SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES
EXCHANGE ACT OF 1934
LEXINGTON CORPORATE PROPERTIES TRUST
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(Exact Name of Registrant as Specified in Its Charter)
Maryland 13-3717318
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(State of Incorporation or Organization) (I.R.S. Employer Identification No.)
One Penn Plaza, Suite 4015
New York, New York 10119
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(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box. [x] check the following box. |_|
Securities Act registration statement file number to which this form relates:
File No. 333-109393.
Securities to be registered pursuant to Section 12(b) of the Exchange Act:
Name of Each Exchange on Which
Title of Each Class to be So Registered Each Class is to be Registered
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6.50% Series C Cumulative Convertible
Preferred Stock, par value $.0001 per
share New York Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act: None.
INFORMATION IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
The information required by this Item 1 is set forth under the
caption "Description of Series C Preferred Shares" contained in the Prospectus
Supplement dated December 3, 2004, to the Prospectus dated October 22, 2003,
included as part of the Registration Statement on Form S-3 (File No. 333-109393)
of the Registrant, filed with the Securities and Exchange Commission (the
"Commission") on October 2, 2003. The Prospectus Supplement is hereby
incorporated by reference into this registration statement.
ITEM 2. EXHIBITS
The following exhibits are filed as part of this registration
statement:
3.1 Declaration of Trust of the Registrant (incorporated herein by reference
to Exhibit 3.1 to the Registrant's Current Report on Form 8-K filed
January 16, 1998).
3.2 Bylaws of the Registrant (incorporated herein by reference to Exhibit
3.2 to the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997).
3.3 Amendment No. 1 to Bylaws of the Registrant (incorporated herein by
reference to Exhibit 3.3 to the Registrant's Registration Statement on
Form 8-A filed June 17, 2003).
3.4 Articles Supplementary Relating to the 8.05% Series B Cumulative
Redeemable Preferred Stock, par value $0.0001 per share (incorporated
herein by reference to Exhibit 3.4 to the Registrant's Registration
Statement on Form 8-A filed June 17, 2003).
3.5 Articles Supplementary Relating to the 6.50% Series C Cumulative
Convertible Preferred Stock, par value $0.0001 per share.
4.1 Form of 6.50% Series C Cumulative Convertible Preferred Stock
certificate.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
LEXINGTON CORPORATE PROPERTIES TRUST
By: /s/ T. Wilson Eglin
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Name: T. Wilson Eglin
Title: Chief Executive Officer
Date: December 8, 2004
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Exhibit 3.5
LEXINGTON CORPORATE PROPERTIES TRUST
ARTICLES SUPPLEMENTARY
6.50% SERIES C CUMULATIVE CONVERTIBLE PREFERRED STOCK
LEXINGTON CORPORATE PROPERTIES TRUST, a Maryland statutory real estate
investment trust, having its principal office in Baltimore City, Maryland (the
"Trust"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board of
Trustees of the Trust by Article VI of the Declaration of Trust, as amended to
date (the "Declaration"), and in accordance with Section 8-203 of the Maryland
REIT Law, the Board of Trustees has adopted resolutions (i) duly dividing and
classifying 3,100,000 authorized but unissued preferred shares of beneficial
interest, par value $.0001 per share, of the Trust into a separate series of
preferred shares of beneficial interest (the "Series C Preferred Shares"), (ii)
authorizing the issuance of up to 3,100,000 shares of the Series C Preferred
Shares, and (iii) pursuant to the powers contained in Section 3.01 the Bylaws of
the Trust and Section 8-206 of the Maryland REIT Law, appointing a pricing
committee of the Board of Trustees (the "Committee"), and delegating to the
Committee, to the fullest extent permitted by Maryland law and the Declaration
and Bylaws of the Trust, all powers of the Board of Trustees with respect to
designating and setting of the terms of the Series C Preferred Shares, including
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms or conditions of
redemption, and the price, and terms and conditions upon which shares of the
Series C Preferred Shares are to be offered, sold and issued.
SECOND: Pursuant to the authority conferred upon the Committee, the
Committee has duly adopted resolutions designating the Series C Preferred Shares
as "6.50% Series C Cumulative Convertible Preferred Stock, par value $.0001 per
share." and setting forth the terms of the Series C Preferred Shares, including
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends, qualifications, or terms or conditions of
redemption and the price, and terms and conditions upon which shares of the
Series C Preferred Shares are to be offered, sold and issued.
THIRD: The reclassification increases the number of shares classified
as Series C Preferred Shares from no shares immediately prior to the
reclassification to 3,100,000 shares immediately after the reclassification. The
reclassification decreases the number of shares classified as unclassified
preferred shares of beneficial interest from 6,840,000 shares immediately prior
to the reclassification to 3,740,000 shares immediately after the
reclassification.
FOURTH: The terms of the Series C Preferred Shares as set by the Board
of Trustees and the Committee, including preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, or terms or conditions of redemption, are as follows:
Section 1. Number of Shares and Designation.
The Series C Preferred Shares shall be a series of preferred shares of
beneficial interest designated as "6.50% Series C Cumulative Convertible
Preferred Stock, par value $.0001 per share", and the number of shares
constituting such series shall be 3,100,000.
Section 2. Definitions.
"105% Trading Price Exception" shall have the meaning set forth in
Section 12(k) of this Article FOURTH.
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series C Preferred Shares.
"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.
"Capital Gains Amount" shall have the meaning set forth in Section 3(g)
of this Article FOURTH.
"Capital Stock" shall have the meaning set forth in Article NINTH of
the Declaration.
"Cash Amount" shall have the meaning set forth in Section 6(d)(5) of
this Article FOURTH.
"Cash Settlement Average Period" shall have the meaning set forth in
Section 6(d).
"Closing Sale Price" shall mean with regard to shares of the Common
Stock, on any date, the closing sale price per share (or if no closing sale
price is reported, the average of the closing bid and ask prices or, if more
than one in either case, the average of the average closing bid and the average
closing ask prices) on such date as reported on the principal United States
national or regional securities exchange on which shares of the Common Stock are
traded or, if shares of the Common Stock are not listed on a United States
national or regional securities exchange, as reported by Nasdaq or by the
National Quotation Bureau Incorporated, or in the absence of such a quotation,
the Trust shall determine the closing sale price, in good faith, on the basis of
such quotations and other information as it considers, in its reasonable
judgment, appropriate.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall mean the common stock, par value $.0001 per share,
of the Trust.
"Conversion Date" shall have the meaning set forth in Section 6(c) of
this Article FOURTH.
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"Conversion Notice" shall have the meaning set forth in Section 6(c) of
this Article FOURTH.
"Conversion Price" shall mean, as of any day, a per share amount equal
to the quotient of the liquidation preference amount of a share of Series C
Preferred Shares on that day divided by the Conversion Rate on such day.
"Conversion Rate" shall have the meaning set forth in Section 6(a) of
this Article FOURTH.
"Conversion Retraction Period" shall have the meaning set forth in
Section 6(d) of this Article FOURTH.
"Conversion Right" shall have the meaning set forth in Section 6(a) of
this Article FOURTH.
"Conversion Value" shall mean an amount equal to the product of the
applicable Conversion Rate (as adjusted) multiplied by the arithmetic average of
the Closing Sale Prices of the Common Stock during the Cash Settlement Averaging
Period.
"Current Market Price" shall have the meaning set forth in Section 7(g)
of this Article FOURTH.
"Declaration" shall have the meaning set forth in Article FIRST hereof.
"Distributed Assets" shall have the meaning set forth in Section 7(d)
of this Article FOURTH.
"Dividend Payment Date" shall mean, with respect to each Dividend
Period, the fifteenth day of February, May, August and November of each year,
commencing on February 15, 2005.
"Dividend Period" shall mean the respective periods commencing on and
including January 1, April 1, July 1 and October 1 of each year and ending on
and including the day preceding the first day of the next succeeding Dividend
Period (other than the initial Dividend Period, which shall commence on the
Original Issue Date and end on and include December 31, 2004).
"Dividend Record Date" shall mean the date designated by the Board of
Trustees for the payment of dividends that is not more than 30 nor less than 10
days prior to the applicable Dividend Payment Date.
"Dividend Threshold Amounts" shall mean the amounts set forth in the
table below; provided, however that the Dividend Threshold Amounts are subject
to adjustment under the same circumstances and by the same mechanisms under
which the Conversion Rate is subject to adjustment pursuant to Sections 7(a),
7(b), 7(c) and 7(d) of this Article FOURTH.
$0.36 per common share through and including November 15, 2005
$0.37 per common share from November 16, 2005 thru and including
November 15, 2006
$0.38 per common share thereafter
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"DTC" shall have the meaning set forth in Section 6(c) of this Article
FOURTH.
"Equity Stock" shall have the meaning set forth in Article EIGHTH of
the Declaration.
"Event" shall have the meaning set forth in Section 5 of this Article
FOURTH.
"Excess Stock" shall have the meaning set forth in Article NINTH of the
Declaration.
"Expiration Time" shall have the meaning set forth in Section 7(f) of
this Article FOURTH.
"Fair Market Value" shall have the meaning set forth in Section 7(g) of
this Article FOURTH.
"Fundamental Change" shall have the meaning set forth in Section 12(j)
of this Article FOURTH.
"Fundamental Change Repurchase Date" shall have the meaning set forth
in Section 12(a) of this Article FOURTH.
"Fundamental Change Repurchase Price" shall have the meaning set forth
in Section 12(a) of this Article FOURTH.
"Liquidation Preference Conversion Settlement Election" shall have the
meaning set forth in Section 6(d) of this Article FOURTH.
"Nasdaq" shall mean National Association of Securities Dealers
Automated Quotation System.
"Non-electing Share" shall have the meaning set forth in Section 8(c)
of this Article FOURTH.
"Notice" shall have the meaning set forth in Section 6(b) of this
Article FOURTH.
"OP Units" shall mean operating partnership units of Lepercq Corporate
Income Fund L.P., Lepercq Corporate Income Fund II L.P. and Net 3 Acquisition
L.P. not owned by the Trust or any of its consolidated subsidiaries and which by
their terms of issuance are exchangeable for shares of Common Stock on a
one-to-one basis.
"Original Issue Date" shall mean December 8, 2004.
"Ownership Limit" shall have the meaning set forth in Article NINTH of
the Declaration.
"Parity Preferred" shall have the meaning set forth in Section 5 of
this Article FOURTH.
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"Preferred Dividend Default" shall have the meaning set forth in
Section 5 of this Article FOURTH.
"Preferred Trustees" shall have the meaning set forth in Section 5 of
this Article FOURTH.
"Public Acquirer Change of Control" shall have the meaning set forth in
Section 11(f) of this Article FOURTH.
"Public Acquirer Common Stock" shall have the meaning set forth in
Section 12(g) of this Article FOURTH.
"Record Date" shall have the meaning set forth in Section 7(g) of this
Article FOURTH.
"Reference Period" shall have the meaning set forth in Section 7(d) of
this Article FOURTH.
"Repurchase Right" shall have the meaning set forth in Section 12(a) of
this Article FOURTH.
"Series B Preferred Shares" shall mean the 8.05% Series B Cumulative
Redeemable Preferred Shares, par value $.0001 per share, of the Trust.
"Settlement Notice Period" shall have the meaning set forth in Section
6(d) of this Article FOURTH.
"Series C Preferred Shares" shall have the meaning set forth in Article
FIRST hereof.
"Spin-Off" shall have the meaning set forth in Section 7(d) of this
Article FOURTH.
"Total Dividends" shall have the meaning set forth in Section 3 of this
Article FOURTH.
"Trading Day" shall mean a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, on the principal other United States
national or regional securities exchange on which the Common Stock is then
listed or, if the Common Stock is not listed on a United States national or
regional securities exchange, on Nasdaq or, if the Common Stock is not quoted on
Nasdaq, on the principal other market on which the Common Stock is then traded.
"Trust" shall have the meaning set forth in the preamble to these
Articles Supplementary.
"Trust Conversion Option" shall have the meaning set forth in Section
6(b) of this Article FOURTH.
"Trust Conversion Option Date" shall have the meaning set forth in
Section 6(b) of this Article FOURTH.
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"Undisrupted Trading Day" shall mean a Trading Day on which trading of
shares of Common Stock does not experience any of the following during the one
hour period ending at the conclusion of the regular Trading Day:
(1) any suspension of or limitation imposed on the trading
of shares of Common Stock on any United States national or regional securities
exchange or association or over-the-counter market;
(2) any event (other than an event listed in clause (3)
below) that disrupts or impairs the ability of market participants in general to
(i) effect transactions in or obtain market values for shares of Common Stock on
any relevant United States national or regional securities exchange or
association or over-the-counter market or (ii) effect transactions in or obtain
market values for futures or options contracts relating to shares of Common
Stock on any relevant United States national or regional securities exchange or
association or over-the-counter market; or
(3) any relevant United States national or regional
securities exchange or association or over-the-counter market on which shares of
Common Stock trade closes on any Trading Day prior to its scheduled closing time
unless such earlier closing time is announced by the exchange at least one hour
prior to the earlier of (i) the actual closing time for the regular trading
session on such exchange or (ii) the submission deadline for orders to be
entered into the exchange for execution on such Trading Day.
Section 3. Dividends and Distributions.
(a) Subject to the preferential rights of the holders of any
class or series of Capital Stock of the Trust ranking senior to the Series C
Preferred Shares as to dividends, the holders of the Series C Preferred Shares
shall be entitled to receive, when, as and if declared by the Board of Trustees,
out of funds legally available for the payment of dividends, cumulative cash
dividends at the rate of 6.50% per annum of the $50.00 liquidation preference
per share of the Series C Preferred Shares (equivalent to the annual rate of
$3.25 per share of the Series C Preferred Shares). Such dividends shall accrue
and be cumulative from and including the Original Issue Date and shall be
payable quarterly in arrears on each Dividend Payment Date, commencing February
15, 2004 in respect of the quarterly distribution periods ending on December 31,
March 31, June 30, and September 30, respectively; provided, however, that if
any Dividend Payment Date is not a Business Day, then the dividend which would
otherwise have been payable on such Dividend Payment Date may be paid on the
next succeeding Business Day with the same force and effect as if paid on such
Dividend Payment Date, and no interest or additional dividends or other sums
shall accrue on the amount so payable from such Dividend Payment Date to such
next succeeding Business Day. The dividend payable on the Series C Preferred
Shares on February 15, 2005 shall be a pro rata dividend from the Original Issue
Date to December 31, 2004 in the amount of $0.2167 per share. The amount of any
dividend payable on the Series C Preferred Shares for each full Dividend Period
shall be computed by dividing the annual dividend by four (4). The amount of any
dividend payable on the Series C Preferred Shares for any partial Dividend
Period other than the initial Dividend Period shall be prorated and computed on
the basis of a 360-day year consisting of twelve 30-day months. Dividends will
be payable to holders of record as they appear in the stockholder records of the
Trust at the
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close of business on the applicable Dividend Record Date, which shall be a
date determined by the Board of Trustees that is not more than thirty (30) days
nor less than ten (10) days before the Dividend Payment Date.
(b) No dividends on the Series C Preferred Shares shall be
declared by the Board of Trustees or paid or set apart for payment by the Trust
at such time as the terms and provisions of any agreement of the Trust,
including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration, or payment or setting
apart for payment shall be restricted or prohibited by law.
(c) Notwithstanding anything contained herein to the contrary,
dividends on the Series C Preferred Shares shall accrue whether or not the Trust
has earnings, whether or not there are funds legally available for the payment
of such dividends, and whether or not such dividends are declared.
(d) Except as provided in Section 3(e) below, unless full
cumulative dividends on the Series C Preferred Shares for all past dividend
periods and the then current dividend period shall have been or
contemporaneously are declared and paid in cash or declared and a sum sufficient
for the payment thereof in cash is set apart for such payment, (i) no dividends,
other than distributions in kind on the Common Stock or other capital shares
ranking junior to the Series C Preferred Shares as to distributions and upon
liquidation, shall be declared or paid or set apart for payment and no other
dividend or distribution of cash or other property may be declared or made,
directly or indirectly, on or with respect to any shares of Common Stock, Series
B Preferred Shares or shares of any other class or series of Capital Stock of
the Trust ranking, as to dividends, on a parity with or junior to the Series C
Preferred Shares (other than pro rata dividends on Series B Preferred Shares or
other preferred shares ranking on parity as to distributions with the Series C
Preferred Shares) for any period, nor (ii) shall any shares of Common Stock or
any other shares of any other class or series of Capital Stock of the Trust
ranking, as to dividends or upon liquidation, on a parity with or junior to the
Series C Preferred Shares, including without limitation the Series B Preferred
Shares, 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 Trust (except by conversion into or exchange for other
shares of any class or series of Capital Stock of the Trust ranking junior to
the Series C Preferred Shares as to dividends and upon liquidation and except
for the acquisition of shares made pursuant to the provisions of Article NINTH
of the Declaration).
(e) When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series C Preferred Shares and
the shares of any other class or series of Capital Stock ranking, as to
dividends, on a parity with the Series C Preferred Shares, including, without
limitation the Series B Preferred Shares, all dividends declared upon the Series
C Preferred Shares and each such other class or series of Capital Stock ranking,
as to dividends, on a parity with the Series C Preferred Shares including,
without limitation the Series B Preferred Shares, shall be declared pro rata so
that the amount of dividends declared per share of Series C Preferred Shares and
such other class or series of Capital Stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Series C Preferred
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Shares and such other class or series of Capital Stock (which shall not include
any accrual in respect of unpaid dividends on such other class or series of
Capital Stock for prior dividend periods if such other class or series of
Capital Stock does not have a cumulative dividend) bear to each other. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series C Preferred Shares which may be
in arrears.
(f) Holders of shares of Series C Preferred Shares shall not be
entitled to any dividend, whether payable in cash, property or shares of Capital
Stock, in excess of full cumulative dividends on the Series C Preferred Shares
as provided herein. Any dividend payment made on the Series C Preferred Shares
shall first be credited against the earliest accrued but unpaid dividends due
with respect to such shares which remains payable. Accrued but unpaid
distributions on the Series C Preferred Shares will accumulate as of the
Dividend Payment Date on which they first become payable.
(g) If, for any taxable year, the Trust elects to designate as
"capital gain dividends" (as defined in Section 857 of the Code or any successor
revenue code or section) any portion (the "Capital Gains Amount") of the total
dividends (as determined for United States federal income tax purposes) paid or
made available for such taxable year to holders of all classes and series of
Capital Stock (the "Total Dividends"), then the portion of the Capital Gains
Amount that shall be allocable to holders of Series C Preferred Shares shall be
in the same proportion that the Total Dividends paid or made available to the
holders of Series C Preferred Shares for such taxable year bears to the Total
Dividends for such taxable year made with respect to all classes or series of
Capital Stock outstanding.
Section 4. Liquidation Preference.
Upon any voluntary or involuntary liquidation, dissolution or
winding-up of the affairs of the Trust, before any distribution or payment shall
be made to holders of shares of Common Stock or any other class or series of
Capital Stock of the Trust ranking, as to liquidation rights, junior to the
Series C Preferred Shares, the holders of shares of Series C Preferred Shares
(and of the Excess Stock converted from Series C Preferred Shares, if any) shall
be entitled to be paid out of the assets of the Trust legally available for
distribution to its stockholders a liquidation preference of $50.00 per share,
plus an amount equal to any accrued and unpaid dividends to the date of payment
(whether or not declared). In the event that, upon such voluntary or involuntary
liquidation, dissolution or winding-up, the available assets of the Trust are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of Series C Preferred Shares (and the Excess Stock converted
from Series C Preferred Shares, if any) and the corresponding amounts payable on
all shares of other classes or series of Capital Stock of the Trust ranking, as
to liquidation rights, on a parity with the Series C Preferred Shares, including
without limitation the Series B Preferred Shares, in the distribution of assets,
then the holders of the Series C Preferred Shares (and the Excess Stock
converted from Series C Preferred Shares, if any) and each such other class or
series of shares of Capital Stock ranking, as to liquidation rights, on a parity
with the Series C Preferred Shares, including without limitation the Series B
Preferred Shares, shall share ratably in any such distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled. Written notice of any such liquidation, dissolution or
winding up of the Trust, stating the payment date or dates when, and the place
or places where, the amounts distributable in such circumstances shall be
payable, shall
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be given by first class mail, postage pre-paid, not less than 30 nor more than
60 days prior to the payment date stated therein, to each record holder of
shares of Series C Preferred Shares (and the Excess Stock converted from Series
C Preferred Shares, if any) at the respective addresses of such holders as the
same shall appear on the stock transfer records of the Trust. After payment of
the full amount of the liquidating distributions to which they are entitled, the
holders of Series C Preferred Shares (and the Excess Stock converted from Series
C Preferred Shares, if any) will have no right or claim to any of the remaining
assets of the Trust. The consolidation or merger of the Trust with or into any
other trust, corporation or entity, or the sale, lease, transfer or conveyance
of all or substantially all of the property or business of the Trust, shall not
be deemed to constitute a liquidation, dissolution or winding-up of the affairs
of the Trust.
Section 5. Voting Rights.
(a) Holders of the Series C Preferred Shares shall not have any
voting rights, except as provided by applicable law and as set forth in this
Section 5.
(b) Whenever dividends on any shares of Series C Preferred
Shares shall be in arrears for six or more consecutive or non-consecutive
quarterly periods (a "Preferred Dividend Default"), the holders of such Series C
Preferred Shares (voting as a single class with all other classes or series of
parity preferred stock of the Trust upon which like voting rights have been
conferred and are exercisable ("Parity Preferred")) shall be entitled to vote
for the election of a total of two additional trustees of the Trust (the
"Preferred Trustees") at the next annual meeting of stockholders and at each
subsequent meeting until all dividends accumulated on such Series C Preferred
Shares and Parity Preferred for the past dividend periods and the then current
dividend period shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside for payment. In such case, the entire Board of
Trustees will be increased by two trustees. Notwithstanding the foregoing, if,
prior to the election of any additional trustees in the manner set forth herein,
all accumulated dividends are paid on the Series C Preferred Shares, the Series
B Preferred Shares and all other Parity Preferred, no such additional trustees
shall be so elected. If and when all accumulated dividends shall have been paid
on such Series C Preferred Shares and all classes or series of Parity Preferred,
the right of the holders of Series C Preferred Shares and the Parity Preferred
to elect the Preferred Trustees shall immediately cease (subject to revesting in
the event of each and every Preferred Dividend Default), and the term of office
of each Preferred Trustee so elected shall immediately terminate and the entire
Board of Trustees shall be reduced accordingly. So long as a Preferred Dividend
Default shall continue, any vacancy in the office of a Preferred Trustee may be
filled by written consent of the Preferred Trustee remaining in office, or if
none remains in office, by a vote of the holders of record of a majority of the
outstanding Series C Preferred Shares and Parity Preferred when they have the
voting rights described above (voting as a single class with all other classes
or series of Parity Preferred). Each of the Preferred Trustees shall be entitled
to one vote on any matter.
(c) So long as any shares of Series C Preferred Shares remain
outstanding, the affirmative vote or consent of the holders of two-thirds of the
shares of Series C Preferred Shares and each other class or series of Parity
Preferred, outstanding at the time, given in person or by proxy, either in
writing or at a meeting (voting as a single class) will be required to: (i)
authorize or create, or increase the authorized or issued amount of, any class
or series of Capital Stock ranking senior to the Series C Preferred Shares with
respect to payment of dividends or the
9
distribution of assets upon liquidation, dissolution or winding-up of the
affairs of the Trust or reclassify any authorized shares of Capital Stock of the
Trust into such Capital Stock, or create, authorize or issue any obligation or
security convertible into or evidencing the right to purchase any such Capital
Stock; or (ii) amend, alter or repeal the provisions of the Declaration or these
Articles Supplementary, whether by merger, consolidation, transfer or conveyance
of all or substantially all of its assets or otherwise (an "Event"), so as to
materially and adversely affect any right, preference, privilege or voting power
of the Series C Preferred Shares or the holders thereof; provided, however, with
respect to the occurrence of any of the Events set forth in (ii) above, so long
as the Series C Preferred Shares remains outstanding with the terms thereof
materially unchanged, taking into account that, upon the occurrence of an Event,
the Trust may not be the surviving entity, the occurrence of such Event shall
not be deemed to materially and adversely affect such rights, preferences,
privileges or voting power of holders of Series C Preferred Shares, and in such
case such holders shall not have any voting rights with respect to the
occurrence of any of the Events set forth in (ii) above. Holders of shares of
Series C Preferred Shares shall not be entitled to vote with respect to (A) any
increase, decrease or issuance from time to time of any class or series of
Capital Stock of the Trust (including the Series C Preferred Shares), or (B) the
creation or issuance from time to time of any additional classes or series of
Capital Stock, in each case referred to in clause (A) or (B) above ranking on a
parity with or junior to the Series C Preferred Shares with respect to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up.
(d) The foregoing voting provisions of this Section 5 shall 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
C Preferred Shares are subject to the Company Conversion Option upon proper
notice and sufficient Common Stock (or if the Trust has elected to make the
settlement in cash, sufficient funds) shall have been deposited in trust to
effect such Company Conversion Option.
(e) In any matter in which the Series C Preferred Shares may
vote (as expressly provided herein or as may be required by law), each share of
Series C Preferred Shares shall be entitled to one vote per $25.00 of
liquidation preference (or two (2) votes per $50.00 of liquidation preference).
Section 6. Conversion
(a) Conversion Rights.
(1) Subject to and upon compliance with the provisions of
this Section 6, a holder of any share or shares of Series C Preferred Shares
shall have the right, at its option, to convert all or any portion of such
holder's outstanding Series C Preferred Shares (the "Conversion Right"), subject
to the conditions described below, into the number of fully paid and
non-assessable shares of Common Stock initially at a conversion rate of 1.8643
shares of Common Stock per $50.00 liquidation preference (the "Conversion
Rate"), which is equivalent to an initial Conversion Price of approximately
$26.82 per common share (subject to adjustment in accordance with the provisions
of Section 7 of this Article FOURTH); provided, however, that the Trust shall
have the right to elect to deliver cash or a combination of cash and shares of
Common Stock in lieu of shares of Common Stock in accordance with the provisions
of Section
10
6 of this Article FOURTH. Such holder shall surrender to the Trust
such Series C Preferred Shares to be converted in accordance with the provisions
in paragraph (b) and (c) of this Section 6, as applicable.
(2) In connection with the conversion of any Series C
Preferred Shares, no fractional shares of Common Stock will be issued, but the
Trust shall pay a cash adjustment in respect of any fractional interest in an
amount equal to the fractional interest multiplied by the Closing Sale Price on
the Trading Day immediately prior to the Conversion Date or the Company
Conversion Option Date. If more than one Series C Preferred Share will be
surrendered for conversion by the same holder at the same time, the number of
full shares of Common Stock issuable on conversion of those Series C Preferred
Shares will be computed on the basis of the total number of Series C Preferred
Shares so surrendered.
(3) A holder of Series C Preferred Shares is not entitled
to any rights of a holder of shares of Common Stock until that holder has
converted its Series C Preferred Shares, and only to the extent the Series C
Preferred Shares are deemed to have been converted to shares of Common Stock in
accordance with the provisions of this Section 6.
(4) The Trust shall, prior to issuance of any Series C
Preferred Shares hereunder, and from time to time as may be necessary, reserve
and keep available, free from preemptive rights, out of its authorized but
unissued Common Stock, for the purpose of effecting the conversion of the Series
C Preferred Shares, such number of its duly authorized Common Stock as shall
from time to time be sufficient to effect the conversion of all Series C
Preferred Shares then outstanding into such Common Stock at any time (assuming
that, at the time of the computation of such number of Common Stock, all such
Series C Preferred Shares would be held by a single holder). The Trust covenants
that all Common Stock which may be issued upon conversion of Series C Preferred
Shares shall upon issue be fully paid and nonassessable and free from all liens
and charges and, except as provided in Section 6(c), taxes with respect to the
issue thereof. The Trust further covenants that, if at any time the Common Stock
shall be listed on the New York Stock Exchange or any other national securities
exchange or quoted on the Nasdaq National Market or Nasdaq SmallCap Market or
any other automated quotation system, the Trust will, if permitted by the rules
of such exchange or automated quotation system, list and keep listed or quoted,
so long as the Common Stock shall be so listed or quoted on such exchange or
automated quotation system, all Common Stock issuable upon conversion of the
Series C Preferred Shares. Before the delivery of any securities that the Trust
shall be obligated to deliver upon conversion of the Series C Preferred Shares,
the Trust shall comply with all applicable federal and state laws and
regulations that require action to be taken by the Trust.
(b) Company Conversion Option
(1) On or after November 16, 2009, the Trust shall have
the option to cause all of the outstanding shares of Series C Preferred Shares
to be automatically converted into that number of shares of Common Stock that
are issuable at the Conversion Rate (as adjusted) ("Company Conversion Option").
The Trust may exercise the Company Conversion Option only if the Closing Sale
Price equals or exceeds 125% of the Conversion Price of the Series C Preferred
Shares for at least twenty (20) Trading Days in a period of thirty (30)
consecutive Trading Days (including the last Trading Day of such period), ending
on the Trading
11
Day prior to the Trust's issuance of a press release announcing
the Company Conversion Option in accordance with this Article FOURTH.
(2) To exercise the Company Conversion Option right set
forth in this Section 6(b), the Trust must issue a press release for publication
on the Dow Jones & Company, Inc., Business Wire or Bloomberg Business News (or,
if such organizations are not in existence at the time of issuance of such press
release, such other news or press organization as is reasonably calculated to
broadly disseminate the relevant information to the public) prior to the opening
of business on the first Trading Day following any date on which the conditions
set forth in Section 6(b)(1) shall have been satisfied, announcing such a
Company Conversion Option. The Trust shall also give notice by mail or by
publication (with subsequent prompt notice by mail) to the holders of the Series
C Preferred Shares ("Notice") (not more than four (4) Trading Days after the
date of the press release) of the Company Conversion Option announcing the
Trust's intention to exercise the Company Conversion Option. The Trust shall
select a conversion date (the "Company Conversion Option Date"), which date
shall be no more than five (5) days after the date on which the Trust issues
such press release. In addition to any information required by applicable law or
regulation, the press release and Notice of a Company Conversion Option shall
state, as appropriate: (i) the Company Conversion Option Date; (ii) the number
of shares of Common Stock to be issued upon conversion of each Series C
Preferred Share; (iii) the number of Series C Preferred Shares to be converted;
and (iv) that dividends on the Series C Preferred Shares to be converted will
cease to accrue on the Company Conversion Option Date.
(3) In addition to the Company Conversion Option Right set
forth in this Section 6(b), if there are fewer than 25,000 shares of Series C
Preferred Shares outstanding, the Trust shall have the option, at any time on or
after November 16, 2009, to cause all of the outstanding shares of the Series C
Preferred Shares to be automatically converted into that number of shares of
Common Stock equal to $50.00 (the liquidation preference per share of Series C
Preferred Shares) divided by the lesser of (i) the then prevailing Conversion
Price and (ii) the Current Market Price for the five Trading Day period ending
on the second Trading Day immediately prior to the Company Conversion Option
Date. The provisions of Section 6(b) shall apply to the Company Conversion
Option Right set forth in this subparagraph (6(b)(3), provided, however, that
(1) the Company Conversion Option Date shall not be less than 15 days nor more
than 30 days after the date on which the Trust issues a press release announcing
such Company Conversion Option and (2) the press release and notice of Company
Conversion Option shall not state the number of shares of Common Stock to be
issued upon conversion of each share of Series C Preferred Shares.
(4) Subject to the terms of Section 6(b)(8), upon exercise
of the Company Conversion Option and surrender of the Series C Preferred Shares
by a holder thereof, the Trust shall issue and shall deliver or cause to be
issued and delivered to such holder, or to such other person on such holder's
written order (a) certificates representing the number of validly issued, fully
paid and non-assessable full shares of Common Stock to which a holder of the
Series C Preferred Shares being converted, or a holder's transferee, will be
entitled and (b) any fractional interest in respect of a share of Common Stock
arising upon such conversion shall be settled as provided in Section 6(a)(2).
12
(5) Each conversion shall be deemed to have been made at
the close of business on the Company Conversion Option Date so that the rights
of the holder thereof as to the Series C Preferred Shares being converted will
cease except for the right to receive the Conversion Value, and, if applicable,
the person entitled to receive shares of Common Stock will be treated for all
purposes as having become the record holder of those shares of Common Stock at
that time.
(6) In lieu of the foregoing procedures, if the Series C
Preferred Shares are held in global form, each holder of beneficial interest in
Series C Preferred Shares must comply with the procedures of The Depository
Trust Company ("DTC") to convert such holder's beneficial interest in respect of
the Series C Preferred Shares evidenced by a global share of the Series C
Preferred Shares.
(7) In case any Series C Preferred Shares are to be
converted pursuant to this Section 6(b), such holder's right to voluntarily
convert its Series C Preferred Shares shall terminate at 5:00 p.m., New York
City time, on the Trading Day immediately preceding the Company Conversion
Option Date.
(8) Notwithstanding any other provision contained herein,
in connection with the Trust's election to exercise the Company Conversion
Option under this Section 6(b), the Trust shall have the right to elect to
deliver to holders of shares of Series C Preferred Shares in lieu of shares of
Common Stock, an equivalent amount of cash or a combination of cash and shares
of Common Stock generally in accordance with Section 6(d) without reference to
those provisions applicable solely to a Conversion Right, including, without
limitation, Sections 6(d)(4)(ii) and 6(d)(4)(iii), which are only applicable to
a Conversion Right.
(c) Conversion Right Procedures
(1) In order to exercise a Conversion Right, a holder of
the Series C Preferred Shares may convert any or all of such shares by
surrendering to the Trust at its principal office or at the office of the
transfer agent of the Trust, as may be designated by the Board of Trustees, the
certificate or certificates for the Series C Preferred Shares to be converted
accompanied by a written notice stating that the holder of Series C Preferred
Shares elects to convert all or a specified whole number of those shares in
accordance with this Section 6(c) and specifying the name or names in which the
holder wishes the certificate or certificates for the shares of Common Stock to
be issued ("Conversion Notice"). In case the notice specifies that the shares of
Common Stock are to be issued in a name or names other than that of the holder
of Series C Preferred Shares, the notice shall be accompanied by payment of all
transfer taxes payable upon the issuance of shares of Common Stock in that name
or names. Other than those taxes, the Trust shall pay any documentary, stamp or
similar issue or transfer taxes that may be payable in respect of any issuance
or delivery of shares of Common Stock upon conversion of the Series C Preferred
Shares.
(2) As promptly as practicable after the surrender of the
certificate or certificates for the Series C Preferred Shares as aforesaid, the
receipt of the Conversion Notice and payment of all required transfer taxes, if
any, or the demonstration to the Trust's satisfaction that those taxes have been
paid, subject to the terms of Section 6(d), the Trust shall
13
issue and shall deliver or cause to be issued and delivered to such holder, or
to such other person on such holder's written order (a) certificates
representing the number of validly issued, fully paid and non-assessable full
shares of Common Stock to which the holder of the Series C Preferred Shares
being converted, or the holder's transferee, will be entitled, (b) if less than
the full number of Series C Preferred Shares evidenced by the surrendered
certificate or certificates is being converted, a new certificate or
certificates, of like tenor, for the number of shares of Series C Preferred
Shares evidenced by the surrendered certificate or certificates, less the number
of shares being converted and (c) any fractional interest in respect of a share
of Common Stock arising upon such conversion shall be settled as provided in
Section 6(a)(2).
(3) Each conversion shall be deemed to have been made at
the close of business on the date of giving the notice and of surrendering the
certificate or certificates representing the shares of the Series C Preferred
Shares to be converted (the "Conversion Date") so that the rights of the holder
thereof as to the Series C Preferred Shares being converted will cease except
for the right to receive the Conversion Value, and, if applicable, the person
entitled to receive shares of Common Stock will be treated for all purposes as
having become the record holder of those shares of Common Stock at that time.
(4) In lieu of the foregoing procedures, if the Series C
Preferred Shares are held in global form, each holder of beneficial interest in
Series C Preferred Shares must comply with the procedures of The Depository
Trust Company ("DTC") to convert such holder's beneficial interest in respect of
the Series C Preferred Shares evidenced by a global share of the Series C
Preferred Shares.
(5) If a holder of Series C Preferred Shares has exercised
its right to require the Trust to repurchase shares of Series C Preferred Shares
in accordance with Section 12 hereof, such holder's Conversion Rights with
respect to the Series C Preferred Shares so subject to repurchase shall expire
at 5:00PM, New York City time, on the Trading Day immediately preceding the
repurchase date, unless the Trust defaults on the payment of the purchase price.
If a holder of Series C Preferred Shares has submitted any such share for
repurchase, such share may be converted only if such holder submits a notice of
withdrawal or complies with applicable DTC procedures.
(d) Settlement Upon Conversion
(1) Pursuant to the procedures set forth in this Section
6(d), upon a conversion, the Trust shall have the right to deliver the
Conversion Value, in lieu of shares of Common Stock, in cash or a combination of
cash and shares of Common Stock.
(2) The Trust can elect at any time to obligate itself to
satisfy solely in cash the portion of the Conversion Value that is equal to 100%
of the liquidation preference amount of shares of Series C Preferred Shares,
with any remaining amount of the Conversion Value to be satisfied in cash,
shares of Common Stock or a combination of cash and shares of Common Stock, at
the Trust's election. If the Trust elects to do so, the Trust shall notify
holders of the Series C Preferred Shares at any time that the Trust intends to
settle in cash the portion of the Conversion Value that is equal to the
liquidation preference amount of shares of Series C Preferred Shares (the
"Liquidation Preference Conversion Settlement Election"). This
14
notification, once provided to holders of Series C Preferred Shares, shall be
irrevocable and shall apply to future conversions of shares of Series C
Preferred Shares even if such shares cease to be convertible but subsequently
become convertible again.
(3) Except to the extent the Trust makes a Liquidation
Preference Conversion Settlement Election, the Trust shall not be required to
notify holders of shares of Series C Preferred Shares of the method for settling
the Trust's conversion obligation relating to the Conversion Value or, if the
Trust shall have made a Liquidation Preference Conversion Settlement Election,
the excess of the Trust's conversion obligation relating to the portion of the
Conversion Value above the liquidation preference amount, if any, until the
shares of Series C Preferred Shares are submitted for conversion.
(4) If the Trust receives a Conversion Notice from a
holder of Series C Preferred Shares, the following procedures shall apply:
(i) Settlement of the Trust's conversion obligation
that is equal to 100% of the liquidation preference amount of
Series C Preferred Shares shall be according to the Liquidation
Preference Conversion Settlement Election, if any, already made.
(ii) The Trust shall provide Notice to any holders of
Series C Preferred Shares exercising a Conversion Right, at any
time on the date that is three Trading Days following receipt of
such holder's Conversion Notice (the "Settlement Notice Period"),
if the Trust elects to settle its conversion obligation in any
method other than the issuance solely of shares of Common Stock,
and such notice shall set forth the method the Trust chooses to
settle its conversion obligation or, if the Trust has made a
Liquidation Preference Conversion Settlement Election, the method
the Trust chooses to settle the excess of its conversion
obligation. In addition, the Trust shall indicate whether
settlement of any excess conversion obligation will be solely in
shares of Common Stock, solely in cash or a combination of cash
and shares of Common Stock. If the Trust elects to settle the
conversion obligation in a combination of cash and shares of
Common Stock, the Trust shall specify the percentage of the
conversion obligation relating to the shares of Series C
Preferred Shares surrendered for conversion that the Trust shall
pay in cash. Any portion of the Trust's conversion obligation
which the Trust has not decided to settle in cash shall be
settled in shares of Common Stock (except that the Trust shall
pay cash in lieu of issuing any fractional shares). The Trust
shall treat all holders of Series C Preferred Shares converting
on the same Trading Day in the same manner. The Trust shall not,
however, have any obligation to settle its conversion obligation,
except to the extent the Trust has made a Liquidation Preference
Conversion Settlement Election, arising on different Trading Days
in the same manner.
No Notice shall be required if the Trust is settling its
conversion obligation solely in Common Stock (other than cash in
lieu of issuing fractional shares).
(iii) If the Trust timely elects to pay cash for any
portion of the conversion obligation, the holder of Series C
Preferred Shares may retract its Conversion Notice at any time
during the two Trading Day period beginning on the Trading Day
after
15
the final day of the Settlement Notice Period (the "Conversion
Retraction Period"); no such retraction can be made (and a
Conversion Notice shall be irrevocable) if the Trust does not
elect to deliver cash in lieu of shares of Common Stock (other
than cash in lieu of fractional shares) or if the Trust has
previously made a Liquidation Preference Conversion Settlement
Election.
(iv) Settlement that is solely in shares of Common
Stock of the Trust's conversion obligation shall occur as soon as
practicable, but in any event not more than three Trading Days
after the Conversion Date.
(v) Settlement of any portion of the Trust's
conversion obligation, including the portion of the Conversion
Value that is equal to 100% of the liquidation preference amount
or the excess conversion obligation, in cash or in a combination
of cash and shares of Common Stock shall occur on the third
Trading Day following the final day of the 20-Trading Day period
beginning on the Trading Day following the final Trading Day of
the Conversion Retraction Period (the "Cash Settlement Averaging
Period").
(5) Settlement amounts shall be computed as follows:
(i) If the Trust elects to satisfy the entire
conversion obligation, including the Conversion Value that is
equal to 100% of the liquidation preference amount and the excess
conversion obligation, solely in shares of Common Stock (other
than with respect to fractional shares), the Trust shall deliver
to the holder of Series C Preferred Shares, for each Series C
Preferred Share, a number of shares of Common Stock equal to the
applicable Conversion Rate (as adjusted).
(ii) If the Trust elects to satisfy the entire
conversion obligation, including the Conversion Value that is
equal to 100% of the liquidation preference amount and the excess
conversion obligation, solely in cash, the Trust shall deliver to
the holder of Series C Preferred Shares, for each Series C
Preferred Share, cash in an amount equal to the Conversion Value.
(iii) If the Trust elects to satisfy the conversion
obligation, including the Conversion Value that is equal to 100%
of the liquidation preference amount and the excess conversion
obligation, in a combination of cash and shares of Common Stock,
the Trust shall deliver to the holder of Series C Preferred
Shares, for Series C Preferred Share:
(A) a cash amount (the "Cash Amount") (excluding
any cash paid for fractional shares) equal to the sum of: (I) the
product of $50.00 multiplied by the percentage of the liquidation
preference amount to be satisfied in cash, plus (II) if greater
than zero, the product of (i) the amount of cash that would be
paid pursuant to Section 6(d)(5)(ii) above minus $50.00 and (ii)
the percentage of the excess conversion obligation above the
liquidation preference amount to be satisfied in cash; and
16
(B) a number of shares of Common Stock equal to
the difference between: (I) the number of shares that would be
issued pursuant to Section 6(d)(5)(i) above, minus (II) the
number of shares equal to the quotient of (i) the cash amount
pursuant to Section 6(d)(5)(iii)(A) above divided by (ii) the
arithmetic average of the Closing Sale Prices of shares of Common
Stock during the Cash Settlement Averaging Period.
(6) If any Trading Day during a Cash Settlement Averaging
Period is not an Undisrupted Trading Day, then determination of the Closing
Sales Price for that day shall be delayed until the next Undisrupted Trading Day
on which a pricing is not otherwise observed (that is, such day shall not count
as one of the 20 Trading Days that constitute the Cash Settlement Averaging
Period). If this would result in a price being observed later than the eighth
Trading Day after the last of the original 20 Trading Days in the Cash
Settlement Averaging Period, then the Board of Trustees shall determine all
prices for all delayed and undetermined prices on that eighth Trading Day based
on its good faith estimate of the Common Stock's value on that date.
(e) Payment of Dividends
(1) Optional Conversion
(i) If a holder of Series C Preferred Shares exercises
a Conversion Right, upon delivery of the Series C Preferred
Shares for conversion, those Series C Preferred Shares shall
cease to cumulate dividends as of the end of the day immediately
preceding the Conversion Date and the holder will not receive any
cash payment representing accrued and unpaid dividends of the
Series C Preferred Shares, except in those limited circumstances
discussed in this Section 6(e). Except as provided herein, the
Trust shall make no payment for accrued and unpaid dividends,
whether or not in arrears, on Series C Preferred Shares converted
at a holder's election pursuant to a Conversion Right, or for
dividends on shares of Common Stock issued upon such conversion.
(ii) If the Trust receives a Conversion Notice before
the close of business on a Dividend Record Date, the holder shall
not be entitled to receive any portion of the dividend payable on
such converted Series C Preferred Shares on the corresponding
Dividend Payment Date.
(iii) If the Trust receives a Conversion Notice after
the Dividend Record Date but prior to the corresponding Dividend
Payment Date, the holder on the Dividend Record Date shall
receive on that Dividend Payment Date accrued dividends on those
Series C Preferred Shares, notwithstanding the conversion of
those Series C Preferred Shares prior to that Dividend Payment
Date, because that holder shall have been the holder of record on
the corresponding Divided Record Date. However, at the time that
such holder surrenders the Series C Preferred Shares for
conversion, the holder shall pay to the Trust an amount equal to
the dividend that has accrued and that will be paid on the
related Dividend Payment Date.
17
(iv) A holder of Series C Preferred Shares on a
Dividend Record Date who exercises its Conversion Right and
converts such Series C Preferred Shares into Common Stock on or
after the corresponding Dividend Payment Date shall be entitled
to receive the dividend payable on such Series C Preferred Shares
on such Dividend Payment Date, and the converting holder need not
include payment of the amount of such dividend upon surrender for
conversion of Series C Preferred Shares.
(v) If the Trust receives a Conversion Notice on or
before the close of business on a Dividend Record Date or follow
such Dividend Record Date but before the Dividend Payment Date
therefore, and the settlement date for any shares of Common Stock
to be issued upon such conversion is after the close of business
on the record date for the payment of dividends for the
corresponding period on such Common Stock, such holder shall be
entitled to receive such Common Stock dividends upon the next
payment date of dividends on the Common Stock as if it were the
holder of such Common Stock on such record date.
(2) Company Conversion Option
(i) If the Trust exercises the Company Conversion
Option, whether the Company Conversion Option Date is prior to,
on or after the Dividend Record Date for the current period, all
unpaid dividend which are in arrears as of the Company Conversion
Option Date shall be payable to the holder of the converted
shares.
(ii) If the Trust exercises the Company Conversion
Option and the Company Conversion Option Date is a date that is
prior to the close of business on any Dividend Record Date, the
holder shall not be entitled to receive any portion of the
dividend payable for such period on such converted shares on the
corresponding Dividend Payment Date.
(iii) If the Trust exercises the Company Conversion
Option and the Company Conversion Option Date is a date that is
on, or after the close of business on, any Dividend Record Date
and prior to the close of business on the corresponding Dividend
Payment Date, all dividends, including accrued and unpaid
dividends, whether or not in arrears, with respect to the Series
C Preferred Shares called for conversion on such date, shall be
payable on such Dividend Payment Date to the record holder of
such shares on such record date.
Section 7. Adjustment of Conversion Rate.
(a) In case the Trust shall, at any time or from time to time
after the Original Issue Date while any of the Series C Preferred Shares are
outstanding, issue Common Stock as a dividend or distributions to all or
substantially all holders of Common Stock, then the Conversion Rate in effect
immediately prior to the close of business on the Record Date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by multiplying such Conversion Rate by a
fraction:
(1) the numerator of which shall be the sum of the total
number of shares of Common Stock and OP Units outstanding at the close of
business on such Record Date
18
and the total number of shares of Common Stock constituting such dividend or
other distribution; and
(2) the denominator of which shall be the number of shares
of Common Stock and OP Units outstanding at the close of business on such Record
Date.
Such increase shall become effective immediately prior to the
opening of business on the day following the Record Date fixed for such
determination. If any dividend or distribution of the type described in this
Section 7(a) is declared but not so paid or made, the Conversion Rate shall
again be adjusted to the Conversion Rate which would then be in effect if such
dividend or distribution had not been declared.
(b) In case the Trust shall, at any time or from time to time
after the Original Issue Date while any of the Series C Preferred Shares are
outstanding, subdivide, reclassify or split its outstanding shares of Common
Stock into a greater number of shares of Common Stock, the Conversion Rate in
effect immediately prior to the opening of business on the day following the day
upon which such subdivision, reclassification or split becomes effective shall
be proportionately increased, and, conversely, in case the Trust shall, at any
time or from time to time after the Original Issue Date while any of the Series
C Preferred Shares are outstanding, combine or reclassify its outstanding shares
of Common Stock into a smaller number of shares of Common Stock, the Conversion
Rate in effect immediately prior to the opening of business on the day following
the day upon which such combination or reclassification becomes effective shall
be proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately prior to the opening of business on the day
following the day upon which such subdivision, reclassification, split or
combination becomes effective, so that the holder of any Series C Preferred
Share thereafter surrendered for conversion shall be entitled to receive that
number of shares of Common Stock which it would have received had such Series C
Preferred Share been converted immediately prior to the happening of such event
adjusted as a result of such event.
(c) In case the Trust shall, at any time or from time to time
after the Original Issue Date while any of the Series C Preferred Shares are
outstanding, issue rights or warrants for a period expiring within 60 days to
all or substantially all holders of its outstanding Common Stock entitling them
to subscribe for or purchase Common Stock (or securities convertible into or
exchangeable or exercisable for Common Stock), at a price per share of Common
Stock (or having a conversion, exchange or exercise price per share of Common
Stock) less than the Closing Sale Price of the Common Stock on the Trading Day
immediately preceding the date of the announcement by public notice of such
issuance or distribution (treating the conversion, exchange or exercise price
per share of Common Stock of the securities convertible, exchangeable or
exercisable into Common Stock as equal to (x) the sum of (i) the price for a
unit of the security convertible into or exchangeable or exercisable for Common
Stock and (ii) any additional consideration initially payable upon the
conversion of or exchange or exercise for such security into Common Stock
divided by (y) the number of shares of Common Stock initially underlying such
convertible, exchangeable or exercisable security), then the Conversion Rate
shall be increased by multiplying the Conversion Rate in effect at the opening
of business on the date after such date of announcement by a fraction:
19
(1) the numerator of which shall be the number of shares
of Common Stock and OP Units outstanding at the close of business on the date of
announcement, plus the total number of additional shares of Common Stock so
offered for subscription or purchase (or into which the convertible,
exchangeable or exercisable securities so offered are convertible, exchangeable
or exercisable); and
(2) the denominator of which shall be the number of shares
of Common Stock and OP Units outstanding on the close of business on the date of
announcement, plus the number of shares of Common Stock (or convertible,
exchangeable or exercisable securities) which the aggregate offering price of
the total number of shares of Common Stock (or convertible, exchangeable or
exercisable securities) so offered for subscription or purchase (or the
aggregate conversion, exchange or exercise price of the convertible,
exchangeable or exercisable securities so offered) would purchase at such
Closing Sale Price of the Common Stock.
Such increase shall become effective immediately prior to the
opening of business on the day following the Record Date for such determination.
To the extent that shares of Common Stock (or securities convertible,
exchangeable or exercisable into shares of Common Stock) are not delivered
pursuant to such rights or warrants, upon the expiration or termination of such
rights or warrants, the Conversion Rate shall be readjusted to the Conversion
Rate which would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of the delivery of only the
number of shares of Common Stock (or securities convertible, exchangeable or
exercisable into shares of Common Stock) actually delivered. In the event that
such rights or warrants are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in effect if the Record
Date fixed for the determination of stockholders entitled to receive such rights
or warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Common Stock at less
than such Closing Sale Price, and in determining the aggregate offering price of
such shares of Common Stock, there shall be taken into account any consideration
received for such rights or warrants, the value of such consideration if other
than cash, to be determined by the Board of Trustees.
(d)
(A) In case the Trust shall, at any time or from time to time
after the Original Issue Date while any of the Series C Preferred Shares are
outstanding, by dividend or otherwise, distribute to all or substantially all
holders of its outstanding shares of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Trust is the continuing corporation and the shares of Common Stock are not
changed or exchanged), shares of its capital stock, evidences of its
indebtedness or other assets, including securities, (including capital stock of
any subsidiary of the Trust) but excluding (i) dividends or distributions of
Common Stock referred to in Section 7(a), (ii) any rights or warrants referred
to in Section 7(c), (iii) dividends and distributions paid exclusively in cash
referred to in Section 7(e) and (iv) dividends and distributions of stock,
securities or other property or assets (including cash) in connection with the
reclassification, change, merger, consolidation, combination, sale or conveyance
to which Section 8 applies, (such capital stock, evidence of its indebtedness,
other assets or securities being distributed hereinafter in this Section 7(d)
called the "Distributed
20
Assets"), then, in each such case, subject to paragraphs (D) and (E) of this
Section 7(d), the Conversion Rate shall be increased by multiplying the
Conversion Rate in effect immediately prior to the close of business on the
Record Date with respect to such distribution by a fraction:
(1) the numerator of which shall be the Current Market
Price; and
(2) the denominator of which shall be such Current Market
Price, less the Fair Market Value on such date of the portion of the Distributed
Assets so distributed applicable to one share of Common Stock (determined on the
basis of the number of shares of Common Stock outstanding on such Record Date)
on such date.
Such increase shall become effective immediately prior to the
opening of business on the day following the Record Date for such distribution.
In the event that such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such dividend or distribution had not been declared.
(B) If the Board of Trustees determines the Fair Market Value of
any distribution for purposes of this Section 7(d) by reference to the actual or
when issued trading market for any Distributed Assets comprising all or part of
such distribution, it must in doing so consider the prices in such market over
the same period (the "Reference Period") used in computing the Current Market
Price pursuant to this Section 7(d) to the extent possible, unless the Board of
Trustees determines in good faith that determining the Fair Market Value during
the Reference Period would not be in the best interest of the holders of the
Series C Preferred Shares.
(C) In the event any such distribution consists of shares of
capital stock of, or similar equity interests in, one or more of the Trust's
subsidiaries (a "Spin Off"), the Fair Market Value of the securities to be
distributed shall equal the average of the Closing Sale Prices of such
securities for the five consecutive Trading Days commencing on and including the
sixth Trading Day of those securities after the effectiveness of the Spin Off,
and the Current Market Price shall be measured for the same period. In the
event, however, that an underwritten initial public offering of the securities
in the Spin Off occurs simultaneously with the Spin Off, Fair Market Value of
the securities distributed in the Spin Off shall mean the initial public
offering price of such securities and the Current Market Price shall mean the
Closing Sale Price for the Common Stock on the same Trading Day.
(D) Rights or warrants distributed by the Trust to all holders
of the outstanding shares of Common Stock entitling them to subscribe for or
purchase equity securities of the Trust (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"), (x) are deemed to be transferred with such
shares of Common Stock, (y) are not exercisable and (z) are also issued in
respect of future issuances of shares of Common Stock shall be deemed not to
have been distributed for purposes of this Section 7(d) (and no adjustment to
the Conversion Rate under this Section 7(d) shall be required) until the
occurrence of the earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant shall
become exercisable to purchase different Distributed Assets, or entitle the
holder to purchase a different number or amount of the foregoing Distributed
Assets or to purchase any of the foregoing Distributed
21
Assets at a different purchase price, then the occurrence of each such event
shall be deemed to be the date of issuance and Record Date with respect to a new
right or warrant (and a termination or expiration of the existing right or
warrant without exercise by the holder thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the Conversion Rate under
this Section 7(d):
(1) in the case of any such rights or warrants which shall
all have been repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share repurchase price received by a holder of
shares Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of Common
Stock as of the date of such repurchase; and
(2) in the case of such rights or warrants which shall
have expired or been terminated without exercise, the Conversion Rate shall be
readjusted as if such rights and warrants had never been issued.
(E) For purposes of this Section 7(d) and Section 7(a), Section
7(b) and Section 7(c), any dividend or distribution to which this Section 7(d)
is applicable that also includes (x) shares of Common Stock, (y) a subdivision,
split or combination of shares of Common Stock to which Section 7(b) applies or
(z) rights or warrants to subscribe for or purchase shares of Common Stock to
which Section 7(c) applies (or any combination thereof), shall be deemed instead
to be:
(1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants, other than
such shares of Common Stock, such subdivision, split or combination or such
rights or warrants to which Section 7(a), Section 7(b) and Section 7(c) apply,
respectively (and any Conversion Rate adjustment required by this Section 7(d)
with respect to such dividend or distribution shall then be made), immediately
followed by
(2) a dividend or distribution of such shares of Common
Stock, such subdivision, split or combination or such rights or warrants (and
any further Conversion Rate increase required by Section 7(a), Section 7(b) and
Section 7(c) with respect to such dividend or distribution shall then be made),
except:
(i) the Record Date of such dividend or distribution
shall be substituted as (i) "the date fixed for the determination
of stockholders entitled to receive such dividend or other
distribution," "Record Date fixed for such determinations" and
"Record Date" within the meaning of Section 7(a), (ii) "the day
upon which such subdivision or split becomes effective" or "the
day upon which such combination becomes effective" (as
applicable) within the meaning of Section 7(b), and (iii) as "the
Record Date fixed for the determination of the stockholders
entitled to receive such rights or warrants" and such "Record
Date" within the meaning of Section 7(c); and
22
(ii) any reduction or increase in the number of shares
of Common Stock resulting from such subdivision, split or
combination (as applicable) shall be disregarded in connection
with such dividend or distribution.
(e) In case the Trust shall, at any time or from time to time
after the Original Issue Date while any of the Series C Preferred Shares are
outstanding, by dividend or otherwise, distribute to all or substantially all
holders of its outstanding shares of Common Stock during any quarterly fiscal
period, cash (including any quarterly cash dividends, but excluding any cash
that is distributed upon a reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance to which Section 8
applies or as part of a distribution referred to in Section 7(d)) in excess of
the "Dividend Threshold Amounts", then, and in each case, immediately after the
close of business on such date, the Conversion Rate shall be adjusted based on
the following formula:
(1) CR1 = CRo x (SP/(SP-DI)) where,
(i) CRo = the Conversion Rate in effect immediately
prior to the Record Date for such distribution;
(ii) CR1 = the Conversion Rate in effect immediately
after the Record Date for such distribution;
(iii) SP = the average of the Closing Sale price per
share of Common Stock over the ten (10) consecutive Trading Day
period prior to the Trading Day immediately preceding the earlier
of the Record Date or the ex-dividend date of such cash excess
dividend or cash excess distribution; and
(iv) DI = the amount in cash per share the Trust
distributes to holders of shares of Common Stock that exceeds the
Dividend Threshold Amounts (with such Dividend Threshold Amounts
appropriately adjusted from time to time as provided in this
Section 7).
Such increase shall become effective immediately prior to the
opening of business on the day following the Record Date for such distribution.
In the event that such distribution is not so made, the Conversion Rate shall
again be adjusted to be the Conversion Rate which would then be in effect if
such distribution had not been declared.
(f) In case the Trust or any of its subsidiaries purchase shares
of Common Stock pursuant to a tender offer or exchange offer that involves an
aggregate consideration that exceeds 10% of the aggregate market value of the
Common Stock on the expiration of such tender offer or exchange offer (the
"Expiration Time"), the Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to the close of business on the date of the Expiration Time by
a fraction:
(1) the numerator of which shall be the sum of (x) the
product of (i) the number of shares of Common Stock and OP Units outstanding
(excluding any tendered or exchanged shares) at the Expiration Time and (ii) the
Current Market Price of the Common Stock at the Expiration Time, and (y) the
Fair Market Value of the aggregate consideration
23
payable to stockholders based on acceptance (up to any maximum specified in the
terms of the tender offer or exchange offer) of all shares validly tendered and
not withdrawn as of the Expiration Time; and
(2) the denominator of which shall be the product of the
number of shares of Common Stock and OP Units outstanding (including any
tendered or exchanged shares) at the Expiration Time and the Current Market
Price of the Common Stock at the Expiration Time.
Such increase (if any) shall become effective immediately prior
to the opening of business on the day following the Expiration Time. In the
event that the Trust is obligated to purchase shares pursuant to any such tender
offer or exchange offer, but the Trust does not effect any such purchases or all
or a portion of such purchases are rescinded, the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in effect if such (or
such portion of the) tender offer or exchange offer had not been made. If the
application of this Section 7(f) to any tender offer or exchange offer would
result in a decrease in the Conversion Rate, no adjustment shall be made for
such tender offer or exchange offer under this Section 7(f).
(g) For purposes of Section 7 of this Article FOURTH, the
following terms shall have the meanings indicated:
"Current Market Price" on any date means the average of the
daily Closing Sale Prices per share of Common Stock for the ten consecutive
Trading Days immediately prior to such date; provided, however, that if:
(1) the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution requiring such computation of Current
Market Price) that requires an adjustment to the Conversion Rate pursuant to
Section 7(a), Section 7(b), Section 7(c), Section 7(d), Section 7(e) or Section
7(f) occurs during such ten consecutive Trading Days, the Closing Sale Price for
each Trading Day prior to the "ex" date for such other event shall be adjusted
by multiplying such Closing Sale Price by the same fraction by which the
Conversion Rate is so required to be adjusted as a result of such other event;
(2) the "ex" date for any event (other than the issuance
or distribution requiring such computation of Current Market Price) that
requires an adjustment to the Conversion Rate pursuant to Section 7(a), Section
7(b), Section 7(c), Section 7(d), Section 7(e) or Section 7(f) occurs on or
after the "ex" date for the issuance or distribution requiring such computation
and prior to the day in question, the Closing Sale Price for each Trading Day on
and after the "ex" date for such other event shall be adjusted by multiplying
such Closing Sale Price by the reciprocal of the fraction by which the
Conversion Rate is so required to be adjusted as a result of such other event;
and
(3) the "ex" date for the issuance or distribution
requiring such computation is prior to the day in question, after taking into
account any adjustment required pursuant to clause (i) or (ii) of this proviso,
the Closing Sale Price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any cash and the Fair Market Value (as
determined by the Board of Trustees in a manner consistent with any
24
determination of such value for purposes of Section 7(d), Section 7(e) or
Section 7(f) of the evidences of indebtedness, shares of capital stock or assets
being distributed applicable to one share of Common Stock as of the close of
business on the day before such "ex" date.
For purposes of any computation under Section 7, if the "ex"
date for any event (other than the tender offer requiring such computation) that
requires an adjustment to the Conversion Rate pursuant to Section 7(a), Section
7(b), Section 7(c), Section 7(d), Section 7(e) or Section 7(f) occurs on or
after the Expiration Time for the tender or exchange offer requiring such
computation and prior to the day in question, the Closing Sale Price for each
Trading Day on and after the "ex" date for such other event shall be adjusted by
multiplying such Closing Sale Price by the reciprocal of the fraction by which
the Conversion Rate is so required to be adjusted as a result of such other
event. For purposes of this paragraph, the term "ex" date, when used:
(i) with respect to any issuance or distribution,
means the first date on which the Common Stock trade regular way
on the relevant exchange or in the relevant market from which the
Closing Sale Price was obtained without the right to receive such
issuance or distribution;
(ii) with respect to any subdivision, split or
combination of Common Stock, means the first date on which the
Common Stock trade regular way on such exchange or in such market
after the time at which such subdivision, split or combination
becomes effective; and
(iii) with respect to any tender offer or exchange
offer, means the first date on which the Common Stock trade
regular way on such exchange or in such market after the
Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments
to the Conversion Rate are called for pursuant to this Section 7, such
adjustments shall be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 7 and to avoid unjust or
inequitable results as determined in good faith by the Board of Trustees.
"Fair Market Value" means the amount which a willing buyer would
pay a willing seller in an arm's length transaction (as determined by the Board
of Trustees, whose determination shall be made in good faith and, absent
manifest error, shall be final and binding on holders of the Series C Preferred
Shares).
"Record Date" means, with respect to any dividend, distribution
or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Trustees or by statute,
contract or otherwise).
(h) The Trust shall be entitled to make such additional
increases in the Conversion Rate, in addition to those required by Section 7(a),
Section 7(b), Section 7(c), Section 7(d), Section 7(e) or Section 7(f), if the
Board of Trustees determines that it is advisable, in order that any dividend or
distribution of Common Stock, any subdivision, reclassification
25
or combination of Common Stock or any issuance of rights or warrants referred to
above, or any event treated as such for United States federal income tax
purposes, shall not be taxable to the holders of Common Stock for United States
federal income tax purposes or to diminish any such tax.
(i) To the extent permitted by law, the Trust may, from time to
time, increase the Conversion Rate for a period of at least twenty (20) Trading
Days if the Board of Trustees determines that such an increase would be in the
Trust's best interests. Any such determination by Board of Trustees shall be
conclusive. The Trust shall give holders of Series C Preferred Shares at least
fifteen (15) Trading Days' notice of any increase in the Conversion Rate.
(j) The Trust will not adjust the Conversion Rate pursuant to
this Section 7 to the extent that the adjustments would reduce the Conversion
Price below $0.0001. The Trust shall not be required to make an adjustment in
the Conversion Rate unless the adjustment would require a change of at least one
percent in the Conversion Rate. However, any adjustments that are not required
to be made because they would have required an increase or decrease of less than
one percent shall be carried forward and taken into account in any subsequent
adjustment of the Conversion Rate. Except as described in this Section 7, the
Trust shall not adjust the Conversion Rate for any issuance of our shares of
Common Stock or any securities convertible into or exchangeable or exercisable
for its shares of Common Stock or rights to purchase its shares of Common Stock
or such convertible, exchangeable or exercisable securities.
(k) In the event that at any time, as a result of an adjustment
made pursuant to this Section 7, the holder of any Series C Preferred Shares
thereafter surrendered for conversion shall become entitled to receive any
shares of capital stock of the Trust other than Common Stock into which the
Series C Preferred Shares originally were convertible, the Conversion Rate of
such other shares so receivable upon conversion of any such Series C Preferred
Share 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 Common
Stock contained in subparagraphs (a) through (m) of this Section 7, and any
other applicable provisions of this Article FOURTH with respect to the Common
Stock shall apply on like or similar terms to any such other shares
(l) To the extent the Trust has a rights plan in effect upon
conversion of the Series C Preferred Shares into shares of Common Stock, the
holder will receive (except to the extent the Trust settles its conversion
obligations in cash), in addition to the shares of Common Stock, the rights
under the rights plan unless the rights have separated from the shares of Common
Stock prior to the time of conversion, in which case the Conversion Rate will be
adjusted at the time of separation as if the Trust made a distribution referred
to in Section 7(d) above (without regard to any of the exceptions there).
Section 8. Consolidation or Merger of the Trust.
If any of the following events occurs, namely:
(a) any reclassification or change of the outstanding shares of
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination);
26
(b) any merger, consolidation, statutory share exchange or
combination of the Trust with another Person as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common Stock; or
(c) any sale or conveyance of all or substantially all of the
properties and assets of the Trust to any other person as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock;
the Trust or the successor or purchasing person, as the case may be, shall
execute Articles Supplementary, a Certificate of Designation and such other
necessary documentation providing that such Series C Preferred Shares shall be
convertible into the kind and amount of shares of stock and other securities or
property or assets (including cash) which such holder of Series C Preferred
Shares would have been entitled to receive upon such reclassification, change,
merger, consolidation, statutory share exchange, combination, sale or conveyance
had such Series C Preferred Shares been converted into Common Stock immediately
prior to such reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance assuming such holder of Common Stock
did not exercise its rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such merger, consolidation,
statutory share exchange, sale or conveyance (provided, that if the kind or
amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance is not the same for
each share of Common Stock in respect of which such rights of election shall not
have been exercised ("Non Electing Share"), then for the purposes of this
Section 8, the kind and amount of securities, cash or other property receivable
upon such merger, consolidation, statutory share exchange, sale or conveyance
for each Non Electing Share shall be deemed to be the kind and amount so
receivable per share by a plurality of the Non Electing Shares). Such Articles
Supplementary, a Certificate of Designation or other necessary documentation
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article FOURTH and, to the
extent applicable, reflect the other types of adjustments provided for in
Section 7. If, in the case of any such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance, the
stock or other securities and assets receivable thereupon by a holder of Common
Stock includes shares of stock or other securities and assets of a Person other
than the successor or purchasing person, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such Articles Supplementary, Certificate
of Designation or other necessary documentation shall also be executed by such
other person and shall contain such additional provisions to protect the
interests of the holders of the Series C Preferred Shares as the Board of
Trustees shall reasonably consider necessary by reason of the foregoing. The
Trust shall cause Notice of the execution of such Articles Supplementary,
Certificate of Designation or other necessary documentation to be mailed to each
holder, at the address of such holder as it appears on the register of the
Series C Preferred Shares maintained by the transfer agent, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of such Articles Supplementary, Certificate of Designation or other
necessary documentation. The above provisions of this Section 8 shall similarly
apply to successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations,
27
sales and conveyances. If this Section 8 applies to any
event or occurrence, Section 7 shall not apply.
Section 9. Notice of Adjustment.
Whenever an adjustment in the Conversion Rate with respect to
the Series C Preferred Shares is required:
(a) the Trust shall forthwith place on file with the transfer
agent for the Series C Preferred Shares a certificate of the Chief Financial
Officer (or such person having similar responsibilities of the Trust, stating
the adjusted Conversion Rate determined as provided herein and setting forth in
reasonable detail such facts as shall be necessary to show the reason for and
the manner of computing such adjustment; and
(b) a Notice stating that the Conversion Rate has been adjusted
and setting forth the adjusted Conversion Rate shall forthwith be given by the
Trust to each holder of Series C Preferred Shares. Any Notice so given shall be
conclusively presumed to have been duly given, whether or not the holder
receives such Notice.
Section 10. Notice in Certain Events.
In case of:
(a) a consolidation or merger to which the Trust is a party and
for which approval of any holders of Common Stock of the Trust is required, or
of the sale or conveyance to another person or entity or group of persons or
entities acting in concert as a partnership, limited partnership, syndicate or
other group (within the meaning of Rule 13d-3 under the Exchange Act of 1934, as
amended) of all or substantially all of the property and assets of the Trust; or
(b) the voluntary or involuntary dissolution, liquidation or
winding up of the Trust; or
(c) any action triggering an adjustment of the Conversion Rate
referred to in clauses (x) or (y) below;
then, in each case, the Trust shall cause to be given, to the
holders of the Series C Preferred Shares, at least 15 days prior to the
applicable date hereinafter specified, a Notice stating:
(x) the date on which a record is to be taken for the
purpose of any distribution or grant of rights or warrants triggering
an adjustment to the Conversion Rate pursuant to Section 7 of this
Article FOURTH, or, if a record is not to be taken, the date as of
which the holders of record of Common Stock entitled to such
distribution, rights or warrants are to be determined; or
(y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up
triggering an adjustment to the
28
Conversion Rate pursuant to this Section 7 of this Article FOURTH 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 shares of Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale,
conveyance, dissolution, liquidation or winding up.
Failure to give such Notice or any defect therein shall not
affect the legality or validity of the proceedings described in Section 10(a),
Section 10(b) or Section 10(c).
Section 11. Adjustment to Conversion Rate Upon Certain Fundamental
Changes
(a) If and only to the extent a holder of Series C Preferred
Shares elects to convert its Series C Preferred Shares in connection with a
transaction described in clause (1) of the definition of Fundamental Change (or
in connection with a transaction that would have been a fundamental change under
such clause (1) but for the application of the 105% Trading Price Exception)
that occurs on or prior to November 15, 2014 pursuant to which 10% or more of
the consideration for shares of Common Stock (other than cash payments for
fractional shares and cash payments made in respect of dissenters' appraisal
rights) in such Fundamental Change transaction consists of cash (or other
property) or securities that are not traded or scheduled to be traded
immediately following such transaction on a United States national or regional
securities exchange or the Nasdaq National Market, the Trust shall increase the
Conversion Rate for the Series C Preferred Share surrendered for conversion by a
number of additional shares (the "Additional Shares") as set forth in this
Section 12; provided, however, in lieu of the foregoing, the Trust shall have
the option to elect to adjust the Conversion Rate so that the shares of Series C
Preferred Shares become convertible into shares of Public Acquirer Common Stock
in accordance with the provisions of Section 11(e).
(b) The number of Additional Shares shall be determined by
reference to the table below, based on the date on which such Fundamental Change
transaction becomes effective (the "Effective Date") and the price paid per
share for shares of Common Stock in such Fundamental Change transaction (the
"Share Price"). If holders of shares of Common Stock receive only cash in such
Fundamental Change transaction, the Share Price shall be the cash amount paid
per share. If holders of shares of Common Stock receive consideration other than
only cash in such Fundamental Change transaction, the Share Price shall be the
average of the Closing Sale Prices of shares of Common Stock on the five Trading
Days prior to but not including the Effective Date of such Fundamental Change
transaction.
(c) The Share Prices set forth in the first row of the table
below (i.e., the column headers) shall be adjusted as of any date on which the
Conversion Rate is adjusted pursuant to Section 7. The adjusted Share Prices
shall equal the product of the Share Prices applicable immediately prior to such
adjustment multiplied by a fraction, the numerator of which is the Conversion
Rate immediately prior to the adjustment giving rise to the Share Price
adjustment and the denominator of which is the Conversion Rate as so adjusted.
The number of Additional Shares shall be adjusted in the same manner as the
Conversion Rate as set forth under the provisions of Section 7. The following
table sets forth the hypothetical Share Price and number of Additional Shares to
be issuable per $50.00 liquidation preference of Series C Preferred Shares:
29
Share Price (in dollars)
--------------------------------------------------------------------------------------------------------------
Effective 22.35 25.00 27.50 30.00 32.50 35.00 37.50 40.00 45.00 50.00 55.00 60.00 65.00 70.00 75.00
Date
------------------------------------------------------------------------------------------------------------------------------------
December 2, 2004 0.373 0.289 0.222 0.171 0.133 0.102 0.081 0.064 0.044 0.032 0.025 0.020 0.017 0.014 0.012
November 15, 2005 0.373 0.289 0.211 0.157 0.117 0.087 0.066 0.053 0.033 0.024 0.018 0.015 0.012 0.010 0.008
November 15, 2006 0.342 0.258 0.191 0.143 0.107 0.081 0.063 0.050 0.035 0.027 0.022 0.019 0.017 0.015 0.013
November 15, 2007 0.362 0.261 0.184 0.130 0.093 0.066 0.049 0.038 0.026 0.021 0.018 0.016 0.014 0.012 0.011
November 15, 2008 0.347 0.245 0.162 0.103 0.062 0.034 0.019 0.010 0.005 0.003 0.002 0.002 0.001 0.001 0.001
November 15, 2009 0.340 0.237 0.153 0.085 0.030 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000
November 15, 2010 0.310 0.222 0.145 0.082 0.029 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000
November 15, 2011 0.332 0.230 0.147 0.082 0.028 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000
November 15, 2012 0.326 0.225 0.143 0.079 0.027 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000
November 15, 2013 0.325 0.223 0.141 0.078 0.026 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000
November 15, 2014 0.304 0.214 0.138 0.077 0.026 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000 0.000
(d) The Share Prices and Additional Share amounts set forth
above are based upon a per share Common Stock price of $22.35 on December 2,
2004 and an initial Conversion Price of $26.82. The exact Share Prices and
Effective Dates may not be set forth in the table above, in which case:
(1) If the Share Price is between two Share Price amounts
in the table or the Effective Date is between two Effective Dates in the table,
the number of Additional Shares will be determined by a straight-line
interpolation between the number of Additional Shares set forth for the higher
and lower Share Price amounts and the two dates, as applicable, based on a
365-day year;
(2) If the Share Price is in excess of $75.00 per share
(subject to adjustment), no Additional Shares will be issuable upon conversion;
or
(3) If the Share Price is less than $22.35 per share
(subject to adjustment), no Additional Shares will be issuable upon conversion.
(e) Notwithstanding anything contained in Section 11(d), in the
event of a Public Acquirer Change of Control, in lieu of issuing Additional
Shares, the Trust may elect to adjust the Conversion Rate such that, from and
after the effective time of such Public Acquirer Change of Control, holders of
Series C Preferred Shares shall be entitled to convert their Series C Preferred
Shares into a number of shares of Public Acquirer Common Stock by multiplying
the Conversion Rate in effect immediately before effective time of the Public
Acquirer Change of Control by a fraction:
(1) the numerator of which shall be (i) in the case of a
consolidation, merger or statutory share exchange, pursuant to which shares of
Common Stock are converted
30
into cash, securities or other property, the value of all cash, securities and
other property (as determined by the Board of Trustees) paid or payable per
share of Common Stock or (ii) in the case of any other Public Acquirer Change of
Control, the average of the Closing Sale Prices of shares of Common Stock for
the five consecutive Trading Days prior to but excluding the effective date of
such Public Acquirer Change of Control; and
(2) the denominator of which shall be the average of the
Closing Sale Prices of the Public Acquirer Common Stock for the five consecutive
Trading Days commencing on the Trading Day next succeeding the effective date of
such Public Acquirer Change of Control.
(f) A "Public Acquirer Change of Control" means any event
constituting a Fundamental Change (or that would otherwise constitute a
fundamental change but for the application of the 105% Trading Price Exception)
that would otherwise obligate the Trust to increase the Conversion Rate and the
acquirer (or any entity that is a directly or indirectly wholly-owned subsidiary
of the acquirer) has a class of common stock traded on a United States national
or regional securities exchange or quoted on the Nasdaq National Market or which
will be so traded or quoted when issued or exchanged in connection with such
Fundamental Change (the "Public Acquirer Common Stock").
(g) Upon a Fundamental Change which is a Public Acquirer Change
of Control, if the Trust so elects, holders may convert their Series C Preferred
Shares at the adjusted Conversion Rate described in Section 11(e) but will not
be entitled to the increased Conversion Rate described in Sections 11(a), 11(b),
11(c) and 11(d). Upon a Fundamental Change which is a Public Acquirer Change of
Control, if the Trust elects to adjust the Conversion Rate and conversion
obligation in accordance with the provisions set forth in Section 11(e) of this
Article FOURTH, the Trust shall notify holders of Series C Preferred Shares of
the Trust's election in the notice to such holders of such transaction. As set
forth in Section 6, and subject to the Trust's election right under the first
paragraph of Section 11(e), holders may convert their Series C Preferred Shares
upon a Public Acquirer Change of Control during the period specified therein. In
addition, a holder can also, subject to certain conditions, require the Trust to
repurchase all or a portion of our Series C Preferred Shares in accordance with
the provisions set forth in Section 12 hereof.
Section 12. Purchase of Series C Preferred Shares Upon a Fundamental
Change
(a) In the event of a Fundamental Change, a holder of Series C
Preferred Shares shall have the right to require the Trust to purchase (the
"Repurchase Right") for cash all or any part of such holder's Series C Preferred
Shares at a purchase price equal to 100% of the liquidation preference of the
Series C Preferred Shares to be purchased plus accrued and unpaid dividends
(including additional dividends, if any) to, but not including, the Fundamental
Change Purchase Date (the "Fundamental Change Purchase Price"). Series C
Preferred Shares submitted for purchase must be $50.00 liquidation preference or
an integral multiple thereof.
(b) On or before the tenth Trading Day after the occurrence of a
Fundamental Change, the Trust shall provide to all holders of Series C Preferred
Shares and the transfer agent
31
a Notice of the occurrence of the Fundamental Change and of the resulting
Repurchase Right. Such Notice shall state:
(i) the events constituting the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a holder may exercise the
Repurchase Right;
(iv) the Fundamental Change Repurchase Price;
(v) the Fundamental Change Repurchase Date;
(vi) the name and address of the transfer agent;
(vii) the Conversion Rate and any adjustment to the
Conversion Rate that will result from the Fundamental Change, as
applicable, pursuant to either (A) Sections 11(a), (b), (c) and
(c) or (B) Section 11(e);
(viii) that Series C Preferred Shares with respect to
which a repurchase notice is given by the holder may be
converted, if otherwise convertible, only if the repurchase
notice has been properly withdrawn; and
(ix) the procedures that a holder must follow to
exercise the Repurchase Right.
(c) Simultaneously with providing such Notice, the Trust shall
publish a notice containing this information in a newspaper of general
circulation in the City of New York or through such other public medium as the
Trust may use at that time and publish such information on its corporate
website.
(d) To exercise the Repurchase Right, subject to Section 12(e),
a holder of the Series C Preferred Shares must deliver, on or before the
twentieth Trading Day after the date of the Trust's delivery of Notice of a
Fundamental Change (subject to extension to comply with applicable law), the
Series C Preferred Shares to be purchased, duly endorsed for transfer, together
with a written repurchase notice and the form entitled "Form of Fundamental
Change Repurchase Notice" duly completed to the transfer agent. The repurchase
notice must state:
(i) the applicable Fundamental Change Repurchase Date;
(ii) the portion of the liquidation preference of
Series C Preferred Shares to be purchased, in integral multiples
of $50.00; and
(iii) that the Series C Preferred Shares are to be
purchased by the Trust pursuant to this Section 12.
32
(e) If the Series C Preferred Shares are not in certificated
form, a holder's repurchase notice must comply with applicable Depository Trust
Company procedures.
(f) A holder of Series C Preferred Shares may withdraw any
repurchase notice (in whole or in part) by a written notice of withdrawal
delivered to the Trust prior to the close of business on the Trading Day prior
to the Fundamental Change Repurchase Date. The notice of withdrawal shall state:
(i) the liquidation preference of the withdrawn Series
C Preferred Shares, in integral multiples of $50.00;
(ii) if certificated Series C Preferred Shares have
been issued, the certificate numbers of the withdrawn Series C
Preferred Shares; and
(iii) the liquidation preference, if any, which
remains subject to the repurchase notice.
(g) If the Series C Preferred Shares are not in certificated
form, a holder's notice of withdrawal must comply with applicable Depository
Trust Company procedures.
(h) The Trust shall be required to purchase the Series C
Preferred Shares no later than 35 Trading Days after the date of the Trust's
delivery of Notice of the Fundamental Change, subject to extension to comply
with applicable law (as set forth in the Notice of Fundamental Change, the
"Fundamental Change Repurchase Date"). A holder of Series C Preferred Shares
shall receive payment of the Fundamental Change Purchase Price promptly
following the later of the Fundamental Change Repurchase Date or the time of
book-entry transfer or delivery of the Series C Preferred Shares.
(i) If the transfer agent holds cash sufficient to pay the
Fundamental Change Repurchase Price of the Series C Preferred Shares on the
Trading Day following the Fundamental Change Repurchase Date, then:
(1) the Series C Preferred Shares will cease to be
outstanding and dividends (including additional dividends, if any) will cease to
accrue (whether or not book-entry transfer of the Series C Preferred Shares is
made or whether or not the Series C Preferred Share certificate, if applicable,
is delivered to the transfer agent); and
(2) all other rights of the holder will terminate (other
than the right to receive the Fundamental Change Repurchase Price upon delivery
or transfer of the Series C Preferred Shares).
(j) A "Fundamental Change" will be deemed to have occurred if
any of the following occurs:
(1) The Trust consolidates with or merges with or into any
person or convey, transfer, sell or otherwise dispose of or lease all or
substantially all of its assets to any person, or any corporation consolidates
with or merges into or with the Trust, in any such event pursuant to a
transaction in which the Trust's outstanding voting shares are changed into or
33
exchanged for cash, securities or other property, other than (a) any such
transaction where the Trust's outstanding voting shares are not changed or
exchanged at all (except to the extent necessary to reflect a change in the
Trust's jurisdiction of formation), or (b) where (i) the Trust's outstanding
voting shares are changed into or exchanged for cash, securities and other
property (other than equity interests of the surviving corporation) and (ii) the
Trust's shareholders immediately before such transaction own, directly or
indirectly, immediately following such transaction, more than 50% of the total
outstanding voting stock of the surviving corporation; or
(2) The Trust is liquidated or dissolved or adopt a plan
of liquidation or dissolution.
(k) However, notwithstanding the foregoing, a Fundamental Change
will not be deemed to have occurred if either:
(1) the Closing Sale Price of the Common Stock for each of
at least five (5) Trading Days within (A) the period of ten (10) consecutive
Trading Days immediately after the later of the Fundamental Change or the public
announcement of the Fundamental Change, in the case of a Fundamental Change
described in 1 above; or (B) the period of ten (10) consecutive Trading Days
immediately preceding the Fundamental Change, in the case of a Fundamental
Change described in 2 above, in either case, is at least equal to 105% of the
quotient of the liquidation preference of the Series C Preferred Shares divided
by the Conversion Rate in effect on each of those five (5) Trading Days (the
"105% Trading Price Exception"); or
(2) in the case of a merger or consolidation described in
1 above, at least 90% of the consideration, excluding cash payments for
fractional shares and cash payments pursuant to dissenters' appraisal rights, in
the merger or consolidation constituting the Fundamental Change consists of
voting shares traded on a U.S. national securities exchange or quoted on the
Nasdaq National Market (or which will be so traded or quoted when issued or
exchanged in connection with such Fundamental Change) and as a result of such
transaction or transactions the Series C Preferred Shares become convertible
solely into such shares of common stock, excluding cash payments for fractional
shares. For purposes of the foregoing, "voting shares" means shares of the class
or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
trustees of a corporation (irrespective of whether or not at the time shares of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency).
(l) In connection with a Fundamental Change repurchase, the
Trust shall comply with all U.S. federal and state securities laws in connection
with any offer by the Trust to purchase the Series C Preferred Shares upon a
Fundamental Change.
(m) The Trust shall not be required to repurchase the Series C
Preferred Shares upon a Fundamental Change if a third party (1) makes an offer
to purchase the Series C Preferred Shares in the manner, at the times and
otherwise in compliance with the requirements applicable to the Trust to
repurchase Series C Preferred Shares upon a Fundamental Change and (2) purchases
all of the Series C Preferred Shares validly delivered and not withdrawn under
such offer to purchase Series C Preferred Shares.
34
Section 13. Ranking.
In respect of rights to the payment of dividends and the distribution
of assets in the event of any liquidation, dissolution or winding up of the
affairs of the Trust, the Series C Preferred Shares shall rank (i) senior to the
Common Stock and to any other class or series of Capital Stock of the Trust
other than any class or series referred to in clauses (ii) and (iii) of this
sentence, (ii) on a parity with any class or series of Capital Stock of the
Trust the terms of which specifically provide that such class or series of
Capital Stock ranks on a parity with the Series C Preferred Shares as to the
payment of dividends and the distribution of assets in the event of any
liquidation, dissolution or winding up of the Trust, including without
limitation the Series B Preferred Shares, and (iii) junior to any class or
series of Capital Stock of the Trust ranking senior to the Series C Preferred
Shares as to the payment of dividends and the distribution of assets in the
event of any liquidation, dissolution or winding up of the Trust. For avoidance
of doubt, debt securities of the Trust which are convertible into or
exchangeable for shares of Capital Stock of the Trust shall not constitute a
class or series of Capital Stock of the Trust.
Section 14. Restrictions on Transfer, Acquisition and Redemption of
Shares.
The Series C Preferred Shares, being Equity Stock, is governed by and
issued subject to all of the limitations, terms and conditions of the
Declaration applicable to Equity Stock generally, including, but not limited to,
the terms and conditions (including exceptions and exemptions) of Article NINTH
of the Declaration applicable to Equity Stock; provided, however, that (i) the
terms and conditions (including exceptions and exemptions) of Article NINTH of
the Declaration applicable to Equity Stock shall also be applied to the Series C
Preferred Shares separately and without regard to any other series or class,
(ii) the reference to the "General Corporation Law of the State of Maryland"
under subparagraph (b)(4) of Article NINTH of the Declaration shall be to the
"Maryland REIT Law," (iii) the Equity Stock into which the Excess Stock is
converted in subparagraph (b)(5)(A) of Article NINTH of the Declaration shall be
shares of Series C Preferred Shares, and (iv) the Current Market Price of the
Series C Preferred Shares for purposes of subparagraphs (b)(5) and (b)(6) of
Article NINTH of the Declaration shall be determined by the definition under
Section 1 of this Article FOURTH. The foregoing sentence shall not be construed
to limit to the Series C Preferred Shares the applicability of any other term or
provision of the Declaration. In addition to the legend contemplated by
subparagraph (a)(10) of Article NINTH of the Declaration, each certificate for
Series C Preferred Shares shall bear substantially the following legend:
THE TRUST WILL FURNISH TO ANY SHAREHOLDER
ON REQUEST AND WITHOUT CHARGE A FULL STATEMENT OF THE
DESIGNATIONS AND ANY PREFERENCES, CONVERSION AND OTHER
RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS TO
DIVIDENDS OR DISTRIBUTIONS, QUALIFICATIONS, AND TERMS
AND CONDITIONS OF REDEMPTION OF THE SHARES OF EACH
CLASS WHICH THE TRUST IS AUTHORIZED TO ISSUE, OF THE
DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES
BETWEEN THE SHARES OF EACH SERIES OF A PREFERRED OR
SPECIAL CLASS IN SERIES WHICH THE TRUST IS AUTHORIZED
TO ISSUE, TO THE EXTENT THEY HAVE BEEN SET, AND OF THE
AUTHORITY OF THE BOARD OF TRUSTEES TO SET
35
THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT
SERIES OF A PREFERRED OR SPECIAL CLASS OF SHARES. SUCH
REQUEST MAY BE MADE TO THE SECRETARY OF THE TRUST OR
TO ITS TRANSFER AGENT.
Section 15. Exclusion of Other Rights.
The Series C Preferred Shares shall not have any preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends, qualifications, or terms or conditions of redemption other than
expressly set forth in the Declaration and these Articles Supplementary.
Section 16. Headings of Subdivisions.
The headings of the various subdivisions hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions
hereof.
Section 17. Severability of Provisions.
If any preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications, or terms or
conditions of redemption of the Series C Preferred Shares set forth in the
Declaration and these Articles Supplementary are invalid, unlawful or incapable
of being enforced by reason of any rule of law or public policy, all other
preferences or other rights, voting powers, restrictions, limitations as to
distributions, qualifications or terms or conditions of redemption of Series C
Preferred Shares set forth in the Declaration which can be given effect without
the invalid, unlawful or unenforceable provision thereof shall, nevertheless,
remain in full force and effect and no preferences or other rights, voting
powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of the Series C Preferred
Shares herein set forth shall be deemed dependent upon any other provision
thereof unless so expressed therein.
Section 18. No Preemptive Rights.
No holder of Series C Preferred Shares shall be entitled to any
preemptive rights to subscribe for or acquire any unissued shares of Capital
Stock of the Trust (whether now or hereafter authorized) or securities of the
Trust convertible into or carrying a right to subscribe to or acquire shares of
Capital Stock of the Trust.
36
IN WITNESS WHEREOF, LEXINGTON CORPORATE PROPERTIES TRUST has caused
these presents to be signed in its name and on its behalf by its President and
witnessed by its Secretary on December 8, 2004.
WITNESS: LEXINGTON CORPORATE PROPERTIES TRUST
/s/ Paul R. Wood By: /s/ T. Wilson Eglin
------------------------------------ -----------------------------------
Paul R. Wood, Secretary T. Wilson Eglin, President
THE UNDERSIGNED, President of LEXINGTON CORPORATE PROPERTIES TRUST, who
executed on behalf of the Trust the foregoing Articles Supplementary of which
this Certificate is made a part, hereby acknowledges in the name and on behalf
of said Trust the foregoing Articles Supplementary to be the trust act of said
Trust 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.
/s/ T. Wilson Eglin
-----------------------------------
T. Wilson Eglin, President
37
Exhibit 4.1
FORMED UNDER THE LAWS OF THE
State of Maryland
Number Shares
LEXINGTON CORPORATE PROPERTIES TRUST
6.50% SERIES C CUMULATIVE CUSIP 529043 30 9
CONVERTIBLE PREFERRED STOCK SEE REVERSE SIDE FOR CERTAIN
DEFINITIONS AND IMPORTANT NOTICE ON
TRANSFER RESTRICTIONS AND OTHER INFORMATION
THIS CERTIFIES THAT SPECIMEN
is the owner of
fully-paid and non-assessable shares of the 6.50% Series C Cumulative
Convertible Preferred Stock, Liquidation Preference $50 per share, par value
$.0001 per share of LEXINGTON CORPORATE PROPERTIES TRUST (hereinafter called the
"Trust"), transferable only on the books of the Trust by the registered holder
hereof in person or by duly authorized attorney upon surrender of this
Certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to the laws of the State of Maryland
and to all of the provisions of the Declaration of the Trust of the Trust and
the Bylaws of the Trust and any amendments thereto.
Witness, the facsimile seal of the Trust, and the signatures of its
duly authorized officers.
Dated:
------------------------------------- ----------------------------------
LEXINGTON CORPORATE PROPERTIES TRUST
This certificate and the shares represented thereby shall be held
subject to all of the provisions of the Declaration of Trust (including the
Articles Supplementary setting forth the terms of the 6.50% Series C Cumulative
Convertible Preferred Stock) and the By-Laws of Lexington Corporate Properties
Trust (the "Trust"), a copy of each of which is on file at the office of the
Trust, and made a part hereof as fully as though the provisions of said
Declaration of Trust and By-Laws were imprinted in full on this certificate, to
all of which the holder of this certificate, by acceptance hereof, assents and
agrees to be bound.
The Trust will furnish to any owner of shares of beneficial interest on
request and without charge a full statement of the designations and any
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and conditions of
redemption of the shares of each series or class which the Trust is authorized
to issue, of the differences in the relative rights and preferences between the
shares of each series of a preferred or special class in series which the Trust
is authorized to issue, to the extent they have been set, and of the authority
of the Board of Trustees to set the relative rights and preferences of
subsequent series of a preferred or special class of stock. Such request may be
made to the secretary of the Trust or to its transfer agent.
The shares of preferred stock represented by this certificate are
subject to restrictions on transfer for the purpose of the Trust's maintenance
of its status as a real estate investment trust under the Internal Revenue Code
of 1986, as amended (the "Code"). Subject to certain exceptions, no Person may,
(1) Beneficially Own or Constructively Own shares of Equity Stock in excess of
9.8% of the value of the outstanding Equity Stock of the Trust or (2)
Beneficially Own Equity Stock that would result in the Trust's being "closely
held" under Section 856(h) of the Code. Any Person who attempts to Beneficially
Own or Constructively Own shares of Equity Stock in excess of the above
limitations must immediately notify the Trust. All capitalized terms in this
legend have the meanings defined in the Declaration, as the same may be further
amended from time to time, a copy of which including the restrictions on
transfer, will be sent without charge to each stockholder who so requests. If
the restrictions on transfer are violated, the shares of Equity Stock
represented hereby will be automatically converted for shares of Excess Stock
which will be held in trust by the Trust.
Keep this certificate in a safe place. If it is lost, stolen or
destroyed, the Trust will require a bond of indemnity as a condition to the
issuance of a replacement certificate.
The following abbreviations, when used in the inscription on the face
of this Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIFORM GIFT MIN ACT-____________Custodian____________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of survivorship
Under Uniform Gifts to Minors and not as tenants in common Act
----------------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received _____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF TRANSFEREE
------------------------------------------
| |
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(NAME AND ADDRESS OF TRANSFEREE SHOULD BE PRINTED OR TYPEWRITTEN)
-------------------------------------------------------------------------------
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Shares of the 6.50% Series C Cumulative Convertible Preferred Stock
represented by the within Certificate, and do hereby irrevocably constitute
and appoint
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Attorney to transfer the said Shares on the books of the within-named Trust
with full power of substitution in the premises.
Dated:
----------------------------- ---------------------------------------
SIGNATURE(S) GUARANTEED SIGNATURE
By
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
SEC RULE 17Ad-15.
NOTICE: THE SIGNATURE(S) OF THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THIS CERTIFICATE IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.