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Exhibit 3.3
SIMON PROPERTY GROUP, INC.
CERTIFICATE OF THE POWERS, DESIGNATIONS,
PREFERENCES AND RIGHTS OF THE
8.00% SERIES E 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; 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 "8.00% Series E Cumulative Redeemable Preferred
Stock" (the "8.00% Series E Preferred Stock"). The authorized number of
shares of 8.00% Series E Preferred Stock shall be 1,000,000, with par
value $.0001 per share.
SECTION 2. Ranking. The 8.00% Series E 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 their terms rank junior to the 8.00%
Series E 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 are not by
their terms junior or senior to the 8.00% Series E 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, the 6.50% Series A Excess Preferred Stock, 6.50% Series
B Excess 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 their terms are senior to
the shares of 8.00% Series E Preferred Stock as to dividends or rights
upon the dissolution, liquidation or winding-up of the Corporation
("Senior Stock").
SECTION 3. Dividends. (a) Subject to the rights of
series of Senior Stock which may from time to time come into existence,
holders of the then outstanding 8.00% Series E Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors, out
of funds legally available for the payment of dividends, cumulative
preferential cash dividends at the rate of $2.00 per annum per share.
Such dividends shall accrue and be cumulative from the date of original
issue and shall be payable in equal amounts quarterly in arrears on the
last day of March, June, September and December or, if not a business
day, the next succeeding business day (each, a "Dividend Payment Date").
Such and any dividend payable on the shares of 8.00% Series E Preferred
Stock for any partial dividend 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 share records of the
Corporation at the close of business on the applicable record date,
which shall be on the first day of the calendar month in which the
applicable Dividend Payment Date falls on or on such other date
designated by the Board of Directors of the Corporation for the payment
of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(b) Dividends on 8.00% Series E Preferred Stock will accrue and be
cumulative 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 earned, declared or authorized. No
interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the shares of 8.00%
Series E Preferred Stock which may be in arrears. Dividends paid on the
shares of 8.00% Series E Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a per share basis among all such
shares at the time outstanding.
(c) If, for any taxable year, the Corporation elects to designate
as "capital gain distributions" (as defined in Section 857 of the
Internal Revenue Code of 1986, as amended, or any successor revenue code
or section (the "Code")) any portion (the "Capital Gains Amount") of the
total dividends (as determined for federal income tax purposes) paid or
made available for the year to holders of all classes of capital stock
(the "Total Dividends"), then, to the extent that a portion is otherwise
allocable by law, the portion of the Capital Gains Amount that shall be
allocable to holders of shares of 8.00% Series E Preferred Stock shall
be in the same percentage that the total dividends paid or made
available to the holders of shares of 8.00% Series E Preferred Stock for
the year bears to the Total Dividends.
(d) If any shares of 8.00% Series E Preferred Stock are
outstanding, no dividends shall be declared or paid or set apart for
payment on any shares of any other series of 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 shares of 8.00%
Series E 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% Series E Preferred Stock and the shares of Parity Stock, all
dividends declared upon shares of 8.00% Series E Preferred Stock and any
Parity Stock shall be declared pro rata so that the amount of dividends
declared per share on 8.00% Series E Preferred Stock and such other
Parity Stock shall in all cases bear to each other the same ratio that
accrued dividends per share on 8.00% Series E Preferred Stock and such
other Parity Stock bear to each other.
(e) Unless full cumulative dividends on shares of 8.00% Series E
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 shares of Junior Stock) shall be
declared or paid or set aside for payment or other dividend shall be
declared or made upon the shares of Junior Stock, nor shall any shares
of 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 capital stock) by the Corporation
(except by conversion into or exchange for other Junior Stock).
(f) Any dividend payment made on shares of 8.00% Series E
Preferred Stock shall first be credited against the earliest accrued but
unpaid dividends due with respect to shares of 8.00% Series E Preferred
Stock which remain payable.
(g) No dividends on the 8.00% Series E Preferred Stock shall be
authorized by the Board of Directors of the Corporation or be paid or
set apart for payment by the Corporation at such time as the terms and
provisions of any agreement of the Corporation, including any agreement
relating to its indebtedness, prohibits such authorization, payment or
setting apart for payment or provides that such authorization, payment
or setting apart for payment would constitute a breach thereof or a
default thereunder if such authorization or payment shall be restricted
or prohibited by law.
(h) Except as otherwise provided herein, the 8.00% Series E
Preferred Stock shall not be entitled to participate in the earnings or
assets of the Corporation.
SECTION 4. Liquidation Preference. (a) Each share of
8.00% Series E Preferred Stock shall be entitled to a liquidation
preference of $25.00 per share of 8.00% Series E 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% Series E 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% Series E 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% Series E Preferred Stock the full amount to
which they shall be entitled, the holders of the 8.00% Series E
Preferred Stock and the holders of any series of Parity Stock shall
share ratably 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% Series E
Preferred Stock shall not be entitled to any further participation in
any distribution of the assets of the Corporation.
(c) A consolidation or merger of the Corporation with or into any
other entity or entities, or a sale, lease, transfer, conveyance or
disposition of all or substantially all of the assets of the
Corporation or a statutory share exchange in which stockholders of the
Corporation may participate, shall not be deemed to be a liquidation,
dissolution or winding up of the affairs of the Corporation within the
meaning of this Section 4.
SECTION 5. Redemption. (a) General. The 8.00% Series
E Preferred Stock are not redeemable prior to August 27, 2004.
(b) Redemption at the Option of the Corporation. (i) On and after
August 27, 2004, the Corporation may, at its option, at any time, redeem
the shares of 8.00% Series E Preferred Stock, in whole or in part, for
cash at the Liquidation Preference, plus accrued and unpaid dividends
thereon, if any, to and including the date of redemption without
interest (the "Redemption Price").
(ii) Unless full cumulative dividends on all shares of 8.00%
Series E Preferred Stock and Parity 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 8.00% Series
E Preferred Stock or Parity Stock shall be redeemed unless all
outstanding shares of 8.00% Series E Preferred Stock and Parity Stock
are simultaneously redeemed; provided, however, that the foregoing shall
not prevent the purchase or acquisition of shares of 8.00% Series E
Preferred Stock or Parity Stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of 8.00%
Series E Preferred Stock or Parity Stock, as the case may be.
Furthermore, unless full cumulative dividends on all outstanding shares
of 8.00% Series E Preferred Stock and Parity 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, the Corporation shall not
purchase or otherwise acquire directly or indirectly any shares of 8.00%
Series E Preferred Stock or Parity Stock (except by conversion into or
exchange for shares of Junior Stock).
(iii) The Corporation may give the holders of shares of
8.00% Series E Preferred Stock written notice ("Redemption Notice") of a
redemption pursuant to Section 5(b) (a "Redemption") not more than 60
nor less than 30 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). Each Redemption Notice shall
state: (i) the redemption date; (ii) the number of shares of 8.00%
Series E Preferred Stock to be redeemed from each such holder; (iii) the
redemption price per share; (iv) the place or places where certificates
for shares of 8.00% Series E Preferred Stock are to be surrendered for
payment of the redemption price; and (v) that dividends on shares of
8.00% Series E Preferred Stock will cease to accrue on such redemption
date. No failure to give such notice or any defect thereto or in the
mailing thereof shall affect the validity of the proceeding for the
Redemption of any 8.00% Series E Preferred Stock except as to the holder
to whom notice was defective or not given. In case fewer than all of
the outstanding shares of 8.00% Series E 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% Series E Preferred
Stock. If the Redemption Notice for any shares of 8.00% Series E
Preferred Stock has been given and if the funds necessary for such
Redemption have been set aside by the Corporation in trust for the
benefit of the holders of shares of 8.00% Series E Preferred Stock so
called for redemption, then from and after the Redemption Date,
dividends will cease to accrue on such shares of 8.00% Series E
Preferred Stock, such shares of 8.00% Series E 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.
(v) The holders of shares of 8.00% Series E Preferred Stock
at the close of business on a Dividend Record Date will be entitled to
receive the dividend payable with respect to such shares of 8.00% Series
E Preferred Stock on the corresponding Distribution Payment Date
notwithstanding the redemption thereof between such Dividend Record Date
and the corresponding Dividend Payment Date or the Corporation's default
in the payment of the dividend due. Except as provided above, the
Corporation will make no payment or allowance for unpaid dividends,
whether or not in arrears, on shares of 8.00% Series E Preferred Stock
which have been called for redemption.
(vi) 8.00% Series E Preferred Stock have no stated maturity
and will not be subject to any sinking fund or mandatory redemption,
except as provided in Article NINTH of the Charter.
SECTION 6. Restrictions on Transfer or Redemption. The
shares of 8.00% Series E Preferred Stock shall be subject to the
restrictions on transfer set forth in Article NINTH of the Charter. Any
transfer or attempted transfer in violation of the provisions of this
Section 6 shall be null and void.
SECTION 7. Status of Redeemed Shares of 8.00% Series E
Preferred Stock. Upon any redemption, repurchase or other acquisition
by the Corporation of shares of 8.00% Series E Preferred Stock, the
shares of 8.00% Series E Preferred Stock so redeemed, repurchased or
acquired shall be retired and canceled.
SECTION 8. Voting. (a) Except as indicated in this Section
8, except as may be required by applicable law, or, at any time 8.00%
Series E Preferred Stock are listed on a securities exchange, as may be
required by the rules of such exchange, the holders of shares of 8.00%
Series E Preferred Stock will have no voting rights.
(b) The approval of two-thirds of the outstanding 8.00% Series E
Preferred Stock voting as a single class is required in order to (i)
amend, alter or repeal any provision of this Certificate or the Charter,
whether by merger, consolidation or otherwise (an "Event") so as to
materially and adversely affect the rights, preferences, privileges or
voting power of the holders of shares of 8.00% Series E Preferred Stock;
provided, however, an Event will not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers
of the 8.00% Series E Preferred Stock, in each such case, where each
share of 8.00% Series E Preferred Stock remains outstanding without a
material change to its terms and rights or is converted into or
exchanged for preferred stock of the surviving entity having
preferences, rights, privileges, voting powers, restrictions,
limitations as to dividends, qualifications and terms or conditions of
redemption thereof identical to that of a share of 8.00% Series E
Preferred Stock, or (ii) authorize, reclassify, create, or increase the
authorized or issued amount of any class or series of stock having
rights senior to 8.00% Series E Preferred Stock with respect to the
payment of dividends or amounts upon liquidation, dissolution or winding
up of the affairs of the Corporation or to create, authorize or issue
any obligation or security convertible into or evidencing the right to
purchase such shares. However, the Corporation may create additional
classes of Parity Stock and Junior Stock, increase the authorized number
of shares of Parity Stock and Junior Stock and issue additional series
of Parity Stock and Junior Stock without the consent of any holder of
8.00% Series E Preferred Stock or Voting Preferred Stock.
(c) Except as provided above and as required by law, or, at any
time 8.00% Series E Preferred Stock are listed on a securities exchange,
as may be required by the rules of such exchange, the holders of 8.00%
Series E Preferred Stock are not entitled to vote on any merger or
consolidation involving the Corporation, on any share exchange or on a
sale of all or substantially all of the assets of the Corporation.
(d) In any matter in which the 8.00% Series E Preferred Stock are
entitled to vote pursuant to this Section 8, each share of 8.00% Series
E Preferred Stock shall be entitled to one vote.
SECTION 9. The shares of 8.00% Series E Preferred Stock are
not convertible into or exchangeable for any other property or
securities of the Corporation, except that each share of 8.00% Series E
Preferred Stock is convertible into Excess Stock as provided in Article
NINTH of the Charter.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate to be executed by the undersigned this ____ day of October,
1999.
By: ______________________
Name:
Title: