CERTIFICATE OF DESIGNATIONS, NUMBER,
VOTING POWERS, PREFERENCES AND RIGHTS
OF
8.75% SERIES B CUMULATIVE REDEEMABLE PREFERRED STOCK
OF
CBL & ASSOCIATES PROPERTIES, INC.
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following resolution was duly
adopted by the Board of Directors of CBL & Associates Properties, Inc., a
Delaware corporation (hereinafter called the "Corporation"), with the
preferences and rights set forth therein relating to dividends, conversion,
redemption, dissolution and distribution of assets of the Corporation having
been fixed by the Board of Directors pursuant to authority granted to it under
Article IV of the Corporation's Amended and Restated Certificate of
Incorporation, as amended (the "Certificate of Incorporation"), and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware:
RESOLVED: That, pursuant to authority conferred upon the Board of Directors
by the Amended and Restated Certificate of Incorporation of the Corporation, the
Board of Directors hereby authorizes the issuance of 2,000,000 shares of 8.75%
Series B Cumulative Redeemable Preferred Stock, $.01 par value, of the
Corporation, and hereby fixes the designations, powers, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of such shares, in addition
to those set forth in such Certificate of Incorporation, as follows:
1. Designation and Amount.
The shares of such series shall be designated "8.75% Series B Cumulative
Redeemable Preferred Stock" (the "Series B Preferred Stock") and the number of
shares constituting such series shall be 2,000,000. The designations, powers,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof, of the Series B
Preferred Shares shall be subject in all cases to the provisions of Article IV
of the Certificate of Incorporation regarding limitations on beneficial and
constructive ownership of the Corporation's capital stock.
2. Dividends and Distribution Rights.
(a) Holders of Series B Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors of the Corporation (the "Board of
Directors"), out of assets
of the Corporation legally available for the payment of dividends, cumulative
preferential cash dividends at the rate of 8.75% per annum of the $50.00
liquidation preference. Such dividends shall be cumulative from the date of the
original issue by the Corporation of shares of Series B Preferred Stock and
shall be payable quarterly in arrears on the 30th day of March, June, September,
and December of each year or, if not a business day, the next succeeding
business day (each, a "Dividend Payment Date"). The first dividend shall be paid
on June 30, 2002. Such first dividend and any dividend payable on the Series B
Preferred Stock for any partial dividend period shall be 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
Corporation at the close of business on the applicable record date, which shall
be the 15th day of the calendar month in which the applicable Dividend Payment
Date falls or on such other date designated by the Board of Directors for the
payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on the Series B Preferred Stock shall be declared by the
Board of Directors or paid or set apart for payment by the Corporation at such
time as the terms and provisions of any agreement of the Corporation, including
any agreement relating to its indebtedness, prohibits such 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 shall be restricted or prohibited
by law.
(c) Notwithstanding anything contained herein to the contrary, dividends on
the Series B Preferred Stock shall accrue whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment of
such dividends, and whether or not such dividends are declared. Accrued but
unpaid dividends on the Series B Preferred Stock shall accumulate as of the
Dividend Payment Date on which they first become payable.
(d) Except as set forth in the next sentence, no dividends shall be
declared or paid or set apart for payment on any shares of Corporation's Common
Stock, $.01 par value ("Common Stock"), or shares of any other class or series
of capital stock of the Corporation ranking, as to dividends, on a parity with
or junior to the Series B Preferred Stock (other than a dividend paid in shares
of Common Stock or in shares of any other class or series of capital stock
ranking junior to the Series B Preferred Stock as to dividends and upon
liquidation) for any period unless full cumulative dividends on the Series B
Preferred Stock for all past dividend periods and the then current dividend
period shall have been or contemporaneously are (i) declared and paid in cash or
(ii) declared and a sum sufficient for the payment thereof in cash is set apart
for such payment. When dividends are not paid in full (or a sum sufficient for
such full payment is not so set apart) upon the Series B Preferred Stock and the
shares of any other series of preferred stock ranking on a parity as to
dividends with the Series B Preferred Stock, all dividends declared upon the
Series B Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with the Series B Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share of Series B Preferred
Stock and such other series of preferred stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the Series B Preferred
Stock and such other series of preferred stock (which shall not include any
accrual in respect of unpaid dividends on such other series of preferred stock
for prior dividend periods if such other series of preferred 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
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respect of any dividend payment or payments on the Series B Preferred Stock
which may be in arrears.
(e) Except as provided in paragraph 2(d), unless full cumulative dividends
on the Series B Preferred Stock 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 payment for all past dividend periods and the
then current dividend period, no dividends (other than in Common Stock or other
capital stock ranking junior to the Series B Preferred Stock as to dividends and
upon liquidation) shall be declared or paid or set aside for payment or other
dividend shall be declared or made upon the Common Stock or any other capital
stock of the Corporation ranking junior to or on parity with the Series B
Preferred Stock as to dividends or amounts upon liquidation nor shall any shares
of Common Stock, or any other shares of capital stock of the Corporation ranking
junior to or on a parity with the Series B Preferred Stock as to dividends or
upon liquidation, shall be redeemed, purchased or otherwise acquired for any
consideration (or any moneys be paid to or made available for a sinking fund for
the redemption of any such shares) by the Corporation (except by conversion into
or exchange for other shares of capital stock of the Corporation ranking junior
to the Series B Preferred Stock as to dividends and upon liquidation and except
for the acquisition of shares that have been designated as "Shares-in-Trust" in
accordance with the terms of the Certificate of Incorporation).
(f) Holders of shares of Series B Preferred Stock shall not be entitled to
any dividend, whether payable in cash, property or shares of stock, in excess of
full cumulative dividends on the Series B Preferred Stock as provided above. Any
dividend payment made on the Series B Preferred Stock shall first be credited
against the earliest accrued but unpaid dividends due with respect to such
shares which remains payable.
3. Liquidation Rights.
Upon any voluntary or involuntary liquidation, dissolution or winding-up of
the affairs of the Corporation, the holders of shares of Series B Preferred
Stock shall be entitled to be paid out of the assets of the Corporation 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), before any distribution or
payment shall be made to holders of share of Common Stock or any other class or
series of capital stock of the Corporation ranking junior to the Series B
Preferred Stock as to liquidation rights. In the event that, upon such voluntary
or involuntary liquidation, dissolution or winding-up, the available assets of
the Corporation are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of Series B Preferred Stock and the
corresponding amounts payable on all shares of other classes or series of
capital stock of the Corporation ranking on a parity with the Series B Preferred
Stock in the distribution of assets, then the holders of the Series B Preferred
Stock and all other such classes or series of shares of capital stock shall
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled. Holders of Series B Preferred Stock shall be entitled to written
notice of any such liquidation. After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of Series B
Preferred Stock will have no right or claim to any of the remaining assets of
the Corporation. The consolidation or merger of the Corporation with or into any
other corporation, trust or entity
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or of any other corporation, trust or other entity, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Corporation shall not be deemed to constitute a liquidation, dissolution or
winding-up of the Corporation.
4. Redemption.
(a) Shares of Series B Preferred Stock shall not be redeemable prior to
June 14, 2007; provided, however, that the Corporation may, prior to such date
and in accordance with the terms of the Certificate of Incorporation, purchase
shares of Series B Preferred Stock designated as "Shares-In-Trust" thereunder.
On or after June 14, 2007, the Corporation, at its option upon not less than 30
nor more than 60 days' written notice, may redeem the Series B Preferred Stock,
in whole or in part, at any time or from time to time, for cash at a redemption
price of $50.00 per share, plus all accrued and unpaid dividends thereon to the
date fixed for redemption (except as provided below), without interest. If fewer
than all of the outstanding shares of Series B Preferred Stock are to be
redeemed, the shares of Series B Preferred Stock to be redeemed shall be
redeemed pro rata (as nearly as may be practicable without creating fractional
shares) or by lot or by any other equitable method determined by the
Corporation. Holders of Series B Preferred Stock to be redeemed shall surrender
such Series B Preferred Stock at the place designated in such notice and shall
be entitled to the redemption price and any accrued and unpaid dividends payable
upon such redemption following such surrender. If notice of redemption of any
Series B Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Corporation in trust for the benefit of
the holders of any shares of Series B Preferred Stock so called for redemption,
then from and after the redemption date dividends shall cease to accrue on such
Series B Preferred Stock, such shares of Series B Preferred Stock shall no
longer be deemed outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price plus any accrued and
unpaid dividends payable upon such redemption. Nothing herein shall prevent or
restrict the Company's right or ability to purchase, from time to time either at
a public or a private sale, of the whole, or any part of the Series B Preferred
Stock at such price or prices as the Company may determine, subject to the
provisions of applicable law.
(b) Unless full cumulative dividends on all Series B Preferred Stock shall
have been or contemporaneously are declared and paid in cash or declared and a
sum sufficient for the payment thereof in cash set apart for payment for all
past dividend periods and the then current dividend period, no Series B
Preferred Stock shall be redeemed unless all outstanding shares of Series B
Preferred Stock are simultaneously redeemed and the Corporation shall not
purchase or otherwise acquire directly or indirectly any shares of Series B
Preferred Stock (except by exchange for shares of capital stock of the
Corporation ranking junior to the Series B Preferred Stock as to dividends and
amounts upon liquidation); provided, however, that the foregoing shall not
prevent the purchase by the Corporation in accordance with the terms of the
Certificate of Incorporation of shares of the Corporation designated as
"Shares-in-Trust" thereunder or the purchase or acquisition of Series B
Preferred Stock pursuant to a purchase or exchange offer made on the same terms
to holders of all outstanding shares of Series B Preferred Stock.
(c) Notice of redemption shall be given by publication in a newspaper of
general circulation in the City of New York, such publication to be made once a
week for two successive weeks commencing not less than 30 nor more than 60 days
prior to the redemption date. A
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similar notice shall be mailed by the Corporation, postage prepaid, not less
than 30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the shares of Series B Preferred Stock to be
redeemed at their respective addresses as they appear on the share transfer
records of the Corporation. No failure to give such notice or any defect thereto
or in the mailing thereof shall affect the validity of the proceedings for the
redemption of any Series B Preferred Stock except as to a holder to whom notice
was defective or not given. Each notice shall state (i) the redemption date;
(ii) the redemption price; (iii) the number of shares of Series B Preferred
Stock to be redeemed; (iv) the place or places where certificates for shares of
Series B Preferred Stock are to be surrendered for payment of the redemption
price; and (v) that dividends on the Series B Preferred Stock to be redeemed
shall cease to accrue on such redemption date. If fewer than all of the shares
of Series B Preferred Stock held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of shares of Series B
Preferred Stock held by such holder to be redeemed.
(d) Immediately prior to any redemption of Series B Preferred Stock, the
Corporation shall pay, in cash, any accumulated and unpaid dividends through the
redemption date, unless a redemption date falls after a Dividend Record Date and
prior to the corresponding Dividend Payment Date, in which case each holder of
Series B Preferred at the close of business of such Dividend Record Date shall
be entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date. Except as provided above, the Corporation shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on Series B Preferred
Stock for which a notice of redemption has been given.
(e) All shares of the Series B Preferred Stock redeemed or repurchased
pursuant to this paragraph 4 shall be retired and shall be restored to the
status of authorized and unissued shares of preferred stock, without designation
as to series and may thereafter be reissued as shares of any series of preferred
stock.
(f) The Series B Preferred Stock shall have no stated maturity and shall
not be subject to any sinking fund or mandatory redemption; provided, however,
that the Series B Preferred Stock owned by a stockholder in excess of the
Ownership Limit (as defined in the Certificate of Incorporation) shall be
subject to the provisions of Article IV of the Certificate of Incorporation.
5. Voting Rights.
(a) Holders of the Series B Preferred Stock shall not have any voting
rights, except as provided by applicable law and as set forth in this paragraph
5.
(b) Whenever dividends on any shares of Series B Preferred Stock shall be
in arrears for six or more consecutive or non-consecutive quarterly periods (a
"Preferred Dividend Default"), the holders of such Series B Preferred Stock
(voting separately as a class with all other series of preferred stock of the
Corporation 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 directors of the Corporation (the "Preferred
Directors") at the next annual meeting of stockholders and at each subsequent
meeting until all dividends accumulated on such Series B
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Preferred Stock 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 Directors will be increased by two directors. If and when all
accumulated dividends and the accrued dividend for the then current dividend
period shall have been paid on such Series B Preferred Stock and all series of
Parity Preferred upon which like voting rights have been conferred and are
exercisable, the term of office of each Preferred Director so elected shall
terminate. So long as a Preferred Dividend Default shall continue, any vacancy
in the office of a Preferred Director may be filled by written consent of the
Preferred Director remaining in office, or if none remains in office, by a vote
of the holders of record of a majority of the outstanding Series B Preferred
Stock when they have the voting rights described above (voting separately as a
class with all series of Parity Preferred upon which like voting rights have
been conferred and are exercisable). Each of the Preferred Directors shall be
entitled to one vote on any matter.
(c) So long as any shares of Series B Preferred Stock remain outstanding,
the Corporation shall not, without the affirmative vote or consent of the
holders of two-thirds of the shares of Series B Preferred Stock 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 capital stock
ranking prior to the Series B Preferred Stock with respect to payment of
dividends or the distribution of assets upon liquidation, dissolution or
winding-up of the Corporation or reclassify any authorized shares of capital
stock of the Corporation 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
Certificate of Incorporation or this Certificate of Designations, 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 Stock 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 Stock remains outstanding with the terms thereof materially unchanged,
taking into account that, upon the occurrence of an Event, the Company 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 B Preferred Stock and provided further that (A) any
increase in amount of the authorized Preferred Stock or the creation or issuance
of any other Series B Preferred Stock or (B) any increase in the number of
authorized shares of Series B Preferred Stock or any other series of Preferred
Stock in each case ranking on a parity with or junior to the Series B Preferred
Stock of such series with respect to the 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.
(d) The foregoing voting provisions of this paragraph 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 B
Preferred Stock shall have been redeemed or called for redemption upon proper
notice and sufficient funds, in cash, shall have been deposited in trust to
effect such redemption.
(e) In any matter in which the Series B Preferred Stock may vote (as
expressly provided herein or as may be required by law), each share of Series B
Preferred Stock shall be
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entitled to one vote, except that when any other series of preferred stock of
the Corporation shall have the right to vote with the Series B Preferred Stock
as a single class on any matter, the Series B Preferred Stock and such other
series shall have with respect to such matters one vote per each $50.00 of
stated liquidation preference.
6. Conversion.
The shares of Series B Preferred Stock shall not be convertible into or
exchangeable for any other property or securities of the Corporation.
7. Ranking.
The Series B Preferred Stock shall, with respect to dividend rights and
rights upon liquidation, dissolution or winding-up of the Corporation, rank (a)
senior to the Common Stock and to all equity securities ranking junior to such
Series B Preferred Stock; (b) on a parity with all equity securities issued by
the Corporation the terms of which specifically provide that such equity
securities rank on a parity with the Series B Preferred Stock; and (c) junior to
all equity securities issued by the Corporation (in accordance with this
Certificate of Designations) the terms of which specifically provide that such
equity securities rank senior to the Series B Preferred Stock. For purposes of
this paragraph 7, the term "equity securities" does not include convertible debt
securities.
8. Exclusion of Other Rights.
The Series B Preferred Stock shall not have any preferences or other
rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption other than
expressly set forth in the Certificate of Incorporation and this Certificate of
Designations.
9. 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.
10. Severability of Provisions.
If any preferences or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption of the Series B Preferred Stock set forth in the
Certificate of Incorporation and this Certificate of Designations is 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 B Preferred Stock set forth in the Certificate of
Incorporation 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 B Preferred Stock herein set forth shall
be deemed dependent upon any other provision thereof unless so expressed
therein.
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11. No Preemptive Rights.
No holder of Series B Preferred Stock shall be entitled to any preemptive
rights to subscribe for or acquire any unissued shares of capital stock of the
Corporation (whether now or hereafter authorized) or securities of the
Corporation convertible into or carrying a right to subscribe to or acquire
shares of capital stock of the Corporation.
SIGNATURE APPEARS ON NEXT PAGE
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IN WITNESS WHEREOF, CBL & Associates Properties, Inc. has caused this
Certificate of Designations, Number, Voting Powers, Preferences and Rights of
Series B Cumulative Redeemable Preferred Stock to be duly executed by its Vice
Chairman of the Board and Chief Financial Officer this 11th day of June, 2002.
CBL & Associates Properties, Inc.
By: /s/ John N. Foy
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John N. Foy
Vice Chairman of the Board
and Chief Financial Officer