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Exhibit 3.2
SIMON PROPERTY GROUP, INC.
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE
SERIES D 8.00% CUMULATIVE REDEEMABLE PREFERRED STOCK,
$.0001 PAR VALUE
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The following resolution was duly adopted by the Board of
Directors (the "Board of Directors") of SIMON PROPERTY GROUP, INC., a
Delaware corporation (the "Corporation"), pursuant to the provisions of
Section 151 of the General Corporation Law of the State of Delaware:
WHEREAS, the Board of Directors of the Corporation is
authorized, within the limitations and restrictions stated in the
Restated Certificate of Incorporation of the Corporation to provide by
resolution or resolutions for the issuance of shares of preferred stock
of the Corporation, in one or more series with such voting powers, full
or limited, or no voting powers, and such preferences and relative,
participating, optional or other special rights and such qualifications,
limitations or restrictions thereof, as shall be stated in such
resolution providing for the issue of such series of preferred stock as
may be adopted from time to time by the Board of Directors;
WHEREAS, the Board of Directors of the Corporation has
determined that it is in the best interest of the Corporation and its
stockholders to designate a new series of preferred stock of the
Corporation; and
WHEREAS, it is the desire of the Board of Directors of the
Corporation, pursuant to its authority as aforesaid, to authorize and
fix the terms of a series of preferred stock and the number of shares
constituting such series;
NOW, THEREFORE, BE IT RESOLVED:
SECTION 1. Designation and Number. The designation of the
series of Preferred Stock of the Corporation created by this Certificate
of Designation shall be "Series D 8.00% Cumulative Redeemable Preferred
Stock" (the "8.00% Cumulative Redeemable Preferred Stock"). The
authorized number of shares of 8.00% Cumulative Redeemable Preferred
Stock shall be 1,500,000, with par value $.0001 per share.
SECTION 2. Ranking. The 8.00% Cumulative Redeemable
Preferred Stock shall, with respect to the payment of dividends or
rights upon the dissolution, liquidation or winding-up of the
Corporation, rank: (i) senior to the holders of Common Stock, par value
$.0001 per share, of the Corporation (the "Common Stock") and any other
class or series of stock of the Corporation which by its terms rank
junior to the 8.00% Cumulative Redeemable Preferred Stock either as to
dividends or rights upon the dissolution, liquidation or winding-up of
the Corporation (such Common Stock and such other class or series of
stock, collectively, the "Junior Stock"), (ii) pari passu with any other
preferred stock which is not by its terms junior or senior to the 8.00%
Cumulative Redeemable Preferred Stock as to dividends or rights upon the
dissolution, liquidation or winding-up of the Corporation, and in all
respects shall rank pari passu with the 6.50% Series A Convertible
Preferred Stock, 6.50% Series B Convertible Preferred Stock, 6.50%
Series A Excess Preferred Stock, 6.50% Series B Excess Preferred Stock
and 8.75% Series B Cumulative Redeemable Preferred Stock, which are the
only preferred stock of the Corporation authorized as of the date hereof
("Parity Stock") and (iii) junior to any other preferred stock which by
its terms is senior to the shares of 8.00% Cumulative Redeemable
Preferred Stock as to dividends or rights upon the dissolution,
liquidation or winding-up of the Corporation ("Senior Stock").
SECTION 3. Dividends. (a) The holders of shares of
8.00% Cumulative Redeemable Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors, in their
sole discretion, out of assets of the Corporation legally available for
payment an annual cash dividend equal to 8.00% of the Liquidation
Preference (as defined herein), payable in equal quarterly installments
on or about the last day of March, June, September and December of each
year. Dividends shall be payable to holders of record as they appear on
the stock register of the Corporation on such record dates, not more
than 30 calendar days nor less than five calendar days preceding the
payment dates thereof, as shall be fixed by the Board of Directors.
(b) Dividends on the shares of 8.00% Cumulative Redeemable
Preferred Stock, without any additional return on unpaid dividends, will
accumulate, whether or not the Corporation has earnings, whether or not
there are funds legally available for the payment of such dividends and
whether or not such dividends are declared or paid when due. All such
dividends accumulate from the first date of issuance of any such shares
of 8.00% Cumulative Redeemable Preferred Stock. Dividends on the shares
of 8.00% Cumulative Redeemable Preferred Stock shall cease to accumulate
on such shares on the date of their earlier conversion or redemption.
(c) If any shares of 8.00% Cumulative Redeemable Preferred
Stock are outstanding, then, except as provided in the following
sentence, no dividends shall be declared or paid or set apart for
payment on any Parity Stock or Junior Stock for any period unless full
cumulative dividends have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart
for such payments on the shares of 8.00% Cumulative Redeemable 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 set apart) upon the shares of 8.00% Cumulative
Redeemable Preferred Stock and any Parity Stock, all dividends declared
upon the shares of 8.00% Cumulative Redeemable Preferred Stock and any
other Parity Stock shall be declared pro rata so that the amount of
dividends declared per share of 8.00% Cumulative Redeemable Preferred
Stock and such other Parity Stock shall in all cases bear to each other
the same ratio that accrued dividends per share of 8.00% Cumulative
Redeemable Preferred Stock and such other series of Parity Stock bear to
each other.
(d) Except as provided in subparagraph (c) above, unless full
cumulative dividends on the 8.00% Cumulative Redeemable Preferred Stock
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 dividends
(other than in Junior Stock) shall be declared, set aside for payment or
paid and no other dividend shall be declared or made upon any Junior
Stock, nor shall any Junior Stock 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 Junior
Stock) by the Corporation (except by conversion into or exchange for
Junior Stock).
SECTION 4. Liquidation Preference. (a) Each share of
8.00% Cumulative Redeemable Preferred Stock shall be entitled to a
liquidation preference of $30.00 per share of 8.00% Cumulative
Redeemable Preferred Stock ("Liquidation Preference").
(b) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of
8.00% Cumulative Redeemable Preferred Stock then outstanding shall be
entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, whether from capital, surplus or
earnings, after and subject to the payment in full of all amounts
required to be distributed to the holders of Senior Stock, but before
any payment shall be made to the holders of Junior Stock, an amount
equal to the aggregate Liquidation Preference of the 8.00% Cumulative
Redeemable Preferred Stock held by such holder, plus an amount equal to
accrued and unpaid dividends thereon, if any. If upon any such
liquidation, dissolution or winding up of the Corporation the remaining
assets of the Corporation available for the distribution after payment
in full of amounts required to be paid or distributed to holders of
Senior Stock shall be insufficient to pay the holders of the 8.00%
Cumulative Redeemable Preferred Stock the full amount to which they
shall be entitled, the holders of the 8.00% Cumulative Redeemable
Preferred Stock and the holders of any series of Parity Stock shall
share ratably with other holders of Parity Stock in any distribution of
the remaining assets and funds of the Corporation in proportion to the
respective amounts which would otherwise be payable in respect to the
Parity Stock held by each of the said holders upon such distribution if
all amounts payable on or with respect to said Parity Stock were paid in
full. After payment in full of the Liquidation Preference and
accumulated and unpaid dividends to which they are entitled, the holders
of shares of 8.00% Cumulative Redeemable Preferred Stock shall not be
entitled to any further participation in any distribution of the assets
of the Corporation.
SECTION 5. Redemption. (a) General. The shares of
8.00% Cumulative Redeemable Preferred Stock are not redeemable prior to
August 27, 2009.
(b) Redemption at the Option of the Corporation. (i) On and
after August 27, 2009, the Corporation may, at its option, at any time,
redeem the shares of 8.00% Cumulative Redeemable Preferred Stock, in
whole or in part, at the Liquidation Preference, plus accrued and unpaid
dividends thereon, if any, to and including the date of redemption (the
"Redemption Price"). The Redemption Price is payable in cash or (other
than the portion thereof consisting of accrued and unpaid dividends,
which shall be payable in cash) in Common Stock at the Current Per Share
Market Price, as of the Redemption Date (as defined below) of the Common
Stock to be issued.
(ii) Provided that no later than the Redemption Date the
Corporation shall have (A) set apart the funds necessary to pay the
accrued and unpaid dividends on all the 8.00% Cumulative Redeemable
Preferred Stock then called for redemption and (B) reserved for issuance
a sufficient number of authorized Common Stock, the Corporation may give
the holders of shares of 8.00% Cumulative Redeemable Preferred Stock
written notice ("Redemption Notice") of a redemption pursuant to Section
5(b) (a "Redemption") not more than 70 nor less than 40 calendar days
prior to the date fixed for redemption (the "Redemption Date") at the
address of such holders on the books of the Corporation (provided that
failure to give such notice or any defect therein shall not affect the
validity of the proceeding for a Redemption except as to the holder to
whom the Corporation has failed to give such notice or whose notice was
defective). The shares of 8.00% Cumulative Redeemable Preferred Stock
for which the Redemption Price has been paid shall no longer be deemed
outstanding from and after the date of payment and all rights with
respect to such shares shall forthwith cease and terminate. In case
fewer than all of the outstanding shares of 8.00% Cumulative Redeemable
Preferred Stock are called for redemption, such shares shall be redeemed
pro rata, as nearly as practicable, among all holders of shares of 8.00%
Cumulative Redeemable Preferred Stock.
SECTION 6. No Right to Certain Dividends or Distributions.
(a) Any holder of shares of 8.00% Cumulative Redeemable Preferred Stock
whose shares are redeemed pursuant to Section 5 hereto prior to being
entitled to receive any cash or other securities upon the occurrence of
any such redemption, will be required to execute and deliver to the
Corporation a Dividend Proration Agreement substantially in the form of
Annex I hereto.
(b) Notwithstanding anything elsewhere contained herein, any
funds which at any time shall have been deposited by the Corporation or
on its behalf with the transfer agent or any other depositary for the
purpose of any payment with respect to any shares of 8.00% Cumulative
Redeemable Preferred Stock which shall have been redeemed into shares of
Common Stock pursuant to the provisions of Section 6 shall forthwith
upon such redemption be repaid to the Corporation by the transfer agent
or such other depositary.
SECTION 7. Restrictions on Transfer; Stapled Security.
The shares of 8.00% Cumulative Redeemable Preferred Stock shall be
subject to the restrictions on transfer set forth in Article NINTH of
the Charter of the Corporation. Any transfer or attempted transfer in
violation of the provisions of this Section 7 shall be null and void.
SECTION 8. Status of Redeemed Shares of 8.00% Cumulative
Redeemable Preferred Stock. Upon any redemption, repurchase or other
acquisition by the Corporation of shares of 8.00% Cumulative Redeemable
Preferred Stock, the shares of 8.00% Cumulative Redeemable Preferred
Stock so redeemed, repurchased or acquired shall be retired and
canceled.
SECTION 9. Voting. (a) Except as otherwise provided by law and
this Certificate of Designation, the holders of 8.00% Cumulative
Redeemable Preferred Stock shall not be entitled to notice of, or to
vote at, any meeting of the stockholders of the Corporation or to vote
on any matter relating to the business or affairs of the Corporation.
(b) The Corporation shall not, without the affirmative
consent or approval of the holders of at least a majority in liquidation
preference of the shares of 8.00% Cumulative Redeemable Preferred Stock
and 8.00% Cumulative Convertible Preferred Units of the Operating
Partnership then outstanding, voting together as a class, (i) authorize
any Senior Stock; or (ii) amend, alter or modify any of the provisions
of the Restated Certificate of Incorporation of the Corporation so as to
adversely affect the holders of shares of 8.00% Cumulative Redeemable
Preferred Stock.
(c) In any case in which the holders of 8.00% Cumulative
Redeemable Preferred Stock shall be entitled to vote pursuant to
Delaware law, each holder of 8.00% Cumulative Redeemable Preferred Stock
shall be entitled to one vote for each share of 8.00% Cumulative
Redeemable Preferred Stock held by such holder.
SECTION 10. Registration Rights for Share of 8.00%
Cumulative Redeemable Preferred Stock. The shares of 8.00% Cumulative
Redeemable Preferred Stock shall be deemed "Registrable Securities" for
purposes of Section 9.6 of the Partnership Agreement, subject to the
limitations and qualifications contained in Section 9.6 of the
Partnership Agreement unless the holder of such shares of 8.00%
Cumulative Redeemable Preferred Stock is party to a registration rights
agreement pursuant to Section 5.06 of the Portfolio Agreement, in which
case such holder exclusively shall have the rights set forth therein.
SECTION 11. Issuance of Trust Interest. If any shares of
Common Stock are to be issued to a holder of a 8.00% Cumulative
Redeemable Preferred Stock in connection with the redemption of such
8.00% Cumulative Redeemable Preferred Stock as provided herein, the
Corporation shall distribute to the holder of such 8.00% Cumulative
Redeemable Preferred Stock so redeemed, for no additional consideration,
a number of Trust Interests equal to the number of shares of Common
Stock so issued.
SECTION 12. Definitions. Except as otherwise herein
expressly provided, the following terms and phrases shall have the
meanings set forth below:
"Closing Price" on any date shall mean the last sale price per
share, regular way, of the Paired Shares or, in case no such sale takes
place on such day, the average of the closing bid and asked prices,
regular way, of the Paired Shares in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange
or, if the Paired Shares are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Paired Shares are
listed or admitted to trading or, if the Paired Shares are not listed or
admitted to trading on any national securities exchange, the last quoted
price, or if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System for
the Paired Shares or, if such system is no longer in use, the principal
other automated quotations system that may then be in use or, if the
Paired Shares are not quoted by any such organization, the average of
the closing bid and asked prices as furnished by a professional market
maker making a market in the Paired Shares selected from time to time by
the Board of Directors of the Managing General Partner.
"Current Per Share Market Price" on any date shall mean the
average of the Closing Prices for the five consecutive Trading Days
ending on such date.
"Operating Partnership" shall mean Simon Property Group, L.P.
"Paired Share" shall mean one share of Common Stock and one
Trust Interest.
"Partnership Agreement" shall mean the Seventh Amended and
Restated Limited Partnership Agreement of the Operating Partnership.
"Portfolio Agreement" shall mean the Management and Portfolio
Agreement, dated as of February 22, 1999, among the Corporation, the
Operating Partnership, NED Management Limited Partnership and WellsPark
Management LLC.
"Shares" shall mean the shares of Common Stock.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Paired Shares are listed or admitted to
trading is open for the transaction of business or, if the Paired Shares
are not listed or admitted to trading on any national securities
exchange, shall mean any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Trust" shall mean the trust owning all of the outstanding
shares of Common Stock, par value $0.0001 per share, of SPG Realty
Consultants, Inc. subject to a trust agreement among certain
stockholders of the Corporation, a trustee and the SPG Realty
Consultants, Inc. pursuant to which all holders of Shares are
beneficiaries of such trust.
"Trust Interest" shall mean a pro rata beneficial interest in
the Trust.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be signed by James M. Barkley, its Secretary, this 27th
day of August, 1999.
By: /s/ James M. Barkley
Name: James M. Barkley
Title: Secretary
Annex I to
8.00% Cumulative Redeemable
Preferred Stock
DIVIDEND PRORATION AGREEMENT
Date: __________________
Simon Property Group, Inc.
National City Center
115 West Washington Street, Suite 15 East
Indianapolis, Indiana 46204
Dear Sirs:
The undersigned is a holder of shares of 8.00% Cumulative
Redeemable Preferred Stock ("Preferred Stock") of Simon Property Group,
Inc., a Delaware corporation (the "Corporation"). On the date hereof,
the undersigned has presented _____________ (number) shares of Preferred
Stock for redemption pursuant to their terms (the "Redemption"). This
letter agreement is being given in satisfaction of a condition to the
Redemption.
The undersigned hereby agrees with the Corporation that
concurrently with the first payment of a regular cash dividend on shares
of the Corporation's Common Stock with respect to which the record date
(the "Next Record Date") occurs after the date of the Redemption, the
undersigned shall pay to the Corporation an amount equal to the product
of (x) the number of such shares of Common Stock issued in the
Redemption (adjusted for any dividend or distribution on the shares of
Common Stock in shares of Common Stock or the subdivision, combination
or reclassification of outstanding shares of Common Stock into a greater
or smaller number of Preferred Stock occurring after the date of the
Redemption in order to give appropriate effect thereto), (y) the per
share amount of such cash dividend and (z) a fraction, the numerator of
which shall be the number of days elapsed (computed on the basis of a
360-day year of twelve 30-day months) from the record date (the "Last
Record Date") for the payment of the last regular dividend on shares of
the Corporation's Common Stock occurring on or before the date of the
Redemption and the denominator of which shall be the number of days
elapsed (computed as aforesaid) from the Last Record Date to the Next
Record Date.
The undersigned further grants to the Corporation the right to set
off against any unpaid amount due to the Corporation under this letter
agreement any debt or other obligation of the Corporation owing to the
undersigned, including, without limitation, any dividend or other
distribution payable to the undersigned by reason of its ownership of
shares of the Corporation's Common Stock.
If the undersigned wishes to transfer legal, beneficial or record
ownership of any shares of the Corporation's Common Stock (or any
interest therein) issuable in the Redemption before all the
undersigned's foregoing obligations are fully performed, it shall
provide the Corporation with reasonably adequate cash or cash equivalent
security with respect to the undersigned's obligations hereunder or
shall obtain, for the Corporation's benefit, an instrument of assumption
by the transferee in which the transferee assumes all the undersigned's
obligations under this letter agreement, which instrument shall contain
a provision with respect to subsequent transfers with the same effect as
this paragraph.
This letter agreement shall be construed in accordance with, and
governed by, the laws of the State of New York, without regard to
conflicts of laws principles.
Very truly yours,
(Name of Converting Holder of Preferred
Stock)
By:
Name:
Title:
AGREED:
SIMON PROPERTY GROUP, INC.
By:
Name:
Title: