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EXHIBIT 3.3
FORM
of
ARTICLES OF AMENDMENT
setting forth the
CERTIFICATE OF DESIGNATIONS
of
SERIES A CUMULATIVE PARTICIPATING 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 these articles of amendment to the Articles of
Incorporation of the Corporation were duly adopted by the Board of Directors of
the Corporation as required by 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) at a meeting duly called and
held on April 11, 1990:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Articles of
Incorporation, the Board of Directors hereby amends the Articles of
Incorporation so as to create a series of the special class of stock, $2.00 par
value per share, of the Corporation and hereby states the designation and
number of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Series A Cumulative Participating Preferred Stock:
1. Designation and Amount. The shares of such series shall be designated
as "Series A Cumulative Participating Preferred Stock" (the "Series A
Preferred Stock") and the number
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of shares constituting the Series A Preferred Stock shall be
500,000. Such number of shares may be increased or decreased
by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
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 or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A
Preferred Stock.
2. Dividends and Distributions.
(A) The holders of shares of Series A Preferred Stock,
in preference to the holders of Common Stock, $2.00
par value per share (the "Common Stock"), of the
Corporation, and of any other junior stock, shall
be titled to receive, when, an and if declared by
the Board of Directors out of funds legally
available for the purpose, quarterly dividends
payable in cash and the fifteenth day of March,
June, September and December in each year (each
such date being referred to herein and 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 A Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater
of (a) $1 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends,
and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable
in shares of Common Stock of a subdivision of the
outstanding shares of Common Stock (by
reclassification or otherwise), declared on the
Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to
the first Quarterly Dividend Payment Data, since
the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event
the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding
shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares
of Common Stock), then in each such case the amount
to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event
under clause M of the preceding sentence shall be
adjusted by multiplying such amount by, a fraction,
the numerator of which is the number of shares of
Common Stock outstanding immediately after such
event and the denominator of which in the Owner of
shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as
provided in paragraph (A) of this Section
immediately after it declares a dividend or
distribution on the Common Stock (other than a
dividend payable in shares of Common Stock);
provided that, in the event no dividend or
distribution shall have been declared on the Common
Stock during the period between any
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Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a
dividend of $1 per share on the Series A Preferred
Stock shall nevertheless be payable an each
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative
on outstanding shares of Series A Preferred Stock
from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the
record date for the first Quarterly Dividend
Payment Date, in which case dividends on such
shares shall begin to accrue from the date of Issue
of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of
shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A
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. The Board of Directors may
fix a record date for the determination of holders
of shares of Series A 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.
3. Voting Rights. The holders of shares of Series A Preferred Stock
shall have the following voting rights:
(A) Each share of Series A Preferred Stock shall
entitle the holder thereof to one hundred votes on
all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation
shall at any time declare or pay any dividend on
the Common Stock payable in shares of comma stock,
or effect a subdivision or combination or
consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock)
then in each such came, the number of votes to
which holders of shares of Series A Preferred Stock
were entitled to immediately prior to such event
shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of
shares of Common Stock Outstanding immediately
after such event and the denominator of which is
the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the
Articles of Incorporation, in any other Certificate
of Designations creating a series of Preferred
Stock or any similar stock, or by law, the holders
of shares of Common Stock and any other capital
stock of the Corporation having general voting
rights shall vote together as one class on all
matters submitted to a vote of stockholders of the
Corporation.
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(C) Except as set forth herein, or as otherwise
provided by the Articles of Incorporation or by
law, holders of Series A Preferred Stock shall have
no special voting rights and their consent shall
not be required (except to the extent they are
entitled to vote with holders of Common stock as
not forth herein) for taking any corporate action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred
Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid
dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make
any other distributions on any
shares of stock ranking junior
(either as to dividends or upon
liquidation, dissolution or winding
up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make
any other distributions, on any
shares of stock ranking on a parity
(either as to dividends or upon
liquidation, dissolution or winding
up) with the Series A Preferred
Stock, except dividends paid ratably
on the Series A Preferred Stock and
all such parity stock on which
dividends are payable or in arrears
in proportion to the total amounts
to which the holders of all such
shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of
any stock ranking junior (either as
to dividends or upon liquidation,
dissolution or winding up) to the
Series A Preferred Stock, provided
that the Corporation may at any time
redeem, purchase or otherwise
acquire shares of any such junior
stock in exchange for shares of any
stock of the Corporation ranking
junior (either as to dividends and
upon dissolution, liquidation or
winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise
acquire for consideration any shares
of Series A Preferred Stock, or any
shares of stock ranking on a parity
with the Series A Preferred Stock,
except in accordance with the terms
of the Articles of Incorporation and
with a purchase offer made in
writing or by publication (as
determined by the Board of
Directors) to all holders of such
shares upon such terms as the Board
of Directors, after consideration of
the respective annual dividend rates
and other relative rights and
preferences of the respective series
and classes, shall determine in good
faith will result in fair and
equitable treatment among the
respective series or classes.
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(B) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the
Corporation unless the Corporation could, under
Paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in
such manner.
5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred
Stock subject to the conditions and restrictions on Issuance met
forth herein, in the Articles of Incorporation, or in any other
Certificate of Designations creating a series of Preferred Stock
or any similar stock or as otherwise required by law.
6. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock unless, prior
thereto, the holders of shares of Series A Preferred Stock shall
have received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders
of abates of Series A Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth equal to 100 times the
aggregate amount to be distributed per share to holders of shares
of Common Stock, or (2) to the holders of shares of stock ranking
on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock
and all such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or affect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the aggregate amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property,
then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an
amount per share, subject to the provision for adjustment
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hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the amount set forth in the preceding sentence with respect
to the exchange or change of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding Immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
8. Ranking. The Series A Preferred Stock shall tank on a parity as
to dividends and upon liquidation, dissolution or winding up with
all other Preferred Stock issued by the Corporation.
9. No Redemption. The shares of Series A Preferred Stock shall not
be redeemable.
10. Fractional Shares. The Series A 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 A Preferred Stock.
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IN WITNESS WHEREOF, this Article of Amendment is executed on behalf of
the Corporation by its Vice President and Treasurer and attested by its
Assistant Secretary as of the 11th day of April, 1990.
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Vice President and Treasurer
Attest:
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Assistant Secretary
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(Form of Right Certificate)
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER APRIL 23, 2000 OR EARLIER IF NOTICE OF REDEMPTION
IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR ANY ASSOCIATES OR AFFILIATES THEREOF (AS SUCH TERMS
ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY THE RIGHT
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO IS, WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN
ACQUIRING PERSON (AS THOSE TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL
AND VOID IN THE CIRCUMSTANCES SPECIFIED IN THE RIGHTS AGREEMENT.](1)
Right Certificate
AMERICAN REALTY TRUST, INC.
This certifies that _________________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement dated as of April 12, 1990 (the "Rights Agreement")
between American Realty Trust, Inc., a Georgia corporation (the "Company"), and
American Stock Transfer and Trust Company (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date and prior to 5:00 P.M.
(New York City time) on the Expiration Date (as such terms are defined in the
Rights Agreement) at the principal office or such other office of the Rights
Agent designated for such purpose, or of its successors as Rights Agent, one
one-hundredth of a fully-paid, nonassessable share of Series A Cumulative
Participating Preferred Stock, $2.00 par value per share (the "Preferred
Shares"), of the Company, at a purchase price of $25 per one one-hundredth of a
Preferred Share (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the appropriate Form of Election to Purchase Shares duly
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(1) The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
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executed. The number of Rights evidenced by this Right Certificate (and the
number of shares which may be purchased upon exercise hereof) set forth above,
and the Purchase Price set forth above, have been determined as of April 11,
1990.
As provided in the Rights Agreement, the Purchase Price and the number
of one one-hundredths of a Preferred Share or other securities which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of certain
events, and in certain circumstances may be exercised to purchase securities of
issuers other than the Company.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the above mentioned office of the Rights
Agent and are available free of charge upon written request from the Rights
Agent at:
American Stock Transfer and Trust Company
99 Wall Street
New York, New York 10005
This Right Certificate, with or without other Right Certificates, upon
surrender at the office of the Rights Agent, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of one one-hundredths
of a Preferred Share on the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive, upon surrender hereof, another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Right Certificate my be redeemed by the Company at its option at a
redemption price of $.01 per light (payable in cash, shares of Common Stock or
other consideration) appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof.
Subject to the provisions of the Rights Agreement, the Right evidenced
by this Right Certificate (and the Rights Agreement itself) may be amended by
action of the Company's Board of Directors.
No fractional Preferred Shares will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
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No holder of this Right Certificate, as such, shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Preferred
Shares or of any other securities of the Company which any at any time be
issuable an the exercise hereof, not shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been Countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of April 23, 1990.
ATTEST: AMERICAN REALTY TRUST, INC.
By: By:
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Secretary Title:
Countersigned:
AMERICAN STOCK TRANSFER AND TRUST
COMPANY
By:
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Authorized Signature
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[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED ________________ hereby sells, assigns and transfers
unto
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(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
DATED: , 19__
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Signature
Signature Guaranteed:
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Certificate
The undesigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate is not being sold, assigned and
transferred by or on behalf of a Person who in or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such term are defined
in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: , 19__
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Signature
Signature Guaranteed:
NOTICE
The signature of the foregoing Assignment must correspond to the name as
written upon the face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
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FORM OF ELECTION TO PURCHASE SHARES
(To be executed if holder desires to exercise the Right Certificate)
To American Realty Trust, Inc.:
The undersigned hereby irrevocably elects to exercise ________ Rights
represented by this Right Certificate to purchase the Preferred Shares (or such
other securities of the Company or any other person) and requests that
certificates for such Preferred Shares be issued in the name of:
Please insert social security
or other identifying number
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(Please print name and address)
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If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of Such Rights
shall be registered in the name of and delivered to:
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(Please insert social security or other identifying number)
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(Please print name and address)
Dated: , 19__
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Signature
Signature Guaranteed:
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Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate[ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it[ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , 19__
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Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase must correspond to
the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
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