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EXHIBIT 4
STATEMENT OF DESIGNATION
OF
7.44% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
OF
WEINGARTEN REALTY INVESTORS
ARTICLE ONE
WEINGARTEN REALTY INVESTORS (the "Company"), pursuant to the provisions of
Section 3.30 of the Texas Real Estate Investment Trust Act (the "TREITA"),
hereby files this Statement of Designation of 7.44% Series A Cumulative
Redeemable Preferred Shares of the Company (the "Statement") prior to the
issuance of any shares of 7.44% Series A Cumulative Redeemable Preferred Shares,
such series of unissued shares having been established by a resolution duly
adopted by all necessary action on the part of the Company and the Board of
Trust Managers, as provided for in the Restated Declaration of Trust, as amended
("Declaration of Trust").
ARTICLE TWO
The name of the Company is Weingarten Realty Investors.
ARTICLE THREE
Pursuant to the authority conferred upon the Board of Trust Managers by the
Declaration of Trust and Section 3.30 of the TREITA, the Board of Trust
Managers, pursuant to Section 10.20 of the TREITA, adopted a resolution
establishing the 7.44% Series A Cumulative Redeemable Preferred Shares of the
Company and designating the series and fixing and determining the preferences,
limitations, and relative rights thereof, as set forth in the true and correct
copy of the resolution attached hereto as Exhibit A (the "Designating
Resolution").
ARTICLE FOUR
The Designating Resolution was adopted effective as of February 19, 1998.
ARTICLE FIVE
The Designating Resolution was duly adopted by all necessary action on the
part of the Company.
IN WITNESS WHEREOF, the undersigned officer has executed this Statement
effective as of February 23, 1998.
By: /s/Stephen C. Richter
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Name: Stephen C. Richter
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Title: Senior Vice President and Treasurer
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EXHIBIT A
DESIGNATING RESOLUTION
BOARD OF TRUST MANAGERS
WEINGARTEN REALTY INVESTORS
FEBRUARY 19, 1998
AUTHORIZATION OF 7.44% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES
WHEREAS, the Board of Trust Managers of the Company has deemed it to be in
the best interest of the Company and its shareholders for the Company to
establish a series of preferred shares pursuant to the authority granted to the
Board of Trust Managers in the Restated Declaration of Trust, as amended (the
"Declaration of Trust") of the Company:
NOW, THEREFORE, BE IT RESOLVED, that, pursuant to the authority vested in
the Board of Trust Managers by Article Seven of the Declaration of Trust of the
Company, a series of preferred shares, par value $.03 per share, is hereby
established, and the terms of the same shall be as follows:
(i) TITLE. The series of preferred shares is hereby designated as the
"7.44% Series A Cumulative Redeemable Preferred Shares" (the "Series A Preferred
Shares").
(ii) NUMBER. The maximum number of authorized shares of the Series A
Preferred Shares shall be 3,450,000.
(iii) RELATIVE SENIORITY. In respect of rights to receive dividends and to
participate in distributions of payments in the event of any liquidation,
dissolution or winding up of the Company, the Series A Preferred Shares shall
rank senior to the common shares and any other class or series of shares of the
Company ranking, as to dividends and upon liquidation, junior to the Series A
Preferred Shares (collectively, "Junior Shares").
(iv) DIVIDENDS.
(A) The holders of the then outstanding Series A Preferred Shares shall
be entitled to receive, when and as declared by the Board of Trust Managers out
of any funds legally available therefor, cumulative dividends at the rate of
$1.86 per share per year, payable in equal amounts quarterly in cash on the last
day of each March, June, September and December or, if not a Business Day (as
hereinafter defined), the next succeeding Business Day (each such day being
hereafter called a "Quarterly Dividend Date" and each period ending on a
Quarterly Dividend Date being hereinafter called a "Dividend Period"). Dividends
shall begin on March 31, 1998. Dividends shall be payable to holders of record
as they appear in the share records of the Company at the close of business on
the applicable record date (the "Record Date"), which shall be the 15th day of
the calendar month in which the applicable Quarterly Dividend Date falls on or
such other date designated by the Board
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of Trust Managers of the Company for the payment of dividends that is not more
than 30 nor less than 10 days prior to such Quarterly Dividend Date. The amount
of any dividend payable for any Dividend Period shorter than a full Dividend
Period shall be prorated and computed on the basis of a 360-day year of twelve
30-day months. Dividends paid on the Series A Preferred Shares 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 per share basis among all such shares at
the time outstanding.
"Business Day" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
(B) The amount of any dividends accrued on any Series A Preferred
Shares at any Quarterly Dividend Date shall be the amount of any unpaid
dividends accumulated thereon, to and including such Quarterly Dividend Date,
whether or not earned or declared, and the amount of dividends accrued on any
shares of Series A Preferred Shares at any date other than a Quarterly Dividend
Date shall be equal to the sum of the amount of any unpaid dividends accumulated
thereon, to and including the last preceding Quarterly Dividend Date, whether or
not earned or declared, plus an amount calculated on the basis of the annual
dividend rate of $1.86 per share for the period after such last preceding
Quarterly Dividend Date to and including the date as of which the calculation is
made based on a 360-day year of twelve 30-day months.
(C) Except as provided in this resolution, the Series A Preferred
Shares will not be entitled to any dividends in excess of full cumulative
dividends as described above and shall not be entitled to participate in the
earnings or assets of the Company, and no interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or payments on the
Series A Preferred Shares which may be in arrears.
(D) Any dividend payment made on the Series A Preferred Shares shall be
first credited against the earliest accrued but unpaid dividend due with respect
to such shares which remains payable.
(E) If, for any taxable year, the Company elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")), any portion (the "Capital Gains Amount") of
the dividends paid or made available for the year to holders of all classes of
shares (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocated to the holders of the Series A Preferred Shares shall
equal (i) the Capital Gains Amount multiplied by (ii) a fraction that is equal
to (a) the total dividends paid or made available to the holders of the Series A
Preferred Shares for the year over (b) the Total Dividends. Subject to the
provisions of applicable law, the current and accumulated earnings and profits
of the Company will be allocated first to distributions to the Series A
Preferred Shares and then to distributions with respect to common shares of the
Company.
(F) No dividends on the Series A Preferred Shares shall be authorized
by the Board of Trust
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Managers or be paid or set apart for payment by the Company at such time as the
terms and provisions of any agreement of the Company, including any agreement
relating to its indebtedness, prohibit such authorization, payment or setting
apart for payment or provide that such authorization, payment or setting apart
for payment would constitute a breach thereof or a default thereunder, or if
such authorization or payment shall be restricted or prohibited by law.
Notwithstanding the foregoing, dividends on the Series A Preferred Shares will
accrue whether or not the Company has earnings, whether or not there are funds
legally available for the payment of such dividends and whether or not such
dividends are authorized.
(v) LIQUIDATION RIGHTS.
(A) Upon the voluntary or involuntary dissolution, liquidation or
winding up of the Company, the holders of the Series A Preferred Shares then
outstanding shall be entitled to receive and to have paid out of the assets of
the Company available for distribution to its shareholders, before any payment
or distribution shall be made on any Junior Shares, the amount of $25.00 per
share, plus accrued and unpaid dividends thereon.
(B) After the payment to the holders of the Series A Preferred Shares
of the full preferential amounts provided for in this resolution, the holders of
the Series A Preferred Shares, as such, shall have no right or claim to any of
the remaining assets of the Company.
(C) If, upon any voluntary or involuntary dissolution, liquidation, or
winding up of the Company, the amounts payable with respect to the preference
value of the Series A Preferred Shares and any other shares of the Company
ranking as to any such distribution on a parity with the Series A Preferred
Shares are not paid in full, the holders of the Series A Preferred Shares and of
such other shares will share ratably in any such distribution of assets of the
Company in proportion to the full respective preference amounts to which they
are entitled.
(D) Neither the sale, lease, transfer or conveyance of all or
substantially all of the property or business of the Company, nor the merger or
consolidation of the Company into or with any other entity or the merger or
consolidation of any other entity into or with the Company, shall be deemed to
be a dissolution, liquidation or winding up, voluntary or involuntary, for the
purposes of this resolution.
(vi) REDEMPTION.
(A) OPTIONAL REDEMPTION. On and after March 31, 2003, the Company may,
at its option, redeem at any time all or, from time to time, part of the Series
A Preferred Shares at a price per share (the "Redemption Price"), payable in
cash, of $25.00, together with all accrued and unpaid dividends to and including
the date fixed for redemption (the "Redemption Date"), without interest, to the
full extent the Company has funds legally available therefor. The Series A
Preferred Shares have no stated maturity and will not be subject to any sinking
fund or mandatory redemption provisions, except as provided for in subparagraph
(ix) below.
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(B) PROCEDURES OF REDEMPTION.
(1) Notice of redemption will be given by publication in a
newspaper of general circulation in the City of New York, such
publication to be made once a week for two successive weeks commencing
not less than 30 nor more than 60 days prior to the Redemption Date.
Notice of any redemption will also be mailed by the registrar, postage
prepaid, not less than 30 nor more than 60 days prior to the Redemption
Date, addressed to each holder of record of the Series A Preferred
Shares to be redeemed at the address set forth in the share transfer
records of the registrar. No failure to give such notice or any defect
therein or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any Series A Preferred Shares except
as to the holder to whom the Company has failed to give notice or
except as to the holder to whom notice was defective. In addition to
any information required by law or by the applicable rules of any
exchange upon which Series A Preferred Shares may be listed or admitted
to trading, such notice shall state: (a) the Redemption Date; (b) the
Redemption Price; (c) the number of Series A Preferred Shares to be
redeemed; (d) the place or places where certificates for such shares
are to be surrendered for payment of the Redemption Price; and (e) that
dividends on the shares to be redeemed will cease to accumulate on the
Redemption Date. If fewer than all of the Series A Preferred Shares
held by any holder are to be redeemed, the notice mailed to such holder
shall also specify the number of Series A Preferred Shares to be
redeemed from such holder.
(2) If notice has been mailed in accordance with subparagraph
(vi)(B)(1) above and provided that on or before the Redemption Date
specified in such notice all funds necessary for such redemption shall
have been irrevocably set aside by the Company, separate and apart from
its other funds in trust for the pro rata benefit of the holders of the
Series A Preferred Shares so called for redemption, so as to be, and to
continue to be available therefor, then, from and after the Redemption
Date, dividends on the Series A Preferred Shares so called for
redemption shall cease to accumulate, and said shares shall no longer
be deemed to be outstanding and shall not have the status of Series A
Preferred Shares and all rights of the holders thereof as shareholder
of the Company (except the right to receive the Redemption Price) shall
cease. Upon surrender, in accordance with such notice, of the
certificates for any Series A Preferred Shares so redeemed (properly
endorsed or assigned for transfer, if the Company shall so require and
the notice shall so state), such Series A Preferred Shares shall be
redeemed by the Company at the Redemption Price. In case fewer than all
the Series A Preferred Shares represented by any such certificate are
redeemed, a new certificate or certificates shall be issued
representing the unredeemed Series A Preferred Shares without cost to
the holder thereof.
(3) Any funds deposited with a bank or trust company for the
purpose of redeeming Series A Preferred Shares shall be irrevocable
except that:
(a) the Company shall be entitled to receive from
such bank or trust company the interest or other earnings, if
any, earned on any money so deposited in trust, and
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the holders of any shares redeemed shall have no claim to such
interest or other earnings; and
(b) any balance of monies so deposited by the Company
and unclaimed by the holders of the Series A Preferred Shares
entitled thereto at the expiration of two years from the
applicable Redemption Date shall be repaid, together with any
interest or other earnings earned thereon, to the Company, and
after any such repayment, the holders of the shares entitled
to the funds so repaid to the Company shall look only to the
Company for payment without interest or other earnings.
(4) No Series A Preferred Shares may be redeemed except from
proceeds from the sale of other capital stock of the Company, including
but not limited to common shares, preferred shares, depositary shares,
interests, participations or other ownership interests (however
designated) and any rights (other than debt securities convertible into
or exchangeable for equity securities) or options to purchase any of
the foregoing.
(5) Unless full accumulated dividends on all Series A
Preferred Shares shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof set apart
for payment for all past Dividend Periods and the then current Dividend
Period, no Series A Preferred Shares shall be redeemed or purchased or
otherwise acquired directly or indirectly; provided, however, that the
foregoing shall not prevent the redemption of Series A Preferred Shares
in accordance with the applicable provisions of Article XVIII of the
Declaration of Trust of the Company or as may otherwise be necessary to
preserve the Company's REIT status or the purchase or acquisition of
Series A Preferred Shares pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding Series A Preferred
Shares.
(6) If the Redemption Date is after a Record Date and before
the related Quarterly Dividend Date, the dividend payable on such
Quarterly Dividend Date shall be paid to the holder in whose name the
Series A Preferred Shares to be redeemed are registered at the close of
business on such Record Date notwithstanding the redemption thereof
between such Record Date and the related Quarterly Dividend Date or the
Company's default in the payment of the dividend due. Except as
provided above, the Company will make no payment or allowance for
unpaid dividends, whether or not in arrears, on Series A Preferred
Shares to be redeemed.
(7) In case of redemption of less than all Series A Preferred
Shares at the time outstanding, the Series A Preferred Shares to be
redeemed shall be selected pro rata from the holders of record of such
shares in proportion to the number of Series A Preferred Shares held by
such holders (with adjustments to avoid redemption of fractional
shares) or by any other equitable method determined by the Company.
(vii) VOTING RIGHTS. Except as required by law, and as set forth below,
the holders of the
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Series A Preferred Shares shall not be entitled to vote at any meeting of the
shareholders for election of Trust Managers or for any other purpose or
otherwise to participate in any action taken by the Company or the shareholders
thereof, or to receive notice of any meeting of shareholders.
(A) Whenever dividends on any Series A Preferred Shares shall
be in arrears for six or more quarterly periods, whether or not such
quarterly periods are consecutive, the holders of such Series A
Preferred Shares (voting separately as a class with all other series of
preferred shares upon which like voting rights have been conferred and
are exercisable) will be entitled to vote for the election of two
additional Trust Managers of the Company at a special meeting called by
the holders of record of at least ten percent (10%) of the Series A
Preferred Shares so in arrears (unless such request is received less
than 90 days before the date fixed for the next annual or special
meeting of the shareholders) or at the next annual meeting of
shareholders, and at each subsequent annual meeting until all dividends
accumulated on such Series A Preferred Shares for the past dividend
periods and the then current dividend period shall have been fully paid
or declared and a sum sufficient for the payment thereof set aside for
payment. In such case, the entire Board of Trust Managers of the
Company will be increased by two Trust Managers.
(B) So long as any Series A Preferred Shares remain
outstanding, the Company will not, without the affirmative vote or
consent of the holders of at least two-thirds of the Series A Preferred
Shares outstanding at the time, given in person or by proxy, either in
writing or at a meeting (such series voting separately as a class), (i)
authorize or create, or increase the authorized or issued amount of,
any class or series of shares of capital stock ranking prior to the
Series A Preferred Shares with respect to the payment of dividends or
the distribution of assets upon liquidation, dissolution or winding up
or reclassify any authorized shares of the Company into such shares, or
create, authorize or issue any obligation or security convertible into
or evidencing the right to purchase any such shares; or (ii) amend,
alter or repeal the provisions of the Company's Declaration of Trust or
this resolution, whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Shares
or the holders thereof; provided, however, with respect to the
occurrence of any of the Events set forth in (ii) above, so long as the
Series A Preferred Shares remain outstanding with the terms thereof
materially unchanged, taking into account that upon the occurrence of
an Event, the Company may not be the surviving entity, the occurrence
of any such Event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting power of holders
of Series A Preferred Shares and provided further that (x) any increase
in the amount of the authorized Preferred Shares or the creating or
issuance of any other series of preferred shares, or (y) any increase
in the amount of authorized Series A Preferred Shares or any other
series of preferred shares, in each case ranking on a parity with or
junior to the Series A Preferred Shares with respect to payment of
dividends or the distribution of assets upon liquidation, dissolution
or winding up, shall not be deemed to materially and adversely affect
such rights, preferences, privileges or voting powers.
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The foregoing voting provisions will not apply if, at or prior
to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding Series A
Preferred Shares shall have been redeemed or called for redemption and
sufficient funds shall have been deposited in trust to effect such
redemption.
(C) On each matter submitted to a vote of the holders of
Series A Preferred Shares in accordance with this resolution, or as
otherwise required by law, each Series A Preferred Share shall be
entitled to one vote. With respect to each Series A Preferred Share,
the holder thereof may designate a proxy, with each such proxy having
the right to vote on behalf of the holder.
(viii) CONVERSION. The Series A Preferred Shares are not convertible
into or exchangeable for any other property or securities of the Company.
(ix) RESTRICTIONS ON OWNERSHIP. The Series A Preferred Shares shall be
subject in all respects to the provisions of Article XVIII of the Declaration of
Trust of the Company.
Ratification and Authorization
RESOLVED, that any and all acts and deeds of any officer or Trust
Manager of the Company taken prior to the date hereof on behalf of the Company
with regard to the foregoing resolutions are hereby approved, ratified and
confirmed in all respects as and for the acts and deeds of the Company.
FURTHER RESOLVED, that the officers of the Company be, and each of them
hereby is, severally and without the necessity for joinder of any other person,
authorized, empowered and directed to execute and deliver any and all such
further documents and instruments and to do and perform any and all such further
acts and deeds that may be necessary or advisable to effectuate and carry out
the purposes and intents of the foregoing resolutions, including, but not
limited to, the filing of a statement with the County Clerk of Harris County,
Texas, setting forth the designations, preferences, limitations and rights of
Series A Preferred Shares pursuant to Section 3.30 of TREITA, all such actions
to be performed in such manner, and all such documents and instruments to be
executed and delivered in such form, as the officer performing or executing the
same shall approve, the performance or execution thereof by such officer to be
conclusive evidence of the approval thereof by such officer and by the Board of
Trust Managers.
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