EXHIBIT 4.1
LTC PROPERTIES, INC.
ARTICLES SUPPLEMENTARY CLASSIFYING
4,000,000 SHARES OF
8% SERIES F CUMULATIVE PREFERRED STOCK
LTC Properties, Inc., a Maryland corporation (the "Company"), certifies to
the Maryland State Department of Assessments and Taxation (the "Department")
that:
FIRST: Pursuant to the authority expressly vested in the Board of Directors
of the Company by Article SEVENTH of the Company's Articles of Amendment and
Restatement filed with the Department on August 3, 1992, as amended and
supplemented (the "Charter"), and Section 2-105 of the Maryland General
Corporation Law ("MGCL"), the Board of Directors has, by unanimous written
consent dated February 17, 2004, adopted resolutions classifying and designating
a separate series of authorized but unissued Preferred Stock (as defined in the
Charter) to consist of a maximum of 4,000,000 shares of Preferred Stock, setting
certain of the preferences, conversion and other rights, voting powers,
restrictions, qualifications and terms and conditions of redemption of such
separate series of Preferred Stock, providing for the issuance of a maximum of
4,000,000 shares of such series of Preferred Stock and, pursuant to the powers
contained in the bylaws of the Company (the "Bylaws") and the MGCL, appointing a
committee (the "Preferred Stock Terms Committee") of the Board of Directors and
delegating to the Preferred Stock Terms Committee, to the fullest extent
permitted by Maryland law and the Charter and Bylaws of the Company, all powers
of the Board of Directors with respect to classifying, designating and setting
of the preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption of such series of Preferred Stock and determining
the number of shares of such series of Preferred Stock (not in excess of the
aforesaid maximum number) to be classified and 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 Preferred Stock Terms
Committee as aforesaid, the Preferred Stock Terms Committee has, by unanimous
written consent, duly adopted resolutions classifying 4,000,000 shares of
authorized but unissued Preferred Stock as the aforesaid series of Preferred
Stock, designating such series as "8% Series F Cumulative Preferred Stock",
setting the preferences, conversion and other rights, voting powers,
restrictions and limitations as to dividends, qualifications and terms and
conditions of redemption of such 8% Series F Cumulative 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 authorizing the issuance of
up to 4,000,000 shares of 8% Series F Cumulative Preferred Stock.
THIRD: The series of Preferred Stock of the Company created by the
resolutions duly adopted by the Board of Directors of the Company and by the
Preferred Stock Terms Committee and referred to in Articles FIRST and SECOND of
these Articles Supplementary shall have the following 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 which, upon any restatement of the
Charter, shall be made a part of Article SEVENTH of the Charter, with any
necessary or appropriate changes to the enumeration or lettering of sections or
subsections thereof:
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1. Designation and Number. A series of Preferred Stock, designated the "8%
Series F Cumulative Preferred Stock" (the "Series F Preferred Stock"), is
hereby established. The number of shares of the Series F Preferred Stock
shall be 4,000,000.
2. Maturity. The Series F Preferred Stock has no stated maturity and will not
be subject to any sinking fund or mandatory redemption.
3. Rank. The Series F Preferred Stock will, with respect to dividend rights
and rights upon liquidation, dissolution or winding up of the Company, rank
(i) senior to all classes or series of Common Stock of the Company, the
Series D Junior Participating Preferred Stock and to all equity securities
ranking junior to the Series F Preferred Stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the
Company; (ii) on a parity with the 9.5% Series A Cumulative Preferred Stock
("Series A Preferred Stock"), the 9.0% Series B Cumulative Preferred Stock
("Series B Preferred Stock"), the 8.5% Series C Cumulative Convertible
Preferred Stock ("Series C Preferred Stock"), and the 8.5% Series E
Cumulative Convertible Preferred Stock ("Series E Preferred Stock"), and
with all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank on a parity with the
Series F Preferred Stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company; and (iii) junior to
all existing and future indebtedness of the Company. The term "equity
securities" does not include convertible debt securities, which will rank
senior to the Series F Preferred Stock prior to conversion.
4. Dividends.
(a) Holders of shares of the Series F Preferred Stock are entitled to
receive, when and as declared by the Board of Directors, out of funds
legally available for the payment of dividends, preferential
cumulative cash dividends at the rate of 8% per annum of the
Liquidation Preference (as defined below) per share (equivalent to a
fixed annual amount of $2.00 per share). Dividends on the Series F
Preferred Stock shall be cumulative from the date of original issue
and shall be payable quarterly in arrears on or before the 15th day of
April, July, October and January of each year, or, if not a business
day, the next succeeding business day (each, a "Dividend Payment
Date"). The first dividend, which will be paid on April 15, 2004, will
be for less than a full quarter. Such dividend and any dividend
payable on the Series F 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 Company 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 Company 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"). Notwithstanding any provision to the contrary
contained herein, each outstanding share of Series F Preferred Stock
shall be entitled to receive, and shall receive, a dividend with
respect to each Dividend Record Date equal to the dividend paid with
respect to each other share of Series F Preferred Stock which is
outstanding on such Dividend Record Date.
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(b) No dividends on shares of Series F Preferred Stock shall be declared
by the Board of Directors or paid or set apart for payment by the
Company at such time as the terms and provisions of any agreement of
the Company, including any agreement relating to its indebtedness,
prohibits such declaration, payment or setting apart for payment or
provides that such declaration, payment or setting apart for payment
would constitute a breach thereof or a default thereunder, or if such
declaration or payment shall be restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series F Preferred
Stock will accrue whether or not the Company has earnings, whether or
not there are funds legally available for the payment of such
dividends and whether or not such dividends are declared. Accrued but
unpaid dividends on the Series F Preferred Stock will not bear
interest and holders of the Series F Preferred Stock will not be
entitled to any distributions in excess of full cumulative
distributions described above. Except as set forth in the next
sentence, no dividends will be declared or paid or set apart for
payment on any capital stock of the Company or any other series of
Preferred Stock ranking, as to dividends, on a parity with or junior
to the Series F Preferred Stock (other than a dividend in shares of
the Company's Common Stock or in shares of any other class of stock
ranking junior to the Series F 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 F Preferred Stock for all dividend periods ending prior to
or on the most recent past Dividend Payment Date. When dividends are
not paid in full for all such dividend periods (or a sum sufficient
for such full payment is not so set apart) upon the Series F Preferred
Stock and the shares of any other series of Preferred Stock ranking on
a parity as to dividends with the Series F Preferred Stock, all
dividends declared upon the Series F Preferred Stock and any other
series of Preferred Stock ranking on a parity as to dividends with the
Series F Preferred Stock shall be declared pro rata so that the amount
of dividends declared per share of Series F 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 F
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.
(d) Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series F 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
dividend periods ending prior to or on the most recent past Dividend
Payment Date, no dividends (other than in shares of Common Stock or
other shares of capital stock ranking junior to the Series F Preferred
Stock as to dividends and upon liquidation) shall be declared or paid
or set aside for payment nor shall any other distribution be declared
or made upon the Common Stock, or any other capital stock of the
Company ranking junior to or on a parity with the Series F Preferred
Stock as to dividends or upon liquidation, nor shall any shares of
Common Stock, or any other shares of capital stock of the Company
ranking junior to or on a parity with the Series F Preferred Stock as
to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or made
available for a sinking fund for the redemption of any such shares) by
the Company (except by conversion into or exchange for other capital
stock of the Company ranking junior to the Series F Preferred Stock as
to dividends and upon liquidation or redemptions for the purpose of
preserving the Company's qualification as a REIT). Holders of shares
of the Series F Preferred Stock shall not be entitled to any dividend,
whether payable in cash, property or stock, in excess of full
cumulative dividends on the Series F Preferred Stock as provided
above. Any dividend payment made on shares of the Series F Preferred
Stock shall first be credited against the earliest accrued but unpaid
dividend due with respect to such shares which remains payable.
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5. Liquidation Preference. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, the holders of
shares of Series F Preferred Stock are entitled to be paid out of the
assets of the Company legally available for distribution to its
stockholders a liquidation preference of $25 per share (the "Liquidation
Preference"), plus an amount equal to any accrued and unpaid dividends to
the date of payment, but without interest, before any distribution of
assets is made to holders of Common Stock or any other class or series of
capital stock of the Company that ranks junior to the Series F Preferred
Stock as to liquidation rights. The Company will promptly provide to the
holders of Series F Preferred Stock written notice of any event triggering
the right to receive such Liquidation Preference. After payment of the full
amount of the Liquidation Preference, plus any accrued and unpaid dividends
to which they are entitled, the holders of Series F Preferred Stock will
have no right or claim to any of the remaining assets of the Company. The
consolidation or merger of the Company with or into any other corporation,
trust or entity or of any other corporation with or into the Company, or
the sale, lease or conveyance of all or substantially all of the property
or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
In determining whether a distribution (other than upon voluntary or
involuntary liquidation) by dividend, redemption or other acquisition of shares
of stock of the Company or otherwise is permitted under the MGCL, no effect
shall be given to amounts that would be needed if the Company would be dissolved
at the time of the distribution, to satisfy the preferential rights upon
distribution of holders of shares of stock of the Company whose preferential
rights upon distribution are superior to those receiving the distribution.
6. Redemption.
(a) The Series F Preferred Stock is not redeemable prior to February 23,
2009. On and after February 23, 2009, the Company, at its option upon
not less than 30 nor more than 60 days' written notice, may redeem
shares of the Series F Preferred Stock, in whole or in part, at any
time or from time to time, for cash at a redemption price of $25 per
share, plus all accrued and unpaid dividends thereon to the date fixed
for redemption (except with respect to Excess Shares), without
interest. Holders of Series F Preferred Stock to be redeemed shall
surrender such Series F Preferred Stock at the place designated in
such notice and shall be entitled to the redemption price and any
accrued and unpaid dividends payable upon such redemption following
such surrender. If notice of redemption of any shares of Series F
Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by the Company in trust for the benefit
of the holders of any shares of Series F Preferred Stock so called for
redemption, then from and after the redemption date dividends will
cease to accrue on such shares of Series F Preferred Stock, such
shares of Series F Preferred Stock shall no longer be deemed
outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price. If less
than all of the outstanding Series F Preferred Stock is to be
redeemed, the Series F Preferred Stock to be redeemed shall be
selected pro rata (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined by the
Company.
(b) Unless full cumulative dividends on all shares of Series F Preferred
Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for
payment for all dividend periods ending prior to or on the most recent
past Dividend Payment Date, no shares of Series F Preferred Stock
shall be redeemed unless all outstanding shares of Series F Preferred
Stock are simultaneously redeemed and the Company shall not purchase
or otherwise acquire directly or indirectly any shares of Series F
Preferred Stock (except by exchange for capital stock of the Company
ranking junior to the Series F Preferred Stock as to dividends and
upon liquidation); provided, however, that the foregoing shall not
prevent the purchase by the Company of Excess Shares in order to
ensure that the Company continues to meet the requirements for
qualification as a REIT, or the purchase or acquisition of shares of
Series F Preferred Stock pursuant to a purchase or exchange offer made
on the same terms to holders of all outstanding shares of Series F
Preferred Stock. So long as no dividends are in arrears, the Company
shall be entitled at any time and from time to time to repurchase
shares of Series F Preferred Stock in open-market transactions duly
authorized by the Board of Directors and effected in compliance with
applicable laws.
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(c) Notice of redemption will be given by publication in a newspaper of
general circulation in the City of New York, such publication to be
made once a week for two successive weeks commencing not less than 30
nor more than 60 days prior to the redemption date. A similar notice
will be mailed by the Company, postage prepaid, not less than 30 nor
more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series F Preferred Stock to be
redeemed at their respective addresses as they appear on the stock
transfer records of the Company. No failure to give such notice or any
defect therein or in the mailing thereof shall affect the validity of
the proceedings for the redemption of any shares of Series F Preferred
Stock except as to the holder to whom notice was defective or not
given. Each notice shall state: (i) the redemption date; (ii) the
redemption price; (iii) the number of shares of Series F Preferred
Stock to be redeemed; (iv) the place or places where the Series F
Preferred Stock is to be surrendered for payment of the redemption
price; and (v) that dividends on the shares to be redeemed will cease
to accrue on such redemption date. If less than all of the Series F
Preferred Stock held by any holder is to be redeemed, the notice
mailed to such holder shall also specify the number of shares of
Series F Preferred Stock held by such holder to be redeemed.
(d) Immediately prior to any redemption of Series F Preferred Stock, the
Company shall pay, in cash, any accumulated and unpaid dividends to
the redemption date, unless a redemption date falls after a Dividend
Record Date and prior to the corresponding Dividend Payment Date, in
which case each holder of Series F Preferred Stock at the close of
business on such Dividend Record Date shall be entitled to the
dividend payable on such shares on the corresponding Dividend Payment
Date notwithstanding the redemption of such shares before such
Dividend Payment Date.
(e) Excess Shares may be redeemed, in whole or in part, at any time when
outstanding shares of Series F Preferred Stock are being redeemed, for
cash at a redemption price of $25 per share, but excluding accrued and
unpaid dividends on such Excess Shares, without interest. Such Excess
Shares shall be redeemed in such proportion and in accordance with
such procedures as shares of Series F Preferred Stock are being
redeemed.
7. Voting Rights.
(a) Holders of the Series F Preferred Stock will not have any voting
rights, except as set forth below.
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(b) Whenever (i) dividends on any shares of Series F Preferred Stock or
Series E Preferred Stock shall be in arrears for six or more quarterly
periods, or (ii) dividends on any shares of Series A Preferred Stock
or Series B Preferred Stock shall be in arrears for eighteen or more
months (each of (i) and (ii) are hereinafter referred to as a
"Preferred Dividend Default"), the number of directors then
constituting the Board of Directors shall be increased by two (if not
already increased by reason of a similar arrearage with respect to any
Parity Preferred (as hereinafter defined)). The holders of shares of
Series F Preferred Stock (voting separately as a class with all other
series of Preferred Stock ranking on a parity with the Series F
Preferred Stock as to dividends or upon liquidation including, but not
limited to, the Series A Preferred Stock, the Series B Preferred Stock
and the Series E Preferred Stock ("Parity Preferred") upon which like
voting rights have been conferred and are exercisable) will be
entitled to vote separately as a class, in order to fill the vacancies
thereby created, for the election of a total of two additional
directors of the Company (the "Preferred Stock Directors") at a
special meeting called by the holders of record of at least 20% of the
Series F Preferred Stock or the holders of record of at least 20% of
any series of Parity Preferred so in arrears (unless such request is
received less than 90 days before the date fixed for the next annual
or special meeting of the stockholders) or at the next annual meeting
of stockholders, and at each subsequent annual meeting until all
dividends accumulated on such shares of Series F Preferred Stock,
Series E Preferred Stock, Series A Preferred Stock and Series B
Preferred Stock for the past dividend periods and the dividend for the
then current dividend period shall have been fully paid or declared
and a sum sufficient for the payment thereof set aside for payment. In
the event the directors of the Company are divided into classes, each
such vacancy shall be apportioned among the classes of directors to
prevent stacking in any one class and to insure that the number of
directors in each of the classes of directors, are as equal as
possible. Each Preferred Stock Director, as a qualification for
election as such (and regardless of how elected) shall submit to the
Board of Directors of the Company a duly executed, valid, binding and
enforceable letter of resignation from the Board of Directors, to be
effective upon the date upon which all dividends accumulated on such
shares of Series F Preferred Stock and Parity Preferred for the past
dividend periods and the dividend for the then current dividend period
shall have been fully paid or declared and a sum sufficient for the
payment thereof set aside for payment, whereupon the terms of office
of all persons elected as Preferred Stock Directors by the holders of
the Series F Preferred Stock and any Parity Preferred shall, upon the
effectiveness of their respective letters of resignation, forthwith
terminate, and the number of directors then constituting the Board of
Directors shall be reduced accordingly. A quorum for any such meeting
shall exist if at least a majority of the outstanding shares of Series
F Preferred Stock and shares of Parity Preferred upon which like
voting rights have been conferred and are exercisable are represented
in person or by proxy at such meeting. Such Preferred Stock Directors
shall be elected upon the affirmative vote of a plurality of the
shares of Series F Preferred Stock and such Parity Preferred present
and voting in person or by proxy at a duly called and held meeting at
which a quorum is present. If and when all accumulated dividends and
the dividend for the then current dividend period on the Series F
Preferred Stock, Series E Preferred Stock, Series A Preferred Stock
and Series B Preferred Stock shall have been paid in full or declared
and set aside for payment in full, the holders of shares of Series F
Preferred Stock shall be divested of the foregoing voting rights
(subject to revesting in the event of each and every Preferred
Dividend Default) and, if all accumulated dividends and the dividend
for the current dividend period have been paid in full or set aside
for payment in full on all series of Parity Preferred upon which like
voting rights have been conferred and are exercisable, the term of
office of each Preferred Stock Director so elected shall terminate.
Any Preferred Stock Director may be removed at any time with or
without cause by, and shall not be removed otherwise than by the vote
of the holders of record of a majority of the outstanding shares of
the Series F Preferred Stock when they have the voting rights
described above (voting separately as a class with all series of
Parity Preferred upon which like voting rights have been conferred and
are exercisable). So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Stock Director may
be filled by written consent of the Preferred Stock Director remaining
in office, or if none remains in office, by a vote of the holders of
record of a majority of the outstanding shares of Series F Preferred
Stock when they have the voting rights described above (voting
separately as a class with all series of Parity Preferred upon which
like voting rights have been conferred and are exercisable). The
Preferred Stock Directors shall each be entitled to one vote per
director on any matter.
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(c) So long as any shares of Series F Preferred Stock remain outstanding,
the Company will not, without the affirmative vote or consent of the
holders of at least two-thirds of the shares of the Series F Preferred
Stock outstanding at the time, given in person or by proxy, either in
writing or at a meeting (voting separately as a class), amend, alter
or repeal the provisions of the Charter or these Articles
Supplementary, whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any right,
preference, privilege or voting power of the Series F Preferred Stock
or the holders thereof; provided, however, that with respect to the
occurrence of any Event set forth above, so long as the Series F
Preferred Stock (or any equivalent class or series of stock issued by
the surviving corporation in any merger or consolidation to which the
Company became a party) remains outstanding with the terms thereof
materially unchanged, the occurrence of any such Event shall not be
deemed to materially and adversely affect such rights, preferences,
privileges or voting power of holders of the Series F Preferred Stock
and provided, further that (i) any increase in the amount of the
authorized Preferred Stock or the creation or issuance of any other
series of Preferred Stock, or (ii) any increase in the amount of
authorized shares of such series, in each case ranking on a parity
with or junior to the Series F Preferred Stock with respect to payment
of dividends or the distribution of assets upon liquidation,
dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting
powers.
(d) 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 F
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.
(e) Except as expressly stated in these Articles Supplementary, the Series
F 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 Company or a sale of all or substantially all of the
assets of the Company, irrespective of the effect that such merger,
consolidation or sale may have upon the rights, preferences or voting
power of the holders of the Series F Preferred Stock.
8. Conversion. The holders of Series F Preferred Stock shall not have any
rights to convert such shares into, or exchange such shares for, shares of
any other class or series of stock or any other securities of, or interest
in, the Company.
9. Limit on Ownership of Series F Preferred Stock; Excess Preferred Shares.
Shares of Series F Preferred Stock shall be subject to the limitations on
ownership and transfer set forth in Article NINTH of the Charter of the
Company, including the applicable Limit (as defined in the Charter) and
other provisions of Article NINTH of the Charter. Subject to the authority
of the Board of Directors set forth in said Article NINTH, the Limit
applicable to shares of the Series F Preferred Stock shall be the number of
shares of Series F Preferred Stock that is equal to 9.8% of the then
outstanding shares of Series F Preferred Stock.
FOURTH: The Series F Preferred Stock has been classified and designated by
the Board of Directors of the Company under the authority contained in the
Charter.
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FIFTH: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
SIXTH: The undersigned Chairman of the Board, President and Chief Executive
Officer of the Company acknowledges these Articles Supplementary to be the
corporate act of the Company and, as to all matters or facts required to be
verified under oath, the undersigned Chairman of the Board, President and Chief
Executive Officer of the Company 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 of perjury.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused these Articles Supplementary to
be executed under seal in its name and on its behalf by its Chairman of the
Board, President and Chief Executive Officer and attested to by its Corporate
Secretary on this 19th day of February, 2004.
ATTEST: LTC PROPERTIES, INC.
/s/ Alex J. Chavez By: /s/ Andre C. Dimitriadis(SEAL)
___________________________ _____________________________________
Name: Alex J. Chavez Name: Andre C. Dimitriadis
Title: Corporate Secretary Title: Chairman of the Board, President and
Chief Executive Officer