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EXHIBIT 4.1
OMEGA HEALTHCARE INVESTORS, INC.
ARTICLES SUPPLEMENTARY
Omega Healthcare Investors, Inc., a Maryland corporation ("Company"),
hereby certifies to the State Department of Assessments and Taxation of
Maryland that:
FIRST: Pursuant to authority contained in the Charter, ______________
(____________s) shares of authorized but unissued shares of the Company's
Preferred Stock have been duly classified by the Board of Directors of the
Company as authorized but unissued shares of the Company's _____% Series A
Cumulative Preferred Stock .
SECOND: A description of the _____% Series A Cumulative Preferred Stock
is as follows:
1. Designation and Number. A series of Preferred Stock, designated the
"______% Series A Cumulative Preferred Stock" (the "Series A Preferred Stock"),
is hereby established. The number of shares of the Series A Preferred Stock
shall be ________________ (___________).
2. Maturity. The Series A Preferred Stock has no stated maturity and will
not be subject to any sinking fund or mandatory redemption.
3. Rank. The Series A Preferred Stock will, with respect to dividend
rights and rights upon liquidation, dissolution or winding up of the Company,
rank (i) senior to all classes or series of Common Stock of the Company, and to
all equity securities ranking junior to the Series A Preferred Stock with
respect to dividend rights or rights upon liquidation, dissolution or winding
up of the Company; (ii) on a parity with all equity securities issued by the
Company the terms of which specifically provide that such equity
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securities rank on a parity with the Series A Preferred Stock with respect to
dividend rights or rights upon liquidation, dissolution or winding up of the
Company; and (iii) junior to all existing and future indebtedness of the
Company. The term "equity securities" does not include convertible debt
securities, which will rank senior to the Series A Preferred Stock prior to
conversion.
4. Dividends
(a) Holders of shares of the Series A Preferred Stock are entitled to
receive, when and as declared by the Board of Directors (or a duly authorized
committee thereof), out of funds legally available for the payment of
dividends, preferential cumulative cash dividends at the rate of ______% per
annum of the Liquidation Preference (as defined below) per share (equivalent to
a fixed annual amount of $______ per share). Dividends on the Series A
Preferred Stock shall be cumulative from the date of original issue and shall
be payable quarterly in arrears for each quarterly dividend period ended April
30, July 31, October 31 and January 31, on or before the 15th day of May,
August, November and February, respectively, of each year or, if not a business
day, the next succeeding business day (each, a "Dividend Payment Date"). The
first dividend will be paid on August 15, 1997, with respect to the period
commencing on the date of issue and ending on July 31, 1997. Any dividend
payable on the Series A Preferred Stock for any partial period will be computed
on the basis of a 360-day year consisting of twelve 30-day months. Dividends
will be payable to holders of record as they appear in the stock records of the
Company at the close of business on the applicable record date, which shall be
the last day of the preceding calendar month prior to the applicable Dividend
Payment Date or on such other date designated by the Board of Directors of the
Company that is not more than 30 nor less than 10 days prior to such Dividend
Payment Date (each, a "Dividend Record Date").
(b) No dividends on shares of Series A Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the Company at
such time as the terms and provisions of any agreement of the Company,
including any agreement relating to its indebtedness, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series A Preferred
Stock will accrue whether or not the Company has earnings, whether or not there
are funds legally available for the payment of such dividends and whether or
not such dividends are declared. Accrued but unpaid dividends on the Series A
Preferred Stock will not bear interest and holders of the Series A Preferred
Stock will not be entitled to
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any distributions in excess of full cumulative distributions described above.
Except as set forth in the next sentence, no dividends will be declared or paid
or set apart for payment on any capital stock of the Company or any other
series of Preferred Stock ranking, as to dividends, on a parity with or junior
to the Series A Preferred Stock (other than a dividend in shares of the
Company's Common Stock or in shares of any other class of stock ranking junior
to the Series A Preferred Stock as to dividends and upon liquidation) 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 is
set apart for such payment on the Series A Preferred Stock for all past
dividend periods and the then current dividend period. When dividends are not
paid in full (or a sum sufficient for such full payment is not so set apart)
upon the Series A Preferred Stock and the shares of any other series of
Preferred Stock ranking on a parity as to dividends with the Series A Preferred
Stock, all dividends declared upon the Series A Preferred Stock and any other
series of Preferred Stock ranking on a parity as to dividends with the Series A
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Series A Preferred Stock and such other series of
Preferred Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series A Preferred Stock and such other
series of Preferred Stock (which shall not include any accrual in respect of
unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend) bear to each other.
(d) Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series A Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for payment for all past dividend periods and
the then current dividend period, no dividends (other than in shares of Common
Stock or other shares of capital stock ranking junior to the Series A Preferred
Stock as to dividends and upon liquidation) shall be declared or paid or set
aside for payment nor shall any other distribution be declared or made upon the
Common Stock, or any other capital stock of the Company ranking junior to or on
a parity with the Series A Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock of
the Company ranking junior to or on a parity with the Series A Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made available for
a sinking fund for the redemption of any such shares) by the Company (except by
conversion into or exchange for other capital stock of the Company ranking
junior to the Series A Preferred Stock as to dividends and upon liquidation or
redemptions for the purpose of preserving the
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Company's qualification as a real estate investment trust under the
Internal Revenue Code of 1986, as amended). Holders of shares of the Series A
Preferred Stock shall not be entitled to any dividend, whether payable in cash,
property or stock, in excess of full cumulative dividends on the Series A
Preferred Stock as provided above. Any dividend payment made on shares of the
Series A Preferred Stock shall first be credited against the earliest accrued
but unpaid dividend due with respect to such shares which remains payable.
5. Liquidation Preference. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, the holders of shares
of Series A Preferred Stock are entitled to be paid out of the assets of the
Company legally available for distribution to its shareholders a liquidation
preference of $25 per share (the "Liquidation Preference"), plus an amount
equal to any accrued and unpaid dividends to the date of payment, but without
interest, before any distribution of assets is made to holders of Common Stock
or any other class or series of capital stock of the Company that ranks junior
to the Series A Preferred Stock as to liquidation rights. The Company will
promptly provide to the holders of Series A Preferred Stock written notice of
any event triggering the right to receive such Liquidation Preference. After
payment of the full amount of the Liquidation Preference, plus any accrued and
unpaid dividends to which they are entitled, the holders of Series A Preferred
Stock will have no right or claim to any of the remaining assets of the
Company. The consolidation or merger of the Company with or into any other
corporation, trust or entity or of any other corporation with or into the
Company, or the sale, lease or conveyance of all or substantially all of the
property or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
In determining whether a distribution (other than upon voluntary or
involuntary liquidation) by dividend, redemption or other acquisition of shares
of stock of the Company or otherwise is permitted under the Maryland General
Corporation Law (the "MGCL"), no effect shall be given to amounts that would be
needed if the Company would be dissolved at the time of the distribution, to
satisfy the preferential rights upon distribution of holders of shares of stock
of the Corporation whose preferential rights upon distribution are superior to
those receiving the distribution.
6. Redemption.
(a) The Series A Preferred Stock is not redeemable prior to July 1, 2002
subject, however, to the provisions in paragraph (9) of this Article Second.
On and after July 1, 2002, the Company, at its option, upon not less than 30
nor more than 60 days' written notice, may redeem shares of the Series A
Preferred Stock, in whole or in part, at any time or from time to time, for
cash at a redemption price of $25 per share, plus
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all accrued and unpaid dividends thereon to the date fixed for redemption
(except with respect to Excess Shares (as defined below)) without interest.
Holders of Series A Preferred Stock to be redeemed shall surrender such Series
A Preferred Stock at the place designated in such notice and shall be entitled
to the redemption price and any accrued and unpaid dividends payable upon such
redemption following such surrender. If notice of redemption of any shares of
Series A Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Company in trust for the benefit of the
holders of any shares of Series A Preferred Stock so called for redemption,
then from and after the redemption date dividends will cease to accrue on such
shares of Series A Preferred Stock, such shares of Series A Preferred Stock
shall no longer be deemed outstanding and all rights of the holders of such
shares will terminate, except the right to receive the redemption price. If
less than all of the outstanding Series A Preferred Stock is to be redeemed,
the Series A Preferred Stock to be redeemed shall be selected pro rata (as
nearly as may be practicable without creating fractional shares) or by any
other equitable method determined by the Company.
(b) Unless full cumulative dividends on all shares of Series A Preferred
Stock shall have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof set apart for payment for all past
dividend periods and the then current dividend period, no shares of Series A
Preferred Stock shall be redeemed unless all outstanding shares of Series A
Preferred Stock are simultaneously redeemed and the Company shall not purchase
or otherwise acquire directly or indirectly any shares of Series A Preferred
Stock (except by exchange for capital stock of the Company ranking junior to
the Series A Preferred Stock as to dividends and upon liquidation); provided,
however, that the foregoing shall not prevent the purchase by the Company of
Excess Shares in order to ensure that the Company continues to meet the
requirements for qualification as a REIT, or the purchase or acquisition of
shares of Series A Preferred Stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of Series A
Preferred Stock. So long as no dividends are in arrears, the Company shall be
entitled at any time and from time to time to repurchase shares of Series A
Preferred Stock in open-market transactions duly authorized by the Board of
Directors and effected in compliance with applicable laws.
(c) Notice of redemption will be mailed by the Company, postage prepaid,
not
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less than 30 nor more than 60 days prior to the redemption date, addressed
to the respective holders of record of the Series A Preferred Stock to be
redeemed at their respective addresses as they appear on the stock transfer
records of the Company. No failure to give such notice or any defect therein
or in the mailing thereof shall affect the validity of the proceedings for the
redemption of any shares of Series A Preferred Stock except as to the holder to
whom notice was defective or not given. Each notice shall state: (i) the
redemption date; (ii) the redemption price; (iii) the number of shares of
Series A Preferred Stock to be redeemed; (iv) the place or places where the
Series A Preferred Stock is to be surrendered for payment of the redemption
price; and (v) that dividends on the shares to be redeemed will cease to accrue
on such redemption date. If less than all of the Series A Preferred Stock held
by any holder is to be redeemed, the notice mailed to such holder shall also
specify the number of shares of Series A Preferred Stock held by such holder to
be redeemed.
(d) Immediately prior to any redemption of Series A Preferred Stock, the
Company shall pay, in cash, any accumulated and unpaid dividends through the
redemption date, unless a redemption date falls after a Dividend Record Date
and prior to the corresponding Dividend Payment Date, in which case each holder
of Series A Preferred Stock at the close of business on such Dividend Record
Date shall be entitled to the dividend payable on such shares on the
corresponding Dividend Payment Date notwithstanding the redemption of such
shares before such Dividend Payment Date.
e) Excess Shares may be redeemed, in whole or in part, at any time when
outstanding shares of Series A Preferred Stock are being redeemed, for cash at
a redemption price of $25 per share, but excluding accrued and unpaid dividends
on such Excess Shares, without interest. Such Excess Shares shall be redeemed
in such proportion and in accordance with such procedures as shares of Series A
Preferred Stock are being redeemed.
7. Voting Rights.
(a) Holders of the Series A Preferred Stock will not have any voting
rights, except as set forth below.
(b) Whenever dividends on any shares of Series A Preferred Stock shall be
in arrears for eighteen or more months (a "Preferred Dividend Default"), 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 respect to
any Parity Preferred (as hereinafter defined). The holders of such shares of
Series A Preferred Stock (voting separately as a class with all other series of
Preferred Stock ranking on a parity with the Series A Preferred Stock as to
dividends or upon liquidation ("Parity Preferred") upon which like
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voting rights have been conferred and are exercisable) will be entitled to vote
separately as a class, in order to fill the vacancies thereby created, for the
election of a total of two additional directors of the Company (the "Preferred
Stock Directors") at a special meeting called by the holders of record of at
least 20% of the Series A Preferred Stock or the holders of record of at least
20% of any series of Parity Preferred so in arrears (unless such request is
received less than 90 days before the date fixed for the next annual or special
meeting of the shareholders) or at the next annual meeting of shareholders, and
at each subsequent annual meeting until all dividends accumulated on such
shares of Series A Preferred Stock and Parity Preferred for the past dividend
periods and the dividend for the then current dividend period shall have been
fully paid or declared and a sum sufficient for the payment thereof set aside
for payment. In the event the directors of the Company are divided into
classes, each such vacancy shall be apportioned among the classes of directors
to prevent stacking in any one class and to insure that the number of directors
in each of the classes of directors, are as equal as possible. Each Preferred
Stock Director, as a qualification for election as such (and regardless of how
elected) shall submit to the Board of Directors of the Company a duly executed,
valid, binding and enforceable letter of resignation from the Board of
Directors, to be effective upon the date upon which all dividends accumulated
on such shares of Series A Preferred Stock and Parity Preferred for the past
dividend periods and the dividend for the then current dividend period shall
have been fully paid or declared and a sum sufficient for the payment thereof
set aside for payment, whereupon the terms of office of all persons elected as
Preferred Stock Directors by the holders of the Series A Preferred Stock and
any Parity Preferred shall, upon the effectiveness of their respective letters
of resignation, forthwith terminate, and the number of directors then
constituting the Board of Directors shall be reduced accordingly. A quorum for
any such meeting shall exist if at least a majority of the outstanding shares
of Series A Preferred Stock and shares of Parity Preferred upon which like
voting rights have been conferred and are exercisable are represented in person
or by proxy at such meeting. Such Preferred Stock Directors shall be elected
upon the affirmative vote of a plurality of the shares of Series A Preferred
Stock and such Parity Preferred present and voting in person or by proxy at a
duly called and held meeting at which a quorum is present. If and when all
accumulated dividends and the dividend for the then current dividend period on
the Series A Preferred Stock shall have been paid in full or declared and set
aside for payment in full, the holders thereof shall be divested of the
foregoing voting rights (subject to revesting in the event of each and every
Preferred Dividend Default) and, if all accumulated dividends and the dividend
for the then current dividend period have been paid in full or set aside for
payment in full on all series of Parity Preferred upon which like voting rights
have been conferred and are exercisable, the term
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of office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or without cause
by, and shall not be removed otherwise than by the vote of, the holders of
record of a majority of the outstanding shares of the Series A Preferred Stock
when they have the voting rights described above (voting separately as a class
with all series of Parity Preferred upon which like voting rights have been
conferred and are exercisable). So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Stock Director may be filled
by written consent of the Preferred Stock Director remaining in office, or if
none remains in office, by a vote of the holders of record of a majority of the
outstanding shares of Series A Preferred Stock when they have the voting rights
described above (voting separately as a class with all series of Parity
Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
(c) So long as any shares of Series A Preferred Stock remain outstanding,
the Company will not, without the affirmative vote or consent of the holders of
at least two-thirds of the shares of the Series A Preferred Stock outstanding
at the time, given in person or by proxy, either in writing or at a meeting
(voting separately as a class), amend, alter or repeal the provisions of the
Charter or the Articles Supplementary, whether by merger, consolidation or
otherwise (an "Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Stock or the
holders thereof; including without limitation, the creation of any series of
Preferred Stock ranking senior to the Series A Preferred Stock with respect to
payment of dividends or the distribution of assets upon liquidation, dissolution
or winding up; provided, however, that with respect to the occurrence of any
Event set forth above, so long as the Series A Preferred Stock (or any
equivalent class or series of stock issued by the surviving corporation in any
merger or consolidation to which the Company became a party) remains
outstanding with the terms thereof materially unchanged, the occurrence of any
such Event shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of the Series A Preferred
Stock and provided, further that (i) any increase in the amount of the
authorized Preferred Stock or the creation or issuance of any other series of
Preferred Stock, or (ii) any increase in the amount of authorized shares of
such series, in each case ranking on a parity with or junior to the Series A
Preferred Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
powers.
(d) The foregoing voting provisions will not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding shares of Series A Preferred Stock shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
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(e) Except as expressly stated in these Articles Supplementary, the Series
A Preferred Stock shall not have any relative, participating, optional or other
special voting rights and powers and the consent of the holders thereof shall
not be required for the taking of any corporate action, including but not
limited to, any merger or consolidation involving the Corporation or a sale of
all or substantially all of the assets of the Corporation, irrespective of the
effect that such merger, consolidation or sale may have upon the rights,
preferences or voting power of the holders of the Series A Preferred Stock.
8. Conversion. The Series A Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Company.
9. Restrictions on Ownership and Transfer. Once there is a completed
public offering of the Series A Preferred Stock, if the Board of Directors
shall, at any time and in good faith, be of the opinion that actual or
constructive ownership of at least 9.9% or more of the value of the outstanding
capital stock of the Company has or may become concentrated in the hands of one
owner, the Board of Directors shall have the power (i) by means deemed
equitable by the Board of Directors, and pursuant to written notice, to call
for the purchase from any shareholder of the corporation a number of shares of
Series A Preferred Stock sufficient, in the opinion of the Board of Directors,
to maintain or bring the actual or constructive ownership of such owner
to no more than 9.9% of the value of the outstanding capital stock of the
corporation, and (ii) to refuse to transfer or issue shares of Series A
Preferred Stock to any person whose acquisition of such Series A Preferred
stock would, in the opinion of the Board of Directors, result in the actual or
constructive ownership by that person of more than 9.9% of the value of the
outstanding capital stock of the Company. The purchase price for any shares
of Series A Preferred Stock shall be equal to the fair market value of the
shares reflected in the closing sales price for the shares, if then listed
on a national securities exchange, or if the shares are not then listed on a
national securities exchange, the purchase price shall be equal to the
redemption price of such shares of Series A Preferred Stock. Payment of the
purchase price shall be made within thirty days following the date set forth in
the notice of call for purchase, and shall be made in such manner as may be
determined by the Board of Directors of the Company. From and after the date
fixed for purchase by the Board of Directors, as set forth in the notice, the
holder of any shares so called for purchase shall cease to be entitled to
distributions, and other benefits with respect to such shares, excepting only
the right to payment of the purchase price fixed as aforesaid. Any transfer of
Series A Preferred Stock that would create an actual or constructive owner of
more
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EXHIBIT 4.1
than 9.9% of the value of the outstanding shares of capital stock of this
Company shall be deemed void ab initio and the intended transferee shall be
deemed never to have had an interest therein. If the foregoing provision is
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the transferee of such Series A Preferred Stock shall be
deemed, at the option of the Company, to have acted as agent on behalf of
the Company in acquiring such shares and to hold such shares on behalf of
the Company.
Notwithstanding anything herein to the contrary, the Company and its
transfer agent may refuse to transfer any shares of Series A Preferred Stock,
passing either by voluntary transfer, by operation of law, or under the last
will and testament of any shareholder if such transfer would or might, in the
opinion of the Board of Directors or counsel to the Company, disqualify the
Company as a Real Estate Investment Trust under the Internal Revenue Code.
Nothing herein contained shall limit the ability of the corporation to impose
or to seek judicial or other imposition of additional restrictions if deemed
necessary or advisable to preserve the Company's tax status as a qualified Real
Estate Investment Trust. Nothing herein contained shall preclude settlement of
any transaction entered into through the facilities of the New York Stock
Exchange.
THIRD: The classification of authorized but unissued shares as set forth
in these Articles Supplementary does not increase the authorized capital of the
Company` or the aggregate par value thereof.
FOURTH: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President of the Company acknowledges these
Articles Supplementary to be the corporate act of the Company and, as to all
matters or facts required to be verified under oath, the undersigned President
of the Company 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.
IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to
be executed under seal in its name and on its behalf by its President and
attested to by its Secretary on this _____ day of ______________________, 1997.
ATTEST OMEGA HEALTHCARE INVESTORS, INC.
__________________________ By: _________________________________
Title: Secretary Title: President
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