1
EXHIBIT 3.2
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 H CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
AMERICAN REALTY TRUST, INC.
(Pursuant to Section 14-2-602(d) of the
Georgia Business Corporation Code)
--------------------------
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, at a meeting held on May 29, 1998, 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 H 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 100,000,000 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
2
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, 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, 2,800,000 shares of which have been issued and are outstanding;
WHEREAS, 12,000 shares of such Special Stock have been previously
designated as the Series G Cumulative Convertible Preferred Stock prior to the
date hereof, 1,000 shares of which have been issued and are outstanding; and
WHEREAS, the Board of Directors now desires to further amend the Articles
of Incorporation to designate an additional series of the Special Stock.
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the authority granted to
the Board of Directors by Article Five of the Articles of Incorporation, the
Board of Directors hereby further amends the Articles of Incorporation to
provide for the issuance of a single series of Special Stock consisting of the
number of shares in such series as set forth below and, subject to the
provisions of Article Five of the Articles of Incorporation, hereby fixes and
determines with respect to such series the following designations, preferences
and relative participating, optional or other special rights, if any, and
qualifications, limitations and restrictions thereof:
1. Designation and Amount. The shares of such series shall be designated as
"Series H Cumulative Convertible Preferred Stock" (the "Series H Preferred
Stock") and each share of the Series H 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 H Preferred
Stock shall be 231,750. 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, however, that no increase
shall be allowed without the express written consent of all of the holders
of shares of Series H Preferred Stock then issued and outstanding, and that
no decrease shall reduce the number of shares of Series H Preferred
-2-
3
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.
2. Dividends and Distributions.
(A) The holders of shares of Series H 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 first day of
each calendar quarter, unless such day is a Saturday, Sunday or
holiday, in which case such dividends shall be payable on the next
succeeding business day (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 H Preferred Stock, in an amount per share
(rounded to the next highest cent) equal to (i) 7% per annum during
the period from issuance to June 30, 1999; (ii) 8% per annum during
the period from July 1, 1999 to June 30, 2000; (iii) 9% per annum
during the period from July 1, 2000 to June 30, 2001; and (iv) 10% per
annum from July 1, 2001 and thereafter 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 thereon through the applicable date.
(B) Dividends shall commence accruing cumulatively on outstanding shares
of the Series H 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 any share of Series H
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 to evidence such share (whether by reason of
transfer of such share or for any other reason). Dividends paid on the
shares of Series H 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 H 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 H
Preferred Stock entitled to receive payment of a dividend or
distribution declared thereon other than
-3-
4
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.
(C) So long as any shares of the Series H 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 (i) all accrued dividends on the
Series H 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 (ii) after giving
effect to such distribution (a) the Corporation would not be rendered
unable to pay its debts as they become due in the usual course of
business and (b) 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 H 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 H Preferred Stock)
for any dividend period unless all dividends, in the case dividends
are being paid in full on the Series H 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
H 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 H 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 H Preferred
Stock, such payment will be distributed ratably among the then holders
of Series H Preferred Stock so that an equal amount is paid with
respect to each outstanding share.
3. Conversion Rights.
(A) The Series H Preferred Stock may be converted in such amounts and at
such times as are set forth below, 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 H Preferred Stock
as of the date of conversion by (ii) the Conversion Price; provided,
however, that as to any shares of Series H 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 provided further, however, that
on the
-4-
5
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, (b)
the adoption by the shareholders of the Corporation of any resolution
authorizing the commencement thereof, (c) the dividends on the Series
H Preferred Stock have not been declared in the amount of the dividend
preference as of the first business day of any calendar quarter, or,
if declared, have not been paid by the fifth business day of such
quarter, or (d) the Corporation is acquired in a merger or similar
transaction, the right of conversion shall be immediately accelerated
for all shares of Series H Preferred Stock issued and then
outstanding, irrespective of the conversion schedule set forth below.
Notwithstanding anything to the contrary herein provided, the
Corporation may elect to redeem the shares of Series H 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. Unless otherwise provided,
the term "Business Day" 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.
The Series H Preferred Stock may be converted in the following
amounts, at any time on or after the respective dates (each, a
"Conversion Date"): (i) 25,000 shares on or after December 31, 2000;
(ii) 25,000 shares on or after June 30, 2002; (iii) 25,000 shares on
or after June 30, 2003; (iv) 25,000 shares on or after December 31,
2005; and (v) all remaining outstanding shares on or after December
31, 2006. The number of shares of Series H Preferred Stock each holder
thereof shall be entitled to convert on or after each Conversion Date
shall be determined by (a) dividing the total number of shares of
Series H Preferred Stock held by such holder on such Conversion Date
by the total number of shares of Series H Preferred Stock outstanding
on such Conversion Date, and (b) multiplying such amount obtained in
(a) by the number of shares of Series H Preferred Stock convertible on
or after such Conversion Date pursuant to the schedule set forth above
less the total number of shares of Series H Preferred Stock previously
converted pursuant to this paragraph 3(A).
(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
-5-
6
over-the-counter market or, if no such prices are available, the fair
market value per share of the Common Stock, as determined by the Board
of Directors of the Corporation in its sole discretion. The Conversion
Price shall not be subject to any adjustment as a result of the
issuance of any additional shares of Common Stock by the Corporation
for any purpose, 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 H Preferred Stock surrendered for conversion may stand.
(D) Any conversion of Series H 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 H 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 H Preferred Stock
that the Corporation is exercising its option to redeem the Series H
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 H Preferred Stock so redeemed. The date of surrender
of any Series H Preferred Stock shall be the date of receipt by the
Corporation or its agent of such surrendered shares of Series H
Preferred Stock.
-6-
7
(E) A number of authorized shares of Common Stock sufficient to provide
for the conversion of the Series H 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 H 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
H 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 H 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 H Preferred Stock shall be substantially in
the proportion which the total number of shares of stock of each such
class resulting from all such reclassifications bears to the total
number of shares of stock of all such classes resulting from all such
reclassifications.
(G) In case the Corporation shall propose at any time before all shares of
the Series H 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;
-7-
8
then, in each such case, the Corporation shall mail to the holders of
record of each of the shares of Series H 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 H Preferred
Stock as to the effect of such action upon the conversion rights of such
holders.
4. Voting Rights and Powers. The holders of shares of Series H 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 H 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
H 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 H 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 H Preferred Stock
shall have no special voting rights and their consent shall not be
required for the taking of any corporate action.
5. Reacquired Shares. Any shares of Series H 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 H 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.
-8-
9
6. Liquidation, Dissolution or Winding Up. The Liquidation Value of the Series
H 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 H 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 H 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 H
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 H
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.
7. Ranking. Except as provided in the following sentence, the Series H
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 H Preferred
Stock as to dividends or rights upon liquidation, dissolution or winding up
of the Corporation as long as any shares of the Series H Preferred Stock
are issued and outstanding, without the prior written consent of the
holders of a majority of such shares of Series H Preferred Stock then
outstanding voting separately as a class.
8. Redemption at the Option of the Holder. The shares of Series H Preferred
Stock shall not be redeemable at the option of a holder of Series H
Preferred Stock.
-9-
10
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 H Preferred Stock issued and outstanding at
any time after January 1, 1999 and from time to time, at its option,
for cash. The redemption price of the Series H Preferred Stock
pursuant to this Section 9 shall be an amount per share equal to the
sum of (i) (a) 105% of Liquidation Value during the period from
issuance through December 31, 1999; (b) 104% of Liquidation Value
during the period from January 1, 2000 through December 31, 2000; (c)
103% of the Liquidation Value during the period from January 1, 2001
through December 31, 2001; (d) 102% of Liquidation Value during the
period from January 1, 2002 through December 31, 2002; (e) 101% of
Liquidation Value during the period from January 1, 2003 through
December 31, 2003; and (f) 100% of Liquidation Value from January 1,
2004 and thereafter, and (ii) all accrued and unpaid dividends thereon
through the date of such redemption (the "Redemption Price").
(B) The Corporation may redeem all or a portion of any holder's shares of
Series H 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 H 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 H Preferred Stock shall remain effective
notwithstanding prior receipt by the Corporation of notice by any
holder of Series H Preferred Stock of such holder's intent to convert
shares of Series H 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 shares of Series H Preferred Stock held by such
holder; (ii) the total number of shares of the holder's Series H
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).
-10-
11
(C) If fewer than all shares of the Series H 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 H 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 H 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 H 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 H Preferred Stock so called for redemption and, in either
event, from and after the Redemption Date (a) the share(s) of Series H
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 H 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 H 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 H
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.
-11-
12
(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.
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 H
Preferred Stock.
11. Fractional Shares. The Series H 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 H Preferred Stock.
12. Notice. Any notice or request made to the Corporation in connection with
the Series H 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).
-12-
13
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 24th
day of June, 1998.
/s/ Karl L. Blaha
-----------------
Karl L. Blaha
President
Attest:
/s/ Robert A. Waldman
- ---------------------
Robert A. Waldman
Secretary
-13-