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EXHIBIT 3.12
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 G 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
September 18, 1997, 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 G
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, 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, 16,681 shares of such Special Stock have been previously
designated as the Series C 10% Cumulative Preferred Stock prior to the date
hereof, all of which 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 has been issued or is outstanding;
WHEREAS, 80,000 shares of such Special Stock have been previously
designated as the Series E Cumulative Convertible Preferred Stock prior to the
date hereof, none of which has been issued or is outstanding;
WHEREAS, 7,500,000 shares of such Special Stock have been previously
designated as the Series F Cumulative Convertible Preferred Stock prior to the
date hereof, of which 400,000 shares have been issued or is 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:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series G Cumulative Convertible Preferred Stock" (the "Series G
Preferred Stock") and each share of the Series G Preferred Stock shall have a
par value of $2.00 per share and a preference on liquidation as specified in
Section 6 below. The number of shares constituting the Series G Preferred Stock
shall be 11,000. 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 G 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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Section 2. Dividends and Distributions.
(A) The holders of shares of Series G Preferred Stock 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 cumulative dividends payable in
arrears in cash on the fifteenth day following the end of each
calendar quarter (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 G Preferred Stock, in an
amount per share (rounded to the next highest cent) equal to 10%
per annum of the Adjusted Liquidation Value, as determined
immediately prior to the beginning of such calendar quarter
assuming each year consists of 360 days and each quarter consists
of 90 days. The term "Adjusted Liquidation Value" shall mean
Liquidation Value (as defined in Section 6) plus all accrued and
unpaid dividends through the applicable date. The foregoing is
intended to provide a 10% cumulative return, compounded on a
quarterly basis, on the Liquidation Value from the date of
issuance.
(B) Dividends shall commence accruing cumulatively on outstanding
shares of the Series G Preferred Stock from the date of issuance
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 has issued
a share of Series G Preferred Stock is its date of issuance,
regardless of the number of times a 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
a to evidence such share (whether by reason of transfer of such
share or for any other reason). Dividends paid on the shares of
Series G Preferred Stock in an amount less than the total amount
of dividends at the time accrued and payable on such shares shall
be allocated among the holders of such shares in proportion to
their respective Unpaid Accrual Amounts, where for this purpose
the "Unpaid Accrual Amount" of a holder of shares of Series G
Preferred Stock at any time equals the total of accrued unpaid
dividends on all such shares held by such holder. The Board of
Directors may fix a record date for the determination of holders
of shares of Series G Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon other than a
quarterly dividend paid on the Quarterly Dividend Payment Date
immediately after such dividend accrued; 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 G 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 G
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
and 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
G 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 G Preferred Stock) for any
dividend period unless all dividends, in the case dividends are
being paid in full on the Series G Preferred Stock, or a ratable
portion of all dividends (i.e., so that the amount paid on each
share of each series of Special Stock as a percentage of total
accrued and unpaid dividends for all periods with respect to each
such share is equal), in the case dividends are not being paid in
full on the Series G Preferred Stock, have been or are,
contemporaneously, paid and declared and set apart for payment on
all outstanding series of Special Stock (including the Series G
Preferred 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 G Preferred Stock, such
payment will be distributed ratably among the then holders of
Series G Preferred Stock so that an equal amount is paid with
respect to each outstanding share.
Section 3. Conversion Rights.
(A) The Series G Preferred Stock may be converted at any time and
from time to time in whole or in part after October 6, 2000
at the option of the holders thereof, in accordance with
subsection (D) below at the Conversion Price (as defined in
subsection (B) below) into fully paid and nonassessable Common
Stock of the Corporation by dividing (i) the Adjusted Liquidation
Value for such shares of Series G Preferred Stock as of the date
of conversion by (ii) the Conversion Price; provided, however,
that (1) as to any shares of Series G Preferred Stock which shall
have been called for redemption pursuant to Section 9, the right
of conversion shall terminate upon receipt by the holder of the
notice of redemption from the Corporation and (2) on the earlier
of (a) the commencement of any liquidation, dissolution or
winding up of the Corporation by the filing with the Secretary of
State of the State of Georgia or with a federal bankruptcy court
or (b) the adoption by the
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shareholders of the Corporation of any resolution authorizing the
commencement thereof, the right of conversion shall terminate.
Notwithstanding anything to the contrary herein provided, the
Corporation may elect to redeem the shares of Series G Preferred
Stock sought to be converted, pursuant to Section 9 hereunder,
instead of issuing shares of Common Stock in replacement thereof
in accordance with the provisions of Section 3(D) below.
(B) For purposes of this Section 3, the term "Conversion Price" shall
be and mean the amount obtained (rounded upward to the next
highest cent) by multiplying (i) 0.9 by (ii) 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 (including, without limitation NASDAQ
NMS or NASDAQ Small Cap) on which such Common Stock is then
listed or admitted to trading as determined by the Corporation
(the "Principal Stock Exchange") or, if the Common Stock is not
then listed or admitted to trading on a Principal 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 per share of the Common
Stock, as determined by an appraiser acceptable to the Board of
Directors of the Corporation and the holders of a majority of the
shares of Series G Preferred Stock with respect to which a
written request for conversion has been received by the
Corporation. 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, except for
stock splits (whether accomplished by stock dividends or
otherwise) or reverse stock splits occurring during the 20
Business Days referenced in the calculation of the Conversion
Price. 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 3(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. Any
accrued but unpaid dividends shall be convertible into shares of
Common Stock as provided for in this Section. 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 G Preferred
Stock surrendered for conversion may stand.
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(D) Any conversion of Series G Preferred Stock into Common Stock
shall be made by the surrender to the Corporation, at the office
of the Corporation set forth in Section 12 hereof or at the
office of the transfer agent for such shares, of the certificate
or certificates representing the Series G 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. The Corporation shall either (i) issue,
as of the date of receipt by the Corporation of such surrender,
shares of Common Stock calculated as provided above and evidenced
by a stock certificate delivered to the holder as soon as
practicable after the date of such surrender or (ii) within two
Business Days (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) after the
date of such surrender advise the holder of the Series G
Preferred Stock that the Corporation is exercising its option to
redeem the Series G Preferred Stock pursuant to Section 9, in
which case the Corporation shall have thirty (30) days from the
date of such surrender to pay to the holder cash in an amount
equal to the Redemption Price for each share of Series G
Preferred Stock so redeemed. The date of surrender of any Series
G Preferred Stock shall be the date of receipt by the Corporation
or its agent of such surrendered shares of Series G Preferred
Stock.
(E) A number of authorized shares of Common Stock sufficient to
provide for the conversion of the Series G 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 G 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 G 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 G
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 G
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.
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(G) In case the Corporation shall propose at any time before all
shares of the Series G 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 (unless the Corporation is the surviving entity and
holders of Common Stock continue to hold such Common Stock
without modification and without receipt of any additional
consideration), 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 G 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 G Preferred Stock as to the effect of such action
upon the conversion rights of such holders.
Section 4. Voting Rights and Powers. The holders of shares of Series G
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 or
otherwise provided herein, the holders of the shares of Series G
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;
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(B) In the event that, under the circumstances, the holders of the
Series G 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 G 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 G
Preferred Stock shall have no special voting rights and their
consent shall not be required for the taking of any corporate
action.
Section 5. Reacquired Shares. Any shares of Series G 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 G 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.
Section 6. Liquidation, Dissolution or Winding Up. The Liquidation
Value of the Series G Preferred Stock shall be $100.00 per share. 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 G 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 G 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 the Adjusted Liquidation Value as of
the date of such payment, whether such liquidation is voluntary or involuntary,
and the holders of the Series G 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
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twenty (20) nor more than fifty (50) days prior to the payment date stated
therein to each record holder of Series G 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 less than all or
substantially all 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.
Section 7. Ranking. Except as provided in the following sentence, the
Series G 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. The Corporation shall not issue any shares of Special
Stock of any series which are superior to the Series G Preferred Stock as to
dividends or rights upon liquidation, dissolution or winding up of the
Corporation as long as any shares of the Series G Preferred Stock are issued and
outstanding, without the prior written consent of the holders of a majority of
such shares of Series G Preferred Stock then outstanding voting separately as a
class.
Section 8. Redemption at the Option of the Holder. The shares of Series
G Preferred Stock shall not be redeemable at the option of a holder of Series G
Preferred Stock.
Section 9. Redemption at the Option of the Corporation.
(A) In addition to the redemption right of the Corporation set forth
in Section 3(A) above, the Corporation shall have the right to
redeem all or a portion of the Series G Preferred Stock issued
and outstanding at any time and from time to time, at its option,
for cash. The redemption price of the Series G Preferred Stock
pursuant to this Section 9 shall be an amount per share equal to
the Adjusted Liquidation Value as of the Redemption Date (the
"Redemption Price").
(B) The Corporation may redeem all or a portion of any holder's
shares of Series G Preferred Stock by giving such holder not less
than twenty (20) days nor more than thirty (30) 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 G Preferred
Stock at his address as it appears on the stock transfer records
of the Corporation. The right of the Corporation to redeem shares
of Series G Preferred Stock shall remain effective
notwithstanding prior receipt by the Corporation of notice by any
holder of Series G Preferred Stock of such holder's intent to
convert shares of Series G Preferred Stock in accordance with
Section 3 above, provided that the Redemption Notice is given on
or prior to the second Business Day following the date of
surrender of shares made to convert said shares to Common Stock.
The Redemption Notice shall state (i) the total number of
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shares of Series G Preferred Stock held by such holder; (ii) the
total number of shares of the holder's Series G 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 G 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 G Preferred Stock. If a Redemption Notice shall have been
so mailed, at least two Business Days prior to the Redemption
Date the Corporation shall provide for payment of a sum
sufficient to redeem the applicable number of shares of Series G
Preferred Stock subject to redemption either by (i) 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 G
Preferred Stock to be redeemed or (ii) 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, 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 G
Preferred Stock so called for redemption and, in either event,
from and after the Redemption Date (a) the share(s) of Series G
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 the Redemption Price
for the applicable shares. 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 G 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 G 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. All shares of Series G Preferred Stock
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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) Holders whose shares have been redeemed hereunder shall surrender
the certificate or certificates representing such shares, duly
endorsed or assigned (unless such endorsement or assignment be
waived by the Corporation), 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.
Section 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 G Preferred Stock.
Section 11. Fractional Shares. The Series G 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 G Preferred Stock.
Section 12. Notice. Any notice or request made to the Corporation in
connection with the Series G 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).
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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
10th day of October, 1997.
/s/ Karl L. Blaha
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Karl L. Blaha
President
Attest:
/s/ Robert A. Waldman
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Robert A. Waldman
Secretary
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