1
EXHIBIT 4.3
ARTICLES SUPPLEMENTARY
SERIES C JUNIOR PARTICIPATING PREFERRED STOCK
EXCEL REALTY TRUST, INC.
-----------------------------
Pursuant to Section 2-105 the Maryland General Corporation Law
(the "MGCL"), Excel Realty Trust, Inc., a corporation organized and existing
under the laws of the State of Maryland and having its principal office in the
State of Maryland located at c/o The Prentice Hall Corporation System, Maryland,
11 East Chase Street, Baltimore City, Maryland 21202 (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Corporation by Article V of the Corporation's Charter
(inclusive of these Articles Supplementary) and Section 2-105 of the MGCL, the
Board of Directors has adopted resolutions classifying and designating a
separate class of authorized but unissued Preferred Stock of the Corporation to
consist of not more than 100,000 shares, setting the preferences, conversion and
other rights, voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption of such class of Preferred
Stock and determining the number of shares of such class of Preferred Stock (not
in excess of the aforesaid maximum number) to be issued and the price and other
terms and conditions upon which shares of such class of Preferred Stock are to
be offered, sold and issued, and authorizing the issuance of 100,000 shares of
Series C Junior Participating Preferred Stock.
SECOND: The class of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
referred to in Article FIRST of these Articles Supplementary shall have the
following designation, number of shares, preferences, conversion and other
rights, voting powers, restrictions and limitations as to distributions,
qualifications, terms and conditions of redemption and other terms and
conditions:
Section 1. Designation and Amount. The shares of such class
shall be designated as "Series C Junior Participating Preferred Stock" (the
"Series C Preferred Stock") and the number of shares constituting the Series C
Preferred Stock shall be one hundred thousand (100,000). Such number of shares
may be increased or decreased by resolution of the Board of Directors; PROVIDED,
that no decrease shall reduce the number of shares of Series C Preferred Stock
to a number less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series C Preferred Stock.
2
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 stock of this Corporation
ranking prior and superior to the Series C Preferred Stock with respect
to dividends, the holders of shares of Series C Preferred Stock, in
preference to the holders of Common Stock, par value $.01 per share (the
"Common Stock"), of the Corporation, and of any other stock ranking
junior to the Series C 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
on the first 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 share or fraction of a share of Series C
Preferred Stock, 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
or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on 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 share or fraction of a share of Series C Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of Series C Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence 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.
(B) The Corporation shall declare a dividend or distribution
on the Series C Preferred Stock as provided in paragraph (A) of this
Section 2 immediately after 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 Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1.00 per share on the Series C
Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series C Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such 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
3
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 shares of
Series C 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 shares of Series C Preferred Stock
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 of Directors may fix a record date for the determination of
holders of shares of Series C Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series C
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series C Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote of the
stockholders of the Corporation having general voting rights. In the
event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the number of votes per
share to which holders of shares of Series C 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, in any other
Articles Supplementary creating a class or series of Preferred Stock or
any similar stock, the holders of shares of Series C Preferred Stock and
the holders of shares of Common Stock and any other shares of stock of
the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the
Corporation having general voting rights.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series C 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 set forth
herein) for taking any corporate action.
4
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series C Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series C Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series C Preferred Stock;
(ii) declare or pay dividends, 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) with the Series C Preferred Stock, except dividends
paid ratably on the Series C 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 are
then entitled;
(iii) except pursuant to the provisions of the Charter
providing for limitations or restrictions on ownership of stock
of the Corporation which are, expressly or by implication, to
protect the status of the Corporation as a Real Estate
Investment Trust under the Internal Revenue Code, redeem or
purchase or otherwise acquire for consideration shares of any
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series C
Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior
stock in exchange for shares of any stock of the Corporation
ranking junior (both as to dividends and upon dissolution,
liquidation or winding up) to the Series C Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series C Preferred Stock, or any
shares of stock ranking on a parity with the Series C 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 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, and except pursuant to the provisions of the
Charter providing for limitations or restrictions on ownership
of stock of the Corporation which are, expressly or by
implication, to protect the status of the Corporation as a Real
Estate Investment Trust under the Internal Revenue Code.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation
5
unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any shares of Series C Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall become authorized but unissued shares of Preferred Stock,
without further designation, and may be reissued as part of a new class or
series of Preferred Stock subject to the conditions and restrictions on issuance
set forth herein, in the Charter, or in any other Articles Supplementary
creating a class or series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any
liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise, no distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series C Preferred Stock unless, prior thereto, the holders
of shares of Series C Preferred Stock shall have received an amount per share
(the "Series C Liquidation Preference") equal to $1,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, provided that the holders of
shares of Series C Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount to be distributed per share to holders
of shares of Common Stock, or (2) to the holders of shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding up)
with the Series C Preferred Stock, except distributions made ratably on the
Series C Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the aggregate amount to which
holders of shares of Series C Preferred Stock were entitled immediately prior to
such event under the proviso in clause (1) of the preceding sentence 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 are
outstanding immediately prior to such event.
(B) In the event, however, that there are not sufficient
assets available to permit payment in full of the Series C Liquidation
Preference and the liquidation preferences of all other classes and
series of stock of the Corporation, if any, that rank on a parity with
the Series C Preferred Stock in respect thereof, then the assets
available for such distribution shall be distributed ratably to the
holders of the Series C Preferred Stock and the holders of such parity
shares in proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation
into or with another corporation nor the merger or consolidation of any
other corporation into or with
6
the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning of this Section 6.
Section 7. Consolidation, Merger, etc. In case the Corporation
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 each share
of Series C Preferred Stock shall at the same time be similarly exchanged or
changed into 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 changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series C 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. No Redemption. Except pursuant to the provisions of
the Charter providing for limitations or restrictions on ownership of stock of
the Corporation which are, expressly or by implication, to protect the status of
the Corporation as a Real Estate Investment Trust under the Internal Revenue
Code, the shares of Series C Preferred Stock shall not be redeemable by the
Corporation.
Section 9. Rank. The Series C Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up, junior to all series or any other class
of the Corporation's Preferred Stock, except to the extent that any such other
series specifically provides that it shall rank on a parity with or junior to
the Series C Preferred Stock.
Section 10. Amendment. At any time any shares of Series C
Preferred Stock are outstanding, the Charter of the Corporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series C Preferred Stock, as set forth
herein, so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series C Preferred
Stock, voting separately as a single class.
7
Section 11. Fractional Shares. Series C Preferred Stock may be
issued in fractions of a share that shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series C Preferred Stock.
Section 12. Restrictions on Transfer, Acquisition and Redemption
of Shares.
(a) The Series C Preferred Stock constitutes
a class of Preferred Stock of the Corporation, and Preferred Stock constitutes
Equity Stock of the Corporation. Therefore, the Series C Preferred Stock, being
Equity Stock, is governed by and issued subject to all of the limitations, terms
and conditions of the Charter of the Corporation applicable to the Equity Stock
generally, including but not limited to the terms and conditions (including
exceptions and exemptions) of Article VII of the Charter applicable to Equity
Stock; provided, however, that the terms and conditions (including exceptions
and exemptions) of Article VII of the Charter applicable to Equity Stock shall
also be applied to the Series C Preferred Stock separately and without regard to
any other series or class. The foregoing sentence shall not be construed to
limit the applicability to the Series C Preferred Stock of any other term or
provision of the Charter.
[INTENTIONALLY LEFT BLANK]
8
(b) In addition to the legend contemplated
by Article VII, Section 11 of the Charter, each certificate for Series C
Preferred Stock shall bear substantially the following legend:
"The Corporation will furnish to any
stockholder, on request and without charge, a full statement of the
information required by Section 2-211(b) of the Corporations and
Associations Article of the Annotated Code of Maryland with respect to
the designations and any preferences, conversions and other rights,
voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemptions of the stock of
each class which the Corporation has authority to issue and, if the
Corporation is authorized to issue any preferred or special class in
series, (i) the differences in the relative rights and preferences
between the shares of each series to the extent set, and (ii) the
authority of the Board of Directors to set such rights and preferences
of subsequent series. The foregoing summary does not purport to be
complete and is subject to and qualified in its entirety by reference to
the charter of the Corporation, a copy of which will be sent without
charge to each stockholder who so requests. Such request must be made to
the Secretary of the Corporation at its principal office."
THIRD: These Articles Supplementary have been approved by the
Board of Directors in the manner and by the vote required by law.
FOURTH: The undersigned President acknowledges these Articles
Supplementary to be the corporate act of the Corporation and, as to all matters
of fact required to be verified under oath, the undersigned President
acknowledges that to the best of his or her knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties of perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed in its name and on its behalf by its President, and
attested to by its Secretary, on this 28th day of May, 1998.
/s/ Gary B. Sabin
-----------------------------------------
Gary B. Sabin
President
Attest:
/s/ Richard B. Muir
- --------------------------------------
Richard B. Muir
Secretary