EXHIBIT 3.2
OMEGA HEALTHCARE INVESTORS, INC.
FORM OF
ARTICLES SUPPLEMENTARY
SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK
Omega Healthcare Investors, Inc., a Maryland corporation (the
"Company"), hereby certifies to the State Department of Assessments and Taxation
of Maryland pursuant to Section 2-208(b) of the Maryland General Corporation Law
(the "MGCL") that:
FIRST: Under a power contained in Article IV, Section 2 of the Articles
of Restatement of the Company, the Board of Directors, as required by Section
2-208(b) of the MGCL, at a meeting duly called and held on May 12, 1999, has
designated 100,000 unissued shares of the Company's Preferred Stock, $1.00 par
value per share, as Series A Junior Participating Preferred Stock, with the
following preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption, which upon any restatement of the Articles of
Restatement shall be made part of Article IV of such Articles, with any
necessary or appropriate changes to the enumeration and lettering hereof:
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
Section 1. Designation and Amount. There shall be a series of preferred
stock of the Company, $1.00 par value per share, which shall be designated
"Series A Junior Participating Preferred Stock" (the "Series A Preferred
Stock"), and the number of shares constituting that series of stock shall be
100,000. Such number of shares may be increased or decreased by resolution of
the Board of Directors and by the filing of articles supplementary in accordance
with the provisions of Title 2 of the MGCL stating that such increase or
reduction has been so authorized; provided, however, that no decrease shall
reduce the number of shares of Series A Preferred Stock to a number less than
the number of shares of Series A Preferred Stock then outstanding plus the
number of shares of Series A Preferred Stock issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Company.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any class or series of preferred stock of the Company ranking prior
and superior to the Series A Preferred Stock with respect to dividends, the
holders of Series A Preferred Stock shall be entitled to receive, when, as and
if authorized by the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash to holders of record on the last
Business Day of March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date") (commencing on
the first Quarterly Dividend Payment Date after the first issuance of a shares
of Series A Preferred Stock or fraction thereof) in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock (hereinafter defined) or a
subdivision of the outstanding shares of Common Stock (by a reclassification or
otherwise), authorized on the common stock, par value $0.10 per share, of the
Company (the "Common Stock") since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any shares of Series A Preferred Stock or fraction
thereof. In the event the Company shall at any time following May 12, 1999 (i)
declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then in each
such case the amount to which holders of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying each such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) above at the time it declares a
dividend or distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Distribution Payment Date and the next subsequent Quarterly
Distribution Payment Date, a distribution of $1.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such Quarterly Distribution
Payment Date.
(C) No dividend or distribution (other than a dividend or distribution
payable in shares of Common Stock) shall be paid or payable to the holders of
Common Stock unless, prior thereto, all accrued but unpaid dividends to the date
of that dividend or distribution shall have been paid to the holders of Series A
Preferred Stock.
(D) Dividends shall begin to accrue and be cumulative on outstanding
Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issuance of such Series A Preferred Stock, unless the date of
issuance of such stock is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such stock shall begin to
accrue and be cumulative from the date of issuance of such stock, or unless the
date of issuance is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the Series A Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such stock shall be allocated pro rata on a
share-by-share basis among all such shares of stock at the time outstanding. The
Board of Directors may fix a record date for the determination of holders of
Series A Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30 days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of Series A Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
one one-thousandth of a share of Series A Preferred Stock shall entitle the
holder thereof to one vote on all matters submitted to a vote of the
stockholders of the Company. In the event the Company shall at any time
following May 12, 1999 (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding shares of Common Stock or
(iii) combine the outstanding shares of Common Stock into a smaller number of
shares, then in each such case the number of votes per share to which holders of
Series A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, the holders of shares of
Series A Preferred Stock and the holders of shares of Common Stock and any other
capital stock of the Company having general voting rights shall vote together as
one class on all matters submitted to a vote of stockholders of the Company.
(C) (i) Whenever, at any time or times, dividends payable on any Series
A Preferred Stock shall be in arrears in an amount equal to at least
six full quarterly dividends (whether or not declared and whether or
not consecutive), the holders of record of the outstanding shares of
Series A Preferred Stock shall have the exclusive right, voting
separately as a single class, to elect two Directors of the Company at
a special meeting of stockholders of the Company or at the Company's
next annual meeting of stockholders, and at each subsequent annual
meeting of stockholders, as provided below. At elections for such
Directors, the holders of Series A Preferred Stock shall be entitled to
cast one vote for each one one-thousandth of a share of Series A
Preferred Stock held, subject to adjustment.
(ii) Upon the vesting of such right of the holders of the
Series A Preferred Stock, the number of members of the Board of
Directors shall automatically be increased by two and the two vacancies
so created shall be filled by vote of the holders of the outstanding
Series A Preferred Stock as hereinafter set forth. A special meeting of
the stockholders of the Company then entitled to vote shall be called
by the Chairman, the President, any Senior Vice President or the
Secretary of the Company, if requested in writing by the holders of
record of not less than 10% of the Series A Preferred Stock then
outstanding. At such special meeting, or, if no such special meeting
shall have been called, then at the next annual meeting of stockholders
of the Company, the holders of the Series A Preferred Stock shall
elect, voting as above provided, two Directors of the Company to fill
the aforesaid vacancies created by the automatic increase in the number
of members of the Board of Directors. At any and all such meetings for
such election, the holders of a majority of the outstanding Series A
Preferred Stock shall be necessary to constitute a quorum for such
election, whether present in person or by proxy, and such two Directors
shall be elected by the vote of at least a plurality of shares held by
such stockholders present or represented at the meeting. Any Director
elected by holders of Series A Preferred Stock pursuant to this Section
may be removed at any annual or special meeting, by vote of the holders
of a majority of the shares of Series A Preferred Stock then
outstanding, voting as a single class, with or without cause. In case
any vacancy shall occur among the Directors elected by the holders of
the Series A Preferred Stock pursuant to this Section, such vacancy may
be filled by the remaining Director so elected, or his successor then
in office, and the Director so elected to fill such vacancy shall serve
until the next meeting of stockholders for the election of Directors.
After the holders of the Series A Preferred Stock shall have exercised
their right to elect Directors in any default period and during the
continuance of such period, the number of Directors shall not be
further increased or decreased except by vote of the holders of Series
A Preferred Stock as herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu with the Series A
Preferred Stock.
(iii) The right of the holders of the Series A Preferred
Stock, voting separately as a class, to elect two members of the Board
of Directors of the Company as aforesaid shall continue until, and only
until, such time as all arrears in dividends (whether or not declared)
on the Series A Preferred Stock shall have been paid or declared and
set apart for payment, at which time such right shall terminate, except
as herein or by law expressly provided, subject to revesting in the
event of each and every subsequent default of the character
above-mentioned. Upon any termination of the right of the holders of
the Series A Preferred Stock as a class to vote for Directors as herein
provided, the term of office of all Directors then in office elected by
the holders of Series A Preferred Stock pursuant to this Section shall
terminate immediately. Whenever the term of office of the Directors
elected by the holders of the Series A Preferred Stock pursuant to this
Section shall terminate and the special voting powers vested in the
holders of the Series A Preferred Stock pursuant to this Section shall
have expired, the number of members of the Board of Directors of the
Company shall be such number as may be provided for in the Bylaws of
the Company irrespective of any increase made pursuant to the
provisions of this Section.
(D) Except as otherwise provided herein or required by law, holders of
Series A Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as provided herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever any quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in Section 2
are in arrears, then, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Series A Preferred Stock outstanding
shall have been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up of the Company) to the Series A
Preferred Stock, other than dividends paid or payable in such junior
shares of stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up of the
Company) with the Series A Preferred Stock, except dividends paid
ratably on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares of stock are then
entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up of the
Company) with the Series A Preferred Stock, provided that the Company
may at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of stock of the Company
ranking junior (either as to dividends or upon dissolution, liquidation
or winding up of the Company) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares of stock upon such
terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company unless the Company could, under paragraph (A) of this Section, purchase
or otherwise acquire such shares of stock at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall
become authorized but unissued shares of stock and may be reissued as shares of
Common Stock or as part of a new series of preferred or common stock to be
created by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
voluntary liquidation, dissolution or winding up of the Company, no distribution
shall be made to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up of the Company) to the
Series A Preferred Stock unless, prior thereto, the holders of Series A
Preferred Stock shall have received $1.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the "Series A Liquidation Preference"). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of Series A Preferred
Stock unless, prior thereto, the holders of Common Stock shall have received an
amount per share (the "Common Adjustment") equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in subparagraph C below to reflect such events as stock
splits, stock dividends and recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "Adjustment Number"). Following the payment of
the full amount of the Series A Liquidation Preference and the Common Adjustment
in respect of all outstanding shares of Series A Preferred Stock and Common
Stock, respectively, holders of Series A Preferred Stock and holders of Common
Stock shall receive their ratable and proportionate share of the remaining
assets to be distributed in the ratio, on a per share basis, of the Adjustment
Number to 1 (one) with respect to such Series A Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series A Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of the Series A Preferred
Stock and such parity shares of stock in proportion to their respective
liquidation preferences.
(C) In the event the Company shall at any time following May 12, 1999
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding shares of Common Stock or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, then in each
such case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Company shall enter
into any consolidation, merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case, the shares of
Series A Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is exchanged or changed.
In the event the Company shall at any time (i) declare any dividend on Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares
of Common Stock or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of Series A Preferred
Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 8. Redemption. The shares of Series A Preferred Stock shall not
be redeemable by the Company. The preceding sentence shall not limit the ability
of the Company to purchase or otherwise deal in such shares of stock to the
extent permitted by law.
Section 9. Ranking. The Series A Preferred Stock shall rank junior to
all other series of the Company's preferred stock (whether with or without par
value) as to the payment of dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. Amendment. Neither the Company's Articles of Restatement
nor any Articles Supplementary relating to the Series A Preferred Stock shall be
amended in any manner which would materially and adversely alter or change the
preferences, rights or other terms of the Series A Preferred Stock without the
affirmative vote of the holders of a majority or more of the outstanding Series
A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Shares of Series A Preferred Stock may
be issued in fractions of a share that are integral multiples of one-one
thousandth of a share of stock, which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends
and participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
SECOND: These Articles Supplementary have been approved by the Board
of Directors in the manner and by the vote required by law.
THIRD: The undersigned Chairman of the Board acknowledges these
Articles Supplementary to be the act of the Company and, as to all matters or
facts required to be verified under oath, such officer acknowledges that to the
best of his knowledge, information and belief, these matters and facts are true
in all material respects and that this statement is made under the penalties for
perjury.
IN WITNESS WHEREOF, these Articles Supplementary have been duly
executed by the undersigned officer this 12th day of May, 1999.
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ Essel W. Bailey, Jr.
--------------------------
Essel W. Bailey, Jr.
President
Attest:
By: /s/ David A. Stover
------------------------
David A. Stover
Vice President