Exhibit 3.1
ALEXANDRIA REAL ESTATE EQUITIES,
INC.
Articles Supplementary
7.00% SERIES D CUMULATIVE CONVERTIBLE PREFERRED
STOCK
ALEXANDRIA REAL ESTATE EQUITIES, INC. a
Maryland corporation (the “Corporation”), hereby
certifies to the Maryland State Department of Assessments and
Taxation that:
FIRST: Pursuant to Section 6.3 of
Article VI of the Articles of Amendment and Restatement of the
Corporation (the “Charter”), the Board of Directors of
the Corporation (the “Board of Directors”), by
resolution duly adopted, classified and designated 10,000,000
shares (the “Shares”) of Preferred Stock (as defined in
the Charter) as shares of 7.00% Series D Cumulative
Convertible Preferred Stock, par value $.01 per share (the
“Series D Preferred Stock”), with the preferences,
conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications
and terms and conditions of redemption, subject in all cases to the
provisions of Article VII of the Charter, that are as set
forth in the following paragraphs, which upon any restatement of
the Charter shall be made part of Article VI thereof, with any
necessary or appropriate changes to the enumeration or lettering of
sections or subsections hereof. The classification increases the
number of shares classified as Series D Preferred Stock from
no shares immediately prior to the classification to 10,000,000
shares immediately after the classification. The classification
decreases the number of shares of unclassified Preferred Stock from
89,840,000 shares immediately prior to the classification to
79,840,000 shares immediately after the classification.
7.00% SERIES D CUMULATIVE CONVERTIBLE PREFERRED
STOCK
1.
Designation and
Amount.
The
Series D Preferred Stock designated herein shall be 7.00%
Series D Cumulative Convertible Preferred Stock, par value
$.01 per share. The number of shares of Series D Preferred
Stock to be authorized shall be 10,000,000.
2.
Dividend
Provisions.
(a)
Subject to the rights of
series of Preferred Stock which may from time to time come into
existence, holders of shares of Series D Preferred Stock shall
be entitled to receive, when and as authorized by the Board of
Directors of the Corporation and declared by the Corporation, out
of funds legally available for the payment of dividends, cumulative
preferential cash dividends at the rate of 7.00% per annum of the
Liquidation Preference (as hereinafter defined) per share
(equivalent to a fixed annual amount of 1.75 per share). Such
dividends shall be cumulative from the date of original issue and
shall be payable quarterly in arrears on or before the 15th day of
each of January, April, July and October of each year or,
if any such day is not a Business Day (as defined below), then on
the next succeeding Business Day (each, a “Dividend Payment
Date”), except that, if such Business Day is in the next
succeeding year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect
as if made on such date. The first dividend, which will be due on
or before July 15, 2008 will be for more than a full quarter.
Such first dividend and any dividend payable on
Series D 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 records of the Corporation
at the close of business on the last Business Day of December,
March, June and September, respectively, or on such date
designated by the Board of Directors of the Corporation that is not
more than 30 nor less than ten days prior to the applicable
Dividend Payment Date (each, a “Dividend Record
Date”). For the purposes of the terms of the
Series D Preferred Stock, the term “Business Day”
shall mean each day, other than a Saturday or a Sunday, which is
not a day on which banking institutions in New York, New York are
authorized or required by law, regulation or executive order to
close.
(b)
Dividends on Series D
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 D
Preferred Stock will accumulate as of the Dividend Payment Date on
which they become payable. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on Series D Preferred Stock which may be in arrears.
No dividends on shares of Series D Preferred Stock shall be
authorized by the Board of Directors and declared by the
Corporation or paid or set apart for payment by the Corporation at
such time as the terms and provisions of any of the
Corporation’s agreements, including any agreement relating to
the Corporation’s 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)
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, or any successor revenue code or
section) any portion (the “Capital Gains Amount”) of
the total 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 holders of
Series D Preferred Stock shall be the amount that bears the
same ratio to the Capital Gains Amount that the Total Dividends (as
determined for federal income tax purposes) paid or made available
to the holders of Series D Preferred Stock for the year bears
to the Total Dividends.
(d)
If any shares of
Series D Preferred Stock are outstanding, no dividends (other
than in shares of Common Stock (as defined in the Charter) or other
series of Preferred Stock ranking junior to Series D Preferred
Stock as to dividends and upon liquidation) shall be declared or
paid or set apart for payment on any Common Stock or any other
series of Preferred Stock of the Corporation ranking junior to
Series D Preferred Stock as to dividends, 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 set apart for such payments on shares of Series D
Preferred Stock and all other series of Preferred Stock ranking, as
to dividends, on a parity with the Series D Preferred Stock
(“Parity Preferred”) 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 shares of Series D Preferred Stock and Parity
Preferred, all dividends declared upon shares of Series D
Preferred Stock and any Parity Preferred shall be declared pro rata
so that the amount of dividends declared per share of Series D
Preferred Stock and such other series of Parity Preferred shall in
all cases bear to each other the same ratio that
2
accrued dividends per share on Series D
Preferred Stock and such other series of Parity Preferred
(which shall not include any accrual in respect of unpaid dividends
for prior dividend periods if such Parity Preferred does not have a
cumulative dividend) bear to each other. No interest, or sum
of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on Series D Preferred Stock which
may be in arrears.
(e)
Except as provided in
Section 2(d), unless full cumulative dividends on shares of
Series D Preferred Stock have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment
thereof set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of
Common Stock or other stock ranking junior to Series D
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 shares of Common Stock or
any other stock of the Corporation ranking junior to or on a parity
with Series D Preferred Stock as to dividends or upon
liquidation, nor shall any shares of Common Stock or any other
stock of the Corporation ranking junior to or on a parity with
Series D Preferred Stock as to dividends or upon liquidation
be redeemed, purchased or otherwise acquired for any consideration
(or any monies be paid to or made available for a sinking fund for
the redemption of any such stock) by the Corporation or any
affiliate or any person acting on behalf of the Corporation or any
of its affiliates (except by conversion into or exchange for other
stock of the Corporation ranking junior to Series D Preferred
Stock as to dividends and amounts upon liquidation or exchanges for
the purpose of preserving the Corporation’s status as a
REIT).
(f)
Any dividend payment made
on shares of Series D Preferred Stock shall first be credited
against the earliest accrued but unpaid dividend due with respect
to shares of Series D Preferred Stock which remains
payable.
3.
Liquidation
Preference.
(a)
Subject to the rights of
series of Preferred Stock which may from time to time come into
existence, upon any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation, then,
before any distribution of assets shall be made to the holders of
any shares of Common Stock or any other class or series of stock of
the Corporation ranking junior to Series D Preferred Stock as
to liquidation rights, the holders of shares of Series D
Preferred Stock shall be entitled to receive out of assets of the
Corporation legally available for distribution to stockholders,
after payment of or provision for the Corporation’s debts and
other liabilities, liquidation distributions in the amount of the
liquidation preference of $25.00 per share (the “Liquidation
Preference”), plus an amount equal to all dividends accrued
and unpaid thereon to but excluding the date of payment. Holders of
Series D Preferred Stock will be entitled to 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 shares of Series D Preferred Stock
will have no right or claim to any of the remaining assets of the
Corporation. In the event that, upon any such voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, the available assets of the Corporation are
insufficient to pay the full amount of the liquidation
distributions on outstanding shares of Series D Preferred
Stock and the corresponding amounts payable on all shares of other
classes or series of stock of the Corporation ranking on a parity
with Series D Preferred Stock in the distribution of assets
upon any liquidation, dissolution
3
or
winding up of the affairs of the Corporation (“Parity
Stock”), then the holders of shares of Series D
Preferred Stock and Parity Stock shall share ratably in any such
distribution of assets in proportion to the full liquidating
distributions to which they would otherwise respectively be
entitled.
(b)
A consolidation or merger
of the Corporation with or into any other trust, entity or
entities, or a sale, lease, consolidation, conveyance or
disposition of all or substantially all of the assets of the
Corporation or the effectuation by the Corporation of a transaction
or series of related transactions in which more than 50% of the
voting power of the Corporation is disposed of, shall not be deemed
to be a liquidation, dissolution or winding up of the affairs of
the Corporation within the meaning of this
Section 3.
4.
Redemption.
Shares of Series D Preferred Stock shall
not be redeemable, provided, however, that shares of Series D
Preferred Stock shall be subject to the provisions of
Article VII of the Charter and shares of Series D
Preferred Stock may be repurchased in accordance with
Section 6(l) of the terms of these Series D
Preferred Stock.
5.
Voting Rights.
(a)
Except as provided in this
Section 5, the holders of shares of Series D Preferred
Stock will have no voting rights.
(b)
If six or more quarterly
dividends (whether or not consecutive) payable on shares of
Series D Preferred Stock or any Parity Preferred are in
arrears (a “Preferred Dividend Default”), whether or
not earned or declared, the number of directors then constituting
the Board of Directors of the Corporation will automatically be
increased by two, and the holders of shares of Series D
Preferred Stock, voting together as a single class with the holders
of shares of any other series of Parity Preferred upon which like
voting rights have been conferred and are exercisable, will have
the right to elect two directors to serve on the
Corporation’s Board of Directors at a special meeting called
by of the holders of record of at least 20% of the Series D
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 stockholders) and at each subsequent
annual meeting until all unpaid dividends accumulated on such
shares of Series D 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. A quorum
for any such meeting shall exist if at least a majority of the
outstanding shares of Series D 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 directors shall be elected upon the affirmative vote
of a plurality of the shares of Series D 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 to serve
until the next annual meeting and until their successors are
elected and qualify or the terms of such directors terminate as set
forth in the following sentence. If and when all accumulated
dividends and the dividend for the then current dividend period on
the Series D Preferred Stock shall have been paid in full or
set aside for payment in full, the holders thereof shall be
divested of the foregoing voting rights (subject to revesting in
the event
4
of
each and every Preferred Dividend Default) and, if all accumulated
dividends and the dividend for the then current period have been
paid in full or declared and set aside for payment in full on the
Series D Preferred Stock and all series of Parity Preferred
upon which like voting rights have been conferred and are
exercisable, the term of office of each director so elected shall
immediately terminate. The directors so elected shall each be
entitled to one vote per director on any matter.
(c)
At any time when such
voting rights shall have vested, a proper officer of the
Corporation shall call or cause to be called, upon written request
of holders of record of at least 20% of the outstanding shares of
Series D Preferred Stock and Parity Preferred, a special
meeting of the holders of Series D Preferred Stock and each
class or series of Parity Preferred by mailing or causing to be
mailed to such holders a notice of such special meeting to be held
not fewer than ten or more than 45 days after the date such notice
is given. The record date for determining holders of the
Series D Preferred Stock and Parity Preferred entitled to
notice of and to vote at such special meeting will be the close of
business on the third Business Day preceding the day on which such
notice is mailed. At any such annual or special meeting, all of the
holders of the Series D Preferred Stock and Parity Preferred,
by plurality vote, voting together as a single class without regard
to class or series will be entitled to elect two directors on the
basis of one vote per $25.00 of liquidation preference to which
such Series D Preferred Stock and Parity Preferred are
entitled by their terms (excluding amounts in respect of
accumulated and unpaid dividends) and not cumulatively. Notice of
all meetings at which holders of the Series D Preferred Stock
and the Parity Preferred shall be entitled to vote will be given to
such holders at their addresses as they appear in the transfer
records. If a Preferred Dividend Default shall terminate after the
notice of a special meeting has been given but before such special
meeting has been held, the Corporation shall, as soon as
practicable after such termination, mail or cause to be mailed
notice of such termination to holders of the Series D
Preferred Stock and the Parity Preferred that would have been
entitled to vote at such special meeting.
(d)
So long as any shares of
Series D Preferred Stock remain outstanding, the Corporation
will not without the affirmative vote or consent, given in person
or by proxy, either in writing or at a meeting, of the holders of
at least two-thirds of the shares of the Series D Preferred
Stock and of the shares of any series of Parity Preferred or Parity
Stock determined by the Board of Directors to be affected in a
manner similar to the Series D Preferred Stock by the proposed
action described in (a) or (b) below (upon which like
voting rights have been conferred and are exercisable on the
matter), voting together as a single class, (a) authorize or
create, or increase the authorized or issued amount of, any class
or series of stock ranking senior to the Series D Preferred
Stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up or reclassify
any authorized stock of the Corporation into such shares, or
create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such shares; or
(b) amend, alter or repeal the provisions of the
Corporation’s 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 D
Preferred Stock; provided, however, with respect to the occurrence
of any Event set forth in (b) above, so long as the
Series D Preferred Stock remains outstanding with the terms
thereof materially unchanged, or if the Corporation is not the
surviving entity and the successor entity issues to holders of
Series D Preferred Stock preferred shares with substantially
identical rights, privileges, preferences and voting powers as the
Series D Preferred Stock, or if the holders of Series D
Preferred Stock receive the greater of the full
5
trading price of the Series D Preferred
Stock on the date of the Event or the Liquidation Preference, 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 D 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 D Preferred Stock with respect to
payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up, shall not require the vote
of the holders of the Series D Preferred Stock.
(e)
Except as provided above,
the holders of Series D Preferred Stock are not entitled to
vote on any merger or consolidation involving the Corporation, on
any share exchange or on a sale of all or substantially all of the
assets of the Corporation.
(f)
The foregoing voting
provisions of this Section 5 shall not apply if, at or prior
to the time when the act with respect to which such vote would
otherwise be required shall be effected, all outstanding shares of
Series D Preferred Stock shall have been converted or
repurchased or called for conversion or repurchase in accordance
with Section 6 of the terms of the Series D Preferred
Stock upon proper notice or otherwise reacquired by the Corporation
and sufficient funds, in cash, shall have been deposited in trust
to effect such conversion or repurchase or other
reacquisition.
(g)
In any matter in which the
Series D Preferred Stock may vote (as expressly provided
herein), each share of Series D Preferred Stock shall be
entitled to one vote per $25.00 of Liquidation
Preference.
6.
Conversion
Rights.
(a)
Definitions. For the
purposes of this Section 6 of the terms of the Series D
Preferred Stock, the following terms shall have the following
meanings:
“Closing Sale Price” per share of
Common Stock on any date means the closing sale price per share
(or, if no closing sale price is reported, the average of the bid
and asked prices or, if more than one in either case, the average
of the average bid and the average asked prices) on such date as
reported by the NYSE or, if the Common Stock is not reported by the
NYSE, in composite transactions for the principal other U.S.
national or regional securities exchange on which the Common Stock
is traded. If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange on the relevant date, the
“Closing Sale Price” will be the last quoted bid price
for the Common Stock in the over-the-counter market on the relevant
date as reported by the National Quotation Bureau Incorporated or
similar organization. If the Common Stock is not so quoted, the
“Closing Sale Price” will be the average of the
mid-point of the last bid and asked prices for the Common Stock on
the relevant date from each of at least three independent
nationally recognized investment banking firms selected by the
Corporation for this purpose.
“Conversion Date” has the meaning
set forth in Section 6(b)(ii) of the terms of the
Series D Preferred Stock.
6
“Conversion Option” means the
Corporation’s option to convert some or all of the
Series D Preferred Stock into that number of shares of Common
Stock that are issuable at the then-applicable Conversion Rate (as
defined below) as described in Section 6(c) of the terms
of the Series D Preferred Stock.
“Conversion Price” per share of
Series D Preferred Stock as of any date means the Liquidation
Preference of such share of Series D Preferred Stock divided
by the then applicable Conversion Rate.
“Conversion Rate” means initially
0.2477 shares of Common Stock per $25.00 of Liquidation Preference,
subject to adjustment in certain events as set forth in this
Section 6 of the terms of the Series D Preferred
Stock.
“DTC” means The Depository Trust
Corporation or any successor entity.
“Effective Date” has the meaning
set forth in Section 6(c)(iii) of the terms of the
Series D Preferred Stock.
“Fundamental Change” shall be
deemed to have occurred at such time as:
(i)
the consummation of any
transaction or event (whether by means of a share exchange or
tender offer applicable to Common Stock, a liquidation,
consolidation, recapitalization, reclassification, combination or
merger of the Corporation or a sale, lease or other transfer of all
or substantially all of its consolidated assets) or a series of
related transactions or events pursuant to which all of the
outstanding shares of Common Stock are exchanged for, converted
into or constitutes solely the right to receive cash, securities or
other property more than 10% of which consists of cash, securities
or other property that are not, or upon issuance will not be,
traded on a national securities exchange;
(ii)
any “person”
or “group” (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended, whether or not applicable), other than the
Corporation, or any of the Corporation’s majority-owned
subsidiaries or any employee benefit plan of the Corporation or
such subsidiary, is or becomes the “beneficial owner,”
directly or indirectly, of more than 50% of the total voting power
in the aggregate of all classes of the Corporation’s capital
stock of then outstanding entitled to vote generally in elections
of directors; or
(iii)
during any period of 12
consecutive months after the date of original issuance of the
Series D Preferred Stock, persons who at the beginning of such
12 month period constituted the Corporation’s Board of
Directors, together with any new persons whose election was
approved by a vote of a majority of the persons then still
comprising the Corporation’s Board of Directors who were
either members of the Board of Directors at the beginning of such
period or whose election, designation or nomination for election
was previously so approved, cease for any reason to constitute a
majority of the Corporation’s Board of Directors.
“Fundamental Change Conversion
Right” has the meaning set forth in
Section 6(l)(i) of the terms of the Series D
Preferred Stock.
7
“Market Price” means, with respect
to any Fundamental Change Conversion Date, the average of the
Closing Sale Prices of the Common Stock for the ten consecutive
Trading Days ending on the third Trading Day prior to the
Fundamental Change Conversion Date, appropriately adjusted to take
into account the occurrence, during the period commencing on the
first Trading Day of such ten Trading Day period and ending on the
Fundamental Change Conversion Date of any event requiring an
adjustment of the Conversion Rate as described under
Section 6(h); provided that in no event shall the market price
be less than $0.01, subject to adjustment for share splits and
combinations, reclassifications and similar events.
“NYSE” means the New York Stock
Exchange, Inc.
“SEC” means the U.S. Securities and
Exchange Commission.
“Trading Day” means a day during
which trading in securities generally occurs on the NYSE or, if the
Common Stock is not quoted on the NYSE, then a day during which
trading in securities generally occurs on the principal U.S.
securities exchange on which the Common Stock is listed or, if the
Common Stock is not listed on a U.S. national or regional
securities exchange, then on the principal other market on which
the Common Stock is then traded or quoted.
(b)
Conversion at
Holder’s Option.
(i)
Holders of shares of
Series D Preferred Stock, at their option, may, at any time
and from time to time, convert some or all of their outstanding
shares of Series D Preferred Stock into Common Stock at the
then applicable Conversion Rate.
(ii)
The Corporation shall not
issue fractional shares of Common Stock upon the conversion of
shares of Series D Preferred Stock. Instead, the Corporation
shall pay the cash value of such fractional shares based upon the
Closing Sale Price of its Common Stock on the Trading Day (as
defined in this Section 6) immediately prior to (A) the
date on which the certificate or certificates, if any, representing
the shares of Series D Preferred Stock to be converted, if
certificated, are surrendered, accompanied by a written notice of
conversion and any required transfer taxes (the “Conversion
Date”), or (B) the Effective Date for the
Corporation’s Conversion Option, as the case may
be.
(iii)
A holder of shares of
Series D Preferred Stock is not entitled to any rights of a
common stockholder of the Corporation until such holder of shares
of Series D Preferred Stock has converted its shares of
Series D Preferred Stock or unless the Corporation has
exercised its Conversion Option, and only to the extent the shares
of Series D Preferred Stock are deemed to have been converted
into shares of Common Stock under the terms of the Series D
Preferred Stock.
(iv)
Notwithstanding anything
herein to the contrary, holders of shares of Series D
Preferred Stock may not convert their outstanding shares of
Series D Preferred Stock into Common Stock if such conversion
would cause the holder to violate the Ownership Limit (as defined
in Article VII of the Charter) or otherwise result in the
Corporation failing to qualify as a REIT.
8
(v)
Conversion Procedures. Holders of shares of Series D Preferred
Stock may convert some or all of their shares by surrendering to
the Corporation at its principal office or at the office of its
transfer agent, as may be designated by the Board of Directors, the
certificate or certificates, if any, for the shares of
Series D Preferred Stock to be converted, accompanied by a
written notice stating that the holder of shares of Series D
Preferred Stock elects to convert all or a specified whole number
of those shares in accordance with the provisions described in this
Section 6 and specifying the name or names in which the holder
of shares of Series D Preferred Stock wishes the certificate
or certificates, if any, for the shares of Common Stock to be
issued, if certificated. If the notice specifies a name or names
other than the name of the holder of shares of Series D
Preferred Stock, the notice shall be accompanied by payment of all
transfer taxes payable upon the issuance of shares of Common Stock
in that name or names. Other than such transfer taxes, the
Corporation shall pay any documentary, stamp or similar issue or
transfer taxes that may be payable in respect of any issuance or
delivery of shares of Common Stock upon conversion of shares of
Series D Preferred Stock. The date on which the Corporation
has received all of the surrendered certificate or certificates, if
any, the notice relating to the conversion and payment of all
required transfer taxes, if any, or the demonstration to the
Corporation’s satisfaction that those taxes have been paid,
shall be deemed the Conversion Date with respect to a share of
Series D Preferred Stock. As promptly as practicable after the
Conversion Date with respect to any shares of Series D
Preferred Stock, the Corporation shall (A) reflect the
issuance of such number of shares of Common Stock to which the
holders of shares of Series D Preferred stock, or the
transferee of such holder, shall be entitled on the stock records
of the Corporation, and (B) deliver or cause to be delivered
(i) certificates representing the number of validly issued,
fully paid and non-assessable shares of Common Stock, if then
certificated, to which the holders of shares of such Series D
Preferred Stock, or the transferee of the holder of such shares of
Series D Preferred Stock, shall be entitled and (ii) if
less than the full number of shares of Series D Preferred
Stock represented by the surrendered certificate or certificates,
if any, or specified in the notice, is being converted, a new
certificate or certificates, of like tenor, for the number of
shares represented by the surrendered certificate or certificates,
less the number of shares being converted, if the Series D
Preferred Stock is then certificated. This conversion shall be
deemed to have been made at the close of business on the Conversion
Date so that the rights of the holder of shares of Series D
Preferred Stock as to the shares being converted shall cease except
for the right to receive the conversion value, and, if applicable,
the person entitled to receive shares of Common Stock shall be
treated for all purposes as having become the record holder of
those shares of Common Stock at that time on that date.
(vi)
In lieu of the foregoing procedures, if the Series D Preferred
Stock is held in global certificate form, the holder of shares of
Series D Preferred Stock must comply with the procedures of
DTC to convert its beneficial interest in respect of the
Series D Preferred Stock represented by a global stock
certificate of the Series D Preferred Stock.
(vii)
If any shares of Series D Preferred Stock are to be converted
pursuant to the Corporation’s Conversion Option, the right of
a holder of such to voluntarily convert those shares of
Series D Preferred Stock shall terminate if the Corporation
has not received the conversion notice of such holder of such
shares of Series D Preferred Stock by 5:00 p.m., New York
City time, on the Business Day immediately preceding the date fixed
for conversion pursuant to the Corporation’s Conversion
Option.
9
(viii)
If more than one share of Series D Preferred Stock is
surrendered for conversion by the same holder at the same time, the
number of whole shares of Common Stock issuable upon conversion of
those shares of Series D Preferred Stock shall be computed on
the basis of the total number of shares of Series D Preferred
Stock so surrendered.
(c)
Corporation Conversion Option.
(i)
On or after April 20, 2013, the Corporation may exercise its
Conversion Option, as described below, but only if (A) the
Closing Sale Price of the Common Stock equals or exceeds 150% of
the then-applicable Conversion Price per share of the Series D
Preferred Stock for at least 20 Trading Days in a period of 30
consecutive Trading Days (including the last Trading Day of such
period) ending on the Trading Day immediately prior to the
Corporation’s issuance of a press release announcing the
exercise of its Conversion Option as described below in paragraph
(iii); and (B) on or prior to the Effective Date of the
exercise of its Conversion Option, the Corporation has either
declared and paid, or declared and set apart for payment, any
unpaid dividends that are in arrears on the Series D Preferred
Stock.
(ii)
If the Corporation converts less than all of the outstanding shares
of Series D Preferred Stock, the Corporation’s transfer
agent shall selec
|
