1
EXHIBIT 3.1
VORNADO REALTY TRUST
ARTICLES SUPPLEMENTARY
SERIES D-5 8.25% CUMULATIVE REDEEMABLE PREFERRED SHARES
(LIQUIDATION PREFERENCE $25.00 PER SHARE)
Vornado Realty Trust, a Maryland real estate investment trust (the
"Trust"), hereby certifies to the State Department of Assessments and Taxation
of Maryland that:
FIRST: Under a power contained in Article VI of the Amended and
Restated Declaration of Trust of the Trust (the "Declaration"), the Board of
Trustees of the Trust (the "Board of Trustees"), by unanimous written consent,
classified and designated 7,480,000 shares (the "Shares") of the Preferred
Stock, no par value per share (as defined in the Declaration), of the Trust as
shares of Series D-5 8.25% Cumulative Redeemable Preferred Shares of Beneficial
Interest, liquidation preference $25.00 per share, with the following
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption, which upon any restatement of the Declaration,
shall be deemed to be part of Article VI of the Declaration, with any necessary
or appropriate changes to the enumeration or lettering of sections or
subsections hereof:
SERIES D-5 8.25% CUMULATIVE REDEEMABLE PREFERRED SHARES
SECTION 1. NUMBER OF SHARES AND DESIGNATION. This series of
Preferred Stock shall be designated as Series D-5 8.25% Cumulative Redeemable
Preferred Shares of Beneficial Interest, liquidation preference $25.00 per share
(the "Series D-5 Preferred Shares"), and 7,480,000 shall be the number of shares
of Preferred Stock constituting such series.
SECTION 2. DEFINITIONS. For purposes of the Series D-5 Preferred
Shares, the following terms shall have the meanings indicated:
"Board of Trustees" shall mean the Board of Trustees of the Trust or
any committee authorized by such Board of Trustees to perform any of its
responsibilities with respect to the Series D-5 Preferred Shares.
2
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New
York, New York are not required to be open.
"Common Shares" shall mean the common shares of beneficial interest
of the Trust, par value $.04 per share.
"Dividend Payment Date" shall mean the first calendar day of
January, April, July and October, in each year, commencing on the first of
January 1, April 1, July 1 or October 1 to follow the Issue Date;
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 on the first 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 with respect to each Series
D-5 Preferred Share, which shall commence on the date on which such Series
D-5 Preferred Share was issued by the Trust and end on the next succeeding
January 1, April 1, July 1 or October 1 to occur (whichever occurs
first)).
"Issue Date" shall mean the first date on which any Series D-5
Preferred Shares are issued.
"Junior Shares" shall mean the Common Shares and any other class or
series of shares of beneficial interest of the Trust constituting junior
shares of beneficial interest as described in paragraph (c) of Section 9
hereof.
"Liquidation Preference" shall have the meaning set forth in
paragraph (a) of Section 4 hereof.
"Operating Partnership" shall mean Vornado Realty L.P., a Delaware
limited partnership.
"Parity Shares" shall mean any shares of beneficial interest as
described in paragraph (b) of Section 9 hereof.
"Person" shall mean any individual, firm, partnership, corporation,
limited liability company or
-2-
3
other entity, and shall include any successor (by merger or otherwise) of
such entity.
"Redemption Date" shall have the meaning set forth in paragraph (c)
of Section 5 hereof.
"Redemption Price" shall have the meaning set forth in paragraph (a)
of Section 5 hereof.
"Series D-5 Preferred Shares" shall have the meaning set forth in
Section 1 hereof. It is the intention of the Trust in establishing the
Series D-5 Preferred Shares, that, except to the extent otherwise set
forth herein, each Series D-5 Preferred Share shall be substantially the
economic equivalent of a Series D-5 Preferred Unit in respect of which it
was issued.
"Series D-5 Preferred Units" shall mean the Series D-5 Preferred
Units of limited partner interest of the Operating Partnership.
"Set apart for payment" shall be deemed to include, without any
action other than the following, the recording by the Trust in its
accounting ledgers of any accounting or bookkeeping entry which indicates,
pursuant to a declaration of a dividend or other distribution by the Board
of Trustees, the allocation of funds to be so paid on any series or class
of shares of beneficial interest of the Trust; provided, however, that if
any funds for any class or series of Junior Shares or any class or series
of shares of beneficial interest ranking on a parity with the Series D-5
Preferred Shares as to the payment of dividends are placed in a separate
account of the Trust or delivered to a disbursing, paying or other similar
agent, then "set apart for payment" with respect to the Series D-5
Preferred Shares shall mean placing such funds in a separate account or
delivering such funds to a disbursing, paying or other similar agent.
"Transfer Agent" means First Union National Bank, Charlotte, North
Carolina, or such other agent or agents of the Trust as may be designated
by the Board of Trustees or its designee as the transfer agent for the
Series D-5 Preferred Shares.
"Voting Preferred Shares" shall have the meaning set forth in
Section 10 hereof.
SECTION 3. DIVIDENDS. (a) The holders of Series D-5 Preferred Shares
shall be entitled to receive, when, as
-3-
4
and if authorized by the Board of Trustees and declared by the Trust out of
assets legally available for that purpose, dividends payable in cash at the rate
per annum of $2.0625 per Series D-5 Preferred Share (the "Annual Dividend
Rate"). Such dividends with respect to each Series D-5 Preferred Share shall be
cumulative from the date on which such Series D-5 Preferred Share was issued by
the Trust, whether or not in any Dividend Period or Periods there shall be
assets of the Trust legally available for the payment of such dividends, and
shall be payable quarterly, when, as and if authorized by the Board of Trustees
and declared by the Trust, in arrears on Dividend Payment Dates commencing with
respect to each Series D-5 Preferred Share on the first Dividend Payment Date
after the date on which such Series D-5 Preferred Share was issued by the Trust.
Dividends are cumulative from the most recent Dividend Payment Date to which
dividends have been paid, whether or not in any Dividend Period or Periods there
shall be assets legally available therefor. Each such dividend shall be payable
in arrears to the holders of record of the Series D-5 Preferred Shares, as they
appear on the share records of the Trust at the close of business on such record
dates, not more than 30 days preceding the applicable Dividend Payment Date (the
"Dividend Payment Record Date"), as shall be fixed by the Board of Trustees.
Accumulated and unpaid dividends for any past Dividend Periods may be authorized
and 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 Trustees.
(b) The amount of dividends payable for each full Dividend Period
for each Series D-5 Preferred Share shall be computed by dividing the Annual
Dividend Rate by four. The amount of dividends payable for the initial Dividend
Period, or any other period shorter or longer than a full Dividend Period, on
the Series D-5 Preferred Shares shall be computed on the basis of twelve 30-day
months and a 360-day year. Holders of Series D-5 Preferred Shares 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 D-5 Preferred Shares.
No interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Series D-5 Preferred Shares that may be
in arrears.
(c) So long as any Series D-5 Preferred Shares are outstanding, no
dividends, except as described in the immediately following sentence, shall be
authorized and declared or paid or set apart for payment on any series or class
or classes of Parity Shares for any period unless full cumulative dividends have
been or contemporaneously are
-4-
5
authorized and declared and paid or authorized and declared and a sum sufficient
for the payment thereof set apart for such payment on the Series D-5 Preferred
Shares for all Dividend Periods terminating on or prior to the Dividend Payment
Date on such class or series of Parity Shares. When dividends are not paid in
full or a sum sufficient for such payment is not set apart, as aforesaid, all
dividends authorized and declared upon Series D-5 Preferred Shares and all
dividends authorized and declared upon any other series or class or classes of
Parity Shares shall be authorized and declared ratably in proportion to the
respective amounts of dividends accumulated and unpaid on the Series D-5
Preferred Shares and such Parity Shares.
(d) So long as any Series D-5 Preferred Shares are outstanding, no
dividends (other than dividends or distributions paid solely in shares of, or
options, warrants or rights to subscribe for or purchase shares of, Junior
Shares) shall be authorized and declared or paid or set apart for payment or
other distribution authorized and declared or made upon Junior Shares, nor shall
any Junior Shares be redeemed, purchased or otherwise acquired (other than a
redemption, purchase or other acquisition of Common Shares made for purposes of
and in compliance with requirements of an employee incentive or benefit plan of
the Trust or any subsidiary, or as permitted under Article VI of the
Declaration), for any consideration (or any moneys to be paid to or made
available for a sinking fund for the redemption of any shares of beneficial
interest) by the Trust, directly or indirectly (except by conversion into or
exchange for Junior Shares), unless in each case (i) the full cumulative
dividends on all outstanding Series D-5 Preferred Shares and any other Parity
Shares of the Trust shall have been paid or set apart for payment for all past
Dividend Periods with respect to the Series D-5 Preferred Shares and all past
dividend periods with respect to such Parity Shares 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 D-5 Preferred Shares and any
Parity Shares.
(e) Any accumulated distributions on Series D-5 Preferred Units that
remain unpaid at the time such Series D-5 Preferred Units are acquired by the
Trust for Series D-5 Preferred Shares shall also be deemed to be accumulated and
unpaid dividends in respect of such Series D-5 Preferred Shares as of the date
of issuance of such Series D-5 Preferred Shares and shall be paid when declared
by the Board of Trustees.
SECTION 4. LIQUIDATION PREFERENCE. (a) In the event of any
liquidation, dissolution or winding up of the
-5-
6
Trust, whether voluntary or involuntary, before any payment or distribution of
the assets of the Trust (whether capital or surplus) shall be made to or set
apart for the holders of Junior Shares, the holders of Series D-5 Preferred
Shares shall be entitled to receive Twenty Five Dollars ($25.00) per Series D-5
Preferred Share (the "Liquidation Preference") plus an amount equal to all
dividends (whether or not earned or declared) accumulated and unpaid thereon to
the date of final distribution to such holder; but such holders of Series D-5
Preferred Shares shall not be entitled to any further payment. If, upon any such
liquidation, dissolution or winding up of the Trust, the assets of the Trust, or
proceeds thereof, distributable among the holders of Series D-5 Preferred Shares
shall be insufficient to pay in full the preferential amount aforesaid and
liquidating payments on any other Parity Shares, then such assets, or the
proceeds thereof, shall be distributed among the holders of such Series D-5
Preferred Shares and any such other Parity Shares ratably in accordance with the
respective amounts that would be payable on such Series D-5 Preferred Shares and
any such other Parity Shares if all amounts payable thereon were paid in full.
For the purposes of this Section 4, (i) a consolidation or merger of the Trust
with one or more entities, (ii) a statutory share exchange and (iii) a sale or
transfer of all or substantially all of the Trust's assets, shall not be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary, of
the Trust.
(b) Subject to the rights of the holders of shares of any series or
class or classes of shares of beneficial interest ranking on a parity with or
prior to the Series D-5 Preferred Shares upon liquidation, dissolution or
winding up, upon any liquidation, dissolution or winding up of the Trust, after
payment shall have been made in full to the holders of the Series D-5 Preferred
Shares, as provided in this Section 4, any series or class or classes of Junior
Shares shall, subject to any respective terms and provisions applying thereto,
be entitled to receive any and all assets remaining to be paid or distributed,
and the holders of the Series D-5 Preferred Shares shall not be entitled to
share therein.
SECTION 5. REDEMPTION AT THE OPTION OF THE TRUST. (a) Except as
otherwise permitted by Article VI of the Declaration, the Series D-5 Preferred
Shares shall not be redeemable by the Trust prior to November 24, 2004. On and
after November 24, 2004, the Trust, at its option, may redeem the Series D-5
Preferred Shares, in whole or in part, as set forth herein, subject to the
provisions described below, at a redemption price, payable in cash, equal to the
Liquidation Preference plus dividends accumulated and unpaid prior to the date
of redemption (the "Redemption Price").
-6-
7
(b) If full cumulative dividends on the Series D-5 Preferred Shares
and any other series or class or classes of Parity Shares of the Trust have not
been paid or declared and set apart for payment, except as otherwise permitted
under Article VI of the Declaration, the Series D-5 Preferred Shares may not be
redeemed in part and the Trust may not purchase, redeem or otherwise acquire
Series D-5 Preferred Shares or any Parity Shares other than in exchange for
Junior Shares.
(c) If the Trust shall redeem shares of Series D-5 Preferred Shares
pursuant to paragraph (a) of this Section 5, notice of such redemption shall be
given to each holder of record of the Series D-5 Preferred 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 Trust, or
by publication in The Wall Street Journal or The New York Times, or if neither
such newspaper is then being published, any other daily newspaper of national
circulation. If the Trust elects to provide such notice by publication, it shall
also promptly mail notice of such redemption to the holders of the Series D-5
Preferred Shares to be redeemed. Neither the failure to mail any notice required
by this paragraph (c), 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
that 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 date on which such Series D-5 Preferred Shares are to be redeemed (the
"Redemption Date"); (2) the number of Series D-5 Preferred Shares to be redeemed
and, if fewer than all the Series D-5 Preferred Shares held by such holder are
to be redeemed, the number of such Series D-5 Preferred Shares to be redeemed
from such holder; (3) the Redemption Price; (4) the place or places at which
certificates for such Series D-5 Preferred Shares are to be surrendered for
payment of the Redemption Price; and (5) that dividends on the shares to be
redeemed shall cease to accrue on such Redemption Date except as otherwise
provided herein. Notice having been published or mailed as aforesaid, from and
after the Redemption Date (unless the Trust shall fail to make available an
amount of cash necessary to effect such redemption), (i) except as otherwise
provided herein, dividends on the Series D-5 Preferred Shares so called for
redemption shall cease to accumulate, (ii) said shares shall no longer be deemed
to be outstanding, and (iii) all rights of the holders thereof as holders of
Series D-5 Preferred Shares of the Trust shall cease (except the rights to
receive the cash payable upon such redemption, without interest thereon, upon
surrender and
-7-
8
endorsement of their certificates if so required and to receive any dividends
payable thereon). The Trust's obligation to provide cash in accordance with the
preceding sentence shall be deemed fulfilled if, on or before the Redemption
Date, the Trust shall deposit with a bank or trust company (which may be an
affiliate of the Trust) that has an office in the Borough of Manhattan, City of
New York, or in Baltimore, Maryland 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, the
cash necessary for such redemption, in trust, with irrevocable instructions that
such cash be applied to the redemption of the Series D-5 Preferred Shares so
called for redemption. No interest shall accrue for the benefit of the holder of
Series D-5 Preferred Shares to be redeemed on any cash so set aside by the
Trust. Subject to applicable escheat laws, any such cash unclaimed at the end of
two years from the Redemption Date shall revert to the general funds of the
Trust, after which reversion the holders of such shares so called for redemption
shall look only to the general funds of the Trust for the payment of such cash.
As promptly as practicable after the surrender in accordance with
said notice of the certificates for any such Series D-5 Preferred Shares so
redeemed (properly endorsed or assigned for transfer, if the Trust shall so
require and if the notice shall so state), such Series D-5 Preferred Shares
shall be exchanged for the cash (without interest thereon) for which such Series
D-5 Preferred Shares have been redeemed. If fewer than all of the outstanding
Series D-5 Preferred Shares are to be redeemed, the Series D-5 Preferred Shares
to be redeemed shall be selected by the Trust from the outstanding Series D-5
Preferred Shares not previously called for redemption by lot or pro rata (as
nearly as may be) or by any other method determined by the Trust in its sole
discretion to be equitable. If fewer than all the Series D-5 Preferred Shares
evidenced by any certificate are redeemed, then new certificates evidencing the
unredeemed Series D-5 Preferred Shares shall be issued without cost to the
holder thereof.
SECTION 6. REACQUIRED SHARES TO BE RETIRED.
All Series D-5 Preferred Shares which shall have been issued and
reacquired in any manner by the Trust shall be restored to the status of
authorized but unissued shares of Preferred Stock, without designation as to
series.
SECTION 7. NO RIGHT OF CONVERSION. The Series D-5 Preferred Shares
are not convertible into or exchangeable for any other property or securities of
the Trust at the option of any holder of Series D-5 Preferred Shares.
-8-
9
SECTION 8. PERMISSIBLE DISTRIBUTIONS. In determining whether a
distribution (other than upon liquidation, dissolution or winding up), whether
by dividend, or upon redemption or other acquisition of shares or otherwise, is
permitted under Maryland law, amounts that would be needed, if the Trust were to
be dissolved at the time of the distribution, to satisfy the preferential rights
upon dissolution of holders of shares of any class or series of beneficial
interest whose preferential rights upon dissolution are superior or prior to
those receiving the distribution shall not be added to the Trust's total
liabilities.
SECTION 9. RANKING. Any class or series of shares of beneficial
interest of the Trust shall be deemed to rank:
(a) prior to the Series D-5 Preferred Shares, as to the payment of
dividends and as to distribution of assets upon liquidation, dissolution or
winding up, if the holders of shares 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 D-5 Preferred Shares ("Senior Shares");
(b) on a parity with the Series D-5 Preferred Shares, as to the
payment of dividends and as to the 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 D-5 Preferred Shares, if the holders of shares of such class
or series and the Series D-5 Preferred Shares 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 accumulated and unpaid
dividends per share or liquidation preferences, without preference or priority
one over the other ("Parity Shares"); and
(c) junior to the Series D-5 Preferred Shares, as to the payment of
dividends or as to the distribution of assets upon liquidation, dissolution or
winding up, if such shares shall be Common Shares or if the holders of Series
D-5 Preferred Shares 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 class or series, and
shares of such class or series shall not in either case rank prior to the Series
D-5 Preferred Shares.
SECTION 10. VOTING. Except as otherwise set forth herein, the Series
D-5 Preferred Shares shall not have any
-9-
10
relative, participating, optional or other voting rights or powers, and the
consent of the holders thereof shall not be required for the taking of any
corporate (or trust) action.
If and whenever six quarterly dividends (whether or not consecutive)
payable on the Series D-5 Preferred Shares or any series or class of Parity
Shares shall be in arrears (which shall, with respect to any such quarterly
dividend, mean that any such dividend has not been paid in full) and whether or
not earned or declared, the number of trustees then constituting the Board of
Trustees shall be increased by two and the holders of Series D-5 Preferred
Shares, together with the holders of shares of every other series or class of
Parity Shares having like voting rights (shares of any such other series, the
"Voting Preferred Shares"), voting as a single class regardless of series, shall
be entitled to elect the two additional trustees to serve on the Board of
Trustees at any annual meeting of shareholders or special meeting held in place
thereof, or at a special meeting of the holders of Series D-5 Preferred Shares
and the Voting Preferred Shares called as hereinafter provided. Whenever all
arrears in dividends on the Series D-5 Preferred Shares and the Voting Preferred
Shares then outstanding shall have been paid and full 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 D-5 Preferred Shares
and the Voting Preferred Shares to elect such additional two trustees shall
cease (but subject always to the same provision for the vesting of such voting
rights in the case of any similar future arrearages in six quarterly dividends),
and the terms of office of all persons elected as trustees by the holders of the
Series D-5 Preferred Shares and the Voting Preferred Shares shall forthwith
terminate and the number of trustees constituting the Board of Trustees shall be
reduced accordingly. At any time after such voting power shall have been so
vested in the holders of shares of Series D-5 Preferred Shares and the Voting
Preferred Shares, the Secretary of the Trust may, and upon the written request
of any holder of Series D-5 Preferred Shares (addressed to the Secretary at the
principal office of the Trust) shall, call a special meeting of the holders of
the Series D-5 Preferred Shares and of the Voting Preferred Shares for the
election of the two trustees to be elected by them as herein provided, such call
to be made by notice similar to that provided in the Bylaws of the Trust for a
special meeting of the shareholders 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 such request, then any holder of
Series D-5 Preferred Shares may call such meeting, upon the notice above
provided, and for that purpose shall have access to the stock books of the
Trust. The
-10-
11
trustees elected at any such special meeting shall hold office until the next
annual meeting of the shareholders 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 trustees elected by the holders of the Series D-5
Preferred Shares and the Voting Preferred Shares, a successor shall be elected
by the Board of Trustees, upon the nomination of the then-remaining trustee
elected by the holders of the Series D-5 Preferred Shares and the Voting
Preferred Shares or the successor of such remaining trustee, to serve until the
next annual meeting of the shareholders or special meeting held in place thereof
if such office shall not have previously terminated as provided above.
So long as any Series D-5 Preferred Shares are outstanding, in
addition to any other vote or consent of shareholders required by the
Declaration, the affirmative vote of at least 66-2/3% of the votes entitled to
be cast by the holders of Series D-5 Preferred Shares and the Voting Preferred
Shares, at the time outstanding, voting 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 Declaration or these Articles Supplementary that materially and adversely
affects the voting powers, rights or preferences of the Series D-5 Preferred
Shares or the Voting Preferred Shares; provided, however, that (i) the amendment
of the provisions of the Declaration so as to authorize or create or to increase
the authorized amount of, any Junior Shares or any shares of any class or series
ranking on a parity with the Series D-5 Preferred Shares or the Voting Preferred
Shares shall not be deemed to materially and adversely affect the voting powers,
rights or preferences of the holders of Series D-5 Preferred Shares and (ii) any
filing with the State Department of Assessments and Taxation of Maryland by the
Trust in connection with a merger, consolidation or sale of all or substantially
all of the assets of the Trust shall not be deemed to be an amendment,
alteration or repeal of any of the provisions of the Declaration or these
Articles Supplementary; and provided further, that if any such amendment,
alteration or repeal would materially and adversely affect any voting powers,
rights or preferences of the Series D-5 Preferred Shares or one or more but not
all series of Voting Preferred Shares at the time outstanding, the affirmative
vote of at least 66-2/3% of the votes entitled to be cast by the holders of all
series similarly affected at the time outstanding, voting 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 required in
lieu of the
-11-
12
affirmative vote of at least 66-2/3% of the votes entitled to be cast by the
holders of the Series D-5 Preferred Shares and the Voting Preferred Shares
otherwise entitled to vote in accordance herewith or (b) the authorization or
creation of, or the increase in the authorized or issued amount of, any shares
of any class or series or any security convertible into or exchangeable for
shares of any class or series ranking prior to the Series D-5 Preferred Shares
in the distribution of assets on any liquidation, dissolution or winding up of
the Trust or in the payment of dividends or distributions; provided, however,
that, in the case of each of subparagraphs (a) and (b), no such vote of the
holders of Series D-5 Preferred Shares or Voting Preferred Shares, as the case
may be, 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, provision is made for the
redemption of all Series D-5 Preferred Shares or Voting Preferred Shares, as the
case may be, at the time outstanding in accordance with Section 5 hereof.
For purposes of the foregoing provisions of this Section 9, each
Series D-5 Preferred Share 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
D-5 Preferred Shares as a single class on any matter, then the Series D-5
Preferred Shares and such other series shall have with respect to such matters
one (1) vote per $50.00 of stated liquidation preference.
SECTION 10. RECORD HOLDERS. The Trust and the Transfer Agent may
deem and treat the record holder of any Series D-5 Preferred Shares as the true
and lawful owner thereof for all purposes, and neither the Trust nor the
Transfer Agent shall be affected by any notice to the contrary.
SECTION 11. RESTRICTIONS ON OWNERSHIP AND TRANSFER. The Series D-5
Preferred Shares constitute Preferred Stock, and Preferred Stock constitutes
Equity Stock of the Trust. Therefore, the Series D-5 Preferred Shares, being
Equity Stock, are governed by and issued subject to all the limitations, terms
and conditions of the Declaration applicable to Equity Stock generally,
including but not limited to the terms and conditions (including exceptions and
exemptions) of Article VI of the Declaration applicable to Equity Stock. The
foregoing sentence shall not be construed to limit the applicability to the
Series D-5 Preferred Shares of any other term or provision of the Declaration.
-12-
13
SECOND: The Shares have been classified and designated by the Board
of Trustees under the authority contained in the Declaration.
THIRD: These Articles Supplementary have been approved by the Board
of Trustees in the manner and by the vote required by law.
FOURTH: The undersigned Vice President and Chief Financial Officer
acknowledges these Articles Supplementary to be the trust act of the Trust and,
as to all matters or facts required to be verified under oath, the undersigned
Vice President and Chief Financial Officer acknowledges that, to the best of his
knowledge, information and belief, these matters and facts are true in all
material respects and that this Statement is made under the penalties for
perjury.
-13-
14
IN WITNESS WHEREOF, the Trust has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its
Vice President and Chief Financial Officer and attested to by one of its
Assistant Secretaries on this 24th day of November, 1999.
VORNADO REALTY TRUST
[seal]
/s/ Irwin Goldberg
---------------------------------------------------
Name: Irwin Goldberg
Title: Vice President and Chief
Financial Officer
ATTEST:
/s/ Larry Portal
---------------------------------------------------
Name: Larry Portal
Title: Assistant Secretary