Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
6% SERIES E CUMULATIVE CONVERTIBLE AND REDEEMABLE PREFERRED STOCK
OF
HEALTH CARE REIT, INC.
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of Health Care REIT, Inc., a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "Corporation"), does hereby certify that, pursuant to
authority conferred upon the Board of Directors of the Company (the "Board") by
the Second Restated Certificate of Incorporation of the Corporation and pursuant
to Section 151 of the General Corporation Law of the State of Delaware, the
Securities Issuance Committee of the Board, acting by unanimous written consent
effective as of September 29, 2003 pursuant to authority delegated to it by the
Board by resolution duly adopted at a special meeting of the Board on September
22, 2003, adopted a resolution (i) authorizing a new series of the Corporation's
previously authorized Preferred Stock, $1.00 par value per share (the "Preferred
Stock"), and (ii) providing for the designations, preferences and relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of 1,060,000 shares of 6% Series E Cumulative Convertible
and Redeemable Preferred Stock of the Corporation, as follows:
RESOLVED, that the Corporation is authorized to issue 1,060,000 shares
of 6% Series E Cumulative Convertible and Redeemable Preferred Stock, $1.00 par
value per share, which shall have the following powers, designations,
preferences and other special rights:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "6% Series E Cumulative Convertible and Redeemable Preferred
Stock" (the "Series E Preferred Stock") and the number of shares constituting
such series shall be one million sixty thousand (1,060,000).
Section 2. MATURITY. The Series E Preferred Stock shall have no stated
maturity and will not be subject to any sinking fund or mandatory redemption.
Section 3. RANK. The Series E Preferred Stock shall, with respect to
dividend rights and rights upon liquidation, dissolution or winding up of the
Corporation, rank (i) senior to the common stock of the Corporation, par value
$1.00 per share (the "Common Stock"), and to all equity securities ranking
junior to the Series E Preferred Stock with respect to dividend rights or rights
upon liquidation, dissolution or winding up of the Corporation, (ii) on a parity
with the Corporation's Junior Participating Preferred Stock, Series A, the
Corporation's Series C Cumulative Convertible Preferred Stock, and the
Corporation's Series D Cumulative Redeemable Preferred Stock, and all other
equity securities issued by the Corporation the terms of which specifically
provide that such equity securities rank on a parity with the Series E Preferred
Stock with respect to dividend rights and rights upon liquidation, dissolution
or winding up of the Corporation, and (iii) junior to equity securities issued
by the Corporation to the extent that the terms of such equity securities
specifically provide that such equity securities rank senior to the Series E
Preferred Stock with respect to dividend rights or rights upon liquidation,
dissolution or winding up of the Corporation.
Section 4. DIVIDENDS.
(A) Holders of shares of the Series E Preferred Stock are entitled to
receive, when, as and if declared by the Board of Directors (or a duly
authorized committee thereof), out of funds of the Corporation legally available
for the payment of dividends, cumulative preferential cash dividends at the rate
of 6% of the liquidation preference per annum per share (equivalent to $1.50 per
share).
(B) Dividends on the Series E Preferred Stock shall be cumulative and
shall begin to accrue from the date of original issue and shall be payable
quarterly in arrears on or about the 15th day of January, April, July and
October or, if not a business day, the next succeeding business day (each, a
"Dividend Payment Date"). The first dividend on the Series E Preferred Stock is
scheduled to be paid on October 15, 2003. Any dividend payable on the Series E
Preferred Stock for any partial dividend period will be computed on the basis of
a 360-day year consisting of twelve 30-day months. Dividends will be payable to
holders of record as they appear in the stock records of the Corporation at the
close of business on the applicable record date, which shall be the last day of
the calendar month first preceding the applicable Dividend Payment Date or on
such other date designated by the Board of Directors of the Corporation for the
payment of dividends that is not more than 30 nor less than 10 days prior to
such Dividend Payment Date (each, a "Dividend Record Date").
(C) No dividends on shares of Series E Preferred Stock shall be
declared by the Board of Directors or paid or set apart for payment by the
Corporation if such declaration or payment is restricted or prohibited by law.
(D) Notwithstanding the foregoing, dividends on the Series E Preferred
Stock will accrue whether or not the Corporation has earnings, whether or not
there are funds legally available for the payment of such dividends and whether
or not such dividends are declared. Accrued but unpaid dividends on the Series E
Preferred Stock will not bear interest and holders of the Series E Preferred
Stock will not be entitled to any dividends in excess of full cumulative
dividends described above. Any dividend payment made on the Series E Preferred
Stock shall
2
first be credited against the earliest accumulated but unpaid dividend due with
respect to such shares that remains payable.
(E) If, for any taxable year, the Corporation elects to designate as
"capital gain dividends" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended (the "Code")) any portion (the "Capital Gains Amount") of
the dividends (as determined for federal income tax purposes) paid or made
available for the year to holders of all classes of stock (the "Total
Dividends"), then the portion of the Capital Gains Amount that shall be
allocable to the holders of Series E 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 E Preferred Stock for the year bears to
the Total Dividends. The Corporation will make a similar allocation for each
taxable year with respect to any undistributed long-term capital gains of the
Corporation that are to be included in its stockholders' long-term capital
gains, based on the allocation of the Capital Gains Amount that would have
resulted if such undistributed long-term capital gains had been distributed as
"capital gains dividends" by the Corporation to its stockholders.
(F) No full dividends will be declared or paid or set apart for
payment on any series of Preferred Stock ranking, as to dividends, on a parity
with or junior to the Series E Preferred Stock (other than a dividend in shares
of any class of stock ranking junior to the Series E Preferred Stock as to
dividends and upon liquidation) for any period unless full cumulative dividends
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such payment on the Series E
Preferred Stock for all past dividend periods and the then current dividend
period. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series E Preferred Stock and the shares of
any other series of Preferred Stock ranking on a parity as to dividends with the
Series E Preferred Stock, all dividends declared upon the Series E Preferred
Stock and any other series of Preferred Stock ranking on a parity as to
dividends with the Series E Preferred Stock shall be declared pro rata so that
the amount of dividends declared per share of Series E Preferred Stock and such
other series of Preferred Stock shall in all cases bear to each other the same
ratio that accrued dividends per share on the Series E Preferred Stock and such
other series of Preferred Stock (which shall not include any accrual in respect
of unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend) bear to each other.
(G) Except as provided in the immediately preceding paragraph, unless
full cumulative dividends on the Series E Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of Common Stock
or other shares of capital stock ranking junior to the Series E Preferred Stock
as to dividends and upon liquidation) shall be declared or paid or set aside for
payment on nor shall any other distribution be declared or made upon the Common
Stock, or any other capital stock of the Corporation ranking junior to or on a
parity with the Series E Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock of
the Corporation ranking junior to or on a parity with the Series E Preferred
Stock as to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made available for a
sinking fund for the redemption of any such shares of any such stock) by the
Corporation (except by
3
conversion into or exchange for other capital stock of the Corporation ranking
junior to the Series E Preferred Stock as to dividends and upon liquidation or
for the purpose of preserving the Corporation's qualification as a Real Estate
Investment Trust (a "REIT")).
Section 5. LIQUIDATION PREFERENCE.
(A) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, the holders of the Series E
Preferred Stock shall be entitled to be paid out of the assets of the
Corporation legally available for distribution to its stockholders a liquidation
preference equal to the greater of (i) $25.00 per share, plus an amount equal to
any accrued and unpaid dividends to the date of payment, or (ii) the amount that
holders of the Series E Preferred Stock would be entitled to receive in the
liquidation, dissolution or winding up had they converted the Series E Preferred
Stock into Common Stock immediately prior to the liquidation, dissolution or
winding up and participated therein as holders of Common Stock, before any
distribution of assets is made to holders of Common Stock or any other class or
series of capital stock of the Corporation that ranks junior to the Series E
Preferred Stock as to liquidation rights.
(B) If, upon any liquidation, dissolution or winding up of the
Corporation, the assets of the Corporation available for distribution to the
holders of Series E Preferred Stock shall be insufficient to permit payment in
full to such holders the sums that such holders are entitled to receive in such
case, then all of the assets available for distribution to the holders of the
Series E Preferred Stock shall be distributed among and paid to the holders of
Series E Preferred Stock ratably in proportion to the respective amounts that
would be payable to such holders if such assets were sufficient to permit
payment in full; PROVIDED that all such distributions and payments to the
holders of Series E Preferred Stock shall be made on a pari passu basis with the
holders of shares of any other series of Preferred Stock of the Corporation that
rank pari passu with the Series E Preferred Stock with respect to rights upon
any liquidation, dissolution or winding up of the Corporation.
(C) For the purposes of this Section 5, the consolidation or merger of
the Corporation with or into any other corporation, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Corporation, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Corporation.
Section 6. REDEMPTION.
(A) Holders of a majority of the outstanding shares of Series E
Preferred Stock, by written consent and notice to the Corporation on or after
August 15, 2008, shall have the right to have the Corporation redeem all, but
not less than all, outstanding shares of Series E Preferred Stock for cash at a
redemption price of $25.00 per share plus all dividends accrued but remaining
unpaid to the payment date, which payment date shall be the 45th day after the
notice of exercise of this redemption right is received by the Corporation,
provided, however, that the Corporation shall not be required to redeem the
Series E Preferred Stock at any time when such redemption may not legally be
made by the Corporation or at any time when the Corporation is not current with
the payment of accrued dividends on all other classes or series of its equity
4
securities that are on a parity with or senior to the Series E Preferred Stock
with respect to dividends. Promptly after the receipt of such a redemption
request, if the conditions for such a redemption are then fully satisfied, the
Corporation shall give notice of such redemption and the redemption date to all
holders of the Series E Preferred Stock in the manner specified below.
(B) If, for any consecutive 20 trading days on or after August 15,
2008, the Corporation's Common Stock has had an average closing price on the New
York Stock Exchange or other national securities exchange or quotation system on
which Common Stock may be traded in excess of 117.5% of the Conversion Price, as
defined below, and a closing price on the New York Stock Exchange or other
national securities exchange or quotation system on which Common Stock may be
traded on the final day of such period in excess of 117.5% of the Conversion
Price, the Corporation may at its option, by giving notice of the redemption
within twenty-five (25) days after the end of any trading period satisfying such
conditions, redeem all, but not less than all, of the Series E Preferred Stock
for cash at a redemption price of $25.00 per share, plus all accrued and unpaid
dividends thereon to the date fixed for redemption.
(C) Notice of any redemption of the Series E Preferred Stock pursuant
to this Section 6 shall 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 E Preferred Stock at their respective
addresses as they appear on the stock transfer records of the transfer agent. 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 the Series E
Preferred Stock except as to the holder or holders to whom notice was defective
or not given. Each notice shall state: (i) the redemption date; (ii) the
redemption price; (iii) the number of shares of Series E Preferred Stock to be
redeemed from such holder; (iv) the place or places where the Series E Preferred
Stock is to be surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date.
(D) Notwithstanding the giving of a redemption notice as specified
above, all holders of the Series E Preferred Stock, other than holders who have
requested a redemption pursuant to subsection (A) above, may exercise their
conversion rights as specified below up until the close of business on the
business day first preceding the date fixed for redemption of the Series E
Preferred Stock.
(E) Holders of Series E Preferred Stock to be redeemed, if not
previously converted, shall surrender such Series E Preferred Stock at the time
and place designated in the notice of redemption and shall be entitled to the
redemption price and any accrued and unpaid dividends payable upon such
redemption following such surrender. From and after the redemption date for a
redemption of the Series E Preferred Stock (unless default shall be made by the
Corporation in providing for the payment of the redemption price plus
accumulated and unpaid dividends, if any), dividends shall cease to accumulate
on the shares of the Series E Preferred Stock and all rights of the holders
thereof (except the right to receive the redemption price plus accumulated and
unpaid dividends, if any) shall cease.
(F) So long as no dividends are in arrears on the Series E Preferred
Stock, the Corporation shall be entitled at any time and from time to time to
repurchase shares of Series E
5
Preferred Stock in open-market and private transactions duly authorized by the
Board of Directors and effected in compliance with applicable laws.
Section 7. VOTING RIGHTS.
(A) Holders of the Series E Preferred Stock shall not have any voting
rights except as set forth in this Section 7 or as otherwise required by law. To
the extent that voting rights otherwise required by law can be waived or
released, such voting rights are hereby waived and released.
(B) So long as any shares of Series E Preferred Stock remain
outstanding, the Corporation shall not, without the consent or the affirmative
vote of the holders of two-thirds (2/3) of the shares of Series E Preferred
Stock outstanding at the time given in person or by proxy, either in writing or
at a meeting (such Series E Preferred Stock voting separately as a class) (i)
authorize, create or issue, or increase the authorized or issued amount of, any
series of stock ranking prior to such Series E Preferred Stock with respect to
payment of dividends, or in the distribution of assets on liquidation,
dissolution or winding up, or reclassify any authorized stock of the Corporation
into any such shares, or create, authorize or issue any obligation or security
convertible into or evidencing the right to purchase any such shares or (ii)
repeal, amend, or otherwise change any of the provisions applicable to the
Series E Preferred Stock in any manner that materially and adversely affects the
powers, preferences, or other special rights or privileges of the Series E
Preferred Stock or the holders thereof; provided, however, that any increases in
the amount of the authorized Preferred Stock or the creation or issuance of
other series of Preferred Stock, or any increase in the amount of authorized
shares of such series or of any other series of Preferred Stock, in each case
ranking on a parity with or junior to the Series E Preferred Stock, shall not be
deemed to materially and adversely affect such powers, preferences or other
special rights or privileges.
(C) The foregoing voting provisions will not apply if, at or prior to
the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series E Preferred Stock
shall have been redeemed or called for redemption upon proper notice and
sufficient funds shall have been deposited in trust to effect such redemption.
(D) Except as expressly stated in this Certificate of Designation, the
Series E Preferred Stock shall not have any relative, participating, optional or
other special voting rights and powers, and the consent of the holders thereof
shall not be required for the taking of any corporate action, including but not
limited to any merger or consolidation involving the Corporation or a sale of
all or substantially all of the assets of the Corporation, except to the extent
that such merger, consolidation or sale changes the express powers, preferences,
rights or privileges of holders of the Series E Preferred Stock as specified
herein in a manner that would materially and adversely affect the holders of the
Series E Preferred Stock.
6
Section 8. CONVERSION.
(A) CONVERSION RIGHTS. Subject to and upon compliance with the
provisions of this Section 8, a holder of the Series E Preferred Stock shall
have the right, at such holder's option, at any time to convert all or a portion
of such shares into the number of fully paid and non-assessable shares of Common
Stock obtained by multiplying the number of shares of the Series E Preferred
Stock being converted by the liquidation preference amount of $25.00 per share
and dividing such product by the Conversion Price (as defined below and as in
effect at the time and on the date provided for in this Section 8) by
surrendering the Series E Preferred Stock to be converted. Such surrender shall
be made in the manner provided in paragraph (B) of this Section 8. The
"Conversion Price" with respect to any Preferred Shares will initially be equal
to $32.66, subject to adjustment as described below.
(B) MANNER OF CONVERSION.
(i) In order to exercise the conversion right, the holder of each
share of Series E Preferred Stock to be converted shall surrender to the
Corporation the certificate representing such share, duly endorsed or assigned
to the Corporation or in blank, accompanied by written notice to the Corporation
that the holder thereof elects to convert such Series E Preferred Stock. Unless
the shares of Common Stock issuable on conversion are to be issued in the same
name as the name in which such Series E Preferred Stock is registered, each
share of Series E Preferred Stock surrendered for conversion shall be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder or such holder's duly authorized attorney and an
amount sufficient to pay any transfer or similar tax (or evidence reasonably
satisfactory to the Corporation demonstrating that such taxes have been paid).
(ii) As promptly as practicable after the surrender of
certificates of Series E Preferred Stock as aforesaid, the Corporation shall
issue and shall deliver at such office to such holder, or on such holder's
written order, a certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such Series E Preferred Stock in
accordance with the provisions of this Section 8 and any fractional interest in
respect of a share of Common Stock arising upon such conversion shall be settled
as provided in paragraph (C) of this Section 8.
(iii) Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which certificates for
the Series E Preferred Stock have been surrendered and such notice received by
the Corporation as aforesaid, and the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become the holder or holders of
record of the shares represented thereby at such time on such date, and such
conversion shall be at the Conversion Price in effect at such time on such date
unless the stock transfer books of the Corporation shall be closed on that date,
in which event such conversion shall have been deemed to have been effected and
such person or persons shall be deemed to have become the holder or holders of
record at the close of business on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion
7
Price in effect on the date on which such shares shall have been surrendered and
such notice received by the Corporation.
(C) FRACTIONAL SHARES. No fractional shares or scrip representing
fractions of shares of Common Stock shall be issued upon conversion of the
Series E Preferred Stock. Instead of any fractional interest in a share of
Common Stock that would otherwise be deliverable upon the conversion of Series E
Preferred Stock, the Corporation shall pay to the holder of such Series E
Preferred Stock an amount in cash based upon the closing price for the Common
Stock on the trading day immediately preceding the date of conversion. If more
than one share of Series E Preferred Stock shall be surrendered for conversion
at one time by a holder of Series E Preferred Stock, the number of full shares
of Common Stock issuable upon conversion thereof shall be computed on the basis
of the aggregate number of shares of Series E Preferred Stock surrendered.
(D) TREATMENT OF ACCRUED DIVIDENDS. Dividends on any share of Series E
Preferred Stock that is surrendered for conversion shall accrue through the day
immediately preceding the conversion date. Upon conversion of any Series E
Preferred Stock as stated herein, the Corporation shall, as of the date of such
conversion and at the Corporation's option, either pay the holder thereof all
accrued but unpaid dividends on the Series E Preferred Stock surrendered for
conversion or, in connection with such conversion, deliver additional shares of
Common Stock in such amount as is obtained by dividing the aggregate amount of
accrued but unpaid dividends on such shares of Series E Preferred Stock
surrendered for conversion by the Conversion Price as in effect at the time of
the conversion. Any share of Series E Preferred Stock that shall have been
surrendered for conversion shall be deemed no longer outstanding, and all rights
with respect to such share, including any right to receive notices or vote,
shall immediately cease and terminate on the Conversion Date, except only the
right of the holder thereof to receive the Common Stock issuable under the
conversion terms and conditions.
(E) TRANSFER TAXES UPON CONVERSION. The Corporation shall pay any and
all issuance and other taxes that may be payable in respect of any issuance or
delivery of Common Stock upon conversion of Series E Preferred Stock. The
Corporation shall not, however, be required to pay any tax that may be payable
in respect of any transfer involved in the issuance and delivery of shares of
Common Stock in a name other than that in which the Series E Preferred Stock so
converted shall have been registered, and no such issuance or delivery shall be
made unless and until the person or entity requesting such issuance shall have
paid to the Corporation the amount of any such tax or shall have established, to
the satisfaction of the Corporation, that such tax had been paid.
(F) ADJUSTMENTS TO CONVERSION PRICE FOR DILUTING ISSUES:
(i) SPECIAL DEFINITIONS. For purposes of this subsection (F), the
following definitions shall apply:
(a) "ADDITIONAL SHARES OF COMMON STOCK" shall mean all
shares of Common Stock issued by the Corporation after the Original Issue
Date, other than shares of Common Stock issued or issuable:
8
(I) upon conversion of any Convertible Security outstanding
on the Original Issue Date, including the Series E Preferred Stock issued
on the Original Issue Date, or upon exercise of any right, option or
warrant to purchase or otherwise acquire Common Stock or Convertible
Securities outstanding on the Original Issue Date;
(II) as a dividend or distribution on any share of Series E
Preferred Stock;
(III) by reason of a dividend, stock split, split-up or
other distribution on shares of Common Stock that is covered by subsection
(G) or (H) below;
(IV) under the Corporation's Amended and Restated Dividend
Reinvestment and Stock Purchase Plan, as amended from time to time, or any
similar dividend reinvestment or stock purchase plan;
(V) in capital raising transactions with pricing discounts
no greater than normal and customary underwriting discounts for the
Corporation; or
(VI) to or upon exercise of any right, option or warrant to
purchase or otherwise acquire Common Stock or Convertible Securities
granted to any officer, director, or key employee pursuant to any stock
benefit plan or compensation plan approved by the Board of Directors from
time to time, up to 10% of the Company's outstanding shares of Common Stock
on the Original Issuance Date.
(b) "CONVERTIBLE SECURITIES" shall mean any evidence of
indebtedness, share, or other security directly or indirectly convertible
into or exchangeable for Common Stock.
(c) "OPTION" shall mean any right, option, or warrant to
subscribe for, purchase or otherwise acquire Common Stock or Convertible
Securities, excluding (1) options described in clause (F)(i)(a)(VI) above,
and (2) any option or warrant issued in connection with the establishment
of credit facilities for the Corporation.
(d) "ORIGINAL ISSUANCE DATE" shall mean the first date of
issuance by the Corporation of any shares of Series E Preferred Stock.
(ii) NO ADJUSTMENT OF CONVERSION PRICE. No adjustment in the
Conversion Price shall be made pursuant to this subsection (F) unless the
consideration per share (determined pursuant to clause (F)(v) below) for an
Additional Share of Common Stock issued or deemed to be issued by the
Corporation shall be less than the applicable Conversion Price in
9
effect on the date of, and immediately prior to, the issuance of such Additional
Shares. Further, no adjustment in the Conversion Price shall be made pursuant to
this subsection (F) if, prior to such issuance, the Corporation shall receive
written notice from the holders of more than 50% of the Series E Preferred Stock
agreeing that no such adjustment shall be made as the result of the issuance of
Additional Shares of Common Stock.
(iii) ISSUE OF SECURITIES DEEMED ISSUE OF ADDITIONAL SHARES OF COMMON
STOCK. If the Corporation at any time or from time to time after the Original
Issue Date shall issue any Option or Convertible Security or shall fix a record
date for the determination of holders of any class of securities entitled to
receive any such Option or Convertible Security, then the maximum number of
shares of Common Stock (as set forth in the instrument relating thereto without
regard to any provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Option or, in the case of Convertible
Securities and Options therefor, the conversion or exchange of such Convertible
Securities, shall be deemed to be Additional Shares of Common Stock issued as of
the time of such issue or, in case such a record date shall have been fixed, as
of the close of business on such record date, provided that Additional Shares of
Common Stock shall not be deemed to have been issued unless the consideration
per share (determined pursuant to clause (F)(v) below) of such Additional Shares
of Common Stock would be less than the applicable Conversion Price in effect on
the date of and immediately prior to such issue, or such record date, as the
case may be, and provided further that in any such case in which Additional
Shares of Common Stock are deemed to be issued, then with respect to the
Conversion Price:
(a) No further adjustment in such Conversion Price shall be made
upon the subsequent issue of Convertible Securities or shares of Common
Stock upon the exercise of such Option or conversion or exchange of such
Convertible Security;
(b) If such Option or Convertible Security by its terms provides,
with the passage of time or otherwise, for any change in the consideration
payable to the Corporation, upon the exercise, conversion or exchange
thereof, the Conversion Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto) and any actual
or potential subsequent adjustments based thereon, shall, upon any such
change becoming effective, be recomputed to reflect such change insofar as
it affects such Option or the rights of conversion or exchange under such
Convertible Security;
(c) Upon the expiration or termination of any unexercised Option
or conversion right under any Convertible Security, the Conversion Price
computed upon the original issue thereof (or upon the occurrence of a
record date with respect thereto) and any actual or potential subsequent
adjustments based thereon shall be recomputed to such amount as would have
obtained had the adjustment made upon the granting or issuance of such
Option or Convertible Security been made based upon the issuance of only
10
the number of shares of Common Stock actually issued on exercise,
conversion or exchange; and
(d) In the event of any change in the number of shares of Common
Stock issuable upon the exercise, conversion, or exchange of any Option or
Convertible Security, including, but not limited to, a change resulting
from the anti-dilution provisions thereof, such Conversion Price then in
effect shall forthwith be readjusted to such Conversion Price as would have
obtained had the adjustment that was made upon the issuance of such Option
or Convertible Security not exercised or converted prior to such change
been made upon the basis of such change.
In the event the Corporation, after the Original Issue Date, shall
decrease the exercise price or extend the termination date of any Option or
Convertible Security outstanding on the Original Issue Date, then such Option or
Convertible Security, as so amended, shall be deemed to have been issued after
the Original Issue Date, and the provisions of this clause (F)(iii) shall apply.
(iv) ADJUSTMENT OF CONVERSION PRICE UPON ISSUANCE OF ADDITIONAL SHARES
OF COMMON STOCK. If the Corporation shall at any time after the Original Issue
Date issue Additional Shares of Common Stock (including Additional Shares of
Common Stock deemed to be issued pursuant to clause (F)(iii) above, but
excluding shares issued as a stock split or combination as provided in
subsection (G) below or upon a dividend or distribution as provided in
subsection (H) below), without consideration or for a consideration per share
less than the Conversion Price in effect on the date of and immediately prior to
such issue, the Conversion Price shall be reduced, concurrently with such issue,
to a price (calculated to the nearest cent) determined by multiplying such
Conversion Price by a fraction, (A) the numerator of which shall be (1) the
number of shares of Common Stock outstanding immediately prior to such issue
PLUS (2) the number of shares of Common Stock that the aggregate consideration
received or to be received by the Corporation for the total number of Additional
Shares of Common Stock so issued or deemed to be issued would purchase at such
Conversion Price; and (B) the denominator of which shall be the number of shares
of Common Stock outstanding immediately prior to such issue PLUS the number of
such Additional Shares of Common Stock so issued or deemed to be issued;
PROVIDED THAT, (i) for the purpose of this clause (F)(iv), all shares of Common
Stock issuable upon exercise or conversion of Options or Convertible Securities
outstanding immediately prior to such issue shall be deemed to be outstanding,
and (ii) the number of shares of Common Stock deemed issuable upon exercise or
conversion of such outstanding Options and Convertible Securities shall not give
effect to any adjustments to the conversion price or conversion rate of such
Options or Convertible Securities resulting from the issuance of Additional
Shares of Common Stock that is the subject of this calculation.
(v) DETERMINATION OF CONSIDERATION. For purposes of this clause (F),
the consideration received by the Corporation for the issue of any Additional
Shares of Common Stock shall be computed as follows:
(a) CASH AND PROPERTY: Such consideration shall:
11
(I) insofar as it consists of cash, be computed at the
aggregate of cash received by the Corporation, excluding amounts paid or
payable for accrued interest;
(II) insofar as it consists of property other than cash, be
computed at the fair market value thereof at the time of such issue, as
determined in good faith by the Board of Directors; and
(III) in the event Additional Shares of Common Stock are
issued together with other shares or securities or other assets of the
Corporation for consideration that covers both, be the proportion of such
consideration so received, computed as provided in clauses (I) and (II)
above, as determined in good faith by the Board of Directors.
(b) OPTIONS AND CONVERTIBLE SECURITIES: The consideration per
share received by the Corporation for Additional Shares of Common Stock
deemed to have been issued pursuant to clause (F)(iii) above, relating to
Options and Convertible Securities, shall be determined by dividing
(x) the total amount, if any, received or receivable by
the Corporation as consideration for the issue of such Options or
Convertible Securities, PLUS the minimum aggregate amount of
additional consideration (as set forth in the instruments
relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in
the case of Options for Convertible Securities, the exercise of
such Options for Convertible Securities and the conversion or
exchange of such Convertible Securities, by
(y) the maximum number of shares of Common Stock (as
set forth in the instruments relating thereto, without regard to
any provision contained therein for a subsequent adjustment of
such number) issuable upon the exercise of such Options or the
conversion or exchange of such Convertible Securities.
(G) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Corporation
shall at any time after the Original Issue Date effect a subdivision of the
outstanding Common Stock, the Conversion Price shall be proportionately
decreased. If the Corporation shall at any time after the Original Issue Date
combine the outstanding shares of Common Stock, the Conversion Price shall be
proportionately increased. Any adjustment under this paragraph shall become
effective at the close of business on the date the subdivision or combination
becomes effective.
12
(H) ADJUSTMENT FOR CERTAIN DIVIDENDS AND DISTRIBUTIONS. If the
Corporation at any time after the Original Issue Date shall make or issue, or
fix a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in additional shares of Common
Stock, the Conversion Price shall be decreased as of the time of such issuance
or, in the event such a record date shall have been fixed, as of the close of
business on such record date, by multiplying the Conversion Price then in effect
by a fraction,
(1) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding immediately prior to the time of
such issuance or the close of business on such record date PLUS the number
of shares of Common Stock issuable in payment of such dividend or
distribution;
provided, however, if such record date shall have been fixed and such dividend
shall not be fully paid or if such distribution shall not be fully made on the
date fixed therefor, the Conversion Price shall be recomputed accordingly as of
the close of business on such record date, and thereafter the Conversion Price
shall be adjusted pursuant to this subsection (H) as of the time of actual
payment of such dividends or distributions; and provided further, however, that
no such adjustment shall be made if the holders of the Series E Preferred Stock
simultaneously receive a dividend or other distribution of shares of Common
Stock in a number equal to the number of shares of Common Stock as they would
have received if all outstanding shares of the Series E Preferred stock had been
converted into Common Stock as of the record date for such event.
(I) ADJUSTMENTS FOR OTHER DIVIDENDS AND DISTRIBUTIONS. If the
Corporation at any time after the Original Issue Date shall make or issue to
holders of Common Stock, or fix a record date for the determination of holders
of Common Stock entitled to receive, a dividend or other distribution payable in
securities of the Corporation other than shares of Common Stock, then, and in
each such event, provision shall be made so that the holders of the Series E
Preferred Stock shall receive upon conversion thereof in addition to the number
of shares of Common Stock receivable thereupon, the amount of securities of the
Corporation that they would have received had such Series E Preferred Stock been
converted into Common Stock on the date of such event and had they thereafter,
during the period from the date of such event to and including the Conversion
Date, retained such securities receivable by them as aforesaid during such
period, provided, however, that no such adjustment shall be made if the holders
of the Series E Preferred Stock simultaneously receive a dividend or other
distribution of such securities in an amount equal to the amount of such
securities as they would have received if all outstanding shares of the Series E
Preferred Stock had been converted into Common Stock as of the record date for
such event.
(J) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. If the
Common Stock shall be changed into the same or a different number of shares of
any class or classes of stock, whether by capital reorganization,
reclassification, or otherwise (other than a subdivision or combination of
shares or stock dividend provided for above, or a reorganization, merger,
consolidation, or sale of assets provided for below), the holders of the Series
E Preferred
13
Stock shall have the right thereafter to convert such shares into the kind and
amount of shares of stock and other securities and property receivable upon such
reorganization, reclassification, or other change, as would be received by
holders of the number of shares of Common Stock into which such shares of the
Series E Preferred Stock might have been converted immediately prior to such
reorganization, reclassification, or change.
(K) ADJUSTMENT FOR MERGER OR REORGANIZATION, ETC. In case of any
consolidation or merger of the Corporation with or into another corporation or
the sale of all or substantially all of the assets of the Corporation to another
corporation, each share of Series E Preferred Stock shall thereafter be
convertible (or shall be converted into a security which shall be convertible)
into the kind and amount of shares of stock or other securities or property to
which a holder of the number of shares of Common Stock of the Corporation
issuable upon conversion of such share would have been entitled upon such
consolidation, merger or sale; and, in such case, appropriate adjustment (as
determined in good faith by the Board of Directors) shall be made in the
application of the provisions in this Section (8) with respect to the rights and
interest thereafter of the holders of Series E Preferred Stock, to the end that
the provisions set forth in this Section (8) (including provisions with respect
to changes in and other adjustments of the Conversion Price applicable to such
series) shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares of stock or other property thereafter issuable upon the
conversion of the Series E Preferred Stock.
(L) NO IMPAIRMENT. The Corporation will not, by amendment of its
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms to be observed or performed hereunder by the Corporation, but will at
all times in good faith assist in the carrying out of all the provisions of this
Section (8) and in the taking of all such action as may be necessary or
appropriate in order to protect the Conversion Rights against impairment.
(M) CERTIFICATE AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the Conversion Price, the Corporation at its
expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of Series E Preferred Stock a
certificate setting forth such adjustment or readjustment and showing in detail
the facts upon which such adjustment or readjustment is based. The Corporation
shall, upon the written request at any time of any holder of Series E Preferred
Stock, furnish or cause to be furnished to such holder a similar certificate
setting forth (i) such adjustments and readjustments, (ii) the Conversion Price
applicable to such series then in effect, and (iii) the number of shares of
Common Stock and the amount, if any, of other property that then would be
received upon the conversion.
(N) NOTICE OF RECORD DATE. If:
(i) the Corporation shall declare a dividend (or any other
distribution) on its Common Stock payable in Common Stock or other securities of
the Corporation;
(ii) the Corporation shall subdivide or combine its outstanding
shares of Common Stock;
14
(iii) there shall be any reclassification of the Common Stock of
the Corporation (other than a subdivision or combination of its outstanding
shares of Common Stock or a stock dividend or stock distribution thereon),
consolidation or merger of the Corporation into or with another Corporation,
sale of all or substantially all of the assets of the Corporation, or
involuntary or voluntary dissolution, liquidation or winding up of the
Corporation;
then the Corporation shall cause to be filed at its principal office or at the
office of the transfer agent of the Series E Preferred Stock, and shall cause to
be mailed to the holders of Series E Preferred Stock at their last addresses as
shown on the records of the Corporation or such transfer agent, at least ten
days prior to the date specified in (a) below or twenty days before the date
specified in (b) below, a notice stating:
(a) the record date of such dividend, distribution,
subdivision or combination, or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such
dividend, distribution, subdivision or combination are to be determined, or
(b) the date on which such reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their shares of Common Stock
for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, dissolution or winding up.
(O) NO DUPLICATION OF ADJUSTMENTS. If any action or transaction would
require adjustment of the Conversion Price pursuant to more than one paragraph
of this Section 8, only one adjustment shall be made and such adjustment shall
be the amount of adjustment that results in the lowest Conversion Price.
Notwithstanding the foregoing, the provisions of this Section 8 shall apply to
successive transactions giving rise to any such adjustment.
(P) RESERVATION AND LISTING OF SHARES OF COMMON STOCK.
(i) The Corporation shall at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its authorized
but unissued shares of Common Stock for the purpose of effecting conversion of
the Series E Preferred Stock, the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of Series E Preferred
Stock not theretofore converted. Before taking any action that would cause an
adjustment in the Conversion Price such that Common Stock issuable upon the
conversion of Series E Preferred Stock would be issued below par value of the
Common Stock, the Corporation shall take any corporate action that may, in the
opinion of its counsel, be reasonably necessary in order that the Corporation
may validly and legally issue fully-paid and nonassessable shares of Common
Stock at such adjusted Conversion Price.
(ii) The Corporation shall endeavor to list the shares of Common
Stock required to be delivered upon conversion of the Series E Preferred Stock,
prior to such delivery, upon each national securities exchange, if any, upon
which the outstanding Common Stock is listed at the time of such delivery.
15
Section 9. RESTRICTIONS ON OWNERSHIP AND TRANSFER TO PRESERVE TAX
BENEFIT.
(A) Limit on Stock Ownership. No person may acquire shares of the
Series E Preferred Stock that, when combined with all other holdings by such
person of shares of the Series E Preferred Stock and shares of any other class
or series of the Corporation, would result in the direct or indirect ownership
by such person of shares of the Corporation with a market value exceeding 9.8%
of the market value of all of the outstanding shares of all classes of the
Corporation calculated on a combined basis (the "Ownership Value Limit"), and no
shares of Series E Preferred Stock may be issued or transferred to any person to
the extent that, following such issuance or transfer, the market value of such
person's ownership of shares of the Corporation would exceed the Ownership Value
Limit. Further, no person may acquire or own shares of Series E Preferred Stock
to the extent that the acquisition or ownership 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. Notwithstanding any other provisions
contained in this Section 9, if any purported transfer of shares of the Series E
Preferred Stock would cause the Corporation to be beneficially owned by fewer
than 100 persons, such transfer will be null and void in its entirety and the
intended transferee will acquire no rights to the stock.
(B) Notice and Request for Information. Any person who violates the
restrictions on ownership contained in this Section 9 in acquiring actual or
constructive ownership of shares of Series E Preferred Stock is required to give
notice thereof immediately to the Corporation and provide the Corporation with
such other information as the Corporation may request in order to determine the
effect of such acquisition on the Corporation's status as a REIT.
(C) Transfers in Excess of the Ownership Value Limit. If any purported
transfer of Series E Preferred Stock or any other event would otherwise result
in any person violating the Ownership Value Limit or such other limit as
permitted by the Board of Directors, then any such purported transfer will be
void and of no force or effect with respect to the purported transferee (the
"Prohibited Transferee") as to that number of shares of Series E Preferred Stock
with a value that caused the Prohibited Transferee to exceed the Ownership Value
Limit or such other limit (the "Excess Shares"), and the Prohibited Transferee
shall acquire no right or interest (or, in the case of any event other than a
purported transfer, the person or entity holding record title to any such Excess
Shares shall cease to own any right or interest) in such Excess Shares. If the
foregoing sentence is determined to be invalid by virtue of any legal decision,
statute, rule or regulation, the Prohibited Transferee shall be conclusively
deemed to have acted as an agent on behalf of the Corporation in acquiring the
Excess Shares to hold such Excess Shares on behalf of the Corporation. As the
equivalent of treasury securities for such purposes, the Excess Shares shall not
be entitled to any voting rights, shall not be considered to be outstanding for
quorum or voting purposes, and shall not be entitled to receive dividends or any
other distribution with respect to such shares. Any Prohibited Transferee who
receives dividends or any other distribution in respect of Excess Shares shall
hold the same as agent for the Corporation and for the transferee of the Excess
Shares following a permitted transfer.
16
(D) Exceptions.
(i) The Board of Directors may, but in no event will be required
to, waive the Ownership Value Limit with respect to a particular shareholder if
it determines that such ownership will not jeopardize the Corporation's status
as a REIT and the Board of Directors otherwise decides such action would be in
the best interest of the Corporation. As a condition of such waiver, the Board
of Directors may require an opinion of counsel satisfactory to it and/or
undertakings or representations from the applicant with respect to preserving
the REIT status of the Corporation.
(ii) The restrictions on transferability and ownership contained
in this Section 9 will not apply if the Board of Directors determines that it is
no longer in the best interest of the Corporation to attempt to qualify, or to
continue to qualify, as a REIT.
(E) Definitions. For purposes of this Section 9: (i) "Person" includes
an individual, corporation, partnership, association, joint stock company,
trust, unincorporated association or other entity; (ii) "Ownership" means
beneficial ownership determined on the basis of the beneficial ownership rules
applicable under the Securities Exchange Act of 1934, as amended, or such other
basis as the Board of Directors reasonably determines to be appropriate to
effectuate the purposes hereof; and (iii) "Market Value" means the value of the
shares reflected in the closing sales price for the shares, if then listed on a
national securities exchange or traded on the NASDAQ National Market or similar
quotation system, or if the shares are not then so listed or traded, the average
of the closing bid and asked prices on the principal market for such shares,
provided that if there is no active trading market for the shares, "Market
Value" means the higher of the redemption value or liquidation preference of
such shares, if any, or such value fixed by the Board of Directors of the
Corporation in good faith as the value of such shares.
(F) Additional Restrictions. Notwithstanding anything herein to the
contrary, the Corporation and its transfer agent may refuse to transfer any
shares, passing either by voluntary transfer, by operation of law, or under the
last will and testament of any stockholder, if such transfer would or might, in
the opinion of the Board of Directors or counsel to the Corporation, disqualify
the Corporation as a REIT under the Internal Revenue Code. Nothing herein
contained shall limit the ability of the Corporation to impose or to seek
judicial or other imposition of additional restrictions if deemed necessary or
advisable to preserve the Corporation's tax status as a qualified REIT.
(G) Certificate Legend. All certificates representing shares of the
Series E Preferred Stock shall be marked with a legend sufficient under the laws
of the State of Delaware to provide a purchaser of such shares with notice of
the restrictions on transfer under this Section 9.
(H) Settlement of Transactions. Nothing in this Section 9, including
but not limited to Paragraph (B), shall preclude the settlement of any
transactions through the facilities of the New York Stock Exchange or any other
national securities exchange or automated inter-dealer quotation system on which
the Series E Preferred Stock is traded. The fact that settlement
17
of any transaction takes place shall not, however, negate the effect of any
other provision of this Section 9, which shall remain applicable to all
acquiring persons.
(I) Invalidity of Provisions. If any provision of this Section 9 or
any application of any such provision is determined to be invalid by any federal
or state court having jurisdiction over the issue, 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.
(J) The provisions set forth in this Section 9 shall apply to the
Series E Preferred Stock notwithstanding any contrary provisions of the Series E
Preferred Stock described in this Certificate of Designation.
Section 10. AMENDMENT. This Certificate of Designation shall not be
amended in any manner that would materially and adversely affect the holders of
the Series E Preferred Stock without the affirmative consent or vote of the
holders of two-thirds (2/3) of the Series E Preferred Stock outstanding at the
time.
IN WITNESS WHEREOF, the undersigned has executed and subscribed this
certificate and does affirm the foregoing as true under the penalties of perjury
this 29th day of September, 2003.
/s/ George L. Chapman
------------------------------------------
George L. Chapman
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Erin C. Ibele
- ----------------------------------
Erin C. Ibele
Vice President and Corporate Secretary
18