Exhibit A
6.05. Series B Preferred Stock. Pursuant to authority granted
under Section 6.01 of the Corporation's Amended and Restated
Articles of Incorporation (the "Articles of Incorporation"), the
Board of Directors of the Corporation hereby establishes a series
of preferred shares designated the 7.99% Series B Cumulative Step-
Up Premium Rate Preferred Shares ($0.01 Par Value Per Share)
(Liquidation Preference $500.00 Per Share) (the "Series B
Preferred Shares") on the following terms:
(a) Number. The number of authorized shares of the Series B
Preferred Shares shall be 300,000.
(b) Relative Seniority. In respect of rights to receive dividends
and to participate in distributions or payments in the event of
any liquidation, dissolution or winding up of the Corporation, the
Series B Preferred Shares shall rank senior to the Common Shares
and any other class or series of shares of the Corporation
ranking, as to dividends and upon liquidation, junior to the
Series B Preferred Shares (collectively, "Junior Shares").
(c) Dividends.
(1) The holders of the then outstanding Series B Preferred
Shares shall be entitled to receive, when and as declared by the
Board of Directors out of any funds legally available therefore,
cumulative dividends at an initial rate of $39.95 per share per
year, payable in equal amounts of $9.9875 per share quarterly in
cash on the last day of each March, June, September and December
or, if not a Business Day (as hereinafter defined), the next
succeeding Business Day beginning on September 30, 1997 (each such
day being hereinafter called a "Quarterly Dividend Date" and each
period ending on a Quarterly Dividend Date being hereinafter
called a "Dividend Period"); provided, however, that beginning
with each Quarterly Dividend Date after October 1, 2012, the rate
shall increase to $49.95 per Series B Preferred Share per year,
payable in equal amounts of $12.4875 on each Quarterly
Distribution Date. Dividends shall be payable to holders of record
as they appear in the share records of the Corporation at the
close of business on the applicable record date (the "Record
Date"), which shall be the first day of the calendar month in
which the applicable Quarterly Dividend Date falls on or such
other date designated by the Board of Directors of the Corporation
for the payment of dividends that is not more than 30 nor less
than 10 days prior to such Quarterly Dividend Date. The amount of
any dividend payable for any Dividend Period shorter than a full
Dividend Period shall be prorated and computed on the basis of a
360-day year of twelve 30-day months. Dividends on each share of
Series B Preferred Shares shall accrue and be cumulative from and
including the date of original issue thereof, whether or not (i)
dividends on such shares are earned or declared or (ii) on any
Quarterly Dividend Date there shall be funds legally available for
the payment of dividends. Dividends paid on the Series B Preferred
Shares in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated
pro rata on a per share basis among all such shares at the time
outstanding.
"Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in New York City are authorized or required by law,
regulation or executive order to close.
(2) The amount of any dividends accrued on any Series B
Preferred Shares at any Quarterly Dividend Date shall be the
amount of any unpaid dividends accumulated thereon, to and
including such Quarterly Dividend Date, whether or not earned or
declared, and the amount of dividends accrued on any shares of
Series B Preferred Shares at any date other than a Quarterly
Dividend Date shall be equal to the sum of the amount of any
unpaid dividends accumulated thereon, to and including the last
preceding Quarterly Dividend Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual
dividend rate of $39.95 per share with respect to a Quarterly
Dividend Date on or before October 1, 2012 and $49.95 per share
with respect to a Quarterly Dividend Date after October 1, 2012,
and in either case, for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the
calculation is made based on a 360-day year of twelve 30-day
months.
(3) Except as provided in this Section 6.06, the Series B
Preferred Shares shall not be entitled to participate in the
earnings or assets of the Corporation.
(4) Any dividend payment made on the Series B Preferred
Shares shall be first credited against the earliest accrued but
unpaid dividend due with respect to such shares which remains
payable.
(5) If, for any taxable year, the Company elects to
designate as "capital gain dividends" (as defined in Section 857
of the Code), any portion (the "Capital Gains Amount") of the
dividends paid or made available for the year to holders of all
classes of Shares (the "Total Dividends"), then the portion of the
Capital Gains Amount that shall be allocated to the holders of the
Series B Preferred Shares shall be the amount that the total
dividends paid or made available to the holders of the Series B
Preferred Shares for the year bears to the Total Dividends.
(d) Liquidation Rights.
(1) Upon the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation, the holders of the
Series B Preferred Shares then outstanding shall be entitled to
receive and to be paid out of the assets of the Corporation
available for distribution to its shareholders, before any payment
or distribution shall be made on any Junior Shares, the amount of
$500.00 per share, plus accrued and unpaid dividends thereon.
(2) After the payment to the holders of the Series B
Preferred Shares of the full preferential amounts provided for in
this Section 6.06, the holders of the Series B Preferred Shares,
as such, shall have no right or claim to any of the remaining
assets of the Corporation.
(3) If, upon any voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation, the amounts payable
with respect to the preference value of the Series B Preferred
Shares and any other shares of the Corporation ranking as to any
such distribution on a parity with the Series B Preferred Shares
are not paid in full, the holders of the Series B Preferred Shares
and of such other shares will share ratably in any such
distribution of assets of the Corporation in proportion to the
full respective preference amounts to which they are entitled.
(4) Neither the sale of all or substantially all of the
property or business of the Corporation, nor the merger or
consolidation of the Corporation into or with any other entity or
the merger or consolidation of any other entity into or with the
Corporation, shall be deemed to be a dissolution, liquidation or
winding up, voluntary or involuntary, for the purposes of this
Section 6.06.
(e) Redemption.
(1) Optional Redemption. On and after September 30, 2007,
the Corporation may, at its option, redeem at any time all or,
from time to time, part of the Series B Preferred Shares at a
price per share (the "Series B Redemption Price"), payable in
cash, of $500.00, together with all accrued and unpaid dividends
to and including the date fixed for redemption (the "Series B
Redemption Date").
(2) Procedures of Redemption.
(i) Notice of any redemption will be mailed by the
Corporation, postage prepaid, not less than 30 nor more than
60 days prior to the Series B Redemption Date, addressed to
each holder of record of the Series B Preferred Shares to be
redeemed at the address set forth in the share transfer
records of the Corporation. No failure to give such notice or
any defect therein or in the mailing thereof shall affect the
validity of the proceedings for the redemption of any Series
B Preferred Shares except as to the holder to whom the
Corporation has failed to give notice or except as to the
holder to whom notice was defective. In addition to any
information required by law or by the applicable rules of any
exchange upon which Series B Preferred Shares (or depositary
shares or receipts representing fractional interests in
Series B Preferred Shares) may be listed or admitted to
trading, such notice shall state: (a) the Series B Redemption
Date; (b) the Series B Redemption Price; (c) the number of
Series B Preferred Shares to be redeemed; (d) the place or
places where certificates for such shares are to be
surrendered for payment of the Series B Redemption Price; and
(e) that dividends on the shares to be redeemed will cease to
accumulate on the Series B Redemption Date.
(ii) If notice has been mailed in accordance with
subparagraph (e)(2)(i) above and provided that on or before
the Series B Redemption Date specified in such notice all
funds necessary for such redemption shall have been
irrevocably set aside by the Corporation, separate and apart
from its other funds in trust for the pro rata benefit of the
holders of the Series B Preferred Shares so called for
redemption, so as to be, and to continue to be available
therefor, then, from and after the Series B Redemption Date,
dividends on the Series B Preferred Shares so called for
redemption shall cease to accumulate, and said shares shall
no longer be deemed to be outstanding and shall not have the
status of Series B Preferred Shares and all rights of the
holders thereof as shareholders of the Corporation (except
the right to receive the Series B Redemption Price) shall
cease. Upon surrender, in accordance with such notice, of
the certificates for any Series B Preferred Shares so
redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and the notice shall so state),
such Series B Preferred Shares shall be redeemed by the
Corporation at the Series B Redemption Price. In case fewer
than all the Series B Preferred Shares represented by any
such certificate are redeemed, a new certificate or
certificates shall be issued representing the unredeemed
Series B Preferred Shares without cost to the holder thereof.
(iii) Any funds deposited with a bank or trust company
for the purpose of redeeming Series B Preferred Shares shall
be irrevocable except that:
(A) the Corporation shall be entitled to receive
from such bank or trust company the interest or other
earnings, if any, earned on any money so deposited in
trust, and the holders of any shares redeemed shall have
no claim to such interest or other earnings; and
(B) any balance of monies so deposited by the
Corporation and unclaimed by the holders of the Series B
Preferred Shares entitled thereto at the expiration of
two years from the applicable Series B Redemption Date
shall be repaid, together with any interest or other
earnings earned thereon, to the Corporation, and after
any such repayment, the holders of the shares entitled
to the funds so repaid to the Corporation shall look
only to the Corporation for payment without interest or
other earnings.
(iv) No Series B Preferred Shares may be redeemed except
from proceeds from the sale of other capital stock of the
Company, including but not limited to common stock, preferred
stock, depositary shares, interests, participations or other
ownership interests (however designated) and any rights
(other than debt securities convertible into or exchangeable
for equity securities) or options to purchase any of the
foregoing.
(v) Unless full accumulated dividends on all Series B
Preferred Shares shall have been or contemporaneously are
declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past Dividend
Periods and the then current Dividend Period, no Series B
Preferred Shares shall be redeemed or purchased or otherwise
acquired directly or indirectly (except by conversion into or
exchange for Junior Shares); provided, however, that the
foregoing shall not prevent the redemption of Series B
Preferred Shares pursuant to this Section 6.06 or the
purchase or acquisition of Series B Preferred Shares pursuant
to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of Series B Preferred A
Shares.
(vi) If the Series B Redemption Date is after a Record
Date and before the related Quarterly Dividend Date, the
dividend payable on such Quarterly Dividend Date shall be
paid to the holder in whose name the Series A Preferred
Shares to be redeemed are registered at the close of business
on such Record Date notwithstanding the redemption thereof
between such Record Date and the related Quarterly Dividend
Date or the Corporation's default in the payment of the
dividend due.
(vii) In case of redemption of less than all Series B Preferred
Shares at the time outstanding, the Series B Preferred Shares to
be redeemed shall be prorata from the holders of record of such
shares in proportion to the number of Series B Preferred Shares
held by such holders (with adjustments to avoid redemption of
fractional shares) or by any other equitable method determined by
the Corporation.
(f) Voting Rights. Except as required by law, and as set forth
below, the holders of the Series B Preferred Shares shall not be
entitled to vote at any meeting of the shareholders for election
of Directors or for any other purpose or otherwise to participate
in any action taken by the Corporation or the shareholders
thereof, or to receive notice of any meeting of shareholders.
(1) Whenever dividends on any Series B Preferred Shares
shall be in arrears for six or more quarterly periods, whether or
not such quarterly periods are consecutive, the holders of such
Series B Preferred Shares (voting separately as a class with all
other series of preferred shares upon which like voting rights
have been conferred and are exercisable) will be entitled to vote
for the election of two additional Directors of the Corporation at
a special meeting called by the holders of Record of at least ten
percent (10%) of any series of preferred shares so in arrears
(unless such request is received less than 90 days before the date
fixed of for the next annual or special meeting of the
shareholders) or at the next annual meeting of shareholders, and
at each subsequent annual meeting until all dividends accumulated
on such Series B Preferred Shares 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 Directors of the
Corporation will be increased by two Directors.
(2) So long as any Series B Preferred Shares remain
outstanding, the Corporation will not, without the affirmative
vote or consent of the holders of at least two-thirds of the
Series B Preferred Shares outstanding at the time, given in person
or by proxy, either in writing or at a meeting (such series voting
separately as a class), (i) authorize or create, or increase the
authorized or issued amount of, any class or series of shares of
beneficial interest ranking prior to the Series B Preferred Shares
with respect to the payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up or reclassify
any authorized shares of the Corporation into such shares, or
create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such shares; or (ii)
amend, alter or repeal the provisions of the Corporation's
Articles of Incorporation, whether by merger, consolidation or
otherwise (an "Event"), so as to materially and adversely affect
any right, preference, privilege or voting power of the Series B
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 B Preferred Shares remain outstanding
with the terms thereof materially unchanged, taking into account
that upon the occurrence of an Event, the Corporation may not be
the surviving entity, the occurrence of any such Event shall not
be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of Series B
Preferred Shares and provided further that (x) any increase in the
amount of the authorized Preferred Shares or the creation or
issuance of any other Series B Preferred Shares, or (u) any
increase in the amount of authorized Series B Preferred Shares or
any other preferred shares, in each case ranking on a parity with
or junior to the Series B Preferred Shares with respect to payment
of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting
powers.
The foregoing voting provisions will not apply if, at or
prior to the time when the act with respect to which such vote
would otherwise be required shall be effected, all outstanding
Series B Preferred Shares shall have been redeemed or called for
redemption and sufficient funds shall have been deposited in trust
to effect such redemption.
(3) On each matter submitted to a vote of the holders of
Series B Preferred Shares in accordance with this Section 6.06, or
as otherwise required by law, each Series B Preferred Share shall
be entitled to ten (10) votes, each of which ten (10) votes may be
directed separately by the holder thereof. With respect to each
Series B Preferred Share, the holder thereof may designate up to
ten (10) proxies, with each such proxy having the right to vote a
whole number of votes (totaling ten (10) votes per Series B
Preferred Share).
(g) Conversion. The Series B Preferred Shares are not
convertible into or exchangeable for any other property or
securities of the Corporation.