Exhibit 4.6
ARTICLES SUPPLEMENTARY
DESIGNATING THE POWERS, PREFERENCES AND RIGHTS
OF THE
7.75% SERIES B CUMULATIVE REDEEMABLE PREFERRED SHARES
(PAR VALUE $0.01 PER SHARE)
of
ENTERTAINMENT PROPERTIES TRUST,
a Maryland real estate investment trust
Pursuant to Section 8-203(b) of the
REIT Law of the State of Maryland
ENTERTAINMENT PROPERTIES TRUST, a Maryland real estate investment trust
(the "Company"), by its Vice President, Fred L. Kennon.
DOES HEREBY CERTIFY:
FIRST, that, pursuant to authority expressly vested in the Company's Board
of Trustees (the "Board") by the provisions of its Amended and Restated
Declaration of Trust ("Declaration of Trust"), the Board duly adopted the
following resolution providing for the designation and issuance of 3,200,000
7.75% Series B Cumulative Redeemable Preferred Shares of beneficial interest,
$0.01 par value per share:
RESOLVED, that this Board, pursuant to authority expressly vested in it by
the provisions of the Amended and Restated Declaration of Trust of the Company,
hereby authorizes the issuance from time to time of a series of Preferred Shares
of the Company and hereby fixes the designation, preferences and the relative,
participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, in addition to those set forth in the Declaration of
Trust, to be in their entirety as follows:
SECTION 1. DESIGNATION.
(a) The Company hereby designates a series of Preferred Shares known
as "7.75% Series B Cumulative Redeemable Preferred Shares," par value $0.01
per share. The 7.75% Series B Cumulative Redeemable Preferred Shares are
referred to herein as the "Series B Preferred Shares."
(b) The Series B Preferred Shares, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the Company, rank:
(i) senior to all classes or series of common shares of the
Company and to all other equity securities authorized and designated
by the Board in the future as ranking junior to the Series B Preferred
Shares with respect to such rights (collectively, "Junior Shares");
(ii) on a parity with the Company's 9.50% Series A Cumulative
Redeemable Preferred Shares ("Series A Preferred Shares") and any
other equity securities authorized or designated by the Board in the
future, the terms of which specifically provide that such equity
securities rank on a parity with the Series B Preferred Shares with
respect to such rights (collectively, "Parity Shares "); and
(iii) junior to all existing and future indebtedness of the
Company and to any class or series of equity securities authorized or
designated by the Board in the future, the terms of which specifically
provide that such class or series ranks senior to the Series B
Preferred Shares with respect to such rights (collectively, "Senior
Shares").
The rights, preferences, restrictions and other matters relating to
the Series B Preferred Shares set forth below are subject to the issuance
of any subsequent series of Preferred Shares.
(c) The Series B Preferred Shares shall have no stated maturity and
shall not be subject to any sinking fund or mandatory redemption.
SECTION 2. AUTHORIZED NUMBER. The number of shares constituting the Series
B Preferred Shares shall be 3,200,000 shares. The Board is authorized to
decrease the number of authorized Series B Preferred Shares prior or subsequent
to the issue of Series B Preferred Shares, but not below the number of Series B
Preferred Shares then outstanding. In case the number of Series B Preferred
Shares shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of this resolution.
SECTION 3. DIVIDEND RIGHTS.
(a) The holders of the Series B Preferred Shares shall be entitled to
receive a preferred dividend, if and when declared by the Board out of
funds legally available for such purpose, at a fixed rate of 7.75% of the
Liquidation Preference, as defined herein ($1.9375 per share) per year.
Such dividends shall be cumulative from and including the date of original
issue by the Company of the Series B Preferred Shares and shall be payable
quarterly in arrears on or about January 15, April 15, July 15 and October
15 of each year or, if any such day is not a business day, then on the next
succeeding business day. The first dividend payment date will be April 15,
2005, and such dividend will be for less than a full quarter. Dividends
payable for any partial quarterly period shall be computed on the basis of
a 360-day year consisting of twelve 30-day months. Dividends shall be
payable to holders of record as they appear in the share records of the
Company at the close of business on the applicable record date, which will
be the same date set for any quarterly dividend payable to holders of the
common shares and Parity Shares of the Company, or on such other date
designated by the Board that is not more than 30 days nor less than 10 days
prior to the applicable dividend payment date. Dividends on the Series B
Preferred Shares shall be cumulative and shall accrue regardless of whether
the Company has earnings, whether funds are legally available for the
payment of such dividends, or whether such dividends are declared. Accrued
but unpaid dividends shall accumulate as of the
date on which such dividends became payable. No interest or sum of money in
lieu of interest shall be payable on any dividend payments on the Series B
Preferred Shares which may be in arrears. Any dividend payment made on the
Series B Preferred Shares will first be credited against the earliest
accrued but unpaid dividend due and payable.
(b) The Board shall not declare, pay or set apart for payment any
dividend or make any other distribution of cash or other property, directly
or indirectly, to the holders of Parity Shares unless and until dividends
on the Series B Preferred Shares equal to the full amount of accumulated,
accrued and unpaid dividends have been or contemporaneously are declared
and paid or declared and contemporaneously set apart for payment, for all
past dividend periods and the then current dividend period; PROVIDED,
HOWEVER, that when dividends are not paid in full on the Series B Preferred
Shares or any Parity Shares, or a sum sufficient for that payment is not
set aside, all dividends declared on the Series B Preferred Shares and any
Parity Shares shall be declared ratably in proportion to the respective
amounts of dividends accumulated, accrued and unpaid on the Series B
Preferred Shares and accumulated, accrued and unpaid on such Parity Shares.
(c) The Board shall not declare, pay or set apart for payment any
dividend (other than dividends or distributions paid in Junior Shares or
options, warrants or rights to subscribe for or purchase Junior Shares) or
make any other distribution of cash or other property, directly or
indirectly, to the holders of Junior Shares, nor shall any Junior Shares be
redeemed, purchased or otherwise acquired (other than a redemption,
purchase or other acquisition of common shares made for purposes of any
employee incentive or benefit plans) for any consideration (or any monies
be paid to or made available for a sinking fund for the redemption of any
such shares), directly or indirectly (except by conversion into or exchange
for Junior Shares), unless and until dividends on the Series B Preferred
Shares equal to the full amount of accumulated, accrued and unpaid
dividends have been or contemporaneously are declared and paid or declared
and contemporaneously set apart for payment, for all past dividend periods
and the then current dividend period.
(d) No dividends on the Series B Preferred Shares may be declared by
the Board of Trustees or paid or set apart for payment by the Company at
any time when the terms of any agreements to which the Company is a party,
including any agreement relating to the indebtedness of the Company,
prohibit such declaration, payment or setting apart for payment or provide
that such declaration, payment or setting apart for payment would
constitute a breach or default of the agreement, or if the declaration or
payment is restricted or prohibited by law.
(e) Except as provided in this Section 3 or in Sections 4 and 5 below,
the holders of the Series B Preferred Shares shall not be entitled to
receive dividends or distributions.
SECTION 4. LIQUIDATION PREFERENCE.
(a) Subject to the rights of any Parity Shares or Senior Shares, upon
any voluntary or involuntary liquidation, dissolution or winding up of the
Company, before the Company makes or sets apart any payment or distribution
to the holders of any Junior Shares, the holders of the Series B Preferred
Shares shall be entitled to be paid, out of assets legally available for
distribution to the shareholders of the Company, a liquidation preference
in an amount equal to $25.00 per share (the "Liquidation Preference") plus
an amount equal to all accumulated, accrued and unpaid dividends to the
date of final distribution (whether or not declared) to such holders.
(b) Until the holders of the Series B Preferred Shares have been paid
the Liquidation Preference in full, plus an amount equal to all
accumulated, accrued and unpaid dividends (whether or nor earned or
declared) to the date of final distribution to such holders, no payment
shall be made to any holder of Junior Shares upon the liquidation,
dissolution or winding up of the Company. If upon any liquidation,
dissolution or winding up of the Company the available assets of the
Company, or the proceeds thereof, shall be insufficient to pay in full the
amount of the liquidation distributions on all outstanding Series B
Preferred Shares and the corresponding amounts payable on any other Parity
Shares, then such available assets, or the proceeds thereof, shall be
distributed among the holders of the Series B Preferred Shares and any
other Parity Shares ratably in the same proportion as the respective
amounts that would be payable on the Series B Preferred Shares and any such
Parity Shares if all amounts payable thereon were paid in full.
(c) For purposes of this Section 4, a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Company shall
not include the consolidation or merger of the Company with one or more
entities, a sale or transfer of all or substantially all of the assets of
the Company or a statutory share exchange. Upon any liquidation,
dissolution or winding up of the affairs of the Company, after payment
shall have been made in full to the holders of the Series B Preferred
Shares and any Parity Shares, any other series or class or classes of
Junior Shares shall be entitled to receive any and all assets remaining to
be paid or distributed and the holders of the Series B Preferred Shares and
any Parity Shares shall not be entitled to share therein.
(d) Whenever the distribution provided for in this Section 4 shall be
payable in securities or property other than cash, the value of such
distribution shall be as follows:
(i) For securities not subject to investment letters or other
similar restrictions on free marketability:
(A) if traded on a securities exchange, the value shall be
deemed to be the average of the closing prices of the securities
on such
exchange over the 30-trading day period ending three trading days
prior to the closing;
(B) if actively traded over-the-counter, the value shall be
deemed to be the average of the closing bid or sale prices
(whichever are applicable) over the 30-trading day period ending
three trading days prior to the closing; and
(C) if there is no active public market, the value shall be
the fair market value thereof, as determined in good faith by the
Board.
(ii) The method of valuation of securities subject to investment
letters or other restrictions on free marketability (other than
restrictions arising solely by virtue of a shareholder's status as an
affiliate or former affiliate) shall be to make an appropriate
discount from the market value determined as above in Sections
4(d)(i)(A) through (C) to reflect the approximate fair market value
thereof, as determined in good faith by the Board.
(iii) In the event of any bona fide dispute between the Company
and one or more holders of the Series B Preferred Shares as to any
fair market value determination under Sections 4(d)(i)(C) or 4(d)(ii)
above, such dispute shall be resolved through binding arbitration
which shall take place in Jackson County, Missouri under the rules of
the American Arbitration Association, with the arbitration panel
consisting of persons familiar with the valuation of public and
private entities and such panel being advised, as to such valuation
issues, by an investment bank of nationally recognized standing, the
costs thereof to be borne by the non-prevailing party.
(e) Written notice of any such voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, 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 prepaid, not less than 30 nor more than 60 days
prior to the payment date stated therein to each record holder of the
Series B Preferred Shares at the respective address of such holders as the
same shall appear on the stock transfer records of the Company.
SECTION 5. REDEMPTION.
(a) Series B Preferred Shares shall not be redeemable prior to January
19, 2010 except as necessary for the preservation of the Company's
qualification as a real estate investment trust, which determination shall
be made by the Board in its sole discretion.
(b) On or after January 19, 2010, the Company may, at its option, upon
written notice as described in Section 5(e), redeem Series B Preferred
Shares, in whole or from time to time in part, for cash at a redemption
price per share equal to the Liquidation Preference, plus any accumulated,
accrued and unpaid dividends, if any, up to and including the date of
redemption, without interest; PROVIDED, HOWEVER,
that if a redemption date falls after the record date for payment of a
dividend and prior to the corresponding dividend payment date, each holder
of Series B Preferred Shares at the close of business on the record date
will be entitled to the dividend payable on those shares on the
corresponding dividend payment date notwithstanding the redemption of those
shares between the dividend record date and the corresponding dividend
payment date or the default of the Company in the payment of the dividend
due.
(c) Holders of Series B Preferred Shares to be redeemed will be
required to surrender their Series B Preferred Shares at the place
designated in the notice and will be entitled to the redemption price and
any accumulated, accrued and unpaid dividends payable upon such redemption
following their surrender. If notice of redemption of any Series B
Preferred Shares has been given and if the funds necessary for such
redemption have been set aside by the Company in trust for the benefit of
the holders of any Series B Preferred Shares called for redemption, then
from and after the redemption date dividends will cease to accrue on such
Series B Preferred Shares, such Series B Preferred Shares will no longer be
deemed outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price plus any
accumulated, accrued and unpaid dividends payable upon such redemption. If
less than all of the outstanding Series B Preferred Shares are to be
redeemed, the Series B Preferred Shares to be redeemed will be selected on
a pro rata basis (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined by the
Board.
(d) Unless dividends equal to the full amount of all accumulated,
accrued and unpaid dividends on all outstanding Series B Preferred Shares
have been declared and paid, or declared and a sum sufficient for payment
thereof set apart for the payment, for all past dividend periods and the
then current dividend period, no Series B Preferred Shares or Parity Shares
may be redeemed unless all outstanding Series B Preferred Shares are
simultaneously redeemed, and the Company will not have the right to
purchase or otherwise acquire, directly or indirectly, any Series B
Preferred Shares (except by exchange for Junior Shares); PROVIDED, HOWEVER,
that the foregoing shall not prevent the purchase or acquisition of Series
B Preferred Shares as necessary for the preservation of the Company's
qualification as a real estate investment trust or pursuant to a purchase
or exchange offer made on the same terms to holders of all outstanding
Series B Preferred Shares.
(e) Notice of redemption will be given by publication in a newspaper
of general circulation in the City of New York, 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. The Company shall mail
notice of redemption, postage paid, not less than 30 nor more than 60 days
prior to the redemption date, addressed to the respective holders of record
of the Series B Preferred Shares to be redeemed at their respective
addresses as they appear on the share transfer records of the Company. No
failure to give such notice or any defect therein or in the mailing thereof
shall affect the validity of the proceedings for the redemption of any
Series B
Preferred Shares except to a holder to whom notice was defective or not
given. Each notice will state:
(i) the redemption date;
(ii) the redemption price;
(iii) the number of Series B Preferred Shares to be redeemed;
(iv) the procedures with respect to redemption of uncertificated
shares or place or places where certificates for Series B Preferred
Shares are to be surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease to
accrue on the redemption date.
If less than all of the Series B Preferred Shares held by any holder are to
be redeemed, the notice mailed to that holder will also specify the number
of Series B Preferred Shares held by that holder to be redeemed.
(f) Except as provided in this Section 5, the Company shall make no
payment or allowance for unpaid dividends, whether or not in arrears, on
Series B Preferred Shares for which a notice of redemption has been given.
(g) Subject to applicable law and the provisions of Section 5(d), the
Company may, at any time and from time to time, purchase any Series B
Preferred Shares in the open market, by tender or by private agreement.
(h) All of the Series B Preferred Shares redeemed or repurchased
pursuant to this Section 5 shall be retired and shall be restored to the
status of authorized and unissued preferred shares, without designation as
to series and may thereafter be reissued as shares of any series of
preferred shares.
SECTION 6. CONVERSION. The Series B Preferred Shares shall not be
convertible into or exchangeable for any other property or securities of the
Company.
SECTION 7. NO VOTING RIGHTS.
(a) Except as provided in Section 7(b) or Section 8 or as otherwise
required by applicable law, the holders of the Series B Preferred Shares
shall have no voting rights with respect to the Company.
(b) If dividends on the Series B Preferred Shares or any Parity Shares
have not been paid for six or more quarterly periods, whether or not such
periods are consecutive, the number of trustees then constituting the Board
shall be increased by two, if not already increased by reason of similar
types of provisions with respect to any Parity Shares which are entitled to
similar voting rights (the "Voting Preferred Shares"), and the holders of
the Series B Preferred Shares, along with the holders of
all other Voting Preferred Shares then entitled to exercise similar voting
rights, voting together as a single group, shall be entitled to elect two
additional trustees to the Board at the next annual meeting of
shareholders, or at a special meeting of the holders of the Series B
Preferred Shares and the Voting Preferred Shares called for that purpose,
to serve until all unpaid dividends have been paid or declared and set
apart for payment. The Company shall call a special meeting of the holders
of the Series B Preferred Shares and all other Voting Preferred Shares then
entitled to exercise similar voting rights upon the request of the holders
of not less than 10% of the outstanding Series B Preferred Shares or such
Voting Preferred Shares. A quorum for any such meeting will be deemed to
exist if at least a majority of the outstanding Series B Preferred Shares
and Voting Preferred Shares then entitled to exercise similar voting
rights, voting together as a single class, are represented in person or by
proxy at the meeting. The additional trustees will be elected upon the
affirmative vote of a plurality of the Series B Preferred Shares and Voting
Preferred Shares, voting together as a single class, present and voting in
person or by proxy at a duly called and held meeting at which a quorum is
present.
(c) Whenever dividends in arrears on the outstanding Series B
Preferred Shares and Voting Preferred Shares shall have been paid and
dividends thereon for the current quarterly dividend period shall have been
paid or declared and set apart for payment, then the right of the holders
of the Series B Preferred Shares and Voting Preferred Shares to elect the
additional two trustees shall cease and the terms of office of such
trustees will terminate and the number of trustees constituting the Board
will be reduced accordingly.
SECTION 8. PROTECTIVE PROVISIONS. So long as any Series B Preferred Shares
remain outstanding, the Company shall not, without first obtaining the approval
by vote or written consent, in the manner provided under applicable law, of the
holders of at least two-thirds of the Series B Preferred Shares then
outstanding, voting together as a single class with the Voting Preferred Shares:
(a) amend, alter or repeal any of the provisions of the Declaration of
Trust (including these Articles Supplementary) or bylaws of the Company,
whether by merger, consolidation, transfer or conveyance of substantially
all of its assets or otherwise, in a manner that materially and adversely
affects the powers, rights, privileges or preferences of the Series B
Preferred Shares and the holders of the Series B Preferred Shares;
PROVIDED, HOWEVER, that the amendment of, or supplement to, the provisions
of the Declaration of Trust so as to authorize, create, increase or
decrease the authorized amount of any Junior Shares or any Parity Shares,
or the issuance of any such shares, shall not be deemed to materially
adversely affect the powers, rights or preferences of the Series B
Preferred Shares; and FURTHER PROVIDED, HOWEVER, that no such vote of the
holders of the Series B Preferred Shares shall be required if, at or prior
to the time such amendment, alteration or repeal is to take effect
provisions are made for the redemption of all outstanding Series B
Preferred Shares;
(b) effect a share exchange that affects the Series B Preferred
Shares, a consolidation with or merger of the Company into another entity,
or a consolidation with or merger of another entity into the Company,
unless in each such case each Series B Preferred Share (i) shall remain
outstanding without a material and adverse change to its terms and rights
or (ii) shall be converted into or exchanged for preferred shares of the
surviving entity having preferences, rights, powers, restrictions,
limitations as to dividends, qualifications and terms or conditions of
redemption identical to that of the Series B Preferred Shares (except for
changes that do not materially and adversely affect the holders of the
Series B Preferred Shares);
(c) authorize, reclassify or create, or increase the authorized or
issued amount of, any class or series of Senior Shares or any security
convertible into any class or series of Senior Shares; or
(d) increase the authorized amount of Series B Preferred Shares or
decrease the authorized amount of Series B Preferred Shares below the
number of shares then issued and outstanding.
Provided, however, that no such vote of the holders of the Series B
Preferred Shares shall be required if, at or prior to the time when the act
with respect to which the vote would otherwise be required is effected, all
outstanding Series B Preferred Shares are redeemed or called for redemption
upon proper notice and sufficient funds are deposited in cash, in trust to
effect the redemption.
In any matter in which the Series B Preferred Shares may vote (as
expressly provided herein or as may be required by law), each of the Series
B Preferred Shares shall be entitled to one vote per each $25.00 in
liquidation price.
SECTION 9. OWNERSHIP RESTRICTIONS. The Series B Preferred Shares shall be
subject to the ownership restrictions found in Article Ninth of the Declaration
of Trust, as amended.
SECTION 10. FORM. The Series B Preferred Shares will be issued and
maintained in book-entry form registered in the name of the nominee of The
Depository Trust Company except under limited circumstances. Provided, however,
any holder of Series B Preferred Shares shall have the right to request a
certificate therefor and upon such request made in writing to the Transfer Agent
and Registrar of the Company, the Company shall cause to be issued a duly
executed certificate for such Series B Preferred Shares registered in the name
in which the Series B Preferred Shares were held in book-entry form or such
other name(s) as specified by the holder in writing.
SECOND, that such determination of the designation, preferences and the
relative, participating, optional or other rights, and the qualifications,
limitations or restrictions thereof, relating to the Series B Preferred Shares,
was duly made by the Board of Trustees pursuant to the provisions of the
Declaration of Trust of the Company, and in accordance with the provisions of
Section 8-203 of the Maryland General Corporation Law, as amended.
IN WITNESS WHEREOF, Entertainment Properties Trust has executed these
Articles Supplementary Designating the Powers, Preferences and Rights of the
7.75% Series B Cumulative Redeemable Preferred Shares as of this 11th day of
January, 2005.
ENTERTAINMENT PROPERTIES TRUST,
a Maryland real estate investment trust
By: /s/ Fred L. Kennon
-----------------------------------------
Name: Fred L. Kennon
Title: Vice President, Treasurer and Chief
Financial Officer