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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
Securities Exchange Act of 1934
Date of report (earliest event reported): June 8, 2005 
TAUBMAN CENTERS, INC.
(Exact name of registrant as specified in its charter)
 	 	 	 	 	
Michigan
(State of other jurisdiction
of incorporation)	 	1-11530
(Commission
File Number)	 	38-2033632
(I.R.S. Employer
Identification No.)	
 	 	 	
200 East Long Lake Road, Suite 300,
Bloomfield Hills, Michigan
(Address of principal executive office)	 	48303-0200
(Zip Code)	
Registrant’s telephone number, including area code: (248) 258-6800
Not applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

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Item 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT	
Item 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT	
Item 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR	
Item 9.01 FINANCIAL STATEMENTS AND EXHIBITS	
SIGNATURES	
EXHIBIT INDEX	
Underwriting Agreement	
Restated Articles of Incorporation	
Opinion of Honigman Miller Schwartz and Cohn LLP	
Opinion of Honigman Miller Schwartz and Cohn LLP	
Notice of Redemption	

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Item 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
     On June 8, 2005, Taubman Centers, Inc. (the “Company”) and its subsidiary, The Taubman Realty Group Limited Partnership (“TRG”) entered into an Underwriting Agreement (the “Underwriting Agreement”) with Wachovia Capital Markets, LLC, as Representative of the several underwriters named therein (the “Underwriters”). Pursuant to the Underwriting Agreement, the Company agreed to sell up to 3,680,000 shares of its 7.625% Series H Cumulative Redeemable Preferred Stock (the “Series H Preferred Stock”) in an underwritten public offering (the “Offering”), which includes an over-allotment option for up to 480,000 shares of the Series H Preferred Stock. The closing of the Offering is expected to occur on July 1, 2005. The Company estimates the net proceeds of the Offering, after deducting underwriting fees and commissions and expenses payable by the Company, but assuming no exercise of the over-allotment option by the underwriters, will be approximately $77.2 million. On June 9, 2005, the Underwriters exercised their over-allotment option for 280,000 shares of the Series H Preferred Stock. The Company will use the total net proceeds of the Offering to redeem 3,480,000 shares of its outstanding 8.30% Series A Cumulative Redeemable Preferred Stock (the “Series A Preferred Stock”), as more fully described below. The foregoing description is qualified in its entirety by reference to the Underwriting Agreement, a copy of which is filed as Exhibit 1.1 to this report.
     On June 10, 2005, the Company issued a Notice of Redemption (the “Redemption Notice”) to the holders of the Series A Preferred Stock, notifying such holders that the Company will redeem 3,480,000 of the Series A Preferred Stock on July 1, 2005, for an aggregate cash redemption price of $87,000,000, plus accrued and unpaid distributions. A copy of the Redemption Notice is filed as Exhibit 10.1 to this report. 
Item 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT.
     See the discussion in Item 1.01 above with respect to the Redemption Notice. 
Item 5.03 AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL YEAR.
     In connection with the Offering described in Item 1.01 above, the Company has filed a Certificate of Amendment to the Company’s Articles of Incorporation with the State of Michigan, which will be effective upon filing. The Certificate of Amendment classifies 3,480,000 of the Company’s authorized but unissued shares of preferred stock as 7.625% Series H Cumulative Redeemable Preferred Stock (the “Series H Preferred Stock”).
     The Series H Preferred Stock pays cumulative cash dividends from the date of original issuance at a rate of 7.625% per year of the $25.00 liquidation preference, or $1.90625 per share each year. Dividends are payable quarterly in arrears on or about the last day of March, June, September and December of each year, beginning on September 1, 2005.
     The Series H Preferred Stock is not redeemable prior to July 1, 2010. On or after July 1, 2010, the Company will be able to redeem the Series H Preferred Stock for cash, in whole or in part, at any time and from time to time, for a cash redemption price of $25.00 per share, plus all accrued and unpaid dividends to the redemption date. The Series H Preferred Stock has no stated maturity, will not be subject to any sinking fund or mandatory redemption and will not be convertible or exchangeable for any other property or securities. Holders of the Series H Preferred Stock will generally have no voting rights but will have limited voting rights if the Company fails to pay dividends for six or more quarters (whether or not consecutive) and in certain other events.
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     The Series H Preferred Stock ranks (a) junior to any other series of preferred stock established by the Company in the future, the terms of which specifically provide that such series ranks prior to the Series H Preferred Stock as to the payment of dividends and distributions of assets upon liquidation, winding up or dissolution, (b) on a parity with the Company’s 8.30% Series A Cumulative Redeemable Preferred Stock, 8.20% Series F Cumulative Redeemable Preferred Stock, 8% Series G Cumulative Redeemable Preferred Stock and any other series of preferred stock established by the Company in the future, the terms of which specifically provide that such series ranks on a parity with the Series H Preferred Stock as to the payment of dividends and distributions of assets upon liquidation, winding up or dissolution, and (c) prior to the Company’s common stock, Series B Non-Participating Convertible Preferred Stock and any other class or series of capital stock established by the Company in the future, the terms of which specifically provide that such class or series of capital stock shall rank junior to the Series H Preferred Stock as to the payment of dividends and distribution of assets upon liquidation, winding up or dissolution.
     A copy of the Company’s Restated Articles of Incorporation, as amended, which includes the terms of the Series H Preferred Stock, is being filed as Exhibit 3.1 to this report. 
Item 9.01 FINANCIAL STATEMENTS AND EXHIBITS.
     (c) Exhibits
     The following Exhibits are filed with this report: 

Exhibit	 	 	
Number	 	Description	
1.1	 	Underwriting Agreement, dated June 8, 2005, between Taubman Centers, Inc., The Taubman Realty Group Limited Partnership and Wachovia Capital Markets, LLC, as Representative of the several underwriters named therein.	
 	 	 	
3.1	 	Restated Articles of Incorporation, as amended as of June 10, 2005.	
 	 	 	
5.1	 	Opinion of Honigman Miller Schwartz and Cohn LLP with respect to the Series H Preferred Stock	
 	 	 	
8.1	 	Opinion of Honigman Miller Schwartz and Cohn LLP with respect to certain tax matters	
 	 	 	
10.1	 	Notice of Redemption issued to holders of 8.30% Series A Cumulative Redeemable Preferred Stock of Taubman Centers, Inc. dated June 10, 2005	
 	 	 	
23.1	 	Consent of Honigman Miller Schwartz and Cohn LLP (included in Exhibits 5.1 and 8.1)	
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SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: June 10, 2005	 	TAUBMAN CENTERS, INC.	
 	 	 	 	 	
	 	By:	 	/s/ Steven Eder	
	 	 	 	 	
	 	 	 	Steven E. Eder	
	 	 	 	Treasurer	
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EXHIBIT INDEX 

Exhibit	 	 	
Number	 	Description	
1.1	 	Underwriting Agreement, dated June 8, 2005, between Taubman Centers, Inc., The Taubman Realty Group Limited Partnership and Wachovia Capital Markets, LLC, as Representative of the several underwriters named therein.	
 	 	 	
3.1	 	Restated Articles of Incorporation, as amended as of June 10, 2005.	
 	 	 	
5.1	 	Opinion of Honigman Miller Schwartz and Cohn LLP with respect to the Series H Preferred Stock	
 	 	 	
8.1	 	Opinion of Honigman Miller Schwartz and Cohn LLP with respect to certain tax matters	
 	 	 	
10.1	 	Notice of Redemption issued to holders of 8.30% Series A Cumulative Redeemable Preferred Stock of Taubman Centers, Inc., dated June 10, 2005	
 	 	 	
23.1	 	Consent of Honigman Miller Schwartz and Cohn LLP (included in Exhibits 5.1 and 8.1)	
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Exhibit 1.1
3,200,000 SHARES
TAUBMAN CENTERS, INC.
7.625% SERIES H CUMULATIVE REDEEMABLE PREFERRED STOCK
(LIQUIDATION PREFERENCE $25 PER SHARE)
UNDERWRITING AGREEMENT
3,200,000 SHARES
TAUBMAN CENTERS, INC.
7.625% SERIES H CUMULATIVE REDEEMABLE PREFERRED STOCK
 (LIQUIDATION PREFERENCE $25 PER SHARE)
UNDERWRITING AGREEMENT
June 8, 2005
Wachovia Capital Markets, LLC
As Representative of the Several
Underwriters listed on Schedule A hereto c/o Wachovia Capital Markets, LLC
301 South College Street
Charlotte, North Carolina 28288
Ladies and Gentlemen:
Taubman Centers, Inc., a Michigan corporation (the "Company"), proposes to issue and sell to the several Underwriters named on Schedule A hereto (the "Underwriters"), for whom you are acting as the representative (the "Representative"), 3,200,000 shares of its 7.625% Series H Cumulative Redeemable Preferred Stock (the "Firm Shares"). In addition, the Company proposes to grant to the Underwriters an option to purchase up to an additional 480,000 shares of its 7.625% Series H Cumulative Redeemable Preferred Stock (the "Option Shares"). The Firm Shares and the Option Shares, if purchased, are hereinafter collectively called the "Shares."
The Company has filed with the U.S. Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 and Post-Effective Amendment No. 1 thereto (File No. 333-35433), including a prospectus, relating to the Shares. The registration statement, as amended at the time it became effective and as amended by post-effective amendments (including the Company's most recent Annual Report on Form 10-K filed with the Commission and amendments filed pursuant to Rule 462 of the Securities Act of 1933, as amended (the "1933 Act")) at the time of its respective effectiveness, is referred to as the "Registration Statement," and the prospectus included in the Registration Statement at the time it became effective under the Securities Act, as supplemented by the preliminary prospectus supplement dated June 6, 2005 and by a final prospectus supplement dated June 8, 2005 in the form first used to confirm sales of Shares, is referred to as the "Prospectus." For purposes of this Agreement, all references to the Registration Statement, Prospectus or preliminary prospectus or
to any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and schedules and other information which is "contained," "included" or "stated" in the Registration Statement or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the Securities Exchange Act of 1934, as amended (the "1934 Act"), which is or is deemed to be incorporated by reference in the Registration Statement or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company and The Taubman Realty Group Limited Partnership, a Delaware limited partnership ("TRG"), jointly and severally, represent and warrant to each of the Underwriters, as of the date hereof and as of the Closing Time (as defined below) (in each case, a "Representation Date") and agree with the Underwriters, as follows:
(a) The Company meets the requirements for use of Form S-3 under the 1933 Act. The Company also meets the requirements for use of Form S-3 under the 1933 Act in accordance with Section 2710(b)(7)(C)(i) of the Conduct Rules of NASD. Each of the Registration Statement and any Rule 462(b) Registration Statement has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company, after due inquiry, are contemplated by the Commission, and any request on the part of the Commission for additional information has been complied with. No order preventing or suspending the use of the Prospectus has been issued and no proceeding for that purpose has been instituted or, to the knowledge of the Company, after due inquiry, threatened by the Commission or the state securities authority of any jurisdiction. At the respective times the Registration Statement, any Rule 462(b) Registration Statement and any post-effective amendments thereto (including the filing of the Company's most recent Annual Report on Form 10-K with the Commission) became effective and at each Representation Date, the Registration Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto complied and at the Closing Time will comply in all material respects with the requirements of the 1933 Act and the rules and regulations of the Commission thereunder (the "1933 Act Regulations") and did not and at the Closing Time will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and at the Closing Time, the Prospectus and any amendments and supplements thereto did not and will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, that no representation or warranty is made as to statements in or omissions from the Registration Statement or the Prospectus made in reliance upon and in conformity with information furnished
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to the Company in writing by or on behalf of the Underwriters expressly for use in the Registration Statement or the Prospectus. If the Company elects to rely on Rule 434 of the 1933 Act Regulations, the Company will comply with the requirements of Rule 434. Each preliminary prospectus and Prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all material respects with the 1933 Act Regulations and, if applicable, each preliminary prospectus and the Prospectus delivered to the Underwriter for use in connection with the offering of the Shares will, at the time of such delivery, be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. If a Rule 462(b) Registration Statement is required in connection with the offering and sale of the Shares, the Company has complied or will comply with the requirements of Rule 111 under the 1933 Act Regulations relating to the payment of filing fees therefor.
(b) The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, at the date of the Prospectus and at the Closing Time, will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(c) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property, to conduct its business as described in the Prospectus, and to enter into and perform its obligations under this Agreement and is duly qualified to transact business and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification and as set forth on Schedule I, except to the extent that the failure to be so qualified or to be in good standing would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business or operations of the Company.
(d) Each of TRG and the Subsidiaries (as defined below) has been duly organized and is validly existing and in good standing as a corporation, partnership, limited liability company, trust or other legal entity under the laws of its jurisdiction of organization, with the requisite power and authority to carry on its business and to own or lease its properties as described in the Prospectus. As used in this Agreement, the term "Subsidiary" shall mean each consolidated subsidiary of the Company and each joint venture included in determining the Company's income from unconsolidated joint ventures in the consolidated financial statements for the Company for the most recent period included in the Prospectus.
(e) TRG and each Subsidiary is duly qualified or registered as a foreign partnership, limited liability company or corporation, as applicable, in good standing and authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified
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would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business or operations of TRG or such Subsidiary, as the case may be. Set forth on Schedule II is a list of all Subsidiaries that are "significant subsidiaries" of the Company as defined under
Section 1-02(w) of Regulation S-X and set forth on Schedule I is a list of the jurisdictions in which each such subsidiary is qualified or registered as a foreign partnership, limited liability company or corporation, as applicable.
(f) The Company is the managing general partner of TRG. The partnership agreement of TRG, as amended, is in full force and effect. The ownership by the Company of its interest in TRG, and the ownership (direct or indirect) by TRG of the capital stock, partnership interests or limited liability company interests of each Subsidiary, are as set forth in the Prospectus, free and clear of any liens or encumbrances except as described in the Prospectus and (in the case of TRG) except pursuant to that certain Shareholders Agreement dated as of November 20, 1992 (as amended and restated on October 30, 2001 and further amended by a First Amendment on December 31, 2001) among Taub-Co Management, Inc., TRG, The A. Alfred Taubman Restated Revocable Trust, as amended, and Taub-Co Holdings LLC. Neither the Company nor TRG owns any direct or indirect equity interest in any entity other than, in the case of the Company, TRG and the Subsidiaries or, in the case of TRG, the Subsidiaries.
(g) This Agreement has been duly authorized, executed, and delivered by the Company and TRG.
(h) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus. The authorized capital stock of the Company and the authorized partnership interests in TRG conform to the descriptions thereof contained in the Prospectus in all material respects. All outstanding shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable. There are no securities issued and outstanding that are convertible into or exchangeable for, and options, warrants or other rights outstanding to purchase or subscribe for, any shares of capital stock of the Company, except (1) as described in the Registration Statement and the Prospectus and (2) for any stock options granted under TRG's 1992 Incentive Option Plan, shares of common stock that are issuable upon exchange of outstanding units of limited partnership interest in TRG or Series B Non-Participating Convertible Preferred Stock, restricted stock units granted under The Taubman Company 2005 Long-Term Incentive Plan, shares issuable under the Company's Non-Employee Directors' Stock Grant Plan and Non-Employee Directors' Deferred Compensation Plan and shares of the Company's 8.20% Series F Cumulative Redeemable Preferred Stock that are issuable upon exchange of TRG's 8.20% Series F Cumulative Redeemable Preferred Equity ("Series F Preferred Equity"). None of the outstanding shares of capital stock of the Company was issued in violation of preemptive or other similar rights. Such outstanding shares of capital stock initially were offered and sold by the Company in compliance with all applicable laws (including, without limitation, federal and state securities laws).
(i) All issued and outstanding units of partnership interests of TRG have been duly authorized and validly issued and have been offered and sold or exchanged in compliance with all applicable laws (including, without limitation, federal and state securities laws). Except as disclosed in the Prospectus, no units of partnership interests of TRG are reserved for any purpose and there are no outstanding securities convertible into or exchangeable for any units of
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partnership interests of TRG and no outstanding options, rights (preemptive or otherwise) or warrants to purchase or subscribe for units of partnership interests of TRG or other securities of TRG. The terms of the units of partnership interests of TRG conform in all material respects to statements and descriptions related thereto contained in the Prospectus.
(j) The Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of the Shares will not be subject to any preemptive or similar rights. The Shares conform to the description thereof in the Prospectus in all material respects and such description conforms to the rights set forth in the Designating Amendment (as defined below). The certificate evidencing the Shares will be in substantially the form to be filed or incorporated by reference, as the case may be, as an exhibit to the Registration Statement and the form of stock certificate evidencing the Shares will comply with all applicable legal requirements, with all applicable requirements of the Company's Articles of Incorporation and By-laws and with the requirements of the New York Stock Exchange, Inc.
(k) KPMG LLP, which was appointed by the Company as its new outside auditor effective March 10, 2004, is and has been since that time an independent registered public accounting firm as required by the 1933 Act, the 1933 Act Regulations and the Public Company Accounting Oversight Board ("PCAOB") and is, and since October 22, 2003 has been, registered with PCAOB. KPMG LLP has audited and reported on the consolidated financial statements of the Company and the combined financial statements of the unconsolidated joint ventures of TRG for the year ended December 31, 2004 and as of the year ended December 31, 2004, and has performed a review in accordance with the American Institute of Certified Public Accountants Statement of Auditing Standards 100 of the consolidated financial statements of the Company and the combined financial statements of the unconsolidated joint ventures of TRG for the three months ended March 31, 2005 and as of March 31, 2005, each included in the Registration Statement and the Prospectus. Deloitte & Touche LLP, the accountants who have audited and reported on the consolidated financial statements of the Company and the combined financial statements of the unconsolidated joint ventures of TRG for the years ended December 31, 2003 and 2002 and as of the year ended December 31, 2003 and included in the Registration Statement and the Prospectus, was, at all relevant times, an independent certified accountant as required by the 1933 Act and the 1933 Act Regulations and registered with PCAOB.
(l) The consolidated financial statements of the Company and the combined financial statements of the unconsolidated joint ventures of TRG included in the Registration Statement and the Prospectus present fairly the financial position and results of operations of the Company and the Subsidiaries and the combined unconsolidated joint ventures of TRG at the respective dates and for the respective periods specified, and have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout such periods. The supporting schedules included in the Registration Statement present fairly the information required to be stated therein. The financial information and data included in the Registration Statement and the Prospectus present fairly the information included therein and have been prepared on a basis consistent with that of the financial statements included in the Registration Statement and the Prospectus and the books and records of the respective entities presented therein. Other than the financial statements (and schedules) included therein, no other financial statements (or schedules) are required by the 1933 Act or the 1933 Act Regulations to
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be included or incorporated by reference in the Registration Statement. Except as reflected or disclosed in the financial statements included in the Registration Statement or otherwise set forth in the Prospectus, none of the Company, TRG, or any Subsidiary is subject to any material indebtedness, obligation, or liability, contingent or otherwise.
(m) There are (i) no legal or governmental proceedings pending or threatened to which the Company, TRG, or any of the Subsidiaries is a party other than proceedings accurately described in the Registration Statement or the Prospectus and proceedings that would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business or operations of the Company, TRG, and the Subsidiaries, considered as a single enterprise ("Material Adverse Effect"), or on the power or ability of the Company or TRG to perform its obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement or the Prospectus; and (ii) no statutes, regulations, contracts, or other documents that are required to be described in the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required, except for this Agreement, the amendment to the Company's Articles of Incorporation designating the terms of the Shares (the "Designating Amendment"), and the amendment to TRG's partnership agreement creating and designating partnership units of substantially like kind and like number as the Shares, all of which will be filed prior to the Initial Closing Time (as defined below) under a Form 8-K or post-effective amendment to the Registration Statement that becomes effective upon filing under Rule 462(d) of the 1933 Act Regulations.
(n) Each of TRG and each Subsidiary has good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the business of TRG and the Subsidiaries, considered as a single enterprise, in each case free and clear of all liens, claims, encumbrances, and defects except such as are described in the Prospectus or such as do not materially interfere with the use made and proposed to be made of such property by TRG or such Subsidiary and do not materially affect the value of such property (except for reciprocal easement agreements or agreements relating to common area maintenance that do not materially interfere with the use made and proposed to be made of such property by TRG or such Subsidiary); and any real property and buildings held under lease by TRG and each Subsidiary are held by them under valid, subsisting, and enforceable leases with such exceptions as do not materially interfere with the use made and proposed to be made of such property and buildings by TRG or such Subsidiary, in each case except as described in or contemplated by the Registration Statement and the Prospectus.
(o) Each of the Company, TRG, and each Subsidiary is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; and the Company has no reason to believe that it, TRG, or any Subsidiary will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its businesses at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, assets, business, or operations of the Company, TRG, and the Subsidiaries, considered as a single enterprise, except as described in or contemplated by the Registration Statement and the Prospectus.
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(p) Each of the Company, TRG, and the Subsidiaries has all consents, authorizations, approvals, orders, certificates, and permits of and from, and has made all declarations and filings with, all federal, state, local, and other governmental authorities, all self-regulatory organizations, and all courts and other tribunals required for it to own, lease, license, and use its properties and assets and to conduct its business in the manner described in the Registration Statement and the Prospectus, except to the extent that the failure to obtain or file would not have a Material Adverse Effect, and none of the Company, TRG, or any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such consent, authorization, approval, order, certificate, or permit that, singly or in the aggregate, if the subject of an unfavorable decision, ruling, or finding, would materially and adversely affect the condition, financial or otherwise, or the earnings, assets, business, or operations of the Company, TRG, and the Subsidiaries, considered as a single enterprise.
(q) Since the dates as of which information is given in the Registration Statement, except as otherwise described therein, (i) there has been no material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, assets, business or operations of the Company, TRG, and the Subsidiaries, considered as a single enterprise ("Material Adverse Change"),
(ii) there have been no material transactions entered into by the Company, TRG, or to the knowledge of the Company, any Subsidiary, other than transactions in the ordinary course of business, (iii) none of the Company, TRG, or any Subsidiary has incurred any material obligation or liability, direct, contingent, or otherwise, (iv) there has been no material change in the short-term debt or long-term debt of the Company or TRG, and (v) except for regular quarterly dividends or distributions on the common stock of the Company and common partnership units in TRG in amounts per share that are consistent with past practice, regular quarterly dividends on the Company's 8.30% Series A Cumulative Redeemable Preferred Stock (the "Series A Preferred Stock") and regular quarterly distributions on the Series F Preferred Equity, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital stock or by TRG on any class of its partnership equity.
(r) None of the Company, TRG, or any Subsidiary is in violation of its partnership agreement, charter documents, or bylaws or in default in the performance of any obligation, agreement, or condition included in any bond, debenture, note, or any other evidence of indebtedness or in any indenture, instrument, or agreement to which the Company or TRG or, to the knowledge of the Company, any Subsidiary is a party or by which any of their respective properties may be bound or affected, except where any such violation or default would not have a Material Adverse Effect.
(s) None of the Company, TRG or any Subsidiary is in violation of its charter, bylaws, certificate of limited partnership, partnership agreement, limited liability company agreement or other organizational document (the "Organizational Documents'), as the case may be, or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which any such entity is a party or by which any of them may be bound, or to which any of its property or assets is subject (collectively, the "Agreements and Instruments") except for such violations or defaults that would not have a Material Adverse Effect. The execution and delivery by the Company and TRG of this
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Agreement, the Designating Amendment and the performance by the Company and TRG of their respective obligations hereunder, do not and will not violate or conflict with or constitute a breach of any of the terms or provisions of, or constitute a default under (i) the Organizational Documents, (ii) the Agreements and Instruments, or (iii) any law, regulation, ruling, order, judgment, or decree to which the Company, TRG or any Subsidiary or any of their respective properties may be subject.
(t) All authorizations, approvals, orders, consents, qualifications of, or filings with, any court or governmental or regulatory authority or agency that are necessary in connection with the offering, issuance, or sale of the Shares under this Agreement, and the performance by the Company and TRG of their respective obligations hereunder, have been obtained or made, except such as will be obtained on or prior to the Initial Closing Time under the 1933 Act and the 1933 Act Regulations, and except as may be required under state securities laws or regulations with respect to the Shares.
(u) Neither the Company nor TRG is an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended (the "1940 Act").
(v) Each of the Company, TRG, and each Subsidiary (i) is in compliance with any and all applicable foreign, federal, state, and local laws and regulations relating to the protection of human health and safety, the environment, or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"), (ii) has received all permits, licenses, and other approvals required of it under applicable Environmental Laws to conduct its respective businesses, and (iii) is in compliance with all terms and conditions of any such permit, license, or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses, or other approvals, or failure to comply with the terms and conditions of such permits, licenses, or approvals are otherwise disclosed in the Prospectus or would not, singly or in the aggregate, have a Material Adverse Effect.
(w) In the ordinary course of its business, TRG conducts a periodic review of the effect of Environmental Laws on the business, operations, and properties of it and the Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties, or compliance with Environmental Laws or any permit, license, or approval, any related constraints on operating activities, and any potential liabilities to third parties). On the basis of such review, TRG has reasonably concluded that such associated costs and liabilities would not, singly or in the aggregate, have a Material Adverse Effect.
(x) Neither the Company nor any of its directors, officers or controlling persons has taken or will take, directly or indirectly, any action resulting in the violation of Regulation M, or designed to cause or result under the 1934 Act or otherwise in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of any security of the Company or facilitation of the sale or resale of any such securities.
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(y) The assets of TRG do not constitute "plan assets" under the Employee Retirement Income Security Act of 1974, as amended.
(z) There are no contracts, agreements, or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the 1933 Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement, except for such contracts or agreements as are described in the Registration Statement (including the contracts and agreements incorporated by reference in the Registration Statement) and with which the Company has complied.
(aa) The statements set forth in the Prospectus under the captions "Description of Our Series H Preferred Stock" and "Description of Preferred Stock," insofar as they purport to constitute a summary of the terms of the Shares, and under "Underwriting," "Plan of Distribution" and "Material U.S. Federal Income Tax Consequences," insofar as they purport to describe factual matters or relate to matters of law or regulation or constitute summaries of documents described therein, are accurate and complete in all material respects.
(bb) Commencing with its taxable year ended December 31, 1992, the Company has continuously qualified to be taxed as a real estate investment trust pursuant to Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code") and the Company's present and contemplated organization, ownership, method of operation, assets, and income will enable it to so qualify for the taxable year ending December 31, 2005 and thereafter.
(cc) Each of the Company and TRG (i) makes and keeps accurate books and records and (ii) maintains internal accounting controls which provide reasonable assurance that (A) transactions are executed in accordance with management's authorization, (B) transactions are recorded as necessary to permit preparation of its financial statements and to maintain accountability for its assets, (C) access to its assets is permitted only in accordance with management's authorization and (D) the reported accountability for its assets is compared with existing assets at reasonable intervals.
(dd) The Company has established and maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the 1934 Act), which (i) are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to each of the Company's principal executive officer and principal financial officer by others within those entities, particularly during the preparation of the Prospectus;
(ii) have been evaluated for effectiveness as of the date of the filing of the Prospectus with the Commission; and (iii) are effective in all material respects to perform the functions for which they were established.
(ee) Based on its evaluation of its internal controls over financial reporting, the Company is not aware of (i) any significant deficiency or material weakness in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Company's ability to record, process, summarize and report financial information; (ii) any fraud, whether or not material, that involves management or other employees who have a
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significant role in the Company's internal control over financial reporting; or
(iii) any matter that would cause the Company's management to believe that the Company's internal control over financial reporting is no longer effective.
(ff) The Company's periodic reports filed pursuant to the 1934 Act and proxy statement contain all disclosures required by Section 303A of the Listing Company Manual of the New York Stock Exchange.
(gg) Neither the Company nor any of its Subsidiaries, nor any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its Subsidiaries, has (1) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (2) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, or (3) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
Any certificate signed by any officer of the Company and delivered to the Underwriters or to counsel for the Underwriters in connection with the offering of the Shares shall be deemed a representation and warranty by the Company to the Underwriters as to the matters covered thereby on the date of such certificate and, unless subsequently amended or supplemented, at each Representation Date subsequent thereto.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties contained herein and subject to the terms and conditions herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth on Schedule III, the number of Shares set forth on Schedule A opposite the name of such Underwriter, plus any additional number of Shares which such Underwriter may become obligated to purchase pursuant to the provisions of Section 10 hereof. The Company is advised by the Representative that the Underwriters propose to make a public offering of their respective portions of the Shares as soon as is advisable in the judgment of the Representative. The Company is further advised by the Representative that the Shares are to be offered to the public initially at a price per share as set forth on Schedule III.
(b) In addition, the Company grants to the Underwriters an option to purchase up to 480,000 Option Shares. Such option is granted solely for the purpose of covering over-allotments in the sale of Firm Shares. Option Shares shall be purchased severally for the account of the Underwriters, at the price set forth on Schedule III, in proportion to the number of Firm Shares set forth opposite the name of each Underwriter in Schedule A hereto. The option hereby granted may be exercised at any time and from time to time in whole or in part upon notice by the Representative to the Company, which notice may be given not later than 30 days after the date of this Agreement.
(c) The Company will deliver the Firm Shares, with transfer taxes thereon duly paid, to the Representative for the respective accounts of the Underwriters in book entry form through the facilities of The Depository Trust Company ("DTC") against payment of the
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purchase price in Federal (same day) funds by wire transfer to an account of the Company, in connection with the closing of such transactions, at the office of Hogan & Hartson L.L.P., 555 13th Street, N.W., Washington, D.C. 20004, at 10:00
A.M., New York time, on July 1, 2005 (unless postponed in accordance with the provisions of Section 10), or at such other time not later than ten business days thereafter as the Representative and the Company determine, such time being herein referred to as the "Initial Closing Time" and the date of such payment being herein referred as the "Initial Closing Date"). It is understood that each Underwriter has authorized the Representative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Firm Shares which it has agreed to purchase. The Representative may (but shall not be obligated to) make payment of the purchase price for the Firm Shares to be purchased by any Underwriter whose funds have not been received by the Initial Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(d) In addition, if the option to purchase Option Shares is properly exercised, the Company will deliver the Option Shares, with transfer taxes thereon duly paid, to the Representative for the respective accounts of the Underwriters in book entry form through the facilities of DTC against payment of the purchase price in Federal (same day) funds by wire transfer to an account of the Company, in connection with the closing of such transactions, at the office of Hogan & Hartson L.L.P., 555 13th Street, N.W., Washington, D.C. 20004, at such time as the Representative and the Company determine, such time being herein referred to as the "Option Closing Time" and the date of such payment being herein referred to as the "Option Closing Date." In the event that the Underwriters exercise their option to purchase Option Shares, Initial Closing Time and Option Closing Time are herein collectively referred to as the "Closing Time" and Initial Closing Date and Option Closing Date are herein collectively referred to as the "Closing Date." In the event that the Underwriters do not exercise their option to purchase Option Shares, the terms Closing Time and Closing Date shall have the same meaning as Initial Closing Time and Initial Closing Date, respectfully. It is understood that each Underwriter will authorize the Representative, for its account, to accept delivery of, receipt for, and make payment of the purchase price for, the Option Shares which it agrees to purchase. The Representative may (but shall not be obligated to) make payment of the purchase price for the Option Shares to be purchased by any Underwriter whose funds have not been received by the Option Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
(e) Certificates for the Shares shall be in such denominations and registered in such names as the Representative may request in writing at least one full business day before the Closing Time. The certificates for the Shares will be made available for examination by the Representative in Washington, D.C. not later than 10:00 A.M. (Eastern time) on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY AND TRG. Each of the Company and TRG covenants with the Underwriters as follows:
(a) The Company will notify the Representative immediately, and confirm the notice in writing, of: (i) the effectiveness of any post-effective amendment to the Registration Statement; (ii) the receipt of any comments from the Commission; (iii) any request by the
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Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information relating thereto; and
(iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose. The Company will make every reasonable effort to prevent the issuance of any such stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) The Company will prepare and timely file or transmit for filing with the Commission the Prospectus in accordance with Rule 424(b) under the 1933 Act Regulations.
(c) The Company will give the Representative notice of its intention to file or prepare any amendment to the Registration Statement (including any post-effective amendment) or any amendment or supplement to the Prospectus (including any revised Prospectus or prospectus supplement that the Company proposes for use in connection with the offering of the Shares that differs from the Prospectus, regardless of whether such revised Prospectus or prospectus supplement is required to be filed pursuant to Rule 424(b) under the 1933 Act Regulations), will furnish the Representative with copies of any such amendment or supplement a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file any such amendment or supplement or use any such Prospectus to which counsel for the Underwriters shall reasonably object.
(d) The Company will deliver to Wachovia Capital Markets, LLC one
(1) signed copy, and to the Underwriters as many conformed copies, of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein) as the Underwriters may reasonably request. The Company will deliver or cause to be delivered definitive certificates evidencing the Shares as soon as practicable after the Closing Date.
(e) If any event shall occur as a result of which it is necessary, in the reasonable opinion of counsel for the Underwriters, to amend or supplement the Prospectus in order to make the Prospectus not misleading in the light of the circumstances existing at the time it is delivered to a prospective investor or in order to otherwise comply with the 1933 Act or the 1934 Act, the Company will forthwith prepare and furnish to the Underwriters a reasonable number of copies of an amendment of or supplement to the Prospectus in form and substance reasonably satisfactory to counsel for the Underwriters and the Company's counsel, which will amend or supplement the Prospectus so that it will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time it is delivered to a prospective investor, not misleading, and otherwise comply with the 1933 Act and the 1934 Act.
(f) The Company will endeavor in good faith to qualify the Shares for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Underwriters may designate, provided that, in connection therewith, neither the Company nor any partner in TRG shall be required to qualify to do business in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Shares have been so qualified, the Company will file such statements and reports as may be required by the laws of
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such jurisdiction to continue such qualification in effect for so long as required for the distribution of the Shares.
(g) The Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) The Company and TRG will use the proceeds received by them from the sale of the Shares in the manner specified in the Prospectus under the caption "Use of Proceeds."
(i) At or prior to the Closing Time, TRG will take or cause to be taken all actions necessary to accept the proceeds from the offering, and designate such capital as Series H Preferred Equity and authorize guaranteed payments with respect to such Series H Preferred Equity in amounts equal to the dividends payable on the Shares, including, without limitation, the authorization, execution, and delivery of an amendment to the partnership agreement of TRG authorizing the designation of one or more series of Preferred Equity and the payment of guaranteed payments in respect any such series.
(j) The Company shall execute the Designating Amendment and file the same with the Michigan Department of Labor & Economic Growth Bureau of Commercial Services prior to the Closing Time.
(k) The Company shall use its best efforts to list the Shares at the Closing Time, and maintain such listing, with the New York Stock Exchange.
(l) The Company shall use its best efforts to continue to maintain its qualification as a "real estate investment trust" under the Code unless and until the Company's Board of Directors determines prospectively that it is in the best interest of the Company's shareholders for the Company not to maintain such qualification.
(m) The Company hereby agrees that during the period beginning on the date hereof and continuing to and including the date which is sixty (60) days after the date of this Agreement, it will not offer, sell, contract to sell, or otherwise dispose of any preferred stock of the Company or warrants to purchase preferred stock of the Company substantially similar to the Shares (other than the Shares) without the prior written consent of Wachovia Securities Inc.
SECTION 4. PAYMENT OF EXPENSES.
(a) TRG will pay all expenses incident to the performance of the Company's obligations under this Agreement, including: (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto; (ii) a discount or commission equal to $0.7875 per Share to the Underwriters and the costs and expenses relating to the transfer and delivery of the Shares to the Underwriters and to the printing of the certificates representing the Shares; (iii) the fees and disbursements of counsel for the Company and TRG; (iv) the fees and disbursements of the Company's or TRG's accountants; (v) the qualification of the Shares under state securities laws in accordance with the provisions of Section 3(f), including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection therewith
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and in connection with the preparation of the Blue Sky Memorandum; (vi) the printing and delivery to the Underwriters of copies of the Registration Statement as originally filed and of each amendment thereto, and of the Prospectus and any amendments or supplements thereto; (viii) any fees charged by rating agencies for the rating of the Shares; (ix) any transfer taxes imposed on the sale of the Shares to the Underwriters; (x) the costs and charges of any transfer agent, registrar, or depositary; (xi) all fees and expense in connection with the preparation and filing of a registration statement on Form 8-A relating to the Shares and all costs and expenses relating to the listing of the Shares on the New York Stock Exchange; and (xii) all other costs and expenses incident to the performance of the obligations of the Company and TRG under this Agreement for which provision is not otherwise made in this Section
4. It is understood, however, that except as expressly provided in this Section 4 and Sections 6 and 7, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them, and any advertising expenses connected with any offers they may make.
(b) If this Agreement is terminated by the Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i), TRG shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters, not to exceed $100,000.
SECTION 5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company herein included, to the performance by the Company and TRG of their respective obligations hereunder, and to the following further conditions:
(a) The Registration Statement, including any Rule 462(b) Registration Statement, has become effective under the 1933 Act and no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing information relating to the description of the Shares, the specific method of distribution and similar matters shall have been filed with the Commission in accordance with Rule
424(b)(1), (2), (3), (4) and/or (5), as applicable (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A), or, if the Company has elected to rely upon Rule 434 of the 1933 Act Regulations, a term sheet including the Rule 434 Information shall have been filed with the Commission in accordance with Rule 424(b)(7).
(b) Between the date of this Agreement and the Closing Time, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's or TRG's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act.
(c) At the Initial Closing Time, the Representative shall have received:
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(1) The favorable opinion, dated as of the Initial Closing Time, of Honigman Miller Schwartz and Cohn LLP, counsel for the Company and TRG, in form and substance satisfactory to the Representative, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation and in good standing under the Michigan Business Corporation Act;
(ii) TRG has been duly formed and is validly existing as a limited partnership and in good standing under the Delaware Revised Uniform Limited Partnership Act;
(iii) the Company has the power and authority to own its property and conduct its business as described in the Prospectus, and is duly qualified and in good standing and authorized to transact business in those jurisdictions set forth opposite its name on Schedule I;
(iv) TRG has the power and authority to own its property and conduct its business as described in the Prospectus, and is duly qualified and in good standing and authorized to transact business in those jurisdictions set forth opposite its name on Schedule I;
(v) each Subsidiary listed on Schedule II to this Agreement has been duly formed and is validly existing and in good standing under the laws of the jurisdiction of its formation, has the power and authority to own its property and conduct its business as described in the Prospectus, and is duly qualified and in good standing and authorized to transact business in those jurisdictions set forth opposite its name on Schedule I;
(vi) this Agreement has been duly authorized, executed and delivered by the Company and TRG. Each of the Company and TRG has the power and authority to enter into this Agreement and the Company has the power and authority to issue, sell and deliver to the Underwriters the Firm Shares to be issued and sold by the Company pursuant to this Agreement.
(vii) the Firm Shares have been duly authorized and, when delivered to and paid for by the Underwriters in accordance with this Agreement, will be validly issued, fully paid and non-assessable and free of any preemptive or similar rights to subscribe for shares of capital stock of the Company arising under the Michigan Business Corporation Act or the Articles of Incorporation or the By-laws of the Company. To such counsel's knowledge, the issuance of the Firm Shares is not subject to any contractual right to subscribe for the Shares under any contract to which the Company is a party. The terms of the Firm Shares and the terms of the Company's other authorized series of preferred stock ("Other Preferred Stock") conform in all material respects to all statements and descriptions related thereto contained in the Prospectus, and the relative rights, preferences, interests and powers of the Firm Shares and such Other Preferred
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Stock are as set forth in the Company's Articles of Incorporation, as amended, and all such provisions are valid under the Michigan Business Corporation Act. The form of the certificate used to evidence the Firm Shares complies, in all material respects, with all applicable requirements of the Michigan Business Corporation Act, with any applicable requirements of the Articles of Incorporation or By-laws of the Company and the requirements of the New York Stock Exchange;
(viii) upon the issuance of the Firm Shares and payment therefor by the Underwriters pursuant to this Agreement and the contribution of the proceeds from such issuance by the Company to TRG, Parity Preferred Equity (as defined in the partnership agreement of TRG) will be issued by TRG to the Company in exchange for such contribution pursuant to the partnership agreement of TRG. The partnership agreement of TRG has been duly authorized by all necessary partnership action of TRG and is a valid and binding obligation of TRG enforceable against TRG in accordance with its terms;
(ix) the issuance and sale of the Firm Shares and the execution by each of the Company and TRG of, and the performance by the Company of its obligations under, this Agreement, the Designating Amendment and the consummation of the transactions contemplated hereby by the Company and TRG (including, without limitation, the issuance of the Parallel TRG Interest) will not (A) violate any provision of applicable law or the Organizational Documents or any judgment, order, or decree of any governmental body, agency, or court having jurisdiction over the Company or TRG that, to the knowledge of such counsel, is applicable to the Company, TRG or any Subsidiary or (B) breach, or result in a default under, any Agreement and Instrument that, to the knowledge of such counsel, is binding upon and is material to the Company, TRG and the Subsidiaries, taken as a whole;
(x) no consent, approval, authorization, or order of, or qualification with, any governmental body or agency and no consent, approval, or authorization of any person is required for the performance by the Company and TRG of their respective obligations under this Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Firm Shares;
(xi) to the knowledge of such counsel, there are no legal or governmental proceedings pending or threatened to which the Company, TRG, or any Subsidiary is a party or to which any of their properties is subject, other than proceedings accurately described in the Registration Statement or the Prospectus, or proceedings that would not have a Material Adverse Effect or a material adverse effect on the power or ability of the Company or TRG to perform their respective obligations under this Agreement or to consummate the transactions contemplated by the Registration Statement and Prospectus or any statutes, regulations, contracts, or other documents that are required to be described in the
16
Prospectus or to be filed (by incorporation by reference or otherwise) as exhibits to the Registration Statement that are not described or filed as required;
(xii) except as described in the Registration Statement or the Prospectus, there is no violation of law known to such counsel relating to the protection of human health and safety or the environment (a) that pertains to the Company, TRG, or any Subsidiary, (b) that individually (or in the aggregate with other similar matters) is material to the business and operations of the Company, TRG, and the Subsidiaries taken as a whole, other than as described in the Registration Statement or the Prospectus, and (c) that is not so described;
(xiii) neither the Company nor TRG is an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the 1940 Act;
(xiv) the statements (1) set forth in the Prospectus under the captions "Description of Our Series H Preferred Stock" and "Description of Preferred Stock," insofar as they constitute a summary of the terms of the Firm Shares and the Other Preferred Stock, "Certain Provisions of the Articles of Incorporation and Bylaws," "Restrictions on Transfer," and "Risk Factors -- Our ability to pay dividends is further limited by the requirements of Michigan law," insofar as they purport to describe factual matters or relate to matters of law or regulation or constitute summaries of documents described therein, and (2) in the Registration Statement under Item 15 ("Indemnification of Directors and Officers"), are accurate and complete in all material respects;
(xv) the Registration Statement has been declared effective under the 1933 Act, and to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(xvi) the Registration Statement and Prospectus (except for financial statements and schedules included therein, as to which such counsel need not express any opinion) comply as to form in all material respects with the 1933 Act and the rules and regulations of the Commission thereunder.
(xvii) each document filed pursuant to the 1934 Act and incorporated or deemed incorporated by reference in the Prospectus (except for financial statements and schedules included therein, as to which such counsel need not express any opinion) complied as to form in all material respects with the requirements of the 1934 Act and the rules and regulations promulgated thereunder in effect at the date of their respective filings.
(xviii) to such counsel's knowledge, there are no persons with registration rights (or other similar rights) to have any securities of the Company registered pursuant to the Registration Statement or otherwise registered by the
17
Company under the 1933 Act in connection with the issuance and sale of the Firm Shares.
In addition, such counsel shall state that no facts have come to its attention that causes it to believe that the Registration Statement and the prospectus included therein at the time the Registration Statement became effective, as of the filing of the Company's Annual Report on Form 10-K for the year ended December 31, 2004 and as of the date of this Agreement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date of the Prospectus contained, and as of the Initial Closing Time contains, any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, that such counsel shall not be required to express any belief with respect to financial statements and schedules; and provided, further, that such counsel may state that its belief is based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments and supplements thereto and review and discussion of the contents thereof, but are without independent check or verification except as specified.
(2) The opinion of Honigman Miller Schwartz and Cohn LLP that (a) the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, effective for each of its taxable years ended December 31, 2001 through December 31, 2004 and its past, current and proposed method of operation will enable the Company to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 2005 and thereafter and (b) the discussion set forth in the Prospectus under the caption "Material U.S. Federal Income Tax Consequences" is a fair and accurate summary of the material Federal income tax consequences of the acquisition, ownership and disposition of the Company's Series H Cumulative Redeemable Preferred Stock.
(3) (i) The favorable opinion, dated as of the Initial Closing Time, of Hogan & Hartson L.L.P., counsel for the Underwriters, with respect to the matter set forth above in Section (5)(c)(1)(xv), and a statement (in such counsel's customary form) to the effect of the statements set forth in the first sentence of the paragraph immediately following Section 5(c)(1)(xviii); and (ii) the favorable opinion, dated as of the Initial Closing Time, of Dickinson Wright PLLC, special Michigan counsel for the Underwriters, with respect to the matters set forth above in Section (5)(c)(1)(i), (ii), the first sentence of (vi), the first sentence of (vii), and to the effect that statements under the caption "Description of Our Series H Preferred Stock," insofar as they constitute a summary of the terms of the Firm Shares and the Other Preferred Stock, are accurate and complete in all material respects. In giving their opinions, Hogan & Hartson L.L.P. and Dickinson Wright PLLC may rely, (A) as to all matters of fact, upon certificates and written statements of officers and employees of and accountants for each of the Company, TRG, and the Subsidiaries, (B) as to the qualification and good standing of each of the Company and TRG to do business in any state or jurisdiction, upon certificates of appropriate government officials or opinions of counsel in such jurisdictions, which opinions shall be in form and substance satisfactory to counsel for the Underwriters, and (C) with respect to matters of Delaware law that may be relevant to the opinion to be delivered by Dickinson Wright PLLC,
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upon the opinion of Honigman Miller Schwartz and Cohn LLP given pursuant to
Section 5(c)(1) above.
(d) At the Closing Time (1) the Registration Statement and the Prospectus shall include all statements which are required to be stated therein in accordance with the 1933 Act and the 1933 Act Regulations and in all material respects shall conform to the requirements of the 1933 Act and the 1933 Act Regulations, and neither the Registration Statement nor the Prospectus shall include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and no action, suit or proceeding at law or in equity shall be pending or, to the knowledge of the Company or TRG, threatened against the Company, TRG, or any Subsidiary which would be required to be set forth in the Prospectus other than as set forth therein, (2) there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Change from that set forth in the Registration Statement, (3) no proceedings shall be pending or, to the knowledge of the Company or TRG, threatened against the Company, TRG, or any Subsidiary before or by any Federal, state, or other commission, board, or administrative agency wherein an unfavorable decision, ruling, or finding might result in any Material Adverse Change other than as set forth in the Prospectus,
(4) the representations and warranties set forth in Section 1(a) hereof shall be accurate as though expressly made at and as of the Closing Time; (5) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time; and (6) no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Company or TRG, threatened by the Commission or by the state securities authority of any jurisdiction. The Underwriters shall have received, at the Closing Time, a certificate executed by the President or Chief Executive Officer and the Chief Financial Officer of the Company dated as of the Closing Time, evidencing compliance with the provisions of this subsection (d) and additionally stating that the conditions precedent set forth in this Section 5 have been satisfied or waived.
(e) At the time of execution of this Agreement, the Representative shall have received from each of Deloitte & Touche LLP and KPMG LLP a letter dated such date, in form and substance satisfactory to the Representative and counsel to the Underwriters, containing statements and information of the type ordinarily included in accountants' "comfort letters" as set forth in the American Institute of Certified Public Accountants Statement of Auditing Standards 72 to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and Prospectus.
(f) At the Closing Time, the Representative shall have received from each of Deloitte & Touche LLP and KPMG LLP a letter, dated as of the Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date not more than five days prior to the Closing Time.
(g) Prior to the Closing Time, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Shares as herein contemplated and
19
related proceedings, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein included; and all proceedings taken by the Company or TRG in connection with the issuance and sale of the Shares shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters.
(h) In the event that the Underwriters exercise their option to purchase the Option Shares, at the Option Closing Time, the Representative shall have received:
(1) The favorable opinion, dated as of the Option Closing Time, of Honigman Miller Schwartz and Cohn LLP, counsel for the Company and TRG, in form and substance satisfactory to the Representative, with respect to the matters set forth above in Section 5(c)(1) above, except that all references to Firm Shares in Section 5(c)(1) will be deemed to be references to Option Shares for purposes of the opinion delivered pursuant to this Section 5(d)(1).
(2) The opinion of Honigman Miller Schwartz and Cohn LLP that
(a) the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, effective for each of its taxable years ended December 31, 2001 through December 31, 2004 and its past, current and proposed method of operation will enable the Company to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 2005 and thereafter and (b) the discussion set forth in the Prospectus under the caption "Material U.S. Federal Income Tax Consequences" is a fair and accurate summary of the material Federal income tax consequences of the acquisition, ownership and disposition of the Company's Series H Cumulative Redeemable Preferred Stock.
(3) (i) The favorable opinion, dated as of the Option Closing Time, of Hogan & Hartson L.L.P., counsel for the Underwriters, with respect to the matter set forth above in Section (5)(c)(1)(xv), and a statement (in such counsel's customary form) to the effect of the statements set forth in the first sentence of the paragraph immediately following Section 5(c)(1)(xviii); and (ii) the favorable opinion, dated as of the Option Closing Time, of Dickinson Wright PLLC, special Michigan counsel for the Underwriters, with respect to the matters set forth above in Section (5)(c)(1)(i), (ii), the first sentence of (vi), the first sentence of (vii), and to the effect that statements under the caption "Description of Our Series H Preferred Stock," insofar as they constitute a summary of the terms of the Shares and the Other Preferred Stock, are accurate and complete in all material respects, except that all references to Firm Shares in Section 5(c)(1) will be deemed to be references to Option Shares for purposes of the opinions delivered pursuant to this Section 5(d)(2). In giving their opinions, Hogan & Hartson L.L.P. and Dickinson Wright PLLC may rely, (A) as to all matters of fact, upon certificates and written statements of officers and employees of and accountants for each of the Company, TRG, and the Subsidiaries, (B) as to the qualification and good standing of each of the Company and TRG to do business in any state or jurisdiction, upon certificates of appropriate government officials or opinions of counsel in such jurisdictions, which opinions shall be in form and substance satisfactory to counsel for the Underwriters, and (C) with respect to matters of Delaware law that may be relevant to the opinion to be delivered by Dickinson Wright PLLC, upon the opinion of Honigman Miller Schwartz and Cohn LLP given pursuant to Section 5(d)(1) above.
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(4) A certificate executed by the President or Chief Executive Officer and the Chief Financial Officer of the Company dated as of the Option Closing Time, evidencing compliance with the provisions of Section 5(d) hereof, and additionally stating that the conditions precedent set forth in this Section 5 have been satisfied or waived.
(5) A letter dated as of the Option Closing Time from each of Deloitte & Touche LLP and KPMG LLP, dated as of the Option Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant to Section 5(e) hereof, except that the specified date referred to shall be a date not more than five days prior to the Option Closing Time.
If any condition specified in this Section 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to the Closing Time, and such termination shall be without liability of any party to any other party except as provided in Section 4 hereof.
SECTION 6. INDEMNIFICATION.
(a) The Company and TRG agree to indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the 1934 Act, from and against any and all losses, claims, damages, or liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any claim) caused by any untrue statement or alleged untrue statement of a material fact contained in either the Registration Statement or any amendment thereto, any preliminary prospectus supplement or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto, including pursuant to
Section 3(e) hereof), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, or liabilities are caused by any such untrue statement or omission or alleged omission based upon information relating to any Underwriter contained in the Prospectus under the caption "Underwriters."
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to the Underwriter and contained in the Prospectus under the caption "Underwriters."
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to paragraph (a) or (b) of this Section 6 such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and
21
disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual and potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Wachovia Capital Markets, LLC, in the case of parties indemnified pursuant to paragraph (a) of this Section, and by the Company, in the case of parties indemnified pursuant to paragraph (b) of this Section. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
SECTION 7. CONTRIBUTION.
(a) If the indemnification provided for in Section 6 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein in connection with the offering of the Shares, then each indemnifying party, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the matters that resulted in such losses, claims, damages, or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriter, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Price to Public of the Shares. In the case of an untrue or alleged untrue statement of a material fact or the omission to state a material fact, the relative fault of the Company on the one hand and of the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement or the omission or alleged omission relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to
22
information, and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 7 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.
(b) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in paragraph (a) of this
Section 7. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, and liabilities referred to in paragraph (a) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained in this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company or its officers or directors or any person controlling the Company, and (iii) acceptance of and payment for any of the Shares.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All representations, warranties and agreements included in this Agreement, or included in certificates of officers of the Company submitted pursuant hereto, shall remain operative and in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or any controlling person, or by or on behalf of the Company, and shall survive delivery of the Shares.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to the Company, at any time prior to or at the Closing Time (i) if there has been, since the respective dates as of which information is given in the Registration Statement, any Material Adverse Change, or any development involving a prospective Material Adverse Change, regardless of whether arising in the ordinary course of business, or (ii) if there has occurred any outbreak of hostilities or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the reasonable judgment of the Representative, is material and adverse, (iii) if trading of any securities of the Company or TRG shall have been suspended involuntarily on any exchange or in any over-the-counter market, (iv) if trading generally on the New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange, or the Chicago Board of Trade has been suspended, or
23
minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities have been required, by either of said exchange or by order of the Commission or any other governmental authority, (v) if a banking moratorium has been declared by either Federal, New York, or Michigan authorities, or (vi) a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred.
(b) The Representative may also terminate this Agreement, by notice to the Company, at any time prior to or at the Closing Time, in the event that the occurrence of any of the events specified in paragraph (a) of this Section 9, either singly or together with any other such event, makes it, in the reasonable judgment of the Representative, impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus.
(c) If this Agreement is terminated pursuant to Section 9(a) or (b), such termination shall be without liability of any party to any other party except as provided in Section 4, and provided further that Sections 6, 7 and 13 hereof shall survive such termination.
SECTION 10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representative may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased, and arrangements satisfactory to the Representative and the Company for the purchase of such Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case, either the Representative or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
SECTION 11. NOTICES. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to Wachovia Capital Markets, LLC, 301 South College Street, 7th Floor, Charlotte, North Carolina 28288, Attention:
24
Debt Capital Markets, (telecopy: (704) 383-9165); and notices to the Company shall be directed to it at Taubman Centers, Inc., 200 East Long Lake Road, Bloomfield Hills, Michigan 48304; Attention: Treasurer (telephone: (248) 258-7258; telecopy: (248) 258-7275).
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company and (to the limited extent set forth above) TRG and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than those referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein or therein included. This Agreement and all conditions and provisions hereof and thereof are intended to be for the sole and exclusive benefit of the parties hereto and thereto and their respective successors and said controlling persons and officers, trustees and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Shares from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME; MISCELLANEOUS. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. COUNTERPARTS. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 15. HEADINGS. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us a counterpart hereof, whereupon this instrument along with all counterparts will become a binding agreement among you and the Company and TRG in accordance with its terms.
Very truly yours,
TAUBMAN CENTERS, INC.

By:  /s/ Steven Eder
    --------------------------------------------
Name:  Steven Eder
Title: Treasurer	

THE TAUBMAN REALTY GROUP LIMITED PARTNERSHIP
By: Taubman Centers, Inc., its Managing General
Partner

By: /s/ Steven Eder
   ----------------------------------------
Name: Steven Eder
Its: Authorized Signatory	

Accepted as of the date hereof:
Wachovia Capital Markets, LLC
Acting on behalf of itself
and the several Underwriters named herein.
By: Wachovia Capital Markets, LLC

By: /s/ Teresa Hee
   ---------------------------
Name: Teresa Hee
Title: Director	

26
 
SCHEDULE A

                                                                    Number of
                                                                     Shares
Underwriter                                                      To Be Purchased
-----------                                                      ---------------
Wachovia Capital Markets, LLC..................................     2,336,000
RBC Dain Rauscher Inc. ........................................       640,000
McDonald Investments Inc. .....................................       224,000

         Total.................................................     3,200,000
                                                                    =========	

SCHEDULE I
List of Foreign Jurisdictions

                  Entity                                      Jurisdictions
                  ------                                      -------------
Dolphin Mall Associates Limited Partnership          Florida

La Cienega Partners Limited Partnership              California

MacArthur Shopping Center, LLC                       Virginia

Oyster Bay Associates Limited Partnership            New York

Short Hills Associates, L.L.C.                       Michigan, New Jersey

Stony Point Associates, LLC                          Virginia

Stony Point Land, LLC                                Virginia

Tampa Westshore Associates Limited Partnership       Florida

Taub-Co Finance LLC                                  New York, Michigan

Taub-Co Kemp, Inc.                                   Texas

Taub-Co Management, Inc.                             Arizona, California, Colorado, Connecticut,
                                                     Delaware, Florida, Illinois, Massachusetts,
                                                     New Jersey, New York, Ohio, Pennsylvania,
                                                     South Carolina, Virginia

Taubman Asia Management Limited                      Hong Kong

Taubman Auburn Hills Associates                      Michigan
Limited Partnership

Taubman Centers, Inc.                                Arizona, California, Colorado, Connecticut,
                                                     Delaware, Florida, Massachusetts, Nevada,
                                                     New Jersey, New York, Ohio, Pennsylvania,
                                                     South Carolina, Virginia, New Jersey

Taubman Regency Square Associates, LLC               Virginia	

A-2

                  Entity                                      Jurisdictions
                  ------                                      -------------
The Taubman Company, LLC                             Arizona, California, Colorado, Connecticut,
                                                     Florida, Illinois, Michigan, Nevada, New
                                                     Jersey, New York, North Carolina, Ohio,
                                                     South Carolina, Texas, Virginia

The Taubman Realty Group Limited Partnership         Arizona, California, Colorado, Connecticut,
                                                     Florida, Illinois, Massachusetts, Michigan,
                                                     Nevada, New Jersey, New York, Ohio,
                                                     Pennsylvania, Texas, Virginia

TJ Palm Beach Associates Limited Partnership         Florida, Michigan

TRG Charlotte Land, LLC                              North Carolina

Willow Bend Kemp Limited Partnership                 Texas

Willow Bend Realty Limited Partnership               Texas

Willow Bend Shopping Center Limited                  Michigan, Texas
Partnership	

A-3
SCHEDULE II
List of Significant Subsidiaries
Dolphin Mall Associates Limited Partnership, a Delaware limited partnership Fairlane Town Center, LLC, a Michigan limited liability company La Cienega Partners Limited Partnership, a Delaware limited partnership Lakeside/Novi Land Partnership, LLC, a Michigan limited liability company MacArthur Shopping Center, LLC, a Delaware limited liability company Northlake Land LLC, a Delaware limited liability company Oyster Bay Associates Limited Partnership, a Delaware limited partnership Short Hills Associates, L.L.C., a Delaware limited liability company Stony Point Associates, LLC, a Delaware limited liability company Stony Point Land, LLC, a Delaware limited liability company Tampa Westshore Associates Limited Partnership, a Delaware limited partnership Taub-Co Finance LLC, a Delaware limited liability company Taub-Co Finance II, Inc., a Michigan corporation Taub-Co Kemp, Inc., a Michigan corporation Taub-Co Land Holdings, Inc., a Michigan corporation Taub-Co Management, Inc., a Michigan corporation Taub-Co Management IV, Inc., a Michigan corporation Taubman Asia Management Limited, a Cayman Island company Taubman Auburn Hills Associates Limited Partnership, a Delaware limited partnership
Taubman Regency Square Associates, LLC, a Delaware limited liability company The Taubman Company, LLC, a Delaware limited liability company The Taubman Realty Group Limited Partnership, a Delaware limited partnership TJ Palm Beach Associates Limited Partnership, a Delaware limited partnership TRG Charlotte Land, LLC, a Delaware limited liability company TRG Charlotte, LLC, a Delaware limited liability company Twelve Oaks Mall, LLC, a Michigan limited liability company Willow Bend Kemp Limited Partnership, a Delaware limited partnership Willow Bend Realty Limited Partnership, a Delaware limited partnership Willow Bend Shopping Center Limited Partnership, a Delaware limited partnership
A-4
SCHEDULE III
1. The initial offering price of the Shares shall be $25.00 per share.
2. The purchase price to be paid by the several Underwriters for the Shares shall be $24.2125 per share, being an amount equal to the initial public offering price set forth above less $0.7875 per share.
3. The dividend rate on the Shares shall be 7.625% per annum.
4. The maximum selling commission is $0.50 per share and the maximum reallowance discount is $0.45 per share.
A-5
 
Exhibit 3.1
AS AMENDED THROUGH JUNE 10, 2005
RESTATED ARTICLES OF INCORPORATION
OF
TAUBMAN CENTERS, INC.
1. These Restated Articles of Incorporation are executed on behalf of Taubman Centers, Inc. (the "Corporation") pursuant to the provisions of Section 643 of the Michigan Business Corporation Act (the "Act").
2. The present name of the Corporation is: Taubman Centers, Inc.
3. The corporation identification number (CID) assigned by the Bureau is:
011-602.
4. Except for the Corporation's present name, the Corporation has not used any name other than Taubman Realty, Inc.
5. The date of filing the original articles of incorporation was November 21, 1973.
6. These Restated Articles of Incorporation were duly adopted by the Board of Directors of the Corporation in accordance with the provisions of Section 641(4) of the Act.
7. The following Restated Articles of Incorporation only restate and integrate (and do not further amend) the Corporation's Second Amended and Restated Articles of Incorporation, as previously amended. There is no material discrepancy between the provisions of the Corporation's Second Amended and Restated Articles of Incorporation, as amended, and the following Restated Articles of Incorporation (referred to below as "these Amended and Restated Articles of Incorporation").
ARTICLE I
NAME
The name of the Corporation is: Taubman Centers, Inc.
ARTICLE II
PURPOSE
The purpose for which the Corporation is organized is to:
1. own, hold, develop and dispose of and invest in any type of retail real property or mixed use real property having a retail component of significant value in relation to the value of the entire mixed use real property, including any entity whose material assets include such real properties including, but not limited to,
partnership interests in The Taubman Realty Group Limited Partnership, a Delaware limited partnership, and any successor thereto ("TRG");
2. act as managing general partner of TRG;
3. at such time, if ever, as TRG distributes its assets to its partners, own, hold, manage, develop and dispose of said assets and in all other respects, carry on the business of TRG;
4. qualify as a REIT (as hereinafter defined); and
5. engage in any other lawful act or activity for which corporations may be organized under the Michigan Business Corporation Act in addition to any of the foregoing purposes, that is consistent with the Corporation's qualification as a REIT.
ARTICLE III
CAPITAL
1. Classes and Number of Shares.
The total number of shares of all classes of stock that the Corporation shall have authority to issue is 500,000,000 shares. The classes and the aggregate number of shares of stock of each class are as follows:
250,000,000 shares of Common Stock, par value $0.01 per share (the "Common Stock"), which shall have the rights and limitations set forth below.
250,000,000 shares of preferred stock (the "Preferred Stock"), which may be issued in one or more series having such relative rights, preferences, priorities, privileges, restrictions, and limitations as the Board of Directors may determine from time to time.
2. Certain Powers, Rights, and Limitations of Capital Stock.
(a) Common Stock. Subject to the rights, preferences, and limitations that the Board of Directors designates with respect to any series of Preferred Stock, a statement of certain powers, rights, and limitations of the shares of the Common Stock is as follows:
(i) Dividend Rights. The holders of shares of the Common Stock shall be entitled to receive such dividends as may be declared by the Board of Directors of the Corporation with respect to the Common Stock, subject to the preferential rights of any series of Preferred Stock designated by the Corporation's Board of Directors.
2
(ii) Rights Upon Liquidation. Subject to the provisions of Subsection (e) of this Section 2 of this Article III, in the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of, the Corporation, each holder of shares of the Common Stock shall be entitled to receive, ratably with each other holder of shares of the Common Stock, that portion of the assets of the Corporation available for distribution to its holders of shares of Common Stock as the number of shares of the Common Stock held by such holder bears to the total number of shares of Common Stock (including shares of Common Stock that have become Excess Stock) then outstanding.
(b) Voting Rights. Subject to the provisions of Subsection (e) of this
Section 2 of this Article III, the holders of shares of the Common Stock shall be entitled to vote on all matters (for which a common shareholder shall be entitled to vote thereon) at all meetings of the shareholders of the Corporation, and shall be entitled to one vote for each share of the Common Stock entitled to vote at such meeting. Any action to be taken by the shareholders, other than the election of directors or adjourning a meeting, including, but not limited to, the approval of an amendment to these Amended and Restated Articles of Incorporation (other than an amendment by the Board of Directors to establish the relative rights, preferences, priorities, privileges, restrictions, and limitations of Preferred Stock as provided in Subsection (c) of this Section 2 of this Article III, which amendment by the Board of Directors shall require no action to be taken by the shareholders), shall be authorized if approved by the affirmative vote of two-thirds of the shares of Capital Stock entitled to vote thereon. Directors shall be elected if approved by a plurality of the votes cast at an election.
(c) Preferred Stock. The Preferred Stock shall have such relative rights, preferences, priorities, privileges, restrictions, and limitations as the Board of Directors may determine from time to time by one or more amendments to these Amended and Restated Articles of Incorporation.
(i) Series A Preferred Stock. Subject in all cases to the other provisions of this Section 2 of this Article III, including, without limitation, those provisions restricting the Beneficial Ownership and Constructive Ownership of shares of Capital Stock and those provisions with respect to Excess Stock, the following sets forth the designation, preferences, limitations as to dividends, voting and other rights, and the terms and conditions of redemption of the Series A Preferred Stock (defined below) of the Corporation.
(a) There is hereby established a series of Preferred Stock designated "8.30% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share" (the "Series A Preferred Stock"),which shall consist of 8,000,000 authorized shares.
(b) All shares of Series A Preferred Stock redeemed, purchased, exchanged, or otherwise acquired by the Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock.
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(c) The Series A Preferred Stock shall, with respect to dividend rights, rights upon liquidation, winding up or dissolution, and redemption rights, rank (i) junior to any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation, the terms of which specifically provide that such series shall rank prior to the Series A Preferred Stock as to the payment of dividends and distribution of assets upon liquidation (the "Senior Preferred Stock"), (ii) pari passu with any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation, the terms of which specifically provide that such series shall rank pari passu with the Series A Preferred Stock as to the payment of dividends and distribution of assets upon liquidation (the "Parity Preferred Stock"), and (iii) prior to any other class or series of Capital Stock, including, without limitation, the Common Stock of the Corporation, whether now existing or hereafter created (collectively, the "Junior Stock").
(d) (1) Subject to the rights of any Senior Preferred Stock, the holders of the then outstanding shares of Series A Preferred Stock shall be entitled to receive, as and when declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the annual rate of 8.30% of the $25.00 per share liquidation preference (i.e., $2.075 per annum per share). Such dividends shall accrue and be cumulative from the date of original issue and shall be payable in equal quarterly amounts in arrears on or before the last day of each March, June, September, and December or, if such day is not a business day, the next succeeding business day (each, a "Dividend Payment Date") (for the purposes of this Subparagraph (1) of this Paragraph (d), a "business day" is any day, other than a Saturday, Sunday, or legal holiday, on which banks in Detroit, Michigan, are open for business). The first dividend, which shall be paid on December 31, 1997, will be for less than a full quarter. All dividends on the Series A Preferred Stock, including any dividend for any partial dividend period, shall 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 15th day of the calendar month in which the applicable Dividend Payment Date falls or on such other date designed by the Board of Directors of the Corporation for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each, a "Dividend Record Date").
(2) No dividends on the Series A Preferred Stock shall be declared by the Board of Directors or paid or set apart for payment by the Corporation at such time as any agreement of the Corporation, including any agreement relating to its indebtedness, prohibits such
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declaration, payment, or setting apart for payment or provides that such declaration, payment, or setting apart for payment would constitute a breach of, or a default under, such agreement or if such declaration, payment, or setting aside shall be restricted or prohibited by law.
(3) Dividends on the Series A Preferred Stock shall accrue and be cumulative regardless of whether the Corporation has earnings, regardless of whether there are funds legally available for the payment of such dividends, and regardless of whether such dividends are declared. Accrued but unpaid dividends on the Series A Preferred Stock will accumulate as of the Dividend Payment Date on which they first become payable. Except as set forth below in this Subparagraph (3), no dividends shall be declared or paid or set apart for payment on any Common Stock or any other series of Preferred Stock ranking, as to dividends, on a parity with or junior to the Series A Preferred Stock (other than a dividend in shares of Junior Stock) 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 A Preferred Stock for all past dividend periods and the then current dividend period. When dividends are not paid in full (and a sum sufficient for such full payment is not so set apart) upon the Series A Preferred Stock and the shares of any other series of Preferred Stock ranking on a parity as to dividends with the Series A Preferred Stock, all dividends declared upon the Series A Preferred Stock and any other series of Preferred Stock ranking on a parity as to dividends with the Series A Preferred Stock shall be declared pro rata, so that the amount of dividends declared per share of Series A 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 A 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. No interest shall be payable in respect of any dividend payment on the Series A Preferred Stock that may be in arrears. Holders of shares of the Series A 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 A Preferred Stock as provided above. Any dividend payment made on shares of the Series A Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares that remains payable.
(4) Except as provided in Subparagraph (3) of this Paragraph (d) of this Item (i) of this Subsection (c) of this
Section 2 of this Article III, unless full cumulative dividends on the Series A 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
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all past dividend periods and the then current dividend period: (i) no dividends (other than in shares of Junior Stock) 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 Preferred Stock ranking junior to or on a parity with the Series A Preferred Stock as to dividends or upon liquidation); and (ii) no shares of Common Stock (or any other Preferred Stock of the Corporation ranking junior to or on a parity with the Series A Preferred Stock as to dividends or upon liquidation) shall be redeemed, purchased, or otherwise acquired for any consideration (nor shall any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for Junior Stock).
(5) If for any taxable year the Corporation elects to designate as "capital gains dividends" (as defined in Section 857 of the Code) any portion (the "Capital Gains Amount") of the dividends paid or made available for the year to holders of all classes of Capital Stock (the "Total Dividends"), then the portion of the Capital Gains Amount that shall be allocable to the holders of Series A Preferred Stock shall be the amount that the total dividends paid or made available to the holders of the Series A Preferred Stock for the year bears to the Total Dividends.
(e) Subject to the rights of any Senior Stock, upon any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation, and before any distribution of assets shall be made in respect of any Junior Stock, the holders of the Series A Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its shareholders a liquidation preference of $25.00 per share in cash (or property having a fair market value as determined by the Board of Directors valued at $25.00 per share), plus an amount equal to any accrued but unpaid dividends to the date of payment. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series A Preferred Stock shall have no right or claims to any of the remaining assets of the Corporation. Neither the consolidation or merger of the Corporation with or into any other corporation, trust, or entity (or of any other corporation with or into the Corporation) nor the sale, lease, or conveyance of all or substantially all of the property or business of the Corporation shall be deemed to constitute a liquidation, dissolution or winding up of the Corporation for the purpose of this Paragraph (e) of this Item (i).
(f) (1) The Series A Preferred Stock is not redeemable prior to October 3, 2002. On and after October 3, 2002, the Corporation, at its option upon not less than 30 nor more than 60 days' written notice, may redeem shares of the Series A Preferred Stock, in whole or in part, at any time and from time to time, for a cash redemption price of $25.00 per
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share, plus all accrued and unpaid dividends to the date fixed for redemption (except as provided below).
(2) The redemption price of the Series A Preferred Stock (other than the portion thereof consisting of accrued but unpaid dividends) shall be payable solely out of the sale proceeds of other "capital stock" of the Corporation. For purposes of the preceding sentence, the term "capital stock" means any equity securities of the Corporation (including Common Stock and Preferred Stock), shares, interest, participation, or other ownership interests (however designated) and any rights (other than debt securities convertible into or exchangeable for equity securities) or options to purchase any of the foregoing. Holders of Series A Preferred Stock to be redeemed shall surrender such shares at the 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. If notice of redemption has been given and if the Corporation has set aside in trust the funds necessary for the redemption, then from and after the redemption date: (i) dividends shall cease to accrue on such shares of Series A Preferred Stock; (ii) such shares of Series A Preferred Stock shall no longer be deemed outstanding; and (iii) all rights of the holders of such shares shall terminate, except the right to receive the redemption price. If less than all of the outstanding Series A Preferred Stock is to be redeemed, the Series A 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 Corporation.
(3) Unless full cumulative dividends on all shares of Series A 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, no shares of Series A Preferred Stock shall be redeemed unless all outstanding shares of Series A Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series A Preferred Stock (except by exchange for Junior Stock); however, the foregoing shall not prevent the purchase or acquisition of shares of Series A Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Series A Preferred Stock.
(4) Notice of redemption shall 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 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
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Series A Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any shares of Series A 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 A Preferred Stock to be redeemed; (iv) the place or places where the Series A 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 fewer than all shares of the Series A Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series A Preferred Stock to be redeemed from such holder.
(5) The holders of Series A Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payable with respect to such Series A Preferred Stock on the corresponding Dividend Payment Date notwithstanding the redemption thereof between such Dividend Record Date and the corresponding Dividend Payment Date or the Corporation's default in the payment of the dividend due. Except as provided above, the Corporation will make no payment or allowance for unpaid dividends, regardless of whether in arrears, on called Series A Preferred Stock.
(6) The Series A Preferred Stock has no stated maturity and shall not be subject to any sinking fund or mandatory redemption. The Series A Preferred Stock is not convertible into any other securities of the Corporation, but is subject to the Excess Stock (and all other) provisions of this Article III.
(g) (1) Except as may be required by law or as otherwise expressly provided in this Item (i) of this Subsection (c) of this
Section 2 of this Article III, the holders of Series A Preferred Stock shall not be entitled to vote. On all matters with respect to which the Series A Preferred Stock is entitled to vote, each share of Series A Preferred Stock shall be entitled to one vote.
(2) Whenever dividends on the Series A Preferred Stock are in arrears for six or more quarterly periods, the number of directors then constituting the Board of Directors shall be increased by two, and the holders of Series A Preferred Stock (voting separately as a class with all other series of Preferred Stock upon which like voting rights have been conferred and are exercisable) ("Voting Parity Preferred") shall have the right to elect two directors of the Corporation at a special meeting called by the holders of record of at least 10% of the Series A Preferred Stock or at least 10% of any other Voting Parity Preferred so in arrears
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(unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders) or at the next annual meeting of shareholders, and at each subsequent annual meeting, until all dividends accumulated on the Series A Preferred Stock for the past dividend periods and the then current dividend period have been fully paid or declared and a sum sufficient for the payment of such dividends has been set aside for payment. If and when all accumulated dividends and the dividend for the then current dividend period on the Series A Preferred Stock shall have been paid in full or set aside for payment in full, the holders of the Series A Preferred Stock shall be divested of the foregoing voting rights, and if all accumulated dividends and the dividend for the then current period have been paid in full or set aside for payment in full on all series of Voting Parity Preferred, the term of office of each director so elected by the holders of the Series A Preferred Stock and the Voting Parity Preferred shall terminate.
(3) As long as any shares of Series A Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of Series A Preferred Stock (voting as a separate class): (i) authorize or create, or increase the authorized or issued amount of, any Capital Stock ranking senior to the Series A Preferred Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution, or winding up or reclassify any authorized Capital 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 (ii) amend, alter, or repeal the provisions of these Amended and Restated Articles of Incorporation, 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 A Preferred Stock or the holders thereof; however, as long as the Series A Preferred Stock remains outstanding with its terms materially unchanged, taking into account that upon the occurrence of an Event, the Corporation may not be the surviving entity, the occurrence of an Event described in clause (ii) above of this Subparagraph (3) shall not be deemed to materially and adversely affect such rights, preferences, privileges, or voting power of the holders of Series A Preferred Stock, and (x) any increase in the amount of the authorized Preferred Stock or the creation or issuance of any other series of Preferred Stock, or (y) any increase in the amount of authorized shares of the Series A Preferred Stock or any other series of Preferred Stock, in each case ranking on a parity with or junior to the Series A 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.
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(4) Notwithstanding the foregoing, the Series A Preferred Stock shall not be entitled to vote, and the foregoing voting provisions shall not apply, if at or prior to the time when the act with respect to which such vote would otherwise be required is effected, all outstanding shares of the Series A Preferred Stock have been redeemed or called for redemption, and sufficient funds have been deposited in trust for the benefit of the holders of the Series A Preferred Stock to effect such redemption.
(ii) Series B Preferred Stock. Subject in all cases to the other provisions of this Section 2 of this Article III, including, without limitation, those provisions restricting the Beneficial Ownership and Constructive Ownership of shares of Capital Stock and those provisions with respect to Excess Stock, the following sets forth the designation, preference, limitation as to dividends, voting, and other rights of the Series B Preferred Stock (defined below) of the Corporation. Terms that are used and not otherwise defined in this Item (ii) have the meanings ascribed to them elsewhere in these Amended and Restated Articles of Incorporation or, if not so defined, their conventional meanings.
(a) There is hereby established a series of Preferred Stock designated "Series B Non-Participating Convertible Preferred Stock," (the "Series B Preferred Stock"), which shall initially consist of 40,000,000 authorized shares, subject to one or more increases in the authorized shares of the series by a further amendment(s) to these Amended and Restated Articles of Incorporation to permit the issuance of additional shares upon the issuance of additional Units (defined below) to Registered Unitholders (defined below) and to accommodate stock dividends or stock splits as provided below.
(b) All shares of Series B Preferred Stock purchased, exchanged, or otherwise acquired by the Corporation or that are converted into Common Stock shall be restored to the status of authorized but unissued shares of Preferred Stock.
(c) Except upon the dissolution, liquidation, or winding up of the Corporation, the Series B Preferred Stock shall have no right to any assets of the Corporation, and (except as expressly set forth in this Item (ii)) shall have no right to cash dividends or distributions (from whatever source), but shall have the preference rights upon dissolution, liquidation, and winding up that are set forth in this Item (ii) of this Section 2. The Series B Preferred Stock ranks (i) junior to the Series A Preferred Stock and junior to any Parity Preferred Stock or Senior Preferred Stock (the Series A Preferred Stock, the Parity Preferred Stock, and the Senior Preferred Stock are collectively referred to as the "Series B Senior Preferred Stock"), (ii) pari passu with any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation,
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the terms of which specifically provide that such series shall rank pari passu with the Series B Preferred Stock as to the distribution of assets upon liquidation (the "Series B Parity Preferred Stock"), and (iii) prior to any other class or series of Capital Stock, including, without limitation, the Common Stock of the Corporation, whether now existing or hereafter created (collectively, the "Series B Junior Stock"). If shares of Common Stock or other securities are distributed on the Common Stock or other voting Capital Stock (as a stock dividend or otherwise) (a "Voting Stock Dividend"), then each share of Series B Preferred Stock shall receive a distribution of the number of shares (or warrants or rights to acquire shares, as the case may be) of Series B Preferred Stock that would then be necessary to preserve the relative voting power of the Series B Preferred Stock (i.e., in relation to the voting power of all outstanding shares of voting Capital Stock) that existed prior to the Voting Stock Dividend.
(d) Subject to the rights of the Series B Senior Preferred Stock, upon any voluntary or involuntary dissolution, liquidation, or winding up of the affairs of the Corporation, and before any distribution of assets shall be made in respect of any Series B Junior Stock, the holders of the Series B Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its shareholders a liquidation preference of $0.001 per share in cash (or property having a fair market value as determined by the Board of Directors valued at $0.001 per share). After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series B Preferred Stock shall have no right or claims to any of the remaining assets of the Corporation.
(e) The Series B Preferred Stock has no stated maturity and shall not be subject to redemption; however, the foregoing shall not be a restriction on the Corporation's otherwise lawful redemption of shares of Series B Preferred Stock on a consensual basis with each holder of the shares to be redeemed.
(f) (1) The Series B Preferred Stock is convertible, and will be automatically converted under the circumstances described below, into Common Stock at a conversion ratio of 14,000:1; i.e., each 14,000 shares of Series B Preferred Stock may be converted into one share of Common Stock. In lieu of issuing less than a full share (a "fractional share") of Common Stock upon the conversion of fewer than 14,000 shares (or an integral multiple of 14,000 shares) of Series B Preferred Stock, the Corporation shall redeem the shares of Series B Preferred Stock that would otherwise be convertible into a fractional share of Common Stock (the "Scrip Shares"), and from and after the date of the conversion, the Scrip Shares shall cease to be outstanding shares of Series B Preferred Stock, shall not constitute any other class of Capital Stock, and shall
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entitle the holder only to receive the cash redemption price, as provided below.
(2) The Corporation will initially issue the Series B Preferred Stock to each Person who, on the initial date of issuance, is a Registered Unitholder at the rate of one share for each Unit held by such Registered Unitholder, if such Registered Unitholder subscribes for the shares and pays to the Corporation an amount equal to the product of $0.001 multiplied by the number of shares of Series B Preferred Stock to be issued to him. Shares of Series B Preferred Stock may be issued only in certificated, fully registered form and may be issued only to Registered Unitholders. The Corporation may issue fractional shares of Series B Preferred Stock. Following the initial issuance of the Series B Preferred Stock, each Registered Unitholder acquiring one or more newly issued Units shall be entitled to receive from the Corporation shares of Series B Preferred Stock equal in number to the number of newly issued Units acquired by such Registered Unitholder, provided that the Registered Unitholder subscribes for the shares and pays to the Corporation an amount equal to the product of $0.001 multiplied by the number of shares of Series B Preferred Stock to be issued to him. Except as provided below, a holder of shares of Series B Preferred Stock may freely effect a transfer of the shares to any Person (subject to the Transfer being in compliance with, or (to the satisfaction of the Corporation) exempt from, applicable securities laws and regulations). Upon a Registered Unitholder's Transfer of one or more Units to another Registered Unitholder, then (to the extent of the transferring Registered Unitholder's then ownership of Series B Preferred Stock) the transferring Registered Unitholder shall be deemed to have transferred to the transferee of the Units (i) shares of Series B Preferred Stock equal in number to the number of transferred Units or if, after giving effect to the Unit Transfer, the transferring Registered Unitholder will cease to own any Units,
(ii) all of the transferring Registered Unitholder's shares of Series B Preferred Stock. Notwithstanding the foregoing, a Registered Unitholder shall have the right (which shall be exercised by delivering written notice at the time of the Unit Transfer to the Corporation and the transferee of the Units) to negate the deemed simultaneous Transfer of Series B Preferred Stock. A Registered Unitholder desiring to sell (by exchange or otherwise) Units to the Corporation shall be required to surrender to the Corporation for conversion shares of Series B Preferred Stock equal in number to the number of Units being sold (by exchange or otherwise), but only if and to the extent that, after giving effect to the Corporation's proposed purchase of Units, the number of outstanding shares of Series B Preferred Stock will exceed the aggregate number of Units held by all Registered Unitholders. Shares of Series B Preferred Stock surrendered for conversion as provided in the immediately preceding sentence shall be converted into Common Stock, as provided in subparagraph (1) of this
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Paragraph (f), upon the Corporation's purchase of the Units of the surrendering Registered Unitholder, and the Corporation shall promptly redeem any resulting Scrip Shares for cash, as provided below. Except as provided above in this subparagraph (f)(2), a holder of Series B Preferred Stock shall have no voluntary conversion rights with respect to the Series B Preferred Stock, but shares of Series B Preferred Stock shall automatically convert into Common Stock as provided in subparagraph (3) of this Paragraph (f).
(3) After giving effect to a Transfer of shares of Series B Preferred Stock to a Registered Unitholder, the transferee Registered Unitholder is permitted to own shares of Series B Preferred Stock up to (i) the number of Units then owned by such transferee Registered Unitholder or (ii) 5% of the outstanding shares of Series B Preferred Stock, whichever is greater (any shares in excess of a transferee Registered Unitholder's permitted ownership of Series B Preferred Stock are referred to as the "Disproportionate Shares"). After giving effect to a Transfer of shares of Series B Preferred Stock to any Person who is not a Registered Unitholder, the transferee is permitted to own up to 5% of the outstanding shares of Series B Preferred Stock (any shares held by a transferee of Series B Preferred Stock who is not a Registered Unitholder in excess of such 5% limit are referred to as the "Greater than 5% Shares"). Upon a Transfer of Series B Preferred Stock resulting in the transferee holding Disproportionate Shares or Greater than 5% Shares, as applicable, the Disproportionate Shares or Greater than 5% Shares, as applicable, shall automatically convert into Common Stock as provided in subparagraph (1) of this Paragraph (f) without action on the part of anyone, and the Corporation shall promptly redeem any resulting Scrip Shares for cash, as provided below. Upon any such automatic conversion, each certificate evidencing converted shares of Series B Preferred Stock shall instead represent the whole number of shares of Common Stock into which such shares of Series B Preferred Stock were converted and the right to receive the cash redemption payment for any Scrip Shares evidenced by such certificate until such certificate is surrendered to the Corporation for cancellation in exchange for a Common Stock certificate and the redemption price of the Scrip Shares (if any).
(4) Upon conversion of any shares of Series B Preferred Stock, no payment or adjustment shall be made on account of dividends declared and payable to holders of Common Stock of record on a date prior to the date of conversion.
(5) As soon as practicable on or after the date of conversion of shares of Series B Preferred Stock and the surrender to the Corporation of the certificate(s) evidencing the converted shares, the Corporation will issue and deliver to or at the direction of the converting
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shareholder a certificate(s) for the whole number of shares of Common Stock issuable upon such conversion. The Corporation shall redeem Scrip Shares resulting from a voluntary or automatic conversion of Series B Preferred Stock for a cash payment equal to the fair value of the fractional share of Common Stock into which the Scrip Shares would otherwise be convertible (the fair value shall be the product of the relevant fraction multiplied by the closing price of the Common Stock on the trading date next preceding the date of conversion on the principal national securities exchange on which the Common Stock is listed (or the average of the high and low prices of the Common Stock on such date on the principal national market system on which the Common Stock is traded) or (if the Common Stock is not so listed or traded) the fair value of the Common Stock on such date as determined by the Corporation's Board of Directors). The Corporation shall be responsible for any stamp or other issuance taxes payable upon the issuance of Common Stock in exchange for surrendered or automatically converted shares of Series B Preferred Stock.
(g) (1) On all matters with respect to which shareholders of the Corporation vote, each share of Series B Preferred Stock shall be entitled to one vote. On all matters with respect to which the Series B Preferred Stock is entitled to vote as a separate class, including the nomination of directors pursuant to subparagraph (2) of this Paragraph (g), the action shall be determined by the vote (which may be by non-unanimous written consent) of a majority of the outstanding shares of Series B Preferred Stock entitled to vote. On all other matters, including the election of directors, the Series B Preferred Stock will vote as a single class with all other Capital Stock entitled to vote.
(2) With respect to each annual meeting of the Corporation's shareholders, commencing with the annual meeting of the Corporation's shareholders to be held in 1999 (the "1999 Annual Meeting"), the holders of shares of Series B Preferred Stock shall have the right, voting as a separate class, to designate nominees for election as directors of the Corporation and to have such nominees included as such in the Corporation's proxy statement and ballots (or, if none, in a specially prepared proxy statement and ballots) submitted to the shareholders of the Corporation entitled to vote in a timely manner prior to the annual meeting. The Corporation shall use all reasonable efforts, consistent with the Board of Directors' exercise of its fiduciary duties, to cause the election of the nominees designated by the holders of Series B Preferred Stock. With respect to the 1999 Annual Meeting, the holders of Series B Preferred Stock shall have the right to designate four nominees. With respect to each succeeding annual meeting of shareholders, the number of nominees to be designated by the holders of Series B Preferred Stock (the "Base Number of Series B Nominees") shall be equal to the difference
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between (i) four and (ii) the number of directors whose terms commenced prior to and will continue after such meeting and who were nominated to serve such terms by the holders of Series B Preferred Stock, voting as a separate class. The Base Number of Series B Nominees calculated as set forth in the immediately preceding sentence shall be reduced (i) by one, if as of the record date for determining the shareholders entitled to vote for the election of directors at the relevant annual meeting (the "Record Date"), the Registered Unitholders collectively own less than 25% (but at least 15%) of the Fully Diluted Common Stock of the Corporation, (ii) by two, if as of the Record Date, the Registered Unitholders collectively own less than 15% (but at least 10%) of the Fully Diluted Common Stock of the Corporation, (iii) by three, if as of the Record Date, the Registered Unitholders collectively own less than 10% (but at least 5%) of the Fully Diluted Common Stock of the Corporation, and (iv) to zero, if as of the Record Date, the Registered Unitholders collectively own less than 5% of the Fully Diluted Common Stock of the Corporation. For purposes of the immediately preceding sentence, (i) "Fully Diluted Common Stock of the Corporation" means all shares of Common Stock issued and outstanding on the relevant Record Date, plus all shares of Common Stock issuable upon the exercise of vested employee stock options to acquire Common Stock and issuable upon the exchange of Units owned by the Registered Unitholders (assuming a 1:1 exchange ratio and calculated without regard to limitations imposed on the ability or rights of certain Registered Unitholders to exchange Units for Common Stock), and (ii) the Registered Unitholders shall be deemed to "collectively own" all shares of Common Stock that they own in fact, that they have the right to acquire upon the exercise of vested employee stock options, and that would be issued upon the exchange (without regard to limitations imposed on the ability or rights of certain Registered Unitholders to exchange Units for Common Stock) of all outstanding Units (and Units issuable upon the exercise of options to acquire Units) held by the Registered Unitholders.
(h) At all times when the holders of Series B Preferred Stock, voting as a separate class, are entitled to designate nominees for election as directors of the Corporation, (i) the Board of Directors shall consist of nine directors (other than during any vacancy caused by the death, resignation, or removal of a director), plus the number of directors that any series of Preferred Stock, voting separately as a class, has the right to elect because of the Corporation's default in the payment of preferential dividends due on such series, and (ii) a majority of the directors shall be "independent" (for these purposes, an individual shall be deemed "independent" if such individual is neither an officer nor an employee of the Corporation or any of its direct or indirect subsidiaries). At such time as the holders of Series B Preferred Stock no longer have the right to designate any nominees for election as directors of the Corporation, the
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size of the Board of Directors shall be as determined in accordance with the provisions of the By-Laws of the Corporation.
(i) For purposes of this Item (ii) of this Subsection (c) of this Section 2 of this Article III, the following terms have the indicated meanings:
(1) "Registered Unitholder" means a Person, other than the Corporation, (i) who at the relevant time is reflected in the records of The Taubman Realty Group Limited Partnership as a partner in such partnership (or who as the result of a Transfer of Units is being admitted as a partner in such partnership) or (ii) who is (or upon completion of the relevant Transfer (including, for these purposes, the exercise of an option to acquire a Unit) will become) a beneficial owner of Units.
(2) "Units" means Units of Partnership Interest in The Taubman Realty Group Limited Partnership (and its successors), and any securities into which such Units of Partnership Interest (as a class) are converted or for which such Units (as a class) are exchanged, whether by merger, reclassification, or otherwise. All references in this Item (ii) of this Subsection (c) of this Section 2 of this Article III to numbers of Units shall be adjusted to reflect any splits, reverse splits, or reclassifications of Units of Partnership Interest.
(j) As long as shares of Series B Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of a majority of the outstanding shares of Series B Preferred Stock (voting as a separate class):
(1) create, authorize, or issue any securities or any obligation or security convertible into or evidencing the right to purchase any such securities, the issuance of which could adversely and (relative to the other outstanding Capital Stock) disparately affect the voting power or voting rights of the Series B Preferred Stock or the holders of Series B Preferred Stock (including the rights under Paragraph (g) of this Item (ii) of this Subsection (c) of this Section 2 of this Article III, and disregarding, for these purposes, the right of any series of Preferred Stock, voting as a separate class, to elect directors of the Corporation as the result of the Corporation's default in the payment of a preferential dividend to which the holders of such series of Preferred Stock are entitled);
(2) amend, alter, or repeal the provisions of these Amended and Restated Articles of Incorporation, whether by merger, consolidation, or otherwise, in a manner that could adversely affect the voting power or voting rights of the Series B Preferred Stock or the holders of Series B Preferred Stock (including the rights under Paragraph
16
(g) of this Item (ii) of this Subsection (c) of this Section 2 of this Article III, and disregarding, for these purposes, the right of any series of Preferred Stock, voting as a separate class, to elect directors of the Corporation as the result of the Corporation's default in the payment of a preferential dividend to which the holders of such series of Preferred Stock are entitled);
(3) be a party to a material transaction (including, without limitation, a merger, consolidation, or share exchange) (a "Series B Transaction") if the Series B Transaction could adversely and (relative to the other outstanding Capital Stock) disparately affect the voting power or voting rights of the Series B Preferred Stock or the holders of Series B Preferred Stock (including the rights under Paragraph (g) of this Item (ii) of this Subsection (c) of this Section 2 of this Article III, and disregarding, for these purposes, the right of any series of Preferred Stock, voting as a separate class, to elect directors of the Corporation as the result of the Corporation's default in the payment of a preferential dividend to which the holders of such series of Preferred Stock are entitled). The provisions of this subparagraph (3) shall apply to successive Series B Transactions; or
(4) issue any shares of Series B Preferred Stock to anyone other than a Registered Unitholder as provided in Paragraph
(c) or subparagraph (f)(2) of this Item (ii).
(iii) Intentionally omitted.
(iv) Intentionally omitted.
(v) SERIES F PREFERRED STOCK. Subject in all cases to the other provisions of this Section 2 of this Article III, including, without limitation, those provisions restricting the Beneficial Ownership and Constructive Ownership of shares of Capital Stock and those provisions with respect to Excess Stock, the following sets forth the designation, preferences, limitations as to dividends, voting and other rights, and the terms and conditions of redemption of the Series F Preferred Stock (defined below) of the Corporation.
(a) There is hereby established a series of Preferred Stock designated "8.20% Series F Cumulative Redeemable Preferred Stock, par value $0.01 per share" (the "Series F Preferred Stock"), which shall consist of 300,000 authorized shares.
(b) All shares of Series F Preferred Stock redeemed, purchased, exchanged, or otherwise acquired by the Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock.
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(c) The Series F Preferred Stock shall, with respect to dividend rights, rights upon liquidation, winding up or dissolution, and redemption rights, rank (i) junior to any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation, the terms of which specifically provide that such series shall rank prior to the Series F Preferred Stock as to the payment of dividends and distribution of assets upon liquidation (the "Senior Preferred Stock"), (ii) pari passu with the Series A and Series B Preferred Stock and any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation, the terms of which specifically provide that such series shall rank pari passu with the Series F Preferred Stock as to the payment of dividends and distribution of assets upon liquidation (the "Parity Preferred Stock"), and (iii) prior to any other class or series of Capital Stock, including, without limitation, the Common Stock of the Corporation, whether now existing or hereafter created (collectively, the "Junior Stock").
(d) (1) Subject to the rights of any Senior Preferred Stock, the holders of the then outstanding shares of Series F Preferred Stock shall be entitled to receive, as and when declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the annual rate of 8.20% of the $100 per share liquidation preference (i.e., $8.20 per annum per share). Such dividends shall accrue and be cumulative from the date of original issue and shall be payable in equal quarterly amounts in arrears on or before the last day of each March, June, September, and December or, if such day is not a business day, the next succeeding business day except that, if such business day is in the next succeeding calendar 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 (each, a "Dividend Payment Date") (for the purposes of this Subparagraph (1) of this Paragraph (d), a "business day" is any day, other than a Saturday, Sunday, or legal holiday, on which banks in Detroit, Michigan, are open for business). The first dividend may be for less than a full quarter. All dividends on the Series F Preferred Stock, including any dividend for any partial dividend period, shall 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 15th day of the calendar month in which the applicable Dividend Payment Date falls or on such other date designed by the Board of Directors of the Corporation for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each, a "Dividend Record Date").
(2) No dividends on the Series F Preferred Stock shall be declared by the Board of Directors or paid or set apart for payment by
18
the Corporation at such time as any agreement of the Corporation, 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 of, or a default under, such agreement or if such declaration, payment, or setting aside shall be restricted or prohibited by law.
(3) Dividends on the Series F Preferred Stock shall accrue and be cumulative regardless of whether the Corporation has earnings, regardless of whether there are funds legally available for the payment of such dividends, and regardless of whether such dividends are declared. Accrued but unpaid dividends on the Series F Preferred Stock will accumulate as of the Dividend Payment Date on which they first become payable. Except as set forth below in this Subparagraph (3), no dividends shall be declared or paid or set apart for payment on any Common Stock 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 Junior Stock) 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 past dividend periods and the then current dividend period. When dividends are not paid in full (and 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. No interest shall be payable in respect of any dividend payment on the Series F Preferred Stock that may be in arrears. 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 accumulated but unpaid dividend due with respect to such shares that remains payable.
(4) Except as provided in Subparagraph (3) of this Paragraph (d) of this Item (v) of this Subsection (c) of this
Section 2 of this Article III, unless full cumulative dividends on the Series F Preferred
19
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: (i) no dividends (other than in shares of Junior Stock) shall be declared or paid or set aside for payment nor shall any other distribution be declared or made upon the Common Stock, the Series A Preferred Stock and the Series B Preferred Stock (or any other Preferred Stock ranking junior to or on a parity with the Series F Preferred Stock as to dividends or upon liquidation); and
(ii) no shares of Common Stock, the Series A Preferred Stock and the Series B Preferred Stock (or any other Preferred Stock of the Corporation ranking junior to or on a parity with the Series F Preferred Stock as to dividends or upon liquidation) shall be redeemed, purchased, or otherwise acquired for any consideration (nor shall any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for Junior Stock).
(5) If for any taxable year the Corporation elects to designate as "capital gains dividends" (as defined in Section 857 of the Code) any portion (the "Capital Gains Amount") of the dividends paid or made available for the year to holders of all classes of Capital Stock (the "Total Dividends"), then the portion of the Capital Gains Amount that shall be allocable to the holders of Series F Preferred Stock shall be the amount that the total dividends paid or made available to the holders of the Series F Preferred Stock for the year bears to the Total Dividends.
(6) Notwithstanding anything to the contrary set forth herein, the Corporation may declare and pay a dividend on the Common Stock, without preserving the priority of distributions described in Subparagraphs 3 and 4 of this Paragraph (d) of this Item (v) of this Subsection (c) of this Section 2 of this Article III, but only to the extent such dividends are required to preserve the Real Estate Investment Trust status of the Corporation and to avoid the imposition of an excise tax on the Corporation.
(e) Subject to the rights of any Senior Preferred Stock, upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, and before any distribution of assets shall be made in respect of any Junior Stock, the holders of the Series F Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its shareholders a liquidation preference of $100 per share in cash (or property having a fair market value as determined by the Board of Directors valued at $100 per share), plus an amount equal to any accrued but unpaid dividends to the date of payment. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series F Preferred Stock shall
20
have no right or claims to any of the remaining assets of the Corporation. Neither the consolidation or merger of the Corporation with or into any other corporation, trust, or entity (or of any other corporation with or into the Corporation) nor the sale, lease, or conveyance of all or substantially all of the property or business of the Corporation shall be deemed to constitute a liquidation, dissolution or winding up of the Corporation for the purpose of this Paragraph (e) of this Item (v).
(f) (1) The Series F Preferred Stock is not redeemable prior to May 27, 2009. On and after May 27, 2009, the Corporation, 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 and from time to time, for a cash redemption price of $100 per share, plus all accrued and unpaid dividends to the date fixed for redemption (except as provided below).
(2) Holders of Series F Preferred Stock to be redeemed shall surrender such shares at the 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. If notice of redemption has been given and if the Corporation has set aside in trust the funds necessary for the redemption, then from and after the redemption date: (i) dividends shall cease to accrue on such shares of Series F Preferred Stock;
(ii) such shares of Series F Preferred Stock shall no longer be deemed outstanding; and (iii) all rights of the holders of such shares shall 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 Corporation.
(3) 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, no shares of Series F Preferred Stock shall be redeemed unless all outstanding shares of Series F Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series F Preferred Stock (except by exchange for Junior Stock); however, the foregoing shall not prevent 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.
(4) Notice of redemption shall be mailed by the Corporation, postage prepaid, not less than 30 nor more than 60 days prior
21
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 Corporation. No failure to give or defect in such notice 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 fewer than all shares of the Series F Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series F Preferred Stock to be redeemed from such holder.
(5) The holders of Series F Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payable with respect to such Series F Preferred Stock on the corresponding Dividend Payment Date notwithstanding the redemption thereof between such Dividend Record Date and the corresponding Dividend Payment Date or the Corporation's default in the payment of the dividend due. Except as provided above, the Corporation will make no payment or allowance for unpaid dividends, regardless of whether in arrears, on called Series F Preferred Stock.
(6) The Series F Preferred Stock has no stated maturity and no sinking fund shall be required and shall not be subject to mandatory redemption. The Series F Preferred Stock is not convertible into any other securities of the Corporation, but is subject to the Excess Stock (and all other) provisions of this Article III.
(g) (1) Except as may be required by law or as otherwise expressly provided in this Item (v) of this Subsection (c) of this
Section 2 of this Article III, the holders of Series F Preferred Stock shall not be entitled to vote. On all matters with respect to which the Series F Preferred Stock is entitled to vote, each share of Series F Preferred Stock shall be entitled to one vote.
(2) Whenever dividends on the Series F Preferred Stock are in arrears (which shall, with respect to any quarterly dividend, mean that any such divided has not been paid in full whether or not earned or declared) for six or more quarterly periods (whether consecutive or not), the number of directors then constituting the Board of Directors shall be increased by two, and the holders of Series F Preferred Stock (voting separately as a class with all other series of Voting Parity Preferred) shall have the right to elect two directors of the Corporation at a special meeting
22
called by the holders of record of at least 10% of the Series F Preferred Stock or at least 10% of any other Voting 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 shareholders) or at the next annual meeting of shareholders, and at each subsequent annual meeting, until all dividends accumulated on the Series F Preferred Stock for the past dividend periods and the then current dividend period have been fully paid or declared and a sum sufficient for the payment of such dividends has been set aside for payment. If and when all accumulated dividends and the dividend for the then current dividend period on the Series F Preferred Stock shall have been paid in full or set aside for payment in full, the holders of the Series F Preferred Stock shall be divested of the foregoing voting rights (but subject always to the same provision for the vesting of such voting rights in the case of any similar future arrearages in six quarterly dividends), and if all accumulated dividends and the dividend for the then current period have been paid in full or set aside for payment in full on all series of Voting Parity Preferred, the term of office of each director so elected by the holders of the Series F Preferred Stock and the Voting Parity Preferred shall terminate.
(3) As long as any shares of Series F Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of Series F Preferred Stock (voting as a separate class); (i) authorize or create, or increase the authorized or issued amount of, any Capital Stock ranking senior to the Series F Preferred Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution, or winding up or reclassify any authorized Capital Stock of the Corporation into or exchangeable for such shares, or create, authorize, or issue any obligation or security convertible into or evidencing the right to purchase any such shares; or (ii) amend, alter, or repeal the provisions of these Amended and Restated Articles of Incorporation, 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; however, as long as the Series F Preferred Stock remains outstanding with its terms materially unchanged, taking into account that upon the occurrence of an Event, the Corporation may not be the surviving entity, the occurrence of an Event described in clause (ii) above of this Subparagraph (3) shall not be deemed to materially and adversely affect such rights, preferences, privileges, or voting power of the holders of Series F Preferred Stock, and (x) any increase in the amount of the authorized Preferred Stock or the creation or issuance of any other series of Preferred Stock, or (y) any increase in the amount of authorized shares of the Series F Preferred Stock or any other series of Preferred Stock, in the case of either (x) or (y) ranking on a parity with or junior to the Series F Preferred Stock with respect to payment of
23
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.
(4) Notwithstanding the foregoing, the Series F Preferred Stock shall not be entitled to vote, and the foregoing voting provisions shall not apply, if at or prior to the time when the act with respect to which such vote would otherwise be required is effected, all outstanding shares of the Series F Preferred Stock have been redeemed or called for redemption, and sufficient funds have been deposited in trust for the benefit of the holders of the Series F Preferred Stock to effect such redemption.
(vi) SERIES G PREFERRED STOCK. Subject in all cases to the other provisions of this Section 2 of this Article III, including, without limitation, those provisions restricting the Beneficial Ownership and Constructive Ownership of shares of Capital Stock and those provisions with respect to Excess Stock, the following sets forth the designation, preferences, limitations as to dividends, voting and other rights, and the terms and conditions of redemption of the Series G Preferred Stock (defined below) of the Corporation.
(a) There is hereby established a series of Preferred Stock designated "8% Series G Cumulative Redeemable Preferred Stock" (the "Series G Preferred Stock"), which shall consist of 4,000,000 authorized shares.
(b) All shares of Series G Preferred Stock redeemed, purchased, exchanged, or otherwise acquired by the Corporation shall be restored to the status of authorized but unissued shares of Preferred Stock.
(c) The Series G Preferred Stock shall, with respect to dividend rights and rights upon liquidation, winding up or dissolution, rank (i) junior to any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation, the terms of which specifically provide that such series shall rank prior to the Series G Preferred Stock as to the payment of dividends and distribution of assets upon liquidation, winding up or dissolution (the "Senior Preferred Stock"), (ii) pari passu with the Series A Preferred Stock, the Series F Preferred Stock and any other series of Preferred Stock hereafter duly established by the Board of Directors of the Corporation, the terms of which specifically provide that such series shall rank pari passu with the Series G Preferred Stock as to the payment of dividends and distribution of assets upon liquidation, winding up or dissolution (the "Parity Preferred Stock"), and (iii) prior to the Common Stock, the Series B Preferred Stock and any other class or series of Capital Stock, the terms of which specifically provide that such class or series of Capital Stock shall rank junior to the Series G Preferred
24
Stock as to the payment of dividends and distribution of assets upon liquidation, winding up or dissolution, whether now existing or hereafter created (collectively, the "Junior Stock").
(d) (1) Subject to the rights of any Senior Preferred Stock, the holders of the then outstanding shares of Series G Preferred Stock shall be entitled to receive, as and when declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the annual rate of 8% of the $25.00 per share liquidation preference (i.e., $2.00 per annum per share). Such dividends shall accrue and be cumulative from the date of original issue and shall be payable in equal quarterly amounts in arrears on or about the last day of each March, June, September, and December or, if such day is not a business day, the next succeeding business day with the same force and effect as if made on such date (each, a "Dividend Payment Date") (for the purposes of this Subparagraph (1) of this Paragraph (d), a "business day" is any day, other than a Saturday, Sunday, or legal holiday, on which banks in Detroit, Michigan, are open for business). The first dividend, which shall be paid on December 31, 2004, will be for less than a full quarter. All dividends on the Series G Preferred Stock, including any dividend for any partial dividend period, shall 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 15th day of the calendar month in which the applicable Dividend Payment Date falls or on such other date designed by the Board of Directors of the Corporation for the payment of dividends that is not more than 30 nor less than ten days prior to such Dividend Payment Date (each, a "Dividend Record Date").
(2) No dividends on the Series G Preferred Stock shall be declared by the Board of Directors or paid or set apart for payment by the Corporation at such time as any agreement of the Corporation, 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 of, or a default under, such agreement or if such declaration, payment, or setting aside shall be restricted or prohibited by law.
(3) Dividends on the Series G Preferred Stock shall accrue and be cumulative regardless of whether the Corporation has earnings, regardless of whether there are funds legally available for the payment of such dividends, and regardless of whether such dividends are declared. Accrued but unpaid dividends on the Series G Preferred Stock will accumulate as of the Dividend Payment Date on which they first become payable. Except as provided in this Subparagraph (3), unless full
25
cumulative dividends on the Series G 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: (i) no dividends (other than in shares of Junior Stock) shall be declared by the Board of Directors or paid or set aside for payment nor shall any other distribution be declared or made upon the Common Stock, the Series A Preferred Stock, the Series B Preferred Stock, the Series F Preferred Stock or any other class or series of Capital Stock ranking junior to or on a parity with the Series G Preferred Stock as to dividend rights and rights upon liquidation, winding up or dissolution; and (ii) no shares of Common Stock, the Series A Preferred Stock, the Series B Preferred Stock, the Series F Preferred Stock or any other class or series of Capital Stock ranking junior to or on a parity with the Series G Preferred Stock as to dividend rights and rights upon liquidation, winding up or dissolution shall be redeemed, purchased, or otherwise acquired for any consideration (nor shall any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Corporation (except by conversion into or exchange for Junior Stock). When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series G Preferred Stock and the shares of any other series of Preferred Stock ranking on a parity as to dividends with the Series G Preferred Stock, all dividends declared upon the Series G Preferred Stock and any other series of Preferred Stock ranking on a parity as to dividends with the Series G Preferred Stock shall be declared pro rata, so that the amount of dividends declared per share of Series G 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 G 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. No interest shall be payable in respect of any dividend payment on the Series G Preferred Stock that may be in arrears. Holders of shares of the Series G 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 G Preferred Stock as provided above. Any dividend payment made on shares of the Series G Preferred Stock shall first be credited against the earliest accumulated but unpaid dividend due with respect to such shares that remains payable.
(4) If for any taxable year the Corporation elects to designate as "capital gains dividends" (as defined in Section 857 of the Code) any portion (the "Capital Gains Amount") of the dividends paid or made available for the year to holders of all classes of Capital Stock (the "Total Dividends"), then the portion of the Capital Gains Amount that shall be allocable to the holders of Series G Preferred Stock shall be the
26
amount that the total dividends paid or made available to the holders of the Series G Preferred Stock for the year bears to the Total Dividends.
(e) Subject to the rights of any Senior Preferred Stock, upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, and before any distribution of assets shall be made in respect of any Junior Stock, the holders of the Series G Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its shareholders a liquidation preference of $25.00 per share in cash (or property having a fair market value as determined by the Board of Directors valued at $25.00 per share), plus an amount equal to any accrued but unpaid dividends to the date of payment. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series G Preferred Stock shall have no right or claims to any of the remaining assets of the Corporation. In the event that, upon 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 amount of the liquidating distributions on all outstanding shares of Series G Preferred Stock and the corresponding amounts payable on all shares of Parity Preferred Stock, then the holders of the Series G Preferred Stock and Parity Preferred Stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. Neither the consolidation or merger of the Corporation with or into any other corporation, trust, or entity (or of any other corporation with or into the Corporation) nor the sale, lease, or conveyance of all or substantially all of the property or business of the Corporation shall be deemed to constitute a liquidation, dissolution or winding up of the Corporation for the purpose of this Paragraph (e) of this Item (vi). Written notice of any such liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than 30 nor more than 60 days prior to the payment date stated therein, to each record holder of shares of Series G Preferred Stock at the respective addresses of such holders as the same shall appear on the stock transfer records of the Corporation.
(f) (1) The Series G Preferred Stock is not redeemable prior to November 23, 2009. On and after November 23, 2009, the Corporation, at its option upon not less than 30 nor more than 60 days' written notice, may redeem shares of the Series G Preferred Stock, in whole or in part, at any time and from time to time, for a cash redemption price of $25.00 per share, plus all accrued and unpaid dividends to the date fixed for redemption (except as provided below).
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(2) Holders of Series G Preferred Stock to be redeemed shall surrender such shares at the 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. If notice of redemption has been given and if the Corporation has set aside in trust the funds necessary for the redemption for the benefit of the holders of the Series G Preferred Stock called for redemption, then from and after the redemption date: (i) dividends shall cease to accrue on such shares of Series G Preferred Stock; (ii) such shares of Series G Preferred Stock shall no longer be deemed outstanding; and (iii) all rights of the holders of such shares shall terminate, except the right to receive the redemption price. If less than all of the outstanding Series G Preferred Stock is to be redeemed, the Series G 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 Corporation.
(3) Unless full cumulative dividends on all shares of Series G 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 past dividend periods and the then current dividend period, no shares of Series G Preferred Stock shall be redeemed unless all outstanding shares of Series G Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Series G Preferred Stock or any class or series of Capital Stock ranking junior to or on a parity with the Series G Preferred Stock as to payment of dividends and distribution of assets upon liquidation, dissolution or winding-up of the Corporation (except by exchange for Junior Stock); however, the foregoing shall not prevent the purchase or acquisition of shares of Series G Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Series G Preferred Stock.
(4) Notice of redemption 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 G Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. No failure to give or defect in such notice shall affect the validity of the proceedings for the redemption of any shares of Series G 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 and accrued and unpaid dividends payable on the redemption date; (iii) the number of shares of Series G Preferred Stock to be redeemed; (iv) the place or places where the Series G Preferred Stock is to be surrendered for payment of the
28
redemption price; and (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date. If fewer than all shares of the Series G Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares of Series G Preferred Stock to be redeemed from such holder.
(5) The holders of Series G Preferred Stock at the close of business on a Dividend Record Date shall be entitled to receive the dividend payable with respect to such Series G Preferred Stock on the corresponding Dividend Payment Date notwithstanding the redemption thereof between such Dividend Record Date and the corresponding Dividend Payment Date or the Corporation's default in the payment of the dividend due. Except as provided above, the Corporation will make no payment or allowance for unpaid dividends, regardless of whether in arrears, on called Series G Preferred Stock.
(6) The Series G Preferred Stock has no stated maturity and shall not be subject to any sinking fund or mandatory redemption. The Series G Preferred Stock is not convertible into any other securities of the Corporation, but is subject to the Excess Stock (and all other) provisions of this Article III.
(g) (1) Except as may be required by law or as otherwise expressly provided in this Item (vi) of this Subsection (c) of this
Section 2 of this Article III, the holders of Series G Preferred Stock shall not be entitled to vote. On all matters with respect to which the Series G Preferred Stock is entitled to vote, each share of Series G Preferred Stock shall be entitled to one vote.
(2) Whenever dividends on the Series G Preferred Stock are in arrears (which shall, with respect to any quarterly dividend, mean that any such dividend has not been paid in full whether or not earned or declared) for six or more quarterly periods (whether consecutive or not), the number of directors then constituting the Board of Directors shall be increased by two, and the holders of Series G Preferred Stock (voting separately as a class with all other series of Preferred Stock upon which like voting rights have been conferred and are exercisable ("Voting Parity Preferred")) shall have the right to elect two directors of the Corporation at a special meeting called by the holders of record of at least 10% of the Series G Preferred Stock or at least 10% of any other Voting 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 shareholders) or at the next annual meeting of shareholders, and at each subsequent annual meeting, until all dividends accumulated on the Series G Preferred Stock for the past dividend periods and the then current dividend period have been fully paid or declared and a sum sufficient for the payment
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of such dividends has been set aside for payment. If and when all accumulated dividends and the dividend for the then current dividend period on the Series G Preferred Stock shall have been paid in full or set aside for payment in full, the holders of the Series G Preferred Stock shall be divested of the foregoing voting rights (but subject always to the same provision for the vesting of such voting rights in the case of any similar future arrearages in six quarterly dividends), and if all accumulated dividends and the dividend for the then current period have been paid in full or set aside for payment in full on all series of Voting Parity Preferred, the term of office of each director so elected by the holders of the Series G Preferred Stock and the Voting Parity Preferred shall terminate.
(3) As long as any shares of Series G Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of Series G Preferred Stock (voting as a separate class); (i) authorize or create, or increase the authorized or issued amount of, any Capital Stock ranking senior to the Series G Preferred Stock with respect to the payment of dividends or the distribution of assets upon liquidation, dissolution, or winding up or reclassify any authorized Capital Stock into, or create, authorize, or issue any obligation or security convertible into, exchangeable for or evidencing the right to purchase, any such shares; or (ii) amend, alter, or repeal the provisions of these Restated Articles of Incorporation, as amended, 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 G Preferred Stock or the holders thereof; however, as long as the Series G Preferred Stock remains outstanding with its terms materially unchanged, taking into account that upon the occurrence of an Event, the Corporation may not be the surviving entity, the occurrence of an Event described in clause (ii) above of this Subparagraph (3) shall not be deemed to materially and adversely affect such rights, preferences, privileges, or voting power of the holders of Series G Preferred Stock, and (x) any increase in the amount of the authorized Preferred Stock or the creation or issuance of any other series of Preferred Stock, or (y) any increase in the amount of authorized shares of the Series G Preferred Stock or any other series of Preferred Stock, in the case of either (x) or (y) ranking on a parity with or junior to the Series G 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.
(4) Notwithstanding the foregoing, the Series G Preferred Stock shall not be entitled to vote, and the foregoing voting provisions shall not apply, if at or prior to the time when the act with respect to which such vote would otherwise be required is effected, all
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outstanding shares of the Series G Preferred Stock have been redeemed or called for redemption, and sufficient funds have been deposited in trust for the benefit of the holders of the Series G Preferred Stock to effect such redemption.
(VII) SERIES H PREFERRED STOCK. SUBJECT IN ALL CASES TO THE OTHER PROVISIONS OF THIS SECTION 2 OF THIS ARTICLE III, INCLUDING, WITHOUT LIMITATION, THOSE PROVISIONS RESTRICTING THE BENEFICIAL OWNERSHIP AND CONSTRUCTIVE OWNERSHIP OF SHARES OF CAPITAL STOCK AND THOSE PROVISIONS WITH RESPECT TO EXCESS STOCK, THE FOLLOWING SETS FORTH THE DESIGNATION, PREFERENCES, LIMITATIONS AS TO DIVIDENDS, VOTING AND OTHER RIGHTS, AND THE TERMS AND CONDITIONS OF REDEMPTION OF THE SERIES H PREFERRED STOCK (DEFINED BELOW) OF THE CORPORATION.
(a) THERE IS HEREBY ESTABLISHED A SERIES OF PREFERRED STOCK DESIGNATED "7.625% SERIES H CUMULATIVE REDEEMABLE PREFERRED STOCK" (THE "SERIES H PREFERRED STOCK"), WHICH SHALL CONSIST OF 3,480,000 AUTHORIZED SHARES.
(b) ALL SHARES OF SERIES H PREFERRED STOCK REDEEMED, PURCHASED, EXCHANGED, OR OTHERWISE ACQUIRED BY THE CORPORATION SHALL BE RESTORED TO THE STATUS OF AUTHORIZED BUT UNISSUED SHARES OF PREFERRED STOCK.
(c) THE SERIES H PREFERRED STOCK SHALL, WITH RESPECT TO DIVIDEND RIGHTS AND RIGHTS UPON LIQUIDATION, WINDING UP OR DISSOLUTION, RANK (i) JUNIOR TO ANY OTHER SERIES OF PREFERRED STOCK HEREAFTER DULY ESTABLISHED BY THE BOARD OF DIRECTORS OF THE CORPORATION, THE TERMS OF WHICH SPECIFICALLY PROVIDE THAT SUCH SERIES SHALL RANK PRIOR TO THE SERIES H PREFERRED STOCK AS TO THE PAYMENT OF DIVIDENDS AND DISTRIBUTION OF ASSETS UPON LIQUIDATION, WINDING UP OR DISSOLUTION (THE "SENIOR PREFERRED STOCK"), (ii) PARI PASSU WITH THE SERIES A PREFERRED STOCK, THE SERIES F PREFERRED STOCK, THE SERIES G PREFERRED STOCK AND ANY OTHER SERIES OF PREFERRED STOCK HEREAFTER DULY ESTABLISHED BY THE BOARD OF DIRECTORS OF THE CORPORATION, THE TERMS OF WHICH SPECIFICALLY PROVIDE THAT SUCH SERIES SHALL RANK PARI PASSU WITH THE SERIES H PREFERRED STOCK AS TO THE PAYMENT OF DIVIDENDS AND DISTRIBUTION OF ASSETS UPON LIQUIDATION, WINDING UP OR DISSOLUTION (THE "PARITY PREFERRED STOCK"), AND (iii) PRIOR TO THE COMMON STOCK, THE SERIES B PREFERRED STOCK AND ANY OTHER CLASS OR SERIES OF CAPITAL STOCK, THE TERMS OF WHICH SPECIFICALLY PROVIDE THAT SUCH CLASS OR SERIES OF CAPITAL STOCK SHALL RANK JUNIOR TO THE SERIES H PREFERRED STOCK AS TO THE PAYMENT OF DIVIDENDS AND DISTRIBUTION OF ASSETS UPON LIQUIDATION, WINDING UP OR DISSOLUTION, WHETHER NOW EXISTING OR HEREAFTER CREATED (COLLECTIVELY, THE "JUNIOR STOCK").
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(d) (1) SUBJECT TO THE RIGHTS OF ANY SENIOR PREFERRED STOCK, THE HOLDERS OF THE THEN OUTSTANDING SHARES OF SERIES H PREFERRED STOCK SHALL BE ENTITLED TO RECEIVE, AS AND WHEN DECLARED BY THE BOARD OF DIRECTORS, OUT OF FUNDS LEGALLY AVAILABLE FOR THE PAYMENT OF DIVIDENDS, CUMULATIVE PREFERENTIAL CASH DIVIDENDS AT THE ANNUAL RATE OF 7.625% OF THE $25.00 PER SHARE LIQUIDATION PREFERENCE (I.E., $1.90625 PER ANNUM PER SHARE). SUCH DIVIDENDS SHALL ACCRUE AND BE CUMULATIVE FROM THE DATE OF ORIGINAL ISSUE AND SHALL BE PAYABLE IN EQUAL QUARTERLY AMOUNTS IN ARREARS ON OR ABOUT THE LAST DAY OF EACH MARCH, JUNE, SEPTEMBER, AND DECEMBER OR, IF SUCH DAY IS NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY WITH THE SAME FORCE AND EFFECT AS IF MADE ON SUCH DATE (EACH, A "DIVIDEND PAYMENT DATE") (FOR THE PURPOSES OF THIS SUBPARAGRAPH (1) OF THIS PARAGRAPH (d), A "BUSINESS DAY" IS ANY DAY, OTHER THAN A SATURDAY, SUNDAY, OR LEGAL HOLIDAY, ON WHICH BANKS IN DETROIT, MICHIGAN, ARE OPEN FOR BUSINESS). THE FIRST DIVIDEND, WHICH SHALL BE PAID ON SEPTEMBER 30, 2005, WILL BE FOR LESS THAN A FULL QUARTER. ALL DIVIDENDS ON THE SERIES H PREFERRED STOCK, INCLUDING ANY DIVIDEND FOR ANY PARTIAL DIVIDEND PERIOD, SHALL 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 15TH DAY OF THE CALENDAR MONTH IN WHICH THE APPLICABLE DIVIDEND PAYMENT DATE FALLS OR ON SUCH OTHER DATE DESIGNED BY THE BOARD OF DIRECTORS OF THE CORPORATION FOR THE PAYMENT OF DIVIDENDS THAT IS NOT MORE THAN 30 NOR LESS THAN TEN DAYS PRIOR TO SUCH DIVIDEND PAYMENT DATE (EACH, A "DIVIDEND RECORD DATE").
(2) NO DIVIDENDS ON THE SERIES H PREFERRED STOCK SHALL BE DECLARED BY THE BOARD OF DIRECTORS OR PAID OR SET APART FOR PAYMENT BY THE CORPORATION AT SUCH TIME AS ANY AGREEMENT OF THE CORPORATION, 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 OF, OR A DEFAULT UNDER, SUCH AGREEMENT OR IF SUCH DECLARATION, PAYMENT, OR SETTING ASIDE SHALL BE RESTRICTED OR PROHIBITED BY LAW.
(3) DIVIDENDS ON THE SERIES H PREFERRED STOCK SHALL ACCRUE AND BE CUMULATIVE REGARDLESS OF WHETHER THE CORPORATION HAS EARNINGS, REGARDLESS OF WHETHER THERE ARE FUNDS LEGALLY AVAILABLE FOR THE PAYMENT OF SUCH DIVIDENDS, AND REGARDLESS OF WHETHER SUCH DIVIDENDS ARE DECLARED. ACCRUED BUT UNPAID DIVIDENDS ON THE SERIES H PREFERRED STOCK WILL ACCUMULATE AS OF THE DIVIDEND PAYMENT DATE ON WHICH THEY FIRST BECOME PAYABLE. EXCEPT AS PROVIDED IN THIS SUBPARAGRAPH (3), UNLESS FULL CUMULATIVE DIVIDENDS ON THE SERIES H
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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: (i) NO DIVIDENDS (OTHER THAN IN SHARES OF JUNIOR STOCK) SHALL BE DECLARED BY THE BOARD OF DIRECTORS OR PAID OR SET ASIDE FOR PAYMENT NOR SHALL ANY OTHER DISTRIBUTION BE DECLARED OR MADE UPON THE COMMON STOCK, THE SERIES A PREFERRED STOCK, THE SERIES B PREFERRED STOCK, THE SERIES F PREFERRED STOCK, THE SERIES G PREFERRED STOCK OR ANY OTHER CLASS OR SERIES OF CAPITAL STOCK RANKING JUNIOR TO OR ON A PARITY WITH THE SERIES H PREFERRED STOCK AS TO DIVIDEND RIGHTS AND RIGHTS UPON LIQUIDATION, WINDING UP OR DISSOLUTION; AND (ii) NO SHARES OF COMMON STOCK, THE SERIES A PREFERRED STOCK, THE SERIES B PREFERRED STOCK, THE SERIES F PREFERRED STOCK, THE SERIES G PREFERRED STOCK OR ANY OTHER CLASS OR SERIES OF CAPITAL STOCK RANKING JUNIOR TO OR ON A PARITY WITH THE SERIES H PREFERRED STOCK AS TO DIVIDEND RIGHTS AND RIGHTS UPON LIQUIDATION, WINDING UP OR DISSOLUTION SHALL BE REDEEMED, PURCHASED, OR OTHERWISE ACQUIRED FOR ANY CONSIDERATION (NOR SHALL ANY MONEYS BE PAID TO OR MADE AVAILABLE FOR A SINKING FUND FOR THE REDEMPTION OF ANY SUCH SHARES) BY THE CORPORATION (EXCEPT BY CONVERSION INTO OR EXCHANGE FOR JUNIOR STOCK). WHEN DIVIDENDS ARE NOT PAID IN FULL (OR A SUM SUFFICIENT FOR SUCH FULL PAYMENT IS NOT SO SET APART) UPON THE SERIES H PREFERRED STOCK AND THE SHARES OF ANY OTHER SERIES OF PREFERRED STOCK RANKING ON A PARITY AS TO DIVIDENDS WITH THE SERIES H PREFERRED STOCK, ALL DIVIDENDS DECLARED UPON THE SERIES H PREFERRED STOCK AND ANY OTHER SERIES OF PREFERRED STOCK RANKING ON A PARITY AS TO DIVIDENDS WITH THE SERIES H PREFERRED STOCK SHALL BE DECLARED PRO RATA, SO THAT THE AMOUNT OF DIVIDENDS DECLARED PER SHARE OF SERIES H 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 H 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. NO INTEREST SHALL BE PAYABLE IN RESPECT OF ANY DIVIDEND PAYMENT ON THE SERIES H PREFERRED STOCK THAT MAY BE IN ARREARS. HOLDERS OF SHARES OF THE SERIES H 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 H PREFERRED STOCK AS PROVIDED ABOVE. ANY DIVIDEND PAYMENT MADE ON SHARES OF THE SERIES H PREFERRED STOCK SHALL FIRST BE CREDITED AGAINST THE EARLIEST ACCUMULATED BUT UNPAID DIVIDEND DUE WITH RESPECT TO SUCH SHARES THAT REMAINS PAYABLE.
(4) IF FOR ANY TAXABLE YEAR THE CORPORATION ELECTS TO DESIGNATE AS "CAPITAL GAINS DIVIDENDS" (AS DEFINED IN SECTION 857 OF THE CODE) ANY PORTION (THE "CAPITAL GAINS AMOUNT") OF THE DIVIDENDS
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PAID OR MADE AVAILABLE FOR THE YEAR TO HOLDERS OF ALL CLASSES OF CAPITAL STOCK (THE "TOTAL DIVIDENDS"), THEN THE PORTION OF THE CAPITAL GAINS AMOUNT THAT SHALL BE ALLOCABLE TO THE HOLDERS OF SERIES H PREFERRED STOCK SHALL BE THE AMOUNT THAT THE TOTAL DIVIDENDS PAID OR MADE AVAILABLE TO THE HOLDERS OF THE SERIES H PREFERRED STOCK FOR THE YEAR BEARS TO THE TOTAL DIVIDENDS.
(e) SUBJECT TO THE RIGHTS OF ANY SENIOR PREFERRED STOCK, UPON ANY VOLUNTARY OR INVOLUNTARY LIQUIDATION, DISSOLUTION OR WINDING UP OF THE AFFAIRS OF THE CORPORATION, AND BEFORE ANY DISTRIBUTION OF ASSETS SHALL BE MADE IN RESPECT OF ANY JUNIOR STOCK, THE HOLDERS OF THE SERIES H PREFERRED STOCK SHALL BE ENTITLED TO BE PAID OUT OF THE ASSETS OF THE CORPORATION LEGALLY AVAILABLE FOR DISTRIBUTION TO ITS SHAREHOLDERS A LIQUIDATION PREFERENCE OF $25.00 PER SHARE IN CASH (OR PROPERTY HAVING A FAIR MARKET VALUE AS DETERMINED BY THE BOARD OF DIRECTORS VALUED AT $25.00 PER SHARE), PLUS AN AMOUNT EQUAL TO ANY ACCRUED BUT UNPAID DIVIDENDS TO THE DATE OF PAYMENT. AFTER PAYMENT OF THE FULL AMOUNT OF THE LIQUIDATING DISTRIBUTIONS TO WHICH THEY ARE ENTITLED, THE HOLDERS OF SERIES H PREFERRED STOCK SHALL HAVE NO RIGHT OR CLAIMS TO ANY OF THE REMAINING ASSETS OF THE CORPORATION. IN THE EVENT THAT, UPON 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 AMOUNT OF THE LIQUIDATING DISTRIBUTIONS ON ALL OUTSTANDING SHARES OF SERIES H PREFERRED STOCK AND THE CORRESPONDING AMOUNTS PAYABLE ON ALL SHARES OF PARITY PREFERRED STOCK, THEN THE HOLDERS OF THE SERIES H PREFERRED STOCK AND PARITY PREFERRED STOCK SHALL SHARE RATABLY IN ANY SUCH DISTRIBUTION OF ASSETS IN PROPORTION TO THE FULL LIQUIDATING DISTRIBUTIONS TO WHICH THEY WOULD OTHERWISE BE RESPECTIVELY ENTITLED. NEITHER THE CONSOLIDATION OR MERGER OF THE CORPORATION WITH OR INTO ANY OTHER CORPORATION, TRUST, OR ENTITY (OR OF ANY OTHER CORPORATION WITH OR INTO THE CORPORATION) NOR THE SALE, LEASE, OR CONVEYANCE OF ALL OR SUBSTANTIALLY ALL OF THE PROPERTY OR BUSINESS OF THE CORPORATION SHALL BE DEEMED TO CONSTITUTE A LIQUIDATION, DISSOLUTION OR WINDING UP OF THE CORPORATION FOR THE PURPOSE OF THIS PARAGRAPH (e) OF THIS ITEM (VII). WRITTEN NOTICE OF ANY SUCH LIQUIDATION, DISSOLUTION OR WINDING UP OF THE CORPORATION, STATING THE PAYMENT DATE OR DATES WHEN, AND THE PLACE OR PLACES WHERE, THE AMOUNTS DISTRIBUTABLE IN SUCH CIRCUMSTANCES SHALL BE PAYABLE, SHALL BE GIVEN BY FIRST CLASS MAIL, POSTAGE PRE-PAID, NOT LESS THAN 30 NOR MORE THAN 60 DAYS PRIOR TO THE PAYMENT DATE STATED THEREIN, TO EACH RECORD HOLDER OF SHARES OF SERIES H PREFERRED STOCK AT THE RESPECTIVE ADDRESSES OF SUCH HOLDERS AS THE SAME SHALL APPEAR ON THE STOCK TRANSFER RECORDS OF THE CORPORATION.
(f) (1) THE SERIES H PREFERRED STOCK IS NOT REDEEMABLE PRIOR TO JULY 1, 2010. ON AND AFTER JULY 1, 2010, THE CORPORATION, AT
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ITS OPTION UPON NOT LESS THAN 30 NOR MORE THAN 60 DAYS' WRITTEN NOTICE, MAY REDEEM SHARES OF THE SERIES H PREFERRED STOCK, IN WHOLE OR IN PART, AT ANY TIME AND FROM TIME TO TIME, FOR A CASH REDEMPTION PRICE OF $25.00 PER SHARE, PLUS ALL ACCRUED AND UNPAID DIVIDENDS TO THE DATE FIXED FOR REDEMPTION (EXCEPT AS PROVIDED BELOW).
(2) HOLDERS OF SERIES H PREFERRED STOCK TO BE REDEEMED SHALL SURRENDER SUCH SHARES AT THE 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. IF NOTICE OF REDEMPTION HAS BEEN GIVEN AND IF THE CORPORATION HAS SET ASIDE IN TRUST THE FUNDS NECESSARY FOR THE REDEMPTION FOR THE BENEFIT OF THE HOLDERS OF THE SERIES H PREFERRED STOCK CALLED FOR REDEMPTION, THEN FROM AND AFTER THE REDEMPTION DATE: (i) DIVIDENDS SHALL CEASE TO ACCRUE ON SUCH SHARES OF SERIES H PREFERRED STOCK; (ii) SUCH SHARES OF SERIES H PREFERRED STOCK SHALL NO LONGER BE DEEMED OUTSTANDING; AND (iii) ALL RIGHTS OF THE HOLDERS OF SUCH SHARES SHALL TERMINATE, EXCEPT THE RIGHT TO RECEIVE THE REDEMPTION PRICE. IF LESS THAN ALL OF THE OUTSTANDING SERIES H PREFERRED STOCK IS TO BE REDEEMED, THE SERIES H 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 CORPORATION.
(3) UNLESS FULL CUMULATIVE DIVIDENDS ON ALL SHARES OF SERIES H 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 PAST DIVIDEND PERIODS AND THE THEN CURRENT DIVIDEND PERIOD, NO SHARES OF SERIES H PREFERRED STOCK SHALL BE REDEEMED UNLESS ALL OUTSTANDING SHARES OF SERIES H PREFERRED STOCK ARE SIMULTANEOUSLY REDEEMED, AND THE CORPORATION SHALL NOT PURCHASE OR OTHERWISE ACQUIRE DIRECTLY OR INDIRECTLY ANY SHARES OF SERIES H PREFERRED STOCK OR ANY CLASS OR SERIES OF CAPITAL STOCK RANKING JUNIOR TO OR ON A PARITY WITH THE SERIES H PREFERRED STOCK AS TO PAYMENT OF DIVIDENDS AND DISTRIBUTION OF ASSETS UPON LIQUIDATION, DISSOLUTION OR WINDING-UP OF THE CORPORATION (EXCEPT BY EXCHANGE FOR JUNIOR STOCK); HOWEVER, THE FOREGOING SHALL NOT PREVENT THE PURCHASE OR ACQUISITION OF SHARES OF SERIES H PREFERRED STOCK PURSUANT TO A PURCHASE OR EXCHANGE OFFER MADE ON THE SAME TERMS TO HOLDERS OF ALL OUTSTANDING SHARES OF SERIES H PREFERRED STOCK.
(4) NOTICE OF REDEMPTION 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 H PREFERRED STOCK TO BE REDEEMED AT THEIR RESPECTIVE ADDRESSES AS THEY APPEAR ON THE STOCK TRANSFER RECORDS OF
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THE CORPORATION. NO FAILURE TO GIVE OR DEFECT IN SUCH NOTICE SHALL AFFECT THE VALIDITY OF THE PROCEEDINGS FOR THE REDEMPTION OF ANY SHARES OF SERIES H 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 AND ACCRUED AND UNPAID DIVIDENDS PAYABLE ON THE REDEMPTION DATE; (III) THE NUMBER OF SHARES OF SERIES H PREFERRED STOCK TO BE REDEEMED; (IV) THE PLACE OR PLACES WHERE THE SERIES H 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 FEWER THAN ALL SHARES OF THE SERIES H PREFERRED STOCK HELD BY ANY HOLDER ARE TO BE REDEEMED, THE NOTICE MAILED TO SUCH HOLDER SHALL ALSO SPECIFY THE NUMBER OF SHARES OF SERIES H PREFERRED STOCK TO BE REDEEMED FROM SUCH HOLDER.
(5) THE HOLDERS OF SERIES H PREFERRED STOCK AT THE CLOSE OF BUSINESS ON A DIVIDEND RECORD DATE SHALL BE ENTITLED TO RECEIVE THE DIVIDEND PAYABLE WITH RESPECT TO SUCH SERIES H PREFERRED STOCK ON THE CORRESPONDING DIVIDEND PAYMENT DATE NOTWITHSTANDING THE REDEMPTION THEREOF BETWEEN SUCH DIVIDEND RECORD DATE AND THE CORRESPONDING DIVIDEND PAYMENT DATE OR THE CORPORATION'S DEFAULT IN THE PAYMENT OF THE DIVIDEND DUE. EXCEPT AS PROVIDED ABOVE, THE CORPORATION WILL MAKE NO PAYMENT OR ALLOWANCE FOR UNPAID DIVIDENDS, REGARDLESS OF WHETHER IN ARREARS, ON CALLED SERIES H PREFERRED STOCK.
(6) THE SERIES H PREFERRED STOCK HAS NO STATED MATURITY AND SHALL NOT BE SUBJECT TO ANY SINKING FUND OR MANDATORY REDEMPTION. THE SERIES H PREFERRED STOCK IS NOT CONVERTIBLE INTO ANY OTHER SECURITIES OF THE CORPORATION, BUT IS SUBJECT TO THE EXCESS STOCK (AND ALL OTHER) PROVISIONS OF THIS ARTICLE III.
(g) (1) EXCEPT AS MAY BE REQUIRED BY LAW OR AS OTHERWISE EXPRESSLY PROVIDED IN THIS ITEM (VII) OF THIS SUBSECTION (c) OF THIS SECTION 2 OF THIS ARTICLE III, THE HOLDERS OF SERIES H PREFERRED STOCK SHALL NOT BE ENTITLED TO VOTE. ON ALL MATTERS WITH RESPECT TO WHICH THE SERIES H PREFERRED STOCK IS ENTITLED TO VOTE, EACH SHARE OF SERIES H PREFERRED STOCK SHALL BE ENTITLED TO ONE VOTE.
(2) WHENEVER DIVIDENDS ON THE SERIES H PREFERRED STOCK ARE IN ARREARS (WHICH SHALL, WITH RESPECT TO ANY QUARTERLY DIVIDEND, MEAN THAT ANY SUCH DIVIDEND HAS NOT BEEN PAID IN FULL WHETHER OR NOT EARNED OR DECLARED) FOR SIX OR MORE QUARTERLY PERIODS (WHETHER CONSECUTIVE OR NOT), THE NUMBER OF DIRECTORS THEN CONSTITUTING THE BOARD OF DIRECTORS SHALL BE INCREASED BY TWO, AND THE HOLDERS OF SERIES H PREFERRED STOCK (VOTING SEPARATELY AS A CLASS WITH ALL OTHER
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SERIES OF PREFERRED STOCK UPON WHICH LIKE VOTING RIGHTS HAVE BEEN CONFERRED AND ARE EXERCISABLE ("VOTING PARITY PREFERRED")) SHALL HAVE THE RIGHT TO ELECT TWO DIRECTORS OF THE CORPORATION AT A SPECIAL MEETING CALLED BY THE HOLDERS OF RECORD OF AT LEAST 10% OF THE SERIES H PREFERRED STOCK OR AT LEAST 10% OF ANY OTHER VOTING 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 SHAREHOLDERS) OR AT THE NEXT ANNUAL MEETING OF SHAREHOLDERS, AND AT EACH SUBSEQUENT ANNUAL MEETING, UNTIL ALL DIVIDENDS ACCUMULATED ON THE SERIES H PREFERRED STOCK FOR THE PAST DIVIDEND PERIODS AND THE THEN CURRENT DIVIDEND PERIOD HAVE BEEN FULLY PAID OR DECLARED AND A SUM SUFFICIENT FOR THE PAYMENT OF SUCH DIVIDENDS HAS BEEN SET ASIDE FOR PAYMENT. IF AND WHEN ALL ACCUMULATED DIVIDENDS AND THE DIVIDEND FOR THE THEN CURRENT DIVIDEND PERIOD ON THE SERIES H PREFERRED STOCK SHALL HAVE BEEN PAID IN FULL OR SET ASIDE FOR PAYMENT IN FULL, THE HOLDERS OF THE SERIES H PREFERRED STOCK SHALL BE DIVESTED OF THE FOREGOING VOTING RIGHTS (BUT SUBJECT ALWAYS TO THE SAME PROVISION FOR THE VESTING OF SUCH VOTING RIGHTS IN THE CASE OF ANY SIMILAR FUTURE ARREARAGES IN SIX QUARTERLY DIVIDENDS), AND IF ALL ACCUMULATED DIVIDENDS AND THE DIVIDEND FOR THE THEN CURRENT PERIOD HAVE BEEN PAID IN FULL OR SET ASIDE FOR PAYMENT IN FULL ON ALL SERIES OF VOTING PARITY PREFERRED, THE TERM OF OFFICE OF EACH DIRECTOR SO ELECTED BY THE HOLDERS OF THE SERIES H PREFERRED STOCK AND THE VOTING PARITY PREFERRED SHALL TERMINATE.
(3) AS LONG AS ANY SHARES OF SERIES H PREFERRED STOCK REMAIN OUTSTANDING, THE CORPORATION SHALL NOT, WITHOUT THE AFFIRMATIVE VOTE OR CONSENT OF THE HOLDERS OF AT LEAST TWO-THIRDS OF THE OUTSTANDING SHARES OF SERIES H PREFERRED STOCK (VOTING AS A SEPARATE CLASS); (i) AUTHORIZE OR CREATE, OR INCREASE THE AUTHORIZED OR ISSUED AMOUNT OF, ANY CAPITAL STOCK RANKING SENIOR TO THE SERIES H PREFERRED STOCK WITH RESPECT TO THE PAYMENT OF DIVIDENDS OR THE DISTRIBUTION OF ASSETS UPON LIQUIDATION, DISSOLUTION, OR WINDING UP OR RECLASSIFY ANY AUTHORIZED CAPITAL STOCK INTO, OR CREATE, AUTHORIZE, OR ISSUE ANY OBLIGATION OR SECURITY CONVERTIBLE INTO, EXCHANGEABLE FOR OR EVIDENCING THE RIGHT TO PURCHASE, ANY SUCH SHARES; OR
(ii) AMEND, ALTER, OR REPEAL THE PROVISIONS OF THESE RESTATED ARTICLES OF INCORPORATION, AS AMENDED, 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 H PREFERRED STOCK OR THE HOLDERS THEREOF; HOWEVER, AS LONG AS THE SERIES H PREFERRED STOCK REMAINS OUTSTANDING WITH ITS TERMS MATERIALLY UNCHANGED, TAKING INTO ACCOUNT THAT UPON THE OCCURRENCE OF AN EVENT, THE CORPORATION MAY NOT BE THE SURVIVING ENTITY, THE OCCURRENCE OF AN EVENT DESCRIBED IN CLAUSE (ii) ABOVE OF THIS SUBPARAGRAPH (3) SHALL NOT BE DEEMED TO MATERIALLY AND ADVERSELY AFFECT SUCH RIGHTS, PREFERENCES, PRIVILEGES, OR VOTING POWER OF THE HOLDERS OF SERIES H PREFERRED STOCK,
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AND (x) ANY INCREASE IN THE AMOUNT OF THE AUTHORIZED PREFERRED STOCK OR THE CREATION OR ISSUANCE OF ANY OTHER SERIES OF PREFERRED STOCK, OR (y) ANY INCREASE IN THE AMOUNT OF AUTHORIZED SHARES OF THE SERIES H PREFERRED STOCK OR ANY OTHER SERIES OF PREFERRED STOCK, IN THE CASE OF EITHER (x) OR
(y) RANKING ON A PARITY WITH OR JUNIOR TO THE SERIES H 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.
(4) NOTWITHSTANDING THE FOREGOING, THE SERIES H PREFERRED STOCK SHALL NOT BE ENTITLED TO VOTE, AND THE FOREGOING VOTING PROVISIONS SHALL NOT APPLY, IF AT OR PRIOR TO THE TIME WHEN THE ACT WITH RESPECT TO WHICH SUCH VOTE WOULD OTHERWISE BE REQUIRED IS EFFECTED, ALL OUTSTANDING SHARES OF THE SERIES H PREFERRED STOCK HAVE BEEN REDEEMED OR CALLED FOR REDEMPTION, AND SUFFICIENT FUNDS HAVE BEEN DEPOSITED IN TRUST FOR THE BENEFIT OF THE HOLDERS OF THE SERIES H PREFERRED STOCK TO EFFECT SUCH REDEMPTION.
(d) Restrictions on Transfer.
(i) Definitions. The following terms shall have the following meanings for purposes of these Amended and Restated Articles of Incorporation:
"Affiliate" and "Affiliates" mean, (i) with respect to any individual, any member of such individual's Immediate Family, a Family Trust with respect to such individual, and any Person (other than an individual) in which such individual and/or his Affiliate(s) owns, directly or indirectly, more than 50% of any class of Equity Security or of the aggregate Beneficial Interest of all beneficial owners, or in which such individual or his Affiliate is the sole general partner, or is the sole managing general partner, or which is controlled by such individual and/or his Affiliates; and (ii) with respect to any Person (other than an individual), any Person (other than an individual) which controls, is controlled by, or is under common control with, such Person, and any individual who is the sole general partner or the sole managing general partner in, or who controls, such Person. The terms "Affiliated" and "Affiliated with" shall have the correlative meanings.
"Beneficial Interest" means an interest, whether as partner, joint venturer, cestui que trust, or otherwise, a contract right, or a legal or equitable position under or by which the possessor participates in the economic or other results of the Person (other than an individual) to which such interest, contract right, or position relates.
"Beneficial Ownership" means ownership of shares of Capital Stock (including Capital Stock that may be acquired upon conversion of
38
Debentures) (i) by a Person who owns such shares of Capital Stock in his own name or is treated as an owner of such shares of Capital Stock constructively through the application of Section 544 of the Code, as modified by Sections 856(h)(1)(B) and 856(h)(3)(A) of the Code; or (ii) by a person who falls within the definition of "Beneficial Owner" under Section 776(4) of the Act. The terms "Beneficial Owner", "Beneficially Owns" and "Beneficially Owned" shall have the correlative meanings.
"Capital Stock" means the Common Stock and the Preferred Stock, including shares of Common Stock and Preferred Stock that have become Excess Stock.
"Charitable Proceeds" means the amounts due from time to time to the Designated Charity, consisting of (i) dividends or other distributions, including capital gain distributions (but not including liquidating distributions not otherwise within the definition of Excess Liquidation Proceeds), paid with respect to Excess Stock, (ii) in the case of a sale of Excess Stock, the excess, if any, of the Net Sales Proceeds over the amount due to the Purported Transferee as determined under Item (iii)(b) of Subsection (e) of this Section 2 of this Article III, and (iii) in the case of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the Excess Liquidation Proceeds.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Constructive Ownership" means ownership of shares of Capital Stock (including Capital Stock that may be acquired upon conversion of Debentures) by a Person who owns such shares of Capital Stock in his own name or would be treated as an owner of such shares of Capital Stock constructively through the application of Section 318 of the Code, as modified by Section 856 (d)(5) of the Code. The terms "Constructive Owner", "Constructively Owns" and "Constructively Owned" shall have the correlative meanings.
"Control(s)" (and its correlative terms "Controlled By" and "Under Common Control With") means, with respect to any Person (other than an individual), possession by the applicable Person or Persons of the power, acting alone (or solely among such applicable Person or Persons, acting together), to designate and direct or cause the designation and direction of the management and policies thereof, whether through the ownership of voting securities, by contract, or otherwise.
"Debentures" means any convertible debentures or other convertible debt securities issued by the Corporation from time to time.
"Demand" means the written notice to the Purported Transferee demanding delivery to the Designated Agent of (i) all certificates or other
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evidence of ownership of shares of Excess Stock and (ii) Excess Share Distributions. Any reference to "the date of the Demand" means the date upon which the Demand is mailed or otherwise transmitted by the Corporation.
"Designated Agent" means the agent designated by the Board of Directors, from time to time, to act as attorney-in-fact for the Designated Charity and to take delivery of certificates or other evidence of ownership of shares of Excess Stock and Excess Share Distributions from a Purported Transferee.
"Designated Charity" means any one or more organizations described in Sections 501(c)(3) and 170(c) of the Code, as may be designated by the Board of Directors from time to time to receive any Charitable Proceeds.
"Equity Security" has the meaning ascribed to it in the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations thereunder (and any successor laws, rules and regulations of similar import).
"Excess Liquidation Proceeds" means, with respect to shares of Excess Stock, the excess, if any, of (i) the amount which would have been due to the Purported Transferee pursuant to Subsection (a)(ii) of this Section 2 of this Article III with respect to such stock in the case of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation if the Transfer had been valid under Item (ii) of this Subsection (d) of this Section 2 of this Article III, over (ii) the amount due to the Purported Transferee as determined under Item (iii)(b)(2) of Subsection (e) of this Section 2 of this Article III.
"Excess Share Distributions" means dividends or other distributions, including, without limitation, capital gain distributions and liquidating distributions, paid with respect to shares of Excess Stock.
"Excess Stock" means shares of Common Stock and shares of Preferred Stock that have been automatically converted to Excess Stock pursuant to the provisions of Item (iii) of this Subsection (d) of this Section 2 of this Article III, and which are subject to the provisions of Subsection (e) of this
Section 2 of this Article III.
"Existing Holder" means (i) the General Motors Hourly-Rate Employes Pension Trust, (ii) the General Motors Salaried Employes Pension Trust (such trusts referred to in (i) or (ii) are hereinafter referred to as "GMPTS"), (iii) the AT&T Master Pension Trust, (iv) any nominee of the foregoing, and (v) any Person to whom an Existing Holder transfers Beneficial Interest of Regular Capital Stock if (x) the result of such transfer would be to cause the transferee to Beneficially Own shares of Regular Capital Stock in excess of the greater of the Ownership Limit or any pre-existing Existing Holder Limit with respect to such transferee (such excess being herein referred to as the "Excess Amount") and (y)
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the transferor Existing Holder, by notice to the Corporation in connection with such transfer, designates such transferee as a successor Existing Holder (it being understood that, upon any such transfer, the Existing Holder Limit for the transferor Existing Holder shall be reduced by the Excess Amount and the then applicable Ownership Limit or Existing Holder Limit for the transferee Existing Holder shall be increased by such Excess.
"Existing Holder Limit" (i) for any Existing Holder who is an Existing Holder by virtue of Clauses (i) and (ii) of the definition thereof means the greater of (x) 9.9% of the outstanding Capital Stock, reduced (but not below the Ownership Limit) by any Excess Amount transferred in accordance with clause (v) of the definition of Existing Holder and (y) 4,365,713 shares of Regular Capital Stock (as adjusted to reflect any increase in the number of outstanding shares as the result of a stock dividend or any increase or decrease in the number of outstanding shares resulting from a stock split or reverse stock split), reduced (but not below the Ownership Limit) by any Excess Amount transferred in accordance with clause (v) of the definition of Existing Holder,
(ii) for any Existing Holder who is an Existing Holder by virtue of Clause (iii) of the definition thereof means the greater of (x) 13.74% of the outstanding Capital Stock, reduced (but not below the Ownership Limit) by any Excess Amount transferred in accordance with clause (v) of the definition of Existing Holder and (y) 6,059,080 shares of Regular Capital Stock (as adjusted to reflect any increase in the number of outstanding shares as the result of a stock dividend or any increase or decrease in the number of outstanding shares resulting from a stock split or reverse stock split), reduced (but not below the Ownership Limit) by any Excess Amount transferred in accordance with Clause (v) of the definition of Existing Holder, (iii) for any Existing Holder who is an Existing Holder by virtue of Clause (iv) of the definition thereof means the percentage of the outstanding Capital Stock or the number of shares of the outstanding Regular Capital Stock that the Beneficial Owner for whom the Existing Holder is acting as nominee is permitted to own under this definition, and (iv) for any Existing Holder who is an Existing Holder by virtue of Clause (v) of the definition thereof means the greater of (x) a percentage of the outstanding Capital Stock equal to the Ownership Limit or pre-existing Existing Holder Limit applicable to such Person plus the Excess Amount transferred to such Person pursuant to clause
(v) of the definition of Existing Holder and (y) the number of shares of outstanding Regular Capital Stock equal to the Ownership Limit or pre-existing Existing Holder Limit applicable to such Person plus the Excess Amount transferred to such Person pursuant to clause (v) of the definition of Existing Holder.
"Family Trust" means, with respect to an individual, a trust for the benefit of such individual or for the benefit of any member or members of such individual's Immediate Family or for the benefit of such individual and any member or members of such individual's Immediate Family (for the purpose of determining whether or not a trust is a Family Trust, the fact that one or more of the beneficiaries (but not the sole beneficiary) of the trust includes a Person or
41
Persons, other than a member of such individual's Immediate Family, entitled to a distribution after the death of the settlor if he, she, it, or they shall have survived the settlor of such trust and/or includes an organization or organizations exempt from federal income taxes pursuant to the provisions of
Section 501(a) of the Code and described in Section 501(c)(3) of the Code, shall be disregarded); provided, however, that in respect of transfers by way of testamentary or inter vivos trust, the trustee or trustees shall be solely such individual, a member or members of such individual's Immediate Family, a responsible financial institution and/or an attorney that is a member of the bar of any state in the United States.
"Immediate Family" means, with respect to a Person, (i) such Person's spouse (former or then current), (ii) such Person's parents and grandparents, and (iii) ascendants and descendants (natural or adoptive, of the whole or half blood) of such Person's parents or of the parents of such Person's spouse (former or then current).
"Look Through Entity" means any Person that (i) is not an individual or an organization described in Sections 401(a), 501(c)(17), or 509(a) of the Code or a portion of a trust permanently set aside or to be used exclusively for the purposes described in Section 642(c) of the Code or a corresponding provision of a prior income tax law, and (ii) provides the Corporation with (a) a written affirmation and undertaking, subject only to such exceptions as are acceptable to the Corporation in its sole discretion, that (x) it is not an organization described in Sections 401(a), 501(c)(17) or 509(a) of the Code or a portion of a trust permanently set aside or to be used exclusively for the purposes described in Section 642(c) of the Code or a corresponding provision of a prior income tax law, (y) after the application of the rules for determining stock ownership, as set forth in Section 544(a) of the Code, as modified by Sections 856(h)(1)(B) and 856(h)(3)(A) of the Code, no "individual" would own, Beneficially or Constructively, more than the then-applicable Ownership Limit, taking into account solely for the purpose of determining such "individual's" ownership for the purposes of this clause (y) (but not for determining whether such "individual" is in compliance with the Ownership Limit for any other purpose) only such "individual's" Beneficial and Constructive Ownership derived solely from such Person and (z) it does not Constructively Own 10% or more of the equity of any tenant with respect to real property from which the Corporation or TRG receives or accrues any rent from real property, and (b) such other information regarding the Person that is relevant to the Corporation's qualifications to be taxed as a REIT as the Corporation may reasonably request.
"Market Price" means, with respect to any class or series of shares of Regular Capital Stock, the last reported sales price of such class or series of shares reported on the New York Stock Exchange on the trading day immediately preceding the relevant date, or if such class or series of shares of Regular Capital Stock is not then traded on the New York Stock Exchange, the last reported sales
42
price of such class or series of shares on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over which such class or series of shares may be traded, or if such class or series of shares of Regular Capital Stock is not then traded over any exchange or quotation system, then the market price of such class or series of shares on the relevant date as determined in good faith by the Board of Directors of the Corporation.
"Net Sales Proceeds" means the gross proceeds received by the Designated Agent upon a sale of Regular Capital Stock that has become Excess Stock, reduced by (i) all expenses (including, without limitation, any legal expenses or fees) incurred by the Designated Agent in obtaining possession of
(x) the certificates or other evidence of ownership of the Regular Capital Stock that had become Excess Stock and (y) any Excess Share Distributions, and (ii) any expenses incurred in selling or transferring such shares (including, without limitation, any brokerage fees, commissions, stock transfer taxes or other transfer fees or expenses).
"Ownership Limit" means 8.23% of the value of the outstanding Capital Stock of the Corporation.
"Person" means (a) an individual, corporation, partnership, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company or other entity and (b) also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations thereunder (and any successor laws, rules and regulations of similar import).
"Purported Transferee" means, with respect to any purported Transfer which results in Excess Stock, the purported beneficial transferee for whom the shares of Regular Capital Stock would have been acquired if such Transfer had been valid under Item (ii) of this Subsection (d) of this Section 2 of this Article III.
"Regular Capital Stock" means shares of Common Stock and Preferred Stock that are not Excess Stock.
"REIT" means a Real Estate Investment Trust defined in Section 856 of the Code.
"Transfer" means any sale, transfer, gift, assignment, devise or other disposition of Capital Stock, (including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Capital Stock or (ii) the sale, transfer, assignment or other disposition of any securities or
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rights convertible into or for Capital Stock), whether voluntary or involuntary, whether of record or beneficial ownership, and whether by operation of law or otherwise.
(ii) Restriction on Transfers.
(a) Except as provided in Item (viii) of this Subsection (d) of this Section 2 of this Article III, no Person (other than an Existing Holder) shall Beneficially Own or Constructively Own shares of Capital Stock having an aggregate value in excess of the Ownership Limit, and No Existing Holder shall Beneficially Own or Constructively Own shares of Capital Stock in excess of the Existing Holder Limit for such Existing Holder.
(b) Except as provided in Item (viii) of this Subsection (d) of this Section 2 of this Article III, any Transfer that, if effective, would result in any Person (other than an Existing Holder) Beneficially Owning or Constructively Owning shares of Regular Capital Stock having an aggregate value in excess of the Ownership Limit shall be void ab initio as to the Transfer of such shares which would be otherwise Beneficially Owned or Constructively Owned by such Person in excess of the Ownership Limit, and the intended transferee shall acquire no rights in such shares.
(c) Except as provided in Item (viii) of this Subsection (d) of this Section 2 of this Article III, any Transfer that, if effective, would result in any Existing Holder Beneficially Owning or Constructively Owning shares of Regular Capital Stock in excess of the applicable Existing Holder Limit shall be void ab initio as to the Transfer of such shares which would be otherwise Beneficially Owned or Constructively Owned by such Existing Holder in excess of the applicable Existing Holder Limit, and such Existing Holder shall acquire no rights in such shares.
(d) Except as provided in Item (viii) of this Subsection (d) of this Section 2 of this Article III, any Transfer that, if effective, would result in the Capital Stock being beneficially owned by fewer than 100 Persons (determined without reference to any rules of attribution) shall be void ab initio as to the Transfer of such shares which would be otherwise beneficially owned by the transferee, and the intended transferee shall acquire no rights in such shares.
(e) Any Transfer that, if effective, would result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code shall be void ab initio as to the Transfer of the shares of Regular Capital Stock which would cause the Corporation to be "closely held"
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within the meaning of Section 856(h) of the Code, and the intended transferee shall acquire no rights in such shares.
(f) In determining the shares which any Person Beneficially Owns (or would Beneficially Own following a purported Transfer) or Constructively Owns (or would Constructively Own following a purported Transfer) for purposes of applying the limitations contained in Paragraphs (a), (b), (c), (d) and (e) of this Item (ii) of this Subsection (d) of this Article III:
(1) shares of Capital Stock that may be acquired upon conversion of Debentures Beneficially Owned or Constructively Owned by such Person, but not shares of Capital Stock issuable upon conversion of Debentures held by others, are deemed to be outstanding.
(2) a pension trust shall be treated as owning all shares of Capital Stock (including Capital Stock that may be acquired upon conversion of Debentures) as are (x) owned in its own name or with respect to which it is treated as an owner constructively through the application of Section 544 of the Code as modified by Section 856(h)(1)(B) of the Code but not by Section 856(h)(3)(A) of the Code and (y) owned by, or treated as owned by, constructively through the application of Section 544 of the Code as modified by Section 856(h)(1)(B) of the Code but not by Section 856(h)(3)(A) of the Code, all pension trusts sponsored by the same employer as such pension trust or sponsored by any of such employer's Affiliates. Notwithstanding the foregoing, (y) above shall not apply in the case of either Motors Insurance Corporation and its subsidiaries (collectively, "MIC") or any pension trusts sponsored by the General Motors Corporation, a Delaware corporation ("GMC"), or the American Telephone and Telegraph Company, a New York corporation ("AT&T"), or by any of their respective Affiliates, provided that with respect to MIC and each such pension trust sponsored by GMC, AT&T or any of their respective Affiliates, other than the Existing Holders described in (i) through (iii) in the definition thereof, all of the following conditions are met: (i) each such pension trust is administered, and will continue to be administered, by persons who do not serve in an administrative or other capacity to any other such pension trust sponsored by GMC or any Affiliate of GMC or AT&T or any Affiliate of AT&T, as applicable, including the Existing Holders described in (i) through
(iv) in the definition thereof, (it being understood that the fact that any two such pension trusts may have in common one or more, but less than a majority, of the persons having ultimate investment authority for such pension trusts shall not cause such trusts to be treated as one Person, provided that they are otherwise separately administered as hereinbefore described), (ii) day to day investment decisions with respect to MIC are made by a person or persons
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different than the person or persons who make such decisions for the pension trusts sponsored by GMC or its affiliates, including the Existing Holders described in (i), (ii) and, in respect of (i) and
(ii), item (iv) in the definition thereof, (although MIC and the pension trusts sponsored by GMC may have in common the person or persons with ultimate investment authority for such entities), and the investment of MIC in the Corporation does not exceed 2% of the value of the outstanding Capital Stock of the Corporation, (iii) neither MIC nor any such pension trust acts or will act, in concert with MIC, any other pension trust sponsored by GMC or any Affiliate of GMC or AT&T or any Affiliate of AT&T, as applicable, including the Existing Holders described in (i) through (iv) in the definition thereof, with respect to its investment in the Corporation, and (iv) as from time to time requested by the Corporation, MIC and each pension trust shall provide the Corporation with a representation and undertaking in writing to the foregoing effect.
(3) If there are two or more classes of stock then outstanding, the total value of the outstanding Capital Stock shall be allocated among the different classes and series according to the relative value of each class or series, as determined by reference to the Market Price per share of each such class or series, using the date on which the Transfer occurs as the relevant date, or the effective date of the change in capital structure as the relevant date, as appropriate.
(g) If any shares are transferred resulting in a violation of the Ownership Limit or Paragraphs (b), (c), (d) or (e) of this Item
(ii) of this Subsection (d) of this Section 2 of this Article III, such Transfer shall be valid only with respect to such amount of shares transferred as does not result in a violation of such limitations, and such Transfer otherwise shall be null and void ab initio.
(iii) Conversion to Excess Stock.
(a) If, notwithstanding the other provisions contained in this Article III, at any time there is a purported Transfer or other change in the capital structure of the Corporation such that any Person (other than an Existing Holder) would Beneficially Own or any Person (other than an Existing Holder) would Constructively Own shares of Regular Capital Stock in excess of the Ownership Limit, or that any Person who is an Existing Holder would Beneficially Own or any Person who is an Existing Holder would Constructively Own shares of Regular Capital Stock in excess of the Existing Holder Limit, then, except as otherwise provided in Item (viii) of this Subsection
(d) of this Section 2 of this Article III, such shares of Common Stock or Preferred Stock, or both, in excess of the Ownership Limit or Existing Holder Limit, as the case may be, (rounded up to the nearest whole share) shall automatically become Excess Stock.
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Such conversion shall be effective as of the close of business on the business day prior to the date of the Transfer or change in capital structure.
(b) If, notwithstanding the other provisions contained in this Article III, at any time, there is a purported Transfer or other change in the capital structure of the Corporation which, if effective, would cause the Corporation to become "closely held" within the meaning of Section 856(h) of the Code then the shares of Common Stock or Preferred Stock, or both, being Transferred which would cause the Corporation to be "closely held" within the meaning of Section 856(h) of the Code or held by a Person in excess of that Person's Ownership Limit or Existing Holder Limit, as applicable (rounded up to the nearest whole share) shall automatically become Excess Stock. Such conversion shall be effective as of the close of business on the business day prior to the date of the Transfer or change in capital structure.
(c) Shares of Excess Stock shall be issued and outstanding stock of the Corporation. The Purported Transferee shall have no rights in such shares of Excess Stock except as provided in Subsection (e) of this Section 2 of this Article III.
(iv) Notice of Restricted Transfer. Any Person who acquires or attempts to acquire shares in violation of Item (ii) of this Subsection
(d) of this Section 2 of this Article III, or any Person who is a transferee such that Excess Stock results under Item (iii) of this Subsection (d) of this Section 2 of this Article III, shall immediately give written notice to the Corporation of such event and shall provide to the Corporation such other information as the Corporation may request regarding such Person's ownership of Capital Stock.
(v) Owners Required to Provide Information.
(a) Every Beneficial Owner of more than 5% (or such other percentage, as provided in the applicable regulations adopted under Sections 856 through 859 of the Code) of the outstanding shares of the Capital Stock of the Corporation shall, within 30 days after January 1 of each year, give written notice to the Corporation stating the name and address of such Beneficial Owner, the number of shares Beneficially Owned and Constructively Owned, and a full description of how such shares are held. Every Beneficial Owner shall, upon demand by the Corporation, disclose to the Corporation in writing such additional information with respect to the Beneficial Ownership and Constructive Ownership of the Capital Stock as the Board of Directors deems appropriate or necessary (i) to comply with the provisions of the Code, regarding the qualification of the Corporation as a REIT under the Code, and (ii) to ensure compliance with the Ownership Limit or the Existing Holder Limit.
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(b) Any Person who is a Beneficial Owner or Constructive Owner of shares of Capital Stock and any Person (including the shareholder of record) who is holding Capital Stock for a Beneficial Owner or Constructive Owner, and any proposed transferee of shares, upon the determination by the Board of Directors to be reasonably necessary to protect the status of the Corporation as a REIT under the Code, shall provide a statement or affidavit to the Corporation, setting forth the number of shares of Capital Stock already Beneficially Owned or Constructively Owned by such shareholder or proposed transferee and any related person specified, which statement or affidavit shall be in the form prescribed by the Corporation for that purpose.
(vi) Remedies Not Limited. Subject to Subsection (h) of this Section 2 of this Article III, nothing contained in this Article III shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable (i) to protect the Corporation and the interests of its shareholders in the preservation of the Corporation's status as a REIT, and (ii) to insure compliance with the Ownership Limit and the Existing Holder Limit.
(vii) Determination. Any question regarding the application of any of the provisions of this Subsection (d) of this Section 2 of this Article III, including any definition contained in Item (i) of this Subsection (d) of this Section 2 of this Article III, shall be determined or resolved by the Board of Directors and any such determination or resolution shall be final and binding on the Corporation, its shareholders, and all parties in interest.
(viii) Exceptions. The Board of Directors, upon advice from, or an opinion from, Counsel, may exempt a Person from the Ownership Limit if such Person is a Look Through Entity, provided, however, in no event may any such exception cause such Person's ownership, direct or indirect (without taking into account such Person's ownership of interests in TRG), to exceed 9.9% of the value of the outstanding Capital Stock.
For a period of 90 days following the purchase of Regular Capital Stock by an underwriter that (i) is a Look Through Entity and (ii) participates in a public offering of the Regular Capital Stock, such underwriter shall not be subject to the Ownership Limit with respect to the Regular Capital Stock purchased by it as a part of such public offering.
(e) Excess Stock.
(i) Surrender of Excess Stock to Designated Agent. Within thirty business days of the date upon which the Corporation determines that shares have become Excess Stock, the Corporation, by written notice to the Purported Transferee, shall demand that any certificate or other evidence of ownership of
48
the shares of Excess Stock be immediately surrendered to the Designated Agent (the "Demand").
(ii) Excess Share Distributions. The Designated Agent shall be entitled to receive all Excess Share Distributions. The Purported Transferee of Regular Capital Stock that has become Excess Stock shall not be entitled to any dividends or other distributions, including, without limitation, capital gain distributions, with respect to the Excess Stock. Any Excess Share Distributions paid to a Purported Transferee shall be remitted to the Designated Agent within thirty business days after the date of the Demand.
(iii) Restrictions on Transfer; Sale of Excess Stock.
(a) Excess Stock shall be transferable by the Designated Agent as attorney-in-fact for the Designated Charity. Excess Stock shall not be transferable by the Purported Transferee.
(b) Upon delivery of the certificates or other evidence of ownership of the shares of Excess Stock to the Designated Agent, the Designated Agent shall immediately sell such shares in an arms-length transaction (over the New York Stock Exchange or such other exchange over which the shares of the applicable class or series of Regular Capital Stock may then be traded, if practicable), and the Purported Transferee shall receive from the Net Sales Proceeds, the lesser of:
(1) the Net Sales Proceeds; or
(2) the price per share that such Purported Transferee paid for the Regular Capital Stock in the purported Transfer that resulted in the Excess Stock, or if the Purported Transferee did not give value for such shares (because the Transfer was, for example, through a gift, devise or other transaction), a price per share equal to the Market Price determined using the date of the purported Transfer that resulted in the Excess Stock as the relevant date.
(c) If some or all of the shares of Excess Stock have been sold prior to receiving the Demand, such sale shall be deemed to been made for the benefit of and as the agent for the Designated Charity. The Purported Transferee shall pay to the Designated Agent, within thirty business days of the date of the Demand, the entire gross proceeds realized upon such sale. Notwithstanding the preceding sentence, the Designated Agent may grant written permission to the Purported Transferee to retain an amount from the gross proceeds equal to the amount the Purported Transferee would have been entitled to receive had the Designated Agent sold the shares as provided in Item (iii)(b) of this Subsection (e) of this Section 2 of this Article III.
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(d) The Designated Agent shall promptly pay to the Designated Charity any Excess Share Distributions recovered by the Designated Agent and the excess, if any, of the Net Sales Proceeds over the amount due to the Purported Transferee as provided in Item (iii)(b) of this Subsection (e) of this
Section 2 of this Article III.
(iv) Voting Rights. The Designated Agent shall have the exclusive right to vote all shares of Excess Stock as the attorney-in-fact for the Designated Charity. The Purported Transferee shall not be entitled to vote such shares (except as required by applicable law). Notwithstanding the foregoing, votes erroneously cast by a Prohibited Transferee shall not be invalidated in the event that the Corporation has already taken irreversible corporate action to effect a reorganization, merger, sale or dissolution of the Corporation.
(v) Rights Upon Liquidation. In the event of any voluntary or involuntary liquidation, dissolution or winding up of, or any distribution of the assets of the Corporation, a Purported Transferee shall be entitled to receive the lesser of (i) that amount which would have been due to such Purported Transferee had the Designated Agent sold the shares of Excess Stock as provided in Item (iii)(b) of this Subsection (e) of this Section 2 of this Article III and (ii) that amount which would have been due to the Purported Transferee if the Transfer had been valid under Item (ii) of Subsection (d) of this Section 2 of this Article III, determined (A) in the case of Common Stock, pursuant to Subsection (a)(ii) of this Section 2 of this Article III, and (B) in the case of Preferred Stock, pursuant to the provisions of these Amended and Restated Articles of Incorporation, amended as authorized by Section 1 of this Article III, which sets forth the liquidation rights of such class or series of Preferred Stock. With respect to shares of Excess Stock, a Purported Transferee shall not have any rights to share in the assets of the Corporation upon the liquidation, dissolution or winding up of the Corporation other than the right to receive the amount determined in the preceding sentence and shall not be entitled to any preference or priority (as a creditor of the Corporation) over the holders of the shares of Regular Capital Stock. Any Excess Liquidation Proceeds shall be paid to the Designated Charity.
(vi) Action by Corporation to Enforce Transfer Restrictions. If the Purported Transferee fails to deliver the certificates or other evidence of ownership and all Excess Share Distributions to the Designated Agent within thirty business days of the date of Demand, the Corporation shall take such legal action to enforce the provisions of this Article III as may be permitted under applicable law.
(f) Legend. Each certificate for Capital Stock shall bear the following legend:
"The Amended and Restated Articles of Incorporation, as the same may be amended (the "Articles"), impose certain restrictions on the transfer and
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ownership of the shares represented by this Certificate based upon the percentage of the outstanding shares owned by the shareholder. At no charge, any shareholder may receive a written statement of the restrictions on transfer and ownership that are imposed by the Articles."
(g) Severability. If any provision of this Article III or any application of any such provision is determined to be invalid by any Federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provision shall be affected only to the extent necessary to comply with the determination of such court.
(h) New York Stock Exchange Settlement. Nothing contained in these Amended and Restated Articles of Incorporation shall preclude the settlement of any transaction entered into through the facilities of the New York Stock Exchange or of any other stock exchange on which shares of the Common Stock or class or series of Preferred Stock may be listed, or of the Nasdaq National Market (if the shares are quoted on such Market) and which has conditioned such listing or quotation on the inclusion in the Corporation's Amended and Restated Articles of Incorporation of a provision such as this Subsection (h). The fact that the settlement of any transaction is permitted shall not negate the effect of any other provision of this Article III and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Article III.
ARTICLE IV
REGISTERED OFFICE AND REGISTERED AGENT
1. Registered Office.
The address and mailing address of the registered office of the Corporation is 500 North Woodward Avenue, Suite 100, Bloomfield Hills, Michigan 48304.
2. Resident Agent.
The resident agent for service of process on the Corporation at the registered office is Jeffrey H. Miro.
ARTICLE V
PLAN OF COMPROMISE OR REORGANIZATION
When a compromise or arrangement or a plan of reorganization of the Corporation is proposed between the Corporation and its creditors or any class of them or between the Corporation and its shareholders or any class of them, a court of equity jurisdiction within the State of Michigan, on application of the Corporation or of a creditor or shareholder thereof, or on application of a receiver appointed for the Corporation, may order a meeting of the creditors or class of creditors or of the shareholders or class of shareholders to be affected by the proposed compromise or
51
arrangement or reorganization, to be summoned in such manner as the court directs. If a majority in number representing 75% in value of the creditors or class of creditors, or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of the Corporation as a consequence of the compromise or arrangement, the compromise or arrangement and the reorganization, if sanctioned by the court to which the application has been made, shall be binding on all the creditors or class of creditors, or on all the shareholders or class of shareholders and also on the Corporation.
ARTICLE VI
DIRECTORS
For so long as the Corporation has the right to designate, pursuant to The Amended and Restated Agreement of Limited Partnership of TRG (as the same may be amended, the Partnership Agreement"), members of the committee of TRG that have the power to approve or propose all actions, decisions, determinations, designations, delegations, directions, appointments, consents, approvals, selections, and the like to be taken, made or given, with respect to TRG, its business and its properties as well as the management of all affairs of TRG (the "Partnership Committee"), the Board of Directors shall consist of, except during the period of any vacancy between annual meetings of the shareholders, that number of members as are set forth in the By-Laws of the Corporation of which, except during the period of any vacancy between annual meetings of the shareholders, not less than 40% (rounded up to the next whole number) of the members shall be Independent Directors (as hereinafter defined), and, thereafter, the Board of Directors shall consist of, except during the period of any vacancy between annual meetings of the shareholders, that number of members as are set forth in the By-Laws of the Corporation. For purposes of this Article VI, "Independent Director" shall mean an individual who is neither one of the following named persons nor an employee, beneficiary, principal, director, officer or agent of, or a general partner in, or limited partner (owning in excess of 5% of the Beneficial Interest) or shareholder (owning in excess of 5% of the Beneficial Interest) in, any such named Person: (i) for so long as TG Partners Limited Partnership, a Delaware limited partnership, has the right to appoint one or more Partnership Committee members, A. Alfred Taubman and any Affiliate of A. Alfred Taubman or any member of his Immediate Family, (ii) for so long as Taub-Co Management, Inc., a Michigan corporation (formerly The Taubman Company, Inc. ("T-Co")) has the right to appoint one or more Partnership Committee members, T-Co or an Affiliate of T-Co, (iii) for so long as a Taubman Transferee (as hereinafter defined) has the right to appoint one or more Partnership Committee members, a Taubman Transferee, or an Affiliate of such Taubman Transferee, (iv) for so long as GMPTS has the right to appoint one or more Partnership Committee members, GMPTS, General Motors Corporation, or an Affiliate of GMPTS or of General Motors Corporation, and (v) for so long as a GMPTS Transferee (as hereinafter defined) has the right to appoint one or more Partnership Committee members, a GMPTS Transferee or an Affiliate of such GMPTS Transferee. "Taubman Transferee" means a single Person that acquires, pursuant to Section 8.1(b) or Section 8.3(a) of The Partnership Agreement, or upon the foreclosure or like action in respect of a pledge of a partnership interest in TRG, the then (i.e., at the
52
time of such acquisition) entire partnership interest in TRG (excluding, in the case of an acquisition pursuant to Section 8.3(a) of the Partnership Agreement or pursuant to a foreclosure or like action in respect of a pledge of a partnership interest in TRG, the ability of such Person to act as a substitute partner) of A. Alfred Taubman, and any Affiliate of A. Alfred Taubman or any member of his Immediate Family, from one or more such persons or from any Taubman Transferee; provided that the percentage interest in TRG being transferred exceeds 7.7%. "GMPTS Transferee" means a single Person that acquires, pursuant to Section 8.1(b) or Section 8.3(a) of the Partnership Agreement, or upon the foreclosure or like action in respect of a pledge of a partnership interest in TRG, the then (i.e., at the time of such acquisition) entire such partnership interest in TRG (excluding, in the case of an acquisition pursuant to Section 8.3(a) of the Partnership Agreement or pursuant to a foreclosure or like action in respect of a pledge of partnership interests in TRG, the ability of such Person to act as a substitute partner) of GMPTS or of any GMPTS Transferee; provided that the percentage interest in TRG being transferred exceeds 7.7%.
For so long as the Corporation has the right to designate, pursuant to the Partnership Agreement, any members of the Partnership Committee, the affirmative vote of both a majority of the Independent Directors who do not have a beneficial financial interest in the action before the Board of Directors and a majority of all members of the Board of Directors who do not have a beneficial financial interest in the action before the Board of Directors is required for the approval of all actions to be taken by the Board of Directors; provided, however, the Corporation may not appoint to the Partnership Committee as a Corporation appointee an individual who does not satisfy the definition of Independent Director in one or more respects without the affirmative vote of all of the Independent Directors then in office. Thereafter, the affirmative vote of a majority of all members of the Board of Directors who do not have a beneficial financial interest in the action before the Board of Directors is required for the approval of all actions to be taken by the Board of Directors. The establishment of reasonable compensation of Directors for services to the Corporation as Directors or officers shall not constitute action in which any Director has a beneficial financial interest.
Subject to the foregoing, a Director shall be deemed and considered in all respects and for all purposes to be a Director of the Corporation, including, without limitation, having the authority to vote or act on all matters, including, without limitation, matters submitted to a vote at any meeting of the Board of Directors or at any meeting of a committee of the Board of Directors, and the application to such Director of Articles VII and VIII of these Amended and Restated Articles of Incorporation, notwithstanding a Purported Transferee's unauthorized exercise of voting rights with respect to such Director's election.
ARTICLE VII
LIMITED LIABILITY OF DIRECTORS
No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for a breach of the director's fiduciary duty; provided,
53
however, the foregoing provision shall not be deemed to limit a director's liability to the Corporation or its shareholders resulting from:
(i) a breach of the director's duty of loyalty to the Corporation or its shareholders;
(ii) acts or omissions of the director not in good faith or which involve intentional misconduct or knowing violation of law;
(iii) a violation of Section 551(1) of the Act or;
(iv) a transaction from which the director derived an improper personal benefit.
ARTICLE VIII
INDEMNIFICATION OF OFFICERS, DIRECTORS, ETC.
1. Indemnification of Directors.
The Corporation shall and does hereby indemnify a person (including the heirs, executors, and administrators of such person) who is or was a party to, or who is threatened to be made a party to, a threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, including, without limitation, an action by or in the right of the Corporation, by reason of the fact that he or she is or was a director of the Corporation, or is or was serving at the request of the Corporation as a director (or in a similar capacity, including serving as a member of the Partnership Committee and of any other committee of TRG) or in any other representative capacity of another foreign or domestic corporation or of or with respect to any other entity (including TRG), whether for profit or not, against expenses, attorneys' fees, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit, or proceeding. This Section 1 of this Article VIII is intended to grant the persons herein described with the fullest protection not prohibited by existing law in effect as of the date of filing this Amended and Restated Articles of Incorporation or such greater protection as may be permitted or not prohibited under succeeding provisions of law.
2. Indemnification of Officers, Etc.
The Corporation has the power to indemnify a person (including the heirs, executors, and administrators of such person) who is or was a party to, or who is threatened to be made a party to, a threatened, pending, or contemplated action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, including an action by or in the right of the Corporation, by reason of the fact that he or she is or was an officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as an officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership (including TRG), joint venture,
54
trust or other enterprise, whether for profit or not, against expenses, including attorneys' fees, judgments, penalties, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit, or proceeding, if the person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation or its shareholders, and with respect to a criminal action or proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. Unless ordered by a court, an indemnification under this Section 2 of this Article VIII shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in this Section 2 of this Article VIII.
3. Advancement of Expenses.
The Corporation shall pay the expenses incurred by a person described in
Section 1 of this Article VIII in defending a civil or criminal action, suit, or proceeding described in such Section 1 in advance of the final disposition of the action, suit, or proceeding. The Corporation shall pay the expenses incurred by a person described in Section 2 of this Article VIII in defending a civil or criminal action, suit, or proceeding described in such Section 2 in advance of the final disposition of the action, suit, or proceeding upon receipt of an undertaking by or on behalf of such person to repay the expenses if it is ultimately determined that the person is not entitled to be indemnified by the Corporation. Such undertaking shall be by unlimited general obligation of the person on whose behalf advances are made but need not be secured.
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HONIGMAN
 (313) 465-7000 HONIGMAN MILLER SCHWARTZ AND COHN LLP FAX: (313) 465-8000 ATTORNEYS AND COUNSELORS WWW.HONIGMAN.COM
Exhibit 5.1
June 8, 2005
Taubman Centers, Inc.
200 East Long Lake Road, Suite 300 Bloomfield Hills, Michigan 48303
Ladies and Gentlemen:
We have acted as counsel to Taubman Centers, Inc., a Michigan corporation (the "Company"), in connection with the public offering (the "Offering") of up to 3,680,000 shares of the Company's 7.625% Series H Cumulative Redeemable Preferred Stock (the "Shares"), pursuant to a Registration Statement on Form S-3 (No. 333-35433) (the "Registration Statement").
Based upon our examination of such documents and other matters as we deem relevant, it is our opinion that the Shares to be offered by the Company pursuant to the Registration Statement have been duly authorized and, when issued and sold by the Company as described in the Registration Statement, in the amount approved by the Company, against payment therefor, will be validly issued, fully paid and nonassessable
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. We also consent to the identification of our firm as counsel to the Company in the section of the Registration Statement entitled "Legal Matters." In giving such consent, we do not admit hereby that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Securities and Exchange Commission thereunder.
Very truly yours,

/s/ Honigman Miller Schwartz and Cohn LLP

HONIGMAN MILLER SCHWARTZ AND COHN LLP	

DJK/LZM/DZF
2290 FIRST NATIONAL BUILDING - 660 WOODWARD AVENUE - DETROIT,
MICHIGAN 48226 - 3506
DETROIT - LANSING - OAKLAND COUNTY
 
HONIGMAN (313) 465-7000
 FAX: (313) 465-8000
HONIGMAN MILLER SCHWARTZ AND COHN LLP HONIGMAN.COM ATTORNEYS AND COUNSELORS
Exhibit 8.1
June 8, 2005
Taubman Centers, Inc.
200 East Long Lake Road
Bloomfield Hills, Michigan 48303
Re: Certain Federal Income Tax Matters
Ladies and Gentlemen:
We have acted as counsel to Taubman Centers, Inc., a Michigan corporation that has made an election to be treated as a real estate investment trust ("REIT") for federal income tax purposes (the "Company"), in connection with the public offering of up to 3,680,000 shares of the Company's 7.625% Series H Cumulative Redeemable Preferred Stock (the "Offering"), pursuant to the Registration Statement on Form S-3 (File No. 333-35433), filed by the Company with the Securities and Exchange Commission on September 11, 1997, under the Securities Act of 1933, as amended (the "Shelf Registration"), and as more fully described in the Company's prospectus supplement dated June 8, 2005 (the "Prospectus Supplement"), to the prospectus dated September 19, 1997 (together with all exhibits, amendments and supplements thereto (including the Prospectus Supplement), the "Prospectus"). This opinion, regarding certain federal income tax matters, is being rendered to the Company pursuant to the Company's request.
We have also acted as counsel to the Company in connection with the preparation of the section captioned "Material U.S. Federal Income Tax Consequences" of the Prospectus.
In rendering the opinions stated below, we have examined and, with your consent, relied upon the following documents:
(i) Amended and Restated Articles of Incorporation of the Company, dated January 19, 2004, as amended to the date hereof;
(ii) Second Amendment and Restatement of Agreement of Limited Partnership of The Taubman Realty Group Limited Partnership (the "Partnership"), dated September 30, 1998, as amended to the date hereof (the "Partnership Agreement");
(iii) The Operating Agreement of The Taubman Company LLC (the "Manager"), dated October 30, 2001 (the "Operating Agreement");
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MICHIGAN 48226-3506
DETROIT - LANSING - OAKLAND COUNTY
HONIGMAN
June 8, 2005
Page 2
(iv) Amended and Restated Certificate of Incorporation of T-I REIT, Inc. ("T-I REIT"), dated November 17, 1999, as amended to the date hereof;
(v) The Shelf Registration and the Prospectus;
(vi) A letter of even date and signed by Lisa A. Payne as Chief Financial Officer of the Company, on behalf of the Company, a copy of which is attached hereto ("Certificate of Representations"); and
(vii) Such other records, certificates and documents as we have deemed necessary or appropriate for purposes of rendering the opinion set forth herein.
In our examination of the foregoing documents, we have assumed, with your consent, that (i) the documents are original documents, or true and accurate copies of original documents, and have not been subsequently amended, (ii) the signatures on each original document are genuine, (iii) where any such document required execution by a person, the person who executed the document had proper authority and capacity, (iv) all representations and statements set forth in such documents are and will be true and correct, (v) where any such document imposes obligations on a person, such obligations have been or will be performed or satisfied in accordance with their terms, and (vi) the Company, the Partnership, the Manager, and T-I REIT at all times have been and will be organized and operated in accordance with the terms of such documents, as applicable. We have not independently investigated or made separate inquiry into any of the representations, facts or assumptions set forth in such documents or any other documents. Without limiting the foregoing, we have assumed that all statements and descriptions of the Company's past and intended future activities in the Certificate of Representations are true and accurate, and that all representations that speak in the future, or to the intention or expectation, or to the best of the belief and knowledge of any person(s) are and will be true, correct, and complete as if made without such qualification. No facts have come to our attention, however, that would cause us to question the accuracy or completeness of such facts, assumptions, or documents.
For purposes of rendering the opinions stated below, we have assumed that the Offering contemplated by the foregoing documents has been or will be consummated in accordance with the operative documents, and that such documents accurately reflect the material facts of the Offering. In addition, our opinions are based on the assumptions that (i) the Company has been and will continue to be operated in accordance with the laws of the State of Michigan, (ii) the Company has been and will continue to be operated in the manner described in the relevant organizational documents, (iii) the Partnership has been and will continue to be operated in accordance with the laws of the State of Delaware, (iv) the Partnership has been and will continue to be operated in the manner described in the Partnership Agreement, (v) the Manager has been and will continue to be operated in accordance with the laws of the State of Delaware,
2290 FIRST NATIONAL BUILDING - 660 WOODWARD AVENUE - DETROIT,
MICHIGAN 48226 - 3506
DETROIT - LANSING - OAKLAND COUNTY
HONIGMAN
June 8, 2005
Page 3
(vi) the Manager has been and will continue to be operated in the manner described in the Operating Agreement, (vii) T-I REIT has been and will continue to be operated in accordance with the laws of the State of Delaware, and (viii) T-I REIT has been and will continue to be operated in the manner described in the relevant organizational documents.
In rendering the opinions stated below, we have also considered and relied upon the Internal Revenue Code of 1986, as amended (the "Code"), the Treasury regulations promulgated thereunder (the "Regulations"), administrative rulings and the other interpretations of the Code and Regulations by the courts and the Internal Revenue Service (the "Service"), all as they exist as of the date hereof. It should be noted, however, that the Code, Regulations, judicial decisions, and administrative interpretations are subject to change at any time and, in some circumstances, with retroactive effect. Therefore, although our opinions represent our judgment as to the probable outcome of these matters if challenged, we can give no assurance that legislative enactments, administrative changes or court decisions may not be forthcoming that would modify or supersede the opinions stated herein. In addition, there can be no assurance that positions contrary to our opinions will not be taken by the Service, or that a court considering the issues will not hold contrary to such opinions. Moreover, the opinions set forth below represent our conclusions based upon the documents, facts, assumptions, and representations referred to above. Any material amendments to such documents or changes in any significant facts after the date hereof, or inaccuracy of such assumptions or representations, could affect the opinions expressed herein.
We express no opinion as to the laws of any jurisdiction other than the federal laws of the United States of America to the extent specifically referred to herein.
Based upon and subject to the foregoing, we are of the opinion that:
1. The discussion set forth in the Prospectus under the caption "Material U.S. Federal Income Tax Consequences" is a fair and accurate summary of the material federal income tax consequences of the acquisition, ownership and disposition of the Company's Series H Cumulative Redeemable Preferred Shares.
2. The Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, effective for each of its taxable years ended December 31, 2001 through December 31, 2004, and its past, current and proposed method of operation will enable the Company to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 2005 and thereafter.
As noted in the section of the Prospectus captioned "Material U.S. Federal Income Tax Consequences," the Company's qualification and taxation as a REIT depend upon its ability to
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DETROIT - LANSING - OAKLAND COUNTY
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June 8, 2005
Page 4
meet, through actual annual operating results, certain requirements including requirements relating to distribution levels, diversity of stock ownership, composition of assets and sources of income, and the various qualification tests imposed under the Code, the results of which have not been and will not be reviewed by us. Accordingly, no assurance can be given that the actual results of the Company's operation for any one taxable year will satisfy the requirements for taxation as a REIT under the Code.
Other than as expressly stated above, we express no opinion as to any other federal income tax issue or matter relating to the Company. We consent to the filing of this opinion as an exhibit to the Company's current report on the Form 8-K dated of even date herewith and to the use of the name of the firm in the Prospectus Supplement. In giving this consent, we do not thereby admit that we are an "expert" within the meaning of the Securities Act of 1933, as amended. This opinion is expressed as of the date hereof, and we disclaim any undertaking to advise you of any subsequent changes of matters stated, represented, covenanted, or assumed herein or any subsequent changes in applicable law. This opinion is issued to you in connection with the Offering and may not be used or relied upon for any other purpose without our express written consent.
Very truly yours,

/s/ Honigman Miller Schwartz and Cohn LLP

HONIGMAN MILLER SCHWARTZ AND COHN LLP	

DSL:RSS:AZD
2290 FIRST NATIONAL BUILDING - 660 WOODWARD AVENUE - DETROIT,
MICHIGAN 48226 - 3506
DETROIT - LANSING - OAKLAND COUNTY
 
EXHIBIT 10.1
NOTICE OF PARTIAL PREFERRED STOCK REDEMPTION BY
TAUBMAN CENTERS, INC.
OF 3,480,000 OUTSTANDING SHARES OF ITS
8.30% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK,
PAR VALUE $0.01 PER SHARE
CUSIP 876664202
June 10, 2005
To: Holders of 8.30% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share
Notice is hereby given that, Taubman Centers, Inc., (the "Company"), pursuant to the provisions of its Restated Articles of Incorporation relating to the 8.30% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share (the "Series A Preferred Stock") of the Company, has called for a redemption on July 11, 2005 (the "Redemption Date"), 3,480,000 of its 8,000,000 outstanding shares of its Series A Preferred Stock. The shares of Series A Preferred Stock to be redeemed have been selected pro rata from each holder of Series A Preferred Stock, as nearly as may be practicable without creating fractional shares.
This Notice of Redemption means that a portion of your shares of Series A Preferred Stock have been called for redemption. The total number of shares of your Series A Preferred Stock which have been called for redemption is shown in "Box 3" on the enclosed Letter of Transmittal and will be paid at the redemption price below. The total number of shares of your Series A Preferred Stock which have been called for redemption will not be available for transfer, sale or any other action from June 10, 2005 to July 11, 2005 pursuant to the redemption process. Carefully read this Notice of Redemption, together with the accompanying Letter of Transmittal and the instructions contained therein, before filling out the Letter of Transmittal.
REDEMPTION REQUIREMENTS
The redemption price is $25.00 plus accrued dividends of $0.0576389 per share to the Redemption Date (the "Redemption Price"). Please consult your tax advisor to determine the tax treatment of the redemption payment. Rights of the holders of the 3,480,000 shares of Series A Preferred Stock called for redemption shall be limited to receipt of the Redemption Price. Payment of the total Redemption Price will be made on or after the Redemption Date upon presentation and surrender of certificates for shares of Series A Preferred Stock to Mellon Investor Services L.L.C. as the Redemption Agent (the "Agent"), as follows:

BY MAIL:                                     BY HAND:

Mellon Investor Services LLC                 Mellon Investor Services LLC
P.O. Box 3202                                120 Broadway, 13th Floor
South Hackensack, NJ 07606                   New York, NY 10271
Attn: Reorganization Department              Attn: Reorganization Department

BY OVERNIGHT DELIVERY:                       TOLL FREE NUMBER:

Mellon Investor Services LLC                  1-800-777-3674
85 Challenger Road - Mail Drop Reorg
Ridgefield, NJ 07660
Attn: Reorganization Department	

The method of delivery of the certificate(s) is at the option and risk of the owner. If sent by mail, registered mail, properly insured, is recommended. From and after the Redemption Date, the 3,480,000 shares of the total 8,000,000 shares of Series A Preferred Stock which have been called for redemption will be deemed to be no longer outstanding. Dividends on the 3,480,000 shares of Series A Preferred Stock which have been called for redemption will cease to accrue, and the holders will be entitled to no rights as such holders except the right to receive payment of the total Redemption Price.