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EXHIBIT 3.4
AMB PROPERTY CORPORATION
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF 8 1/2% SERIES A 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 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 Articles of Incorporation of the Corporation filed with the
Department on November 24, 1997, which comprises, together with these Articles
Supplementary, the charter (the "Charter") of the Corporation, and Section 2-105
of the Maryland General Corporation Law (the "MGCL"), the Board of Directors of
the Corporation, by resolutions duly adopted on June 19, 1998, adopted
resolutions (i) classifying and designating a separate class of authorized but
unissued Preferred Stock of the Corporation to consist of not more than
10,000,000 shares, (ii) pursuant to the powers contained in the Bylaws of the
Corporation and the MGCL, appointing a Committee (the "Committee") of the Board
of Directors comprised of Hamid R. Moghadam, and (iii) 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
designating and establishing the preferences, conversion and other rights,
voting powers, restrictions, limitations as to distributions, qualification and
terms and conditions of redemption and other terms and conditions of such class
of Preferred Stock, and determining the number of shares of such class of
Preferred Stock (not in excess of the aforesaid maximum number) to be issued,
and the price and other terms and conditions upon which shares of such series of
Preferred Stock are to be offered, sold and issued.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has on July 20, 1998, adopted resolutions classifying
and designating (or confirming the designation and classification of) the
aforesaid class of Preferred Stock as the 8 1/2% Series A Cumulative Redeemable
Preferred Stock, with the preferences, conversions and other rights, voting
powers, restrictions, limitations as to distributions, qualifications and terms
and conditions of redemptions and other terms and conditions of such 8 1/2%
Series A Cumulative Redeemable Preferred Stock (to the extent not set by the
Board of Directors in the resolutions referred to in Article FIRST of these
Articles Supplementary) and establishing 4,600,000 as the number of shares to be
so classified and designated, and authorizing the issuance of up to 4,600,000
shares of 8 1/2% Series A 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
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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
"8 1/2% Series A Cumulative Redeemable Preferred Stock" (the "Series A Preferred
Stock"), is hereby established. The number of shares of Series A Preferred Stock
shall be 4,600,000 (the "Series A Preferred Shares").
(2) RANK. The Series A 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 A Preferred Shares; (b) on a parity with all equity
securities issued by the Corporation other than those referred to in clauses (a)
and (c); and (c) junior to all equity securities issued by the Corporation which
rank senior to the Series A Preferred Shares in accordance with Section 6(d).
The term "equity securities" does not include convertible debt securities.
(3) DIVIDENDS.
(a) Holders of Series A 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 8
1/2% of the $25.00 liquidation preference per annum (equivalent to $2.125 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 July 27, 1998 and shall be payable quarterly 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 October 15, 1998 (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 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 A 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. Notwithstanding any provision to the contrary contained
herein, each outstanding share of Series A 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 A
Preferred Stock which is outstanding on such date.
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(b) No dividend on the Series A 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 A 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 A 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 A 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 liquidation, dissolution or winding up of the Corporation, on a parity with
or junior to the Series A 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 A Preferred
Shares 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 A Preferred Shares and any other equity securities
ranking as to dividends on a parity with the Series A Preferred Shares, all
dividends declared upon the Series A Preferred Shares and any other equity
securities of the Corporation ranking as to dividends on a parity with the
Series A Preferred Shares shall be declared pro rata so that the amount of
dividends declared per Series A Preferred Share and each such other equity
securities shall in all cases bear to each other the same ratio that accumulated
dividends per Series A 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 A
Preferred Shares which may be in arrears.
(e) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series A 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 past dividend periods and the
then current dividend period, no dividends (other than in Common Stock or other
equity securities of the Corporation ranking junior to the Series A Preferred
Shares as to dividends and upon 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 or upon liquidation, dissolution or
winding up of the Corporation junior to or on a parity with the Series A
Preferred Shares, nor shall any Common Stock or any other equity securities of
the Corporation ranking junior to or on a parity with the Series A Preferred
Shares as to dividends or upon 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 A Preferred Shares as to
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dividends and upon 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 REIT or comparable Charter provisions with
respect to other classes or series of the Corporation's stock).
(f) Accumulated but unpaid dividends on the Series A Preferred Shares
will not bear interest and holders of Series A 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 A 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), 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 A
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
A Preferred Stock for the year bears to the aggregate 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 A 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 A
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 A 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 A Preferred
Shares as to liquidation rights, then the holders of the Series A 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.
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(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 A 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 A 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) 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 Series A Preferred Shares whose preferential
rights upon dissolution are superior to those receiving the distribution.
(5) OPTIONAL REDEMPTION.
(a) The Series A Preferred Shares are not redeemable prior to July 27,
2003. To ensure that the Corporation remains a qualified real estate investment
trust ("REIT") for federal income tax purposes, however, the Series A Preferred
Shares shall be subject to the provisions of Section 7 of this Article Third
pursuant to which Series A 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 July 27, 2003, the Corporation, at
its option, upon giving notice as provided below, may redeem the Series A
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 A Preferred Shares to the date fixed for redemption.
(b) The redemption price of the Series A Preferred Shares (other than
the portion thereof consisting of accumulated and unpaid dividends) is payable
solely from the sale proceeds of other equity securities of the Corporation, and
not from any other source. For purposes of the preceding sentence, "equity
securities" means any equity securities (including Common Stock and Preferred
Stock (as defined in the Charter)), depositary shares in respect of any of the
foregoing,
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interests, participations or other ownership interests (however designated) and
any rights (other than debt securities convertible into or exchangeable for
equity securities) or options to purchase any of the foregoing.
(c) If fewer than all of the outstanding Series A 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 A Preferred Shares
would become a holder of a number of Series A 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 A 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 A 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.
(d) Notwithstanding anything to the contrary contained herein, unless
full cumulative dividends on all Series A Preferred Shares shall have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend periods and the then
current dividend period, no Series A Preferred Shares shall be redeemed unless
all outstanding Series A Preferred Shares are simultaneously redeemed; provided,
however, that the foregoing shall not prevent the purchase by the Corporation of
Series A 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 A Preferred Shares pursuant to a purchase or exchange offer made on the
same terms to holders of all outstanding Series A Preferred Shares. In addition,
unless full cumulative dividends on all outstanding Series A 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 past dividend
periods and the then current dividend period, the Corporation shall not purchase
or otherwise acquire directly or indirectly any Series A Preferred Shares or any
equity securities of the Corporation ranking junior to or on a parity with the
Series A Preferred Shares as to dividends or upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation (except by conversion
into or exchange for equity securities of the Corporation ranking junior to the
Series A 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).
(e) The holders of shares of Series A 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 A 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 A Preferred Shares to be redeemed.
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(f) 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 A 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 A 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 A Preferred Shares may be
listed or admitted to trading, such notice shall state: (A) the redemption date;
(B) the redemption price; (C) the number of Series A Preferred Shares to be
redeemed; (D) the place or places where the certificates evidencing shares of
Series A Preferred Shares are to be surrendered for payment of the redemption
price; and (E) that dividends on the Series A Preferred Shares to be redeemed
will cease to accumulate on such redemption date. If fewer than all of the
Series A Preferred Shares held by any holder are to be redeemed, the notice
mailed to such holder shall also specify the number of Series A Preferred Shares
to be redeemed from such holder.
(iii) On or after the redemption date, each holder of Series A
Preferred Shares to be redeemed shall present and surrender the certificates
representing such holder's Series A 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 A 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 A Preferred Shares are to be redeemed, a
new certificate shall be issued representing the unredeemed shares.
(iv) If notice of redemption of any Series A 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 A Preferred
Shares shall cease to accumulate and any such Series A 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 A Preferred Shares so called for redemption in trust for the holders
thereof with a bank or trust company, in which case the
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redemption notice to holders of the Series A 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 A
Preferred Shares at the end of two years after the redemption date shall be
returned by such bank or trust company to the Corporation.
(g) Any Series A 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 A Preferred Shares will not have any voting
rights, except as set forth below.
(b) Whenever dividends on any Series A Preferred Shares shall remain
unpaid for six or more quarterly periods (whether or not consecutive) (a
"Preferred Dividend Default"), the holders of such Series A Preferred Shares
(voting as a single class with all other equity securities of the Corporation
ranking on a parity with the Series A Preferred Shares as to dividends and upon
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation ("Parity Preferred Stock") upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of two
additional directors of the Corporation (the "Preferred Stock Directors"), who
will be elected 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
the holders of at least 20% of the outstanding Series A 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 (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 A 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.
(c) If and when all accumulated dividends and the dividend for the then
current dividend period on the Series A Preferred Shares shall have been paid in
full or declared by the Corporation and set aside for payment in full, the
holders of Series A Preferred Shares shall be divested of the voting rights set
forth in Section 6(b) hereof (subject to revesting in the event of
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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 A Preferred Shares and any other such Parity
Preferred Shares 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 A 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 A Preferred Shares and all 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 A
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 A
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 A 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 A Preferred Shares and such Parity Preferred Stock is entitled
to vote thereon.
(d) So long as any Series A Preferred Shares remain outstanding, the
Corporation shall not, without the affirmative vote or consent of the holders of
at least two-thirds of the Series A Preferred Shares outstanding at the time,
given in person or by proxy, either in writing or at a meeting (such Series A
Preferred Shares voting separately as a class), (i) authorize or create, or
increase the authorized or issued amount of, any class or series of stock
ranking senior to the Series A Preferred Shares 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 stock, or create, authorize
or issue any obligation or security convertible into exchangeable or exercisable
for, or evidencing the right to purchase any such stock; 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 A Preferred Shares 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 Series A Preferred Shares (or shares issued by a surviving entity in
substitution for the Series A Preferred Shares) 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 A Preferred Shares; 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 A Preferred Shares or any other class or series of Preferred
Stock, in
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each case ranking on a parity with or junior to the Series A Preferred Shares
with respect to payment of dividends or the distribution of assets upon
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 A 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:
"Beneficial Ownership" shall mean ownership of Series A
Preferred Stock by a Person who is or would be treated as an owner of
such Series A 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 A
Preferred Stock by a Person who is or would be treated as an owner of
such Series A 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 A Preferred Stock
on the trading day immediately preceding the relevant date, or if the
Series A Preferred Stock is not then traded on the New York Stock
Exchange, the last reported sales price of the Series A Preferred Stock
on the trading day immediately preceding the relevant
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date as reported on any exchange or quotation system over which the
Series A Preferred Stock may be traded, or if the Series A Preferred
Stock is not then traded over any exchange or quotation system, then
the market price of the Series A 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 A
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, 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 A
Preferred Stock provided that the ownership of such shares of Series A
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 this these Articles
Supplementary, the Purported Record Transferee, unless the Purported
Record Transferee would have acquired or owned shares of Series A
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 A 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.
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"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 A Preferred Stock, (including (i)
the granting of any option or entering into any agreement for the sale,
transfer or other disposition of Series A Preferred Stock or (ii) the
sale, transfer, assignment or other disposition of any securities (or
rights convertible into or exchangeable for Series A 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 A 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.
(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 A 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 A Preferred
Stock in excess of the Ownership Limit;
(C) no Person shall Beneficially or Constructively
Own Series A 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).
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(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 A Preferred Stock in violation of
Section 7(b)(i) of these Articles Supplementary, (1) then that number of shares
of Series A 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 A
Preferred Stock in violation of Section 7(b)(i) of these Articles Supplementary,
then the Transfer of that number of shares of Series A 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) Notwithstanding any other provisions contained herein,
prior to the Restriction Termination Date, any Transfer of Series A 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 A Preferred Stock.
(c) Transfers of Series A Preferred Stock in Trust.
(i) Upon any purported Transfer or other event described in
Section 7(b)(ii) of these Articles Supplementary, such Series A Preferred Stock
shall be deemed to have been 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 A Preferred Stock held by the Trustee shall be
issued and outstanding Series A Preferred Stock of the Corporation. The
Purported Beneficial Transferee or Purported Record Transferee shall have no
rights in the shares of Series A 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 A Preferred Stock held in the Trust.
(iii) The Trustee shall have all voting rights and rights to
dividends with respect to Series A Preferred Stock held in the Trust, which
rights shall be exercised for the exclusive
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benefit of the Charitable Beneficiary. Any dividend or distribution paid prior
to the discovery by the Corporation that shares of Series A 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 A 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 A Preferred
Stock held in the Trust and, subject to Maryland law, effective as of the date
the Series A 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
A Preferred Stock prior to the discovery by the Corporation that the Series A
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 A 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 A Preferred Stock have been transferred to the Trust, the
Trustee of the Trust shall sell the shares of Series A Preferred Stock held in
the Trust to a Person, designated by the Trustee, whose ownership of the shares
of Series A 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 A 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 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 A 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 A Preferred Stock at Market Price, the Market Price of such
shares of Series A Preferred Stock on the day of the event which resulted in the
transfer of such shares of Series A 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 A
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 A Preferred Stock have been transferred to the Trustee, such shares of
Series A Preferred Stock are sold by a Purported Record Transferee then (i) such
shares of Series A
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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 A 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 A 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 A 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 A
Preferred Stock at Market Price, the Market Price of such shares of Series A
Preferred Stock on the day of the event which resulted in the transfer of such
shares of Series A 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 A 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 A 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 A 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 A 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 A 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 Series A 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 A 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
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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 A Preferred Stock and each Person (including the
shareholder of record) who is holding Series A 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 A Preferred Stock in violation of Section 7(b)(i), such remedies (as
applicable) shall apply first to the shares of Series A Preferred Stock which,
but for such remedies, would have been actually owned by such Person, and second
to shares of Series A 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 A
Preferred Stock based upon the relative number of the shares of Series A
Preferred Stock held by each such Person.
(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 A 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 A Preferred Stock will violate Section 7(b)(i)(A) or that
any such violation will not cause the
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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 A 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 A 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 A 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 A 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
A 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 A 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, 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
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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 A 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 A PREFERRED STOCK, (i) NO PERSON MAY
BENEFICIALLY OWN SHARES OF THE CORPORATION'S SERIES A PREFERRED STOCK
IN EXCESS OF 9.8% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE
RESTRICTIVE) OF THE OUTSTANDING SERIES A PREFERRED STOCK OF THE
CORPORATION; (ii) NO PERSON MAY CONSTRUCTIVELY OWN SHARES OF THE
CORPORATION'S SERIES A PREFERRED STOCK IN EXCESS OF 9.8% (BY VALUE OR
BY NUMBER OF SHARES, WHICHEVER IS MORE RESTRICTIVE) OF THE OUTSTANDING
SERIES A PREFERRED STOCK OF THE CORPORATION; (iii) NO PERSON MAY
BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION'S SERIES A
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 SERIES A
PREFERRED STOCK IF SUCH TRANSFER WOULD RESULT IN
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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 A PREFERRED STOCK WHICH
CAUSES OR WILL CAUSE A PERSON TO BENEFICIALLY OR CONSTRUCTIVELY OWN
SERIES A 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 A 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 A 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 A 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 A 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 A Preferred Stock notwithstanding any
contrary provisions of the Series A Preferred Stock provided for elsewhere in
these Articles Supplementary.
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(8) CONVERSION. The Series A Preferred Shares are not convertible into
or exchangeable for any other property or securities of the Corporation.
FOURTH: The Series A 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
State Department of Assessments and Taxation of Maryland accepts these Articles
Supplementary for record.
SEVENTH: The undersigned President 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 President
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
President and attested to by its Secretary on this 20th day of July, 1998.
AMB PROPERTY CORPORATION
By:
----------------------------------
Hamid R. Moghadam
President, Chief Executive Officer
and Director
[SEAL]
ATTEST:
- ------------------------
David S. Fries
Secretary
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