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EXHIBIT 4.1
SUN COMMUNITIES, INC.
ARTICLES SUPPLEMENTARY
SUN COMMUNITIES, INC., a Maryland corporation (the "COMPANY"), hereby
certifies to the State Department of Assessments and Taxation of Maryland (the
"DEPARTMENT") that:
FIRST: Pursuant to the authority expressly vested in the Board
of Directors of the Company by Article V of the Charter of the Company
and Sections 2-105 and 2-208 of the Maryland General Corporation Law
(the "MGCL"), the Board of Directors of the Company (the "BOARD OF
DIRECTORS"), by resolutions duly adopted as of September 23, 1999, has
classified 2,000,000 shares of the authorized but unissued shares of
the preferred stock par value $.01 per share ("PREFERRED STOCK") of the
Company as a separate class of Preferred Stock, such class being
designated the "9.125% Series A Cumulative Redeemable Perpetual
Preferred Stock."
SECOND: The class of Preferred Stock of the Company created by
the resolutions duly adopted by the Board of Directors of the Company
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, limitation as
to dividends and other distributions, qualifications, terms and
conditions of redemption and other terms and conditions:
SECTION 1. DESIGNATION AND NUMBER. The shares of
Preferred Stock hereby classified shall be designated the
"9.125% Series A Cumulative Redeemable Perpetual Preferred
Stock" (the "SERIES A PREFERRED STOCK"). The number of shares
of Series A Preferred Stock shall be 2,000,000.
SECTION 2. RANK. The Series A Preferred Stock will,
with respect to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the
Company, rank senior to all classes or series of Common Stock
(as defined in the Charter) and to all classes or series of
equity securities of the Company now or hereafter authorized,
issued or outstanding, other than any class or series of
equity securities of the Company expressly designated as
ranking on a parity with or senior to the Series A Preferred
Stock as to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the
Company. For purposes of these Articles Supplementary, the
term "PARITY
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PREFERRED STOCK" shall be used to refer to any class or series
of equity securities of the Company now or hereafter
authorized, issued or outstanding expressly designated by the
Company to rank on a parity with Series A Preferred Stock with
respect to distributions and rights upon voluntary or
involuntary liquidation, winding-up or dissolution of the
Company. The term "equity securities" does not include debt
securities, which will rank senior to the Series A Preferred
Stock.
SECTION 3. DISTRIBUTIONS.
(a) Payment of Distributions.
(i) Subject to the rights of holders of
Parity Preferred Stock as to the payment of
distributions and holders of equity securities
ranking senior to the Series A Preferred Stock as to
payment of distributions, holders of Series A
Preferred Stock will be entitled to receive, when, as
and if declared by the Company, out of funds legally
available for the payment of distributions,
cumulative preferential cash distributions at the
rate per annum of 9.125% of the $25.00 liquidation
preference per share of Series A Preferred Stock (the
"ISSUANCE RATE").
(ii) In the event that on or prior to
December 31, 1999 the senior unsecured debt of Sun
Communities Operating Limited Partnership shall have
either an unconditional, published (A) rating by
Standard & Poor's Ratings Group ("STANDARD & POOR'S")
exceeding "BBB" or (B) rating by Moody's Investors
Service, Inc. ("MOODY'S") exceeding "Baa3", then,
beginning on the date on which either of such
foregoing conditions is met, the rate per annum of
the cumulative preferential cash distributions on the
Series A Preferred Stock shall be 8.875% (the
"REVISED RATE") of the $25.00 liquidation preference
per share of Series A Preferred Stock, in which case
the designation of the Series A Preferred Stock will
change accordingly to reflect such new distribution
rate; provided, that, if either (i) such Standard &
Poor's unconditional published rating exceeding "BBB"
or (ii) such Moody's rating exceeding "Baa3" shall
not be in effect on December 31, 1999, then the
Revised Rate herein provided shall be void ab initio
and the Company shall pay on December 31, 1999, in
addition to the dividend then due to the holders of
the Series A Preferred Stock, the difference between
(1) the dividend that would have accrued at the
Issuance Rate during the current and any prior
quarterly distribution period and (2) the dividend
that actually accrued during such distribution
periods at the voided Revised Rate.
(iii) Promptly after December 31, 1999 the
parties hereto shall execute, acknowledge and
deliver, or cause to be executed, acknowledged
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and delivered, all instruments and documents as may
be reasonably necessary or desirable to memorialize
the revision of the distribution rate in effect from
and after December 31, 1999 in accordance with
Section 3(a)(ii) above.
(iv) All distributions shall be cumulative,
shall accrue from the original date of issuance and
shall be payable (i) quarterly (such quarterly
periods for purposes of payment and accrual will be
the quarterly periods ending on the dates specified
in this sentence) in arrears, on March 31, June 30,
September 30 and December 31 of each year, commencing
on the first of such dates to occur after the
original date of issuance and, (ii) in the event of a
redemption, on the redemption date (each a "PREFERRED
STOCK DISTRIBUTION PAYMENT DATE"). The amount of the
distribution payable for any period will be computed
on the basis of a 360-day year of twelve 30-day
months and for any period shorter than a full
quarterly period for which distributions are
computed, the amount of the distribution payable will
be computed based on the ratio of the actual number
of days elapsed in such quarterly period to ninety
(90) days. If any date on which distributions are to
be made on the Series A Preferred Stock is not a
Business Day (as defined herein), then payment of the
distribution to be made on such date will be made on
the next succeeding day that is a Business Day (and
without any interest or other payment in respect of
any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business
Day, in each case with the same force and effect as
if made on such date. Distributions on the Series A
Preferred Stock will be made to the holders of record
of the Series A Preferred Stock on the relevant
record dates, which, unless otherwise provided by the
Company with respect to any distribution, will be
fifteen (15) Business Days prior to the relevant
Preferred Stock Distribution Payment Date (each a
"DISTRIBUTION RECORD DATE"). Notwithstanding anything
to the contrary set forth herein, each share of
Series A Preferred Stock shall also continue to
accrue all accrued and unpaid distributions up to the
exchange date on any Series A Preference Unit (as
defined in the Second Amended and Restated Limited
Partnership Agreement of Sun Communities Operating
Limited Partnership, dated as of April 30, 1996, as
amended by (i) those certain amendments numbered one
through one hundred two, and (ii) the One Hundred
Third Amendment to the Agreement of Limited
Partnership, dated as of September 29, 1999, and as
may be further amended from time to time
(collectively, as amended, the "PARTNERSHIP
AGREEMENT") validly exchanged into such share of
Series A Preferred Stock in accordance with the
provisions of such Partnership Agreement.
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(v) The term "BUSINESS DAY" shall mean each
day, other than a Saturday or a Sunday, which is not
a day on which banking institutions in New York, New
York are authorized or required by law, regulation or
executive order to close.
(b) Limitations on Distributions. No distributions on
the Series A Preferred Stock shall be declared 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, payment or setting apart for payment
shall be restricted or prohibited by law.
(c) Distributions Cumulative. Notwithstanding the
foregoing, distributions on the Series A Preferred Stock will
accrue whether or not declared, whether or not the terms and
provisions set forth in SECTION 3(B) hereof at any time
prohibit the current payment of distributions, whether or not
the Company has earnings, whether or not there are funds
legally available for the payment of such distributions and
whether or not such distributions are authorized or declared.
Accrued but unpaid distributions on the Series A Preferred
Stock will accumulate as of the Preferred Stock Distribution
Payment Date on which they first become payable. Accumulated
and unpaid distributions will not bear interest.
(d) Priority as to Distributions.
(i) So long as any Series A Preferred Stock
is outstanding, no distribution of cash or other
property shall be authorized, declared, paid or set
apart for payment on or with respect to any class or
series of Common Stock or any class or series of
equity securities of the Company ranking junior to
the Series A Preferred Stock as to distributions or
rights upon voluntary or involuntary dissolution,
liquidation or winding up of the Company to the
Series A Preferred Stock (such Common Stock or other
junior equity securities, collectively, "JUNIOR
STOCK"), nor shall any cash or other property be set
aside for or applied to the purchase, redemption or
other acquisition for consideration of any Series A
Preferred Stock, any Parity Preferred Stock or any
Junior Stock, unless, in each case, all distributions
accumulated on all Series A Preferred Stock and all
classes and series of outstanding Parity Preferred
Stock have been paid in full. The foregoing sentence
will not prohibit (i) distributions payable solely in
equity securities ranking junior to the Series A
Preferred Stock as to distributions and rights upon
voluntary or involuntary dissolution,
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liquidation or winding up of the Company, (ii) the
conversion of Junior Stock or Parity Preferred Stock
into equity securities of the Company ranking junior
to the Series A Preferred Stock as to distributions
and rights upon voluntary or involuntary dissolution,
liquidation or winding-up of the Company, and (iii)
purchase by the Company of such Series A Preferred
Stock, Parity Preferred Stock or Junior Stock
pursuant to Article VII (Restriction on Transfer,
Acquisition and Redemption of Shares) of the Charter
to the extent required to preserve the Company's
status as a real estate investment trust.
(ii) So long as distributions have not been
paid in full (or a sum sufficient for such full
payment is not irrevocably deposited in trust for
immediate payment) upon the Series A Preferred Stock,
all distributions authorized and declared on the
Series A Preferred Stock and all classes or series of
outstanding Parity Preferred Stock shall be
authorized and declared so that the amount of
distributions authorized and declared per share of
Series A Preferred Stock and such other classes or
series of Parity Preferred Stock shall in all cases
bear to each other the same ratio that accrued
distributions per share on the Series A Preferred
Stock and such other classes or series of Parity
Preferred Stock (which shall not include any
accumulation in respect of unpaid distributions for
prior distribution periods if such class or series of
Parity Preferred Stock does not have cumulative
distribution rights) bear to each other.
(e) No Further Rights. Holders of Series A Preferred
Stock shall not be entitled to any distributions, whether
payable in cash, other property or otherwise, in excess of the
full cumulative distributions described herein.
SECTION 4. LIQUIDATION PREFERENCE.
(a) Payment of Liquidating Distributions. Subject to
the rights of holders of Parity Preferred Stock with respect
to rights upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and subject to equity
securities ranking senior to the Series A Preferred Stock with
respect to rights upon any voluntary or involuntary
liquidation, dissolution or winding-up of the Company, the
holders of Series A Preferred Stock shall be entitled to
receive out of the assets of the Company legally available for
distribution or the proceeds thereof, after payment or
provision for debts and other liabilities of the Company, but
before any payment or distributions of the assets shall be
made to holders of Common Stock or any other class or series
of equity securities of the Company that ranks junior to the
Series A Preferred Stock as to rights upon liquidation,
dissolution or winding-up of the Company, an amount equal to
the sum of (i) a liquidation preference of $25.00 per share of
Series A Preferred Stock, and (ii) an
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amount equal to any accumulated and unpaid distributions
thereon, whether or not declared, to the date of payment. In
the event that, upon such voluntary or involuntary
liquidation, dissolution or winding-up, there are insufficient
assets to permit full payment of liquidating distributions to
the holders of Series A Preferred Stock and any Parity
Preferred Stock, all payments of liquidating distributions on
the Series A Preferred Stock and such Parity Preferred Stock
shall be made so that the payments on the Series A Preferred
Stock and such Parity Preferred Stock shall in all cases bear
to each other the same ratio that the respective rights of the
Series A Preferred Stock and such other Parity Preferred Stock
(which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such Parity
Preferred Stock does not have cumulative distribution rights)
upon liquidation, dissolution or winding-up of the Company
bear to each other.
(b) Notice. Written notice of any such voluntary or
involuntary liquidation, dissolution or winding-up of the
Company, stating the payment date or dates when, and the place
or places where, the amounts distributable in such
circumstances shall be payable, shall be given by (i) fax and
(ii) by first class mail, postage pre-paid, not less than
thirty (30) and not more than sixty (60) days prior to the
payment date stated therein, to each record holder of the
Series A Preferred Stock at the respective addresses of such
holders as the same shall appear on the share transfer records
of the Company.
(c) No Further Rights. After payment of the full
amount of the liquidating distributions 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.
(d) Consolidation, Merger or Certain Other
Transactions. The voluntary sale, conveyance, lease, exchange
or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or
assets of the Company to, or the consolidation or merger or
other business combination of the Company with or into any
corporation, trust or other entity (or of any corporation,
trust or other entity with or into the Company) shall not be
deemed to constitute a liquidation, dissolution or winding-up
of the Company.
(e) Permissible Distributions. 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 MGCL, no effect shall be given to amounts that would be
needed, if the Company were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon
dissolution of holders of shares of stock of the Company
whose preferential rights upon dissolution are superior to
those receiving the
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distribution.
SECTION 5. OPTIONAL REDEMPTION.
(a) Right of Optional Redemption. The Series A
Preferred Stock may not be redeemed prior to September 29,
2004. On or after such date, the Company shall have the right
to redeem the Series A Preferred Stock, in whole or in part,
at any time or from time to time, upon not less than thirty
(30) nor more than sixty (60) days written notice, at a
redemption price, payable in cash, equal to $25.00 per share
of Series A Preferred Stock plus accumulated and unpaid
distributions, whether or not declared, to the date of
redemption. If fewer than all of the outstanding shares of
Series A Preferred Stock are to be redeemed, the shares of
Series A Preferred Stock to be redeemed shall be selected pro
rata (as nearly as practicable without creating fractional
units).
(b) Limitation on Redemption.
(i) The redemption price of the Series A
Preferred Stock (other than the portion thereof
consisting of accumulated but unpaid distributions)
will be payable solely out of the sale proceeds of
capital stock of the Company and from no other
source. For purposes of the preceding sentence,
"capital stock" means any equity securities
(including Common Stock and Preferred Stock), shares,
participation 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.
(ii) The Company may not redeem fewer than
all of the outstanding shares of Series A Preferred
Stock unless all accumulated and unpaid distributions
have been paid on all outstanding Series A Preferred
Stock for all quarterly distribution periods
terminating on or prior to the date of redemption.
(c) Procedures for Redemption.
(i) Notice of redemption will be (i) faxed,
and (ii) mailed by the Company, postage prepaid, not
less than thirty (30) nor more than sixty (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 share transfer
records of the Company. No failure to give or defect
in such notice shall affect the validity of the
proceedings for the redemption of any Series A
Preferred Stock except as to the holder to whom
such notice was defective or not
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given. In addition to any information required by
law or by the applicable rules of any exchange upon
which the Series A Preferred Stock may be listed or
admitted to trading, each such 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
such shares of Series A Preferred Stock are to be
surrendered for payment of the redemption price, (v)
that distributions on the Series A Preferred Stock to
be redeemed will cease to accumulate on such
redemption date and (vi) that payment of the
redemption price and any accumulated and unpaid
distributions will be made upon presentation and
surrender of such Series A Preferred Stock. If fewer
than all of the shares of Series A Preferred Stock
held by any holder are 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.
(ii) If the Company gives a notice of
redemption in respect of Series A Preferred Stock
(which notice will be irrevocable) then, by 12:00
noon, New York City time, on the redemption date, the
Company will deposit irrevocably in trust for the
benefit of the Series A Preferred Stock being
redeemed funds sufficient to pay the applicable
redemption price, plus any accumulated and unpaid
distributions, if any, on such shares to the date
fixed for redemption, without interest, and will give
irrevocable instructions and authority to pay such
redemption price and any accumulated and unpaid
distributions, whether or not declared, if any, on
such shares to the holders of the Series A Preferred
Stock upon surrender of the Series A Preferred Stock
by such holders at the place designated in the notice
of redemption. If fewer than all Series A Preferred
Stock evidenced by any certificate is being redeemed,
a new certificate shall be issued upon surrender of
the certificate evidencing all Series A Preferred
Stock, evidencing the unredeemed Series A Preferred
Stock without cost to the holder thereof. On and
after the date of redemption, distributions will
cease to accumulate on the Series A Preferred Stock
or portions thereof called for redemption, unless the
Company defaults in the payment thereof. If any date
fixed for redemption of Series A Preferred Stock is
not a Business Day, then payment of the redemption
price payable on such date will be made on the next
succeeding day that is a Business Day (and without
any interest or other payment in respect of any such
delay) except that, if such Business Day falls in the
next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with
the same force and effect as if made on such date
fixed for redemption. If payment of the redemption
price or any accumulated or unpaid distributions in
respect of the Series A Preferred Stock is
improperly withheld or refused and not paid by the
Company,
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distributions on such Series A Preferred Stock
will continue to accumulate from the original
redemption date to the date of payment, in which case
the actual payment date will be considered the date
fixed for redemption for purposes of calculating the
applicable redemption price and any accumulated and
unpaid distributions.
(d) Status of Redeemed Stock. Any Series A Preferred
Stock that shall at any time have been redeemed shall after
such redemption, have the status of authorized but unissued
Preferred Stock, without designation as to class or series
until such shares are once more designated as part of a
particular class or series by the Board of Directors.
SECTION 6. VOTING RIGHTS.
(a) General. Holders of the Series A Preferred Stock
will not have any voting rights, except as set forth below.
(b) Right to Elect Directors.
(i) If at any time full distributions shall
not have been timely made on any Series A Preferred
Stock with respect to any six (6) prior quarterly
distribution periods, whether or not consecutive (a
"PREFERRED DISTRIBUTION DEFAULT"), the holders of
such Series A Preferred Stock, voting together as a
single class with the holders of each class or series
of Parity Preferred Stock upon which like voting
rights have been conferred and are exercisable
(collectively, the "PARITY SECURITIES"), will have
the right to elect two additional directors (and the
number of directors of the Company shall be deemed to
have increased by two (2)) to serve on the Company's
Board of Directors (the "PREFERRED STOCK DIRECTORS")
at a special meeting called by the holders of the
outstanding shares of Series A Preferred Stock in
accordance with Section 6(b)(ii) or at the next
annual meeting of stockholders, and at each
subsequent annual meeting of stockholders or special
meeting held in place thereof, until all such
distributions in arrears and distributions for the
current quarterly period on the Series A Preferred
Stock and each such class or series of Parity
Preferred Stock have been paid in full.
(ii) At any time when such voting rights
shall have vested, a proper officer of the Company
shall call or cause to be called, upon written
request of holders of record of at least 10% of the
outstanding shares of Series A Preferred Stock, a
special meeting of the holders of Series A Preferred
Stock and all the series of Parity Securities by
mailing or causing to be mailed to such holders a
notice of such special meeting to be
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held not less than ten and not more than 45 days
after the date such notice is given. The
record date for determining holders of the Parity
Securities entitled to notice of and to vote at such
special meeting will be the close of business on the
third Business Day preceding the day on which such
notice is mailed. At any such special meeting, all of
the holders of the Parity Securities, by plurality
vote, voting together as a single class without
regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of
liquidation preference to which such Parity
Securities are entitled by their terms (excluding
amounts in respect of accumulated and unpaid
dividends) and not cumulatively. The holder or
holders of one-third of the Parity Securities then
outstanding, present in person or by proxy, will
constitute a quorum for the election of the Preferred
Stock Directors except as otherwise provided by law.
Notice of all meetings at which holders of the Series
A Preferred Stock shall be entitled to vote will be
given to such holders at their addresses as they
appear in the share transfer records of the Company.
At any such meeting or adjournment thereof in the
absence of a quorum, subject to the provisions of any
applicable law, a majority of the holders of the
Parity Securities present in person or by proxy shall
have the power to adjourn the meeting for the
election of the Preferred Stock Directors, without
notice other than an announcement at the meeting,
until a quorum is present. If a Preferred
Distribution Default shall terminate after the notice
of a special meeting has been given but before such
special meeting has been held, the Company shall, as
soon as practicable after such termination, mail or
cause to be mailed notice of such termination to
holders of the Series A Preferred Stock that would
have been entitled to vote at such special meeting.
(iii) If and when all accumulated
distributions and the distribution for the current
distribution period on the Series A Preferred Stock
shall have been paid in full or a sum sufficient for
such payment is irrevocably deposited in trust for
payment, the holders of the Series A Preferred Stock
shall be divested of the voting rights set forth in
SECTION 6(B) herein (subject to revesting in the
event of each and every Preferred Distribution
Default) and, if all distributions in arrears and the
distributions for the current distribution period
have been paid in full or set aside for payment in
full on all other classes or series of Parity
Preferred Stock upon which like voting rights have
been conferred and are exercisable, the term and
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 the vote
of, and shall not be removed otherwise than by the
vote of, the holders of record of a majority of the
outstanding Series A Preferred Stock when they have
the voting rights set
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forth in SECTION 6(B) (voting separately as a single
class with all other classes or series of Parity
Preferred Stock upon which like voting rights have
been conferred and are exercisable). So long as a
Preferred Distribution 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 by a vote of
the holders of record of a majority of the
outstanding Series A Preferred Stock when they have
the voting rights set forth in SECTION 6(B) (voting
separately as a single class with all other classes
or series of Parity Preferred Stock upon which like
voting rights have been conferred and are
exercisable). The Preferred Stock Director shall each
be entitled to one vote per director on any matter.
(c) Certain Voting Rights. So long as any Series A
Preferred Stock remains outstanding, the Company shall not,
without the affirmative vote of the holders of at least
two-thirds of the Series A Preferred Stock outstanding at the
time (i) designate or create, or increase the authorized or
issued amount of, any class or series of shares ranking senior
to the Series A Preferred Stock with respect to payment of
distributions or rights upon liquidation, dissolution or
winding-up or reclassify any authorized shares of the Company
into any such shares, or create, authorize or issue any
obligations or security convertible into or evidencing the
right to purchase any such shares, (ii) designate or create,
or increase the authorized or issued amount of, any Parity
Preferred Stock or any stock which purports to be on parity
with the Series A Preferred Stock as to either (but not both)
distributions or rights upon dissolution, liquidation or
winding-up or reclassify any authorized shares of the Company
into any such shares, or create, authorize or issue any
obligations or security convertible into or evidencing the
right to purchase any such shares, but only to the extent such
Parity Preferred Stock is issued to an affiliate (as defined
in Section 11 of the Second Article of these Articles
Supplementary) of the Company unless such issuance is upon
terms determined by the Board of Directors (such determination
to include the affirmative approval of a majority of all
disinterested directors) to be no more favorable to the
holders thereof as it would offer in an arm's length
transaction to an unrelated third party, or (iii) either (A)
consolidate, merge into or with, or convey, transfer or lease
its assets substantially as an entirety, to any corporation or
other entity, or (B) amend, alter or repeal the provisions of
the Company's Charter (including these Articles Supplementary)
or By-laws, whether by merger, consolidation or otherwise, in
each case that would materially and adversely affect the
powers, special rights, preferences, privileges or voting
power of the Series A Preferred Stock or the holders thereof;
provided, however, that with respect to the occurrence of a
merger, consolidation or sale or lease of all of the Company's
assets as an entirety, so long as (a) the Company is the
surviving entity and the Series A Preferred Stock remains
outstanding with the terms thereof unchanged,
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or (b) the resulting, surviving or transferee entity is a
corporation organized under the laws of any state and
substitutes for the Series A Preferred Stock other preferred
stock having substantially the same terms and same rights as
the Series A Preferred Stock, including with respect to
distributions, voting rights and rights upon liquidation,
dissolution or winding-up, then the occurrence of any such
event shall not be deemed to materially and adversely affect
the rights, privileges or voting powers of the holders of the
Series A Preferred Stock and provided further that any
increase in the amount of authorized Preferred Stock or the
creation or issuance of any other class or series of Preferred
Stock, or any increase in an amount of authorized shares of
each class or series, in each case ranking either (a) junior
to the Series A Preferred Stock with respect to payment of
distributions and the distribution of assets upon liquidation,
dissolution or winding-up, or (b) on a parity with the Series
A Preferred Stock with respect to payment of distributions or
the distribution of assets upon liquidation, dissolution or
winding-up, or both, to the extent such Preferred Stock (1) is
not issued to an affiliate of the Company, or (2) is issued to
an affiliate of the Company, other than upon terms determined
by the Board of Directors (such determination to include the
affirmative approval of a majority of all disinterested
directors) to be no more favorable to the holders thereof than
those it would offer in an arm's length transaction to an
unrelated third party, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or
voting powers.
SECTION 7. TRANSFER RESTRICTIONS. The Series A
Preferred Stock shall be subject to the provisions of Article
VII (Restriction on Transfer, Acquisition and Redemption of
Shares) of the Charter.
SECTION 8. NO CONVERSION RIGHTS. The holders of
the Series A Preferred Stock shall not have any rights to
convert such shares into shares of any other class or series
of stock or into any other securities of, or interest in, the
Company.
SECTION 9. NO SINKING FUND. No sinking fund
shall be established for the retirement or redemption of
Series A Preferred Stock.
SECTION 10. NO PREEMPTIVE RIGHTS. No holder of
the Series A Preferred Stock of the Company shall, as such
holder, have any preemptive rights to purchase or subscribe
for additional shares of stock of the Company or any other
security of the Company which it may issue or sell.
SECTION 11. DEFINITION OF AFFILIATE. For the
purposes of these Articles Supplementary, the term
"AFFILIATE" shall mean any person or entity which directly
or indirectly through one or more intermediaries controls,
is controlled by or is under common control with the Company,
or its permitted successor.
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THIRD: The Series A Preferred Stock has been classified and
designated by the Board of Directors under the authority contained in
the Charter.
FOURTH: These Articles Supplementary have been approved by
the Board of Directors of the Company in the manner and by the vote
required by law.
(SIGNATURE APPEARS ON NEXT PAGE)
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IN WITNESS WHEREOF, Sun Communities, Inc. has caused these Articles
Supplementary to be signed and acknowledged in its name and on its behalf by the
undersigned duly authorized officer and attested to by its Secretary on this
29th day of September, 1999; and such officer acknowledges that these Articles
Supplementary are the act of Sun Communities, Inc., and he further acknowledges
that, as to all matters or facts set forth herein which are required to be
verified under oath, such matters and facts are true in all material respects to
the best of his knowledge, information and belief, and that this statement is
made under the penalties for perjury.
SUN COMMUNITIES, INC.
By: /s/ Mary A. Petrella
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Name: Mary A. Petrella
Title: Vice President
[SEAL]
ATTEST:
Name: /s/ Jeffrey P. Jorissen
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Secretary
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