Exhibit 3.17
AMB PROPERTY CORPORATION
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF
6 3/4% SERIES M CUMULATIVE REDEEMABLE PREFERRED STOCK
AMB Property Corporation, a corporation organized and existing under
the laws of the State of Maryland (the "Corporation"), certifies to the State
Department of Assessments and Taxation of Maryland (the "Department") that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation (sometimes referred to herein as the "Board") by
Article IV of the charter (the "Charter") of the Corporation and Section 2-105
of the Maryland General Corporation Law, the Board of Directors of the
Corporation, on September 18, 2003, adopted resolutions authorizing the
Corporation, among other things, to issue up to a stated maximum number of
shares of preferred stock, par value $.01 per share (the "Preferred Stock"), of
the Corporation, having a stated maximum aggregate liquidation preference and
dividend rate and certain other stated terms applicable to the issuance thereof,
and appointing, pursuant to the MGCL and the powers contained in the Bylaws of
the Corporation, a committee (the "Committee") of the Board of Directors
comprised of W. Blake Baird and delegating to the Committee, to the fullest
extent permitted by Maryland law and the Charter and Bylaws of the Corporation,
all powers of the Board of Directors with respect to classifying, authorizing,
approving, ratifying and/or confirming the terms of the Preferred Stock to be
issued, including, without limitation, the preferences, conversion and other
rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption, and
determining the consideration per share to be received in respect of the
issuance and sale of each share of Preferred Stock to be issued and sold, and
the number of shares of Preferred Stock to be so classified or reclassified and
issued by the Corporation, subject to the limitations set forth in the
resolutions of the Board of Directors adopted on September 18, 2003.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has on November 6, 2003, adopted resolutions
classifying and designating as a separate class of Preferred Stock the 6 3/4%
Series M Cumulative Redeemable Preferred Stock, with the preferences,
conversions and other rights, voting powers, restrictions, limitations as to
distributions, qualifications and terms and conditions of redemption and other
terms and conditions of such 6 3/4% Series M Cumulative Redeemable Preferred
Stock (within the limitations set by the Board of Directors in the resolutions
adopted on September 18, 2003 and referred to in Article First of these Articles
Supplementary) and establishing 2,300,000 as the number of shares to be so
classified and designated, and authorizing the issuance of up to 2,300,000
shares of 6 3/4% Series M Cumulative Redeemable Preferred Stock.
THIRD: The separate class of Preferred Stock of the Corporation
created by the resolutions duly adopted by the Board of Directors of the
Corporation and by the Committee and
referred to in Articles First and Second of these Articles Supplementary shall
have the designation, number of shares, preferences, conversion and other
rights, voting powers, restrictions and limitations as to dividends,
qualifications, terms and conditions of redemption and other terms and
conditions as follows (and which, upon any restatement of the Charter, may be
made a part of Article IV thereof, with any necessary or appropriate changes to
the numeration or lettering of the sections or subsections hereof):
(1) DESIGNATION AND NUMBER. A class of Preferred Stock, designated the
"6 3/4% Series M Cumulative Redeemable Preferred Stock" (the "Series M Preferred
Stock"), is hereby established. The number of shares of Series M Preferred Stock
shall be 2,300,000 (the "Series M Preferred Shares").
(2) RANK. The Series M Preferred Shares will rank, with respect to
dividend rights and rights upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, (a) senior to all classes or
series of Common Stock (as defined in the Charter) and to all equity securities
of the Corporation the terms of which provide that such equity securities shall
rank junior to such Series M Preferred Shares; (b) on a parity with all equity
securities issued by the Corporation (including the Series B Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series H Preferred Stock, Series I Preferred Stock, Series J Preferred Stock,
Series K Preferred Stock and Series L Preferred Stock) other than those referred
to in clauses (a) and (c) of this Section 2 (it being the intent of the
Corporation that the Series M Preferred Stock be on a parity with the Series B
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series H Preferred Stock, Series I Preferred Stock, Series J
Preferred Stock, Series K Preferred Stock and Series L Preferred Stock with
respect to dividend rights and rights upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, notwithstanding any provision
contained in these Articles Supplementary, which, if given effect, would make
the Series M Preferred Stock not in parity with the Series B Preferred Stock,
Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock,
Series H Preferred Stock, Series I Preferred Stock, Series J Preferred Stock,
Series K Preferred Stock and Series L Preferred Stock; and any such provision
contained in these Articles Supplementary shall be of no force or effect); and
(c) junior to all equity securities issued by the Corporation which rank senior
to the Series M Preferred Shares in accordance with Section 6(d). The term
"equity securities" does not include convertible debt securities.
(3) DIVIDENDS.
(a) Holders of Series M Preferred Shares shall be entitled to
receive, if, when and as authorized by the Board, out of funds legally available
for the payment of dividends, cumulative preferential cash dividends at the rate
of 6 3/4% of the $25.00 liquidation preference per annum (equivalent to $1.6875
per annum per share). Such dividends shall accumulate on a daily basis computed
on the basis of a 360-day year consisting of twelve 30-day months and be
cumulative from November 25, 2003 and shall be payable quarterly (such quarterly
periods for purposes of payment and accrual will be the quarterly periods ending
on the dates specified in this sentence and not calendar year quarters) in equal
amounts in arrears on the 15th day of each January, April, July and October, or,
if not a business day, the next succeeding business day, commencing January 15,
2004 (each a "Dividend Payment Date"). Dividends shall be payable to holders of
record as they appear in the share records of the Corporation at the close of
business on the
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applicable record date (each, a "Dividend Record Date"), which shall be the date
designated by the Board for the payment of dividends that is not more than 30
nor less than 10 days prior to the applicable payment date therefor. Any
dividend payable on the Series M Preferred Shares for any partial dividend
period shall be prorated and computed on the basis of a 360-day year consisting
of twelve 30-day months. If any date on which distributions are to be made on
the Series M Preferred Stock is not a business day, then payment of the
distribution to be made on such date will be made on the next succeeding day
that is a business day (and without any interest or other payment in respect of
any such delay) except that, if such business day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding business
day, in each case with the same force and effect as if made on such date.
Notwithstanding any provision to the contrary contained herein, each outstanding
share of Series M Preferred Stock shall be entitled to receive, and shall
receive, a dividend with respect to any Dividend Record Date equal to the
dividend paid with respect to each other share of Series M Preferred Stock which
is outstanding on such date which shall be equal to the greatest dividend per
share payable on any such share on such date. Accordingly, notwithstanding
anything to the contrary set forth herein, each share of Series M Preferred
Stock issued and outstanding on the record date for the first dividend payment
on the Series M Preferred Stock following the initial issuance of shares of
Series M Preferred Stock on November 25, 2003, shall accrue dividends from the
earliest date on which any shares of the Series M Preferred Stock were issued
(November 25, 2003), and shall receive the same dividend payment regardless of
the date on which such share was actually issued.
(b) No dividend on the Series M Preferred Shares shall be
authorized by the Board or be paid or set apart for payment by the Corporation
at such time as the terms and provisions of any agreement of the Corporation,
including any agreement relating to its indebtedness, prohibits such
authorization, payment or setting apart for payment or provides 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.
(c) Notwithstanding anything to the contrary contained herein,
dividends on the Series M Preferred Shares shall accumulate whether or not
restrictions exist in respect thereof, whether or not there are funds legally
available for the payment thereof and whether or not such dividends are
declared. Accumulated but unpaid dividends on the Series M Preferred Shares will
accumulate as of the Dividend Payment Date on which they first become payable or
on the date of redemption, as the case may be.
(d) If any Series M Preferred Shares are outstanding, no full
dividends will be declared or paid or set apart for payment on any other equity
securities of the Corporation of any other class or series ranking, as to
distributions or upon voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, on a parity with or junior to the Series M
Preferred Shares unless full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Series M Preferred Shares for all dividend
periods. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series M Preferred Shares and any other
equity securities ranking as to dividends on a parity with the Series M
Preferred Shares (including the Series B Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock, Series F Preferred Stock, Series H Preferred
Stock, Series I Preferred Stock, Series J Preferred
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Stock, Series K Preferred Stock and Series L Preferred Stock), all dividends
declared upon the Series M Preferred Shares and any other equity securities of
the Corporation ranking on a parity with the Series M Preferred Shares as to
dividends and upon voluntary or involuntary liquidation, dissolution or winding
up of the Corporation shall be declared pro rata so that the amount of dividends
declared per Series M Preferred Share and each such other equity securities
shall in all cases bear to each other the same ratio that accumulated dividends
per Series M Preferred Share and such other equity securities (which shall not
include any accumulation in respect of unpaid dividends for prior dividend
periods if such other equity securities do not have a cumulative dividend) bear
to each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on Series M Preferred
Shares which may be in arrears.
(e) Except as provided in the immediately preceding paragraph,
unless full cumulative dividends on the Series M Preferred Shares 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 dividend periods, no dividends
(other than in Common Stock or other equity securities of the Corporation
ranking junior to the Series M Preferred Shares as to dividends and upon
voluntary or involuntary liquidation, dissolution and winding up of the
Corporation) shall be declared or paid or set aside for payment nor shall any
other dividend be declared or made upon the Common Stock or any other equity
securities of the Corporation ranking as to dividends or upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation junior to
or on a parity with the Series M Preferred Stock, nor shall any Common Stock or
any other equity securities of the Corporation ranking junior to or on a parity
with the Series M Preferred Stock as to dividends or upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation be
redeemed, purchased or otherwise acquired for any consideration (or any monies
be paid to or made available for a sinking fund for the redemption of any such
securities) by the Corporation (except by conversion into or exchange for other
equity securities of the Corporation ranking junior to the Series M Preferred
Stock as to dividends and upon voluntary or involuntary liquidation, dissolution
and winding up of the Corporation, and except pursuant to Section 7 of this
Article Third to ensure the Corporation's continued status as a real estate
investment trust (a "REIT") for federal income tax purposes or comparable
Charter provisions with respect to other classes or series of the Corporation's
stock).
(f) Accumulated but unpaid dividends on the Series M Preferred
Shares will not bear interest and holders of Series M Preferred Shares shall not
be entitled to any dividend in excess of full cumulative dividends as described
above. Any dividend payment made on the Series M Preferred Shares shall first be
credited against the earliest accumulated but unpaid dividend due with respect
to such shares which remains payable.
(g) If, for any taxable year, the Corporation elects to designate
as a "capital gain dividend" (as defined in Section 857 of the Code (as defined
in Section 7(a) of this Article Third)), any portion (the "Capital Gains
Amount") of the dividends paid or made available for the year to holders of any
class or series of stock of the Corporation, the portion of the Capital Gains
Amount that shall be allocable to holders of the Series M Preferred Stock shall
be the amount that the total dividends (as determined for federal income tax
purposes) paid or made available to the holders of the Series M Preferred Stock
for the year bears to the aggregate
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amount of dividends (as determined for federal income tax purposes) paid or made
available to the holders of all classes or series of stock of the Corporation
for such year.
(4) LIQUIDATION PREFERENCE.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of Series M Preferred
Shares then outstanding shall be entitled to receive out of the assets of the
Corporation legally available for distribution to its stockholders remaining
after payment or provision for payment of all debts and liabilities of the
Corporation, a liquidation preference in cash of $25.00 per share, plus an
amount equal to any accumulated and unpaid dividends to the date of such
payment, before any distribution of assets is made to holders of Common Stock or
any other equity securities of the Corporation that rank junior to the Series M
Preferred Shares as to liquidation rights.
(b) If, upon any such voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the assets of the Corporation are
insufficient to make full payment to holders of Series M Preferred Shares and
the corresponding amounts payable on all shares of other classes or series of
equity securities of the Corporation ranking on a parity with the Series M
Preferred Shares as to liquidation rights (including the Series B Preferred
Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred
Stock, Series H Preferred Stock, Series I Preferred Stock, Series J Preferred
Stock, Series K Preferred Stock and Series L Preferred Stock), then the holders
of the Series M Preferred Shares and all other such classes or series of equity
securities shall share ratably in any such distribution of assets in proportion
to the full liquidating distributions to which they would otherwise be
respectively entitled.
(c) Written notice of any such liquidation, dissolution or winding
up of the Corporation, stating the payment date or dates when, and the place or
places where, the amounts distributable in such circumstances shall be payable,
shall be given by first class mail, postage pre-paid, not less than 30 nor more
than 60 days prior to the payment date stated therein, to each record holder of
the Series M Preferred Shares at the respective addresses of such holders as the
same shall appear on the stock transfer records of the Corporation.
(d) After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of Series M Preferred
Shares will have no right or claim to any of the remaining assets of the
Corporation.
(e) The consolidation or merger of the Corporation with or into
another entity, a merger of another entity with or into the Corporation, a
statutory share exchange by the Corporation or a sale, lease, transfer or
conveyance of all or substantially all of the Corporation's property or business
shall not be deemed to constitute a liquidation, dissolution or winding up of
the Corporation.
(f) In determining whether a distribution (other than upon
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation) by dividend, redemption or other acquisition of shares of stock of
the Corporation or otherwise is permitted under the MGCL, no effect shall be
given to amounts 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 holders of the
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Series M Preferred Shares whose preferential rights upon dissolution are
superior to those receiving the distribution.
(5) OPTIONAL REDEMPTION.
(a) The Series M Preferred Shares are not redeemable prior to
November 25, 2008. To ensure that the Corporation remains a qualified REIT for
federal income tax purposes, however, the Series M Preferred Shares shall be
subject to the provisions of Section 7 of this Article Third pursuant to which
Series M Preferred Shares owned by a stockholder in excess of the Ownership
Limit (as defined in Section 7 of this Article Third) or certain other
limitations shall automatically be transferred to a Trust for the benefit of a
Charitable Beneficiary (as defined in Section 7 of this Article Third) and the
Corporation shall have the right to purchase such shares, as provided in Section
7 of this Article Third. On and after November 25, 2008, the Corporation, at its
option, upon giving notice as provided below, may redeem the Series M Preferred
Shares, in whole or from time to time in part, for cash, at a redemption price
of $25.00 per share, plus all accumulated and unpaid dividends on such Series M
Preferred Shares to the date fixed for redemption.
(b) If fewer than all of the outstanding Series M Preferred Shares
are to be redeemed, the shares to be redeemed shall be selected pro rata (as
nearly as practicable without creating fractional shares) or by lot or by any
other equitable method determined by the Corporation. If such redemption is to
be by lot and, as a result of such redemption, any holder of Series M Preferred
Shares would become a holder of a number of Series M Preferred Shares in excess
of the Ownership Limit (or other limitations set forth in Section 7 of this
Article Third) because such holder's Series M Preferred Shares were not
redeemed, or were only redeemed in part, then, except as otherwise provided in
the Charter, the Corporation will redeem the requisite number of Series M
Preferred Shares of such holder such that no holder will hold in excess of the
Ownership Limit (or such other limits) subsequent to such redemption.
(c) Notwithstanding anything to the contrary contained herein,
unless full cumulative dividends on all Series M 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 M Preferred Shares shall be redeemed
unless all outstanding Series M Preferred Shares are simultaneously redeemed;
provided, however, that the foregoing shall not prevent the purchase by the
Corporation of Series M Preferred Shares pursuant to Section 7 of this Article
Third or otherwise in order to ensure that the Corporation remains qualified as
a REIT for federal or state income tax purposes or the purchase or acquisition
of Series M Preferred Shares pursuant to a purchase or exchange offer made on
the same terms to holders of all outstanding Series M Preferred Shares. In
addition, unless full cumulative dividends on all outstanding Series M Preferred
Shares have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof set apart for payment for all dividend
periods, the Corporation shall not purchase or otherwise acquire directly or
indirectly any Series M Preferred Shares or any equity securities of the
Corporation ranking junior to or on a parity with the Series M Preferred Shares
as to dividends or upon voluntary or involuntary liquidation, dissolution or
winding up of the Corporation (including the Series B Preferred Stock, Series D
Preferred Stock, Series E Preferred Stock, Series F Preferred Stock, Series H
Preferred Stock, Series I Preferred Stock, Series J
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Preferred Stock, Series K Preferred Stock and Series L Preferred Stock) (except
by conversion into or exchange for equity securities of the Corporation ranking
junior to the Series M Preferred Shares as to dividends and upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation and except
pursuant to Section 7 of this Article Third or comparable Charter provisions
with respect to other classes or series of the Corporation's stock).
(d) The holders of shares of Series M Preferred Stock at the close
of business on a Dividend Record Date will be entitled to receive the dividend
payable with respect to the shares of Series M Preferred Stock held on the
corresponding Dividend Payment Date notwithstanding the redemption thereof
between such Dividend Record Date and the corresponding Dividend Payment Date or
the Corporation's default in the payment of the dividend due. Except as provided
herein, the Corporation will make no payment or allowance for unpaid dividends,
whether or not in arrears, on Series M Preferred Shares to be redeemed.
(e) The following provisions set forth the procedures for
Redemption:
(i) 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 Corporation, 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 M Preferred Shares to be redeemed at their respective addresses as
they appear on the share records of the Corporation. 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 M Preferred Shares except as
to the holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by
the applicable rules of any exchange upon which the Series M 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 M Preferred
Shares to be redeemed; (D) the place or places where the certificates evidencing
shares of Series M Preferred Shares are to be surrendered for payment of the
redemption price; and (E) that dividends on the Series M Preferred Shares to be
redeemed will cease to accumulate on such redemption date. If fewer than all of
the Series M Preferred Shares held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of Series M Preferred Shares
to be redeemed from such holder.
(iii) On or after the redemption date, each holder of
Series M Preferred Shares to be redeemed shall present and surrender the
certificates representing such holder's Series M Preferred Shares to the
Corporation at the place designated in the notice of redemption and shall be
entitled to the redemption price and any accumulated and unpaid dividends
payable upon such redemption upon such surrender and thereupon the redemption
price of such shares (including all accumulated and unpaid dividends up to the
redemption date) shall be paid to or on the order of the person whose name
appears on such certificate representing Series M Preferred Shares as the owner
thereof and each surrendered certificate shall be canceled. If fewer than all
the shares represented by any such certificate representing Series M Preferred
Shares are to be redeemed, a new certificate shall be issued representing the
unredeemed shares.
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(iv) If notice of redemption of any Series M Preferred
Shares has been given and if the funds necessary for such redemption have been
set aside by the Corporation in trust for the benefit of the holders thereof,
then from and after the redemption date all dividends on such Series M Preferred
Shares shall cease to accumulate and any such Series M Preferred Shares will no
longer be deemed outstanding and all rights of the holders thereof will
terminate, except the right to receive the redemption price (including all
accumulated and unpaid dividends up to the redemption date) and such shares
shall not thereafter be transferred (except with the consent of the Corporation)
on the Corporation's stock transfer records. At its election, the Corporation,
prior to a redemption date, may irrevocably deposit the redemption price
(including accumulated and unpaid dividends to the redemption date) of the
Series M Preferred Shares so called for redemption in trust for the holders
thereof with a bank or trust company, in which case the redemption notice to
holders of the Series M Preferred Shares to be redeemed shall (A) state the date
of such deposit, (B) specify the office of such bank or trust company as the
place of payment of the redemption price and (C) require such holders to
surrender the certificates representing such shares at such place on or about
the date fixed in such redemption notice (which may not be later than the
redemption date) against payment of the redemption price (including all
accumulated and unpaid dividends to the redemption date). Any monies so
deposited which remain unclaimed by the holders of the Series M Preferred Shares
at the end of two years after the redemption date shall be returned by such bank
or trust company to the Corporation.
(f) Any Series M Preferred Shares that shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued Preferred Stock, without further designation as to series or class
until such shares are once more designated as part of a particular series or
class by the Board.
(6) VOTING RIGHTS.
(a) Holders of the Series M Preferred Shares will not have any
voting rights, except as set forth below.
(b) (i) Whenever dividends on any Series M Preferred Shares shall
remain unpaid for six or more quarterly periods (whether or not consecutive) (a
"Preferred Dividend Default"), the holders of such Series M Preferred Shares
(voting as a single class with all other equity securities of the Corporation
ranking on a parity with the Series M Preferred Shares as to dividends and upon
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation upon which like voting rights have been conferred and are
exercisable, including the Series B Preferred Stock, Series D Preferred Stock,
Series E Preferred Stock, Series F Preferred Stock, Series H Preferred Stock,
Series I Preferred Stock, Series J Preferred Stock, Series K Preferred Stock and
Series L Preferred Stock ("Parity Preferred Stock")) will be entitled to vote
for the election of two additional directors of the Corporation (the "Preferred
Stock Directors"), who will be elected by a plurality of the votes cast in such
election for a one-year term and until their successors are duly elected and
shall qualify (or until such director's right to hold such office terminates as
provided herein, whichever occurs earlier, subject to such director's earlier
death, disqualification, resignation or removal), at a special meeting called by
or at the request of the holders of at least 20% of the outstanding Series M
Preferred Shares or the holders of shares of any other class or series of Parity
Preferred Stock with respect to which dividends are so unpaid
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(unless such request is received less than 90 days before the date fixed for the
next annual or special meeting of stockholders) or, if the request for a special
meeting is received by the Corporation less than 90 days before the date fixed
for the next annual or special meeting of stockholders, at the next annual or
special meeting of stockholders, and at each subsequent annual meeting until all
dividends accumulated on the Series M Preferred Shares for all 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 full.
(ii) At any time when the voting rights described in Section
6(b)(i) above shall have vested, and in the event that a request for a special
meeting shall not have first been made and the meeting called in a manner
contemplated by Section 6(b)(i) above, a proper officer of the Corporation
shall, in any event and without the need for any request therefor, thereupon and
with reasonable promptness, call or cause to be called, a special meeting of the
holders of Series M Preferred Stock and all the series of Parity Preferred Stock
upon which like voting rights have been conferred and are exercisable
(collectively, the "Parity Securities") by mailing or causing to be mailed to
such holders a notice of such special meeting to be held not less than ten and
not more than 45 days after the date such notice is given. The record date for
determining holders of the Parity Securities entitled to notice of and to vote
at such special meeting will be the close of business on the third business day
preceding the day on which such notice is mailed. At any such special meeting,
all of the holders of the Parity Securities, by plurality vote, voting together
as a single class without regard to series will be entitled to elect two
directors on the basis of one vote per $25.00 of liquidation preference to which
such Parity Securities are entitled by their terms (excluding amounts in respect
of accumulated and unpaid dividends) and not cumulatively. Notice of all
meetings at which holders of the Series M Preferred Stock shall be entitled to
vote will be given to such holders at their addresses as they appear in the
transfer records. If a Preferred Dividend Default shall terminate after the
notice of a special meeting has been given but before such special meeting has
been held, the Corporation shall, as soon as practicable after such termination,
mail or cause to be mailed notice of such termination to holders of the Series M
Preferred Stock that would have been entitled to vote at such special meeting.
So long as otherwise relatively timely, any such special meeting may be combined
and held contemporaneously with the next special or annual meeting of the
stockholders of the Corporation.
(c) If and when all accumulated dividends and the dividend for the
then current dividend period on the Series M Preferred Shares shall have been
paid in full or declared by the Corporation and set aside for payment in full,
the holders of Series M Preferred Shares shall be divested of the voting rights
set forth in Section 6(b) hereof (subject to revesting in the event of each and
every Preferred Dividend Default) and, if all accumulated dividends and the
dividend for the then current dividend period have been paid in full or declared
by the Corporation and set aside for payment in full on all other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable, the term of office of each Preferred Stock
Director so elected shall forthwith terminate. Any Preferred Stock Director
elected by the holders of Series M Preferred Shares and any other such Parity
Preferred Stock may be removed at any time with or without cause by the vote of,
and shall not be removed otherwise than by the vote of, the holders of a
majority of the outstanding Series M Preferred Shares when they only have the
voting rights set forth, or like those set forth, in Section 6(b) hereof and by
the majority vote of the Series M Preferred Shares and all other classes or
series of Parity Preferred Stock
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upon which like voting rights have been conferred and are exercisable (voting
as a single class) when the Series M Preferred Shares and such Parity Preferred
Stock is entitled to vote thereon. So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Stock Director so elected may
be filled by written consent of the Preferred Stock Director so elected
remaining in office, or if none remains in office, by a vote of the holders of a
majority of the outstanding Series M Preferred Shares when they only have the
voting rights set forth, or like those set forth, in Section 6(b) and by the
majority vote of the Series M Preferred Shares and other classes or series of
Parity Preferred Stock upon which like voting rights have been conferred and are
exercisable (voting as a single class) when the Series M Preferred Shares and
such Parity Preferred Stock is entitled to vote thereon.
(d) So long as any Series M Preferred Stock remains outstanding,
the Corporation shall not, without the affirmative vote or consent of the
holders of at least two-thirds of the Series M Preferred Stock outstanding at
the time, given in person or by proxy, either in writing or at a meeting (such
Series M Preferred Stock voting separately as a class), (i) authorize or create,
or increase the authorized or issued amount of, any class or series of shares
ranking senior to the Series M Preferred Stock with respect to payment of
dividends or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation or reclassify any
authorized shares of the Corporation into any such shares, or create, authorize
or issue any obligation or security convertible into exchangeable or exercisable
for, or evidencing the right to purchase any such shares; or (ii) amend, alter
or repeal the provisions of the Charter (including these Articles
Supplementary), whether by merger or consolidation (each and "Event") or
otherwise, so as to materially and adversely affect any right, preference,
privilege or voting power of the Series M Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of any of the
Events set forth in (ii) above, so long as shares of Series M Preferred Stock
(or shares issued by a surviving entity in substitution for the Series M
Preferred Stock) remain outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of such an Event, the Corporation
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 powers of the holders of the Series M Preferred Stock; and provided
further that (x) any increase in the amount of the authorized Preferred Stock or
the creation or issuance of any other class or series of Preferred Stock or (y)
any increase in the amount of authorized Series M Preferred Stock or any other
class or series of Preferred Stock, in each case ranking on a parity with or
junior to the Series M Preferred Stock with respect to payment of dividends or
the distribution of assets upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, shall not be deemed to materially
and adversely affect such rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions shall 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 M Preferred Shares shall
have been redeemed or called for redemption upon proper notice and sufficient
funds shall have been deposited in trust to effect such redemption.
(7) RESTRICTIONS ON OWNERSHIP AND TRANSFER TO PRESERVE TAX BENEFIT.
(a) Definitions. For the purposes of Section 7 of these Articles
Supplementary, the following terms shall have the following meanings:
10
"Beneficial Ownership" shall mean ownership of Series
M Preferred Stock by a Person who is or would be treated as an
owner of such Series M Preferred Stock either actually or
constructively through the application of Section 544 of the
Code, as modified by Section 856(h)(1)(B) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and
"Beneficially Owned" shall have the correlative meanings.
"Charitable Beneficiary" shall mean one or more
beneficiaries of a Trust, as determined pursuant to Section
7(c)(vi) of these Articles Supplementary, each of which shall
be an organization described in Sections 170(b)(1)(A),
170(c)(2) and 501(c)(3) of the Code.
"Code" shall mean the Internal Revenue Code of 1986,
as amended. All section references to the Code shall include
any successor provisions thereof as may be adopted from time
to time.
"Constructive Ownership" shall mean ownership of
Series M Preferred Stock by a Person who is or would be
treated as an owner of such Series M Preferred Stock either
actually or constructively through the application of Section
318 of the Code, as modified by Section 856(d)(5) of the Code.
The terms "Constructive Owner," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
"IRS" means the United States Internal Revenue
Service.
"Market Price" shall mean the last reported sales
price reported on the New York Stock Exchange of the Series M
Preferred Stock on the trading day immediately preceding the
relevant date, or if the Series M Preferred Stock is not then
traded on the New York Stock Exchange, the last reported sales
price of the Series M Preferred Stock on the trading day
immediately preceding the relevant date as reported on any
exchange or quotation system over which the Series M Preferred
Stock may be traded, or if the Series M Preferred Stock is not
then traded over any exchange or quotation system, then the
market price of the Series M Preferred Stock on the relevant
date as determined in good faith by the Board of Directors of
the Corporation.
"MGCL" shall mean the Maryland General Corporation
Law, as amended from time to time, and any successor statute
hereafter enacted.
"Ownership Limit" shall mean 9.8% (by value or by
number of shares, whichever is more restrictive) of the
outstanding Series M Preferred Stock of the Corporation.
"Person" shall mean an individual, corporation,
partnership, limited liability company, estate, trust
(including a trust qualified under Section 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set
aside for or to be used exclusively for the purposes described
in Section 642(c) of the Code, association, private foundation
within the meaning of Section 509(a) of the Code,
11
joint stock company or other entity; but does not include an
underwriter acting in a capacity as such in a public offering
of shares of Series M Preferred Stock provided that the
ownership of such shares of Series M Preferred Stock by such
underwriter would not result in the Corporation being "closely
held" within the meaning of Section 856(h) of the Code, or
otherwise result in the Corporation failing to qualify as a
REIT.
"Purported Beneficial Transferee" shall mean, with
respect to any purported Transfer (or other event) which
results in a transfer to a Trust, as provided in Section
7(b)(ii) of these Articles Supplementary, the Purported Record
Transferee, unless the Purported Record Transferee would have
acquired or owned shares of Series M Preferred Stock for
another Person who is the beneficial transferee or owner of
such shares, in which case the Purported Beneficial Transferee
shall be such Person.
"Purported Record Transferee" shall mean, with
respect to any purported Transfer (or other event) which
results in a transfer to a Trust, as provided in Section
7(b)(ii) of these Articles Supplementary, the record holder of
the Series M Preferred Stock if such Transfer had been valid
under Section 7(b)(i) of these Articles Supplementary.
"REIT" shall mean a real estate investment trust
under Sections 856 through 860 of the Code and, for purposes
of taxation of the Corporation under applicable state law,
comparable provisions of the law of such state.
"Restriction Termination Date" shall mean the first
day after the date hereof on which the Board of Directors of
the Corporation determines that it is no longer in the best
interests of the Corporation to attempt to, or continue to,
qualify as a REIT.
"Transfer" shall mean any sale, transfer, gift,
assignment, devise or other disposition of Series M Preferred
Stock, (including (i) the granting of any option or entering
into any agreement for the sale, transfer or other disposition
of Series M Preferred Stock or (ii) the sale, transfer,
assignment or other disposition of any securities (or rights
convertible into or exchangeable for Series M Preferred
Stock), whether voluntary or involuntary, whether such
transfer has occurred of record or beneficially or
Beneficially or Constructively (including but not limited to
transfers of interests in other entities which result in
changes in Beneficial or Constructive Ownership of Series M
Preferred Stock), and whether such transfer has occurred by
operation of law or otherwise.
"Trust" shall mean each of the trusts provided for in
Section 7(c) of these Articles Supplementary.
"Trustee" shall mean any Person unaffiliated with the
Corporation, or a Purported Beneficial Transferee, or a
Purported Record Transferee, that is appointed by the
Corporation to serve as trustee of a Trust.
12
(b) Restriction on Ownership and Transfers.
(i) Prior to the Restriction Termination Date:
(A) except as provided in Section 7(i) of these
Articles Supplementary, no Person shall Beneficially Own Series M Preferred
Stock in excess of the Ownership Limit;
(B) except as provided in Section 7(i) of these
Articles Supplementary, no Person shall Constructively Own Series M Preferred
Stock in excess of the Ownership Limit;
(C) no Person shall Beneficially or
Constructively Own Series M Preferred Stock which, taking into account any other
capital stock of the Corporation Beneficially or Constructively Owned by such
Person, would result in the Corporation being "closely held" within the meaning
of Section 856(h) of the Code, or otherwise failing to qualify as a REIT
(including but not limited to Beneficial or Constructive Ownership that would
result in the Corporation owning (actually or Constructively) an interest in a
tenant that is described in Section 856(d)(2)(B) of the Code if the income
derived by the Corporation (either directly or indirectly through one or more
partnerships or limited liability companies) from such tenant would cause the
Corporation to fail to satisfy any of the gross income requirements of Section
856(c) of the Code or comparable provisions of state law).
(ii) If, prior to the Restriction Termination Date, any
Transfer or other event occurs that, if effective, would result in any Person
Beneficially or Constructively Owning Series M Preferred Stock in violation of
Section 7(b)(i) of these Articles Supplementary, (1) then that number of shares
of Series M Preferred Stock that otherwise would cause such Person to violate
Section 7(b)(i) of these Articles Supplementary (rounded up to the nearest whole
share) shall be automatically transferred to a Trust for the benefit of a
Charitable Beneficiary, as described in Section 7(c), effective as of the close
of business on the business day prior to the date of such Transfer or other
event, and such Purported Beneficial Transferee shall thereafter have no rights
in such shares or (2) if, for any reason, the transfer to the Trust described in
clause (1) of this sentence is not automatically effective as provided therein
to prevent any Person from Beneficially or Constructively Owning Series M
Preferred Stock in violation of Section 7(b)(i) of these Articles Supplementary,
then the Transfer of that number of shares of Series M Preferred Stock that
otherwise would cause any Person to violate Section 7(b)(i) shall be void ab
initio, and the Purported Beneficial Transferee shall have no rights in such
shares.
(iii) Subject to Section 7(l) of these Articles
Supplementary and notwithstanding any other provisions contained herein, prior
to the Restriction Termination Date, any Transfer of Series M Preferred Stock
that, if effective, would result in the capital stock of the Corporation being
beneficially owned by less than 100 Persons (determined without reference to any
rules of attribution) shall be void ab initio, and the intended transferee shall
acquire no rights in such Series M Preferred Stock.
(c) Transfers of Series M Preferred Stock in Trust.
(i) Upon any purported Transfer or other event described
in Section 7(b)(ii) of these Articles Supplementary, such Series M Preferred
Stock shall be deemed to have been
13
transferred to the Trustee in his capacity as trustee of a Trust for the
exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the
Trustee shall be deemed to be effective as of the close of business on the
business day prior to the purported Transfer or other event that results in a
transfer to the Trust pursuant to Section 7(b)(ii). The Trustee shall be
appointed by the Corporation and shall be a Person unaffiliated with the
Corporation, any Purported Beneficial Transferee, or any Purported Record
Transferee. Each Charitable Beneficiary shall be designated by the Corporation
as provided in Section 7(c)(vi) of these Articles Supplementary.
(ii) Series M Preferred Stock held by the Trustee shall be
issued and outstanding Series M Preferred Stock of the Corporation. The
Purported Beneficial Transferee or Purported Record Transferee shall have no
rights in the shares of Series M Preferred Stock held by the Trustee. The
Purported Beneficial Transferee or Purported Record Transferee shall not benefit
economically from ownership of any shares held in trust by the Trustee, shall
have no rights to dividends and shall not possess any rights to vote or other
rights attributable to the shares of Series M Preferred Stock held in the Trust.
(iii) The Trustee shall have all voting rights and rights
to dividends with respect to Series M Preferred Stock held in the Trust, which
rights shall be exercised for the exclusive benefit of the Charitable
Beneficiary. Any dividend or distribution paid prior to the discovery by the
Corporation that shares of Series M Preferred Stock have been transferred to the
Trustee shall be paid to the Trustee upon demand, and any dividend or
distribution declared but unpaid shall be paid when due to the Trustee with
respect to such Series M Preferred Stock. Any dividends or distributions so paid
over to the Trustee shall be held in trust for the Charitable Beneficiary.
The Purported Record Transferee and Purported Beneficial
Transferee shall have no voting rights with respect to the Series M Preferred
Stock held in the Trust and, subject to Maryland law, effective as of the date
the Series M Preferred Stock has been transferred to the Trustee, the Trustee
shall have the authority (at the Trustee's sole discretion) (i) to rescind as
void any vote cast by a Purported Record Transferee with respect to such Series
M Preferred Stock prior to the discovery by the Corporation that the Series M
Preferred Stock has been transferred to the Trustee and (ii) to recast such vote
in accordance with the desires of the Trustee acting for the benefit of the
Charitable Beneficiary; provided, however, that if the Corporation has already
taken irreversible corporate action, then the Trustee shall not have the
authority to rescind and recast such vote. Notwithstanding any other provision
of these Articles Supplementary to the contrary, until the Corporation has
received notification that the Series M Preferred Stock has been transferred
into a Trust, the Corporation shall be entitled to rely on its share transfer
and other stockholder records for purposes of preparing lists of stockholders
entitled to vote at meetings, determining the validity and authority of proxies
and otherwise conducting votes of stockholders.
(iv) Within 20 days of receiving notice from the
Corporation that shares of Series M Preferred Stock have been transferred to the
Trust, the Trustee of the Trust shall sell the shares of Series M Preferred
Stock held in the Trust to a Person, designated by the Trustee, whose ownership
of the shares of Series M Preferred Stock will not violate the ownership
limitations set forth in Section 7(b)(i). Upon such sale, the interest of the
Charitable Beneficiary in the shares of Series M Preferred Stock sold shall
terminate and the Trustee shall distribute the net proceeds of the sale to the
Purported Record Transferee and to the Charitable Beneficiary as provided in
this Section
14
7(c)(iv). The Purported Record Transferee shall receive the lesser of (1) the
price paid by the Purported Record Transferee for the shares of Series M
Preferred Stock in the transaction that resulted in such transfer to the Trust
(or, if the event which resulted in the transfer to the Trust did not involve a
purchase of such shares of Series M Preferred Stock at Market Price, the Market
Price of such shares of Series M Preferred Stock on the day of the event which
resulted in the transfer of such shares of Series M Preferred Stock to the
Trust) and (2) the price per share received by the Trustee (net of any
commissions and other expenses of sale) from the sale or other disposition of
the shares of Series M Preferred Stock held in the Trust. Any net sales proceeds
in excess of the amount payable to the Purported Record Transferee shall be
immediately paid to the Charitable Beneficiary together with any dividends or
other distributions thereon. If, prior to the discovery by the Corporation that
shares of such Series M Preferred Stock have been transferred to the Trustee,
such shares of Series M Preferred Stock are sold by a Purported Record
Transferee then (i) such shares of Series M Preferred Stock shall be deemed to
have been sold on behalf of the Trust and (ii) to the extent that the Purported
Record Transferee received an amount for such shares of Series M Preferred Stock
that exceeds the amount that such Purported Record Transferee was entitled to
receive pursuant to this Section 7(c)(iv), such excess shall be paid to the
Trustee upon demand.
(v) Series M Preferred Stock transferred to the Trustee
shall be deemed to have been offered for sale to the Corporation, or its
designee, at a price per share equal to the lesser of (i) the price paid by the
Purported Record Transferee for the shares of Series M Preferred Stock in the
transaction that resulted in such transfer to the Trust (or, if the event which
resulted in the transfer to the Trust did not involve a purchase of such shares
of Series M Preferred Stock at Market Price, the Market Price of such shares of
Series M Preferred Stock on the day of the event which resulted in the transfer
of such shares of Series M Preferred Stock to the Trust) and (ii) the Market
Price on the date the Corporation, or its designee, accepts such offer. The
Corporation shall have the right to accept such offer until the Trustee has sold
the shares of Series M Preferred Stock held in the Trust pursuant to Section
7(c)(iv). Upon such a sale to the Corporation, the interest of the Charitable
Beneficiary in the shares of Series M Preferred Stock sold shall terminate and
the Trustee shall distribute the net proceeds of the sale to the Purported
Record Transferee and any dividends or other distributions held by the Trustee
with respect to such Series M Preferred Stock shall thereupon be paid to the
Charitable Beneficiary.
(vi) By written notice to the Trustee, the Corporation
shall designate one or more nonprofit organizations to be the Charitable
Beneficiary of the interest in the Trust such that the Series M Preferred Stock
held in the Trust would not violate the restrictions set forth in Section
7(b)(i) in the hands of such Charitable Beneficiary.
(d) Remedies For Breach. If the Board of Directors or a committee
thereof or other designees, if permitted by the MGCL, shall at any time
determine in good faith that a Transfer or other event has taken place in
violation of Section 7(b) of these Articles Supplementary or that a Person
intends to acquire, has attempted to acquire or may acquire beneficial ownership
(determined without reference to any rules of attribution), Beneficial Ownership
or Constructive Ownership of any shares of Series M Preferred Stock of the
Corporation in violation of Section 7(b) of these Articles Supplementary, the
Board of Directors or a committee thereof or other designees if permitted by the
MGCL shall take such action as it deems advisable to refuse to give effect or to
prevent such Transfer, including, but not limited to, causing the Corporation to
redeem shares of
15
Series M Preferred Stock, refusing to give effect to such Transfer on the books
of the Corporation or instituting proceedings to enjoin such Transfer; provided,
however, that any Transfers (or, in the case of events other than a Transfer,
ownership or Constructive Ownership or Beneficial Ownership) in violation of
Section 7(b)(i) of these Articles Supplementary, shall automatically result in
the transfer to a Trust as described in Section 7(b)(ii) and any Transfer in
violation of Section 7(b)(iii) shall automatically be void ab initio
irrespective of any action (or non-action) by the Board of Directors.
(e) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire shares of Series M Preferred Stock in violation of Section
7(b) of these Articles Supplementary, or any Person who is a Purported
Beneficial Transferee such that an automatic transfer to a Trust results under
Section 7(b)(ii) of these Articles Supplementary, shall immediately give written
notice to the Corporation of such event and shall provide to the Corporation
such other information as the Corporation may request in order to determine the
effect, if any, of such Transfer or attempted Transfer on the Corporation's
status as a REIT.
(f) Owners Required To Provide Information. Prior to the
Restriction Termination Date each Person who is a beneficial owner or Beneficial
Owner or Constructive Owner of Series M Preferred Stock and each Person
(including the shareholder of record) who is holding Series M Preferred Stock
for a beneficial owner or Beneficial Owner or Constructive Owner shall provide
to the Corporation such information that the Corporation may request, in good
faith, in order to determine the Corporation's status as a REIT.
(g) Remedies Not Limited. Nothing contained in these Articles
Supplementary (but subject to Section 7(l) of these Articles Supplementary)
shall limit the authority of the Board of Directors to take such other action as
it deems necessary or advisable to protect the Corporation and the interests of
its shareholders by preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application of
any of the provisions of this Section 7 of these Articles Supplementary,
including any definition contained in Section 7(a), the Board of Directors shall
have the power to determine the application of the provisions of this Section 7
with respect to any situation based on the facts known to it (subject, however,
to the provisions of Section 7(l) of these Articles Supplementary). In the event
Section 7 requires an action by the Board of Directors and these Articles
Supplementary fail to provide specific guidance with respect to such action, the
Board of Directors shall have the power to determine the action to be taken so
long as such action is not contrary to the provisions of Section 7. Absent a
decision to the contrary by the Board of Directors (which the Board may make in
its sole and absolute discretion), if a Person would have (but for the remedies
set forth in Section 7(b)) acquired Beneficial or Constructive Ownership of
Series M Preferred Stock in violation of Section 7(b)(i), such remedies (as
applicable) shall apply first to the shares of Series M Preferred Stock which,
but for such remedies, would have been actually owned by such Person, and second
to shares of Series M Preferred Stock which, but for such remedies, would have
been Beneficially Owned or Constructively Owned (but not actually owned) by such
Person, pro rata among the Persons who actually own such shares of Series M
Preferred Stock based upon the relative number of the shares of Series M
Preferred Stock held by each such Person.
16
(i) Exceptions.
(i) Subject to Section 7(b)(i)(C), the Board of
Directors, in its sole discretion, may exempt a Person from the limitation on a
Person Beneficially Owning shares of Series M Preferred Stock in violation of
Section 7(b)(i)(A) if the Board of Directors obtains any representations and
undertakings from such Person as are reasonably necessary in the opinion of the
Board of Directors to ascertain that no individual's Beneficial Ownership of
such shares of Series M Preferred Stock will violate Section 7(b)(i)(A) or that
any such violation will not cause the Corporation to fail to qualify as a REIT
under the Code, and that any violation of such representations or undertaking
(or other action which is contrary to the restrictions contained in Section 7(b)
of these Articles Supplementary) or attempted violation will result in such
Series M Preferred Stock being transferred to a Trust in accordance with Section
7(b)(ii) of these Articles Supplementary.
(ii) Subject to Section 7(b)(i)(C), the Board of
Directors, in its sole discretion, may exempt a Person from the limitation on a
Person Constructively Owning Series M Preferred Stock in violation of Section
7(b)(i)(B), if the Corporation obtains any representations and undertakings from
such Person as are reasonably necessary in the opinion of the Board of Directors
to ascertain that such Person does not and will not own, actually or
Constructively, an interest in a tenant of the Corporation (or a tenant of any
entity owned in whole or in part by the Corporation) that would cause the
Corporation to own, actually or Constructively, more than a 9.8% interest (as
set forth in Section 856(d)(2)(B) of the Code) in such tenant and that any
violation or attempted violation will result in such Series M Preferred Stock
being transferred to a Trust in accordance with Section 7(b)(ii) of these
Articles Supplementary. Notwithstanding the foregoing, the inability of a Person
to make the certification described in this Section 7(i)(ii) shall not prevent
the Board of Directors, in its sole discretion, from exempting such Person from
the limitation on a Person Constructively Owning Series M Preferred Stock in
violation of Section 7(b)(i)(B) if the Board of Directors determines that the
resulting application of Section 856(d)(2)(B) of the Code would affect the
characterization of less than 0.5% of the gross income (as such term is used in
Section 856(c)(2) of the Code) of the Corporation in any taxable year, after
taking into account the effect of this sentence with respect to all other Series
M Preferred Stock to which this sentence applies.
(iii) Prior to granting any exception pursuant to Section
7(i)(i) or (ii) of these Articles Supplementary, the Board of Directors may
require a ruling from the Internal Revenue Service, or an opinion of counsel, in
either case in form and substance satisfactory to the Board of Directors in its
sole discretion, as it may deem necessary or advisable in order to determine or
ensure the Corporation's status as a REIT.
(j) Legends. Each certificate for Series M Preferred Stock shall
bear substantially the following legends:
CLASS OF STOCK
"THE CORPORATION IS AUTHORIZED TO ISSUE CAPITAL STOCK OF MORE THAN ONE
CLASS, CONSISTING OF COMMON STOCK AND ONE OR MORE CLASSES OF PREFERRED
STOCK. THE BOARD OF DIRECTORS IS AUTHORIZED TO DETERMINE THE
PREFERENCES,
17
LIMITATIONS AND RELATIVE RIGHTS OF ANY CLASS OF PREFERRED STOCK BEFORE
THE ISSUANCE OF SHARES OF SUCH CLASS OF PREFERRED STOCK. THE
CORPORATION WILL FURNISH, WITHOUT CHARGE, TO ANY STOCKHOLDER MAKING A
WRITTEN REQUEST THEREFOR, A COPY OF THE CORPORATION'S CHARTER AND A
WRITTEN STATEMENT OF THE DESIGNATIONS, RELATIVE RIGHTS, PREFERENCES,
CONVERSION OR OTHER RIGHTS, VOTING POWERS, RESTRICTIONS, LIMITATIONS AS
TO DIVIDENDS AND OTHER DISTRIBUTIONS, QUALIFICATIONS AND TERMS AND
CONDITIONS OF REDEMPTION OF THE STOCK OF EACH CLASS WHICH THE
CORPORATION HAS THE AUTHORITY TO ISSUE AND, IF THE CORPORATION IS
AUTHORIZED TO ISSUE ANY PREFERRED OR SPECIAL CLASS IN SERIES, (i) THE
DIFFERENCES IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN THE SHARES
OF EACH SERIES TO THE EXTENT SET, AND (ii) THE AUTHORITY OF THE BOARD
OF DIRECTORS TO SET SUCH RIGHTS AND PREFERENCES OF SUBSEQUENT SERIES.
REQUESTS FOR SUCH WRITTEN STATEMENT MAY BE DIRECTED TO THE SECRETARY OF
THE CORPORATION AT ITS PRINCIPAL OFFICE."
RESTRICTION ON OWNERSHIP AND TRANSFER
"THE SHARES OF SERIES M PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP
AND TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS
STATUS AS A REAL ESTATE INVESTMENT TRUST UNDER THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE"). SUBJECT TO CERTAIN FURTHER
RESTRICTIONS AND EXCEPT AS EXPRESSLY PROVIDED IN THE ARTICLES
SUPPLEMENTARY FOR THE SERIES M PREFERRED STOCK, (i) NO PERSON MAY
BENEFICIALLY OWN SHARES OF THE CORPORATION'S SERIES M PREFERRED STOCK
IN EXCESS OF 9.8% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE
RESTRICTIVE) OF THE OUTSTANDING SERIES M PREFERRED STOCK OF THE
CORPORATION; (ii) NO PERSON MAY CONSTRUCTIVELY OWN SHARES OF THE
CORPORATION'S SERIES M PREFERRED STOCK IN EXCESS OF 9.8% (BY VALUE OR
BY NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF THE OUTSTANDING
SERIES M PREFERRED STOCK OF THE CORPORATION; (iii) NO PERSON MAY
BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION'S SERIES M
PREFERRED STOCK THAT, TAKING INTO ACCOUNT ANY OTHER CAPITAL STOCK OF
THE CORPORATION BENEFICIALLY OR CONSTRUCTIVELY OWNED BY SUCH PERSON,
WOULD RESULT IN THE CORPORATION BEING "CLOSELY HELD" UNDER SECTION
856(h) OF THE CODE OR OTHERWISE CAUSE THE CORPORATION TO FAIL TO
QUALIFY AS A REIT; AND (iv) NO PERSON MAY TRANSFER SHARES OF
18
SERIES M PREFERRED STOCK IF SUCH TRANSFER WOULD RESULT IN THE CAPITAL
STOCK OF THE CORPORATION BEING OWNED BY FEWER THAN 100 PERSONS. ANY
PERSON WHO BENEFICIALLY OR CONSTRUCTIVELY OWNS OR ATTEMPTS TO
BENEFICIALLY OR CONSTRUCTIVELY OWN SERIES M PREFERRED STOCK WHICH
CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN
SERIES M PREFERRED STOCK IN EXCESS OF THE ABOVE LIMITATIONS MUST
IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ON
TRANSFER OR OWNERSHIP ARE VIOLATED, THE SERIES M PREFERRED STOCK
REPRESENTED HEREBY WILL BE AUTOMATICALLY TRANSFERRED TO THE TRUSTEE OF
A TRUST FOR THE BENEFIT OF ONE OR MORE CHARITABLE BENEFICIARIES. IN
ADDITION, THE CORPORATION MAY REDEEM SHARES UPON THE TERMS AND
CONDITIONS SPECIFIED BY THE BOARD OF DIRECTORS IN ITS SOLE DISCRETION
IF THE BOARD OF DIRECTORS DETERMINES THAT OWNERSHIP OR A TRANSFER OR
OTHER EVENT MAY VIOLATE THE RESTRICTIONS DESCRIBED ABOVE. FURTHERMORE,
UPON THE OCCURRENCE OF CERTAIN EVENTS, ATTEMPTED TRANSFERS IN VIOLATION
OF THE RESTRICTIONS DESCRIBED ABOVE MAY BE VOID AB INITIO. ALL TERMS IN
THIS LEGEND WHICH ARE DEFINED IN THE ARTICLES SUPPLEMENTARY FOR THE
SERIES M PREFERRED STOCK SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN
SUCH ARTICLES SUPPLEMENTARY, AS THE SAME MAY BE AMENDED FROM TIME TO
TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON TRANSFER AND
OWNERSHIP, WILL BE FURNISHED TO EACH HOLDER OF SERIES M PREFERRED STOCK
ON REQUEST AND WITHOUT CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED
TO THE SECRETARY OF THE CORPORATION AT ITS PRINCIPAL OFFICE."
(k) Severability. If any provision of this Section 7 or any
application of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with the determination of
such court.
(l) NYSE. Nothing in this Section 7 shall preclude the settlement
of any transaction entered into through the facilities of the New York Stock
Exchange. The shares of Series M Preferred Stock that are the subject of such
transaction shall continue to be subject to the provisions of this Section 7
after such settlement.
(m) Applicability of Section 7. The provisions set forth in this
Section 7 shall apply to the Series M Preferred Stock notwithstanding any
contrary provisions of the Series M Preferred Stock provided for elsewhere in
these Articles Supplementary.
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(8) CONVERSION. The Series M Preferred Shares are not convertible into
or exchangeable for any other property or securities of the Corporation.
(9) NO SINKING FUND. No sinking fund shall be established for the
retirement or redemption of Series M Preferred Stock.
(10) NO PREEMPTIVE RIGHTS. No holder of the Series M Preferred Stock of
the Corporation shall, as such holder, have any preemptive rights to purchase or
subscribe for additional shares of stock of the Corporation or any other
security of the Corporation which it may issue or sell.
FOURTH: The Series M Preferred Shares have been classified and
designated by the Board under the authority contained in the Charter.
FIFTH: These Articles Supplementary have been approved by the Board in
the manner and by the vote required by law.
SIXTH: These Articles Supplementary shall be effective at the time the
Department accepts these Articles Supplementary for record.
SEVENTH: The undersigned Executive Vice President and Chief Financial
Officer of the Corporation acknowledges these Articles Supplementary to be the
act of the Corporation and, as to all matters or facts required to be verified
under oath, the undersigned Executive Vice President and Chief Financial Officer
acknowledges that to the best of his knowledge, information and belief, these
matters and facts are true in all material respects and that this statement is
made under the penalties for perjury.
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IN WITNESS WHEREOF, the Corporation has caused these Articles
Supplementary to be executed under seal in its name and on its behalf by its
Executive Vice President and Chief Financial Officer and attested to by its
Secretary on this 24th day of November, 2003.
AMB PROPERTY CORPORATION
By:/s/ Michael A. Coke
------------------------------------
Name: Michael A. Coke
Title: Executive Vice President and
Chief Financial Officer
[SEAL]
ATTEST:
/s/ Tamra D. Browne
- ------------------------
Name: Tamra D. Browne
Title: Secretary
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