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EXHIBIT 3.8
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 D CUMULATIVE 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 August 2, 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 D Cumulative
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 15,111 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 D Cumulative Preferred Stock" (the "Series
D Preferred Stock") and each share of the Series D Preferred
Stock shall have a par value of $2.00 per share and a preference
on liquidation as specified in Paragraph 5 below. The number of
shares constituting the Series D Preferred Stock shall be 91,000.
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 D Preferred Stock to
a number less then the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants.
2. Dividends and Distributions.
(A) The holders of shares of Series D Preferred Stock,
in preference to the holders of Common Stock and of
any Junior Securities (as defined in Paragraph 5,
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
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and in preference to and with priority over
dividends upon all Junior Securities, quarterly
dividends payable in cash on the last day of March,
June, September and December in each year (or if
such day is not a Business Day (as defined in
Paragraph 8(B) hereof) on the next following
Business Day) (each such date being referred to
herein as a "Quarterly Dividend Payment Date"),
commencing on the date of issuance of a share or
fraction of a share of Series D Preferred Stock, in
an amount per share (rounded to the nearest cent)
equal to 9.50% per annum of the Liquidation Value
(as defined in Paragraph 5, but excluding from such
Liquidation Value any accrued and unpaid dividends
and distributions thereon), 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 D
Preferred Stock from the date of issue of such
shares to and including the date on which the
Redemption Price (as defined in Paragraph 8(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 Paragraph 2,
the date on which the Corporation initially issues
any share of Series D 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 bear interest and shall
not accrue dividends. Dividends paid on the shares
of Series D 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 D 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.
(C) So long as any shares of the Series D 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
accrued dividends on the Series D Preferred Stock
for all past quarterly dividend periods in which
dividends accrued have been paid in full and the
full amount of accrued dividends for the then
current quarterly-yearly dividend periods have been
paid or declared and a sum sufficient for the
payment thereof set apart, and (b) after giving
effect to such payment of dividends, other
distributions,
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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 D Preferred Stock as to dividends or assets
outstanding after the payment of such dividends,
other distributions, purchase or redemption.
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 D Preferred Stock) for any dividend period
unless all dividends, in the case dividends are
being paid in full on the Series D Preferred Stock,
or a ratable portion of all dividends, in the case
dividends are not being paid in full on the Series
D Preferred Stock, have been or are,
contemporaneously, paid or 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.
3. Voting Rights and Powers. The holders of the shares of Series D
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 D 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 D 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 D
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 D Preferred Stock shall
have no special voting rights and their consent
shall not be required for the taking of any
corporate action.
4. Reacquired Shares. Any shares of Series D Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be permanently 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 met
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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5. 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 D 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 D 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 $20.00 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 D 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 D
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 Paragraph 5.
6. Ranking. The Series D 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 D Preferred Stock as to dividends or rights upon
liquidation, dissolution or winding up of the Corporation as long
as any shares of the Series D Preferred Stock are issued and
outstanding, without the prior written consent of the holders of
a majority of such shares of Series D Preferred Stock then
outstanding voting separately as a class.
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7. Redemption at the Option of the Holder. The shares of Series D
Preferred Stock shall not be redeemable at the option of a holder
of Series D Preferred Stock.
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8. Redemption at the Option of the Corporation.
(A) The Corporation shall have the right to redeem all
or a portion of the Series D Preferred Stock issued
and outstanding at any time and from time to time
but only from and after June 1, 2001. The
redemption price of the Series D 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 D 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 (defined herein to 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) (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 D 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 D Preferred Stock held by
such holder;
(ii) The total number of shares of the
holder's Series D 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 D 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 D 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 D
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 D
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
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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,
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 D
Preferred Stock so called for redemption and, in
either event, from and after the Redemption Date
(i) the share(s) of Series D Preferred Stock shall
be deemed to be redeemed, (ii) such setting aside
or deposit shall be deemed to constitute full
payment for such shares(s), (iii) such share(s) so
redeemed shall no longer be deemed to be
outstanding, (iv) the holder(s) thereof shall cease
to be a shareholder of the Corporation with
respect to such share(s), and (v) 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 D 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
D 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
Paragraph 8, the Corporation may redeem or
repurchase shares of the Series D Preferred Stock
from any holder(s) thereof who consents in writing
to any such consented redemption. All shares of
Series D 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 Class D 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.
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(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 is either paid or made available for payment,
then notwithstanding that the certificates
evidencing any of the shares of the Class D
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.
9. Sinking Fund. The Corporation shall not be required to maintain
any so-called "sinking fund" for the retirement on any basis of
the Series D Preferred Stock.
10. Fractional Shares. The Series D 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 D Preferred Stock.
11. Notice. Any notice or request made to the Corporation in
connection with the Series D 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 at the following
address:
American Realty Trust, Inc.
10670 North Central Expressway
Suite 300
Dallas, Texas 75231
Attention: Robert A. Waldman
Senior Vice President and General Counsel
IN WITNESS WHEREOF, these Articles of Amendment are executed on behalf
of the Corporation by its Vice President and Treasurer and attested by its
Assistant Secretary as of the 2nd day of August, 1996.
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Vice President and Treasurer
Attest:
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Assistant Secretary
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