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EXHIBIT 3.3
ARTICLES SUPPLEMENTARY
APARTMENT INVESTMENT AND MANAGEMENT COMPANY
CLASS P CONVERTIBLE CUMULATIVE PREFERRED STOCK
(PAR VALUE $.01 PER SHARE)
APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation
(hereinafter called the "Corporation"), having its principal office in Baltimore
City, Maryland, hereby certifies to the Department of Assessments and Taxation
of the State of Maryland that:
FIRST: Pursuant to authority expressly vested in the Board of Directors
of the Corporation by Section 1.2 of Article IV of the Charter of the
Corporation, as amended to date (the "Charter"), the Board of Directors has duly
divided and classified 4,000,000 authorized but unissued shares of Class A
Common Stock of the Corporation, par value $.01 per share (the "Class A Common
Stock"), into a class designated as Class P Convertible Cumulative Preferred
Stock, par value $.01 per share, and has provided for the issuance of such
class.
SECOND: The reclassification increases the number of shares classified
as Class P Convertible Cumulative Preferred Stock, par value $.01 per share,
from no shares immediately prior to the reclassification to 4,000,000 shares
immediately after the reclassification. The reclassification decreases the
number of shares classified as Class A Common Stock from 468,432,738 shares
immediately prior to the reclassification to 464,432,738 shares immediately
after the reclassification.
THIRD: The terms of the Class P Convertible Cumulative Preferred Stock
(including the preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications, or terms or conditions of redemption) as set by the Board of
Directors are as follows:
1. NUMBER OF SHARES AND DESIGNATION.
This class of Preferred Stock shall be designated as Class P
Convertible Cumulative Preferred Stock, par value $.01 per share (the "Class P
Preferred Stock"), and Four Million (4,000,000) shall be the authorized number
of shares of such Class P Preferred Stock constituting such class.
2. DEFINITIONS.
For purposes of the Class P Preferred Stock, the following terms shall
have the meanings indicated:
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"Act" shall mean the Securities Act of 1933, as amended.
"affiliate" of a Person shall mean a Person that directly, or
indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Person specified.
"Aggregate Value" shall mean, with respect to any block of Equity
Stock, the sum of the products of (i) the number of shares of each
class of Equity Stock within such block multiplied by (ii) the
corresponding Market Price of one share of Equity Stock of such class.
"Base Common Stock Dividend" shall have the meaning set forth in
paragraph (a) of Section 9 of this Article.
"Base Rate" shall mean a quarterly dividend payment in an amount per
share equal to $.5625; provided, however, that from and after the date
of a Change of Control, the "Base Rate" shall mean a quarterly dividend
payment in an amount per share equal to (i) for all Dividend Periods
commencing after the date of such Change of Control, the greater of (a)
$0.75 or (b) the product of (x) $6.25 and (y) the sum of 800 basis
points plus the greater of (x) the annual yield to maturity of U.S.
Treasury securities with a five year maturity and (y) the annual yield
to maturity of U.S. Treasury securities with a ten year maturity, in
each case as compiled by and published in the most recent Federal
Reserve Statistical Release H.15(519) which has become publicly
available on the second Business Day prior to the date of such Change
of Control (or, if such Statistical Release is no longer published, any
publicly available source of similar data), and (ii) for the Dividend
Period in which such Change of Control occurs, a weighted average
(based on the number of days in such Dividend Period occurring before
and after the date of such Change of Control) of (a) the Base Rate in
effect prior thereto and (b) the Base Rate determined in accordance
with the foregoing clause (i).
"Beneficial Ownership" shall mean, with respect to any Person,
ownership of shares of Equity Stock equal to the sum of (i) the number
of shares of Equity Stock directly owned by such Person, (ii) the
number of shares of Equity Stock indirectly owned by such Person (if
such Person is an "individual" as defined in Section 542(a)(2) of the
Code) taking into account the constructive ownership rules of Section
544 of the Code, as modified by Section 856(h)(1)(B) of the Code, and
(iii) the number of shares of Equity Stock that such Person is deemed
to beneficially own pursuant to Rule 13d-3 under the Exchange Act or
that is attributed to such Person pursuant to Section 318 of the Code,
as modified by Section 856(d)(5) of the Code, provided that when
applying this definition of Beneficial Ownership to the Initial Holder,
clause (iii) of this definition, and clause (a) (ii) of the definition
of "Person" shall be disregarded. The terms "Beneficial Owner,"
"Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
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"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of Directors to
perform any of its responsibilities with respect to the Class P
Preferred Stock; provided that, for purposes of paragraph (a) of
Section 9 of this Article, the term "Board of Directors" shall not
include any such committee.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New
York, New York are not required to be open.
"Change of Control" shall mean the occurrence of any of the following:
(i) the acquisition, directly or indirectly, by any individual or
entity or group (as such term is used in Section 13(d)(3) of the
Exchange Act) (other than a holder of the Class P Preferred Stock or
any of its affiliates) of beneficial ownership (as defined in Rule
13d-3 under the Exchange Act, except that such individual or entity
shall be deemed to have beneficial ownership of all shares that any
such individual or entity has the right to acquire, whether such right
is exercisable immediately or only after passage of time) of more than
25% of the Corporation's outstanding capital stock with voting power,
under ordinary circumstances, to elect directors of the Corporation;
(ii) other than with respect to the election, resignation or
replacement of any director designated, appointed or elected by the
holders of the Class P Preferred Stock (each, a "Preferred Director"),
during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of the
Corporation (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders
of the Corporation was approved by a vote of 66-2/3% of the directors
of the Corporation (excluding Preferred Directors) (the "Incumbent
Board") then still in office who were either directors at the beginning
of such period, or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors of the Corporation then in office, provided,
however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result
of either an actual or threatened "Election Contest" (as described in
Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board (a "Proxy Contest") including by reason of
any agreement intended to avoid or settle any Election Contest or Proxy
Contest; (iii) the Corporation or one of its subsidiaries is not the
general partner of the Operating Partnership; or (iv) (A) the
Corporation consolidating with or merging with or into another entity
or conveying, transferring or leasing all or substantially all of its
assets (including, but not limited to, real property investments) to
any individual or entity, or (B) any corporation consolidating with or
merging into the Corporation which, in either event (A) or (B), is
pursuant to a transaction in which the outstanding voting capital stock
of the Corporation
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is reclassified or changed into or exchanged for cash, securities or
other property; provided, however, that the events described in clause
(iv) shall not be deemed to be a Change of Control (a) if the sole
purpose of such event is that the Corporation is seeking to change its
domicile or to change its form of organization from a corporation to a
statutory business trust or (b) if (x) the holders of the exchanged
securities of the Corporation immediately after such transaction
beneficially own at least a majority of the securities of the merged or
consolidated entity normally entitled to vote in elections of
directors, (y) the chairman and the president of the Corporation
immediately prior to the execution of the transaction agreement are the
chairman and the president of the merged or consolidated company, and
(z) the individuals who were members of the Incumbent Board immediately
prior to the execution of the transaction agreement constitute at least
a majority of the members of the board of directors of the merged or
consolidated company.
"Charitable Beneficiary" shall mean one or more beneficiaries of the
Trust as determined pursuant to Section 11.3 of this Article, each of
which shall be an organization described in Section 170(b)(1)(A),
170(c)(2) and 501(c)(3) of the Code.
"Class A Common Stock" shall mean the Class A Common Stock, $.01 par
value per share, of the Corporation and such other shares of the
Corporation's capital stock into which outstanding shares of such Class
A Common Stock shall be reclassified.
"Class P Preferred Stock" shall have the meaning set forth in Section 1
of this Article.
"Closing Price" shall mean, when used with respect to a share of any
Equity Stock and for any date, the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case, as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the NYSE or, if the Equity
Stock is not listed or admitted to trading on the NYSE, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which the Equity Stock is listed or admitted to trading or, if the
Equity Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price, or if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotation System or, if such system is no longer in use,
the principal other automated quotation system that may then be in use
or, if the Equity Stock is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Equity Stock selected
by the Board of Directors of the Corporation.
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"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, or any successor statute thereto. Reference to any
provision of the Code shall mean such provision as in effect from time
to time, as the same may be amended, and any successor thereto, as
interpreted by any applicable regulations or other administrative
pronouncements as in effect from time to time.
"Conversion Price" shall mean the conversion price per share of Class A
Common Stock for which each share of Class P Preferred Stock is
convertible, as such Conversion Price may be adjusted pursuant to
Section 7 of this Article. The initial Conversion Price shall be $56.00
(equivalent to a conversion rate of 0.4464 shares of Class A Common
Stock for each share of Class P Preferred Stock).
"Dividend Payment Date" shall mean January 15, April 15, July 15 and
October 15 of each year; provided, that if any Dividend Payment Date
falls on any day other than a Business Day, the dividend payment
payable on such Dividend Payment Date shall be paid on the Business Day
immediately following such Dividend Payment Date and no interest shall
accrue on such dividend from such date to such Dividend Payment Date.
"Dividend Periods" shall mean the Initial Dividend Period and each
subsequent quarterly dividend period commencing on and including
January 15, April 15, July 15 and October 15 of each year and ending on
and including the day preceding the first day of the next succeeding
Dividend Period, other than the Dividend Period during which any Class
P Preferred Stock shall be redeemed pursuant to Section 5 hereof, which
shall end on and include the date on which the Class P Preferred Stock
is redeemed in accordance with Section 5 hereof.
"Equity Stock" shall mean one or more shares of any class of capital
stock of the Corporation.
"Excess Transfer" shall have the meaning set forth in Section 11.3(A)
of this Article.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Issue Date" shall mean [___________], 2001.
"Initial Dividend Period" shall mean the period commencing on and
including the Issue Date and ending on and including [__________],
2001.
"Initial Holder" shall mean Terry Considine.
"Initial Holder Limit" shall mean a number of the Outstanding
shares of Class P Preferred Stock of the Corporation having an
Aggregate Value not in
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excess of the excess of (x) 15% of the Aggregate Value of all
Outstanding shares of Equity Stock over (y) the Aggregate
Value of all shares of Equity Stock other than Class P
Preferred Stock that are Beneficially Owned by the Initial
Holder. From the Issue Date, the secretary of the Corporation,
or such other person as shall be designated by the Board of
Directors, shall upon request make available to the
representative(s) of the Initial Holder and the Board of
Directors, a schedule that sets forth the then-current Initial
Holder Limit applicable to the Initial Holder.
"Junior Stock" shall have the meaning set forth in paragraph
(c) of Section 8 of this Article.
"Liquidation Preference" shall have the meaning set forth in
paragraph (a) of Section 4 of this Article.
"Look-Through Entity" shall mean a Person that is either (i)
described in Section 401(a) of the Code as provided under
Section 856(h)(3) of the Code or (ii) registered under the
Investment Company Act of 1940.
"Look-Through Ownership Limit" shall mean, for any
Look-Through Entity, a number of the Outstanding shares of
Class P Preferred Stock of the Corporation having an Aggregate
Value not in excess of the excess of (x) 15% of the Aggregate
Value of all Outstanding shares of Equity Stock over (y) the
Aggregate Value of all shares of Equity Stock other than Class
P Preferred Stock that are Beneficially Owned by the
Look-Through Entity.
"Market Price" on any date shall mean, with respect to any
share of Equity Stock, the Closing Price of a share of that
class of Equity Stock on the Trading Day immediately preceding
such date.
"Merger" shall mean the merger of AIMCO/OTEF, LLC with and
into Oxford Tax Exempt Fund II Limited Partnership.
"NYSE" shall mean the New York Stock Exchange, Inc.
"Outstanding" shall mean issued and outstanding shares of
Equity Stock of the Corporation, provided that for purposes of
the application of the Ownership Limit, the Look-Through
Ownership Limit or the Initial Holder Limit to any Person, the
term "Outstanding" shall be deemed to include the number of
shares of Equity Stock that such Person alone, at that time,
could acquire pursuant to any options or convertible
securities.
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"Ownership Limit" shall mean, for any Person other than the Initial
Holder or a Look-Through Entity, a number of the Outstanding shares of
Class P Preferred Stock of the Corporation having an Aggregate Value
not in excess of the excess of (x) 8.7% of the Aggregate Value of all
Outstanding shares of Equity Stock over (y) the Aggregate Value of all
shares of Equity Stock other than Class P Preferred Stock that are
Beneficially Owned by the Person.
"Ownership Restrictions" shall mean collectively the Ownership Limit,
as applied to Persons other than the Initial Holder or Look-Through
Entities, the Initial Holder Limit, as applied to the Initial Holder,
and the Look-Through Ownership Limit, as applied to Look-Through
Entities.
"Parity Stock" shall have the meaning set forth in paragraph (b) of
Section 8 of this Article.
"Person" shall mean (a) for purposes of Section 11 of this Article, (i)
an individual, corporation, partnership, estate, trust (including a
trust qualifying under Section 401(a) or 501(c) of the Code),
association, "private foundation," within the meaning of Section 509(a)
of the Code, joint stock company or other entity, and (ii) a "group,"
as that term is used for purposes of Section 13(d)(3) of the Exchange
Act, and (b) for purposes of the remaining Sections of this Article,
any individual, firm, partnership, corporation or other entity,
including any successor (by merger or otherwise) of such entity.
"Prohibited Transferee" shall have the meaning set forth in Section
11.3(A) of this Article.
"Record Date" shall have the meaning set forth in paragraph (a) of
Section 3 of this Article.
"Redemption Date" shall mean, in the case of any redemption of any
shares of Class P Preferred Stock, the date fixed for redemption of
such shares.
"Redemption Price" shall mean, with respect to any shares of Class P
Preferred Stock to be redeemed, 100% of the Liquidation Preference
thereof plus all accumulated, accrued and unpaid dividends (whether or
not earned or declared), if any, to the Redemption Date; provided,
however, that if a Redemption Date occurs after a dividend record date
and on or prior to the related Dividend Payment Date, the dividend
payable on such Dividend Payment Date in respect of such shares called
for redemption shall be payable on such Dividend Payment Date to the
holders of record at the close of
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business on such dividend record date notwithstanding the redemption of
such shares, and shall not be payable as part of the redemption price
for such shares.
"REIT" shall mean a "real estate investment trust," as defined in
Section 856 of the Code.
"Senior Stock" shall have the meaning set forth in paragraph (a) of
Section 8 of this Article.
"set apart for payment" shall be deemed to include, without any action
other than the following, the recording by the Corporation in its
accounting ledgers of any accounting or bookkeeping entry which
indicates, pursuant to a declaration of dividends or other distribution
by the Board of Directors, the allocation of funds to be so paid on any
series or class of capital stock of the Corporation; provided, however,
that if any funds for any class or series of Junior Stock or any class
or series of Parity Stock are placed in a separate account of the
Corporation or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Class P
Preferred Stock 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, when used with respect to any Equity Stock,
(i) if the Equity Stock is listed or admitted to trading on the NYSE, a
day on which the NYSE is open for the transaction of business, (ii) if
the Equity Stock is not listed or admitted to trading on the NYSE but
is listed or admitted to trading on another national securities
exchange or automated quotation system, a day on which the principal
national securities exchange or automated quotation system, as the case
may be, on which the Equity Stock is listed or admitted to trading is
open for the transaction of business, or (iii) if the Equity Stock is
not listed or admitted to trading on any national securities exchange
or automated quotation system, any day other than a Saturday, a Sunday
or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
"Transfer" shall mean any sale, transfer, gift, assignment, devise or
other disposition of a share of Class P Preferred Stock (including (i)
the granting of an option or any series of such options or entering
into any agreement for the sale, transfer or other disposition of Class
P Preferred Stock or (ii) the sale, transfer, assignment or other
disposition of any securities or rights convertible into or
exchangeable for Class P Preferred Stock), whether voluntary or
involuntary, whether of record or Beneficial Ownership, and whether by
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operation of law or otherwise (including, but not limited to, any
transfer of an interest in other entities that results in a change in
the Beneficial Ownership of shares of Class P Preferred Stock). The
term "Transfers" and "Transferred" shall have correlative meanings.
"Transfer Agent" shall mean such transfer agent as may be designated by
the Board of Directors or their designee as the transfer agent for the
Class P Preferred Stock; provided, that if the Corporation has not
designated a transfer agent then the Corporation shall act as the
transfer agent for the Class P Preferred Stock.
"Trust" shall mean the trust created pursuant to Section 11.3(A) of
this Article.
"Trustee" shall mean the Person unaffiliated with either the
Corporation or the Prohibited Transferee that is appointed by the
Corporation to serve as trustee of the Trust.
"Voting Preferred Stock" shall have the meaning set forth in paragraph
(a) of Section 9 of this Article.
3. DIVIDENDS.
(a) The holders of Class P Preferred Stock shall be entitled
to receive, when and as declared by the Board of Directors, out of funds legally
available for that purpose, quarterly cash dividends on the Class P Preferred
Stock in an amount per share equal to the greater of (i) the Base Rate, or (ii)
the quarterly cash dividend paid or payable (determined on each Dividend Payment
Date by reference to the dividend most recently declared on the Class A Common
Stock) on the number of shares of Class A Common Stock (or portion thereof) into
which a share of Class P Preferred Stock is convertible. Such dividends shall be
cumulative from the Issue Date, whether or not in any Dividend Period or Periods
such dividends shall be declared or there shall be funds of the Corporation
legally available for the payment of such dividends, and shall be payable
quarterly in arrears on each Dividend Payment Date, commencing on [_______],
2001. Each such dividend shall be payable in arrears to the holders of record of
the Class P Preferred Stock, as they appear on the stock records of the
Corporation at the close of business on the tenth Business Day immediately
preceding such Dividend Payment Date (each a "Record Date"). Accumulated,
accrued and unpaid dividends for any past Dividend Periods may be declared and
paid at any time, without reference to any regular Dividend Payment Date, to
holders of record on such date, which date shall not precede by
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more than 45 days the payment date thereof, as may be fixed by the Board of
Directors.
(b) Any dividend payable on the Class P Preferred Stock for
any partial dividend period shall be computed ratably on the basis of twelve 30
day months and a 360-day year. Holders of Class P Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or stock, in excess
of full cumulative dividends, as herein provided, on the Class P Preferred
Stock. No interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the Class P Preferred Stock that
may be in arrears.
(c) So long as any of the shares of Class P Preferred Stock
are outstanding, except as described in the immediately following sentence, no
dividends shall be declared or paid or set apart for payment by the Corporation
and no other distribution of cash or other property shall be declared or made,
directly or indirectly, by the Corporation with respect to any shares of Parity
Stock unless, in each case, dividends equal to the full amount of accumulated,
accrued and unpaid dividends on all outstanding shares of Class P Preferred
Stock have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof has been or contemporaneously is set apart
for payment of such dividends on the Class P Preferred Stock for all Dividend
Periods ending on or prior to the date such dividend or distribution is
declared, paid, set apart for payment or made, as the case may be, with respect
to such shares of Parity Stock. When dividends are not paid in full or a sum
sufficient for such payment is not set apart, as aforesaid, all dividends
declared upon the Class P Preferred Stock and all dividends declared upon any
shares of Parity Stock shall be declared ratably in proportion to the respective
amounts of dividends accumulated, accrued and unpaid on the Class P Preferred
Stock and accumulated, accrued and unpaid on such Parity Stock.
(d) So long as any of the shares of Class P Preferred Stock
are outstanding, no dividends (other than dividends or distributions paid in
shares of, or options, warrants or rights to subscribe for or purchase shares
of, Junior Stock) shall be declared or paid or set apart for payment by the
Corporation and no other distribution of cash or other property shall be
declared or made, directly or indirectly, by the Corporation with respect to any
shares of Junior Stock, nor shall any shares of Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption, purchase or other
acquisition of Class A Common Stock made for purposes of an employee incentive
or benefit plan of the Corporation or any subsidiary) for any consideration (or
any moneys be paid to or made available for a sinking fund for the redemption of
any shares of any such stock), directly or indirectly, by the Corporation
(except by conversion into or exchange for shares of, or options, warrants or
rights to subscribe for or purchase shares of, Junior Stock), nor shall any
other cash or other
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property otherwise be paid or distributed to or for the benefit of any holder of
shares of Junior Stock in respect thereof, directly or indirectly, by the
Corporation unless, in each case, dividends equal to the full amount of all
accumulated, accrued and unpaid dividends on all outstanding shares of Class P
Preferred Stock have been declared and paid, or such dividends have been
declared and a sum sufficient for the payment thereof has been set apart for
such payment, on all outstanding shares of Class P Preferred Stock for all
Dividend Periods ending on or prior to the date such dividend or distribution is
declared, paid, set apart for payment or made with respect to such shares of
Junior Stock, or the date such shares of Junior Stock are redeemed, purchased or
otherwise acquired or monies paid to or made available for any sinking fund for
such redemption, or the date any such cash or other property is paid or
distributed to or for the benefit of any holders of Junior Stock in respect
thereof, as the case may be.
Notwithstanding the provisions of this Section 3, the
Corporation shall not be prohibited from (i) declaring or paying or setting
apart for payment any dividend or distribution on any shares of Parity Stock or
(ii) redeeming, purchasing or otherwise acquiring any Parity Stock, in each
case, if such declaration, payment, redemption, purchase or other acquisition is
necessary in order to maintain the continued qualification of the Corporation as
a REIT under Section 856 of the Code.
4. LIQUIDATION PREFERENCE.
(a) In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, before any payment or
distribution by the Corporation (whether of capital, surplus or otherwise) shall
be made to or set apart for the holders of Junior Stock, the holders of shares
of Class P Preferred Stock shall be entitled to receive Twenty-Five Dollars
($25) per share of Class P Preferred Stock (the "Liquidation Preference"), plus
an amount equal to all dividends (whether or not earned or declared)
accumulated, accrued and unpaid thereon to the date of final distribution to
such holders; but such holders shall not be entitled to any further payment.
Until the holders of the Class P Preferred Stock have been paid the Liquidation
Preference in full, plus an amount equal to all dividends (whether or not earned
or declared) accumulated, accrued and unpaid thereon to the date of final
distribution to such holders, no payment will be made to any holder of Junior
Stock upon the liquidation, dissolution or winding up of the Corporation. If,
upon any liquidation, dissolution or winding up of the Corporation, the assets
of the Corporation, or proceeds thereof, distributable among the holders of
Class P Preferred Stock shall be insufficient to pay in full the preferential
amount aforesaid and liquidating payments on any other shares of any class or
series of Parity Stock, then such assets, or the proceeds thereof, shall be
distributed among the holders of Class P Preferred Stock and any such other
Parity Stock ratably in the same proportion as the
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respective amounts that would be payable on such Class P Preferred Stock and any
such other Parity Stock if all amounts payable thereon were paid in full. For
the purposes of this Section 4, (i) a consolidation or merger of the Corporation
with one or more corporations, (ii) a sale or transfer of all or substantially
all of the Corporation's assets, or (iii) a statutory share exchange shall not
be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary, of the Corporation.
(b) Upon any liquidation, dissolution or winding up of the
Corporation, after payment shall have been made in full to the holders of Class
P Preferred Stock and any Parity Stock, as provided in Section 4(a), any other
series or class or classes of Junior Stock shall, subject to the respective
terms thereof, be entitled to receive any and all assets remaining to be paid or
distributed, and the holders of the Class P Preferred Stock and any Parity Stock
shall not be entitled to share therein.
5. REDEMPTION
(a) The Corporation, at its option, may redeem shares of Class
P Preferred Stock, in whole or from time to time in part, for cash in an amount
equal to the Redemption Price (i) at any time on or before [________], 2004, if
the Market Price of the Class A Common Stock is $56 or higher, in which case the
Corporation may redeem shares of Class P Preferred Stock pursuant to this
Section 5(a)(i) for 6 months following any date on which such Market Price
exceeds $56, (ii) at any time after [______], 2004, (iii) on or after the
occurrence of a Change of Control, or (iv) as set forth in Section 11.2 of this
Article.
(b) The Redemption Date shall be selected by the Corporation,
shall be specified in the notice of redemption and shall be not less than 30
days nor more than 60 days after the date notice of redemption is sent by the
Corporation.
(c) If full cumulative dividends on all outstanding shares of
Class P Preferred Stock have not been declared and paid, or declared and set
apart for payment, for all preceding Dividend Periods no shares of Class P
Preferred Stock may be redeemed unless all outstanding shares of Class P
Preferred Stock are simultaneously redeemed, and neither the Corporation nor any
affiliate of the Corporation may purchase or acquire shares of Class P Preferred
Stock, otherwise than pursuant to a purchase or exchange offer made on the same
terms to all holders of shares of Class P Preferred Stock.
(d) In the event of a redemption of Class P Preferred Stock
pursuant to paragraph (a) above, notice of such redemption shall be given to
each holder of record of the shares to be redeemed. Such notice shall be
provided by first
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class mail, postage prepaid, at such holder's address as the same appears on the
stock records of the Corporation. Neither the failure to mail any notice
required by this paragraph (d), nor any defect therein or in the mailing thereof
to any particular holder, shall affect the sufficiency of the notice or the
validity of the proceedings for redemption with respect to the other holders.
Any notice which has been mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date mailed whether or not
the holder receives the notice. Each such notice shall state, as appropriate:
(i) the Redemption Date; (ii) the number of shares of Class P Preferred Stock to
be redeemed and, if fewer than all such shares held by such holder are to be
redeemed, the number of such shares to be redeemed from such holder; (iii) the
place or places at which certificates for such shares are to be surrendered for
cash; and (iv) the Redemption Price payable on such Redemption Date, including,
without limitation, a statement as to whether or not accumulated, accrued and
unpaid dividends will be payable as part of the Redemption Price, or payable on
the next Dividend Payment Date to the record holder at the close of business on
the relevant record date as described in the next succeeding sentence. Notice
having been mailed as aforesaid, from and after the Redemption Date (unless the
Corporation shall fail to make available the amount of cash necessary to effect
such redemption), (i) dividends on the shares of Class P Preferred Stock so
called for redemption shall cease to accumulate or accrue on the shares of Class
P Preferred Stock called for redemption, (ii) said shares shall no longer be
deemed to be outstanding, and (iii) all rights of the holders thereof as holders
of Class P Preferred Stock of the Corporation shall cease except the right to
receive the cash payable upon such redemption, without interest thereon, upon
surrender of their certificates if so required. The Corporation's obligation to
make available the cash necessary to effect such redemption in accordance with
the preceding sentence shall be deemed fulfilled if, on or before the applicable
Redemption Date, the Corporation shall irrevocably deposit in trust with a bank
or trust company (which may not be an affiliate of the Corporation) that has, or
is an affiliate of a bank or trust company that has, a capital and surplus of at
least $200,000,000, such amount of cash as is necessary for such redemption
plus, if such Redemption Date occurs after any dividend record date and on or
prior to the related Dividend Payment Date, such amount of cash as is necessary
to pay the dividend payable on such Dividend Payment Date in respect of such
shares of Class P Preferred Stock called for redemption, with irrevocable
instructions that such cash be applied to the redemption of the shares of Class
P Preferred Stock so called for redemption and, if applicable, the payment of
such dividend. No interest shall accrue for the benefit of the holders of shares
of Class P Preferred Stock to be redeemed on any cash so set aside by the
Corporation. Subject to applicable escheat laws, any such cash unclaimed at the
end of two years from the Redemption Date shall revert to the general funds of
the Corporation, after which reversion the holders of shares of Class P
Preferred Stock so called for redemption shall look only to the general funds of
the Corporation for the payment of such cash.
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As promptly as practicable after the surrender in accordance
with such notice of the certificates for any such shares of Class P Preferred
Stock to be so redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state), such certificates
shall be exchanged for the cash (without interest thereon) for which such shares
have been redeemed in accordance with such notice. If fewer than all the
outstanding shares of Class P Preferred Stock are to be redeemed, shares to be
redeemed shall be selected by the Corporation from outstanding shares of Class P
Preferred Stock not previously called for redemption by lot or, with respect to
the number of shares of Class P Preferred Stock held of record by each holder of
such shares, pro rata (as nearly as may be) or by any other method as may be
determined by the Board of Directors in its discretion to be equitable. If fewer
than all the shares of Class P Preferred Stock represented by any certificate
are redeemed, then a new certificate representing the unredeemed shares shall be
issued without cost to the holders thereof.
6. STATUS OF REACQUIRED STOCK.
All shares of Class P Preferred Stock that have been issued
and reacquired in any manner by the Corporation (including, without limitation,
shares of Class P Preferred Stock which have been surrendered for conversion)
shall be returned to the status of authorized but unissued shares of Class P
Preferred Stock.
7. CONVERSION.
7.1 CONVERSION AT HOLDERS' OPTION.
At any time on or after the Issue Date, holders of shares of
Class P Preferred Stock shall have the right to convert all or a portion of such
shares into shares of Class A Common Stock, as follows:
(a) Subject to and upon compliance with the provisions of this
Section 7, each share of Class P Preferred Stock shall, at the option of the
holder thereof, be convertible at any time (unless such share is called for
redemption, then to and including but not after the close of business on the
date immediately prior to the Redemption Date, unless the Corporation shall
default in payment due upon redemption thereof), into that number of fully paid
and non-assessable shares of Class A Common Stock (calculated as to each
conversion to the nearest 1/100th of a share) obtained by dividing $25 by the
Conversion Price in effect at such time and by surrender of the certificate
representing such shares to be converted in the manner provided in subsection
(b) of this Section 7.1.
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(b) In order to convert shares of Class P Preferred Stock, the
holder of the shares to be converted shall surrender the certificate
representing such shares at any office or agency maintained by the Corporation
for such purpose, accompanied by the funds, if any, required by the last
paragraph of this subsection (b) to be paid by such holder, and shall give
written notice of conversion in the form provided on such certificate
representing shares of Class P Preferred Stock (or such other notice as is
acceptable to the Corporation) to the Corporation at such office or agency that
the holder elects to convert the shares of Class P Preferred Stock specified in
such notice. Such notice shall also state the name or names, together with
address or addresses, in which the certificate or certificates for shares of
Class A Common Stock which shall be issuable in such conversion shall be issued.
Unless the shares issuable on conversion are to be issued in the same name as
the name in which such share of Class P Preferred Stock is registered, each
certificate representing a share of Class P Preferred Stock surrendered for
conversion shall be accompanied by instruments of transfer, in form satisfactory
to the Corporation, duly executed by the holder or such holder's duly authorized
attorney and an amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation that such taxes have been
paid).
As promptly as practicable after the surrender of certificates
representing such shares of Class P Preferred Stock and the receipt of such
notice and instruments of transfer as aforesaid, the Corporation shall issue and
shall deliver at such office or agency to such holder, or as designated in such
holder's written instructions, a certificate or certificates for the number of
full shares of Class A Common Stock issuable upon the conversion of such share
or shares of Class P Preferred Stock in accordance with provisions of this
Section 7, and a check or cash in respect of (i) the cash amount payable to such
holder, if any, referred to in the last paragraph of this subsection (b), and
(ii) any fractional interest in a share of Class A Common Stock arising upon
such conversion, as provided in paragraph (c) of this Section 7.1.
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which certificates
representing such shares of Class P Preferred Stock shall have been surrendered
and such notice (and any applicable instruments of transfer and any required
taxes) received by the Corporation as aforesaid, and the Person or Persons in
whose name or names any certificate or certificates for shares of Class A Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares represented thereby at such time on
such date, and such conversion shall be at the Conversion Price in effect at
such time on such date, unless the stock transfer books of the Corporation shall
be closed on that date, in which event such Person or Persons shall be deemed to
have become such holder or holders of record at the close
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<PAGE> 16
of business on the next succeeding day on which such stock transfer books are
open, but such conversion shall be at the Conversion Price in effect on the date
on which such shares shall have been surrendered and such notice received by the
Corporation.
Except as provided herein, the Corporation will make no
payment or allowance for unpaid dividends, whether or not in arrears, on
converted shares or for dividends (other than dividends on the Class A Common
Stock the record date for which is after the conversion date and which the
Corporation shall pay in the ordinary course to the record holder as of the
record date) on the Class A Common Stock issued upon such conversion. Holders of
Class P Preferred Stock at the close of business on a Record Date will be
entitled to receive an amount equal to the dividend payable on such shares on
the corresponding Dividend Payment Date notwithstanding the conversion of such
shares following such Record Date. If the Dividend Adjustment Amount (as defined
below) with respect to any shares of Class P Preferred Stock surrendered for
conversion is positive, the holders of such shares shall, as of the date of
conversion, be entitled to receive a cash payment equal to such Dividend
Adjustment Amount. If the Dividend Adjustment Amount with respect to any shares
of Class P Preferred Stock surrendered for conversion is negative, such shares
must be accompanied by payment of a cash amount equal to the absolute value of
such Dividend Adjustment Amount. As used herein, "Dividend Adjustment Amount"
shall mean, with respect to any share of Class P Preferred Stock that has been
surrendered for conversion, the sum of:
(i) the aggregate amount of any dividends (whether or not
earned or declared) that are accumulated, accrued and unpaid on such
share as of the time of such conversion; minus
(ii) if such share has been surrendered for conversion during
the period between the close of business on any Record Date and the
opening of business on the corresponding Dividend Payment Date, the
amount of the dividend payable thereon on such Dividend Payment Date;
minus
(iii) an amount equal to the product of (A) the number of
shares of Class A Common Stock (or fraction thereof) into which such
share of Class P Preferred Stock has been converted (B) the quarterly
cash dividend per share that was most recently declared on the Class A
Common Stock, determined as of the date of conversion, and (C) a
fraction, the numerator of which is the number of days in the period
from and including the date of the most recent dividend payment date
for the Class A Common Stock to but excluding the date of such
conversion, and the denominator of which is 90.
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<PAGE> 17
(c) No fractional shares of Class A Common Stock or scrip
representing fractions of a share of Class A Common Stock shall be issued upon
conversion of shares of Class P Preferred Stock. If more than one share of Class
P Preferred Stock shall be surrendered for conversion at one time by the same
holder, the number of full shares of Class A Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of Class P Preferred Stock so surrendered. In lieu of any fractional
interest in a share of Class A Common Stock that would otherwise be deliverable
upon the conversion of any share of Class P Preferred Stock, the Corporation
shall pay to the holder of such shares an amount in cash (computed to the
nearest cent) equal to the Closing Price of the Class A Common Stock on the
Trading Day immediately preceding the date of conversion, multiplied by the
fractional interest that otherwise would have been deliverable upon conversion
of such share.
7.2 ADJUSTMENTS TO CONVERSION PRICE
(a) The Conversion Price shall be adjusted from time to time
as follows:
(i) If the Corporation shall after the Issue Date (A)
pay a dividend or make a distribution on its Class A Common Stock in shares of
Class A Common Stock, (B) subdivide its outstanding shares of Class A Common
Stock into a greater number of shares, (C) combine its outstanding shares of
Class A Common Stock into a smaller number of shares or (D) issue any shares of
capital stock by reclassification of its outstanding Class A Common Stock
(including a reclassification pursuant to a merger or consolidation in which the
Corporation is the continuing entity and in which the Class A Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, or securities or other property of another entity), then, in each such
case, the Conversion Price in effect immediately prior to such action shall be
adjusted so that the holder of any share of Class P Preferred Stock thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Class A Common Stock or other capital stock of the Corporation which such holder
would have owned or been entitled to receive immediately following such action
had such share been converted immediately prior to the occurrence of such event.
An adjustment made pursuant to this subsection (i) of this Section 7.2(a) shall
become effective immediately after the record date, in the case of a dividend or
distribution, or immediately after the effective date, in the case of a
subdivision, combination or reclassification. If, as a result of an adjustment
made pursuant to this subsection (i), the holder of any share of Class P
Preferred Stock thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of capital stock or shares of Class A
Common Stock and other capital
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<PAGE> 18
stock of the Corporation, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed by the Corporation with
the Transfer Agent) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital stock or shares of
Class A Common Stock and other capital stock.
(ii) If the Corporation shall, after the Issue Date,
issue rights, options or warrants to all holders of its outstanding shares of
Class A Common Stock entitling them (for a period expiring within 45 days after
the record date described below) to subscribe for or purchase shares of Class A
Common Stock at a price per share less than the current market price per share
(determined pursuant to subsection (iv) of this Section 7.2(a)) of the Class A
Common Stock (other than pursuant to any stock option, restricted stock or other
incentive or benefit plan or stock ownership or purchase plan for the benefit of
employees, directors or officers or any dividend reinvestment plan of the
Corporation in effect at the time hereof or any other similar plan adopted or
implemented hereafter), then the Conversion Price in effect immediately prior
thereto shall be adjusted so that it shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the record date
by a fraction, the numerator of which shall be the sum of (A) the number of
shares of Class A Common Stock outstanding on the record date and (B) the number
of shares which the aggregate proceeds to the Corporation from the exercise of
such rights, options or warrants for Class A Common Stock would purchase at such
current market price, and the denominator of which shall be the sum of (A) the
number of shares of Class A Common Stock outstanding on the record date and (B)
the number of additional shares of Class A Common Stock offered for subscription
or purchased pursuant to such rights, options or warrants. Such adjustment shall
be made successively whenever any rights, options or warrants are issued, and
shall become effective immediately after the record date for the determination
of stockholders entitled to receive such rights, options or warrants; provided,
however, that if all of the shares of Class A Common Stock offered for
subscription or purchase are not delivered upon the exercise of such rights,
options or warrants, upon the expiration of such rights, options or warrants,
the Conversion Price shall be readjusted to the Conversion Price which would
have been in effect had the numerator and the denominator of the foregoing
fraction and the resulting adjustment been made based upon the number of shares
of Class A Common Stock actually delivered upon the exercise of such rights,
options or warrants rather than upon the number of shares of Class A Common
Stock offered for subscription or purchase. In determining whether any rights,
options or warrants entitle the holders to subscribe for or purchase shares of
Class A Common Stock at less than such current market price, and in determining
the aggregate offering price of such shares of Class A Common Stock, there shall
be taken into account any consideration received by the Corporation for such
rights, options or warrants, with the value of such consideration,
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<PAGE> 19
if other than cash, determined by the Board of Directors (whose determination
shall be conclusive and shall be described in a statement filed by the
Corporation with the Transfer Agent).
(iii) In case the Corporation shall, by dividend or
otherwise, distribute to all holders of its outstanding Class A Common Stock any
capital stock (other than Class A Common Stock), evidences of its indebtedness
or assets or rights or warrants to subscribe for or purchase securities of the
Corporation (excluding (A) those referred to in subsections (i) and (ii) of this
Section 7.2(a), (B) dividends and distributions paid in cash out of the retained
earnings of the Corporation, and (C) distributions upon mergers or
consolidations to which subsection (b) of this Section 7.2 applies), then, in
each such case, the Conversion Price shall be adjusted to equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the record date of such distribution by a fraction, the numerator of which shall
be the current market price per share (determined pursuant to subsection (iv) of
this Section 7.2(a)) of the Class A Common Stock, less the fair market value on
such record date (determined by the Board or Directors, whose determination
shall be conclusive and shall be described in a statement filed by the
Corporation with the Transfer Agent) of the portion of the capital stock or
assets or the evidences of indebtedness or assets so distributed to the holder
of one share of Class A Common Stock or of such subscription rights or warrants
applicable to one share of Class A Common Stock, and the denominator of which
shall be such current market price per share of Class A Common Stock. Such
adjustment shall become effective immediately after the record date for the
determination of stockholders entitled to receive such distribution.
(iv) For the purpose of any computation under
subsections (ii) and (iii) of this Section 7.2(a), the current market price per
share of Class A Common Stock on any date shall be the average of the Closing
Price of the Class A Common Stock for the shorter of (A) 20 consecutive Trading
Days ending on the last full Trading Day prior to the Time of Determination or
(B) the period commencing on the date next succeeding the first public
announcement of the issuance of such rights or warrants or such distribution
through such last full Trading Day prior to the Time of Determination. For
purposes of the foregoing, the term "Time of Determination" shall mean the time
and date of the earlier of (A) the record date for determining stockholders
entitled to receive the rights, warrants or distribution referred to in
subsections (ii) and (iii) of this Section 7.2, or (B) the commencement of
"ex-dividend" trading on the exchange or market referred to in the definition of
"Closing Price."
(v) No adjustment in the Conversion Price shall be
required to be made unless such adjustment would require an increase or decrease
of at least
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one percent of such price; provided, however, that any adjustment which by
reason of this subsection (v) is not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Section 7.2 shall be made to the nearest cent or to the nearest
1/100th of a share, as the case may be. Anything in this Section 7.2 to the
contrary notwithstanding, the Corporation shall be entitled to make such
reduction in the Conversion Price, in addition to those required by this Section
7.2, as it shall determine in its discretion to be advisable in order that any
stock dividend, subdivision of shares, distribution of rights to purchase stock
or securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Corporation to its stockholders shall not be
taxable to the recipients. Except as set forth in subsections (i), (ii) and
(iii) above, the Conversion Price shall not be adjusted for the issuance of
Class A Common Stock, or any securities convertible into or exchangeable for
Class A Common Stock or carrying the right to purchase any of the foregoing, in
exchange for cash, property or services.
(vi) The Corporation from time to time may decrease
the Conversion Price by any amount for any period of time if the period is at
least 20 days and if the decrease is irrevocable during the period. Whenever the
Conversion Price is so decreased, the Corporation shall mail to holders of
record of shares of Class P Preferred Stock a notice of the decrease at least 15
days before the date the decreased Conversion Price takes effect, and such
notice shall state the decreased Conversion Price and the period it will be in
effect.
(b) Notwithstanding any other provision herein to the
contrary, in case of any merger or consolidation to which the Corporation is a
party (other than a merger or consolidation in which the Corporation is the
continuing entity and in which the Class A Common Stock outstanding immediately
prior to the merger or consolidation is not exchanged for cash, or the
securities or other property of another entity), or in the case of any sale or
transfer of all or substantially all of the Corporation's property and assets to
another entity, there will be no adjustment of the Conversion Price, and lawful
provision shall be made by the entity formed by such consolidation or the entity
whose securities, cash or other property will immediately after the merger or
consolidation be owned, by virtue of the merger or consolidation, by the holders
of Class A Common Stock immediately prior to the merger or consolidation, or the
entity which shall have acquired such assets of the Corporation, such that each
share of Class P Preferred Stock then outstanding will, without the consent of
the holder thereof, become convertible into the kind and amount of securities,
cash or other property receivable upon such merger, consolidation, sale or
transfer by a holder of the number of shares of Class A Common Stock into which
such share of Class P Preferred Stock was convertible immediately prior to such
merger, consolidation, sale or transfer assuming such holder of Class A Common
Stock did not exercise his rights of election, if any, as to the kind or amount
of
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securities, cash or other property receivable upon such merger, consolidation,
sale or transfer. In the case of a cash merger of the Corporation into another
entity or any other cash transaction of the type mentioned in this Section
7.2(b), each share of Class P Preferred Stock will thereafter be convertible at
the Conversion Price in effect at such time into the same amount of cash per
share into which each share of Class P Preferred Stock would have been
convertible had such share been converted into Class A Common Stock immediately
prior to the effective date of such cash merger or other transaction. The
foregoing provisions of this Section 7.2(b) shall similarly apply to successive
mergers, consolidations, sales or transfers.
(c) If (i) the Corporation shall take any action that would
require an adjustment in the Conversion Price pursuant to Section 7.2; (ii) the
Corporation shall authorize the granting to the holders of the Class A Common
Stock generally of rights or warrants to subscribe for or purchase any shares of
stock of any class or series or of any other rights or warrants; (iii) there
shall be any reorganization or reclassification of the Class A Common Stock
(other than an event to which subsection (i) of Section 7.2(a) applies) or any
consolidation or merger to which the Corporation is a party or any sale or
transfer of all or substantially all of the assets of the Corporation, in each
case, for which approval of any stockholders of the Corporation is required; or
(iv) there shall be a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation; then, in each such case, the Corporation shall
cause to be given to the holders of shares of Class P Preferred Stock and the
Transfer Agent as promptly as possible, but in any event at least 15 days prior
to the applicable date hereinafter specified, a notice stating (i) the date on
which a record is to be taken for the purpose of such action or granting of
rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Class A Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (ii) the date on which
such reorganization, reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Class A Common Stock of
record shall be entitled to exchange their shares of Class A Common Stock for
securities, cash or other property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up. Failure to give such notice or any defect therein
shall not affect the legality or validity of the proceedings described in this
Section 7.2(c).
(d) Whenever the Conversion Price is adjusted as herein
provided, (i) the Corporation shall promptly file with the Transfer Agent a
certificate setting forth the Conversion Price after such adjustment and a brief
statement of the facts requiring such adjustment and the manner of computing the
same, which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) the Corporation shall mail or cause to be mailed by first
class mail, postage prepaid, as
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soon as practicable to each holder of record of shares of Class P Preferred
Stock a notice stating that the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price.
(e) In any case in which paragraph (a) of this Section 7.2
shall require that an adjustment be made immediately following a record date or
an effective date, the Corporation may elect to defer (but only until the filing
by the Corporation with the Transfer Agent of the certificate required by
subsection 7.2(d)) (i) issuing to the holder of any share of Class P Preferred
Stock converted after such record date or effective date the shares of Class A
Common Stock issuable upon such conversion in excess of the shares of Class A
Common Stock issuable upon such conversion on the basis of the Conversion Price
prior to adjustment, and (ii) paying to such holder any amount of cash in lieu
of a fractional share.
(f) In the event that at any time, as a result of an
adjustment made pursuant to subsection (i) of Section 7.2(a), the holder of any
share of Class P Preferred Stock thereafter surrendered for conversion shall
become entitled to receive any shares of the Corporation other than shares of
Class A Common Stock, thereafter the Conversion Price of such other shares so
receivable upon conversion of any share of Class P Preferred Stock shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Class A Common Stock
contained in this Section 7.2.
(g) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Class A Common Stock, for the purpose of effecting
conversion of shares of Class P Preferred Stock, the full number of shares of
Class A Common Stock deliverable upon the conversion of all outstanding shares
of Class P Preferred Stock not theretofore converted and on or before (and as a
condition of) taking any action that would cause an adjustment of the Conversion
Price resulting in an increase in the number of shares of Class A Common Stock
deliverable upon conversion in excess of the number thereof previously reserved
and available therefor, the Corporation shall take all such action so required.
For purposes of this paragraph (g), the number of shares of Class A Common Stock
which shall be deliverable upon the conversion of all outstanding shares of
Class P Preferred Stock shall be computed as if at the time of computation all
such outstanding shares of Class P Preferred Stock were held by a single holder
(and without regard to the Ownership Limit).
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value (if any) of the shares of
Class A Common Stock deliverable upon conversion of the shares of Class P
Preferred Stock, the Corporation shall take any corporate action which may, in
the opinion of its
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counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and non-assessable shares of Class A Common Stock at such
adjusted Conversion Price.
(h) The Corporation will pay any and all documentary stamp,
issue or transfer taxes, and any other similar taxes, payable in respect of the
issue or delivery of shares of Class A Common Stock upon conversion of shares of
Class P Preferred Stock pursuant hereto; provided, however, that the Corporation
shall not be required to pay any tax that may be payable in respect of any
transfer involved in the issue or delivery of shares of Class A Common Stock in
a name other than that of the holder of the shares of Class P Preferred Stock to
be converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue or delivery has paid to the Corporation the amount
of any such tax or established, to the reasonable satisfaction of the
Corporation, that such tax has been paid.
(i) Notwithstanding anything to the contrary contained in this
Section 7, conversion of Class P Preferred Stock pursuant to this Section 7
shall be permitted only to the extent that such conversion would not result in a
violation of the Ownership Restrictions (as defined in the Charter).
(j) If the Corporation shall take any action affecting the
Class A Common Stock, other than action described in this Section 7, that in the
opinion of the Board of Directors would materially adversely affect the
conversion rights of the holders of Class P Preferred Stock, the Board of
Directors may, but shall have no obligation to, adjust the Conversion Price for
the Class P Preferred Stock to the extent permitted by law in such manner, if
any, and at such time as the Board of Directors, in its sole discretion, may
determine to be equitable under the circumstances.
8. RANKING.
Any class or series of capital stock of the Corporation shall
be deemed to rank:
(a) prior or senior to the Class P Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class or series shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up, as the case may be, in preference or
priority to the holders of Class P Preferred Stock ("Senior Stock");
(b) on a parity with the Class P Preferred Stock, as to the
payment of dividends and as to distribution of assets upon liquidation,
dissolution or winding
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up, whether or not the dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those of the Class P
Preferred Stock, if (i) such capital stock is Class B Cumulative Convertible
Preferred Stock, Class C Cumulative Preferred Stock, Class D Cumulative
Preferred Stock, Class G Cumulative Preferred Stock, Class H Cumulative
Preferred Stock, Class I Cumulative Preferred Stock, Class J Cumulative
Convertible Preferred Stock, Class K Convertible Cumulative Preferred Stock,
Class L Convertible Cumulative Preferred Stock, Class M Convertible Cumulative
Preferred Stock, Class N Convertible Cumulative Preferred Stock or Class O
Convertible Cumulative Preferred Stock of the Corporation, or (ii) the holders
of such class of stock or series and the Class P Preferred Stock shall be
entitled to the receipt of dividends and of amounts distributable upon
liquidation, dissolution or winding up in proportion to their respective amounts
of accrued and unpaid dividends per share or liquidation preferences, without
preference or priority of one over the other (the capital stock referred to in
clauses (i) and (ii) of this paragraph being hereinafter referred to,
collectively, as "Parity Stock"); and
(c) junior to the Class P Preferred Stock, as to the payment
of dividends and as to the distribution of assets upon liquidation, dissolution
or winding up, if (i) such capital stock or series shall be Class A Common Stock
or (ii) the holders of Class P Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon liquidation, dissolution or winding
up, as the case may be, in preference or priority to the holders of shares of
such class or series (the capital stock referred to in clauses (i) and (ii) of
this paragraph being hereinafter referred to, collectively, as "Junior Stock").
9. VOTING.
(a) If and whenever (i) six quarterly dividends (whether or
not consecutive) payable on the Class P Preferred Stock or any series or class
of Parity Stock shall be in arrears (which shall, with respect to any such
quarterly dividend, mean that any such dividend has not been paid in full),
whether or not earned or declared, or (ii) for two consecutive quarterly
dividend periods the Corporation fails to pay dividends on the Class A Common
Stock in an amount per share at least equal to $0.5950 (subject to adjustment
consistent with any adjustment of the Conversion Price pursuant to Section 7.2
of this Article) (the "Base Common Stock Dividend") the number of directors then
constituting the Board of Directors shall be increased by two (in the case of an
arrearage in dividends described in clause (i)) or one additional director (in
the case of an arrearage in dividends described in clause (ii) (in each case if
not already increased by reason of similar types of provisions with respect to
shares of any other class or series which is entitled to similar voting rights
(the "Voting Preferred Stock")) and the holders of shares of Class P Preferred
Stock, together with
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the holders of shares of all other Voting Preferred Stock then entitled to
exercise similar voting rights, voting as a single class regardless of series,
shall be entitled to elect the two additional directors (in the case of an
arrearage in dividends described in clause (i)) or one (in the case of an
arrearage in dividends described in clause (ii)) to serve on the Board of
Directors at any annual meeting of stockholders or special meeting held in place
thereof, or at a special meeting of the holders of the Class P Preferred Stock
and the Voting Preferred Stock called as hereinafter provided. Whenever (1) in
the case of an arrearage in dividends described in clause (i), all arrears in
dividends on the Class P Preferred Stock and the Voting Preferred Stock then
outstanding shall have been paid and dividends thereon for the current quarterly
dividend period shall have been declared and paid, or declared and set apart for
payment, or (2) in the case of an arrearage in dividends described in clause
(ii), the Corporation makes a quarterly dividend payment on the Class A Common
Stock in an amount per share equal to or exceeding the Base Common Stock
Dividend, then the right of the holders of the Class P Preferred Stock and the
Voting Preferred Stock to elect such additional two directors (in the case of an
arrearage in dividends described in clause (i)) or one additional director (in
the case of an arrearage in dividends described in clause (ii)) shall cease (but
subject always to the same provision for the vesting of such voting rights in
the case of any similar future arrearages), and the terms of office of all
persons elected as directors by the holders of the Class P Preferred Stock and
the Voting Preferred Stock shall forthwith terminate and the number of directors
constituting the Board of Directors shall be reduced accordingly. At any time
after such voting power shall have been so vested in the holders of Class P
Preferred Stock and the Voting Preferred Stock, if applicable, the Secretary of
the Corporation may, and upon the written request of any holder of Class P
Preferred Stock (addressed to the Secretary at the principal office of the
Corporation) shall, call a special meeting of the holders of the Class P
Preferred Stock and of the Voting Preferred Stock for the election of the two
directors (in the case of an arrearage in dividends described in clause (i)) or
one director (in the case of an arrearage in dividends described in clause (ii))
to be elected by them as herein provided, such call to be made by notice similar
to that provided in the Bylaws of the Corporation for a special meeting of the
stockholders or as required by law. If any such special meeting required to be
called as above provided shall not be called by the Secretary within 20 days
after receipt of any such request, then any holder of Class P Preferred Stock
may call such meeting, upon the notice above provided, and for that purpose
shall have access to the stock books of the Corporation. The directors or
director elected at any such special meeting shall hold office until the next
annual meeting of the stockholders or special meeting held in lieu thereof if
such office shall not have previously terminated as above provided. If any
vacancy shall occur among the directors elected by the holders of the Class P
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Preferred Stock and the Voting Preferred Stock, a successor shall be elected by
the Board of Directors, upon the nomination of the then-remaining director
elected by the holders of the Class P Preferred Stock and the Voting Preferred
Stock or the successor of such remaining director, to serve until the next
annual meeting of the stockholders or special meeting held in place thereof if
such office shall not have previously terminated as provided above.
(b) So long as any shares of Class P Preferred Stock are
outstanding, in addition to any other vote or consent of stockholders required
by law or by the Charter of the Corporation, the affirmative vote of at least
66-2/3% of the votes entitled to be cast by the holders of the Class P Preferred
Stock voting as a single class, given in person or by proxy, either in writing
without a meeting or by vote at any meeting called for the purpose, shall be
necessary for effecting or validating:
(i) any amendment, alteration or repeal of any of the
provisions of, or the addition of any provision to, these Articles
Supplementary, the Charter or the By-Laws of the Corporation that materially
adversely affects the voting powers, rights or preferences of the holders of the
Class P Preferred Stock (including any amendment, alteration or repeal effected
pursuant to a merger, consolidation, or similar transaction) or would convert
the Class P Preferred Stock into cash or any other security other than a
preferred stock with terms and provisions equivalent to those set forth in these
Articles Supplementary; provided, however, that the amendment of the provisions
of the Charter so as to authorize or create, or to increase the authorized
amount of, or issue any Junior Stock or any shares of any class of Parity Stock
shall not be deemed to materially adversely affect the voting powers, rights or
preferences of the holders of Class P Preferred Stock; or
(ii) the authorization, creation of, increase in the
authorized amount of, or issuance of any shares of any class or series of Senior
Stock or any security convertible into shares of any class or series of Senior
Stock (whether or not such class or series of Senior Stock is currently
authorized);
provided, however, that no such vote of the holders of Class P Preferred Stock
shall be required if, at or prior to the time when such amendment, alteration or
repeal is to take effect, or when the issuance of any such Senior Stock or
convertible or exchangeable security is to be made, as the case may be,
provision is made for the redemption of all shares of Class P Preferred Stock at
the time outstanding to the extent such redemption is authorized by Section 5 of
this Article.
For purposes of the foregoing provisions and all other voting
rights under these Articles Supplementary, each share of Class P Preferred Stock
shall have one (1) vote per share, except that when any other class or series of
preferred stock of the Corporation shall have the right to vote with the Class P
Preferred Stock as a
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single class on any matter, then the Class P Preferred Stock and such other
class or series shall have with respect to such matters one quarter of one vote
per $25 of stated liquidation preference. Except as otherwise required by
applicable law or as set forth herein or in the Charter, the Class P Preferred
Stock shall not have any relative, participating, optional or other special
voting rights and powers other than as set forth herein, and the consent of the
holders thereof shall not be required for the taking of any corporate action.
10. RECORD HOLDERS.
The Corporation and the Transfer Agent may deem and treat the
record holder of any share of Class P Preferred Stock as the true and lawful
owner thereof for all purposes, and neither the Corporation nor the Transfer
Agent shall be affected by any notice to the contrary.
11.1 RESTRICTIONS ON OWNERSHIP AND TRANSFERS.
(A) LIMITATION ON BENEFICIAL OWNERSHIP. Except as provided in
Section 11.8, from and after the Issue Date, no Person (other than the Initial
Holder or a Look-Through Entity) shall Beneficially Own shares of Class P
Preferred Stock in excess of the Ownership Limit, the Initial Holder shall not
Beneficially Own shares of Class P Preferred Stock in excess of the Initial
Holder Limit and no Look-Through Entity shall Beneficially Own shares of Class P
Preferred Stock in excess of the Look-Through Ownership Limit.
(B) TRANSFERS IN EXCESS OF OWNERSHIP LIMIT. Except as provided
in Section 11.8, from and after the Issue Date (and subject to Section 11.12),
any Transfer (whether or not such Transfer is the result of transactions entered
into through the facilities of the NYSE or other securities exchange or an
automated inter-dealer quotation system) that, if effective, would result in any
Person (other than the Initial Holder or a Look-Through Entity) Beneficially
Owning shares of Class P Preferred Stock in excess of the Ownership Limit shall
be void ab initio as to the Transfer of such shares of Class P Preferred Stock
that would be otherwise Beneficially Owned by such Person in excess of the
Ownership Limit, and the intended transferee shall acquire no rights in such
shares of Class P Preferred Stock.
(C) TRANSFERS IN EXCESS OF INITIAL HOLDER LIMIT. Except as
provided in Section 11.8, from and after the Issue Date (and subject to Section
11.12), any Transfer (whether or not such Transfer is the result of transactions
entered into through the facilities of the NYSE or other securities exchange or
an automated inter-dealer quotation system) that, if effective, would result in
the Initial Holder Beneficially Owning shares of Class P Preferred Stock in
excess of the Initial Holder
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Limit shall be void ab initio as to the Transfer of such shares of Class P
Preferred Stock that would be otherwise Beneficially Owned by the Initial Holder
in excess of the Initial Holder limit, and the Initial Holder shall acquire no
rights in such shares of Class P Preferred Stock.
(D) TRANSFERS IN EXCESS OF LOOK-THROUGH OWNERSHIP LIMIT.
Except as provided in Section 11.8 from and after the Issue Date (and subject to
Section 11.12), any Transfer (whether or not such Transfer is the result of
transactions entered into through the facilities of the NYSE or other securities
exchange or an automated inter-dealer quotation system) that, if effective,
would result in any Look-Through Entity Beneficially Owning shares of Class P
Preferred Stock in excess of the Look-Through Ownership limit shall be void ab
initio as to the Transfer of such shares of Class P Preferred Stock that would
be otherwise Beneficially Owned by such Look-Through Entity in excess of the
Look-Through Ownership Limit and such Look-Through Entity shall acquire no
rights in such shares of Class P Preferred Stock.
(E) TRANSFERS RESULTING IN "CLOSELY HELD" STATUS. From and
after the Issue Date, any Transfer that, if effective would result in the
Corporation being "closely held" within the meaning of Section 856(h) of the
Code, or would otherwise result in the Corporation failing to qualify as a REIT
(including, without limitation, a Transfer or other event that would result in
the Corporation owning (directly or constructively) an interest in a tenant that
is described in Section 856(d)(2)(B) of the Code if the income derived by the
Corporation from such tenant would cause the Corporation to fail to satisfy any
of the gross income requirements of Section 856(c) of the Code) shall be void ab
initio as to the Transfer of shares of Class P Preferred Stock that would cause
the Corporation (i) to be "closely held" within the meaning of Section 856(h) of
the Code or (ii) otherwise fail to qualify as a REIT, as the case may be, and
the intended transferee shall acquire no rights in such shares of Class P
Preferred Stock.
(F) SEVERABILITY ON VOID TRANSACTIONS. A Transfer of a share
of Class P Preferred Stock that is null and void under Sections 11.1(B), (C),
(D), or (E) of this Article because it would, if effective, result in (i) the
ownership of Class P Preferred Stock in excess of the Initial Holder Limit, the
Ownership Limit, or the Look-Through Ownership Limit, (ii) the Corporation being
"closely held" within the meaning of Section 856(h) of the Code or (iii) the
Corporation otherwise failing to qualify as a REIT, shall not adversely affect
the validity of the Transfer of any other share of Class P Preferred Stock in
the same or any other related transaction.
11.2 REMEDIES FOR BREACH. If the Board of Directors or a committee
thereof shall at any time determine in good faith that a Transfer or other event
has taken place
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in violation of Section 11.1 of this Article or that a Person intends to acquire
or has attempted to acquire Beneficial Ownership of any shares of Class P
Preferred Stock in violation of Section 11.1 of this Article (whether or not
such violation is intended), the Board of Directors or a committee thereof shall
be empowered to take any action as it deems advisable to refuse to give effect
to or to prevent such Transfer or other event, including, but not limited to,
refusing to give effect to such Transfer or other event on the books of the
Corporation, causing the Corporation to redeem such shares at the then current
Market Price and upon such terms and conditions as may be specified by the Board
of Directors in its sole discretion (including, but not limited to, by means of
the issuance of long-term indebtedness for the purpose of such redemption),
demanding the repayment of any distributions received in respect of shares of
Class P Preferred Stock acquired in violation of Section 11.1 of this Article or
instituting proceedings to enjoin such Transfer or to rescind such Transfer or
attempted Transfer; provided, however, that any Transfers or attempted Transfers
(or, in the case of events other than a Transfer, Beneficial Ownership) in
violation of Section 11.1 of this Article, regardless of any action (or
non-action) by the Board of Directors or such committee, (a) shall be void ab
initio or (b) shall automatically result in the transfer described in Section
11.3 of this Article; provided, further, that the provisions of this Section
11.2 shall be subject to the provisions of Section 11.12 of this Article;
provided, further, that neither the Board of Directors nor any committee thereof
may exercise such authority in a manner that interferes with any ownership or
transfer of Class P Preferred Stock that is expressly authorized pursuant to
Section 11.8(C) of this Article.
11.3. TRANSFER IN TRUST.
(A) ESTABLISHMENT OF TRUST. If, notwithstanding the other
provisions contained in this Article, at any time after the Issue Date there is
a purported Transfer (an "Excess Transfer") (whether or not such Transfer is the
result of transactions entered into through the facilities of the NYSE or other
securities exchange or an automated inter-dealer quotation system) or other
change in the capital structure of the Corporation (including, but not limited
to, any redemption of Equity Stock) or other event (including, but not limited
to, any acquisition of any share of Equity Stock) such that (a) any Person
(other than the Initial Holder or a Look-Through Entity) would Beneficially Own
shares of Class P Preferred Stock in excess of the Ownership Limit, or (b) the
Initial Holder would Beneficially Own shares of Class P Preferred Stock in
excess of the Initial Holder Limit, or (c) any Person that is a Look-Through
Entity would Beneficially Own shares of Class P Preferred Stock in excess of the
Look-Through Ownership Limit (in any such event, the Person, Initial Holder or
Look-Through Entity that would Beneficially Own shares of Class P Preferred
Stock in excess of the Ownership Limit, the Initial Holder Limit or the
Look-Through Entity Limit, respectively, is referred to as a "Prohibited
Transferee"), then, except as
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otherwise provided in Section 11.8 of this Article, such shares of Class P
Preferred Stock in excess of the Ownership Limit, the Initial Holder Limit or
the Look-Through Ownership Limit, as the case may be, (rounded up to the nearest
whole share) shall be automatically transferred to a Trustee in his capacity as
trustee of a Trust for the exclusive benefit of one or more Charitable
Beneficiaries. Such transfer to the Trustee shall be deemed to be effective as
of the close of business on the Business Day prior to the Excess Transfer,
change in capital structure or another event giving rise to a potential
violation of the Ownership Limit, the Initial Holder Limit or the Look-Through
Entity Ownership Limit.
(B) APPOINTMENT OF TRUSTEE. The Trustee shall be appointed by
the Corporation and shall be a Person unaffiliated with either the Corporation
or any Prohibited Transferee. The Trustee may be an individual or a bank or
trust company duly licensed to conduct a trust business.
(C) STATUS OF SHARES HELD BY THE TRUSTEE. Shares of Class P
Preferred Stock held by the Trustee shall be issued and outstanding shares of
capital stock of the Corporation. Except to the extent provided in Section
11.3(E), the Prohibited Transferee shall have no rights in the Class P Preferred
Stock held by the Trustee, and the Prohibited Transferee shall not benefit
economically from ownership of any shares held in trust by the Trustee, shall
have no rights to dividends and shall not possess any rights to vote or other
rights attributable to the shares held in the Trust.
(D) DIVIDEND AND VOTING RIGHTS. The Trustee shall have all
voting rights and rights to dividends with respect to shares of Class P
Preferred Stock held in the Trust, which rights shall be exercised for the
benefit of the Charitable Beneficiary. Any dividend or distribution paid prior
to the discovery by the Corporation that the shares of Class P Preferred Stock
have been transferred to the Trustee shall be repaid to the Corporation upon
demand, and any dividend or distribution declared but unpaid shall be rescinded
as void ab initio with respect to such shares of Class P Preferred Stock. Any
dividends or distributions so disgorged or rescinded shall be paid over to the
Trustee and held in trust for the Charitable Beneficiary. Any vote cast by a
Prohibited Transferee prior to the discovery by the Corporation that the shares
of Class P Preferred Stock have been transferred to the Trustee will be
rescinded as void ab initio and shall be recast in accordance with the desires
of the Trustee acting for the benefit of the Charitable Beneficiary. The owner
of the shares at the time of the Excess Transfer, change in capital structure or
other event giving rise to a potential violation of the Ownership Limit, Initial
Holder Limit or Look-Through Entity Ownership Limit shall be deemed to have
given an irrevocable proxy to the Trustee to vote the shares of Class P
Preferred Stock for the benefit of the Charitable Beneficiary.
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(E) RESTRICTIONS ON TRANSFER. The Trustee of the Trust may
sell the shares held in the Trust to a Person, designated by the Trustee, whose
ownership of the shares will not violate the Ownership Restrictions. If such a
sale is made, the interest of the Charitable Beneficiary shall terminate and
proceeds of the sale shall be payable to the Prohibited Transferee and to the
Charitable Beneficiary as provided in this Section 11.3(E). The Prohibited
Transferee shall receive the lesser of (1) the price paid by the Prohibited
Transferee for the shares or, if the Prohibited Transferee did not give value
for the shares (through a gift, devise or other transaction), the Market Price
of the shares on the day of the event causing the shares to be held in the Trust
and (2) the price per share received by the Trustee from the sale or other
disposition of the shares held in the Trust. Any proceeds in excess of the
amount payable to the Prohibited Transferee shall be payable to the Charitable
Beneficiary. If any of the transfer restrictions set forth in this Section
11.3(E) or any application thereof is determined in a final judgment to be void,
invalid or unenforceable by any court having jurisdiction over the issue, the
Prohibited Transferee may be deemed, at the option of the Corporation, to have
acted as the agent of the Corporation in acquiring the Class P Preferred Stock
as to which such restrictions would, by their terms, apply, and to hold such
Class P Preferred Stock on behalf of the Corporation.
(F) PURCHASE RIGHT IN STOCK TRANSFERRED TO THE TRUSTEE. Shares
of Class P Preferred Stock transferred to the Trustee shall be deemed to have
been offered for sale to the Corporation, or its designee, at a price per share
equal to the lesser of (i) the price per share in the transaction that resulted
in such transfer to the Trust (or, in the case of a devise or gift, the Market
Price at the time of such devise or gift) and (ii) the Market Price on the date
the Corporation, or its designee, accepts such offer. The Corporation shall have
the right to accept such offer for a period of 90 days after the later of (i)
the date of the Excess Transfer or other event resulting in a transfer to the
Trust and (ii) the date that the Board of Directors determines in good faith
that an Excess Transfer or other event occurred.
(G) DESIGNATION OF CHARITABLE BENEFICIARIES. By written notice
to the Trustee, the Corporation shall designate one or more nonprofit
organizations to be the Charitable Beneficiary of the interest in the Trust
relating to such Prohibited Transferee if (i) the shares of Class P Preferred
Stock held in the Trust would not violate the Ownership Restrictions in the
hands of such Charitable Beneficiary and (ii) each Charitable Beneficiary is an
organization described in Sections 170(b)(1)(A), 170(c)(2) and 501(c)(3) of the
Code.
11.4 NOTICE OF RESTRICTED TRANSFER. Any Person that acquires or
attempts to acquire shares of Class P Preferred Stock in violation of Section
11.1 of this Article, or any Person that is a Prohibited Transferee such that
stock is transferred to the Trustee under Section 11.3 of this Article, shall
immediately give written notice to the
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Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or attempted Transfer or other event on the Corporation's
status as a REIT. Failure to give such notice shall not limit the rights and
remedies of the Board of Directors provided herein in any way.
11.5 OWNERS REQUIRED TO PROVIDE INFORMATION. From and after the Issue
Date certain record and Beneficial Owners and transferees of shares of Class P
Preferred Stock will be required to provide certain information as set out
below.
(A) ANNUAL DISCLOSURE. Every record and Beneficial Owner of
more than 5% (or such other percentage between 0.5% and 5%, as provided in the
applicable regulations adopted under the Code) of the number of Outstanding
shares of Class P Preferred Stock shall, upon written request by the
Corporation, such request to be made within 30 days after January 1 of each
year, give written notice to the Corporation stating the name and address of
such record or Beneficial Owner, the number of shares of Class P Preferred Stock
Beneficially Owned, and a full description of how such shares are held. Each
such record or Beneficial Owner of Class P Preferred Stock shall, upon demand by
the Corporation, disclose to the Corporation in writing such additional
information with respect to the Beneficial Ownership of the Class P Preferred
Stock as the Board of Directors, in its sole discretion, deems appropriate or
necessary to (i) comply with the provisions of the Code regarding the
qualification of the Corporation as a REIT under the Code and (ii) ensure
compliance with the Ownership Limit, the Initial Holder Limit or the
Look-Through Ownership Limit, as applicable. Each stockholder of record,
including without limitation any Person that holds shares of Class P Preferred
Stock on behalf of a Beneficial Owner, shall take all reasonable steps to obtain
the written notice described in this Section 11.5 from the Beneficial Owner.
(B) DISCLOSURE AT THE REQUEST OF THE CORPORATION. Any Person
that is a Beneficial Owner of shares of Class P Preferred Stock and any Person
(including the stockholder of record) that is holding shares of Class P
Preferred Stock for a Beneficial Owner, and any proposed transferee of shares,
shall provide such information as the Corporation, in its sole discretion, may
request in order to determine the Corporation's status as a REIT, to comply with
the requirements of any taxing authority or other governmental agency, to
determine any such compliance or to ensure compliance with the Ownership Limit,
the Initial Holder Limit and the Look-Through Ownership Limit, and shall provide
a statement or affidavit to the Corporation setting forth the number of shares
of Class P Preferred Stock already Beneficially Owned by such stockholder or
proposed transferee and any related persons specified, which statement or
affidavit shall be in the form prescribed by the Corporation for that purpose.
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11.6 REMEDIES NOT LIMITED. Nothing contained in this Article shall
limit the authority of the Board of Directors to take such other action as it
deems necessary or advisable (subject to the provisions of Section 11.12 of this
Article) (i) to protect the Corporation and the interests of its stockholders in
the preservation of the Corporation's status as a REIT and (ii) to insure
compliance with the Ownership Limit, the Initial Holder Limit and the
Look-Through Ownership Limit.
11.7 AMBIGUITY. In the case of an ambiguity in the application of any
of the provisions of Section 11 of this Article, or in the case of an ambiguity
in any definition contained in Section 11 of this Article, the Board of
Directors shall have the power to determine the application of the provisions of
this Article with respect to any situation based on its reasonable belief,
understanding or knowledge of the circumstances.
11.8 EXCEPTIONS. The following exceptions shall apply or may be
established with respect to the limitations of Section 11.1 of this Article.
(A) WAIVER OF OWNERSHIP LIMIT. The Board of Directors, upon
receipt of a ruling from the Internal Revenue Service or an opinion of tax
counsel or other evidence or undertaking acceptable to it, may waive the
application, in whole or in part, of the Ownership Limit to a Person subject to
the Ownership Limit, if such person is not an individual for purposes of Section
542(a) of the Code and is a corporation, partnership, estate or trust. In
connection with any such exemption, the Board of Directors may require such
representations and undertakings from such Person and may impose such other
conditions as the Board of Directors deems necessary, in its sole discretion, to
determine the effect, if any, of the proposed Transfer on the Corporation's
status as a REIT.
(B) PLEDGE BY INITIAL HOLDER. Notwithstanding any other
provision of this Article, the pledge by the Initial Holder of all or any
portion of the Class P Preferred Stock directly owned at any time or from time
to time shall not constitute a violation of Section 11.1 of this Article and the
pledgee shall not be subject to the Ownership Limit with respect to the Class P
Preferred Stock so pledged to it either as a result of the pledge or upon
foreclosure.
(C) UNDERWRITERS. For a period of 270 days (or such longer
period of time as any underwriter described below shall hold an unsold allotment
of Class P Preferred Stock) following the purchase of Class P Preferred Stock by
an underwriter that (i) is a corporation, partnership or other legal entity and
(ii) participates in an offering of the Class P Preferred Stock, such
underwriter shall not be subject to the Ownership Limit with respect to the
Class P Preferred Stock purchased by it as a part
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of or in connection with such offering and with respect to any Class P Preferred
Stock purchased in connection with market making activities.
11.9 LEGEND. Each certificate for Class P Preferred Stock shall bear
substantially the following legend:
"The shares of Class P Convertible Cumulative Preferred Stock
represented by this certificate are subject to restrictions on
transfer. No person may Beneficially Own shares of Class P Convertible
Cumulative Preferred Stock in excess of the Ownership Restrictions, as
applicable, with certain further restrictions and exceptions set forth
in the Charter (including the Articles Supplementary setting forth the
terms of the Class P Convertible Cumulative Preferred Stock). Any
Person that attempts to Beneficially Own shares of Class P Convertible
Cumulative Preferred Stock in excess of the applicable limitation must
immediately notify the Corporation. All capitalized terms in this
legend have the meanings ascribed to such terms in the Charter
(including the Articles Supplementary setting forth the terms of the
Class P Convertible Cumulative Preferred Stock), as the same may be
amended from time to time, a copy of which, including the restrictions
on transfer, will be sent without charge to each stockholder that so
requests. If the restrictions on transfer are violated (i) the transfer
of the shares of Class P Convertible Cumulative Preferred Stock
represented hereby will be void in accordance with the Charter
(including the Articles Supplementary setting forth the terms of the
Class P Convertible Cumulative Preferred Stock) or (ii) the shares of
Class P Convertible Cumulative Preferred Stock represented hereby will
automatically be transferred to a Trustee of a Trust for the benefit of
one or more Charitable Beneficiaries."
11.10 SEVERABILITY. If any provision of this Article or any application
of any such provision is determined in a final and unappealable judgment to be
void, invalid or unenforceable by any Federal or state court having jurisdiction
over the issues, the validity and enforceability of the remaining provisions
shall not be affected and other applications of such provision shall be affected
only to the extent necessary to comply with the determination of such court.
11.11 BOARD OF DIRECTORS DISCRETION. Anything in this Article to the
contrary notwithstanding, the Board of Directors shall be entitled to take or
omit to take such actions as it in its discretion shall determine to be
advisable in order that the Corporation maintain its status as and continue to
qualify as a REIT, including, but
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not limited to, reducing the Ownership Limit, the Initial Holder Limit and the
Look-Through Ownership Limit in the event of a change in law.
11.12 SETTLEMENT. Nothing in this Section 11 of this Article shall be
interpreted to preclude the settlement of any transaction entered into through
the facilities of the NYSE or other securities exchange or an automated
inter-dealer quotation system.
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FOURTH: The terms of the Class P Cumulative Preferred Stock set forth
in Article Third hereof shall become Article XXVII of the Charter.
(the next page is the signature page)
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IN WITNESS WHEREOF, the Corporation has caused these presents to be
signed in its name and on its behalf by its Executive Vice President and Chief
Financial Officer and witnessed by its Assistant Secretary on [________], 2001.
WITNESS: APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
--------------------------- -----------------------------------
Kathleen Harvey Paul J. McAuliffe
Assistant Secretary Executive Vice President and
Chief Financial Officer
THE UNDERSIGNED, Executive Vice President and Chief Financial Officer
of APARTMENT INVESTMENT AND MANAGEMENT COMPANY, who executed on behalf of the
Corporation the Articles Supplementary of which this Certificate is made a part,
hereby acknowledges in the name and on behalf of said Corporation the foregoing
Articles Supplementary to be the corporate act of said Corporation and hereby
certifies that the matters and facts set forth herein with respect to the
authorization and approval thereof are true in all material respects under the
penalties of perjury.
-----------------------------------
Paul J. McAuliffe
Executive Vice President and
Chief Financial Officer
