SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
RECKSON ASSOCIATES REALTY CORP.
_______________________________
(Exact Name of Registrant as Specified in its Charter)
Maryland 11-3233650
_______________________________________________________________________
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
225 Broadhollow Road
Melville, New York 11747
_______________________________________________________________________
(Address of principal executive offices) (Zip Code)
If this Form relates to the If this Form relates to the
registration of a class of debt registration of a class of
securities and is effective upon debt securities and is to
filing pursuant to General become effective
Instruction A(c)(1) please check simultaneously with the
the following box. /x/ effectiveness of a
concurrent registration
statement under the
Securities Act of 1933
pursuant to General
Instruction A(c)(2)
please check the
following box. /_/
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
____________________________________________________________________________
7 5/8% Series A Convertible Cumulative New York Stock Exchange
Preferred Stock
Securities to be registered pursuant to Section 12(g) of the Act:
None.
Item 1. Description of Registrant's Securities to be Registered.
The section captioned "Description of Series A Preferred Stock" in the
Registrant's prospectus supplement dated April 6, 1998, as well as the
section captioned "Description of Preferred Stock" in the Registrant's
prospectus dated March 26, 1998, forming a part of Registrant's Registration
Statement on Form S-3 (No. 333-46833), which was declared effective on March
25, 1998, is incorporated herein by reference.
Item 2. Exhibits.
The securities described herein are to be registered on the New York
Stock Exchange, on which other securities of the Registrant are registered.
Accordingly, the following exhibits, required in accordance with Part I to
the Instructions as to Exhibits of Form 8-A, have been duly filed with the
New York Stock Exchange:
(I) Articles Supplementary to the Amended and Restated Articles of
Incorporation, establishing and fixing the rights and preferences
of a Series of Shares of Preferred Stock.
(II) Amended and Restated Articles of Incorporation of the Registrant
(incorporated by reference to the Company's Registration Statement
on Form S-11, File No. 333-1280).
(III) Amended and Restated By-Laws of the Registrant (incorporated
by reference to the Registrant's Registration Statement on
Form S-11, File No. 333-1280).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Michael Maturo
Michael Maturo
Executive Vice President
Date: April 8, 1998
Exhibit 1
RECKSON ASSOCIATES REALTY CORP.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF A SERIES OF SHARES OF PREFERRED STOCK
Reckson Associates Realty Corp., a Maryland corporation (the
"Corporation"), certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of
- -----
Directors of the Corporation by Article VI of its Charter, as heretofore
amended (which, as hereafter restated or amended from time to time, are
together with these Articles Supplementary herein called the "Articles"), the
Board of Directors has, by resolution, duly designated and classified
9,200,000 shares of the Preferred Stock of the Corporation into a series
designated 7-5/8% Series A Convertible Cumulative Preferred Stock and has
provided for the issuance of such series.
SECOND: The preferences, rights, voting powers, restrictions,
- ------
limitations as to distributions, qualifications and terms and conditions of
redemption of the shares of such series of Preferred Stock, which upon any
restatement of the Articles shall be included as part of Article VI of the
Articles, are as follows:
7-5/8% SERIES A CONVERTIBLE CUMULATIVE PREFERRED STOCK
(1) Designation and Number. A series of Preferred Stock of the
----------------------
Corporation ("Preferred Stock"), designated the "7-5/8% Series A Convertible
Cumulative Preferred Stock" (the "Series A Preferred"), is hereby
established. The number of shares of the Series A Preferred shall be
9,200,000.
(2) Rank. The Series A Preferred will, with respect to distribution
----
rights and rights upon liquidation, dissolution or winding up of the
Corporation, rank: (a) senior to all classes or series of Common Stock of
the Corporation ("Common Stock") and to all equity securities issued by the
Corporation the terms of which provide that such equity securities shall rank
junior to such Series A Preferred; (b) on a parity with all equity securities
issued by the Corporation other than those referred to in clauses (a) and
(c); and (c) junior to all equity securities issued by the Corporation that
rank senior to the Series A Preferred in accordance with Section 6(d). The
term "equity securities" shall not include convertible debt securities.
(3) Distributions.
-------------
(a) Holders of the shares of Series A Preferred shall be entitled to
receive, when and as authorized by the Board of Directors, out of funds
legally available for the payment of distributions, cumulative cash
distributions at the rate of 7-5/8% per annum of the liquidation preference
per share (equivalent to $1.90625 per annum per share of Series A Preferred ).
Distributions on the Series A Preferred shall be cumulative from the date of
original issue and shall be payable quarterly in arrears on January 31, April
30, July 31 and October 31 of each year or, if not a business day, the next
succeeding business day, commencing July 31, 1998 (each, a "Distribution
Payment Date"). Any distribution payable on the Series A Preferred for a
partial distribution period will be computed on the basis of a 360-day year
consisting of twelve 30-day months. Distributions will be payable to holders
of record as they appear in the stock transfer records of the Corporation at
the close of business on the applicable record date, which shall be such date
designated by the Board of Directors of the Corporation for the payment of
distributions that is not more than 30 nor less than 10 days prior to such
Distribution Payment Date (each, a "Distribution Payment Record Date").
(b) No distributions on the Series A Preferred shall be authorized by
the Board of Directors of the Corporation or be paid or set apart for payment
by the Corporation at such time as the terms and provisions of any agreement
of the Corporation, including any agreement relating to its indebtedness,
prohibits such authorization , payment or setting apart for payment or
provides that such authorization, payment or setting apart for payment would
constitute a breach thereof or a default thereunder, or if such authorization
or payment shall be restricted or prohibited by law.
(c) Distributions on the Series A Preferred will accumulate whether or
not the Corporation has earnings, whether or not there are funds legally
available for the payment of such distributions and whether or not such
distributions are authorized. Accumulated but unpaid distributions on the
Series A Preferred will not bear interest and holders of the Series A
Preferred will not be entitled to any distributions in excess of full
cumulative distributions as described above.
(d) No full distributions will be authorized or paid or set apart for
payment on any equity securities of the Corporation ranking, as to
distributions, on a parity with or junior to the Series A
Preferred for any period unless full distributions have been or
contemporaneously are authorized and paid or authorized and a sum sufficient
for the payment thereof is set apart for such payment on the Series A
Preferred for all past distribution periods and the then current distribution
period. When distributions are not paid in full or a sum sufficient for such
full payment is not so set apart upon the Series A Preferred and the other
equity securities of the Corporation ranking on a parity as to distributions
with the Series A Preferred, all distributions authorized upon the Series A
Preferred and any other equity securities of the Corporation ranking on a
parity as to distributions with the Series A Preferred shall be authorized
pro rata so that the amount of distributions authorized per share of Series A
Preferred and such other equity securities shall in all cases bear to each
other the same ratio that accumulated distributions per share on the Series A
Preferred and such other equity securities (which shall not include any
accumulation in respect of unpaid distributions for prior distribution
periods if such equity securities do not have cumulative distributions) bear
to each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any distribution payment or payments on Series A
Preferred which may be in arrears.
(e) Except as provided in Section 3(d), unless full distributions on
the Series A Preferred have been or contemporaneously are authorized and paid
or authorized and a sum sufficient for the payment thereof is set apart for
payment for all past distribution periods and the then current distribution
period, no distributions (other than in shares of Common Stock or other
equity securities of the Corporation ranking junior to the Series A Preferred
as to distributions and upon liquidation) shall be authorized or paid or set
aside for payment or other distribution shall be authorized or made upon the
Common Stock or any other equity securities of the Corporation ranking junior
to or on a parity with the Series A Preferred as to distributions or upon
liquidation, nor shall any shares of Common Stock or any other equity
securities of the Corporation ranking junior to or on a parity with the
Series A Preferred as to distributions or upon liquidation be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid
to or made available for a sinking fund for the redemption of any such
shares) by the Corporation (except (1) by conversion into or exchange for
other stock of the Corporation ranking junior to the Series A Preferred as to
distributions and upon liquidation or (2) redemptions for the purpose of
preserving the Corporation's status as a real estate investment trust (a
"REIT") under the Internal Revenue Code of 1986, as amended (the "Code").
(f) Any distribution payment made on shares of the Series A Preferred
shall first be credited against the earliest accumulated but unpaid
distribution due with respect to such shares which remains payable.
(4) Liquidation Preference.
----------------------
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation (referred to herein as a
"liquidation"), the holders of the Series A Preferred will be entitled to be
paid out of the assets of the Corporation legally available for distribution
to its stockholders liquidating distributions, in cash or property at its
fair market value as determined by the Corporation's Board of Directors, in
the amount of a liquidation preference of $25.00 per share, plus an amount
equal to any accumulated and unpaid distributions to the date of such
liquidation, before any distribution or payment is made to holders of Common
Stock or any other equity securities of the Corporation ranking junior to the
Series A Preferred as to the distribution of assets upon a liquidation.
After payment of the full amount of the liquidating distributions to which
they are entitled, the holders of Series A Preferred will have no right or
claim to any of the remaining assets of the Corporation.
(b) In the event that, upon any liquidation of the Corporation, the
available assets of the Corporation are insufficient to pay the amount of the
liquidating distributions on all outstanding shares of Series A Preferred and
the corresponding amounts payable on all other equity securities of the
Corporation ranking on a parity with Series A Preferred in the distribution
of assets upon a liquidation, then the holders of Series A Preferred and all
other such equity securities shall share ratably in any such distribution of
assets in proportion to the full liquidating distributions to which they
would otherwise be respectively entitled.
(c) The consolidation or merger of the Corporation with or into any
other entity, or the merger of another entity with or into the Corporation,
or a statutory share exchange by the Corporation, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Corporation, shall not be deemed to constitute a liquidation of the
Corporation.
(d) The liquidation preference of the outstanding shares of
Series A Preferred will not be added to the liabilities of the Corporation
for the purpose of determining whether under the Maryland General Corporation
Law a distribution may be made to stockholders of the Corporation whose
preferential rights upon dissolution of the Corporation are junior to those
of holders of Series A Preferred.
(5) Redemption.
----------
(a) Shares of Series A Preferred will not be redeemable prior to April
13, 2003, subject to the provisions of Sections 5(c) and 8. On or after
April 13, 2003, the Corporation may redeem shares of the Series A Preferred,
in whole or in part, from time to time, at the following redemption prices
per share if redeemed during the twelve-month period beginning April 13 of
the applicable year, plus all accumulated and unpaid distributions thereon to
the date fixed for redemption, upon not less than 30 nor more than 60 days'
prior written notice.
YEAR REDEMPTION PRICE PER SHARE
---- --------------------------
2003 . . . . . . . . . . . . . . . . . . . . . . . . $25.95313
2004 . . . . . . . . . . . . . . . . . . . . . . . . 25.76250
2005 . . . . . . . . . . . . . . . . . . . . . . . . 25.57187
2006 . . . . . . . . . . . . . . . . . . . . . . . . 25.38124
2007 . . . . . . . . . . . . . . . . . . . . . . . . 25.19061
2008 and thereafter . . . . . . . . . . . . . . . . . 25.00
(b) The Corporation may not exercise its option to redeem shares of
Series A Preferred unless the redemption price (other than the portion
thereof consisting of accumulated and upaid distributions) is paid solely out
of the sale proceeds of equity securities of the Corporation, and from no
other source. For purposes of the preceding sentence, "equity securities"
means Common Stock, Preferred Stock or other equity securities of the
Corporation, or any shares, interest, participation or other ownership
interests (however designated) , or any rights or options to purchase any of
the foregoing (other than debt securities convertible into or exchangeable
for equity securities).
(c) If fewer than all of the outstanding shares of Series A Preferred
are to be redeemed, the shares to be redeemed shall be determined pro rata or
by lot or in such other manner as prescribed by the Board of Directors of the
Corporation. In the event that such redemption is to be by lot, if as a
result of such redemption any holder of Series A Preferred would own, or be
deemed by virtue of the attribution provisions of the Code to own, in excess
of 20% of the issued and outstanding shares of Series A Preferred or 9.0% in
value of all outstanding equity securities of the Corporation, as the case
may be, because such holder's shares were not redeemed, or were only redeemed
in part, then the Corporation, to the extent permitted by operative law, will
redeem the requisite number of shares of Series A Preferred of such
stockholder such that such stockholder will not own, or be deemed by
virtue of the attribution provisions of the Code to own, in excess of 20% of
the shares of Series A Preferred or 9.0% in value of all equity securities of
the Corporation, as the case may be, issued and outstanding subsequent to
such redemption.
(d) Notwithstanding anything to the contrary contained herein, the
Corporation may redeem shares of Series A Preferred at any time, whether or
not prior to April 13, 2003, if the Board of Directors of the Corporation
determines that such redemption is (i) necessary or advisable to preserve the
Corporation's status as a REIT or (ii) reasonable or appropriate in order to
comply with any laws, rules or regulations of any governmental authority.
(e) Notice of redemption will be mailed by the Corporation, postage
prepaid, not less than 30 nor more than 60 days prior to the date fixed for
redemption (the "Series A Preferred Stock Redemption Date"), addressed to the
respective holders of record of the Series A Preferred to be redeemed at
their respective addresses as they appear on the stock transfer records of
the Corporation. Each notice of redemption shall state: (i) the redemption
date; (ii) the number of shares of Series A Preferred to be redeemed; (iii)
the redemption price; (iv) the place or places where certificates
representing such shares of Series A Preferred are to be surrendered for
payment of the redemption price; (v) that distributions on the shares to be
redeemed will cease to accumulate on such redemption date; and (vi) the date
upon which the holder's conversion rights as to such shares shall terminate.
If fewer than all the shares of Series A Preferred are to be redeemed, the
notice mailed to each such holder thereof shall also specify the number of
shares of Series A Preferred to be redeemed from each such holder.
(f) At its election, the Corporation, prior to the Series A Preferred
Stock Redemption Date, may irrevocably deposit the redemption price
(including accumulated and unpaid distributions) of the Series A Preferred so
called for redemption in trust for the holders thereof with a bank or trust
company, in which case the notice of redemption to holders of the Series A
Preferred to be redeemed will (i) state the date of such deposit, (ii)
specify the office of such bank or trust company as the place of payment of
the redemption price and (iii) require such holders to surrender the
certificates representing such Series A Preferred at such place on or about
the date fixed in such redemption notice (which may not be later than the
Series A Preferred Stock Redemption Date) against payment of the redemption
price (including all accumulated and unpaid distributions to the Series A
Preferred Stock Redemption Date). Any moneys so deposited which remain
unclaimed by the holders of the Series A Preferred at the end of two years
after the Series A Preferred Stock Redemption Date will be returned by such
bank or trust company to the Corporation.
(g) No failure to give notice of redemption or any defect thereto or in
the mailing thereof shall affect the validity of the proceedings for the
redemption of any shares of Series A Preferred except as to the holder to
whom notice was defective or not given.
(h) On or after the Series A Preferred Stock Redemption Date, each
holder of Series A Preferred to be redeemed must present and surrender the
certificates representing the Series A Preferred to the Corporation at the
place designated in the notice of redemption and thereupon the redemption
price of such shares will be paid to or on the order of the person whose
name appears on such certificates as the owner thereof and each surrendered
certificate will be canceled. In the event that fewer than all the shares of
Series A Preferred are to be redeemed, a new certificate will be issued
representing the unredeemed shares.
(i) From and after the Series A Preferred Stock Redemption Date (unless
the Corporation defaults in payment of the redemption price), all
distributions on the Series A Preferred called for redemption will cease to
accumulate and all rights of the holders thereof, except the right to receive
the redemption price thereof (including all accumulated and unpaid
distributions to the Series A Preferred Stock Redemption Date), will cease
and terminate and such shares will not thereafter be transferred (except with
the consent of the Corporation) on the Corporation's records, and such shares
shall not be deemed to be outstanding for any purpose whatsoever.
(j) Unless full distributions on all shares of Series A Preferred shall
have been or contemporaneously are authorized and paid or authorized and a
sum sufficient for the payment thereof is set apart for payment for all past
distribution periods and the then current distribution period, no shares of
Series A Preferred shall be redeemed unless all outstanding shares of Series
A Preferred are simultaneously redeemed; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of Series A
Preferred to preserve the REIT status of the Corporation or pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of Series A Preferred.
(k) Unless full distributions on all shares of Series A Preferred have
been or contemporaneously are authorized and paid or authorized and a sum
sufficient for the payment thereof is set apart for payment for all past
distribution periods and the then current distribution period, the
Corporation shall not purchase or otherwise acquire, directly or indirectly,
any shares of Series A Preferred (except by conversion into or exchange for
equity securities of the Corporation ranking junior to the Series A Preferred
as to distributions and upon liquidation); provided, however, that the
foregoing shall not prevent the purchase or acquisition of Series A Preferred
to preserve the REIT status of the Corporation or pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
Series A Preferred.
(l) The provisions of Sections 5(j) and 5(k) shall not prevent the
purchase by the Corporation of Series A Preferred in order to ensure the
Corporation remains qualified as a REIT.
(m) Immediately prior to any redemption of Series A Preferred, the
Corporation shall pay, in cash, any accumulated and unpaid distributions to
the Series A Preferred Stock Redemption Date, unless such Series A Preferred
Stock Redemption Date falls after a Distribution Payment Record Date and
prior to the corresponding Distribution Payment Date, in which case each
holder of Series A Preferred at the close of business on such Distribution
Payment Record Date shall be entitled to the distribution payable on such
shares on the corresponding Distribution Payment Date notwithstanding the
redemption of such shares on or prior to such Distribution Payment Date.
Except as provided above, the Corporation will make no payment or allowance
for unpaid distributions, whether or not in arrears, on Series A Preferred
for which a notice of redemption has been given.
(n) Any shares of Series A Preferred that have been redeemed shall,
after such redemption, have the status of authorized but unissued Preferred
Stock, without designation as to series, until such shares are once more
designated as part of a particular series by the Board of Directors of the
Corporation.
(o) The Series A Preferred will not have a stated maturity date and
will not be subject to any sinking fund or mandatory redemption provisions.
(6) Voting Rights
-------------
(a) Holders of the Series A Preferred will not have any voting rights,
except as set forth below. In any matter in which the Series A Preferred is
entitled to vote, including any action by written consent, each share of
Series A Preferred shall be entitled to one vote.
(b) Whenever distributions on any shares of Series A Preferred shall be
in arrears for six or more quarterly periods (a "Preferred Distribution
Default"), the holders of such shares of Series A Preferred (voting
separately as a class with all other series of Preferred Stock upon which
like voting rights have been conferred and are exercisable) will be entitled
to vote for the election of two additional directors of the Corporation (the
"Preferred Stock Directors") at a special meeting called by the holders of
record of at least 10% of the outstanding shares of Series A Preferred or the
holders of any other series of Preferred Stock so in arrears (unless such
request is received less than 90 days before the date fixed for the next
annual or special meeting of stockholders) or at the next annual meeting of
stockholders, and at each subsequent annual meeting until all distributions
accumulated on such shares of Series A Preferred for the past distribution
periods and the then current distribution period shall have been fully paid
or declared and a sum sufficient for the payment thereof is set aside for
payment. In such cases, the entire Board of Directors of the Corporation
will be increased by two directors.
(c) If and when all accumulated distributions and the distribution for
the current distribution period on the Series A Preferred shall have been
paid in full or set aside for payment in full, the holders of shares of
Series A Preferred shall be divested of the voting rights set forth in
Section 6(b) (subject to revesting in the event of each and every Preferred
Distribution Default) and, if all accumulated distributions and the
distribution for the current distribution period have been paid in full or
set aside for payment in full on all other series of Preferred Stock upon
which like voting rights have been conferred and are exercisable, the term of
office of each Preferred Stock Director so elected shall terminate
immediately. So long as a Preferred Distribution Default shall continue, any
vacancy in the office of a Preferred Stock Director may be filled by written
consent of the Preferred Stock Director remaining in office or, if none
remains in office, by a vote of the holders of record of a majority of the
outstanding shares of Series A Preferred when they have the voting rights set
forth in Section 6(b) (voting separately as a class with all other series of
Preferred Stock upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one
vote per director on any matter, presented to the Board of Directors.
(d) So long as any shares of Series A Preferred remain outstanding, the
Corporation shall not, without the affirmative vote or consent of the holders
of record of at least two-thirds of the outstanding shares of the Series A
Preferred given in person or by proxy, either in writing or at a meeting
(such series voting separately as a class), (i) authorize or create, or
increase the authorized or issued amount of, any equity securities ranking
senior to the Series A Preferred with respect to payment of distributions or
the distribution of assets upon a liquidation of the Corporation or
reclassify any authorized stock of the Corporation into any such equity
securities, or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such stock or (ii)
amend, alter or repeal the provisions of the Articles, whether by merger,
consolidation or otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege or voting power of the Series A
Preferred or the holders thereof; provided, however, that the holders of the
Series A Preferred shall not be entitled to any voting rights in connection
with an Event if as a result of such Event (a) shares of Series A Preferred
remain outstanding with the terms thereof materially unchanged or (b) the
Corporation is not the surviving entity but the surviving entity issues to
the holders of the Series A Preferred the same number of shares of a separate
class of preferred stock with rights, preferences, privileges and voting
powers that are materially unchanged from the preferences, rights, privileges
and other terms of the Series A Preferred; and provided, further, that (x)
any increase in the amount of the authorized Series A Preferred or the
creation or issuance of any other series of Preferred Stock or (y) any
increase in the amount of authorized shares of such series, in each case
ranking on a parity with or junior to the Series A Preferred with respect to
payment of distributions or the distribution of assets upon a liquidation of
the Corporation, shall not be deemed to materially and adversely affect such
rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series A Preferred
shall have been converted, redeemed or called for redemption upon proper
notice and sufficient funds shall have been deposited in trust to effect such
redemption.
(7) Conversion.
----------
(a) Subject to Section 8, shares of Series A Preferred will be
convertible at any time, at the option of the holders thereof, into Common
Stock at a conversion price of $28.61 per share of Common Stock (equivalent
to a conversion rate of .8738 shares of Common Stock for each share of Series
A Preferred), subject to adjustment as described below (the "Conversion
Price"); provided, however, that the right to convert shares of Series A
Preferred called for redemption will terminate at the close of business on
the fifth business day prior to the Series A Preferred Stock Redemption Date.
(b) To exercise the conversion right, the holder of each Series A
Preferred to be converted shall surrender the certificate representing such
Series A Preferred, duly endorsed or assigned to the Corporation or in blank,
at the principal office of the Transfer Agent accompanied by written notice
to the Corporation that such holder elects to convert such Series A
Preferred. Unless the shares issuable on conversion are to be issued in the
same name as the name in which such Series A Preferred is registered, in
which case the Corporation shall bear the related taxes, each share
surrendered for conversion shall be accompanied by instruments of transfer,
in form satisfactory to the Corporation, duly executed by the holder or such
holder's duly authorized attorney and an amount sufficient to pay any
transfer or similar tax (or evidence reasonably satisfactory to the
Corporation demonstrating that such taxes have been paid).
(c) Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates
representing shares of Series A Preferred shall have been surrendered and
such notice (and if applicable, payment of an amount equal to the
distribution payable on such shares) received by the Corporation as
aforesaid, and the person or persons in whose name or names any certificate
or certificates representing shares of 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 and on
such date unless the stock transfer records of the Corporation shall be
closed on that date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of business on the
next succeeding day on which such stock transfer records are open, but such
conversion shall be at the Conversion Price in effect on the date on which
such shares have been surrendered and such notice received by the
Corporation.
(d) Holders of shares of Series A Preferred at the close of business on
a Distribution Payment Record Date shall be entitled to receive the
distribution payable on such shares on the corresponding Distribution Payment
Date notwithstanding the conversion of such shares following such
Distribution Payment Record Date and prior to such Distribution Payment Date.
However, certificates representing Series A Preferred surrendered for
conversion during the period between the close of business on any
Distribution Payment Record Date and the opening of business on the
corresponding Distribution Payment Date (except shares converted after the
issuance of a notice of redemption with respect to the Series A Preferred
Stock Redemption Date during such period or coinciding with such Distribution
Payment Date) must be accompanied by payment of an amount equal to the
distribution payable on the related shares of Series A Preferred on such
Distribution Payment Date. A holder of Series A Preferred on a Distribution
Payment Record Date who (or whose transferee) tenders any such shares for
conversion into Common Stock on such Distribution Payment Date shall receive
the distribution payable by the Corporation on such Series A Preferred on
such date, and the converting holder need not include payment of the amount
of such distribution upon surrender of certificates representing such Series
A Preferred for conversion. Except as provided above, the Corporation shall
make no payment or allowance for unpaid distributions, whether or not in
arrears, on converted shares or for distribution on the Common Stock that is
issued upon such conversion.
As promptly as practicable after the surrender of certificates for
Series A Preferred as aforesaid, the Corporation shall issue and shall
deliver at such office to such holder, or on his written order, a certificate
or certificates for the number of full shares of Common Stock issuable upon
the conversion of such shares in accordance with the provisions of this
Section 7, and any fractional interest in respect of a share of Common Stock
arising upon such conversion shall be settled as provided in Section 7(e).
(e) No fractional shares of Common Stock shall be issued upon
conversion of Series A Preferred. Instead of any fractional share of Common
Stock that would otherwise be deliverable upon the conversion of a share of
Series A Preferred, the Corporation shall pay to the holder of such share an
amount in cash in respect of such fractional interest based upon the Current
Market Price of a share of Common Stock on the Trading Day immediately
preceding the date of conversion. If more than one share of Series A
Preferred shall be surrendered for conversion at one time by the same holder,
the number of full shares of Common Stock issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares of Series A
Preferred so surrendered.
(f) The Conversion Price shall be adjusted from time to time as
follows:
(i) If the Corporation shall after the date on which shares of
Series A Preferred are first issued (the "Issue Date") (A) pay or make a
distribution to holders of its equity securities in Common Stock, (B)
subdivide its outstanding Common Stock into a greater number of shares, (C)
combine its outstanding Common Stock into a smaller number of shares or (D)
issue any equity securities by reclassification of its Common Stock, then the
Conversion Price in effect at the opening of business on the day following
the record date for the determination of stockholders entitled to receive
such distribution or at the opening of business on the day following the day
on which such subdivision, combination or reclassification becomes effective,
as the case may be, shall be adjusted so that the holder of any share of
Series A Preferred thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock that such holder would have
owned or have been entitled to receive after the happening of any of the
events described above had such shares been converted immediately prior to
the record date in the case of a distribution or the effective date in the
case of a subdivision, combination or reclassification. An adjustment made
pursuant to this subsection (i) shall become effective immediately after the
opening of business on the day following such record date (except as provided
in Section 7(j)) in the case of a distribution and shall become effective
immediately after the opening of business on the day next following the
effective date in the case of a subdivision, combination or reclassification.
(ii) If the Corporation shall issue after the Issue Date rights,
options or warrants to all holders of Common Stock entitling them to
subscribe for or purchase shares of Common Stock (or securities convertible
into or exchangeable for Common Stock) at a price per share less than the
Fair Market Value per share of Common Stock on the record date for the
determination of stockholders entitled to receive such rights, options or
warrants, then the Conversion Price in effect at the opening of business on
the day following such record date shall be adjusted to equal the price
determined by multiplying (I) the Conversion Price in effect immediately
prior to the opening of business on the day following the record date for
such determination by (II) a fraction, the numerator of which shall be the
sum of (A) the number of shares of Common Stock outstanding on the close of
business on the record date for such determination and (B) the number of
shares that the aggregate proceeds to the Corporation from the exercise of
such rights, options or warrants for Common Stock would purchase at such Fair
Market Value, and the denominator of which shall be the sum of (A) the number
of shares of Common Stock outstanding on the close of business on the record
date for such determination and (B) the number of additional shares of Common
Stock offered for subscription or purchase pursuant to such rights, options
or warrants. Such adjustment shall become effective immediately after the
opening of business on the day following such record date (except as provided
in Section 7(j)). In determining whether any rights, options or warrants
entitle the holders of Common Stock to subscribe for or purchase Common Stock
at less than the Fair Market Value, there shall be taken into account any
consideration received by the Corporation upon issuance and upon exercise of
such rights, options or warrants, the value of such consideration, if other
than cash, to be determined by the Corporation's Chief Executive Officer or
the Board of Directors of the Corporation.
(iii) If the Corporation shall distribute to all holders of its
Common Stock any equity securities of the Corporation (other than Common
Stock) or evidences of its indebtedness or assets (excluding Permitted Common
Stock Cash Distributions and those rights, options and warrants referred to
in and treated under subsection (ii) above), then the Conversion Price shall
be adjusted so that it shall equal the price determined by multiplying (I)
the Conversion Price in effect immediately prior to the close of business on
the record date for the determination of stockholders entitled to receive
such distribution by (II) a fraction, the numerator of which shall be the
Fair Market Value per share of Common Stock on the record date for such
determination less the then fair market value (as determined by the
Corporation's Chief Executive Officer or the Board of Directors of the
Corporation, whose determination shall be conclusive) of the portion of the
equity securities, evidences of indebtedness or assets so distributed
applicable to one share of Common Stock, and the denominator of which shall
be the Fair Market Value per share of Common Stock on the record date for
such determination. Such adjustment shall become effective immediately at
the opening of business on the day following such record date (except as
provided in Section7(j)). For the purposes of this subsection (iii), the
distribution of equity securities, evidences of indebtedness or assets which
are distributed not only to the holders of Common Stock on the record date
for the determination of stockholders entitled to such distribution, but also
are distributed with each share of Common Stock delivered to a person
converting a share of Series A Preferred after such record date, shall not
require an adjustment of the Conversion Price pursuant to this subsection
(iii), provided that on the date, if any, on which a person converting a
--------
share of Series A Preferred would no longer be entitled to receive such
equity securities, evidences of indebtedness or assets with a share of Common
Stock (other than as a result of the termination of all such equity
securities, evidences of indebtedness or assets), a distribution of such
equity securities, evidences of indebtedness or assets shall be
deemed to have occurred and the Conversion Price shall be adjusted as
provided in this subsection (iii) (and such day shall be deemed to be "the
record date for the determination of the stockholders entitled to receive
such distribution" within the meaning of the two preceding sentences).
(iv) Except with respect to any distribution of shares of common
stock of Reckson Service Industries, Inc. as contemplated by the Corporation
on the Issue Date, no adjustment in the Conversion Price shall be required
unless such adjustment would require a cumulative increase or decrease of at
least 1% in the Conversion Price; provided, however, that any adjustments
that by reason of this subsection (iv) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment until
made; and provided, further, that any adjustment shall be required and made
in accordance with the provisions of this Section 7 (other than this
subsection (iv)) not later than such time as may be required in order to
preserve the tax-free nature of a distribution to the holders of Common
Stock. Notwithstanding any other provisions of this Section 7, the
Corporation shall not be required to make any adjustment of the Conversion
Price for the issuance of any Common Stock pursuant to any plan providing for
the reinvestment of distributions or interest payable on securities of the
Corporation and the investment of additional optional amounts in Common Stock
under such plan. All calculations under this Section 7 shall be made to the
nearest cent with ($.005 being rounded upward) or to the nearest one-tenth of
a share (with .05 of a share being rounded upward), as the case may be.
Anything in this subsection (f) to the contrary notwithstanding, the
Corporation shall be entitled, to the extent permitted by law, to make such
reductions in the Conversion Price, in addition to those required by this
subsection (f), as it in its discretion shall determine to be advisable in
order that any share distributions, subdivision, reclassification or
combination of shares, distribution of rights, options or warrants to
purchase shares or securities, or a distribution of other assets (other than
cash distributions) hereafter made by the Corporation to its stockholders
shall not be taxable.
(g) Except as otherwise provided for in Section7(f), if the Corporation
shall be a party to any transaction (including, without limitation, a merger,
consolidation, statutory share exchange, tender offer for all or
substantially all of the Common Stock or sale of all or substantially all of
the Corporation's assets) (each of the foregoing being referred to herein as
a "Transaction"), in each case as a result of which Common Stock shall be
converted into the right to receive shares, stock, securities or other
property (including cash or any combination thereof), each share of Series A
Preferred, if convertible after the consummation of the Transaction, which
is not converted into the right to receive shares, stock, securities or other
property in connection with such Transaction shall thereafter be convertible
into the kind and amount of shares, stock, securities and other property
(including cash or any combination thereof) receivable upon the consummation
of such Transaction by a holder of that number of shares of Common Stock into
which one share of Series A Preferred was convertible immediately prior to
such Transaction, assuming such holder of Common Stock (i) is not a Person
with which the Corporation consolidated or into which the Corporation merged
or which merged into the Corporation or to which such sale or transfer was
made, as the case may be (a "Constituent Person"), or an affiliate of a
Constituent Person and (ii) failed to exercise his rights of the election, if
any, as to the kind or amount of shares, stock, securities and other property
(including cash or any combination thereof) receivable upon such Transaction
(each, a "Non-Electing Share") (provided that if the kind and amount of
shares, stock, securities and other property (including cash or any
combination thereof) receivable upon consummation of such Transaction is not
the same for each Non-Electing Share, the kind and amount receivable by each
Non-Electing Share shall be deemed to be the kind and amount receivable per
share by a plurality of the Non-Electing Shares). The Corporation shall not
be a party to any Transaction unless the terms of such Transaction are
consistent with the provisions of this subsection (g), and it shall not
consent or agree to the occurrence of any Transaction until the Corporation
has entered into an agreement with the successor or purchasing entity, as the
case may be, for the benefit of the holders of the Series A Preferred that
will contain provisions enabling holders of Series A Preferred that remains
outstanding after such Transaction to convert into the consideration received
by holders of Common Stock at the Conversion Price in effect immediately
prior to such Transaction. The provisions of this subsection (g) shall
similarly apply to successive Transactions.
(h) If:
(i) the Corporation shall declare a distribution on the Common
Stock (other than Permitted Common Stock Cash Distributions) or there shall
be a reclassification, subdivision or combination of the Common Stock; or
(ii) the Corporation shall grant to the holders of the Common Stock
of rights, options or warrants to subscribe for or purchase Common Stock at
less than Fair Market Value; or
(iii) the Corporation shall enter into a Transaction; or
(iv) there shall occur the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation,
then the Corporation shall cause to be filed with the Transfer Agent and
shall cause to be mailed to the holders of the Series A Preferred at
their addresses as shown on the stock transfer records of the
Corporation, as promptly as possible, but at least 15 days prior to the
applicable date hereinafter specified, a notice stating (A) the date on
which a record in to be taken for the purpose of such distribution or
rights, options or warrants, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to
such distribution or rights, options or warrants are to be determined or
(B) the date on which such reclassification, subdivision, combination,
Transaction or liquidation, dissolution or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their Common
Stock for securities or other property, if any, deliverable upon such
reclassification, subdivision, combination, Transaction or liquidation,
dissolution or winding up. Failure to give or receive such notice or
any defect therein shall not affect the legality or validity of the
proceedings described in this Section 7.
(i) Whenever the Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the Transfer Agent an officer's
certificate setting forth the Conversion Price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such
adjustment absent manifest error. Promptly after delivery of such
certificate, the Corporation shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the
effective date such adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Price to the holder of each share of
Series A Preferred at such holder's last address as shown on the stock
transfer records of the Corporation.
(j) In any case in which Section 7(f) provides that an adjustment shall
become effective on the day following the record date for an event, the
Corporation may defer until the occurrence of such event (A) issuing to the
holder of any share of Series A Preferred converted after such record date
and before the occurrence of such event the additional shares of Common Stock
issuable upon such conversion by reason of the adjustment required by such
event over and above the shares of Common Stock issuable upon such conversion
before giving effect to such adjustment and (B) fractionalizing any share of
Series A Preferred and/or paying to such holder any amount of cash in lieu of
any fraction pursuant to Section 7(e).
(k) There shall be no adjustment of the Conversion Price in case of the
issuance of any equity securities of the Corporation in a reorganization,
acquisition or other similar transaction except as specifically set forth in
this Section 7. If any action or transaction would require adjustment of the
Conversion Price pursuant to more than one subsection of Section 7(f), only
one adjustment shall be made, and such adjustment shall be the amount of
adjustment that has the highest absolute value.
(l) If the Corporation shall take any action affecting the Common
Stock, other than action described in this Section 7, that in the opinion of
the Board of Directors of the Corporation would materially adversely affect
the conversion rights of the holders of the Series A Preferred, the
Conversion Price for the Series A Preferred may be adjusted, to the extent
permitted by law, in such manner, if any, and at such time, as the Board of
Directors of the Corporation, in its sole discretion, may determine to be
equitable in the circumstances.
(m) The Corporation shall at all times reserve and keep available, free
from preemptive rights, out of the aggregate of its authorized but unissued
Common Stock, for the purpose of effecting conversion of the Series A
Preferred, the full number of shares of Common Stock deliverable upon the
conversion of all outstanding shares of Series A Preferred not theretofore
converted. For purposes of this subsection (m), the number of shares of
Common Stock that shall be deliverable upon the conversion of all outstanding
shares of Series A Preferred shall be computed as if at the time of
computation all such outstanding shares were held by a single holder.
(n) The Corporation will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issue or delivery of Common
Stock or other securities or property on conversion of the Series A Preferred
pursuant hereto; provided, however, that the Corporation shall not be
required to pay any tax that may be payable in respect of any transfer
involved in the issue or delivery of Common Stock or other securities or
property in a name other than that of the record holder of the Series A
Preferred 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.
(8) Ownership Limitations. Notwithstanding Article VII of the Articles,
---------------------
the provisions of this Section 8 shall apply with respect to the limitations
on the ownership and acquisition of shares of Series A Preferred.
(a) Restriction on Ownership and Transfer.
(i) Except as provided in Section 8(h), no Person shall Acquire
any shares of Series A Preferred if, as the result of such Acquisition, such
Person shall Beneficially Own or Constructively Own shares of Series A
Preferred in excess of the Ownership Limit;
(ii) Except as provided in Section 8(h), no Person shall
Beneficially Own or Constructively Own any shares of Series A Preferred such
that such Person would Beneficially Own or Constructively Own Capital Stock
in excess of the Aggregate Stock Ownership Limit;
(iii) Except as provided in Section 8(h), any Acquisition
(whether or not such Acquisition is the result of a transaction entered into
through the facilities of the New York Stock Exchange, Inc. (the "NYSE"))
that, if effective, would result in any Person Beneficially Owning Series A
Preferred in excess of the Ownership Limit shall be void Series A ab initio
as to the Acquisition of such Series A Preferred which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit; and the
intended transferee shall acquire no rights in such Series A Preferred;
(iv) Except as provided in Section 8(h), any Acquisition (whether
or not such Acquisition is the result of a transaction entered into through
the facilities of the NYSE) that, if effective, would result in any Person
Constructively Owning Series A Preferred in excess of the Ownership Limit
shall be void ab initio as to the Acquisition of such Series A Preferred
which would be otherwise Constructively Owned by such Person in excess of the
Ownership Limit; and the intended transferee shall acquire no rights in such
Series A Preferred; and
(v) Notwithstanding any other provisions contained in this Section
8, any Transfer (whether or not such Transfer is the result of a transaction
entered into through the facilities of the NYSE) or other event 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, but not limited to, a
Transfer 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 the Series A Preferred or other event which would cause the
Corporation to be "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; and the intended transferee or owner or Constructive or Beneficial
Owner shall acquire or retain no rights in such Series A Preferred.
(b) Conversion Into and Exchange For Series A Excess Preferred. If,
notwithstanding the other provisions contained in this Section 8, at any time
after the date of the Issue Date, there is a purported Transfer or
Acquisition (whether or not such Transfer or Acquisition is the result of a
transaction entered into through the facilities of the NYSE), change in the
capital structure of the Corporation or other event such that one or more of
the restrictions on ownership and transfers described in Section 8(a), above,
has been violated, then the Series A Preferred being Transferred or Acquired
(or in the case of an event other than a Transfer or Acquisition, the Series
A Preferred owned or Constructively Owned or Beneficially Owned or, if the
next sentence applies, the Series A Preferred identified in the next
sentence) which would cause one or more of the restrictions on ownership or
transfer to be violated (rounded up to the nearest whole share) shall be
automatically converted into an equal number of shares of Series A Excess
Preferred. If at any time of such purported Transfer or Acquisition any of
the shares of the Series A Preferred are then owned by a depositary to permit
the trading of beneficial interests in fractional shares of Series A
Preferred, then shares of Series A Preferred that shall be converted to
Series A Excess Preferred shall be first taken from any Series A Preferred
that is not in such depositary that is Beneficially Owned or Constructively
Owned by the Person whose Beneficial Ownership or Constructive Ownership
would otherwise violate the restrictions of Section 8(a) prior to converting
any shares in such depositary. Any conversion pursuant to this subparagraph
shall be effective as of the close of business on the Business Day prior to
the date of such Transfer or other event.
(c) Remedies For Breach. If the Board of Directors or its designees
shall at any time determine in good faith that a Transfer or other event has
taken place in violation of Section 8(a) or that a Person intends to Transfer
or Acquire, has attempted to Transfer or Acquire or may Transfer or Acquire
direct ownership, beneficial ownership (determined without reference to any
rules of attribution), Beneficial Ownership or Constructive Ownership of any
shares of the Corporation in violation of Section 8(a), the Board of
Directors or its designees shall take such action as it deems advisable to
refuse to give effect to or to prevent such Transfer, Acquisition or other
event, including, but not limited to, causing the Corporation to purchase
such shares upon the terms and conditions specified by the Board of Directors
in its sole discretion, refusing to give effect to such Transfer, Acquisition
or other event on the books of the Corporation or instituting proceedings to
enjoin such Transfer, Acquisition or other event; provided, however, that any
Transfer or Acquisition (or, in the case of events other than a Transfer or
Acquisition, ownership or Constructive Ownership or Beneficial Ownership) in
violation of Section 8(a) shall automatically result in the conversion
described in Section 8(b), irrespective of any action (or non-action) by the
Board of Directors.
(d) Notice of Restricted Transfer. Any Person who Acquires or attempts
to Acquire or Beneficially Owns or Constructively Owns shares of Series A
Preferred in excess of the aforementioned limitations, or any Person who is
or attempts to become a transferee such that Series A Excess Preferred
results under the provisions of these Articles, shall immediately give
written notice or, in the event of a proposed or attempted Transfer, give at
least 15 days prior written notice to the Corporation of such event and shall
provide to the Corporation such other information as it may request in order
to determine the effect of any such Transfer on the corporation's status as a
REIT.
(e) Owners Required To Provide Information. From and after the Issue
Date, each Person who is a beneficial owner or Beneficial Owner or
Constructive Owner of Series A Preferred and each Person (including the
stockholder of record) who is holding Series A Preferred for a Beneficial
Owner or Constructive Owner shall provide to the Corporation such information
that the Corporation may request, in good faith, in order to determine the
Corporation's status as a REIT.
(f) Remedies Not Limited. Nothing contained in this Section 8 (but
subject to Section 8(l)) shall limit the authority of the Board of Directors
to take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its stockholders by preservation of the
Corporation's status as a REIT.
(g) Ambiguity. In the case of an ambiguity in the application of any
of the provisions of this Section 8, including any definition contained in
Section 9, the Board of Directors shall have the power to determine the
application of the provisions of this Section 8 with respect to any situation
based on the facts known to it (subject, however, to the provisions of
Section 8(l)).
(h) Exceptions.
(i) Subject to Section 8(a)(iv), the Board of Directors, in its
sole and absolute discretion, with the advice of the Corporation's tax
counsel, may exempt a Person from the limitation on a Person Acquiring Series
A Preferred in excess of the Ownership Limit or Beneficially Owning Series A
Preferred in excess of the Aggregate Stock Ownership Limit if such Person is
not an individual for purposes of Section 542(a)(2) of the Code and the Board
of Directors obtains such representations and undertakings from such Person
as are reasonably necessary to ascertain that no individual's Acquisition or
Beneficial Ownership of such Series A Preferred will violate the Ownership
Limit or Beneficially Owning Series A Preferred in excess of the Aggregate
Stock Ownership Limit, as the case may be, and such Person agrees that any
violation of such representations or undertaking (or other action which is
contrary to the restrictions contained in this Section 8) or attempted
violation will result in such Series A Preferred being exchanged for Series A
Excess Preferred in accordance with Section 8(b).
(ii) Subject to Section 8(a)(iv), the Board of Directors, in its
sole and absolute discretion, with advice of the Corporation's tax counsel,
may exempt a Person from the limitation on a Person Constructively Owning or
Acquiring Series A Preferred in excess of the Ownership Limit or Beneficially
Owning or Acquiring Series A Preferred in excess of the Aggregate Stock
Ownership Limit if such Person does not and represents that it will not own,
directly or constructively (by virtue of the application of Section 318 of
the Code, as modified by Section 856(d)(5) of the Code), more than a 9%
interest (as set forth in Section 856(d)(2)(B) of the Code) in a tenant of
the Corporation and the Board of Directors obtains such representations and
undertakings from such Person as are reasonably necessary to ascertain this
fact and such Person agrees that any violation or attempted violation will
result in such Series A Preferred in excess of the Ownership Limit or
Beneficially Owning Series A Preferred in excess of the Aggregate Stock
Ownership Limit being exchanged for Series A Excess Preferred in accordance
with Section 8(b).
(iii) Prior to granting any exception pursuant to Section
8(h)(i) or 8(h)(ii), the Board of Directors may require a ruling from the
IRS, or an opinion of counsel, in either case in form and substance
satisfactory to the Board of Directors, in its sole discretion as it may deem
necessary or advisable in order to determine or ensure the Corporation's
status as a REIT; provided, however, that obtaining a favorable ruling or
opinion shall not be required for the Board of Directors to grant an
exception hereunder.
(i) Legend. Each certificate for Series A Preferred shall bear
substantially the following legend:
"The Corporation will furnish to any stockholder, on request and without
charge, a full statement of the information required by Section 2-211(b) of
the Corporations and Associations Article of the Annotated Code of Maryland
with respect to the designations and any preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications, and terms and conditions of redemptions of the
stock of each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in series,
(i) the differences in the relative rights and preferences between the shares
of each series to the extent set, and (ii) the authority of the Board of
Directors to set such rights and preferences of subsequent series. The
foregoing summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the charter of the Corporation
including all amendments and supplements thereto (the "Charter"), a copy of
which will be sent without charge to each stockholder who so requests. Such
request must be made to the Secretary of the Corporation at its principal
office or to the Transfer Agent.
"The securities represented by this certificate are subject to
restrictions on ownership and transfer for the purpose of the Corporation's
maintenance of its status as a real estate investment trust under the
Internal Revenue Code of 1986, as amended. Except as otherwise provided
pursuant to the Charter of the Corporation, no Person may (i) Acquire any
shares of Series A Preferred if, as a result of such Acquisition, such Person
shall Beneficially Own or Constructively Own shares of Series A Preferred in
excess of 20% of the outstanding Series A Preferred of the Corporation or
(ii) Beneficially Own or Constructively Own any shares of Series A Preferred
such that such Person would Beneficially Own or Constructively Own Capital
Stock in excess of 9% in value of the aggregate of the outstanding shares of
Capital Stock of the Corporation. Any Person who Acquires or attempts to
Acquire or Beneficially Owns or Constructively Owns shares of Series A
Preferred in excess of the aforementioned limitations, or any Person who is
or attempts to become a transferee such that Series A Excess Preferred would
result under the provisions of the Charter, shall immediately give written
notice or, in the event of a proposed or attempted Transfer, give at least
15 days prior written notice to the Corporation of such event and shall
provide to the Corporation such other information as it may request in order
to determine the effect of any such Transfer on the corporation's status as a
REIT. All capitalized terms in this legend have the meanings defined in the
Charter of the Corporation, a copy of which, including the restrictions on
transfer, will be sent to any stockholder on request and without charge.
Transfers in violation of the restrictions described above shall be void ab
initio. If the restrictions on ownership and transfer are violated, the
securities represented hereby will be designated and treated as shares of
Series A Excess Preferred which will be held in trust by the Corporation.
The foregoing summary does not purport to be complete and is subject to and
qualified in its entirety by reference to the Charter, a copy of which,
including the restrictions on transfer, will be sent without charge to each
stockholder who so requests. Such request must be made to the Secretary of
the Corporation at its principal office or to the Transfer Agent."
(j) Severability. If any provision of this Section 8 or any
application of any such provision is determined to be invalid by any federal
or state court having jurisdiction, the validity of the remaining provisions
shall not be affected and other applications of such provision shall be
affected only to the extent necessary to comply with the determination of
such court.
(k) Series A Excess Preferred.
(i) Ownership In Trust. Upon any purported Transfer (whether or
not such Transfer is the result of a transaction entered into through the
facilities of the NYSE) that results in the issuance of Series A Excess
Preferred pursuant to Section 8(b), such Series A Excess Preferred shall be
deemed to have been transferred to the Corporation, as Trustee of a Trust for
the exclusive benefit of such Beneficiary or Beneficiaries to whom an
interest in such Series A Excess Preferred may later be transferred pursuant
to Section 8(k)(v). Series A Excess Preferred so held in trust shall be
issued and outstanding shares of stock of the Corporation. The Purported
Record Transferee shall have no rights in such Series A Excess Preferred
except the right to designate a transferee of such Series A Excess Preferred
upon the terms specified in Section 8(k)(v). The Purported Beneficial
Transferee shall have no rights in such Series A Excess Preferred except as
provided in this Section 8.
(ii) Dividend Rights. Series A Excess Preferred will be entitled
to dividends and distributions authorized and declared with respect to the
Series A Preferred from which the Series A Excess Preferred was converted and
will be payable to the Trustee of the Trust in which such Series A Excess
Preferred is held, for the benefit of the Charitable Beneficiary. Dividends
and distributions will be authorized and declared with respect to each
share of Series A Excess Preferred in an amount equal to the dividends
and distributions authorized and declared on each share of Series A Preferred
from which the Series A Excess Preferred was converted. Any dividend or
distribution paid prior to the discovery by the Corporation that Series A
Preferred has been transferred in violation of the provisions of the Articles
shall be repaid by the Purported Record Transferee to the Trustee upon
demand. The Corporation shall rescind any dividend or distribution
authorized and declared but unpaid as void ab initio with respect to the
Purported Record Transferee, and the Corporation shall pay such dividend or
distribution when due to the Trustee of the Trust for the benefit of the
Charitable Beneficiary.
(iii) Conversion Rights. Holders of shares of Series A Excess
Preferred shall not be entitled to convert any shares of Series A Excess
Preferred into shares of Common Stock. Any conversion made prior to the
discovery by the Corporation that shares of Series A Preferred have been
converted into Series A Excess Preferred shall be void ab initio and the
Purported Record Transferee shall return the shares of Common Stock into
which the Series A Preferred was converted upon demand to the Corporation for
reconversion into Series A Preferred and deposit into the Trust.
(iv) Rights Upon Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of, or any other
distribution of all or substantially all of the assets of the Corporation,
each holder of shares of Series A Excess Preferred shall be entitled to
receive, in the case of Series A Excess Preferred converted from Series A
Preferred, ratably with each other holder of Series A Preferred and Series A
Excess Preferred converted from Series A Preferred, that portion of the
assets of the Corporation available for distribution to its stockholders as
the number of shares of the Series A Excess Preferred held by such holder
bears to the total number of shares of Series A Preferred and Series A Excess
Preferred then outstanding (in the case of Series A Excess Preferred
converted from Series A Preferred).
Any liquidation distributions to be distributed with respect to Series A
Excess Preferred shall be distributed in the same manner as proceeds from the
sale of Series A Excess Preferred are distributed as set forth in Section
8(k)(v).
(v) Non-Transferability of Excess Stock. Series A Excess
Preferred shall not be transferable. In its sole discretion, the Trustee of
the Trust may transfer the interest in the Trust representing shares of
Series A Excess Preferred to any Person if the shares of Series A Excess
Preferred would not be Series A Excess Preferred in the hands of such Person.
If such transfer is made, the interest of the Charitable Beneficiary in the
Series A Excess Preferred shall terminate and the proceeds of the sale shall
be payable by the Trustee to the Purported Record Transferee and the
Charitable Beneficiary as herein set forth. The Purported Record Transferee
shall receive from the Trustee the lesser of (i) the price paid by the
Purported Record Transferee for its shares of Series A Preferred that were
converted into Series A Excess Preferred or, if the Purported Record
Transferee did not give value for such shares (e.g. the stock was received
through a gift, devise or other transaction), the average closing price for
the class of shares from which such shares of Series A Excess Preferred were
converted for the ten trading days immediately preceding such sale or gift,
and (ii) the price received by the Trustee from the sale or other disposition
of the Series A Excess Preferred held in trust. The Trustee may reduce the
amount payable to the Purported Record Transferee by the amount of dividends
and distributions which have been paid to the Purported Record Transferee and
are owed by the Purported Record Transferee to the Trustee pursuant to
Section 8(k)(i). Any proceeds in excess of the amount payable to the
Purported Record Transferee shall be paid by the Trustee to the Charitable
Beneficiary. Upon such transfer of an interest in the Trust, the
corresponding shares of Series A Excess Preferred in the Trust shall be
automatically exchanged for an equal number of shares of Series A Excess
Preferred and such shares of Series A Excess Preferred shall be transferred
of record to the transferee of the interest in the Trust if such shares of
Series A Excess Preferred would not be Series A Excess Preferred in
the hands of such transferee. Prior to any transfer of any interest in the
Trust, the Corporation must have waived in writing its purchase rights under
Section 8(k)(vii).
(vi) Voting Rights for Series A Excess Preferred. Any vote cast by
a Purported Record Transferee of Series A Excess Preferred prior to the
discovery by the Corporation that Series A Preferred has been transferred in
violation of the provisions of these Articles shall be void ab initio. While
the Series A Excess Preferred is held in trust, the Purported Record
Transferee will be deemed to have given an irrevocable proxy to the Trustee
to vote the shares of Series A Preferred which have been converted into
shares of Series A Excess Preferred for the benefit of the Charitable
Beneficiary.
(vii) Purchase Rights in Series A Excess Preferred.
Notwithstanding the provisions of Section 8(k)(v), shares of Series A Excess
Preferred 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 required the issuance of such Series A
Excess Preferred (or, if the Transfer or other event that resulted in the
issuance of Series A Excess Preferred was not a transaction in which the
Purported Beneficial Transferee gave full value for such Series A Excess
Preferred, a price per share equal to the Market Price on the date of the
purported Transfer or other event that resulted in the issuance of Series A
Excess Preferred) 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 ninety (90) days after the later of (i) the
date of the Transfer or other event which resulted in the issuance of such
shares of Series A Excess Preferred and (ii) the date the Board of Directors
determines in good faith that a Transfer or other event resulting in the
issuance of shares of Series A Excess Preferred has occurred, if the
Corporation does not receive a notice of such Transfer or other event
pursuant to Section 8(d). The Corporation may appoint a special trustee of
the Trust for the purpose of consummating the purchase of Series A Excess
Preferred by the Corporation. In the event that the Corporation's actions
cause a reduction in the number of shares of Series A Preferred outstanding
and such reduction results in the issuance of Series A Excess Preferred, the
Corporation is required to exercise its option to repurchase such shares of
Series A Excess Preferred if the Beneficial Owner notifies the Corporation
that it is unable to sell its rights to such Series A Excess Preferred.
(l) Settlement. Nothing in this Section 8 shall preclude the
settlement of any transaction entered into through facilities of the NYSE.
(9) Definitions.
"Acquire". The term "Acquire" shall mean the acquisition of Beneficial
Ownership or Constructive Ownership of shares of Preferred Equity Stock by
any means including, without limitation, a Transfer, the exercise of or right
to exercise any rights under any option, warrant, convertible security,
pledge or other security interest or similar right to acquire shares, but
shall not include the acquisition of any such rights unless, as a result, the
acquiror would be considered a Beneficial Owner or Constructive Owner, as
defined below and shall not include Beneficial Ownership or Constructive
Ownership that does not result from an acquisition. The term "Acquisition"
shall have the correlative meaning.
"Aggregate Stock Ownership Limit". The term "Aggregate Stock Ownership
Limit" shall mean not more than 9% in value of the aggregate of the
outstanding shares of Capital Stock. The number and value of shares of the
outstanding shares of Capital Stock shall be determined by the Board of
Directors of the Corporation in good faith, which determination shall be
conclusive for all purposes thereof.
"Beneficial Ownership". The term "Beneficial Ownership" shall mean
ownership of Series A Preferred or Series A Excess Preferred by a Person who
is or would be treated as an owner of such Series A Preferred or Series A
Excess Preferred either directly or constructively through the application of
Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code.
The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
"Business Day". The term "Business Day" shall mean any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions in The City of New York are authorized or required by
law, regulation or executive order to close.
"Capital Stock". The term "Capital Stock" shall mean all classes of
series of stock of the Corporation, including, without limitation, Common
Equity and Preferred Equity Stock.
"Charitable Beneficiary". The term "Charitable Beneficiary" shall mean
a beneficiary of the Trust as determined pursuant to Section 8(k).
"Common Equity". The term "Common Equity" shall mean all shares now or
hereafter authorized of any class of common stock of the Corporation,
including the Common Stock, and any other stock of the Corporation, howsoever
designated, authorized after the Initial Issue Date, which has the right
(subject always to prior rights of any class or series of preferred stock) to
participate in the distribution of the assets and earnings of the Corporation
without limit as to per share amount.
"Constructive Ownership". The term "Constructive Ownership" shall mean
ownership of Series A Preferred or Series A Excess Preferred by a Person who
is or would be treated as an owner of such Series A Preferred or Series A
Excess Preferred either directly or constructively through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The
terms "Constructive Owner," "Constructively Owns" and "Constructively Owned"
shall have the correlative meanings.
"Current Market Price" of publicly traded Common Stock or any other
equity security of the Corporation or any other issuer for any day shall mean
the last reported sales price, regular way, on such day, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices
on such day, regular way, in either case as reported on the NYSE or, if such
security is not listed or admitted for trading on the NYSE, on the principal
national securities exchange on which such security is listed or admitted for
trading or, if not listed or admitted for trading on any national securities
exchange, on the Nasdaq National Market or, if such security is not quoted on
the Nasdaq National Market, the average of the closing bid and asked prices
on such day in the over-the-counter market as reported by Nasdaq or, if bid
and asked prices for such security on such day shall not have been reported
through Nasdaq the average of the bid and asked prices on such day as
furnished by any NYSE member firm regularly making a market in such security
selected for such purpose by the Corporation's Chief Executive Officer or the
Board of Directors of the Corporation.
"Fair Market Value" shall mean the average of the daily Current Market
Prices per share of Common Stock during the five consecutive Trading Days
selected by the Corporation commencing not more than 20 Trading Days before,
and ending not later than, the earlier of the day in question and the day
before the "ex" date with respect to the issuance or distribution requiring
such computation. The term "ex-date", when used with respect to any issuance
or distribution, means the first day on which the shares of Common Stock
trade regular way, without the right to receive such issuance or
distribution, on the exchange or in the market, as the case may be, for
purposes of determining that day's Current Market Price.
"IRS". The term "IRS" shall mean the United States Internal Revenue
Service.
"Market Price". The term "Market Price" as to any date shall mean the
average of the last sales price reported on the NYSE of Series A Preferred,
on the ten trading days immediately preceding the relevant date, or if not
then traded on the NYSE, the average of the last reported sales price of the
Series A Preferred on the ten trading days immediately preceding the relevant
date as reported on any exchange or quotation system over which the Series A
Preferred may be traded, of it not then traded over any exchange or quotation
system, then the market price of the Series A Preferred on the relevant date
as determined in good faith by the Board of Directors.
"Ownership Limit". The term "Ownership Limit" shall mean not more than
20% (in value or in number of shares, whichever is more restrictive) of the
aggregate of the outstanding shares of Preferred Equity Stock. The number
and value of outstanding shares of Series A Preferred of the Corporation
shall be determined by the Board of Directors of the Corporation in good
faith, which determination shall be conclusive for all purposes hereof.
"Permitted Common Stock Cash Distributions" shall mean those cumulative
cash distributions paid with respect to the Common Stock after March 31,
1998, which are not in excess of the following: the sum of (i) the
Corporation's cumulative undistributable funds from operations ("FFO"), as
determined by the Board of Directors of the Corporation, at March 31, 1998
plus (ii) the cumulative amount of FFO, as determined by the Board of
Directors of the Corporation, after March 31, 1998 minus (iii) the cumulative
amount of distributions accumulated or paid on any other Preferred Stock
after the Issue Date.
"Person". The term "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section 401(a)
or 501(c)(17) of the Code), a portion of a trust permanently set aside for or
to be used exclusively for the purposes described in Section 642(c) of the
Code, association, private foundation within the meaning of Section 509(a) of
the Code, joint stock company or other entity, and also includes a group as
that term is used for purposes of Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended; but does not include an underwriter which
participates in a public offering of the Series A Preferred or any interest
therein, provided that such ownership by such underwriter would not result in
the Corporation being "closely held" within the meaning of Section 856(h) of
the Code, or otherwise result in the Corporation failing to qualify as a
REIT.
"Preferred Equity Stock." The term "Preferred Equity Stock" shall mean
shares of stock that are either Series A Preferred or Series A Excess
Preferred.
"Purported Beneficial Transferee." The term "Purported Beneficial
Transferee" shall mean, with respect to any purported Transfer which results
in Series A Excess Preferred, the purported beneficial transferee or owner
for whom the Purported Record Transferee would have acquired or owned shares
of Series A Preferred if such Transfer had been valid under Section 8(a)
below.
"Purported Record Transferee". The term "Purported Record Transferee"
shall mean, with respect to any purported Transfer which results in Series A
Excess Preferred Stock, the record holder of the Preferred Equity Stock if
such Transfer had been valid under Section 8(a) below.
"Trading Day" shall mean any day on which the securities in question are
traded on the NYSE or, if such securities are not listed or admitted for
trading on the NYSE, on the principal national securities exchange on which
such securities are listed or admitted or, if not listed or admitted for
trading on any national securities exchange, on the Nasdaq National Market
or, if such securities are not quoted on the Nasdaq National Market, in the
applicable securities market in which the securities are traded.
"Transfer". The term "Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition of Preferred Equity Stock, including
(i) the granting of any option or entering into any agreement for the sale,
transfer or other disposition of Preferred Equity Stock or (ii) the sale,
transfer, assignment or other disposition of any securities (or rights
convertible into or exchangeable for Preferred Equity Stock), whether
voluntary or involuntary, whether of record or beneficially or Beneficially
or Constructively Owned (including but not limited to Transfers of interests
in other entities which result in changes in Beneficial or Constructive
Ownership of Preferred Equity Stock), and whether by operation of law or
otherwise. The term "Transferring" and "Transferred" shall have the
correlative meanings.
"Transfer Agent" means American Stock Transfer & Trust Company, or such
other agent or agents of the Corporation as may be designated by the Board of
Directors of the Corporation or its designee as the transfer agent for the
Series A Preferred.
"Trust". The term "Trust" shall mean the trust created pursuant to
Section 8(k).
"Trustee". The term "Trustee" shall mean the Person that is appointed
by the Corporation pursuant to Section 8(k) to serve as trustee of the Trust,
and any successor thereto.
(10) Any determination by the Board of Directors pursuant to the terms of
the Series A Preferred shall be final and binding upon the holders thereof
and shall be conclusive for all purposes.
THIRD: The Shares have been classified and designated by the Board of
- -----
Directors under the authority contained in the Charter.
FOURTH: These Articles Supplementary have been approved by the Board
- ------
of Directors in the manner and by the vote required by law.
FIFTH: These Articles Supplementary shall be effective at the time the
- -----
State Department of Assessments and Taxation of Maryland accepts these
Articles Supplementary for record.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
IN WITNESS WHEREOF, RECKSON ASSOCIATES REALTY CORP. has caused these
presents to be signed in its name and on its behalf by its President and
Chief Executive Officer and its corporate seal to be hereunto affixed and
attested by its Secretary, and the said officers of the Corporation further
acknowledge said instrument to be the corporate act of the Corporation, and
state under the penalties of perjury that, to the best of their knowledge,
information and belief, the matters and facts therein set forth with respect
to approval are true in all material respects.
RECKSON ASSOCIATES REALTY CORP.
By: /s/ Scott H. Rechler
---------------------------------
Scott H. Rechler,
President and Chief Executive Officer
(SEAL)
ATTEST:
/s/ Gregg Rechler
------------------------------
Gregg Rechler, Secretary
