCEPT, TO THE EXTENT APPLICABLE, IN SUCH
CIRCUMSTANCES AS THE EXISTING HOLDER LIMIT SHALL APPLY); (ii) BENEFICIALLY OR
CONSTRUCTIVELY OWN PREFERRED SHARES OF BENEFICIAL INTEREST OF THE COMPANY OF ANY
SERIES IN EXCESS OF 9.9 PERCENT OF THE OUTSTANDING PREFERRED SHARES OF
BENEFICIAL INTEREST OF SUCH SERIES; OR (iii) BENEFICIALLY OR CONSTRUCTIVELY OWN
COMMON SHARES OF BENEFICIAL INTEREST OR PREFERRED SHARES OF BENEFICIAL INTEREST
(OF ANY CLASS OR SERIES) WHICH WOULD RESULT IN THE COMPANY BEING "CLOSELY HELD"
UNDER SECTION 856(b) OF THE CODE OR WHICH OTHERWISE COULD CAUSE THE COMPANY TO
FAIL TO QUALIFY AS A REIT. ANY PERSON WHO HAS BENEFICIAL OR CONSTRUCTIVE
OWNERSHIP OR WHO ACQUIRES OR ATTEMPTS TO ACQUIRE BENEFICIAL OR CONSTRUCTIVE
OWNERSHIP OF COMMON SHARES OF BENEFICIAL INTEREST AND/OR PREFERRED SHARES OF
BENEFICIAL INTEREST IN EXCESS OF THE ABOVE LIMITATIONS AND ANY PERSON WHO
BENEFICIALLY OR CONSTRUCTIVELY OWNS EXCESS SHARES OF BENEFICIAL INTEREST AS A
TRANSFEREE OF COMMON OR PREFERRED SHARES OF BENEFICIAL INTEREST RESULTING IN AN
EXCHANGE FOR EXCESS SHARES OF BENEFICIAL INTEREST (AS DESCRIBED BELOW)
IMMEDIATELY MUST NOTIFY THE COMPANY IN WRITING OR IN THE EVENT OF A PROPOSED OR
ATTEMPTED TRANSFER OR ACQUISITION OR PURPORTED CHANGE IN BENEFICIAL OR
CONSTRUCTIVE OWNERSHIP, MUST GIVE WRITTEN NOTICE TO THE COMPANY AT LEAST FIFTEEN
(15) DAYS PRIOR TO THE PROPOSED OR ATTEMPTED TRANSFER, TRANSACTION OR OTHER
EVENT. ANY TRANSFER OR ACQUISITION OF COMMON SHARES OF BENEFICIAL INTEREST
AND/OR PREFERRED SHARES OF BENEFICIAL INTEREST OR OTHER EVENT WHICH RESULTS IN
VIOLATION OF THE OWNERSHIP OR TRANSFER LIMITATIONS SET FORTH IN THE COMPANY'S
RESTATED DECLARATION OF TRUST SHALL BE VOID AB INITIO AND
<PAGE> 3
THE PURPORTED BENEFICIAL AND RECORD TRANSFEREE SHALL NOT HAVE OR ACQUIRE ANY
RIGHTS IN SUCH COMMON SHARES OF BENEFICIAL INTEREST AND/OR PREFERRED SHARES OF
BENEFICIAL INTEREST. IF THE TRANSFER AND OWNERSHIP LIMITATIONS REFERRED TO
HEREIN ARE VIOLATED, THE COMMON OR PREFERRED SHARES OF BENEFICIAL INTEREST
REPRESENTED HEREBY AUTOMATICALLY WILL BE EXCHANGED FOR EXCESS SHARES OF
BENEFICIAL INTEREST TO THE EXTENT OF VIOLATION OF SUCH LIMITATIONS, AND SUCH
EXCESS SHARES OF BENEFICIAL INTEREST WILL BE HELD IN TRUST BY THE COMPANY, ALL
AS PROVIDED BY THE RESTATED DECLARATION OF TRUST OF THE COMPANY. ALL DEFINED
TERMS USED IN THIS LEGEND HAVE THE MEANINGS IDENTIFIED IN THE COMPANY'S RESTATED
DECLARATION OF TRUST, AS THE SAME MAY BE AMENDED FROM TIME TO TIME, AND THE
STATEMENT OF DESIGNATION, COPIES OF WHICH, INCLUDING THE RESTRICTIONS ON
TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _____ Custodian ________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ___________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ___________________ hereby sell, assign and transfer
unto
PLEASE INSERT SOCIAL SECURITY NUMBER OR THE
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------------------------------------------------
- -----------------------------------------------------------------------Attorney
to transfer the said shares on the books of the within-named Company with full
power of substitution in the premises.
Dated, X
---------------------------- ----------------------------------
NOTICE: (SIGNATURE)
THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND
WITH THE NAME(S) AS WRITTEN X
----------------------------------
UPON THE FACE OF THE (SIGNATURE)
CERTIFICATE IN EVERY
PARTICULAR WITHOUT ALTERATION
<PAGE> 4
OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
- --------------------------------------------------------------------------------
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN "ELIGIBLE GUARANTOR
INSTITUTION" AS DEFINED IN RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.
- --------------------------------------------------------------------------------
SIGNATURE(S) GUARANTEED BY:
- --------------------------------------------------------------------------------
