Exhibit 4.2
ARTICLES SUPPLEMENTARY
OF
URSTADT BIDDLE PROPERTIES INC.
Urstadt Biddle Properties Inc., a Maryland corporation (the "Company"),
hereby certifies to the State Department of Assessments and Taxation of the
State of Maryland that:
FIRST: Pursuant to authority contained in Article 7 of the Charter of
the Company (the "Charter"), 400,000 shares of authorized but unissued shares of
the Company's preferred stock have been duly classified by the Board of
Directors of the Company on May 28, 2003, as authorized but unissued shares of
the Company's 8.5% Series C Senior Cumulative Preferred Stock and the Board of
Directors of the Company has set the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption thereof.
SECOND: A description of the 8.5% Series C Senior Cumulative Preferred
Stock including the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption, as set by the Board of Directors of the Company is as
follows:
1. Designation and Number. A series of preferred stock, designated
the 8.5% Series C Senior Cumulative Preferred Stock, par value $.01 per share
(the "Series C Preferred Stock"), is hereby established. The number of shares
constituting the Series C Preferred Stock shall be 400,000.
2. Defined Terms. The terms defined in this Section, whenever used
herein, shall, unless the context otherwise requires, have the respective
meanings hereinafter specified:
"Calculation Period" means, as of any date of determination, the period
comprised of the two most recently completed fiscal quarters of the Company
immediately preceding the fiscal quarter of the Company in which such date of
determination occurs.
"Capitalization Ratio" means, as of any date of determination, the
ratio obtained by dividing (i) the sum of (A) the aggregate amount of Debt of
the Company and (B) the aggregate amount of Preferred Stock of the Company by
(ii) the sum of (A) the aggregate amount of Debt of the Company, (B) the
aggregate amount of Preferred Stock of the Company, (C) the aggregate amount of
capital (including additional paid in capital) which in accordance with
generally accepted accounting principles would be reflected on a balance sheet
of the Company in connection with the Common Stock of the Company as of the end
of the quarter immediately preceding the fiscal quarter of the Company in which
such date of determination occurs and (D) accumulated depreciation of the
Company as set forth on the Company's balance sheet as of the end of the quarter
immediately preceding the fiscal quarter of the Company in which such date of
determination occurs.
"Capitalized Lease Obligations" of a person means any obligation that
is required to be classified and accounted for as a capital lease on the face of
a balance sheet of such person prepared in accordance with generally accepted
accounting principles; the amount of such obligation shall be the capitalized
amount thereof determined in accordance with generally accepted accounting
principles; and the Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease.
"Change of Control" means either (i) the occurrence of any merger or
other acquisition with or by any person, entity or group as a consequence of
which a majority of the outstanding shares of Common Stock of the Company shall
be owned or acquired by such person, entity or group or (ii) the occurrence of
any event or transaction as a consequence of which the persons, entities or
organizations set forth in (A), (B) and (C), below, shall, in the aggregate,
cease to own, beneficially or of record, or cease to control the voting or
disposition or the power to direct the voting or disposition of, at least 75% of
the number of shares of Common Stock of the Company which the persons, entities
or organizations set forth in (A), (B) or (C), below, in the aggregate, own,
beneficially or of record, or control the voting or disposition or have the
power to direct the voting or disposition of, as of the date hereof (excluding,
for the avoidance of doubt, any stock options or other stock rights which any
such person, entity or organization may now own or hereafter acquire for
purposes of this definition): (A) Charles J. Urstadt; (B) any Immediate Relative
of Charles J. Urstadt (defined as his spouse, any of his children or any of
their spouses, or any of his grandchildren or any of their spouses); or (C) any
trust, corporation, partnership, limited liability company or other entity or
organization controlled by Charles J. Urstadt or any Immediate Relative of
Charles J. Urstadt or in which Charles J. Urstadt or any Immediate Relative of
Charles J. Urstadt has any economic, beneficial or other interest.
"Common Stock" means the common stock, par value $.01 per share, of the
Company, any stock into which such common stock shall have been changed or any
stock resulting from any capital reorganization or reclassification of such
common stock, the Class A common stock, par value $.01 per share, of the
Company, any stock into which such Class A common stock shall have been changed
or any stock resulting from any capital reorganization or reclassification of
such Class A common stock, and all other stock of any class or classes (however
designated) of the Company the holders of which have the right, without
limitation as to amount, either to all or to a share of the balance of current
dividends and liquidating dividends after the payment of dividends and
distributions of any shares entitled to preference.
"De Minimis Series B Preferred Stock" means up to 100 shares of Series
B Preferred Stock to be issued at the sole discretion of the Company subsequent
to the original issuance of the Series B Preferred Stock pursuant to the consent
of the holders of the Series B Preferred Stock contained in the Series B
Subscription Agreement.
"Debt" of the Company or any subsidiary means any indebtedness of the
Company or any subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company or any subsidiary,
(iii) reimbursement obligations, contingent or otherwise, in connection with
letters of credit or amounts representing the balance deferred and unpaid of the
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purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or (iv) any lease of property by the Company or
any subsidiary as lessee which is reflected on the Company's consolidated
balance sheet as a capitalized lease in accordance with generally accepted
accounting principles, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than reimbursement
obligations in connection with letters of credit) would appear as a liability on
the Company's consolidated balance sheet in accordance with generally accepted
accounting principles, and also includes, to the extent not otherwise included,
any obligation by the Company or any subsidiary to be liable for, or to pay, as
obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), indebtedness of another person (other than the
Company or any subsidiary) (it being understood that Debt will be deemed to be
incurred by the Company or any subsidiary whenever the Company or such
subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof).
"Discount Rate" means, as of any date of determination, the yield to
maturity implied by (i) the yields reported, as of 10:00 A.M. (New York City
time) on the second business day preceding such date of determination on the
display designated as "Page 678" on the Telerate Access Service (or such other
display as may replace Page 678 on Telerate Access Service) for actively traded
U.S. Treasury securities having a 30-year maturity as of such date of
determination, or (ii) if such yields are not reported as of such time or the
yields reported as of such time are not ascertainable, the Treasury Constant
Maturity Series Yields reported, for the latest day for which such yields have
been so reported as of the second business day preceding the date of
determination in Federal Reserve Statistical Release H.15 (519) (or any
comparable successor publication) for actively traded U.S. Treasury securities
having a 30-year constant maturity as of such date of determination.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
the ratio obtained by dividing (i) the sum of (A) Interest Expense for the
Calculation Period and Preferred Dividends for the Calculation Period and (B)
Funds From Operations for the Calculation Period by (ii) the sum of (A) Interest
Expense for the Calculation Period and (B) Preferred Dividends for the
Calculation Period; provided, however, that (x) if the Company has issued any
Debt or Preferred Stock since the beginning of the Calculation Period that
remains outstanding or (y) if the transactions giving rise to the need to
calculate the Fixed Charge Coverage Ratio is an issuance of Debt or Preferred
Stock, or both (x) and (y), Interest Expense and Preferred Dividends for the
Calculation Period shall be calculated after giving effect on a pro forma basis
to such Debt or Preferred Stock as if such Debt or Preferred Stock had been
issued on the first day of the Calculation Period and the discharge of any other
Debt or Preferred Stock refinanced, refunded, exchanged or otherwise discharged
with the proceeds of such new Debt or Preferred Stock as if any such discharge
had occurred on the first day of the Calculation Period.
"Funds From Operations" means, with respect to any fiscal quarter, the
net income of the Company, computed in accordance with generally accepted
accounting principles, for that quarter excluding gains or losses from sales of
properties, plus depreciation, amortization and after adjustments for
unconsolidated joint ventures.
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"Interest Expense" means, for any period, the total interest expense of
the Company, including (i) interest expense attributable to capital leases, (ii)
amortization of debt discount and debt issuance cost, (iii) capitalized
interest, (iv) non-cash interest payments and (v) interest actually paid by the
Company under any guarantee of Debt or other obligation of any other person.
"Lien" means any mortgage, pledge, security interest, conditional sale
or other title retention agreement or other similar lien.
"Make-Whole Price" means, for any share of Series C Preferred Stock as
of any date of determination, the sum of (i) the present value as of such date
of determination of all remaining scheduled dividend payments of such share of
Series C Preferred Stock until the Tenth Anniversary Date, discounted by the
Discount Rate, (ii) the Liquidation Preference (as defined in Section 6) and
(iii) all accrued and unpaid dividends thereon to such date of determination.
"Preferred Dividends" means, for any period, dividends accrued during
such period in respect of all Preferred Stock held by persons other than the
Company.
"Preferred Stock" means, as applied to the capital stock of the
Company, capital stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of stock of any other class of the Company.
"Regulated Person" means any bank holding company, subsidiary of a bank
holding company or other person or entity that is subject to the Bank Holding
Company Act of 1956, as amended from time to time.
"Senior Obligation" means any (i) Debt other than accounts payable
incurred in the ordinary course of the Company's business and (ii) any equity
securities of the Company which rank senior to the Series C Preferred Stock with
respect to the payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of the Company.
"Series B Preferred Stock" means the 8.99% Series B Senior Cumulative
Preferred Stock, par value $.01 per share, of the Company.
"Series B Subscription Agreement" means that certain Subscription
Agreement, by and among the Company and certain holders of the Series B
Preferred Stock, dated as of January 8, 1998, as the same may be amended,
modified or supplemented from time to time in accordance with the provisions
thereof.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency).
"Tenth Anniversary Date" means, the date which is the tenth anniversary
of the first date of issuance of any shares of Series C Preferred Stock.
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3. Maturity. The Series C Preferred Stock has no stated maturity
and will not be subject to any sinking fund or mandatory redemption.
4. Rank. The Series C Preferred Stock will, with respect to
dividend rights and rights upon liquidation, dissolution or winding up of the
Company, rank (i) senior to all classes or series of Common Stock of the
Company, and to all equity securities issued by the Company ranking junior to
the Series C Preferred Stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company, (ii) on a parity with the
Series B Preferred Stock, and with all other equity securities issued by the
Company the terms of which specifically provide that such equity securities rank
on a parity with the Series B and Series C Preferred Stock with respect to
dividend rights or other rights upon liquidation, dissolution or winding up of
the Company, and (iii) junior to all existing and future indebtedness of the
Company. Without the affirmative vote or consent of at least two-thirds of the
outstanding shares of Series C Preferred Stock, the Company may not issue any
equity securities which rank senior to the Series C Preferred Stock with respect
to dividend rights or rights upon liquidation, dissolution or winding up of the
Company. The term "equity securities" does not include convertible debt
securities, which will rank senior to the Series C Preferred Stock prior to
conversion.
5. Dividends.
(a) Holders of shares of the Series C Preferred Stock are entitled
to receive, when and as declared by the Board of Directors, out of funds legally
available for the payment of dividends, preferential cumulative cash dividends
at the rate of 8.5% per annum of the Liquidation Preference (the "Initial
Dividend Yield"); provided, however, that if the Company should violate the
Fixed Charge Coverage Ratio Covenant (as defined in Section 10) or the
Capitalization Ratio Covenant (as defined in Section 10), and fails to cure such
violation on or prior to the second succeeding dividend payment date, the
Initial Dividend Yield shall be increased to 200 basis points over the Initial
Dividend Yield (the "First Default Dividend Yield") as of such second succeeding
dividend payment date. If the Company remains in violation of either the Fixed
Charge Ratio Covenant or the Capitalization Ratio Covenant on four consecutive
dividend payment dates subsequent to the initial violation of either such
covenant, the Initial Dividend Yield shall increase to the greater of (i) the
Discount Rate plus 700 basis points or (ii) 15% (the "Second Default Dividend
Yield") as of such fourth consecutive dividend payment date. The First Default
Dividend Yield and the Second Default Dividend Yield will revert back to the
Initial Dividend Yield if the Company remains in compliance with the Fixed
Charge Coverage Ratio Covenant and the Capitalization Ratio Covenant (in each
case measured at the end of the then most recently completed fiscal quarter) on
two consecutive dividend payment dates after such First Default Dividend Yield
or Second Default Dividend Yield takes effect.
(b) Dividends on the Series C Preferred Stock shall be cumulative
from the date of original issue and shall be payable in arrears for each
quarterly period ending January 31, April 30, July 31 and October 31 on January
31, April 30, July 31 and October 31, respectively, of each year, or, if any
such date shall not be a business day, the next succeeding business day (each, a
"Dividend Payment Date"). The first dividend will be payable on July 31, 2003
with respect to the period commencing on the date of issue and ending July 31,
2003 and will be for
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less than a full quarterly period. Any dividend payable on the Series C
Preferred Stock will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends will be payable to holders of record as they
appear in the stock records of the Company at the close of business on the
applicable record date determined each quarter by the Board of Directors, as
provided by the Maryland General Corporation Law (the "MGCL") (each, a "Dividend
Record Date").
(c) No dividends on shares of Series C Preferred Stock shall be
declared by the Board of Directors or 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, prohibits such
declaration, payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute a breach
thereof or a default thereunder, or if such declaration or payment shall be
restricted or prohibited by law.
(d) Notwithstanding the foregoing, dividends on outstanding shares
of the Series C Preferred Stock 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 declared. Accrued but
unpaid dividends on shares of the Series C Preferred Stock will not bear
interest and holders of shares of the Series C Preferred Stock will not be
entitled to any distributions in excess of full cumulative distributions
described above. Except as set forth in the next sentence, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company
ranking, as to dividends, on a parity with or junior to the Series C Preferred
Stock (other than a dividend in shares of the Company's Common Stock or in
shares of any other class of stock ranking junior to the Series C Preferred
Stock as to dividends and upon liquidation) for any period unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for such
payment on outstanding shares of the Series C Preferred Stock for all past
dividend periods and the then current dividend period. When dividends are not
paid in full (or a sum sufficient for such full payment is not so set apart)
upon the Series C Preferred Stock and the shares of any other series of
preferred stock ranking on a parity as to dividends with the Series C Preferred
Stock, all dividends declared upon the Series C Preferred Stock and any other
series of preferred stock ranking on a parity as to dividends with the Series C
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Series C Preferred Stock and such other series of
preferred stock, shall in all cases bear to each other the same ratio that
accrued dividends per share on the Series C Preferred Stock and such other
series of preferred stock (which shall not include any in respect of unpaid
dividends for prior dividend periods if such preferred stock does not have a
cumulative dividend) bear to each other.
(e) Except as provided in the immediately preceding paragraph (d),
unless full cumulative dividends on outstanding shares of the Series C Preferred
Stock have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for payment for all past
dividend periods and the then current dividend period, no dividends (other than
in shares of Common Stock or other shares of capital stock ranking junior to the
Series C Preferred Stock as to dividends and upon liquidation) shall be declared
or paid or set aside for payment nor shall any other distribution be declared or
made upon the Common Stock, or any other capital stock of the Company ranking
junior to or on a parity with
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the Series C Preferred Stock as to dividends or upon liquidation, nor shall any
shares of Common Stock, or any other shares of capital stock of the Company
ranking junior to or on a parity with the Series C Preferred Stock as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking fund
for the redemption of any such shares) by the Company (except by conversion into
or exchange for other capital stock of the Company ranking junior to the Series
C Preferred Stock as to dividends and upon liquidation or redemption for the
purpose of preserving the Company's qualification as a real estate investment
trust (a "REIT") under the Internal Revenue Code of 1986, as amended (the
"Code")). Holders of shares of the Series C Preferred Stock shall not be
entitled to any dividend, whether payable in cash, property or stock, in excess
of full cumulative dividends on the Series C Preferred Stock as provided above.
Any dividend payment made on shares of the Series C Preferred Stock shall first
be credited against the earliest accrued but unpaid dividend due with respect to
such shares which remains payable. So long as no dividends are in arrears, the
Company shall be entitled at any time and from time to time to repurchase shares
of Series C Preferred Stock in open-market transactions duly authorized by the
Board of Directors and effected in compliance with applicable laws.
6. Liquidation Preference.
(a) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Company, the holders of shares of Series C
Preferred Stock are entitled to be paid out of the assets of the Company legally
available for distribution to its stockholders a liquidation preference of $100
per share (the "Liquidation Preference"), plus an amount equal to any accrued
and unpaid dividends to the date of payment, but without interest, before any
distribution of assets is made to holders of Common Stock or any other class or
series of capital stock of the Company that ranks junior to the Series C
Preferred Stock as to liquidation rights, but the holders of the shares of
Series C Preferred Stock will not be entitled to receive the Liquidation
Preference, plus any accrued and unpaid dividends, of such shares until the
liquidation preference of any other series or class of the Company's capital
stock hereafter issued which ranks senior as to liquidation rights to the Series
C Preferred Stock has been paid in full. The holders of Series C Preferred Stock
and all series or classes of the Company's capital stock which rank on a parity
as to liquidation rights with the Series C Preferred Stock are entitled to share
ratably, in accordance with the respective preferential amounts payable on such
capital stock, in any distribution (after payment of the liquidation preference
of any capital stock of the Company that ranks senior to the Series C Preferred
Stock as to liquidation rights) which is not sufficient to pay in full the
aggregate of the amounts payable thereon. Holders of Series C Preferred Stock
will be entitled to written notice of any event triggering the right to receive
such Liquidation Preference. After payment of the full amount of the Liquidation
Preference, plus any accrued and unpaid dividends to which they are entitled,
the holders of Series C Preferred Stock will have no right or claim to any of
the remaining assets of the Company. The consolidation or merger of the Company
with or into any other corporation, trust or entity or of any other corporation
with or into the Company, or the sale, lease or conveyance of all or
substantially all of the property or business of the Company, shall not be
deemed to constitute a liquidation, dissolution or winding up of the Company.
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(b) In determining whether a distribution to holders of Series C
Preferred Stock (other than upon voluntary or involuntary liquidation) by
dividend, redemption or other acquisition of shares of stock of the Company or
otherwise is permitted under the MGCL, no effect shall be given to amounts that
would be needed, if the Company were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon distribution of holders of
shares of stock of the Company whose preferential rights upon dissolution are
superior to those receiving the distribution.
7. Redemption.
(a) Subject to a redemption of shares of Series C Preferred Stock
which shall be converted to Excess Stock (as defined in Section 12 of the
Charter) pursuant to the Charter and a Change of Control, the Series C Preferred
Stock is not redeemable prior to the Tenth Anniversary Date. However, in order
to ensure that the Company will continue to meet the requirements for
qualification as a REIT under the Code, the Company will have the right to
purchase from the holder of shares of Series C Preferred Stock at any time any
shares of Series C Preferred Stock in excess of 7.5% of the value of the
outstanding capital stock of the Company. On and after the Tenth Anniversary
Date, the Company, at its option, upon not less than 30 nor more than 60 days'
written notice, may redeem shares of the Series C Preferred Stock, in whole or
in part, at any time or from time to time, for cash at a redemption price of
$100 per share, plus all accrued and unpaid dividends thereon to the date fixed
for redemption (subject to Section 7(d) and except with respect to shares of
Series C Preferred Stock which shall have been converted into shares of Excess
Stock pursuant to the Charter), without interest. Holders of Series C Preferred
Stock which is to be redeemed shall surrender such Series C Preferred Stock at
the place designated in such notice and shall be entitled to the redemption
price and any accrued and unpaid dividends payable upon such redemption
following such surrender. If notice of redemption of any shares of Series C
Preferred Stock has been given and if the funds necessary for such redemption
have been set aside by the Company in trust for the benefit of the holders of
any shares of Series C Preferred Stock so called for redemption, then from and
after the redemption date dividends will cease to accrue on such shares of
Series C Preferred Stock, such shares of Series C Preferred Stock shall no
longer be deemed outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price. If less than all of
the outstanding shares of Series C Preferred Stock is to be redeemed, the Series
C Preferred Stock to be redeemed shall be selected pro rata (as nearly as may be
practicable without creating fractional shares) or by any other equitable method
determined by the Company.
(b) Unless full cumulative dividends on all shares of Series C
Preferred Stock 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 shares of
Series C Preferred Stock shall be redeemed unless all outstanding shares of
Series C Preferred Stock are simultaneously redeemed and the Company shall not
purchase or otherwise acquire directly or indirectly any shares of Series C
Preferred Stock (except by exchange for capital stock of the Company ranking
junior to the Series C Preferred Stock as to dividends and upon liquidation);
provided, however, that the foregoing shall not prevent the purchase by the
Company of Excess Stock in order to ensure that the Company
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continues to meet the requirements for qualification as a REIT or any purchase
or exchange offer made on the same terms to holders of all outstanding shares of
Series C Preferred Stock. So long as no dividends are in arrears, the Company
shall be entitled at any time and from time to time to repurchase shares of
Series C Preferred Stock in open-market transactions duly authorized by the
Board of Directors and effected in compliance with applicable laws.
(c) 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. A similar notice will be mailed by
the Company, postage prepaid, not less than 30 nor more than 60 days prior to
the redemption date, addressed to the respective holders of record of the Series
C Preferred Stock to be redeemed at their respective addresses as they appear on
the stock transfer records of the Company. 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 shares of Series C Preferred Stock except
as to the holder to whom notice was defective or not given. Each notice shall
state: (i) the redemption date; (ii) the redemption price; (iii) the number of
shares of Series C Preferred Stock to be redeemed; (iv) the place or places
where the Series C Preferred Stock is to be surrendered for payment of the
redemption price; and (v) that dividends on the shares to be redeemed will cease
to accrue on such redemption date. If less than all of the Series C Preferred
Stock held by any holder is to be redeemed, the notice mailed to such holder
shall also specify the number of shares of Series C Preferred Stock held by such
holder to be redeemed.
(d) Immediately prior to any redemption of Series C Preferred
Stock, the Company shall pay, in cash, any accumulated and unpaid dividends
through the redemption date, unless a redemption date falls after a Dividend
Record Date and prior to the corresponding Dividend Payment Date, in which case
each holder of Series C Preferred Stock at the close of business on such
Dividend Record Date shall be entitled to the dividend payable on such shares on
the corresponding Dividend Payment Date notwithstanding the redemption of such
shares before such Dividend Payment Date.
8. Change of Control.
(a) In the event of a Change of Control of the Company, each
holder of shares of Series C Preferred Stock shall have the right, at such
holder's option, to require the Company to repurchase all or any part of such
holder's Series C Preferred Stock for cash at a repurchase price of $100 per
share, plus all accrued and unpaid dividends thereon, if any, up to the date
fixed for repurchase (except with respect to shares of Series C Preferred Stock
which shall have been converted into shares of Excess Stock pursuant to the
Charter), without interest, pursuant to the procedures described below (the
"Change of Control Put Option"), subject to the MGCL.
(b) In connection with any Change of Control, the Company will be
required to mail to each holder of shares of Series C Preferred Stock, not later
than the date of the occurrence of such Change of Control, a notice of such
occurrence (the "Change of Control Notice"), which shall specify the purchase
price and the purchase date, which shall be no fewer than 30 business days and
no more than 40 business days from the date such notice is mailed (the
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"Put Option Payment Date"), and describe the procedure that must be followed by
such holder to tender such holder's shares of Series C Preferred Stock. The
Company will be required to deliver a copy of the Change of Control Notice to
each record and known beneficial holder of shares of Series C Preferred Stock as
of the date that is 15 days prior to the date such Change of Control Notice is
mailed. To exercise the Change of Control Put Option, a holder of shares of
Series C Preferred Stock must deliver, on or before the third business day
preceding the Put Option Payment Date, written notice to the Company (or to a
paying agent designated by the Company for such purpose) of such holder's
exercise of the Change of Control Put Option, indicating the number of shares of
Series C Preferred Stock to be repurchased by the Company. Holders of shares of
Series C Preferred Stock will be entitled to withdraw, in whole or in part, any
tender of shares of Series C Preferred Stock pursuant to an exercise of the
Change of Control Put Option by delivering to the Company (or to a paying agent
designated by the Company for such purpose), on or before the second business
day preceding the Put Option Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the holder, the number of
shares of Series C Preferred Stock initially to be delivered for purchase, and a
statement that such holder is withdrawing its exercise of the Change of Control
Put Option as to all or part of such tendered shares of Series C Preferred
Stock.
(c) In the event of a Change of Control of the Company, the
Company shall have the right, at the Company's option, to redeem all or any part
of the shares of each holder of Series C Preferred Stock at (i) prior to the
Tenth Anniversary Date, the Make-Whole Price as of the date fixed for redemption
(except with respect to shares of Series C Preferred Stock which shall have been
converted into shares of Excess Stock pursuant to the Charter) and (ii) on or
subsequent to the Tenth Anniversary Date, the redemption price of $100 per
share, plus all accrued and unpaid dividends thereon, if any, without interest,
up to the date fixed for redemption (except with respect to shares of Series C
Preferred Stock which shall have been converted into shares of Excess Stock
pursuant to the Charter), in each case pursuant to the procedures applicable to
other redemptions of shares of Series C Preferred Stock.
9. Voting Rights.
(a) Holders of the Series C Preferred Stock will not have any
voting rights, except as set forth below.
(b) Whenever dividends on any shares of Series C Preferred Stock
shall be in arrears for three or more quarterly periods within any five year
period, whether or not such quarterly periods are consecutive (a "Preferred
Dividend Default"), the number of directors then constituting the Board of
Directors shall be increased by two (if not already increased by reason of a
similar arrearage with respect to any Parity Preferred (as hereinafter
defined)), and the holders of such shares of Series C Preferred Stock (subject
to certain restrictions in case of any Regulated Person) will be entitled to
vote separately as a class with all other series of preferred stock ranking on a
parity with the Series C Preferred Stock as to dividends or upon liquidation and
upon which like voting rights have been conferred and are exercisable,
including, in that instance, the Series B Preferred Stock ("Parity Preferred"),
in order to fill the vacancies thereby created, for the election of a total of
two additional directors of the Company (the "Preferred Stock Directors") at a
special meeting called by the Company at the request of holders of record
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of at least 20% of the Series C Preferred Stock or the holders of record of at
least 20% of any series of Parity Preferred so in arrears (unless such request
is received less than 90 days before the date fixed for the next annual meeting
of stockholders) or at the next annual meeting of stockholders, and at each
subsequent annual meeting until all dividends accumulated on such shares of
Series C Preferred Stock and Parity Preferred for the past dividend periods and
the dividend for 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
the event the directors of the Company are divided into classes, each such
vacancy shall be apportioned among the classes of directors to prevent stacking
in any one class and to insure that the number of directors in each of the
classes of directors, are as nearly equal as possible. Each Preferred Stock
Director, as a qualification for election as such (and regardless of how
elected) shall submit to the Board of Directors of the Company a duly executed,
valid, binding and enforceable letter of resignation from the Board of
Directors, to be effective upon the date upon which all dividends accumulated on
such shares of Series C Preferred Stock and Parity Preferred for the past
dividend periods and the dividend for the then current dividend period shall
have been fully paid or declared and a sum sufficient for the payment thereof
set aside for payment, whereupon the terms of office of all persons elected as
Preferred Stock Directors by the holders of the Series C Preferred Stock and any
Parity Preferred shall, upon the effectiveness of their respective letters of
resignation, forthwith terminate, and the number of directors then constituting
the Board of Directors shall be reduced accordingly. A quorum for any meeting
shall exist if at least a majority of the outstanding shares of Series C
Preferred Stock and shares of Parity Preferred upon which like voting rights
have been conferred and are exercisable are represented in person or by proxy at
such meetings. Such Preferred Stock Directors shall be elected upon the
affirmative vote of a plurality of the shares of Series C Preferred Stock and
such Parity Preferred present and voting in person or by proxy at a duly called
and held meeting at which a quorum is present. If and when all accumulated
dividends and the dividend for the then current dividend period on the Series C
Preferred Stock shall have been paid in full or declared and set aside for
payment in full, the holders thereof shall be divested of the foregoing voting
rights (subject to revesting in the event of each and every Preferred Dividend
Default). Any Preferred Stock Director may be removed at any time with or
without cause by, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding shares of the Series C
Preferred Stock when they have the voting rights described above (voting
separately as a class with all series of Parity Preferred upon which like voting
rights have been conferred and are exercisable). So long as a Preferred Dividend
Default shall continue, any vacancy in the office of a Preferred Stock Director
may be filled by written consent of the Preferred Stock Director remaining in
office, or if none remains in office, by a vote of the holders of record of a
majority of the outstanding shares of Series C Preferred Stock when they have
the voting rights described above (voting separately as a class with all series
of Parity Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter properly coming before the Board of Directors.
(c) So long as any shares of Series C Preferred Stock remain
outstanding, the Company will not, without the affirmative vote or consent of
the holders of at least two-thirds of the shares of the Series C Preferred Stock
outstanding at the time, given in person or by proxy, either in writing or at a
meeting (voting separately as a class):
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(i) voluntarily terminate the status of the company as a REIT;
(ii) amend, alter or repeal the provisions of the Charter or
these Articles Supplementary, whether by merger,
consolidation or otherwise (an "Event"), so as to materially
and adversely affect any preferences, conversion and other
rights, voting powers, restrictions, limitations as to
dividends, qualifications, and terms and conditions of
redemption of the Series C Preferred Stock or the holders
thereof; provided, however, that without the affirmative
vote or consent of each holder of shares of the Series C
Preferred Stock outstanding at the time, no amendment,
alteration or repeal of the provisions of the Charter or of
these Articles Supplementary may be made that will (w)
reduce the number of shares of the Series C Preferred Stock
required to consent to an amendment, alteration or repeal of
the Charter or these Articles Supplementary pursuant to this
Section 9(c)(ii), (x) reduce the Initial Dividend Yield or
the Liquidation Preference or change the method of
calculation of the First Default Dividend Yield, the Second
Default Dividend Yield, or the Make-Whole Price, (y) change
the payment date for payment of dividends with respect to
the Series C Preferred Stock or change the period with
respect to which such dividends are paid, or (z) alter or
modify the rights of any holder of Series C Preferred Stock
pursuant to Section 8 of these Articles Supplementary. With
respect to the occurrence of any Event set forth above, so
long as the Series C Preferred Stock (or any equivalent
class or series of stock issued by the surviving corporation
in any merger or consolidation to which the Company became a
party) remains outstanding with the terms thereof materially
unchanged, the occurrence of any such Event shall not be
deemed to materially and adversely affect any preferences,
conversion and other rights, voting powers, restrictions,
limitations as to dividends, qualifications, and terms and
conditions of redemption of holders of the Series C
Preferred Stock. Any increase in the amount of the
authorized Preferred Stock or the creation or issuance of
any other series of Preferred Stock, or any increase in the
amount of the authorized shares of such series, in each case
ranking on a parity with, or junior to the Series C
Preferred Stock with respect to payment of dividends or the
distribution of assets upon liquidation, dissolution or
winding up, or the issuance of additional shares of Series C
Preferred Stock or De Minimis Series B Preferred Stock shall
not be deemed to materially and adversely affect any
preferences, conversion and other rights, voting power,
restrictions, limitations as to dividends, qualifications,
and terms and conditions of redemption; or
(iii) enter into or undertake any Senior Obligations at any time
during which the Company is in violation of the Fixed Charge
Coverage Ratio Covenant or the Capitalization Ratio
Covenant.
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(d) So long as any shares of Series C Preferred Stock remain
outstanding and any holder of the Series C Preferred Stock as of the date of its
issuance continues to hold, beneficially or of record, at least 75% of the
number of shares of Series C Preferred Stock which such holder owns,
beneficially or of record, as of such date, the Company will not, without the
affirmative vote or consent of the holders of at least 85% of the shares of the
Series C Preferred Stock outstanding at the time, given in person or by proxy,
either in writing or at a meeting (voting separately as a class), amend Section
10 of these Articles Supplementary.
(e) 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 shares of Series C Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been deposited in trust to effect such redemption.
(f) Notwithstanding Section 9(b), any and all shares of Series C
Preferred Stock owned by a Regulated Person which exceed 4.9% (the "Excess
Regulated Person Shares") of the total issued and outstanding shares of Series C
Preferred Stock shall not be entitled to vote for the election of Preferred
Stock Directors (and shall not be counted for purposes of determining the
percentage of holders of Series C Preferred Stock necessary to call the special
meeting described in Section 9(b) or whether a quorum is present at such a
meeting or for any other analogous purpose described in Section 9(b)) so long as
such Excess Regulated Person Shares are owned by a Regulated Person.
(g) Except as expressly stated in these Articles Supplementary,
the Series C Preferred Stock will not have any relative, participating, optional
or other special voting rights and powers, and the consent of the holders
thereof shall not be required for the taking of any corporate action, including
but not limited to, any merger or consolidation involving the Company, or a sale
of all or substantially all of the assets of the Company, or the liquidation or
dissolution of the Company, irrespective of the effect that such merger,
consolidation, sale, liquidation or dissolution may have upon the rights,
preferences or voting power of the holders of the Series C Preferred Stock.
10. Covenants.
(a) The Company agrees that so long as any share of Series C
Preferred Stock shall remain outstanding:
(i) The Company shall not permit the Fixed Charge Coverage
Ratio to be less than 1.30 (the "Fixed Charge Coverage Ratio Covenant")
or the Capitalization Ratio to exceed 0.55 (the "Capitalization Ratio
Covenant") measured, in each case, at the end of each fiscal quarter.
(ii) The Company shall not enter into or undertake any Senior
Obligation which results in a violation of the Fixed Charge Coverage
Ratio Covenant or the Capitalization Ratio Covenant, compliance with
such covenants being determined (A) in the case of the Fixed Charge
Coverage Ratio Covenant, after giving effect on a pro
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forma basis to any such Senior Obligation as if such Senior Obligation
had been issued on the first day of the Calculation Period and (B) in
the case of the Capitalization Ratio Covenant, as of the end of the
fiscal quarter of the Company immediately preceding the fiscal quarter
of the Company in which such Senior Obligation is issued and
undertaken, after giving effect on a pro forma basis to any such Senior
Obligation as if such Senior Obligation had been issued on the first
day of such immediately preceding quarter.
(b) The covenants set forth in Section 10(a) are for the exclusive
benefit of the holders of the Series C Preferred Stock and may be waived by such
percentage of the shares of Series C Preferred Stock outstanding at the time as
may be required to amend such covenants pursuant to Section 9(d) (or, if Section
9(d) is no longer in effect, pursuant to Section 9(c)), without the consent,
approval or vote of any other class of stock of the Company.
11. Conversion. The Series C Preferred Stock is not convertible
into or exchangeable for any other securities or property of the Company.
THIRD: The classification of authorized but unissued shares as set
forth in these Articles Supplementary does not increase the authorized capital
of the Company or the aggregate par value thereof.
FOURTH: These Articles Supplementary have been approved by the majority
of the Board of Directors of the Company in the manner prescribed by the MGCL.
IN WITNESS WHEREOF, the undersigned, the President of the Company
Acknowledges these Articles Supplementary to be the corporate act of the Company
and, as to all matters or facts required to be verified under oath, the
undersigned acknowledges that to the best of his knowledge, information and
belief, these matters and facts set forth herein are true in all material
respects and that this statement is made under the penalties for perjury.
These Articles Supplementary have been executed under seal in the name
of the Company and on its behalf by its President and attested to by its
Secretary on this 29th day of May, 2003.
ATTEST URSTADT BIDDLE PROPERTIES INC.
/s/ Thomas D. Myers By /s/ Willing L. Biddle
- -------------------------------- --------------------------------
Thomas D. Myers Willing L. Biddle
Secretary President
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