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EXHIBIT 3.0
SECRETARY OF STATE DOCKET NUMBER : 961290831
BUSINESS INFORMATION AND SERVICES CONTROL NUMBER: 8725867
SUITE 315, WEST TOWER EFFECTIVE DATE: 05/08/1996
2 MARTIN LUTHER KING JR. DR. REFERENCE : 0045
ATLANTA, GEORGIA 30334-1530 PRINT DATE : 05/08/1996
FORM NUMBER : 0111
CT CORPORATION SYSTEM
RUDENE REMBERT
1201 PEACHTREE STREET, NE
ATLANTA, GA 30361
CERTIFICATE OF AMENDMENT
I, the Secretary of State and the Corporation Commissioner of the State of
Georgia, do hereby certify under the seal of my office that
AMERICAN REALTY TRUST, INC.
A DOMESTIC PROFIT CORPORATION
has filed articles of amendment in the office of the Secretary of State and has
paid the required fees as provided by Title 14 of the Official Code of Georgia
Annotated. Attached hereto is a true and correct copy of said articles of
amendment.
WITNESS my hand and official seal in the City of Atlanta and the State of
Georgia on the date set forth above.
[SEAL] /s/ LEWIS A. MASSEY
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Lewis A. Massey
Secretary of State
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ARTICLES OF AMENDMENT OF THE ARTICLES OF
INCORPORATION OF AMERICAN REALTY TRUST, INC.
Setting Forth the
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RELATIVE
PARTICIPATING OR OPTIONAL OR OTHER SPECIAL RIGHTS, AND
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS THEREOF OF
SPECIAL STOCK
OF
AMERICAN REALTY TRUST, INC.
AMERICAN REALTY TRUST, INC., a corporation organized and
existing under the laws of the State of Georgia,
DOES HEREBY CERTIFY:
THAT, pursuant to the authority conferred upon the Board of Directors
by the Articles of Incorporation, as amended, of AMERICAN REALTY TRUST, INC.
(the "Corporation"), and pursuant to the provisions of Section 14-2-602 of the
Georgia Business Corporation Code (which section provides that no shareholder
action is required in order to effect these Articles of Amendment), said Board
of Directors, by unanimous written consent dated as of April 3, 1996, adopted
certain recitals and resolutions providing for the designations, preferences
and relative participating, optional or other special rights and
qualifications, limitations or restrictions thereof, of a series of special
stock of the Corporation, specifically the Series B 10% Cumulative Preferred
Stock, which recitals and resolutions are as follows:
WHEREAS, Article Five of the Articles of Incorporation, as
amended, of the Corporation authorizes the Corporation to issue not
more than 16,666,667 shares of common voting stock, $0.01 par value
per share (the "Common Stock"), and 20,000,000 shares of a special
class of stock, $2.00 par value per share (the "Special Stock"), which
Special Stock may be issued from time to time in one or more series
and shall be designated as the Board of Directors may determine to
have such voting powers, preferences, limitations and relative rights
with respect to the shares of each series of the class of Special
Stock of the Corporation as expressly provided in a resolution or
resolutions providing for the issuance of such series adopted by the
Board of Directors which is vested with the authority in respect
thereof;
WHEREAS, 500,000 shares of such Special Stock has been
previously designated as the Series A Cumulative Participating
Preferred Stock prior to the date hereof, none of which are now issued
and outstanding; and
WHEREAS, the Board of Directors now desires to further amend
the Articles of Incorporation to designate an additional series of the
Special Stock;
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NOW, THEREFORE, BE IT RESOLVED, that pursuant to the
authority granted to the Board of Directors by Article Five of the
Articles of Incorporation, as amended, the Board of Directors hereby
further amends the Articles of Incorporation to provide for the
issuance of one single series of Special Stock consisting of the
number of shares in such series as set forth below and, subject to the
provisions of Article Five of the Articles of Incorporation, as
amended, of the Corporation, hereby fixes and determines with respect
to such series the following designations, preferences and relative
participating, optional or other special rights, if any, and
qualifications, limitations or restrictions thereof:
1. Designation. The distinctive designation of such
series shall be the Series B 10% Cumulative Preferred Stock
and each share of the Series B 10% Cumulative Preferred Stock
shall have a par value of $2.00 per share and a preference on
liquidation under paragraph 6 below of up to $100 per share.
The Series B 10% Cumulative Preferred Stock is sometimes
referred to herein as the "Series B Preferred Stock."
2. Number of Shares. The number of shares which
shall constitute the Series B Preferred Stock shall be such
number as may actually be issued by the Corporation, not to
exceed a maximum of 4,000 shares, which number may be
decreased (but not below the number then outstanding), from
time to time by the Board of Directors, subject to the
provisions hereof.
3. Dividends and Dividend Rate. Holders of record on
the fifteenth day of each March, June, September and December
of each year of shares of the Series B Preferred Stock shall
be entitled to receive dividends, when and as declared by the
Board of Directors of the Corporation and to the extent
permitted under the Georgia Business Corporation Code,
payable quarterly on each March 31, June 30, September 30 and
December 31 of each year, beginning on June 30, 1996 (each a
"Dividend Reference Date" and, collectively, the "Dividend
Reference Dates"), in preference to and with priority over
dividends upon all "Junior Securities" (as defined in
paragraph 6 below). Except as otherwise provided herein,
dividends on each share of Series B Preferred Stock (a
"Share") will accrue (but not compound) cumulatively on a
daily basis at the rate per share of ten dollars ($10) per
annum ($2.50 per calendar quarter) from and including the
date of issuance to and including the date on which the
"Redemption Price" (as defined in paragraph 4 below) of such
Share is paid, whether or not such dividends have been
declared and whether or not there are profits, surplus or
other funds of the Corporation legally available for the
payment of such dividends. For purposes of this paragraph 3,
the date on which the Corporation initially issues any Share
is its date of
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issuance, regardless of the number of times transfer of such
Share is made on the stock records maintained by or for the
Corporation and regardless of the number of certificates that
may be issued to evidence such Share (whether by reason of
transfer of such Share or for any other reason). So long as
any Shares of Series B Preferred Stock are outstanding, the
Corporation will not declare or pay any dividends on Junior
Securities (other than dividends in respect of Common Stock
payable in shares of Common Stock) or make, directly or
indirectly, any other distribution of any sort in respect of
Junior Securities, or any payment on account of the purchase
or other acquisition of the Junior Securities, unless on the
date of such declaration in the case of a dividend, or on
such date of distribution or payment, in the case of such
distribution or other payment (a) all dividends on the Series
B Preferred Stock for all past quarter-yearly dividend
periods have been paid in full and the full dividends for the
then current quarter-yearly period shall have been paid or
declared in a sum sufficient for the payment thereof set
apart, and (b) after giving effect to such payment of
dividends, other distributions, purchase or redemption, the
aggregate capital of the Corporation applicable to all
capital stock of the Corporation then outstanding, plus the
earned and capital surplus of the Corporation shall exceed
the aggregate amount payable on involuntary dissolution,
liquidation or winding up of the Corporation on all Shares of
the Special Stock and all stock ranking prior to or on a
parity with the Series B Preferred Stock as to dividends or
assets outstanding after the payment of such dividends, other
distributions, purchase or redemption. Dividends shall not be
paid or declared and set apart for payment on any series of
Special Stock for any dividend period (including the Series B
Preferred Stock) unless dividends have been or are,
contemporaneously, paid and declared and set apart for
payment on all outstanding series of Special Stock entitled
thereto for all dividend periods terminating on the same or
earlier date. If at any time the Corporation pays less than
the total amount of dividends then accrued with respect to
the Series B Preferred Stock, such payment will be
distributed ratably among the then holders of Series B
Preferred Stock so that an amount equal is paid with respect
to each outstanding Share.
4. Redemption. The Corporation may, at any time
after the issuance thereof and from time to time, at the
election of the Board of Directors of the Corporation redeem
any or all of the Series B Preferred Stock then outstanding
by written notice given not less than twenty (20) nor more
than sixty (60) days before the date fixed for redemption
(the "Redemption Date"). If mailed, such notice shall be
deemed to be delivered when deposited in the United States
Mail, postage prepaid, addressed to the
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holder of shares of Series B Preferred Stock at his address
as it appears on the stock transfer records of the
Corporation. Such notice shall set forth (a) the shares to be
so redeemed, (b) the date fixed for redemption, (c) the
applicable Redemption Price, and (d) the place at which the
holder(s) may obtain payment of the applicable Redemption
Price upon surrender of the share certificate(s). If less
than all shares of Series B Preferred Stock at any time
outstanding shall be called for redemption, such shares shall
be redeemed pro rata by lot drawn or other manner deemed fair
in the sole discretion of the Board of Directors to redeem
one or more such shares without redeeming all such shares of
Series B Preferred Stock. If such notice of redemption shall
have been so mailed, on or before the Redemption Date, the
Corporation may provide for payment of a sum sufficient to
redeem the applicable number of Series B Preferred Stock
called for redemption either (i) by setting aside the sum
required to be paid as the Redemption Price by the
Corporation, separate and apart from its other funds, in
trust for the account of the holder(s) of the shares of
Series B Preferred Stock to be redeemed or (ii) by depositing
such sum in a bank or trust company (either located in the
state where the principal executive office of the Corporation
is maintained, such bank or trust company having a combined
surplus of at least $20,000,000 according to its latest
statement of condition, or such other bank or trust company
as may be permitted by the Articles of Incorporation, as
amended, or by law) as a trust fund, with irrevocable
instructions and authority to the bank or trust company to
give or complete the notice of redemption and to pay, on or
after the Redemption Date, the applicable Redemption Price on
surrender of certificates evidencing the share(s) of Series B
Preferred Stock so called for redemption and, in either
event, from and after the Redemption Date (A) the share(s) of
Series B Preferred Stock deemed to be redeemed, (B) such
setting aside or deposit shall be deemed to constitute full
payment for such Share(s), (C) such Share(s) so redeemed
shall no longer be deemed to be outstanding, (D) the
holder(s) thereof shall cease to be a shareholder of the
Corporation with respect to such share(s), and (E) such
holder(s) shall have no rights with respect thereto except
the right to receive their proportionate share of the funds
set aside pursuant hereto or deposited upon surrender of
their respective certificates. Any interest on the funds so
deposited shall be paid to the Corporation. Any and all such
redemption deposits shall be irrevocable except to the
following extent: any funds so deposited which shall not be
required for the redemption of any shares of Series B
Preferred Stock because of any prior sale or purchase by the
Corporation other than through the redemption process,
subsequent to the date of deposit but prior to
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the Redemption Date, shall be repaid to the Corporation
forthwith and any balance of the funds so deposited and
unclaimed by the holder(s) of any shares of Series B
Preferred Stock entitled thereto at the expiration of one
calendar year from the Redemption Date shall be repaid to the
Corporation upon its request or demand therefor and after any
such repayment the holder(s) of the share(s) so called for
redemption shall look only to the Corporation for payment of
the Redemption Price thereof. In addition to the redemption
under this paragraph 4, the Corporation may redeem or
repurchase shares of the Series B Preferred Stock from any
holder(s) thereof who consents in writing to such redemption
and the provisions of this paragraph 4 will not apply to any
such consented redemption. All shares of Series B Preferred
Stock redeemed shall be cancelled and retired and no shares
shall be issued in place thereof, but such shares shall be
restored to the status of authorized but unissued shares of
Special Stock. The "Redemption Price" (herein so called)
shall be an amount equal to the "Liquidation Value" (as
defined in paragraph 6 below) of $100 per Share plus the
amount of all accrued but unpaid dividends thereon to the
Redemption Date, which shall include all cumulative dividends
in arrears and also the proportionate part of the dividend
accrued since the last Dividend Reference Date preceding the
Redemption Date and whether or not earned or declared, but
without interest.
5. Sinking Fund. The Corporation shall not be
required to maintain any so-called "Sinking Fund" for the
retirement on any basis of the Series B Preferred Stock.
6. Rights on Liquidation. In the event of any
liquidation, dissolution or winding-up of the Corporation,
and after paying and providing for the payment of all
creditors of the Corporation, the holders of shares of the
Series B Preferred Stock then outstanding shall be entitled,
before any distribution or payment is made upon any "Junior
Securities" (defined to be and mean the Common Stock and any
other equity security of any kind which the Corporation at
any time has issued, issues or is authorized to issue if the
Series B Preferred Stock has priority over such securities as
to dividends or upon liquidation), to receive a liquidation
preference in an amount in cash equal to the aggregate
Liquidation Value of all shares of Series B Preferred Stock
then outstanding, whether any such liquidation, dissolution
or winding up is voluntary or involuntary and the holders of
the Series B Preferred Stock shall not be entitled to any
other or further distributions of assets. The term
"Liquidation Value" shall be and mean, as of any particular
date, an amount per Share of Series B Preferred Stock equal
to the Redemption Price if such share were so redeemed in
accordance with the provisions of paragraph 5 above, but in
no event shall exceed $100
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per share, plus any accrued and unpaid cumulative dividends.
If, upon any dissolution, liquidation or winding-up of the
affairs of the Corporation, the net assets available for
distribution shall be insufficient to permit payment to the
holders of all outstanding shares of all series of Special
Stock of the amounts to which they respectively shall be
entitled, then the assets of the Corporation to be
distributed to such holders will be distributed ratably among
them based upon the amounts payable on the shares of each
such series of Special Stock in the event of voluntary or
involuntary dissolution, liquidation or winding-up, as the
case may be, in proportion to the full preferential amounts,
together with any and all arrearages to which they are
respectively entitled. Upon any such liquidation, dissolution
or winding-up of the Corporation, after the holders of
Special Stock have been paid in full the amounts to which
they are entitled, the remaining assets of the Corporation
may be distributed to the holders of Junior Securities,
including Common Stock, of the Corporation. The Corporation
will mail written notice of such liquidation, dissolution or
winding-up, not less than twenty (20) nor more than fifty
(50) days prior to the payment date stated therein to each
record holder of Series B Preferred Stock. Neither the
consolidation nor merger of the Corporation into or with any
other corporation or corporations, nor the sale or transfer
by the Corporation of all or any part of its assets, nor a
reduction of the capital stock of the Corporation, nor the
purchase or redemption by the Corporation of any shares of
its Special Stock or Common Stock or any other class of its
stock will be deemed to be a liquidation, dissolution or
winding-up of the Corporation within the meaning of this
paragraph 6.
7. Ranking. The Series B Preferred Stock shall rank
on a parity as to dividends and upon liquidation, dissolution
or winding up with all other shares of Special Stock issued
by the Corporation; provided, however, that the Corporation
shall not issue any shares of Special Stock of any series
which are superior to the Series B Preferred Stock as to
dividends or rights upon liquidation, dissolution or winding
up of the Corporation as long as any shares of the Series B
Preferred Stock are issued and outstanding, without the prior
written consent of the holders of a majority of such shares
of Series B Preferred Stock then outstanding voting
separately as a class.
8. Voting Rights. The holders of the shares of
Series B Preferred Stock shall only have the voting rights
specifically required by law under Section 14-2-1004 of the
Georgia Business Corporation Code, and shall have the
following additional voting rights subject to and after
compliance with any applicable laws and rules
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or actual requirements of any exchange upon which any
securities of the Corporation are listed:
(a) except as may otherwise be specifically
required by law under Section 14-2-1004 of the
Georgia Business Corporation Code, the holders of
the shares of Series B Preferred Stock shall not
have the right to vote such stock, directly or
indirectly, at any meeting of the shareholders of
the Corporation and such shares of stock shall not
be counted in determining the total number of
outstanding shares to constitute a quorum at any
meeting of shareholders;
(b) in the event that, under any
circumstance, the holders of the Series B Preferred
Stock are required by law to vote upon any matter,
the approval of such series shall be deemed to have
been obtained upon the affirmative vote of the
holders of only a majority of the shares of the
Series B Preferred Stock then outstanding;
(c) except as set forth herein, or as
otherwise provided by the Articles of Incorporation,
as amended, or by law, holders of the Series B
Preferred Stock shall have no special voting rights
and their consent shall not be required for the
taking of any corporate action.
9. Conversion Rights. The Series B Preferred Stock
may be converted at any time at the option of the holders
thereof during a thirty (30) calendar day period (the
"Conversion Period" as defined below) at the "Conversion
Price" (as defined below) in the manner hereinafter provided,
into fully paid and nonassessable Common Stock of the
Corporation by multiplying the number of Shares of Series B
Preferred Stock to be converted by $100 and dividing the
result by the Conversion Price; provided, however, that as to
any shares of Series B Preferred Stock which shall have been
called for redemption, the right of conversion shall
terminate at the close of business on the second full
business day prior to the date fixed for redemption and that,
on the commencement of any liquidation, dissolution or
winding up of the Corporation or the adoption by the
stockholders of the Corporation of any resolution authorizing
the commencement thereof, the right of conversion shall
terminate.
(a) For the purposes of this paragraph 9,
the following terms shall have the meanings ascribed
below:
(i) "Conversion Period" shall be a
period in time which commences at 7:00 a.m.
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local Dallas, Texas time on the day which
is two calendar years after the date of
original issuance of the first certificate,
issued by the Corporation, representing
shares of Series B Preferred Stock and
expire at 3:00 p.m. local Dallas, Texas time
on the thirtieth (30th) calendar day
thereafter.
(ii) "Conversion Price" shall be
and mean the amount determined (rounded
upward to the nearest cent) by multiplying
0.9 times the simple average of the daily
closing price of the Common Stock for the
thirty (30) trading days immediately
preceding the first day of the Conversion
Period on the market where the shares of
Common Stock of the Corporation are then
regularly traded (which is currently the
New York Stock Exchange, Inc.); provided,
however, if the shares of Common Stock of
the Corporation have not traded on such
market for at least thirty (30) days during
the six calendar months preceding the first
day of the Conversion Period, then such
average shall be of the actual number of
trading days in excess of three (3) as may
be available; provided further that if only
three or fewer trading days exist during
the six months immediately preceding the
first day of the Conversion Period, the
Conversion Price shall be equal to the
greater of (x) the Liquidation Value of $100
per share, or (y) the simple average of the
closing prices of the shares of Common Stock
during such shorter period of three or fewer
days on such market. The Conversion Price
shall not be subject to any adjustment for
the issuance of any shares of Common Stock
by the Corporation for any purpose.
(b) Upon any conversion, fractional shares
shall not be issued but any fractions shall be
adjusted by the delivery of one additional share of
Common Stock in lieu of any cash on the basis of the
"closing" market price for Common Stock at the close
of business on the date of conversion unless the
Board of Directors shall determine to adjust by the
issuance of fractional scrip certificates or in some
other manner. Upon any conversion, no adjustment
shall be made for dividends on the Series B Preferred
Stock surrendered for conversion or on the Common
Stock delivered (i.e., any dividends not previously
paid on the Shares of Series B Preferred Stock shall
be forfeited at the time of conversion). The
Corporation shall pay all issue taxes, if any,
incurred in respect to the issuance of Common Stock
on conversion, provided,
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however, that the Corporation shall not be required
to pay any transfer or other taxes incurred by
reason of the issuance of such Common Stock in names
other than those in which the Series B Preferred
Stock surrendered for conversion may stand.
(c) Any conversion of Series B Preferred
Stock into Common Stock shall be made by the
surrender to the Corporation, at the office of any
Transfer Agent for the Common Stock, of the
certificate or certificates representing the Series
B Preferred Stock to be converted, duly endorsed or
assigned (unless such endorsement or assignment be
waived by the Corporation), together with a written
request for conversion.
(d) All Series B Preferred Stock which
shall have been surrendered for conversion as herein
provided shall no longer be deemed to be outstanding
and all rights with respect to such shares of stock,
including the rights, if any, to receive notices and
to vote, shall forthwith cease except only the
rights of the holders thereof to receive Common
Stock in exchange therefor. Any Series B Preferred
Stock so converted shall be permanently retired,
shall no longer be deemed outstanding and shall not
under any circumstances be reissued and the
Corporation may from time to time take such
appropriate corporate action as may be necessary to
reduce the authorized Series B Preferred Stock
accordingly.
(e) A number of authorized shares of Common
Stock sufficient to provide for the conversion of
the Series B Preferred Stock outstanding upon the
basis hereinbefore provided shall at all times be
reserved for such conversion. If the Corporation
shall propose to issue any securities or to make any
change in its capital structure which would change
the number of shares of Common Stock into which each
share of Series B Preferred Stock shall be
convertible as herein provided, the Corporation
shall at the same time also make proper provision so
that thereafter there shall be a sufficient number
of shares of Common Stock authorized and reserved
for conversion of the outstanding Series B Preferred
Stock on the new basis.
(f) The term "Common Stock" as used in this
paragraph 9 shall mean stock of the class designated
as Common Stock of the Corporation on the date the
Series B Preferred Stock is created or stock of any
class or classes resulting from any reclassification
or reclassifications thereof, the
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right of which to share in distributions of both
earnings and assets is without limitation in the
Certificate of Incorporation (or other similar
documents) of the Corporation as to any fixed amount
or percentage and which are not subject to
redemption; provided, that if at any time there
shall be more than one such resulting class, the
shares of each such class then issuable on
conversion of the Series B Preferred Stock shall be
substantially in the proportion which the total
number of shares of stock of each such class
resulting from all such reclassifications bears to
the total number of shares of stock of all such
classes resulting from all such reclassifications.
(g) In case the Corporation shall propose at
any time during the Conversion Period:
(i) to pay any dividend on the
Common Stock outstanding payable in Common
Stock or to make any other distribution,
other than cash dividends, to the holders
of the Common Stock outstanding; or
(ii) to offer for subscription to
the holders of the Common Stock outstanding
any additional shares of any class or any
other rights or option; or
(iii) to effect any
re-classification or recapitalization of
the Common Stock outstanding involving a
change in the Common Stock, other than a
subdivision or combination of the Common
Stock outstanding; or
(iv) to merge or consolidate with
or into any other corporation, or to sell,
lease, or convey all or substantially all
its property or business, or to liquidate,
dissolve or wind up;
then, in each such case, the Corporation shall mail
to the holders of record of each of the shares of
Series B Preferred Stock at their last known post
office addresses as shown by the Corporation's
records a statement, signed by an officer of the
Corporation, with respect to the proposed action,
such statement to be so mailed at least ten (10)
days prior to the date of the taking of such action
or the record date for holders of the Common Stock
for the purposes thereof, whichever is earlier. If
such statement relates to any proposed action
referred to in clauses (iii) or (iv) of this
subparagraph 9, it shall set forth such facts with
respect thereto as shall reasonably be necessary to
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inform the holders of the Series B Preferred Stock
and the holders of such stock as to the effect of
such action upon the conversion rights of such
holders.
10. Reacquired Shares. Any shares of Series B
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall, upon cancellation, become authorized but
unissued shares of Special Stock and may be re-issued as part
of a new series of Special Stock subject to the conditions
and restrictions on issuance set forth in the Articles of
Incorporation, as amended, or as otherwise required by law.
IN WITNESS WHEREOF, these Articles of Amendment are executed on behalf
of the Corporation by its President as of the 4th day of April, 1996.
AMERICAN REALTY TRUST, INC.
By: /s/ KARL L. BLAHA
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Karl L. Blaha
President
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