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EXHIBIT 3.9
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
SERIES E CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
AMERICAN REALTY TRUST, INC.
(Pursuant to Section 14-2-602(d) of the
Georgia Business Corporation Code)
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American Realty Trust, Inc., a corporation organized and existing under
the Georgia Business Corporation Code (hereinafter called the "Corporation"),
hereby certifies:
THAT, pursuant to the authority conferred upon the board of directors
(the "Board of Directors") by the articles of incorporation, as amended
("Articles of Incorporation") of the Corporation, and pursuant to Section 14-2-
602(d) of the Georgia Business Corporation Code (which Section provides that no
shareholder action is required in order to effect these articles of amendment),
the Board of Directors by unanimous written consent dated as of December 3,
1996, duly adopted certain recitals and resolutions providing for the
designations, preferences and relative participating, optional or other special
rights and qualifications, limitations or other restrictions thereof, of a
series of special stock of the Corporation, specifically the Series E
Cumulative Convertible Preferred Stock, which recitals and resolutions are as
follows:
WHEREAS, Article Five of the Articles of Incorporation 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
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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 have been previously
designated as the Series A Cumulative Participating Preferred Stock prior to
the date hereof, none of which are issued and outstanding;
WHEREAS, 4,000 shares of such Special Stock have been previously
designated as the Series B 10% Cumulative Preferred Stock prior to the date
hereof, all of which have been issued and are outstanding;
WHEREAS, 16,500 shares of such Special Stock have been previously
designated as the Series C 10% Cumulative Preferred Stock prior to the date
hereof, of which 15,489 have been issued and are outstanding;
WHEREAS, 91,000 shares of such Special Stock have been previously
designated as the Series D Cumulative Preferred Stock prior to the date hereof,
none of which have been issued and are 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.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority granted
to the Board of Directors by Article Five of the Articles of Incorporation, the
Board of Directors hereby further amends the Articles of Incorporation to
provide for the issuance of a 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, 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 and restrictions thereof:
1. Designation and Amount. The shares of such series shall be
designated as "Series E Cumulative Convertible Preferred Stock"
(the "Series E Preferred Stock") and each share of the Series E
Preferred Stock shall have a par value of $2.00 per share and a
preference on liquidation as specified in Section 7 below. The
number of shares constituting the Series E Preferred Stock shall
be 80,000. Such number of shares may be increased or decreased
by the Board of Directors by filing articles of amendment as
provided in the Georgia Business Corporation Code; provided,
that no decrease shall reduce the number of shares of Series E
Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon
the exercise of outstanding options, rights or warrants.
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2. Dividends and Distributions.
(A) The holders of shares of Series E Preferred Stock,
in preference to the holders of Common Stock and of
any Junior Securities (as defined in Section 6,
below) and with such exceptions, if any, as set
forth below, shall be entitled to receive, when,
as, and if declared by the Board of Directors and
to the extent permitted under the Georgia Business
Corporation Code, out of funds legally available
for the purpose and in preference to and with
priority over dividends upon all Junior Securities,
quarterly dividends payable in cash on the last
Business Day (unless otherwise provided, "Business
Day" herein shall mean any day other than a
Saturday, a Sunday or a day on which banking
institutions in Dallas, Texas are authorized or
obligated by law or executive order to remain
closed) of March, June, September and December in
each year (each such date being referred to herein
as a "Quarterly Dividend Payment Date"), commencing
on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a
share of Series E Preferred Stock, in an amount per
share (rounded to the nearest cent) equal to (1)
10% per annum of the Liquidation Value (as defined
in Section 6 but excluding from such Liquidation
Value any accrued and unpaid dividends and
distributions thereon) for the period from November
4, 1996 to November 4, 1999, and (2) 11% per annum
of such Liquidation Value thereafter, assuming each
year consists of 360 days and each quarter consists
of 90 days.
(B) Dividends shall begin to accrue (but not compound)
cumulatively on outstanding shares of the Series E
Preferred Stock from the date of issue of such
shares to and including the date on which the
Redemption Price (as defined in Section 9(A),
below) of such shares 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 Section 2,
the date on which the Corporation initially issues
any share of Series E Preferred Stock is its date
of 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). Accrued
but unpaid dividends shall not accrue dividends and
shall not accrue interest. Dividends paid on the
shares of 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 share-by-share basis among
all such shares at the time outstanding upon which
dividends have accrued. The Board of Directors may
fix a record date for the determination of holders
of shares of Series E Preferred Stock entitled to
receive payment of a dividend or distribution
declared thereon, which record date shall be not
more than 50 days prior to the date fixed for the
payment thereof.
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(C) So long as any shares of the Series E Preferred
Stock are outstanding, the Corporation will not
make, directly or indirectly, any distribution (as
such term is defined in the Georgia Business
Corporation Code) in respect of Junior Securities
unless on the date specified for measuring
distributions in Section 14-2-640(e) of the Georgia
Business Corporation Code (a) all accrued dividends
on the Series E Preferred Stock for all past
quarterly dividend periods have been paid in full
and the full amount of accrued dividends for the
then current quarterly dividend period has been
paid or declared in a sum sufficient for the
payment thereof set apart, and (b) after giving
effect to such distribution (i) the Corporation
would not be rendered unable to pay its debts as
they become due in the usual course of business,
and (ii) the Corporation's total assets would not
be less than the sum of its total liabilities plus
the amount that would be needed, if the Corporation
were to be dissolved at the time of the
distribution, to satisfy the preferential rights
upon dissolution of the holders of the Series E
Preferred Stock as provided in these Articles of
Amendment. Dividends shall not be paid (in full or
in part) or declared and set apart for payment (in
full or in part) on any series of Special Stock
(including the Series E Preferred Stock) for any
dividend period unless all dividends, in the case
dividends are being paid in full on the Series E
Preferred Stock, or a ratable portion of all
dividends, in the case dividends are not being paid
in full on the Series E Preferred Stock, have been
or are, contemporaneously, paid and declared and
set apart for payment on all outstanding series of
Special Stock entitled thereto for each dividend
period 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 E Preferred Stock, such payment will
be distributed ratably among the then holders of
Series E Preferred Stock so that an equal amount is
paid with respect to each outstanding share.
(D) Any dividend payment required to be made by the
Corporation hereunder but made by Basic Capital
Management, Inc. ("Basic") to holders of the Series
E Preferred Stock pursuant to the terms of the
Unpaid Preferred Return and Dividend Guaranty made
by Basic in favor of holders of the Class A Units
(as defined in the Second Amended and Restated
Agreement of Limited Partnership of Valley Ranch
Limited Partnership (the "Partnership Agreement"))
shall be treated by each recipient thereof as
payment by the Corporation of such dividend and
shall, after the expiration of any applicable
preference period established by applicable
bankruptcy laws, terminate the liability of the
Corporation for payment thereof, but shall not be
considered as paid by the Corporation for purposes
of applying any restrictions on the payment of
dividends by the Corporation under its Articles of
Incorporation or under applicable law.
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3. Conversion Rights.
(A) The Series E Preferred Stock may be converted at
any time at the option of the holders thereof, upon
thirty (30) days prior written notice to the
Corporation in accordance with Section 12 below and
according to the Conversion Schedule (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 E
Preferred Stock (which number with respect to any
one conversion shall be no less than 1,000 or all
shares of Series E Preferred Stock held by any
holder thereof, whichever is less) to be converted
by $100.00 and adding all accrued and unpaid
dividends on such Preferred Stock to the date of
conversion and dividing the sum by the Conversion
Price; provided, however, that as to any shares of
Series E 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 earlier of (a) the
commencement of any liquidation, dissolution or
winding up of the Corporation by the filing with
the Secretary of the State of Georgia or with a
federal bankruptcy court or (b) the adoption by the
shareholders of the Corporation of any resolution
authorizing the commencement thereof, the right of
conversion shall terminate.
(B) For the purposes of this Section 3, the following
terms shall have the meanings ascribed below:
(i) "Conversion Schedule" shall be and mean the
schedule below, which sets forth the maximum
percentage of the number of shares of Series E
Preferred Stock that each holder of Series E
Preferred Stock may convert at those certain future
dates (which number with respect to any one
conversion shall be no less than 1,000 or all
shares of Series E Preferred Stock held by any
holder thereof, whichever is less), which total
number of shares so convertible by each holder (the
"Convertible Shares") shall be calculated based on
the sum of (x) the total number of shares of Series
E Preferred Stock then held by such holder, (y)
with respect to holders that are also the Class A
Limited Partners (as defined in the Partnership
Agreement), the total number of shares of Series E
Preferred Stock (excluding the shares described in
clause (x)) which such holder would be entitled to
hold if such holder fully exercised its right to
exchange its Class A Units (as defined in the
Partnership Agreement) for shares of Series E
Preferred Stock in accordance with the terms of the
Exchange Agreement (as defined in the Partnership
Agreement) and (z) the total number of shares of
Series E Preferred Stock already converted by such
holder:
(a) up to 37.50% of the original number of
Convertible Shares of each holder beginning
as of November 4, 1998, and thereafter;
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(b) up to an additional 12.50% of the original
number of Convertible Shares of each holder
beginning as of November 4, 1999, and thereafter;
and
(c) up to an additional 50% of the original
number of Convertible Shares of each holder
beginning as of November 4, 2001, and thereafter.
(ii) "Conversion Price" shall be and mean the amount
obtained (rounded upward to the nearest cent) by multiplying 0.8
and the simple average of the daily closing price of the Common
Stock for the twenty Business Days ending on the last Business
Day of the calender week immediately preceding the date of
conversion on the New York Stock Exchange or, if the shares of
Common Stock are not then being traded on the New York Stock
Exchange, then on the principal stock exchange on which such
Common Stock is then listed or admitted to trading as determined
by the Corporation or, if the Common Stock is not then listed or
admitted to trading on any stock exchange, the average of the
last reported closing bid and asked prices on such days in the
over-the-counter market or, if no such prices are available, the
fair market value of the Common Stock, as determined by the Board
of Directors of the Corporation in its sole discretion. The
Conversion Price shall not be subject to any adjustment as a
result of the issuance of any additional shares of Common Stock
by the Corporation for any purpose. For purposes of calculating
the Conversion Price, the term "business day" shall mean a day on
which the exchange looked to for purposes of determining the
Conversion Price is open for business or, if no such exchange,
the term "business day" shall have the meaning given such term in
Section 2(A), above.
(C) Upon any conversion, fractional shares of Common Stock 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 unless
the Board of Directors shall determine to adjust by the issuance
of fractional scrip certificates or in some other manner. Any
accrued but unpaid dividends shall be convertible into shares of
Common Stock as provided for in Section 3, above. The
Corporation shall pay all issue taxes, if any, incurred in
respect to the issuance of Common Stock on conversion, provided,
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
E Preferred Stock surrendered for conversion may stand.
(D) Any conversion of Series E Preferred Stock into Common Stock
shall be made by the surrender to the Corporation, at the office
of the Corporation set forth in Article 12 hereof, of the
certificate or certificates representing the Series E 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.
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(E) A number of authorized shares of Common Stock sufficient to
provide for the conversion of the Series E 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 E 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 E Preferred
Stock on the new basis.
(F) The term "Common Stock" shall mean stock of the class designated
as Common Stock of the Corporation on the date the Series E
Preferred Stock is created or stock of any class or classes
resulting from any reclassification or reclassifications thereof,
the right of which to share in distributions of both earnings and
assets is without limitation in the Articles of Incorporation 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 E
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 before all
shares of the Series E Preferred Stock have been redeemed by or
converted into Common Stock of the Corporation:
(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;
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then, in each such case, the Corporation shall mail to the
holders of record of each of the shares of Series E Preferred
Stock at their last known 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 thirty (30) 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 subsection G, it shall set forth such facts
with respect thereto as shall reasonably be necessary to inform
the holders of the Series E Preferred Stock as to the effect of
such action upon the conversion rights of such holders.
4. Voting Rights and Powers. The holders of the shares of Series E
Preferred Stock shall have only the following voting rights:
(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 E 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 the circumstances, the
holders of the Series E Preferred Stock are
required by law to vote upon any matter, the
approval of such series shall be deemed to have
been obtained only upon the affirmative vote of the
holders of a majority of the shares of the Series E
Preferred Stock then outstanding;
(C) Except as set forth herein, or as otherwise
provided by the Articles of Incorporation or by
law, holders of the Series E Preferred Stock shall
have no special voting rights and their consent
shall not be required for the taking of any
corporate action.
5. Reacquired Shares. Any shares of Series E Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever or surrendered for conversion hereunder shall no
longer be deemed to be outstanding and all rights with respect to
such shares of stock, including the right, if any, to receive
notices and to vote, shall forthwith cease except, in the case of
stock surrendered for conversion hereunder, rights of the holders
thereof to receive Common Stock in exchange therefor. All shares
of Series E Preferred Stock obtained by the Corporation shall be
retired and canceled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but
unissued shares of Special Stock and may be reissued as part of a
new series of Special Stock subject to the conditions and
restrictions on issuance set forth herein, in the Articles of
Incorporation, or in any other Certificates of Designations
creating a series of Special Stock or any similar stock or as
otherwise required by law.
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6. Liquidation, Dissolution or Winding Up. Upon 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 E 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 E Preferred Stock has priority
over such securities as to dividends or upon liquidation,
dissolution or winding up), to receive a liquidation preference
in an amount in cash equal to $100.00 per share plus an amount
equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the
"Liquidation Value"), whether such liquidation is voluntary or
involuntary, and the holders of the Series E Preferred Stock
shall not be entitled to any other or further distributions of
the assets. If, upon any liquidation, dissolution 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 amount 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 liquidation, dissolution 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 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 E
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 in 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 Section 6.
7. Ranking. The Series E 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 E Preferred Stock as to dividends or rights upon
liquidation, dissolution or winding up of the Corporation as long
as any shares of the Series E Preferred Stock are issued and
outstanding, without the prior written consent of the holders of
a majority of such shares of Series E Preferred Stock then
outstanding voting separately as a class.
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8. Redemption at the Option of the Holder. The shares of Series E
Preferred Stock shall not be redeemable at the option of a holder
of Series E Preferred Stock.
9. Redemption at the Option of the Corporation.
(A) The Corporation shall have the right to redeem all
or a portion of the Series E Preferred Stock issued
and outstanding at any time and from time to time.
The redemption price of the Series E Preferred
Stock shall be an amount per share equal to the
Liquidation Value (the "Redemption Price").
(B) The Corporation may redeem all or a portion of any
holder's shares of Series E Preferred Stock by
giving such holder not less than twenty (20) days
nor more than sixty (60) days notice thereof prior
to the date on which the Corporation desires such
shares to be redeemed, which date shall be a
Business Day (the "Redemption Date"). Such notice
shall be written and shall be hand delivered or
mailed, postage prepaid, to the holder (the
"Redemption Notice"). If mailed, such notice shall
be deemed to be delivered when deposited in the
United States Mail, postage prepaid, addressed to
the holder of shares of Series E Preferred Stock at
his address as it appears on the stock transfer
records of the Corporation. The Redemption Notice
shall state:
(i) The total number of shares of
Series E Preferred Stock held by
such holder;
(ii) The total number of shares of the
holder's Series E Preferred Stock
that the Corporation intends to
redeem;
(iii) The Redemption Date and the
Redemption Price; and
(iv) The place at which the holder(s) may
obtain payment of the applicable
Redemption Price upon surrender of
the share certificate(s).
(C) If fewer than all shares of the Series E 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 E Preferred Stock. If such
Redemption Notice 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 shares of Series E
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 E
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
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latest statement of condition, or such other bank
or trust company as may be permitted by the
Articles of Incorporation, 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 E Preferred Stock so called for
redemption and, in either event, from and after the
Redemption Date (A) the share(s) of Series E
Preferred Stock shall be deemed to be redeemed, (B)
such setting aside or deposit shall be deemed to
constitute full payment for such shares(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 E 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 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
E 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 of 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
Section 9, the Corporation may redeem or repurchase
shares of the Series E Preferred Stock from any
holder(s) thereof who consents in writing to any
such consented redemption. All shares of Series E
Preferred Stock redeemed shall be canceled 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.
(D) On or before the Redemption Date, the holder who
shall redeem such Series E Preferred Stock
hereunder shall surrender the certificate or
certificates representing such shares to the
Corporation by mail, courier or personal delivery
at the Corporation's principal executive office or
other location so designated in the Redemption
Notice, and upon the Redemption Date the Redemption
Price shall be payable to the order of the person
whose name appears on such certificate or
certificates as the owner thereof, and each
surrendered certificate shall be canceled and
retired. In the event fewer than all of the shares
represented by such certificates are redeemed, a
new certificate shall be issued representing the
unredeemed shares.
(E) If the Redemption Notice is not withdrawn prior to
one Business Day before the Redemption Date, and if
on or prior to the Redemption Date the Redemption
Price
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is either paid or made available for payment, then
notwithstanding that the certificates evidencing
any of the shares of the Series E Preferred Stock
so called for redemption have not been surrendered,
(i) all rights with respect to such shares shall
forthwith after the Redemption Date cease and
terminate, to the full extent permitted by
applicable law, except only the right of the
holders to receive the Redemption Price without
interest upon surrender of their certificates
therefor, and (ii) to the full extent permitted by
applicable law, such shares shall no longer be
deemed outstanding for any purpose.
10. Sinking Fund. The Corporation shall not be required to maintain
any so-called "sinking fund" for the retirement on any basis of
the Series E Preferred Stock.
11. Fractional Shares. The Series E Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of shares of
Series E Preferred Stock.
12. Notice. Any notice or request made to the Corporation in
connection with the Series E Preferred Stock shall be given, and
shall conclusively be deemed to have been given and received
three Business Days following deposit thereof in writing, in the
U.S. mails, certified mail, return receipt requested, duly
stamped and addressed to the Corporation, to the attention of its
General Counsel, at its principal executive offices (which shall
be deemed to be the address most recently provided to the
Securities and Exchange Commission ("SEC") as its principal
executive offices for so long as the Corporation is required to
file reports with the SEC).
IN WITNESS WHEREOF, these Articles of Amendment are executed on
behalf of the Corporation by its President and attested by its Secretary as of
the 3rd day of December, 1996.
-------------------------------------
Karl L. Blaha
President
Attest:
- ---------------------
Robert A. Waldman
Secretary
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