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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM 8-A/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:
--------------------
(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
------------------- ------------------------------
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.
----
(Title of Class)
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On February 13, 1998, Crescent Real Estate Equities Company filed a Form
8-A relating to its proposed issuance of a series of preferred shares of
beneficial interest. This Form 8-A/A amends and restates the Form 8-A in its
entirety to reflect updated information relating to such series of preferred
shares and the related Statement of Designation and form of certificate.
<PAGE> 3
Item 1. Description of Registrant's Securities to be Registered.
Information concerning the 6 3/4% 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 section of the prospectus supplement relating to the Preferred Shares
entitled "Description of Series A Preferred Shares," to be filed by the Company
under the Securities Act and Rule 424 promulgated thereunder on or about
February 18, 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).
2
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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 18, 1998 By: /s/ DAVID M. DEAN
---------------------------------
David M. Dean
Senior Vice President, Law
and Secretary
3
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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>
<PAGE> 1
EXHIBIT 4.06
STATEMENT OF DESIGNATION
OF
6-3/4% SERIES A CONVERTIBLE CUMULATIVE PREFERRED SHARES
OF
CRESCENT REAL ESTATE EQUITIES COMPANY
The undersigned, the President and Chief Executive Officer 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, acting
through an authorized committee thereof, 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 this 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 subsection (d) of subparagraph (7)
hereof. The initial conversion price per Common Share shall be $40.86
(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.
"Declaration of Trust" shall mean the Company's Restated
Declaration of Trust, as the same may be amended from time to time.
"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.
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"Junior Shares" shall have the meaning set forth in subparagraph
(2) of paragraph B.
"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, of the Company.
"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 6- 3/4%
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
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or delivered to a disbursing, paying or other similar agent, then "set apart
for payment" with respect to the Series A Preferred Shares shall mean placing
such funds in a separate account or delivering such funds to a disbursing,
paying or other similar agent.
"Trading Day" shall mean any day on which the securities in
question are traded on the NYSE, or if such securities are not listed or
admitted for trading on the NYSE, on the principal national securities exchange
on which such securities are listed or admitted, or if not listed or admitted
for trading on any national securities exchange, on the Nasdaq National Market,
or if such securities are not quoted on such Nasdaq National Market, in the
applicable securities market in which the securities are traded.
"Transaction" shall have the meaning set forth in 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 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 $1.6875 per share per year, payable in equal
amounts of $.421875 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 May 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
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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 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 such time, if any, as may be fixed by the Board of Trust Managers, and
shall first be credited against the earliest accrued but unpaid distributions
due and payable with respect to such Series A Preferred Shares.
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 $1.6875 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
series of Parity Shares or any other class or series of 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
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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
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 an amount equal to
distributions accrued and unpaid thereon to the
date fixed for such dissolution, liquidation or
winding up of the Company.
(b) After the payment to the holders of the Series A
Preferred Shares of the full preferential amounts
provided for in this subparagraph (4), 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
Parity Shares are not paid in full, the holders of
the Series A Preferred Shares and of such Parity
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 subparagraph (4) 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, of the Company for
the purposes of this subparagraph (4).
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(5) Redemption at the Option of the Company.
(a) Subject to subsections (b) and (h) of this
subparagraph (5), 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 from time to time in
part, as set forth herein, at a redemption price of
$25.00 per Series A Preferred Share, subject to the
provisions below.
(b) Prior to 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, if the Board of Trust Managers determines
that such a redemption is necessary or advisable to
preserve the status of the Company as a REIT for
federal income tax purposes, subject to the
provisions 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
as may be determined by the Board of Trust Managers
or in such other manner as prescribed by the
Company's Board of Trust Managers in its sole
discretion to be equitable, provided that such
method satisfies any applicable requirements of any
securities exchange on which the Series A Preferred
Shares are listed. 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 Code, as specified in
the 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 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 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
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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 Series A Preferred Share
certificates are to be surrendered for payment, the
date on which such holder's conversion rights as to
the Series A Preferred Shares shall terminate, and
that distributions on the Series A Preferred Shares
will cease to accrue on the specified redemption
date.
(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 certificate 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
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and unpaid distributions up to the Series A
Preferred Shares Redemption Date). Any moneys 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.
(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
(i) all outstanding Series A Preferred Shares are
simultaneously redeemed or (ii) the Board of Trust
Managers determines that such redemption is
necessary or advisable to preserve the status of
the Company as a REIT for federal income tax
purposes; 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.
(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) If at any time, whether or not prior to February
18, 2003, the Company is subject to the
jurisdiction of an agency or other authority of any
state, county, city or other political subdivision
with respect to any activities of the Company or
any of its subsidiaries related to gaming (a
"Gaming Authority"), and such Gaming Authority
requires a record or beneficial owner to be found
suitable, then notwithstanding any other provision
of this Statement of Designation, the Company shall
have the right, by written notice to such record or
beneficial owner, (i) to require such record or
beneficial owner of Series A Preferred Shares to
apply, at such owner's sole cost and expense as to
the application and related investigation, for a
finding of suitability by such
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Gaming Authority and (ii) as to any record or
beneficial owner that is required to be, but is
not, found suitable by such Gaming Authority, (A)
to require such record or beneficial owner to
dispose of such owner's Series A Preferred Shares
within 30 days or within the time prescribed by
such Gaming Authority, whichever is earlier, and
(B) if such disposition is not made in
accordance with clause (A), to redeem each Series
A Preferred Share of such owner at a redemption
price of $25.00 per Series A Preferred Share, on
the terms set forth above (other than subsection
(f) of this subparagraph (5), which subsection
shall not apply to any such redemption).
(i) The Series A Preferred Shares have no stated
maturity date and will not be subject to any
sinking fund or mandatory redemption.
(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.
(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) hereof
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).
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(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
share issuable on conversion is 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
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 transferee) 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.
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<PAGE> 12
As promptly as practicable after the surrender of
certificates for Series A Preferred Shares as
aforesaid, the Company shall issue and shall
deliver at the office of the Transfer Agent 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
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 Series A Preferred Shares. Instead
of any fractional interest in a Common Share that
would otherwise be deliverable upon the conversion
of a Series A Preferred Share, the 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.
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<PAGE> 13
(d) The Conversion Price shall be adjusted from time to
time as follows:
(i) If the Company shall after the Issue Date
(A) pay or make a distribution on its Common
Shares in Common Shares, (B) subdivide its
outstanding Common Shares into a greater
number of shares, (C) combine its
outstanding Common Shares into a smaller
number of shares or (D) issue any shares of
beneficial interest by reclassification of
its Common Shares, then in each such case
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
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
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<PAGE> 14
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 adjustments shall be made
successively whenever any such rights,
options 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 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, options or warrants
to subscribe for or purchase any of its
securities (excluding those rights, options
and warrants issued to all holders of Common
Shares entitling them for a period expiring
within 45 days after the record
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<PAGE> 15
date referred to in subsection (ii) above to
subscribe for or purchase Common Shares,
which rights, options 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, 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 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"
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<PAGE> 16
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 such plan. All calculations
under this subparagraph (7) shall be made to
the nearest cent (with $.005 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 sole 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 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)
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<PAGE> 17
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
rights of the election, if any, as to the kind or
amount of shares, stock, securities and other
property (including 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.
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<PAGE> 18
(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
all holders of the Common 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 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 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 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, options 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, options or warrants are to be
determined, provided, however, that no such
notification need be made in respect
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<PAGE> 19
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,
self tender offer, 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, self tender offer, 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 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 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
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<PAGE> 20
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 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,
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<PAGE> 21
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, 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.
(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.
(n) Whenever reference is made in this subparagraph (7)
to the issuance or sale of Common Shares, the term
"Common Shares" shall include any shares of
beneficial interest of any class of the Company
other than preferred shares of any class with a
fixed (absolutely or by reference to an adjustment
formula) limit on dividends and a fixed amount
payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Company.
(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 Trust Managers or for
any other purposes or otherwise to participate
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<PAGE> 22
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
Distribution Periods, whether or not such
Distribution Periods are consecutive, 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) (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 Declaration of
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<PAGE> 23
Trust or this Statement of Designation, 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,
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 power.
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.
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.
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<PAGE> 24
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. Adoption.
This Statement of Designation was duly adopted by the Board of
Trust Managers of the Company. Shareholder action was not required.
* * *
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<PAGE> 25
IN WITNESS WHEREOF, I hereby certify that I, Gerald W. Haddock, am the
President and Chief Executive Officer 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 as of February 13,
1998 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: Gerald W. Haddock
Title: President and Chief Executive
Officer
The undersigned, David M. Dean, the Senior Vice President, Law and
Secretary of the Company, hereby certifies that Gerald W. Haddock is the
President and Chief Executive Officer 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 February, 1998.
---------------------------------------
Name: David M. Dean
Title: Senior Vice President, Law
and Secretary
-25-
<PAGE> 1
EXHIBIT 4
[FRONT]
NUMBER SHARES
FORMED UNDER THE LAWS OF THIS CERTIFICATE IS TRANSFERABLE
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
6 3/4% SERIES A CONVERTIBLE
CUMULATIVE PREFERRED SHARES OF
BENEFICIAL INTEREST
PAR VALUE $.01
- --------------------------------------------------------------------------------
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]
A FULL STATEMENT OF ALL OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES OF THE COMPANY'S SHARES
OF BENEFICIAL INTEREST, TO THE EXTENT THEY HAVE BEEN FIXED AND DETERMINED, AND
THE AUTHORITY OF THE TRUST MANAGERS TO FIX AND DETERMINE THE DESIGNATIONS,
PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF SUBSEQUENT SERIES IS SET FORTH
IN THE COMPANY'S DECLARATION OF TRUST AND THE STATEMENT OF DESIGNATION ON FILE
WITH THE COUNTY CLERK OF TARRANT COUNTY, TEXAS. THE COMPANY, ON WRITTEN REQUEST
TO THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS OR
REGISTERED OFFICE, WILL FURNISH A COPY THEREOF TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE.
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 ----------------------------------
CERTIFICATE IN EVERY (SIGNATURE)
PARTICULAR WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
<PAGE> 4
- --------------------------------------------------------------------------------
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:
- --------------------------------------------------------------------------------
