EXHIBIT 3.3
HOSPITALITY PROPERTIES TRUST
ARTICLES SUPPLEMENTARY
HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust,
having its principal office in Baltimore City, Maryland (hereinafter called the
"Trust"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Pursuant to authority expressly vested in the Board of Trustees
by Article V, Section 5.1 of the Amended and Restated Declaration of Trust of
the Trust, dated August 21, 1995, as amended, (the "Declaration"), the Board of
Trustees has duly reclassified 1,000,000 unissued Preferred Shares, of the Trust
(from among the 100,000,000 Preferred Shares, without par value, of the Trust
which are authorized) into 1,000,000 Junior Participating Preferred Shares, par
value $.01 per share, of the Trust.
SECOND: The terms (including preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends, qualifications, or
terms or conditions of redemption) of the Junior Participating Preferred Shares,
par value $.01 per share, are as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Junior Participating Preferred Shares" and the number of shares
constituting such series shall be 1,000,000.
2. Dividends and Distributions.
(a) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Shares ranking prior and superior
to the Junior Participating Preferred Shares with respect to dividends
(if any), the holders of Junior Participating Preferred Shares shall be
entitled to receive, when, as and if declared by the Board out of funds
legally available for the purpose, quarterly dividends payable in cash
on the 15th 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 Junior Participating Preferred Share or
fraction thereof, in an amount per share (rounded to the nearest cent)
equal to the greater of (X) $5 or (Y) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, plus 100 times the aggregate per share
amount (payable in kind) of all noncash dividends or other
distributions, other than a dividend payable in common shares of
beneficial interest, par value $.01 per share, of the Trust (the
"Common Shares") or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares, since
the immediately preceding Quarterly Dividend Payment Date, or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any Junior Participating Preferred Share or fraction
thereof. In the event the Trust shall at any time after May 20, 1997
(the "Rights Declaration Date") (i) declare any
dividend on Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the
amount to which holders of shares of Junior Participating Preferred
Shares were entitled immediately prior to such event under clause (Y)
of the preceding sentence shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which
is the number of Common Shares that were outstanding immediately prior
to such event.
(b) The Board shall declare a dividend or distribution on the
Junior Participating Preferred Shares as provided in paragraph (a)
above immediately after it declares a dividend or distribution on the
Common Shares (other than a dividend payable in Common Shares);
provided that, in the event no dividend or distribution shall have been
declared on the Common Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $5 per share on the Junior Participating
Preferred Shares shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding Junior Participating Preferred Shares from the Quarterly
Dividend Payment Date next preceding the date of issue of such Junior
Participating Preferred Shares unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for
the determination of holders of Junior Participating Preferred Shares
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 Junior Participating 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 share-by-share basis
among all such shares at the time outstanding. The Board may fix a
record date for the determination of holders of Junior Participating
Preferred Shares entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not less than
10 and not more than 60 days prior to the date fixed for the payment
thereof.
3. Voting Rights. The holders of Junior Participating Preferred Shares
shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set
forth, each Junior Participating Preferred Share shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Trust. In the event that the Board shall at any
time after the Rights Declaration Date (i) declare any dividend on
Common Shares payable in Common Shares, (ii) subdivide the outstanding
Common Shares or (iii) combine the outstanding Common Shares into a
smaller number of shares, then in each such case the number of votes
per share to which holders of Junior Participating Preferred Shares
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a
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fraction the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which
is the number of Common Shares that were outstanding immediately prior
to such event.
(b) Except as otherwise provided herein or by law, the holders
of Junior Participating Preferred Shares and the holders of Common
Shares shall vote together as one class on all matters submitted to a
vote of shareholders of the Trust.
(c)
(i) If at any time dividends on any Junior Participating
Preferred Shares shall be in arrears in an amount
equal to six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the
beginning of a period (a "Default Period") which
shall extend until such time when all accrued and
unpaid dividends for all previous quarterly dividend
periods and for the current quarterly dividend period
on all Junior Participating Preferred Shares then
outstanding shall have been declared and paid or set
apart for payment. During each Default Period, all
holders of Preferred Shares (including holders of the
Junior Participating Preferred Shares) with dividends
in arrears in an amount equal to six (6) quarterly
dividends thereon, voting as a class, irrespective of
series, shall have the right to elect two (2)
Trustees.
(ii) During any Default Period, such voting right of the
holders of Junior Participating Preferred Shares may
be exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section 3(c)
or at an annual meeting of shareholders, and
thereafter at annual meetings of shareholders,
provided that neither such voting right nor the right
of the holders of any other series of Preferred
Shares, if any, to increase, in certain cases, the
authorized number of Trustees shall be exercised
unless the holders of ten percent (10%) in number of
Preferred Shares outstanding shall be present in
person or by proxy. The absence of a quorum of the
holders of Common Shares shall not affect the
exercise by the holders of Preferred Shares of such
voting right. At any meeting at which the holders of
Preferred Shares shall exercise such voting right
initially during an existing Default Period, they
shall have the right, voting as a class, to elect
Trustees to fill up to two (2) vacancies, if any, in
the Board or, if such right is exercised at an annual
meeting, to elect two (2) Trustees. The holders of
Preferred Shares shall have the right to make such
increase in the number of Trustees as shall be
necessary to permit the election by them at any
special meeting of two (2) Trustees. After the
holders of Preferred Shares shall have exercised
their right to elect Trustees in any Default Period
and during the continuance of such period, the number
of Trustees shall not be increased or decreased
except by vote of the holders of Preferred Shares as
herein provided or
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pursuant to the rights of any equity securities
ranking senior to or pari passu with the Junior
Participating Preferred Shares, if any.
(iii) Unless the holders of Preferred Shares shall, during
an existing Default Period, have previously exercised
their right to elect Trustees, the Board may order,
or any shareholder or shareholders owning in the
aggregate not less than ten percent (10%) of the
total number of Preferred Shares outstanding,
irrespective of series, may request, the calling of a
special meeting of the holders of Preferred Shares,
which meeting shall thereupon be called by the Board
or the Chief Operating Officer of the Trust. The
Secretary of the Trust shall give notice of such
meeting and of any annual meeting at which holders of
Preferred Shares are entitled to vote pursuant to
this paragraph (c)(iii) to each holder of record of
Preferred Shares by mailing a copy of such notice to
him at his last address as the same appears on the
books of the Trust. Such meeting shall be called for
a time not earlier than fifteen (15) days and not
later than sixty (60) days after such order or
request. If such meeting is not called within sixty
(60) days after such order or request, such meeting
may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than
ten percent (10%) of the total number of Preferred
Shares outstanding. Notwithstanding the provisions of
this paragraph (c)(iii), no such special meeting
shall be called during the period within sixty (60)
days immediately preceding the date fixed for the
next annual meeting of the shareholders.
(iv) In any Default Period, the holders of Common Shares,
and (if applicable) other classes of Shares of
beneficial interest of the Trust (all Trust shares
being referred to as "Shares"), shall continue to be
entitled to elect the whole number of Trustees until
the holders of Preferred Shares shall have exercised
their rights to elect two (2) Trustees voting as a
class, after the exercise of which right, (X) the
Trustees so elected by the holders of Preferred
Shares shall continue in office until their
successors shall have been elected by such holders or
until the expiration of the Default Period, and (Y)
any vacancy in the Board shall (except as provided in
paragraph (c)(ii) of this Section 3) be filled by
vote of a majority of the remaining Trustees
theretofore elected by the holders of the class or
classes of Shares which elected the Trustee whose
office shall have become vacant. References in this
paragraph (c) to Trustees elected by the holders of a
particular class of Shares shall include Trustees
elected by such Trustees to fill vacancies as
provided in clause (Y) of the foregoing sentence.
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(v) Immediately upon the expiration of a Default Period,
(X) the right of the holders of Preferred Shares as a
class to elect Trustees shall cease, (Y) the term of
any Trustees elected by the holders of Preferred
Shares as a class shall terminate, and (Z) the number
of Trustees shall be such number as may be provided
for in the Declaration, any Article Supplementary or
the By-Laws of the Trust, irrespective of any
increase made pursuant to the provisions of paragraph
(c)(ii) of this Section 3 such number being subject,
however, to change thereafter in any manner provided
by law, or in the Declaration, any Article
Supplementary or the By-Laws of the Trust). Any
vacancies in the Board effected by the provisions of
clauses (Y) and (Z) in the preceding sentence may be
filled by a majority of the remaining Trustees.
(d) Except as set forth herein, holders of Junior
Participating Preferred Shares 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 Shares as set forth herein) for
taking any trust action.
4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Junior Participating Preferred Shares as
provided in Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on
Junior Participating Preferred Shares outstanding shall have been paid
in full, the Trust shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise
acquire for consideration any Shares ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Junior
Participating Preferred Shares;
(ii) declare or pay dividends on or make any other
distributions on any Shares ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Junior
Participating Preferred Shares except dividends paid
ratably on the Junior Participating Preferred Shares
and all such parity Shares on which dividends are
payable or in arrears in proportion to the total
amounts to which the holders of all such Shares are
then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration Shares ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Junior Participating Preferred
Shares provided that the Trust may at any time
redeem, purchase or otherwise acquire any such parity
Shares in exchange for any Shares ranking junior
(either as to
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dividends or upon dissolution, liquidation or winding
up) to the Junior Participating Preferred Shares;
(iv) purchase or otherwise acquire for consideration any
Junior Participating Preferred Shares, or any Shares
ranking on a parity with the Junior Participating
Preferred Shares, except pursuant to Section 8 or in
accordance with a purchase offer made in writing or
by publication (as determined by the Board) to all
holders of such shares upon such terms as the Board,
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 Trust shall not permit any subsidiary of the Trust to
purchase or otherwise acquire for consideration any Shares of the Trust
unless the Trust could, under paragraph (a) of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
5. Required Shares. Any Junior Participating Preferred Shares,
purchased or otherwise acquired by the Trust in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued Preferred Shares
and may be reissued as part of a new series of Preferred Shares to be created by
resolution or resolutions of the Board, subject to the conditions and
restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(a) Upon any liquidation (voluntary or otherwise), dissolution
or winding up of the Trust, no distribution shall be made to the
holders of Shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Participating
Preferred Shares, unless, prior thereto, the holders of Junior
Participating Preferred Shares shall have received $100.00 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
"Liquidation Preference"). Following the payment of the full amount of
the Liquidation Preference, no additional distributions shall be made
to the holders of Junior Participating Preferred Shares, unless, prior
thereto, the holders of Common Shares shall have received an amount per
share (the "Common Adjustment") equal to the quotient obtained by
dividing (i) the Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph (c) below to reflect such events
as stock splits, stock dividends and recapitalization with respect to
the Common Shares) (such number in clause (ii) immediately above being
referred to as the "Adjustment Number"). Subject to the rights of any
other series of Preferred Shares then outstanding, if any, following
the payment of the full amount of the Liquidation Preference and the
Common Adjustment in respect of all outstanding shares of Junior
Participating Preferred Shares and Common Shares, respectively, holders
of Junior Participating Preferred Shares and holders of shares of
Common Shares shall receive their ratable and proportionate share of
the remaining assets to be distributed in the
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ratio of the Adjustment Number to one (1) with respect to such Junior
Participating Preferred Shares and Common Shares, 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 Liquidation
Preference and the liquidation preferences of all other series of
Preferred Shares, if any, which rank on a parity with the Junior
Participating Preferred Shares, then such remaining assets shall be
distributed ratably to the holders of such parity Shares (including the
Junior Participating Preferred Shares) in proportion to their
respective liquidation preferences. In the event, however, that there
are not sufficient assets available to permit payment in full of the
Common Adjustment after satisfaction of the liquidation preferences of
all series of Preferred Shares, if any, then such remaining assets
shall be distributed ratably to the holders of Common Shares.
(c) In the event the Trust shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Shares payable in
Common Shares, (ii) subdivide the outstanding Common Shares or (iii)
combine the outstanding Common Shares 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 Common
Shares outstanding immediately after such event and the denominator of
which is the number of shares of Common Shares that were outstanding
immediately prior to such event.
7. Consolidation, Merger, etc. In case the Trust shall enter into any
consolidation, merger, combination or other transaction in which the Common
Shares are exchanged for or changed into other stock or securities, cash or any
other property, then in any such case the Junior Participating Preferred Shares
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 100
times the aggregate amount of shares, securities, cash or any other property
(payable in kind), as the case may be, into which or for which each Common Share
is changed or exchanged. In the event the Trust shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Shares payable in
Common Shares, (ii) subdivide the outstanding Common Shares or (iii) combine the
outstanding Common Shares 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 Junior Participating Preferred Shares shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
Common Shares outstanding immediately after such event and the denominator of
which is the number of Common Shares that were outstanding immediately prior to
such event.
8. Redemption. The Junior Participating Preferred Shares shall not be
redeemable.
9. Ranking. The Junior Participating Preferred Shares shall rank junior
to all other series of the Trust's Preferred Shares as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
10. Amendment. At such time as Junior Participating Preferred Shares
are outstanding, the Declaration shall not be amended, nor shall an Article
Supplementary of the Trust be filed or amended, in any manner which would
materially alter or change the powers, preferences or special
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rights of the Junior Participating Preferred Shares so as to affect them
adversely without the affirmative vote of the holders of a majority or more of
the outstanding Junior Participating Preferred Shares voting separately as a
class.
11. Fractional Shares. Junior Participating Preferred Shares may be
issued in fractions of a share which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and have the benefit of all other rights of a
holder of Junior participating Preferred Shares.
IN WITNESS WHEREOF, HOSPITALITY PROPERTIES TRUST has caused these
Articles Supplementary to be signed in its name and on its behalf by a majority
of its entire Board of Trustees and witnessed by its Secretary on May 28, 1997.
WITNESS: HOSPITALITY
PROPERTIES TRUST
/s/ John G. Murray By: /s/ Gerard M. Martin
John G. Murray, Gerard M. Martin, Trustee
Secretary
By: /s/ Barry M. Portnoy
Barry M. Portnoy, Trustee
By: /s/ William J. Sheehan
William J. Sheehan, Trustee
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THE UNDERSIGNED, President of HOSPITALITY PROPERTIES TRUST, with
respect to 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 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/ John G. Murray
John G. Murray, President
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