SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
Merry Land & Investment Company, Inc.
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(Exact name of registrant as specified in its charter)
Georgia 58-0961876
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(State of incorporation or organization) (I.R.S. Employer
Identification no.)
624 Ellis Street, Augusta, Georgia 30901
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), check the following box. [X]
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this form
relates: 33-65067.
Securities to be registered pursuant to Section 12(b) of the Act:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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7.625% Series E
Cumulative Redeemable Preferred Stock New York Stock Exchange
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
n/a
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(Title of Class)
Filed: February 11, 1998
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
A full description of the Registrant's 7.625% Series E
Cumulative Redeemable Preferred Stock, without par value, $25.00
liquidation preference, is contained in a Rule 424(b)Prospectus Supplement
filed on February 6, 1998 supplementing the Registrant's Shelf Registration
Statement No. 33-65067 filed on Form S-3 which became effective on January
22, 1996.
ITEM 2. EXHIBITS.
A. Proposed form of Certificate for the 7.625% Series E
Cumulative Redeemable Preferred Stock, without par value, $25.00
liquidation preference.
B. Proposed form of Articles of Amendment for the 7.625%
Series E Cumulative Redeemable Preferred Stock, without par value, $25.00
liquidation preference.
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Signature Blocks on Following Page
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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.
Merry Land & Investment
Company, Inc.
(Registrant)
Date: February 11, 1998 By: /s/
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Dorrie E. Green
As Its Vice President
EXHIBIT "A"
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[NUMBER] [SHARES]
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SERIES E CUMULATIVE NO PAR VALUE
REDEEMABLE PREFERRED STOCK CUSIP 590438 70 1
This Certificate is See Reverse for
Transferable in New York, Certain Definitions
New York and in Charlotte,
North Carolina
MERRY LAND & INVESTMENT COMPANY, INC.
Incorporated Under the Laws of the State of Georgia
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Fully Paid and Non-Assessable Shares of the
Series E Cumulative Redeemable Preferred Stock of
Merry Land & Investment Company, Inc. transferable in person or by duly
authorized attorney, upon surrender of this Certificate, properly endorsed.
This Certificate is not valid until countersigned and registered by the
Transfer Agent and Registrar
CERTIFICATE OF STOCK
Witness, the facsimile seal of the Corporation and the facsimile signatures
of the duly authorized officers.
Dated {SEAL}
Merry Land & Investment
Company, Inc.
W. Hale Barrett Corporate Seal W. Tennent Houston
Secretary 1966 President
Georgia
{SEAL}
{Printed sideways on bottom right of Certificate:}
Countersigned and Registered:
FIRST UNION NATIONAL BANK
(Charlotte, North Carolina) Transfer Agent
By and Registrar
Authorized Signature
{End of sideways printing.}
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MERRY LAND & INVESTMENT COMPANY, INC.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER, UPON REQUEST AND
WITHOUT CAUSE, A FULL STATEMENT OF THE DESIGNATIONS, RELATIVE RIGHTS,
PREFERENCES, RESTRICTIONS ON TRANSFER AND LIMITATIONS OF THE SHARES OF EACH
CLASS AND SERIES AUTHORIZED TO BE ISSUED AND THE VARIATIONS IN THE RELATIVE
RIGHTS AND PREFERENCES BETWEEN THE SHARES OF EACH SERIES OF PREFERRED STOCK
SO FAR AS THE SAME HAVE BEEN FIXED AND DETERMINED.
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
UNIF GIFT MIN ACT -- __________ Custodian __________
(Qual) (Minor)
under Uniform Gifts to Minors Act _______________
(State)
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
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 Number of
Assignee
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Please Print or Typewrite Name and Address Including
Postal Zip Code of Assignee
_________________________________________________________________
_________________________________________________________________
__________________________________________________________ Shares
of the Series E Cumulative Redeemable Preferred Stock
represented by the within Certificate, and do hereby irrevocably
constitute and appoint _________________________________ Attorney
to transfer the said stock on the books of the within-named
Corporation with full power of substitution in the premises.
Dated, ____________________
__________________________________________________
NOTICE: The Signature to this Assignment must Correspond
with the Name as Written upon the Face of the
Certificate in Every Particular, Without
Alteration or Enlargement, or Any Change Whatever.
SIGNATURE(S) GUARANTEED: ___________________________________
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
S.E.C. RULE 17Ad-15.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN,
MUTILATED OR DESTROYED, THE CORPORATION WILL REQUIRE A BOND OF
INDEMNITY AS A CONDITION TO THE ISSUANCE OF A REPLACEMENT
CERTIFICATE.
EXHIBIT "B"
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ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION OF
MERRY LAND & INVESTMENT COMPANY, INC.
RE: SERIES E CUMULATIVE REDEEMABLE PREFERRED STOCK
1. The name of the corporation is Merry Land & Investment
Company, Inc.
2. This Amendment was adopted by the Board of Directors.
Pursuant to the provisions of Section 14-2-602 Official Code of
Georgia Annotated, no shareholder action was required.
3. This Amendment was adopted on February 4, 1998.
4. The text of this Amendment is as follows:
FIRST: Pursuant to authority expressly vested in the Board of
directors of the Corporation by Article Five of the Articles of
Incorporation, as amended (the "Articles"), the Board of
Directors on June22, 1993, duly divided and classified 4,600,000
shares of the Preferred Stock of the Corporation, without par
value, into a class designated Series A Cumulative Convertible
Preferred Stock (the "Series A Preferred Stock"),and provided for
the issuance of such Series A Preferred Stock.
SECOND: On October 31, 1994, the Board of Directors duly
divided and classified 4,000,000 shares of Preferred Stock of the
Corporation, without par value, into a class of Series B
Cumulative Convertible Preferred Stock("the Series B Preferred
Stock"), and provided for the issuance of such Series B Stock.
THIRD: On March 7, 1995, the Board of Directors duly divided
and classified 4,600,000 shares of the Preferred Stock of the
Corporation, without par value, into a class of Series C
Cumulative Convertible Preferred Stock ("the Series C Preferred
Stock"),and provided for the issuance of such Series C Preferred
Stock.
FOURTH: On December 5, 1996, the Board of Directors duly
divided and classified 1,000,000 shares of Preferred Stock of the
Corporation, without par value, into a class of Series D
Cumulative Redeemable Preferred Stock ("the Series D Preferred
Stock),and provided for the issuance of such Series D Preferred
Stock.
FIFTH: The Board of Directors has now duly divided and
classified 4,000,000 shares of Preferred Stock of the
Corporation, without par value, into a class of Series E
Cumulative Redeemable Preferred Stock and provided for the
issuance of such Series E Cumulative Redeemable Preferred Stock.
SIXTH: The terms of the Series E Cumulative Redeemable
Preferred Stock established by the Board of Directors, in
addition to those set forth in Article FIVE of the Articles of
the Corporation are as follows:
ARTICLE V-E
Section 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Stock shall be designated as Series E Cumulative
Redeemable Preferred Stock (the "Series E Preferred Stock") and
4,000,000 shall be the number of shares of Preferred Stock
constituting such series.
Section 2. DEFINITIONS. For purposes of the Series E Preferred
Stock, the following terms shall have the meanings indicated:
"Board of Directors" shall mean the Board of Directors of the
Corporation or any committee authorized by such Board of
Directors to perform any of its responsibilities with respect to
the Series E Preferred Stock.
"Business Day" shall mean any day other than a Saturday, Sunday
or a day on which state or federally chartered banking
institutions in Augusta, Georgia or New York, New York are not
required to be open.
"Call Date" shall have the meaning set forth in paragraph (c) of
Section 5 hereof.
"Common Stock" shall mean the common stock of the Corporation,
without par value.
"Dividend Payment Date" shall mean the last calendar day of
March, June, September and December, in each year, commencing on
March 31,1998;PROVIDED, HOWEVER, that if any Dividend Payment
Date falls on any day other than a Business Day, the dividend
payment due on such Dividend Payment Date shall be paid no later
than the Business Day immediately following such Dividend Payment
Date.
"Dividend Periods" shall mean quarterly dividend periods
commencing on 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 Issue Date and end
on and include March 31, 1998).
"Issue Date" shall mean the date on which the Corporation first
issues a share of Series E Preferred Stock.
"Junior Stock" shall mean the Common Stock and any other class or
series of shares of the Corporation over which the Series E
Preferred Stock has preference or priority in the payment of
dividends or in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
"Parity Stock" shall have the meaning set forth in paragraph (b)
of Section 8 hereof.
"Person" shall mean any individual, firm, partnership,
corporation or other entity, and shall include any successor (by
merger or otherwise)of such entity.
"Press Release" shall have the meaning set forth in paragraph (b)
of Section 5 hereof.
"Series A Preferred Stock" shall mean the $1.75 Series A
Cumulative Convertible Preferred Stock, liquidation preference
$25.00 per share, authorized on June 22, 1993, which is, from
time to time, outstanding.
"Series B Preferred Stock" shall mean the $2.205 Series B
Cumulative Convertible Preferred Stock, liquidation preference
$25.00 per share, authorized on October 31, 1994, which is, from
time to time, outstanding.
"Series C Preferred Stock" shall mean the $2.15 Series C
Cumulative Convertible Preferred Stock, liquidation preference
$25.00 per share, authorized on March 7, 1995, which is, from
time to time, outstanding.
"Series D Preferred Stock" shall mean the $4.145 Series D
Cumulative Convertible Preferred Stock, liquidation preference
$50.00 per share, authorized on December 5, 1996, which is, from
time to time outstanding.
"Series E Preferred Stock" shall have the meaning set forth in
Section 1 hereof.
"Set apart for payment"shall be deemed to include, without any
action other than the following, the recording by the Corporation
in its accounting ledgers of any accounting or bookkeeping entry
which indicates, pursuant to a declaration of dividends or other
distribution by the Board of Directors, the allocation of funds
to be so paid on any series or class of capital stock of the
Corporation; PROVIDED, HOWEVER, that if any funds for any class
or series of Junior Stock or any class or series of stock ranking
on a parity with the Series E Preferred Stock as to the payment
of dividends are placed in a separate account of the Corporation
or delivered to a disbursing, paying or other similar agent, then
"set apart for payment" with respect to the Series E Preferred
Stock shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying r other similar
agent.
"Transfer Agent" means First Union National Bank, Charlotte,
North Carolina, or such other agent or agents of the Corporation
as may be designated by the Board of Directors or their designee
as the transfer agent for the Series E Preferred Stock.
"Voting Preferred Stock" shall have the meaning set forth in
Section 9 hereof.
Section 3. DIVIDENDS. (a) The holders of shares of the
Series E Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors, out of funds legally
available for that purpose, dividends payable in cash in an
amount per share of Series E Preferred Stock equal to $1.90625
per annum. Such dividends shall be cumulative from the Issue
Date, whether or not in any Dividend Period or Periods there
shall be funds of the Corporation legally available for the
payment of such dividends, and shall be payable quarterly, when,
as and if declared by the Board of Directors, in arrears on
Dividend Payment Dates, commencing on March 31, 1998. Each such
dividend shall be payable in arrears to the holders of record of
shares of the Series E Preferred Stock, as they appear on the
stock records of the Corporation at the close of business on such
record dates, which shall be on or about the 15th day of the
calendar months in which the Dividend Payment Dates fall or such
other dates not less than 10 days nor more than 60 days preceding
such Dividend Payment Dates thereof, as shall be fixed by the
Board of Directors. Accrued and unpaid dividends for any past
Dividend Periods may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to holders of
record on such date, not exceeding 45 days preceding the payment
date thereof, as may be fixed by the Board of Directors.
(b) The amount of dividends payable for each full Dividend
Period for the Series E Preferred Stock shall be computed by
dividing the annual dividend rate by four. The amount of
dividends payable for any period shorter or longer than a full
Dividend Period, on the Series E Preferred Stock shall be
computed on the basis of twelve 30-day months and a 360-day
year. Holders of shares of Series E Preferred Stock shall not be
entitled to any dividends, whether payable in cash, property or
stock, in excess of cumulative dividends, as herein provided, on
the Series E Preferred Stock. No interest, or sum of money in lieu
of interest, shall be payable in respect of any dividend payment
or payments on the Series E Preferred Stock that may be in
arrears.
(c) So long as any shares of the Series E Preferred Stock are
outstanding, no dividends, except as described in the immediately
following sentence, shall be declared or paid or set apart for
payment on any class or series of Parity Stock for any period
unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the
payment thereof set apart for such payment on the Series E
Preferred Stock for all Dividend Periods terminating on or prior
to the Dividend Payment Date on such class or series of Parity
Stock. When dividends are not paid in full or a sum sufficient
for such payment is not set apart, as aforesaid, all dividends
declared upon shares of the Series E Preferred Stock and all
dividends declared upon any other class or series of Parity Stock
shall be declared ratably in proportion to the respective amounts
of dividends accumulated and unpaid on the Series E Preferred
Stock and accumulated and unpaid on such Parity Stock.
(d) So long as any shares of the Series E Preferred Stock are
outstanding, no dividends (other than dividends or distributions
paid in shares of, or options, warrants or rights to subscribe
for or purchase shares of, Junior Stock), shall be declared or
paid or set apart for payment or other distribution declared or
made upon Junior Stock, nor shall Junior Stock be redeemed,
purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of shares of Common Stock made for
purposes of an employee incentive or benefit plan of the
Corporation or any subsidiary) for any consideration (or any
moneys be paid to or made available for a sinking fund for the
redemption of any shares of any such stock) by the Corporation,
directly or indirectly (except by conversion into or exchange for
Junior Stock), unless in each case (i) the full cumulative
dividends on all outstanding shares of the Series E Preferred
Stock and any other Parity Stock of the Corporation shall have
been paid or set apart for payment for all past Dividend Periods
with respect to the Series E Preferred Stock and all past
dividend periods with respect to such Parity Stock and (ii)
sufficient funds shall have been paid or set apart for the
payment of the dividend for the current Dividend Period with
respect to the Series E Preferred Stock and the current dividend
period with respect to such Parity Stock.
Section 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, before any payment or
distribution of the assets of the Corporation (whether capital or
surplus)shall be made to or set apart for the holders of Junior
Stock, the holders of the shares of Series E Preferred Stock
shall be entitled to receive Twenty-fifty Dollars ($25.00) per
share of Series E Preferred Stock plus an amount equal to all
dividends (whether or not earned or declared) accrued and unpaid
thereon to the date of final distribution to such holders; but
such holders shall not be entitled to any further payment. If,
upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation, or proceeds thereof,
distributable among the holders of the shares of Series E
Preferred Stock shall be insufficient to pay in full the
preferential amount aforesaid and liquidating payments on any
other shares of any class or series of Parity Stock, then such
assets, or the proceeds thereof, shall be distributed among the
holders of shares of Series E Preferred Stock and any such other
Parity Stock ratably in accordance with the respective amounts
that would be payable on such shares of Series E Preferred Stock
and any such other Parity Stock if all amounts payable thereon
were paid in full. For the purposes of this Section 4, (i) a
consolidation or merger of the Corporation with one or more
corporations, (ii) a sale or transfer of all or substantially all
of the Corporation's assets, or (iii) a statutory share exchange
shall not be deemed to be a liquidation, dissolution or winding
up, voluntary or involuntary, of the Corporation.
(b) Subject to the rights of the holders of shares of any
series or class or classes of stock ranking on a parity with or
prior to the Series E Preferred Stock upon liquidation,
dissolution or winding up, upon any liquidation, dissolution or
winding up of the Corporation, after payment shall have been made
in full to the holders of the Series E Preferred Stock, as
provided in this Section 4, any other series or class or classes
of Junior Stock shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any
and all assets remaining to be paid or distributed, and the
holders of the Series E Preferred Stock shall not be entitled to
share therein.
Section 5. REDEMPTION AT THE OPTION OF THE CORPORATION. (a)
The Series E Preferred Stock shall not be redeemable by the
Corporation prior to February 13, 2003. On and after February 13,
2003, the Corporation, at its option, may redeem the shares of
Series E Preferred Stock in whole or in part, as set forth
herein, subject to the provisions described below.
(b) No share of Series E Preferred Stock may be redeemed
except from proceeds from the sale of other capital stock of the
Corporation, 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. In order to exercise its redemption option, the
Corporation must issue a press release announcing the redemption
(the "Press Release"). The Press Release shall announce the
redemption and set forth the number of shares of Series E
Preferred Stock which the Corporation intends to redeem. The Call
Date shall be selected by the Corporation, shall be specified in
the notice of redemption and shall be not less than 30 days or
more than 60 days after the date on which the Corporation issues
the Press Release.
(c) Upon redemption of Series E Preferred Stock by the
Corporation on the date specified in the notice to holders
required under subparagraph (e)of this Section 5 (the "Call
Date"), for each share of Series E Preferred Stock so redeemed,
the Corporation shall pay in cash the liquidation preference,
including all dividends (whether or not earned or declared)
accrued and unpaid thereon to the Call Date, except that if the
Call Date falls after a dividend payment record date and prior to
the corresponding Dividend Payment Date, then each holder of
Series E Preferred Stock at the close of business on such
dividend payment 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 shares of Series E Preferred Stock called
for redemption, after the date of
redemption.
(d) If full cumulative dividends on the Series E Preferred
Stock and any other class or series of Parity Stock of the
Corporation have not been paid or declared and set apart for
payment, the Series E Preferred Stock may not be redeemed in part
and the Corporation may not purchase or acquire shares of Series
E Preferred Stock, otherwise than pursuant to a purchase
or exchange offer made on the same terms to all holders of shares
of Series E Preferred Stock.
(e) If the Corporation shall redeem shares of Series E
Preferred Stock pursuant to paragraph (a) of this Section 5,
notice of such redemption shall be given not more than four
Business Days after the date on which the Corporation issues the
Press Release to each holder of record of the shares to be
redeemed. Such notice shall be provided by first class mail,
postage prepaid, at such holder's address as the same appears on
the stock records of the Corporation, or by publication in a
newspaper of general circulation in the City of New York once per
week for at least two successive weeks. If the Corporation elects
to provide such notice by publication, it shall also promptly
mail notice of such redemption to the holders of the Series E
Preferred Stock to be redeemed not less than 30 nor more than 60
days prior to the Call Date. Neither the failure to mail any
notice required by this paragraph (e), nor any defect therein or
in the mailing thereof, to any particular holder, shall affect
the sufficiency of the notice or the validity of the proceedings
for redemption with respect to the other holders. Any notice
which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given on the date mailed
whether or not the holder receives the notice. Each such mailed
or published notice shall state, as appropriate:(1)the Call Date;
(2) the number of shares of Series E Preferred Stock to be
redeemed and, if fewer than all the shares held by such holder
are to be redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price with respect to each share
of Series E Preferred Stock, including dividends accrued through
the Call Date; (4) the place or places at which certificates for
such shares are to be surrendered for payment; and (5) that
dividends on the shares to be redeemed shall cease to accrue on
such Call Date except as otherwise provided herein. Notice
having been published or mailed as aforesaid, from and after the
Call Date (unless the Corporation shall fail to make available
the amount of cash necessary to effect such redemption), (i)
except as otherwise provided herein, dividends on the shares of
the Series E Preferred Stock so called for redemption shall cease
to accrue, (ii) said shares shall no longer be deemed to be
outstanding, and (iii) all rights of the holders thereof as
holders of Series E Preferred Stock of the Corporation shall
cease (except the rights to receive the cash payable upon such
redemption, without interest thereon, upon surrender and
endorsement of their certificates if so required and to receive
any dividends payable thereon). The Corporation's obligation to
provide cash in accordance with the preceding sentence shall be
deemed fulfilled if, on or before the Call Date, the Corporation
shall deposit with a bank or trust company (which may be an
affiliate of the Corporation)that has an office in the Borough of
Manhattan, City of New York, or in Charlotte, North Carolina and
that has, or is an affiliate of a bank or trust company that has,
a capital and surplus of at least $50,000,000, cash necessary for
such redemption, in trust, with irrevocable instructions that
cash be applied to the redemption of the shares of Series E
Preferred Stock so called for redemption. At the close of
business on the Call Date, each holder of Series E Preferred
Stock to be redeemed (unless the Company defaults in the delivery
of the cash payable on such Call Date) shall no longer be deemed
to be the record holder of the number of shares of such Series E
Preferred Stock to be redeemed, regardless of whether such holder
has surrendered the certificates representing the Series E
Preferred Stock. 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. No interest shall accrue for the
benefit of the holders of Series E Preferred Stock to be redeemed
on the cash so set aside by the Corporation. Subject to
applicable escheat laws, any such cash unclaimed at the end of
two years from the Call Date shall revert to the general funds of
the Corporation, after which reversion the holders of such shares
so called for redemption shall look only to the general funds of
the Corporation for the payment of such cash.
As promptly as practicable after the surrender in accordance
with said notice of the certificates for any such shares so
redeemed (properly endorsed or assigned for transfer, if the
Corporation shall so require and if the notice shall so state),
the Corporation shall pay the cash (without interest thereon)
representing the redemption price for the redeemed shares. If
fewer than all the outstanding shares of Series E Preferred Stock
are to redeemed, shares to be redeemed shall be selected by the
Corporation from outstanding shares of Series E Preferred Stock
not previously called for redemption by lot or pro rata (as
nearly as may be) or by any other method determined by the
Corporation in its sole discretion to be equitable. If fewer than
all the shares of Series E Preferred Stock represented by any
certificate are redeemed, then new certificates representing the
unredeemed shares shall be issued without cost to the holder
thereof.
Section 6. SHARES TO BE RETIRED.
All shares of Series E Preferred Stock which shall have been
issued and reacquired in any manner by the Corporation shall be
restored to the status of authorized but unissued shares of
Preferred Stock, without designation as to series. The
Corporation may also retire any unissued shares of Series E
Preferred Stock, and such shares shall then be restored
to the status of authorized but unissued shares of Preferred
Stock, without designation as to series.
Section 7. CONVERSION.
Holders of shares of Series E Preferred Stock shall not have
the right to convert all or a portion of such shares into shares
of Common Stock or any other class of stock of the Corporation.
Section 8. RANKING. Any class or series of stock of the
Corporation hall be deemed to rank:
(a) prior to the Series E Preferred Stock, as to the payment
of dividends and as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class or series
shall be entitled to the receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to
the holders of Series E Preferred Stock;
(b) on a parity with the Series E Preferred Stock, as to the
payment of dividends and as to distribution of assets upon
liquidation, dissolution or winding up, whether or not the
dividend rates, dividend payment dates or redemption or
liquidation prices per share thereof be different from those
of the Series E Preferred Stock, if the holders of such class of
stock or series and the Series E Preferred Stock shall be
entitled to the receipt of dividends and of amounts distributable
upon liquidation, dissolution or winding up in proportion to
their respective amounts of accrued and unpaid dividends per
share or liquidation preferences, without preference or
priority one over the other ("Parity Stock"); the Series A
Preferred Stock, the Series B Preferred Stock, the Series C
Preferred Stock, and the Series D Preferred Stock shall be Parity
Stock with respect to the Series E Preferred Stock; and
(c) junior to the Series E Preferred Stock, as to the payment
of dividends or as to the distribution of assets upon
liquidation, dissolution or winding up, if such stock or series
shall be Common Stock or if the holders of Series E Preferred
Stock shall be entitled to receipt of dividends or of amounts
distributable upon liquidation, dissolution or winding up, as the
case may be, in preference or priority to the holders of shares
of such stock or series.
Section 9. VOTING. If and whenever six quarterly dividends
(whether or not consecutive) payable on the Series E Preferred
Stock or any series or class of Parity Stock shall be in arrears
(which shall, with respect to any such quarterly dividend, mean
that any such dividend has not been paid in full), whether or not
earned or declared, the number of directors then constituting the
Board of Directors shall be increased by two (if not already
increased by reason of a similar arrearage with respect to any
Parity Stock) and the holders of shares of Series E Preferred
Stock, together with the holders of shares of every other series
of Parity Stock (any such other series, the "Voting Preferred
Stock"), voting as a single class regardless of series, shall be
entitled to elect the two additional directors to serve on the
Board of Directors at any annual meeting of stockholders or
special meeting held in place thereof, or at a special meeting of
the holders of the Series E Preferred Stock and the Voting
Preferred Stock called as hereinafter provided. Whenever all
arrears in dividends on the Series E Preferred Stock and the
Voting Preferred Stock then outstanding shall have been paid and
dividends thereon for the current quarterly dividend period shall
have been paid or declared and set apart for payment, then the
right of the holders of the Series E Preferred Stock and the
Voting Preferred Stock to elect such additional two directors
shall cease (but subject always to the same provision for the
vesting of such voting rights in the case of any similar future
arrearage in six quarterly dividends), and the terms of office of
all persons elected as directors by the holders of the Series E
Preferred Stock and the Voting Preferred Stock shall forthwith
terminate and the number of the Board of Directors shall be
reduced accordingly. At any time after such voting power shall
have been so vested in the holders of shares of Series E
Preferred Stock and the Voting Preferred Stock, the secretary of
the Corporation may, and upon the written request of any holder
of Series E Preferred Stock (addressed to the secretary at the
principal office of the corporation) shall, call a special
meeting of the holders of the Series E Preferred Stock and of the
Voting Preferred Stock for the election of the two directors to
be elected by them as herein provided, such call to be made by
notice similar to that provided in the Bylaws of the Corporation
for a special meeting of the stockholders or as required by law.
If any such special meeting required to be called as above
provided shall not be called by the secretary within 20 days
after receipt of any such request, then any holder of shares of
Series E Preferred Stock may call such meeting, upon the notice
above provided, and for that purpose shall have access to the
stock books of the Corporation. The directors elected at any such
special meeting shall hold office until the next annual meeting
of the stockholders or special meeting held in lieu thereof if
such office shall not have previously terminated as above
provided. If any vacancy shall occur among the directors elected
by the holders of the Series E Preferred Stock and the Voting
Preferred Stock, a successor shall be elected by the Board of
Directors, upon the nomination of the then-remaining director
elected by the holders of the Series E Preferred Stock and the
Voting Preferred Stock or the successor of such remaining
director, to serve until the next annual meeting of the
stockholders or special meeting held in place thereof if such
office shall not have previously terminated as provided above.
So long as any shares of Series E Preferred Stock are
outstanding, in addition to any other vote or consent of
stockholders required by law or by the Articles of Incorporation,
as amended, the affirmative vote of at least 66 2/3% of the votes
entitled to be cast by the holders of the shares of Series E
Preferred Stock and the Voting Preferred Stock, at the time
outstanding, acting as a single class regardless of series, given
in person or by proxy, either in writing without a meeting or by
vote at any meeting called for the purpose, shall be necessary
for effecting or validating:
(a) Any amendment, alteration or repeal of any of the
provisions of the Amendment to the Articles of Incorporation that
materially adversely affects the voting powers, rights or
preferences of the holders of the Series E Preferred Stock or the
Voting Preferred Stock; PROVIDED, HOWEVER, that the amendment of
the provisions of the Articles of Incorporation so as
to authorize or create, or to increase the authorized amount of,
any Junior Stock or any shares of any class ranking on a parity
with the Series E Preferred Stock or the Voting Preferred Stock
shall not be deemed to materially adversely affect the voting
powers, rights or preferences of the holders of Series E
Preferred Stock, and PROVIDED FURTHER, that if any such
amendment, alteration or repeal would materially adversely affect
any voting powers, rights or preferences of the Series E
Preferred Stock or another series of Voting Preferred Stock that
are not enjoyed by some or all of the other series which
otherwise would be entitled to vote in accordance herewith, the
affirmative vote of at least 66 2/3% of the votes entitled to be
cast by the holders of all series similarly affected, similarly
given, shall be required in lieu of the affirmative vote of at
least 66 2/3% of the votes entitled to be cast by the holders of
the shares of Series E Preferred Stock and the Voting Preferred
Stock which otherwise would be entitled to vote in accordance
herewith; or
(b) The authorization or creation of, or the increase in the
authorized amount of, any shares of any class or any security
convertible into shares of any class ranking prior to the Series
E Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation or in
the payment of dividends; PROVIDED, HOWEVER, that no such vote of
the holders of Series E Preferred Stock shall be required if,at
or prior to the time when such amendment, alteration or repeal is
to take effect, or when the issuance of any such prior shares or
convertible security is to be made, as the case may be, provision
is made for the redemption of all shares of Series E Preferred
Stock at the time outstanding.
For purposes of the foregoing provisions of this Section 9,
each share of Series E Preferred Stock shall have one (1) vote
per share, except that when any other series of preferred stock
shall have the right to vote with the Series E Preferred Stock as
a single class on any matter, then the Series E Preferred Stock
and such other series shall have with respect to such matters one
(1) vote per $25.00 of stated liquidation preference. Except as
otherwise required by applicable law or as set forth herein, the
shares of Series E Preferred Stock shall not have any relative,
participating, optional or other special voting rights and powers
other than as set forth herein, and the consent of the holders
thereof shall not be required for the taking of any corporate
action.
Section 10. RECORD HOLDERS. The Corporation and the Transfer
Agent may deem and treat the record holder of any shares of
Series E Preferred Stock as the true and lawful owner thereof for
all purposes, and neither the Corporation nor the Transfer Agent
shall be affected by any notice to the contrary.
IN WITNESS WHEREOF, the Corporation has caused these Articles
of Amendment to Articles of Incorporation to be made under the
seal of the Corporation and signed in its name and attested by
its duly authorized officers this 4{th} day of February, 1998.
MERRY LAND & INVESTMENT COMPANY, INC.
/s/
By: __________________________________
Dorrie E. Green
As its Vice President
/s/
Attest: ______________________________
W. Hale Barrett
Secretary
(Corporate Seal)