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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF
THE SECURITIES EXCHANGE ACT OF 1934
KIMCO REALTY CORPORATION
(State of incorporation or organization)
(I.R.S. Employer Identification No.)
3333 New Hyde Park Road
(Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
to be so registered
Name of each exchange on which
each class is to be registered
Class M Depositary Shares, each of which represents a one-one thousandth fractional interest in a share of 5.25% Class M Cumulative Redeemable Preferred Stock, liquidation preference $25,000.00 per share, of the Registrant
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. x
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. ¨
Securities Act registration statement file number to which this form relates:
333-202389.
Securities to be registered pursuant to Section 12(g) of the Act:
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered.
Kimco Realty Corporation (the "Registrant") registers hereunder its Class M Cumulative Redeemable Preferred Stock (the "Preferred Stock") and the depositary shares representing the Preferred Stock (the "Depositary Shares"). The sections entitled "Description of Preferred Stock," found on page 14 of the prospectus (the "Prospectus") forming part of the Registrant's Registration Statement on Form S-3 (File No. 333- 202389) (the "S-3 Registration Statement") and "Description of Depositary Shares," found on page 16 of the Prospectus are incorporated herein by reference. The section captioned "Description of Class M Preferred Stock and Depositary Shares" found on page S-9 of the Registrant's prospectus supplement, dated December 11, 2017, filed pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended, and forming a part of the S-3 Registration Statement, is also incorporated herein by reference.
Item 2. Exhibits.
The following exhibits are incorporated by reference in this Registration Statement.
Articles of Restatement of the Registrant, dated January 14, 2011 (incorporated by reference to Exhibit 3.1(a) to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2010 (File No. 1-10899)).
Amendment to Articles of Restatement of the Registrant, dated May 8, 2014 (incorporated by reference to Exhibit 3.1(b) to the Registrant's Annual Report on Form 10-K for the year ended December 31, 2016 (File No. 1-10899)).
Articles Supplementary relating to the Registrant's 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share (filed herewith).
Amended and Restated By-laws of the Registrant, dated February 25, 2009 (incorporated by reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 2008 (File No. 1-10899).
Form of Deposit Agreement (incorporated by reference to Exhibit 4(u) included in the S-3 Registration Statement).
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
(Registrant)
By: /s/ Glenn G. Cohen
Glenn G. Cohen
ARTICLES SUPPLEMENTARY
Kimco Realty Corporation, a corporation organized and existing under the laws of the State of Maryland (the "Corporation"), hereby certifies to the State Department of Assessments and Taxation of Maryland that:
Pursuant to the authority granted to and vested in the Board of Directors of the Corporation (the "Board of Directors") in accordance with Article IV.D. of the charter of the Corporation, including these Articles Supplementary (the "Charter"), the Board of Directors on December 8, 2017, and the Pricing Committee of the Board of Directors on December 11, 2017, adopted resolutions reclassifying 10,580 shares (the "Shares") of Preferred Stock (as defined in the Charter) as a separate class of Preferred Stock, 5.25% Class M Cumulative Redeemable Preferred Stock, $1.00 par value per share ("Class M Preferred Stock"), and reclassifying 10,580 shares (the "Class M Excess Shares") of Preferred Stock (as defined in the Charter) as a separate class of stock, Class M Excess Preferred Stock, $1.00 par value per share ("Class M Excess Preferred Stock"), each with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications, and terms and conditions of redemption set forth below:
5.25% CLASS M CUMULATIVE REDEEMABLE PREFERRED STOCK
Certain Definitions .
Unless the context otherwise requires, the terms defined in this paragraph (A) shall have, for all purposes of the provisions of the Charter in respect of the Preferred Equity Stock, the meanings herein specified (with terms defined in the singular having comparable meanings when used in the plural).
Aggregate Stock Ownership Limit . The term "Aggregate Stock Ownership Limit" shall mean not more than 9.8% of the value of the outstanding shares of Capital Stock of the Corporation.
Beneficial Ownership . The term "Beneficial Ownership" shall mean ownership of stock by a Person who is or would be treated as an owner of stock either directly or constructively through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. In addition, "Beneficial Ownership" shall include ownership of Capital Stock by a Person who meets any one of its tests for beneficial ownership as set forth under Rule 13d-3 of the Securities Exchange Act of 1934, as amended. The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall have the correlative meanings.
Beneficiary . The term "Beneficiary" shall mean the beneficiary of the Trust as determined pursuant to subparagraph (11)(d)(1) of paragraph (F) below.
Business Day . The term "Business Day" shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.
Capital Gains Amount . The term "Capital Gains Amount" shall have the meaning set forth in subparagraph (7) of paragraph (B) below.
Capital Stock . The term "Capital Stock" shall mean all classes of series of stock of the Corporation, including, without limitation, Common Equity, Class I Preferred Stock, Class J Preferred Stock, Class K Preferred Stock, Class L Preferred Stock and Class M Preferred Stock.
Class I Preferred Stock . The term "Class I Preferred Stock" shall mean the 6.00% Class I Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Corporation.
Class J Preferred Stock . The term "Class J Preferred Stock" shall mean the 5.50% Class J Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Corporation.
Class K Preferred Stock . The term "Class K Preferred Stock" shall mean the 5.625% Class K Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Corporation.
Class L Preferred Stock . The term "Class L Preferred Stock" shall mean the 5.125% Class L Cumulative Redeemable Preferred Stock, $1.00 par value per share, of the Corporation.
Code . The term "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time.
Common Equity . The term "Common Equity" shall mean all shares now or hereafter authorized of any class of common stock of the Corporation, including the Common Stock, and any other stock of the Corporation, howsoever designated, authorized after the Initial Issue Date, which has the right (subject always to prior rights of any class or series of preferred stock) to participate in the distribution of the assets and earnings of the Corporation without limit as to per share amount.
Common Stock . The term "Common Stock" shall mean the common stock, $.01 par value per share, of the Corporation.
Constructive Ownership . The term "Constructive Ownership" shall mean ownership of Class M Preferred Stock or Class M Excess Preferred Stock by a Person who is or would be treated as an owner of such Class M Preferred Stock or Class M Excess Preferred Stock either directly or 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.
Depositary Shares . The term "Depositary Shares" shall mean the Depositary Shares each representing a one-one thousandth (1/1000) fractional interest in a share of Class M Preferred Stock.
Dividends . The term "Dividends" shall have the meaning set forth in subparagraph (7) of paragraph (B) below.
Dividend Payment Date . The term "Dividend Payment Date" shall have the meaning set forth in subparagraph (2) of paragraph (B) below.
Dividend Period . The term "Dividend Period" with respect to a share of Class M Preferred Stock shall mean the period from, and including, the Initial Issue Date to, but excluding, the first Dividend Payment Date and thereafter, each quarterly period from, and including, the Dividend Payment Date commencing such period to, but excluding, the succeeding Dividend Payment Date.
Individual . The term "Individual" shall mean an individual, 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, or a private foundation within the meaning of Section 509(a) of the Code, provided that a trust described in Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code shall be excluded from this definition.
Initial Issue Date . The term "Initial Issue Date" shall mean the date that shares of Class M Preferred Stock are first issued by the Corporation.
IRS . The term "IRS" means the United States Internal Revenue Service.
Junior Stock . The term "Junior Stock" shall mean, as the case may be, (i) the Common Equity and any other class or series of stock of the Corporation which is not entitled to receive any dividends in any Dividend Period unless all dividends required to have been paid or declared and set apart for payment on the Class M Preferred Stock shall have been so paid or declared and set apart for payment or (ii) the Common Equity and any other class or series of stock of the Corporation, which is not entitled to receive any assets upon liquidation, dissolution or winding up of the affairs of the Corporation until the Class M Preferred Stock shall have received the entire amount to which such Class M Preferred Stock is entitled upon such liquidation, dissolution or winding up.
Liquidation Preference . The term "Liquidation Preference" shall mean $25,000.00 per share of Class M Preferred Stock.
Market Price . The term "Market Price" shall mean the price of the Class M Preferred Stock (i) as determined by multiplying by one thousand the last reported sales price of the Depositary Shares reported on the NYSE on the trading day immediately preceding the relevant date or, (ii) if the Depositary Shares are not then traded on the NYSE, as determined by multiplying by one thousand the last reported sales price of the Depositary Shares on the trading day immediately preceding the relevant date as reported on any exchange or quotation system over which the Depositary Shares may be traded or, (iii) if the Depositary Shares are not then traded over any exchange or quotation system, as determined in good faith by the Board of Directors.
Notice . The term "Notice" shall have the meaning set forth in subparagraph (4) of paragraph (D) below.
NYSE . The term "NYSE" shall mean New York Stock Exchange, Inc., including any successor thereto.
Ownership Limit . The term "Ownership Limit" shall mean not more than 9.8% of the outstanding shares of Preferred Equity Stock.
Parity Stock . The term "Parity Stock" shall mean, as the case may be, (i) any class or series of stock of the Corporation which is entitled to receive payment of dividends on a parity with the Class M Preferred Stock or (ii) any class or series of stock of the Corporation which is entitled to receive assets upon liquidation, dissolution or winding up of the affairs of the Corporation on a parity with the Class M Preferred Stock. The term "Parity Stock" shall include, without limitation, the Class I Preferred Stock, the Class J Preferred Stock, the Class K Preferred Stock and the Class L Preferred Stock.
Person . The term "Person" shall mean 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; but does not include an underwriter which participates in a public offering of the Class M Preferred Stock or any interest therein, provided that such ownership by such underwriter would not result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code, or otherwise result in the Corporation failing to qualify as a REIT.
Preferred Equity Stock . The term "Preferred Equity Stock" shall mean shares of stock that are either Class M Preferred Stock or Class M Excess Preferred Stock.
Purported Beneficial Transferee . The term "Purported Beneficial Transferee" shall mean, with respect to any purported Transfer or other event which results in Class M Excess Preferred Stock, the purported beneficial transferee or owner for whom the Purported Record Transferee would have acquired or owned shares of Class M Preferred Stock if such Transfer or ownership had been valid under subparagraph (1) of paragraph (F) below.
Purported Record Transferee . The term "Purported Record Transferee" shall mean, with respect to any purported Transfer or other event which results in Class M Excess Preferred Stock, the record holder of the Preferred Equity Stock if such Transfer or ownership had been valid under subparagraph (1) of paragraph (F) below.
Record Date . The term "Record Date" shall mean the date designated by the Board of Directors at the time a dividend is authorized as the date for determining stockholders entitled to payment of the dividend; provided, however, that such Record Date shall be the first day of the calendar month in which the applicable Dividend Payment Date falls or such other date designated by the Board of Directors that is not more than thirty (30) days nor less than ten (10) days prior to such Dividend Payment Date.
Redemption Date . The term "Redemption Date" shall have the meaning set forth in subparagraph (2) of paragraph (D) below.
Redemption Price . The term "Redemption Price" shall mean a price per share equal to $25,000.00 plus accrued and unpaid dividends thereon, if any, to, but excluding, the Redemption Date, and as adjusted in subparagraph (2) of paragraph (D) below.
REIT . The term "REIT" shall mean a real estate investment trust under Section 856 of the Code.
Senior Stock . The term "Senior Stock" shall mean, as the case may be, (i) any class or series of stock of the Corporation created after the Initial Issue Date in accordance with subparagraph (1) of paragraph (E) ranking senior to the Class M Preferred Stock in respect of the right to receive dividends or (ii) any class or series of stock of the Corporation created after the Initial Issue Date in accordance with subparagraph (1) of paragraph (E) ranking senior to the Class M Preferred Stock in respect of the right to participate in any distribution upon liquidation, dissolution or winding up of the affairs of the Corporation.
Total Dividends . The term "Total Dividends" shall have the meaning set forth in subparagraph (7) of paragraph (B) below.
Transfer . The term "Transfer" shall mean any sale, transfer, gift, assignment, devise or other disposition of Preferred Equity Stock or Depositary Shares, including (i) the granting of any option or entering into any agreement for the sale, transfer or other disposition of Preferred Equity Stock or Depositary Shares or (ii) the sale, transfer, assignment or other disposition of any securities (or rights convertible into or exchangeable for Preferred Equity Stock or Depositary Shares), whether voluntary or involuntary, whether of record or Beneficially or Constructively (including but not limited to transfers of interests in other entities which result in changes in Beneficial or Constructive Ownership of Preferred Equity Stock or Depositary Shares), and whether by operation of law or otherwise.
Trust . The term "Trust" shall mean the trust created pursuant to subparagraph (11)(a) of paragraph (F).
Trustee . The term "Trustee" shall mean the Corporation as trustee for the Trust, and any successor trustee appointed by the Corporation.
Dividends .
The record holders of Class M Preferred Stock shall be entitled to receive dividends, when, as and if authorized by the Board of Directors and declared by the Corporation, out of funds legally available for payment of dividends. Such dividends shall be payable by the Corporation in cash at the rate of 5.25% per annum of the Liquidation Preference.
Dividends on each outstanding share of Class M Preferred Stock shall accrue as set and be cumulative from, and including, the Initial Issue Date. Dividends shall be payable quarterly in arrears when, as and if authorized by the Board of Directors and declared by the Corporation on January 15, April 15, July 15 and October 15 of each year, commencing on April 15, 2018 (each, a "Dividend Payment Date"). If any Dividend Payment Date occurs on a day that is not a Business Day, any accrued dividends otherwise payable on such Dividend Payment Date shall be paid on the next succeeding Business Day. The amount of dividends payable for each Dividend Period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends shall be paid to the holders of record of the Class M Preferred Stock as their names shall appear on the stock transfer records of the Corporation at the close of business on the Record Date for such dividends. Dividends in respect of any past Dividend Periods that are in arrears may be declared and paid at any time to holders of record on the Record Date therefor. Any dividend payment made on shares of Class M Preferred Stock shall be first credited against the earliest accrued but unpaid dividend due with respect to the Class M Preferred Stock which remains payable.
If any shares of Class M Preferred Stock are outstanding, no full dividends shall be declared or paid or set apart for payment on any Parity Stock or Junior Stock for any period unless full cumulative dividends have been or contemporaneously are declared and paid (contemporaneously with the respective dates that the dividends on the Parity Stock or Junior Stock are so declared and so paid) or declared and a sum sufficient for the payment thereof set apart for such payment on the Class M Preferred Stock for all past Dividend Periods. When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the shares of the Class M Preferred Stock and any Parity Stock, all dividends declared upon the shares of the Class M Preferred Stock and any such Parity Stock shall be declared pro rata so that the amount of dividends declared per share on the Class M Preferred Stock and all other such Parity Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of the Class M Preferred Stock and all other such Parity Stock bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Class M Preferred Stock which may be in arrears.
Except as provided in subparagraph (3) of this paragraph (B), unless full cumulative dividends on the Class M Preferred Stock have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods, no dividends (other than in the form of Common Stock or other Junior Stock) shall be declared or paid or set apart for payment or other distribution shall be declared or made upon any Junior Stock or Parity Stock or any excess stock nor shall any Junior Stock or Parity Stock or any excess stock be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any shares of any such Junior Stock or Parity Stock or any excess stock) by the Corporation (except by conversion into or exchange for Junior Stock).
Notwithstanding anything contained herein to the contrary, no dividends on shares of Class M Preferred Stock shall be authorized by the Board of Directors or declared by the Corporation or paid or set apart for payment by the Corporation at such time as the terms and provisions of any agreement of the Corporation, including any agreement relating to its indebtedness, prohibits such authorization, declaration, payment or setting apart for payment or provides that such authorization, declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or to the extent such declaration or payment shall be restricted or prohibited by law.
Notwithstanding anything contained herein to the contrary, dividends on the Class M Preferred Stock will accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of the dividends and whether or not the dividends are authorized or declared. Accrued but unpaid dividends on the Class M Preferred Stock will not bear interest.
If, for any taxable year, the Corporation elects to designate as "capital gain dividends" (as defined in Section 857 of the Code) any portion (the "Capital Gains Amount") of the dividends (as determined for federal income tax purposes) (the "Dividends") paid or made available for the year to holders of all classes of stock (the "Total Dividends") then, except as required by law, the portion of the Capital Gains Amount that shall be allocable to holders of the Class M Preferred Stock shall be the amount that the aggregate Dividends paid or made available to the holders of the Class M Preferred Stock for the year bears to the Total Dividends.
Distributions Upon Liquidation, Dissolution or Winding Up .
Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, subject to the prior preferences and other rights of any Senior Stock as to the distribution of assets upon liquidation, dissolution or winding up of the affairs of the Corporation, but before any distribution or payment shall be made to the holders of any Junior Stock or any excess stock, the holders of Class M Preferred Stock shall be entitled to be paid out of the assets of the Corporation legally available for distribution to its
stockholders liquidating distributions in cash or property at its fair market value as determined by the Board of Directors in the amount of the Liquidation Preference plus an amount equal to all accrued and unpaid dividends to, but excluding, the date of such liquidation, dissolution or winding up. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Class M Preferred Stock will have no right or claim to any of the remaining assets of the Corporation and shall not be entitled to any other distribution in the event of liquidation, dissolution or winding up of the affairs of the Corporation.
In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the legally available assets of the Corporation are insufficient to pay the amount of the Liquidation Preference plus an amount equal to all accrued and unpaid dividends on the Class M Preferred Stock and the corresponding amounts payable on Parity Stock upon any such liquidation, dissolution or winding up, then the holders of the Class M Preferred Stock and the holders of such Parity Stock shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they otherwise would be respectively entitled. Neither the consolidation or merger of the Corporation into or with another entity or entities nor the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Corporation to another corporation or any other entity, individually or as part of a series of transactions, shall be deemed a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of this paragraph (C).
Redemption by the Corporation .
The Class M Preferred Stock may be redeemed for cash, in whole or from time to time in part, on any date on or after December 20, 2022 at the option of the Corporation at the Redemption Price.
Each date fixed for redemption pursuant to subparagraph (1) of this paragraph (D) is called a "Redemption Date." If the Redemption Date is after the Record Date and before the related Dividend Payment Date, the dividend payable on such Dividend Payment Date shall be paid to the holder in whose name the Class M Preferred Stock to be redeemed is registered at the close of business on such Record Date notwithstanding the redemption thereof between such Record Date and the related Dividend Payment Date or the Corporation's default in the payment of the dividend due, and the Redemption Price shall not include the amount of such dividend payable on such Dividend Payment Date.
In case of redemption of less than all shares of Class M Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation by lot (as nearly as practicable without creating fractional shares) or by any other equitable method prescribed by the Board of Directors that will not result in the issuance of any Class M Excess Preferred Stock.
In order to exercise its redemption option, the Corporation shall give written notice ("Notice") of such redemption to each holder of record of the shares of Class M Preferred Stock to be redeemed not less than 30 days or more than 60 days prior to the Redemption Date. The Notice will be mailed by the Corporation, postage prepaid, addressed to the respective holders of record of the Class M Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. The notice of redemption may be contingent on the occurrence of a future event. No failure to give such Notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any shares of Class M Preferred Stock, except as to any holder to whom the Corporation has failed to give Notice or except as to any holder to whom Notice was defective. In addition to any information required by law or by the applicable rules of any exchange upon which Class M Preferred Stock may be listed or admitted to trading, such Notice shall state: (i) the Redemption Date; (ii) the Redemption Price; (iii) the number of shares of Class M Preferred Stock to be redeemed and, if less than all shares held by the particular holder are to be redeemed, the number of such shares to be redeemed from such holder; (iv) the place or places where certificates for such shares are to be surrendered for payment of the Redemption Price; and (v) that dividends on the shares to be redeemed will cease to accrue on the Redemption Date.
Notice having been mailed in accordance with subparagraph (4) of this paragraph (D), from and after the Redemption Date (unless the Corporation shall fail to make available an amount of cash necessary to pay the Redemption Price), (i) except as otherwise provided herein, dividends on the shares of Class M Preferred Stock so called for redemption shall cease to accrue, (ii) said shares shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Class M Preferred Stock of the Corporation shall cease (except the rights to receive the Redemption Price in cash). The Corporation's obligation to provide cash in accordance with the preceding sentence shall be deemed fulfilled if, on or before the Redemption Date, the Corporation shall deposit with a bank or trust company (which may be an affiliate of the Corporation), cash necessary for such redemption, in trust, with irrevocable instructions that such cash be applied to the redemption of the shares of Class M Preferred Stock so called for redemption. In this case, the Corporation's Notice shall (i) specify the office of such bank or trust company as the place of payment of the Redemption Price and (ii) call upon respective holders of record of the Class M Preferred Stock to surrender certificates for such shares, on the Redemption Date fixed in the Notice, for payment of the Redemption Price. No interest shall accrue for the benefit of any holder of shares of Class M Preferred Stock to be redeemed on any cash so set aside by the Corporation. Subject to applicable escheat laws, any such cash unclaimed at the end of two years from the Redemption Date shall revert to the general funds of the Corporation, after which reversion, the holders of such shares so called for redemption shall look only to the general funds of the Corporation for the payment of such cash.
As promptly as practicable after the surrender of the certificates for any such shares of Class M Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and if the Notice shall so state) in accordance with said Notice, the Corporation (or the related bank or trust company, if applicable) shall pay to the applicable holders the Redemption Price in cash (without interest thereon). In the event of the redemption of less than all shares of Class M Preferred Stock at the time outstanding, the shares to be redeemed shall be selected by the Corporation by lot (as nearly as practicable without creating fractional shares) or by any other equitable method determined by the Board of Directors that will not result in the issuance of any Class M Excess Preferred Stock. If fewer than all the shares of Class M Preferred Stock represented by any certificate are redeemed, then new certificates representing the unredeemed shares of Class M Preferred Stock shall be issued without cost to the holder thereof.
Unless full cumulative dividends on all outstanding shares of Class M 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, (i) no shares of any Class M Preferred Stock shall be redeemed, unless all outstanding shares of Class M Preferred Stock are simultaneously redeemed and (ii) the Corporation shall not purchase or otherwise acquire directly or indirectly any shares of Class M Preferred Stock (except by conversion into or exchange for Junior Stock); provided, however, that the foregoing shall not prevent the purchase or acquisition of shares of Class M Preferred Stock pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding shares of Class M Preferred Stock.
All shares of Class M Preferred Stock redeemed pursuant to this paragraph (D) shall be retired and shall be reclassified as authorized and unissued shares of Preferred Stock, without designation as to class or series, and may thereafter be reissued as shares of any class or series of Preferred Stock.
Voting Rights .
The holders of record of shares of Class M Preferred Stock shall not be entitled to any voting rights except as hereinafter provided in this paragraph (E) or as required by applicable law. So long as any shares of Class M Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote or consent of the holders of at least two-thirds (2/3) of the shares of the Class M Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (such Class M Preferred Stock voting separately as a class): (i) authorize or create, or increase the authorized or issued amount of, any class or series of Senior Stock, or reclassify any authorized stock into Senior Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any Senior Stock; or (ii) amend, alter or repeal the provisions of the Charter, whether by merger, consolidation or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Class M Preferred Stock; except that (1) with respect to the occurrence of any of the events described in (ii) above, so long as the Class M Preferred Stock remains outstanding with the terms of the Class M Preferred Stock materially unchanged or is converted into a security in another entity with the terms materially unchanged, the occurrence of such event will not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of the Class M Preferred Stock and (2) (A) any increase in the amount of the authorized shares of Class M Preferred Stock or the authorization or issuance of any Parity Stock or Junior Stock or (B) any increase in the number of authorized shares of Class M Preferred Stock or Parity Stock or Junior Stock shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers.
If and whenever dividends payable on Class M Preferred Stock shall be in arrears for six (6) or more Dividend Periods, whether or not consecutive, then the holders of Class M Preferred Stock (voting together as a class with Parity Stock upon which like voting rights have been conferred and are exercisable as provided in subparagraph (5) of this paragraph (E)) shall be entitled at the next annual meeting of the stockholders or at any special meeting of stockholders called for the purpose of electing directors to elect two (2) additional directors. Upon election, such directors shall become directors of the Corporation and the authorized number of directors of the Corporation shall thereupon be automatically increased by two.
Whenever the voting right described in subparagraph (2) of this paragraph (E) shall have vested, such right may be exercised initially either at a special meeting of the holders of Class M Preferred Stock and any Parity Stock entitled to vote as provided in subparagraph (5) of this paragraph (E), called as hereinafter provided, or at any annual meeting of stockholders held for the purpose of electing directors and, thereafter, at such annual meetings or by the written consent of the holders of Class M Preferred Stock and any such Parity Stock. Such right of the holders of Class M Preferred Stock to elect directors together with the holders of any such Parity Stock may be exercised until all dividends to which the holders of Class M Preferred Stock shall have been entitled for (i) all previous Dividend Periods and (ii) the current Dividend Period shall have been paid in full, at which time the right of the holders of Class M Preferred Stock to elect directors together with holders of any such Parity Stock shall cease, the term of such directors previously elected shall thereupon terminate, and the authorized number of directors of the Corporation shall thereupon return to the number of authorized directors otherwise in effect, but subject always to the same provisions for the renewal and divestment of such special voting rights in the case of any such future dividend default or defaults.
At any time when the voting right described in subparagraph (2) of this paragraph (E) shall have vested in the holders of Class M Preferred Stock and if such right shall not already have been initially exercised, a proper officer of the Corporation shall, upon the written request of any holder of record of Class M Preferred Stock then outstanding, addressed to the Secretary of the Corporation, call a
special meeting of holders of Class M Preferred Stock together with the holders of any Parity Stock entitled to vote as provided in subparagraph (5) of this paragraph (E). Such meeting shall be held on the earliest practicable date upon the notice required for annual meetings of stockholders at the place for holding annual meetings of stockholders of the Corporation or, if none, at a place designated by the Secretary of the Corporation. If such meeting shall not be called by a proper officer of the Corporation within thirty (30) days after the personal service of such written request upon the Secretary of the Corporation, or within thirty (30) days after mailing the same within the United States, by registered mail, addressed to the Secretary of the Corporation at its principal office (such mailing to be evidenced by the registry receipt issued by the postal authorities), then the holders of record of ten percent (10%) of the shares of Class M Preferred Stock then outstanding may designate in writing a holder of Class M Preferred Stock to call such meeting at the expense of the Corporation, and such meeting may be called by such person so designated upon the notice required for annual meetings of stockholders and shall be held at the place for holding annual meetings of the Corporation or, if none, at a place designated by such holder. Any holder of Class M Preferred Stock that would be entitled to vote at such meeting shall have access to the stock transfer records of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to the provisions of this paragraph (E). Notwithstanding the provisions of this paragraph (E), however, no such special meeting shall be called if any such request is received less than ninety (90) days before the date fixed for the next ensuing annual or special meeting of stockholders.
If, at any time when the holders of Class M Preferred Stock are entitled to elect directors pursuant to the foregoing provisions of this paragraph (E), the holders of any one or more classes or series of Parity Stock are entitled to elect one or more directors by reason of any default or event specified in the Charter, as in effect at the time, and if the terms for such classes or series of Parity Stock so provide, then the voting rights of the Class M Preferred Stock and the one or more classes or series of Parity Stock then entitled to vote shall be combined (with each having a number of votes proportional to the aggregate liquidation preference of its outstanding shares). In such case, the holders of Class M Preferred Stock and of all such classes or series of Parity Stock then entitled to so vote, voting together as a class, shall elect such directors. If the holders of any such classes or series of Parity Stock have elected such directors prior to the happening of the default or event providing for the election of directors by the holders of Class M Preferred Stock, or prior to a written request for the holding of a special meeting being received by the Secretary of the Corporation as elsewhere required in subparagraph (4) of paragraph (E) above, then a new election shall be held with all such classes or series of Parity Stock and the Class M Preferred Stock voting together as a single class for such director(s), resulting in the termination of the term of such previously elected director(s) upon the election of such new director(s). If the holders of any such classes or series of Parity Stock are entitled to elect two directors, the Class M Preferred Stock shall not participate in the election of more than two such directors, and such directors whose terms first expire shall be deemed to be the directors elected by the holders of Class M Preferred Stock; provided, that if at the expiration of such terms the holders of Class M Preferred Stock are entitled to vote in the election of directors pursuant to the provisions of this paragraph (E), then the Secretary of the Corporation shall call a meeting (which meeting may be the annual meeting or a special meeting of stockholders referred to in subparagraph (3) of this paragraph (E)) of holders of Class M Preferred Stock for the purpose of electing replacement directors (in accordance with the provisions of this paragraph (E)) to be held at or prior to the time of expiration of the expiring terms referred to above.
If and for so long as the shares of Class M Preferred Stock are represented by Depositary Shares in accordance with paragraph (J) hereof, then in any matter in which the Class M Preferred Stock is entitled to vote (as expressly provided herein), including any action by written consent, each share of Class M Preferred Stock shall be entitled to one thousand (1000) votes, each of which one thousand (1000) votes may be directed separately by the holder thereof (or by any proxy or proxies of such holder). With respect to each share of Class M Preferred Stock, the holder thereof may designate up to one thousand (1000) proxies, with each such proxy having the right to vote a whole number of votes (totaling one thousand (1000) votes per share of Class M Preferred Stock).
Notwithstanding anything contained herein to the contrary, the foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which the vote would otherwise be required shall be effected, all outstanding shares of Class M Preferred Stock shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect the redemption.
Restrictions on Ownership to Preserve Tax Benefit; Conversion of Class M Excess Preferred Stock; and Terms of Class M Excess Preferred Stock.
Restriction on Ownership and Transfer .
Except as provided in subparagraph (8) of this paragraph (F), no Person shall Beneficially Own or Constructively Own Class M Preferred Stock in excess of the Ownership Limit;
Except as provided in subparagraph (8) of this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) that, if effective, would result in any Person Beneficially Owning Class M Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Class M Preferred Stock which would be otherwise Beneficially Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Class M Preferred Stock;
Except as provided in subparagraph (8) of this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) that, if effective, would result in any Person Constructively Owning Class M Preferred Stock in excess of the Ownership Limit shall be void ab initio as to the Transfer of such Class M Preferred Stock which would be otherwise Constructively Owned by such Person in excess of the Ownership Limit; and the intended transferee shall acquire no rights in such Class M Preferred Stock; and
Notwithstanding any other provisions contained in this paragraph (F), any Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) or other event that, if effective, would result in the Corporation being "closely held" within the meaning of Section 856(h) of the Code, or would otherwise result in the Corporation failing to qualify as a REIT (including, but not limited to, a Transfer or other event that would result in the Corporation owning (directly or Constructively) an interest in a tenant that is described in Section 856(d)(2)(B) of the Code if the income derived by the Corporation from such tenant would cause the Corporation to fail to satisfy any of the gross income requirements of Section 856(c) of the Code) shall be void ab initio as to the Transfer of the Class M Preferred Stock or other event which would cause the Corporation to be "closely held" within the meaning of Section 856(h) of the Code or would otherwise result in the Corporation failing to qualify as a REIT; and the intended transferee or owner or Constructive or Beneficial Owner shall acquire or retain no rights in such Class M Preferred Stock.
Conversion into Class M Excess Preferred Stock . If, notwithstanding the other provisions contained in this paragraph (F), at any time after the Initial Issue Date, there is a purported Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE), change in the capital structure of the Corporation or other event such that one or more of the restrictions on ownership and transfer described in subparagraph (1) of this paragraph (F), above have been violated, then the Class M Preferred Stock being Transferred (or in the case of an event other than a Transfer, the Class M Preferred Stock owned or Constructively Owned or Beneficially Owned or, if the next sentence applies, the Class M Preferred Stock identified in the next sentence) which would cause one or more of the restrictions on ownership or transfer to be violated (rounded up to the nearest whole share) shall be automatically converted into an equal number of shares of Class M Excess Preferred Stock. If at any time of such purported Transfer any of the shares of the Class M Preferred Stock are then owned by a depositary to permit the trading of beneficial interests in fractional shares of Class M Preferred Stock, then shares of Class M Preferred Stock that shall be converted to Class M Excess Preferred Stock shall be first taken from any Class M Preferred Stock that is not in such depositary that is Beneficially Owned or Constructively Owned by the Person whose Beneficial Ownership or Constructive Ownership would otherwise violate the restrictions of subparagraph (1) of this paragraph (F) prior to converting any shares in such depositary. Any conversion pursuant to this subparagraph shall be effective as of the close of business on the Business Day prior to the date of such Transfer or other event.
Remedies for Breach . If the Board of Directors or its designees shall at any time determine in good faith that a Transfer or other event has taken place in violation of subparagraph (1) of this paragraph (F) or that a Person intends to acquire, has attempted to acquire or may acquire direct ownership, beneficial ownership (determined without reference to any rules of attribution), Beneficial Ownership or Constructive Ownership of any shares of the Corporation in violation of subparagraph (1) of this paragraph (F), the Board of Directors or its designees shall take such action as it deems advisable to refuse to give effect to or to prevent such Transfer or other event, including, but not limited to, causing the Corporation to purchase such shares upon the terms and conditions specified by the Board of Directors in its sole discretion, refusing to give effect to such Transfer or other event on the books of the Corporation or instituting proceedings to enjoin such Transfer or other event; provided, however, that any Transfer (or, in the case of events other than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in violation of subparagraph (1) of this paragraph (F) shall automatically result in the conversion described in subparagraph (2), irrespective of any action (or non-action) by the Board of Directors.
Notice of Restricted Transfer . Any Person who acquires or attempts to acquire Class M Preferred Stock or other securities in violation of subparagraph (1) of this paragraph (F), or any Person who owns or will own Class M Excess Preferred Stock as a result of an event under subparagraph (2) of this paragraph (F), 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 in order to determine the effect, if any, of such Transfer or attempted Transfer or other event on the Corporation's status as a REIT.
Owners Required to Provide Information . From and after the Initial Issue Date, each Person who is a beneficial owner or Beneficial Owner or Constructive Owner of Class M Preferred Stock and each Person (including the stockholder of record) who is holding Class M Preferred Stock for a Beneficial Owner or Constructive Owner shall provide to the Corporation such information that the Corporation may request, in good faith, in order to determine the Corporation's status as a REIT.
Remedies Not Limited . Nothing contained in this paragraph (F) (but subject to subparagraph (12) of this paragraph (F)) shall limit the authority of the Board of Directors to take such other action as it deems necessary or advisable to protect the Corporation and the interests of its stockholders by preservation of the Corporation's status as a REIT.
Ambiguity . In the case of an ambiguity in the application of any of the provisions of this paragraph (F), including any definition contained in paragraph (A), the Board of Directors shall have the power to determine the application of the provisions of this paragraph (F) with respect to any situation based on the facts known to it (subject, however, to the provisions of paragraph (12) of this paragraph (F)).
Subject to subparagraph (1)(d) of this paragraph (F), the Board of Directors, in its sole discretion, with the advice of the Corporation's tax counsel, may exempt (prospectively or retroactively) a Person from the limitation on a Person Beneficially Owning shares of Class M Preferred Stock in violation of subparagraphs (1)(a) or (1)(b) of this paragraph (F) if the Board of Directors determines that such exemption will not cause any Individual's Beneficial Ownership of shares of Capital Stock to violate the Aggregate Stock Ownership Limit and that such exemption will not cause the Corporation to fail to qualify as a REIT under the Code.
Subject to subparagraph (1)(d) of this paragraph (F), the Board of Directors, in its sole discretion, with advice of the Corporation's tax counsel, may exempt (prospectively or retroactively) a Person from the limitation on a Person Constructively Owning Class M Preferred Stock in violation of subparagraphs (1)(a) or (1)(c) of this paragraph (F) if the Board of Directors determines that such ownership would not cause the Corporation to fail to qualify as a REIT under the Code.
Prior to granting any exception pursuant to subparagraph (8)(a) or (8)(b) of this paragraph (F), the Board of Directors may (i) require such Person to make certain representations or undertakings or to agree that any violation or attempted violation of such representations or undertakings (or other action which is contrary to the restrictions contained in this paragraph F) will result in such Class M Preferred Stock being converted to Excess Class M Preferred Stock and transferred to a Trust in accordance with subparagraphs (2) and (11) of this paragraph (F) and/or (ii) require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors, in its sole discretion as it may deem necessary or advisable in order to determine or ensure the Corporation's status as a REIT; provided, however, that obtaining such representations or undertakings, or a favorable ruling or opinion, shall not be required for the Board of Directors to grant an exception hereunder.
Legend . Each certificate for Class M Preferred Stock shall bear substantially the following legend:
"The Corporation will furnish to any stockholder, on request and without charge, a full statement of the information required by Section 2-211(b) of the Corporations and Associations Article of the Annotated Code of Maryland with respect to the designations and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemptions of the stock of each class which the Corporation has authority to issue and, if the Corporation is authorized to issue any preferred or special class in series, (i) the differences in the relative rights and preferences between the shares of each series to the extent set, and (ii) the authority of the Board of Directors to set such rights and preferences of subsequent series. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the charter of the Corporation (the "Charter"), a copy of which will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office."
"The securities represented by this certificate are subject to restrictions on ownership for the purpose of the Corporation's maintenance of its status as a real estate investment trust under the Internal Revenue Code of 1986, as amended. Except as otherwise provided pursuant to the Charter of the Corporation, no Person may Beneficially Own or Constructively Own shares of Class M Preferred Stock in excess of 9.8% of the outstanding shares of Preferred Equity Stock. Any Person who attempts to Beneficially Own or Constructively Own shares of Class M Preferred Stock in excess of the above limitation must immediately notify the Corporation. All capitalized terms in this legend have the meanings defined in the Charter of the Corporation, a copy of which, including the restrictions on transfer, will be sent to any stockholder on request and without charge. Transfers in violation of the restrictions described above shall be void ab initio . Notwithstanding the foregoing, if the restrictions on ownership and transfer are violated, the securities represented hereby will be designated and treated as shares of Class M Excess Preferred Stock which will be held in trust by the Corporation. The foregoing summary does not purport to be complete and is subject to and qualified in its entirety by reference to the Charter, a copy of which, including the restrictions on transfer, will be sent without charge to each stockholder who so requests. Such request must be made to the Secretary of the Corporation at its principal office."
Severability . If any provision of this paragraph (F) or any application of any such provision is determined to be invalid by any federal or state court having jurisdiction, 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.
Class M Excess Preferred Stock.
Ownership in Trust . Upon any purported Transfer (whether or not such Transfer is the result of a transaction entered into through the facilities of the NYSE) or other event that results in the issuance of Class M Excess Preferred Stock pursuant to subparagraph (2) of this paragraph (F), such Class M Excess Preferred Stock shall be deemed to have been transferred to the
Corporation, as Trustee of a Trust for the exclusive benefit of such Beneficiary or Beneficiaries to whom an interest in such Class M Excess Preferred Stock may later be transferred pursuant to subparagraph (11)(d) of this paragraph (F). Class M Excess Preferred Stock so held in trust shall be issued and outstanding shares of stock of the Corporation. The Purported Record Transferee shall have no rights in such Class M Excess Preferred Stock except the right to designate a transferee of such Class M Excess Preferred Stock upon the terms specified in subparagraph (11)(d) of this paragraph (F). The Purported Beneficial Transferee shall have no rights in such Class M Excess Preferred Stock except as provided in subparagraph (11)(d) of this paragraph (F).
Dividend Rights . Class M Excess Preferred Stock shall not be entitled to any dividends or other distribution (except as provided in subparagraph (11)(c) of this paragraph (F)). Any dividend or distribution paid prior to the discovery by the Corporation that shares of Class M Preferred Stock have been converted into Class M Excess Preferred Stock shall be repaid to the Corporation upon demand.
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, each holder of shares of Class M Excess Preferred Stock shall be entitled to receive, ratably with each other holder of shares of Preferred Equity Stock, that portion of the assets of the Corporation available for distribution to the holders of shares of Preferred Equity Stock as the number of shares of Class M Excess Preferred Stock held by such holder bears to the total number of shares of Preferred Equity Stock then outstanding. The Corporation, as holder of the Class M Excess Preferred Stock in trust, or if the Corporation shall have been dissolved, any trustee appointed by the Corporation prior to its dissolution, shall distribute ratably to the Beneficiaries of the Trust, when and if determined in accordance with subparagraph (11)(d) of this paragraph (F), any such assets received in respect of the Class M Excess Preferred Stock in any liquidation, dissolution or winding up of, or any distribution of, the assets of the Corporation.
Restrictions on Transfer; Designation of Beneficiary .
Shares of Class M Excess Preferred Stock shall not be transferable. Subject to the last sentence of this clause (1), the Purported Record Transferee may freely designate a Beneficiary of an interest in the Trust (representing the number of shares of Class M Excess Preferred Stock held by the Trust attributable to a purported Transfer that resulted in the issuance of Class M Excess Preferred Stock), if (i) the Class M Excess Preferred Stock held in the Trust would not be Class M Excess Preferred Stock in the hands of such Beneficiary and (ii) the Purported Beneficial Transferee does not receive a price from such Beneficiary that reflects a price per share for such Class M Excess Preferred Stock that exceeds (x) the price per share such Purported Beneficial Transferee paid for the Class M Preferred Stock in the purported Transfer that resulted in the issuance of Class M Excess Preferred Stock, or (y) if the Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock was not a transaction in which the Purported Beneficial Transferee gave full value for such Class M Excess Preferred Stock, a price per share equal to the Market Price on the date of the purported Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock. Upon such transfer of an interest in the Trust, the corresponding shares of Class M Excess Preferred Stock in the Trust shall be automatically exchanged for an equal number of shares of Class M Preferred Stock and such Class M Preferred Stock shall be transferred of record to the transferee of the interest in the Trust if such Class M Preferred Stock would not be Class M Excess Preferred Stock in the hands of such transferee. Prior to any transfer of any interest in the Trust, the Purported Record Transferee must give advance notice to the Corporation of the intended transfer and the Corporation must have waived in writing its purchase rights under subparagraph (11)(f) of this paragraph (F).
Notwithstanding the foregoing, if a Purported Beneficial Transferee receives a price for designating a Beneficiary of an interest in the Trust that exceeds the amounts allowable under subparagraph (11)(d)(1) of this paragraph (F), such Purported Beneficial Transferee shall pay, or cause such Beneficiary to pay, such excess to the Corporation.
Voting and Notice Rights . The holders of shares of Class M Excess Preferred Stock shall have no voting rights and shall have no rights to receive notice of any meetings. The holders of shares of Class M Excess Preferred Stock shall not be considered for purpose of determining a quorum.
Purchase Rights in Class M Excess Preferred Stock . Notwithstanding the provisions of subparagraph (11)(d) of this paragraph (F), shares of Class M Excess Preferred Stock shall be deemed to have been offered for sale to the Corporation, or its designee, at a price per share equal to the lesser of (i) the price per share in the transaction that required the issuance of such Class M Excess Preferred Stock (or, if the Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock was not a transaction in which the Purported Beneficial Transferee gave full value for such Class M Excess Preferred Stock, a price per share equal to the Market Price on the date of the purported Transfer or other event that resulted in the issuance of Class M Excess Preferred Stock) and (ii) the Market Price on the date the Corporation, or its designee, accepts such offer. The Corporation shall have the right to accept such offer for a period of ninety (90) days after the later of (i) the date of the Transfer or other event which resulted in the issuance of such shares of Class M Excess Preferred Stock and (ii) the date the Board of Directors determines in good faith that a Transfer or other event resulting in the issuance of shares of Class M Excess Preferred Stock has occurred, if the Corporation does not receive a notice of such Transfer or other event pursuant to subparagraph (4) of this paragraph (F). The Corporation may appoint a special trustee of the Trust for the purpose of consummating the purchase of Class M Excess Preferred Stock by the Corporation. In the event that the Corporation's actions cause a reduction in the number of shares of Class M Preferred Stock outstanding and such
reduction results in the issuance of Class M Excess Preferred Stock, the Corporation is required to exercise its option to repurchase such shares of Class M Excess Preferred Stock if the Beneficial Owner notifies the Corporation that it is unable to sell its rights to such Class M Excess Preferred Stock.
Settlement . Nothing in this paragraph (F) shall preclude the settlement of any transaction entered into through facilities of the NYSE.
Exclusion of Other Rights .
Without prejudice to any contractual obligations existing from time to time between the holders of the Class M Preferred Stock and the Corporation, the shares of Class M Preferred Stock shall not have any rights granted to or imposed thereupon, including as to dividends, preferences, conversion rights or voting rights, other than those specifically set forth in the Charter (including these Articles Supplementary), nor shall the shares of Class M Preferred Stock have preemptive or subscription rights. The Class M Preferred Stock has no stated maturity and is not subject to any sinking fund or mandatory redemption.
Headings of Subdivisions .
The headings of the various subdivisions hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof.
Severability of Provisions .
If any preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class M Preferred Stock set forth in the Charter are invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class M Preferred Stock set forth in the Charter which can be given effect without the invalid, unlawful or unenforceable provision thereof shall, nevertheless, remain in full force and effect, and no preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of the Class M Preferred Stock herein set forth shall be deemed dependent upon any other provision thereof unless so expressed therein.
Registration as Depositary Shares .
Shares of Class M Preferred Stock shall be registered in the form of Depositary Shares representing a one-one thousandth fractional interest in a share of Class M Preferred Stock ("Depositary Shares") on, and subject to, such terms and conditions as may be provided for in any agreement binding upon the Corporation (whether directly or through merger with any other corporation).
The Shares and the Class M Excess Shares have been reclassified by the Board of Directors under a power contained in the Charter.
These Articles Supplementary have been approved by the Board of Directors in the manner and by the vote required by law.
The undersigned officer of the Corporation acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned officer acknowledges that to the best of his knowledge, information and belief these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be signed in its name and on its behalf by its Executive Vice President, Chief Financial Officer and Treasurer and attested to by its Assistant Secretary on this 12 th day of December, 2017.
ATTEST:
/s/ Kathleen M. Gazerro
/s/ Glenn G. Cohen
Kathleen M. Gazerro
Executive Vice President,
Chief Financial Officer and Treasurer


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Shift to Digital: How COVID-19 is Driving Consumers of All Ages and Demographics to Rapidly Embrace E-Commerce
We have all seen the radical shift that the COVID-19 pandemic has had on consumer behavior. Most of us — as consumers ourselves — are living it. Our ability to go out into the world to buy and consume goods has been severely impacted due to concerns over social distancing.
With the exception of trips to essential retail locations (i.e., supermarket, pharmacy, etc.), the conduct of commerce in physical spaces has come to a screeching halt. That's right — no more Saturday afternoons at the electronics wholesaler to check out big screen TVs; no more impromptu trips to the department store to grab a pair of new sneakers; and no more popping into an indie music shoppe to pick up a new vinyl record (yes, these retro relics are still seeing double-digit growth in sales).
So now, consumers are engaging in what is essentially the next best thing: virtual shopping experiences. With no option to visit physical retail locations available, consumers have increased their engagement with e-commerce and retail brands via websites, apps, mobile, and other channels. For the most part, the desire for goods hasn't waned (though some categories have been hurt more than others) — it's the means in which customers research, explore, and ultimately purchase those goods that has changed.
However, this embrace of e-commerce is not novel or niche. In fact, the shift to digital consumerism was inevitable — the COVID-19 pandemic simply accelerated it. This year we will see consumers of all ages and demographics become more digital in nature out of necessity. But post-coronavirus, it's likely that their new shopping habits will stick and digital will remain an integral part of the consumer shopping experience, even when brick-and-mortar retail locations open up again.
The Shift to Digital is Accelerating — But It's Not New
Before the coronavirus hit, digital commerce was already seeing rapid growth. According to McKinsey, "e-commerce has grown at an impressive clip of almost 18% a year" throughout the past decade. Now that "60% of Americans have a smartphone and 80% of these consumers are 'smartphone shoppers,'" says McKinsey, the wisest brands have embraced this transition as an inevitable requirement for long-term sustainability, not just a fairweather pivot or trendy point of differentiation.
That said, prior to the pandemic, some legacy brands or tech-adverse retailers were primarily focused on driving sales and growth through brick-and-mortar locations. Experts were predicting that, in 2020, at least "80% of US retail sales will still happen within the four walls of a store." Thus, many brands believed they could achieve the business outcomes they desired through in-store sales alone.
COVID-19 changed that.
"Broadly speaking, there's a huge portion of retail that is completely shut down… Foot traffic is pretty much on pause for the moment," says eMarketer principal analyst Andrew Lipsman on the Behind the Numbers podcast. "The retail market is going to be shrinking."
With physical retail no longer an option, brands are forced to rely on e-commerce as the primary means of reaching their customers. This is causing a massive spike in online sales across the board, though certain product categories like food and grocery, household essentials, and self-care beauty products are seeing the biggest boost. The good news is, retailers who are putting the time and effort now into improving their online shopping experience will see long-term benefits.
"It's fair to assume that [the pandemic] will probably be some sort of long-term accelerant [for e-commerce]," Lipsman says. "I would not be surprised to see that this steady trajectory does start to cause a bit more of an uptick… We'll see what Q2 and Q3 numbers for e-commerce's share will be, but it can be anything — it can be a really significant portion [of total retail] in the near future."
It's Not Just Millennials or Tech-Savvy Consumers
Leading up to 2020, many brands had been working on improving the e-commerce portion of their business. Broadly, this was to stay ahead of the curve, but also, it was a focused strategy to help capture more wallet share from Millennials.
There's certainly logic in this — eMarketer had estimated that for 2020, "85.9% of Millennials in the US will be digital buyers this year." No doubt e-commerce makes up a sizable chunk of Millennials' purchasing. "Among 25- to 29-year-olds, 50% said at least half of their shopping occurs online, including 27% who said that's where 'all or almost all' of their shopping takes place. The figures were similar for those ages 30 to 34."
However, it's worth noting that other major categories of buyers — Gen Xers and Baby Boomers — have also been projected to increase their digital shopping this year. Millennials weren't the only ones dipping their feet in the e-commerce waters.
This insight is based on data captured prior to when the coronavirus hit. So if Gen Xers and Baby Boomers were trending toward increasing their online, mobile, and tablet-based shopping anyway, the trend toward e-commerce for these groups will no doubt be accelerated by the COVID-19 pandemic.
When it comes to shopping, it's not just Millennials who are becoming more digital in nature — it's everyone.
In a recent webinar from HospoLive, Managing Director for KAM Media Katy Moses suggests that, post-coronavirus, older consumers will have become much more comfortable with e-commerce, not to mention other digitally driven activities like online learning and virtual experiences. As such, digital marketing will become exceedingly important in terms of brand development, brand-customer relationships, and cultivating lasting customer loyalty.
A Digitally Led Strategy Helps You Now and Long After COVID-19 Passes
Of any potential trends forecasted for 2020, no one could've predicted the coronavirus and the economic recession it has caused. Although many businesses have suffered, notably bars and restaurants and traditional brick-and-mortar retailers, the most agile brands have innovated, pivoted, and placed great emphasis on developing their digital presence. The shift to a digital strategy may have been inevitable for many businesses, but COVID-19 rapidly accelerated it.
Through the pandemic, many pure play e-commerce and online retail brands have seen an uptick in online orders and online revenue. That said, for the large number of retailers who are accustomed to generating upwards of 80% – 90% of their revenue from in-store sales, any increases won through e-commerce haven't been enough to cover the massive loss in offline revenue.
That's why, once stores begin to re-open gradually, it will be vital for brands who have built up their digital presence to leverage it and drive customer engagement online and offline. A digitally led strategy will allow retailers to stay connected to their customers during the pandemic so that their relationship is strong — if not stronger — once in-store shopping becomes available again. These brands will then be able to use their newly strengthened digital marketing to get customers back into stores and recover to help mitigate losses.
Bear in mind, the kind of digital marketing that can accelerate business outcomes in this way requires the right technology. To drive revenue through e-commerce now and create meaningful omnichannel customer engagement into the future, having customer data, sales data, and product data centralized into a single platform will be critical. A platform with this capability will allow you to uncover new, insightful opportunities from your data.
You'll also need technology that allows you to execute actionable marketing use cases and track your performance — and then measure the results. This will ensure you're delivering the personalized communications your customers demand, as well as the business outcomes your brand needs to survive during the COVID-19 pandemic now and prosper long after. The right customer engagement platform should help you not only unify your data, but also, execute use cases and then evaluate the effectiveness of those marketing efforts.
No doubt brands will need a strong digital strategy now to survive the current economic climate, but they'll also need it after the crisis has passed. Why? Because consumers of all ages and demographics, having been forced into e-commerce whether they were ready or not, will become exceedingly comfortable with — and in some cases prefer — e-commerce, and therefore will expect brands to be able to provide superior online shopping experiences and digital engagement.
In response to COVID-19, it's critical for brands who have failed to fully embrace an online presence to ramp up their digital strategy now. Doing so will not only help these businesses navigate the current economic recession, but also better prepare them for a complete omnichannel engagement strategy once the immediate threat of the virus passes and life returns to something akin to "normal." Remember: It will no longer be just millennials who are looking to engage with brands online and across all channels. It will be Gen Xers, Baby Boomers, and any other group with purchasing power.
Kirk Donlan
Senior Content Marketing Manager
Kirk Donlan is a content marketing manager at Emarsys where he uses his marketing, customer success, and copywriting experience to develop engaging, industry-specific content for marketers and marketing leadership.
Connect with Kirk: LinkedIn
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The advent of cryptocurrency has undoubtedly taken the digital world by storm. The opportunities rendered include decentralization, easy access, lower fees, and protection against identity theft, recognition at global level, and many more. Still, there are many who are yet to comprehend, acknowledge and harness the prospects of this genre of digital trading. What they need is a streamlined platform comprising of experts in this field to trade on their behalf, thereby extracting maximum benefits that cryptocurrency trading has to offer. Cyber Capital Invest is an exceptional investment funding platform that delivers a seamless ecosystem for users as well as traders, to trade in cryptocurrencies and earn substantial profits that come with it.
One of the essential reasons that allows Cyber Capital Invest to stand ahead of similar platforms is its approach. The creators have focused on critical setbacks of the Cryptocurrency trading sphere and offered users valuable solutions.
Generally, when users invest on a standard investment fund platform, there is a lock-in period involved, for as long as 300 days. Hence, if the fund isn't making any profits, users cannot withdraw funds before the end of the lock-in period. Besides, the cryptocurrency marketplace is outright volatile, therefore users are always looking for opportunities to sell and cash-out quickly, before any major drop in rates.
Cyber Capital Invest offers its users an extensive investment plan that comes with different levels. Some of its investment plans come with only a 24 hour lock-in period, after which, the original investment amount along with profits will be available for withdrawal.
Investment funding platforms have strict and non-flexible investment plan time periods, which doesn't cater to the versatile capital investment needs of the different users.
This platform offers a wide range of investment plans that come with different time lengths. Short-term plans offer easy accessibility, while long-term plans aims at serving the high capital investment requirements. Cyber Capital Invest also offers a fully flexible plan, in which the original invested capital and profit may be kept in the system for as long as the users wants to, and will be fully available after a 24 hour duration.
Many funding platforms charge high commission fees for each deposit and withdrawal within the system, adding to unnecessary costs and making cryptocurrency trade an expensive affair.
However, Cyber Capital Invest doesn't charge any commission fee and allows users to withdraw their investment along with profit, without the need to pay heavy surcharges every time.
Security is one of the main concerns when trading digitally. In most cases, funding platforms store important customer information within their own database. This makes these platforms vulnerable to security threats as users cannot verify that their data is encrypted before submitting.
With Cyber Capital Invest, users can create anonymous accounts in which there is no need to provide any personal identification. This means, no personal user data is stored inside any database, which protects the users from potential security breaches.
People often complain about the limited payment options when they trade over a particular crypto–trading platform. There are only a few firms that support multiple Cryptocurrencies or Fiat options.
However, Cyber Capital Invest supports a wide range of payment gateways, such as credit card deposits, PayPal, BankWire, etc., for different methods of deposit and withdrawal.
By identifying and providing fundamental solutions to critical challenges, Cyber Capital Invest has offered a simple and effective platform to users, where they can trade in cryptocurrencies with ease and a guarantee of privacy. With high-level of security, flexible transaction methods, different investment plans, etc., this platform helps users establish their trust with the unpredictable domain of cryptocurrencies, and obtain prolific returns from its trade.


Cropland expansion—a major driver of habitat and biodiversity loss— is expected to continue globally in the decades to come (Ramankutty et al. 2002). This will partly be driven by declining rates of increase in crop yields (FAOSTAT 2008; Hazell and Wood 2008). There are potentials to enhance agricultural productivity in certain regions, in particular in Sub-Saharan Africa. On a global average, future yield increases of cereal are expected, but only at the level needed to keep pace with the growth rate of human population, assuming current dietary demands (UN medium projection).
Demand for food biomass is growing. Since the early 1990s global consumption patterns began to change toward higher consumption of animal products while consumption of vegetable and grain-based products stagnated. From 2003-2007, the production of beef, pork, poultry, sheep meat, and milk increased, and in many developing countries, this increase was well over 10% (FAO 2008). By 2030, the global meat consumption per capita is projected to increase by 22%, milk and dairy by 11%, and vegetable oils by 45% compared to the year 2000 (FAO 2006). This increase, driven by changing consumption patterns mainly in developing countries, means a doubling of the demand for these commodities in absolute terms. Also, the consumption of cereals, roots and tubers, sugar, and pulses is expected to increase in developing countries above the world average, though at lower rates than the animal-based commodities.
There is no clear projection of global agricultural land requirement due to changing consumption patterns for nutrition outlined above. The projected increase of animal-based diets, points to an increasing demand for cropland. By 2020, changing diets and demand for biofuels are estimated to increase demand for cropland by 2-5 M km2, even taking into account anticipated improvement in yield (Gallagher 2008). This would require, by 2020, an increase in agricultural land equivalent to 12-31% of current global cropland. Thus, one may conclude that only to feed the world population, an expansion of global crop land will be needed.


I attended a spectacular conference Friday at the University of Chicago's Booth School of Business, whose Stigler Center for the Study of the Economy and the State hosts an annual discussion of antitrust and competition issues. This year's event, convened by scholars Luigi Zingales and Guy Rolnik, focused on the threat of concentration of Big Tech, otherwise known as the Big Five: Facebook, Amazon, Apple, Netflix, and Google.
This was one impressive gathering. As I gazed out at the room I saw some of the most important voices on the debate: USC's Jonathan Taplin, Columbia's Tim Wu, Berkeley's Carl Shapiro, Stratechery proprietor Ben Thompson, and the monopolist scourge Gary Reback. Former Italian Prime Minister Mario Monti, who also was the European Commission's top antitrust enforcer, gave an erudite and illuminating lecture on how the EU approaches antitrust with a more unified and less political voice than the U.S. One panel, expertly moderated by Rana Foroohar of The Financial Times, explored how regulation of Big Tech might proceed. The short version: It will be complicated.
As for my panel, it was a riveting, sometimes heated, and informative session. Facebook policy official Matt Perault gamely explained his company's new party line: Facebook will throw the same energy and resources into fixing its privacy problems as it did to build Facebook. His assertion, which felt sincerely articulated, satisfied almost no one.
Patent expert Elvir Causevic similarly argues that Big Tech benefits from their ability not so much to innovate but to use the patent system to buy and stifle innovation. Researcher Glen Weyl, who works for Microsoft but is visiting Yale, thinks the answer is to refocus antitrust enforcement on competition as opposed to its current scrutiny of consumer wellbeing. Weyl shortly will publish a book on the subject with the son of eminent Chicago jurist Richard Posner, Eric Posner: "Radical Markets: Uprooting Capitalism and Democracy for a Just Society." The two sliced off a portion of their thesis in The Wall Street Journal this past weekend.
By the end of the week my brain hurt but my soul was uplifted knowing so many smart people are working so hard to fix at least some of our society's problems.
I am not a crook. The researcher at the center of the Facebook data scandal, psychologist Aleksandr Kogan, tells BuzzFeed that he violated Facebook's developer policy when he transferred personal data about a reported 87 million people to Cambridge Analytica. But there's one conspiracy theory he wants to shoot down: "I am not a Russian spy," he says.
The finest steel has to go through the hottest fire. Another day, another new satellite startup. EarthNow plans to use satellites to provide a continuous real-time video feed of the planet. The company said it raised an undisclosed amount of capital from private investors, including Bill Gates, Airbus (which is supplying satellites), and Masayoshi Son's SoftBank Group.
Capitalism works better than it sounds. Dell Technologies spin-off Pivotal Software went public of Friday, selling 37 million shares at $15. The first day of trading was relatively modest and the shares finished up 5% at $15.73. CEO Rob Mee told Fortune that the company can't just ask Michael Dell for more capital when it wants to expand. "Michael Dell is extraordinarily frugal," he said. "It's not a mistake he's one of the richest people in the world." Perhaps the same is true of Chinese billionaire Pony Ma, CEO of Internet giant Tencent. The company is planning a public offering of its streaming music subsidiary that could value the sub at $25 billion.
Only if you have been in the deepest valley, can you ever know how magnificent it is to be on the highest mountain. Speaking of streaming music, the market has bolstered the overall music industry. Global music revenue totaled $17.4 billion in 2017, up 9% from the year before and close to 2008's past peak of $17.7 billion, research firm Midia says. The gain was completely from a 39% jump in streaming subscription service revenue. Sales of digital and physical media fell 10%.
Well, I screwed it up real good, didn't I. The federal government's E-rate program to subsidize Internet connections for rural schools has slowed to a crawl under the Trump administration, Wired reports. Schools currently have to wait a record 240 days to get aid and 60 projects have been denied unfairly since 2017, nonprofit group EducationSuperHighway tells the magazine.
I made my mistakes. Analysts have soured on Apple's iPhone X lately. Sales of the most expensive iPhone helped save Apple in the fourth quarter (its fiscal first quarter) by boosting average selling prices, but could be a drag in the most recent quarter, analysts believe. "The price point above $1,000 has been a greater deterrent for broad market appeal than anticipated," Canaccord Genuity analyst Mike Walkley wrote last week. Apple shares lost 4% on Friday.
Defeat doesn't finish a man, quit does. After years of failing to create a compelling messaging app–sorry, Allo–Google is now trying to convince wireless carriers to enable a replacement service for texting, or SMS, to work with its newest effort, simply called Chat. The underlying standard carriers must adopt is called Universal Profile for Rich Communication Services, or RCS. I wouldn't hold my breath waiting for this one to catch on. Meanwhile, Google CEO Sundar Pichai wins a payday of almost $400 million on Wednesday, when restricted shares of stock he was granted in 2014 finally vest, Bloomberg reports. Google's stock price has risen 90% since the shares were awarded versus a 39% gain in the S&P 500 Index.
The same features that make Zelle so useful for customers, its speed and ubiquity, have made it irresistible to thieves. Hackers and con artists have used the system to steal from victims—some of whom had never used Zelle or even heard of it until someone used it to clean out their bank accounts.
Interviews with more than two dozen customers who had their money stolen through Zelle illustrate the weaknesses that criminals are using in targeting the network. While all financial systems are susceptible to fraud, aspects of Zelle's design, like not always notifying customers when money is transferred—some banks do; others don't—have contributed to the system's vulnerability. And some customers who lost money were made whole by their banks; others were not.
Astrophysicist Donald Olson and his research team at Texas State University are sort of forensic detectives when it comes to great works of art. They figured out that the glowing circle depicted in Vincent Van Gogh's painting White House at Night must be Venus, for example. Most recently, they've been trying to identify where and when photographer Ansel Adams took some of his most iconic pictures. It took all kinds of creative calculating to crack then mystery of Adams's Denali and Wonder Lake, as writer Cara Giaimo explores at the website Atlas Obscura.


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Home » Blog » The Shining
20th August 2018 by Liz
Stanley Kubrick is widely regarded as one of the greatest film directors that's ever lived. His films look deep into the human psyche on a level that nobody had managed to achieve before and we can still see influencing cinema today. The man took on and mastered many genres, he redefined Sci-fi with 2001: A Space Odyssey, showed us the horrors of Vietnam in the war movie Full Metal Jacket and helped define the epic with Sparticus. One of his most successful and well known movies however would change the Horror genre forever, that film is The Shining.
The story follows a recovering alcoholic and writer named Jack Torrence (played by Jack Nicholson) who has taken up a job as an off season caretaker for the Overlook Hotel, located in the isolated Colorado Rockies. He brings along his wife Wendy and son Danny to stay in this currently abandoned hotel. Danny has what is called 'the shining', a psychic ability to see ghosts of the buildings horrifying past. Whilst this is going on Jack becomes slowly possessed by the spirits which drive him into becoming an insane axe murderer, trying to hunt down his family.
The film is actually based on a book of the same name written by none other than Stephen King, author of other titles such as The Green Mile, It, Carrie and Misery to name a few. Kubrick made quite a few changes to the story in his film rather controversially, something that wasn't appreciated by King. Kubrick wanted to ground the film in as much realism as possible, he removed many of the highly supernatural elements of the story, things like objects and topiary animals coming to life and obvious ghost referencing were all ditched to keep it as realistic as possible.
In interviews he talks about why he made these decisions, he explains that when people refer to ghosts they have seen that they remark on how they are as real as any person, like flesh and blood stood before them, many ghosts are shown in the movie but all appear as if really there. This decision confused many viewers but adds to the unnerving mystery of the film, keeping you at constant level of uneasy throughout.
Kubrick aimed to play on genuine psychological fears, though The Shining could all be put down to ghostly possession there are a host of realistic fears displayed over the course of the film. The most obvious being a fear of loneliness through Jack's isolation. Then in a more subtle tone we see a fear of age as a beautiful young woman transforms into a decrepit zombie like figure before Jack's eyes. He experiences a whole host of our most basic fears which could be the real cause of his fall into complete madness.
The Shining is regarded as one of the best horror films in history and it's no surprise. You can watch it and be spooked by the supernatural or be shaken by the reality of it all, it straddles the line so well that it's hard to say what truly causes Jack's demise, however it has kept us thinking for nearly 40 years and will continue to so for many more.
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Ensuring The Background Music Affects a Horror Movie Experience
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Albert Darby
Albert was born around 1860. As a child he was a regular attender at the Stratford New Year's Day picnics. He won the book Robinson Crusoe in 1875 for his first place in the vaulting for boys under 14 years of age and a knife for coming first in the under 13 125 yards race. In 1876, Albert won the 'boys' vaulting under 16'. As an adult Albert played cricket for the Woodside team and in November 1886 was noted in the Gippsland Times as the team's highest scorer.
Albert married Ellen (Looloo Looloo) around 1885 to 1886. They had a number of children, although only three survived to adulthood. They lost a number of children as babies, which would have been devastating for the couple. Albert and Ellen and their children moved from Ramahyuck station, to Lake Tyers and then onto Coranderrk, during the early 1900s. Albert was present at the marriage of his son Albert to Ellen Gibbs, which occurred at Coranderrk.
Rev. Hagenauer, manager of the Ramahyuck mission on Gunaikurnai country near Sale, wrote to Howitt in 1880 identifying Albert as a Bellum Bellum man of the Tarrawarracka tribe. Howitt included this information in his and Lorimer Fison's 1880 book Kamilaroi and and Kurnai, although he queried the links between this and information he had been given by Tommy Hoddinot and a settler called Connor who identified an elder named old Darby as the headman of the Kut-wut and lived at Foster. Albert died in 1910, aged 51 years and suffering from 'Multiple Tumour [sic] and Exhaustion'. He was living at Coranderrk Aboriginal Station, on Wurundjeri country, at the time of his death.
'New Year's Day at Stratford', Gippsland Times, p. 3, accessed 5 June 2020,
http://nla.gov.au/nla.news-article61912632.
'Yarram Yarram', Gippsland Times, p. 3, accessed 5 June 2020,k http://nla.gov.au/nla.news-article62274779.
'The Stratford Picnic', Gippsland Times', p. 3, accessed 5 June 2020, http://nla.gov.au/nla.news-article61909416.
'Aboriginal Wedding', Healesville and Yarra Glen Guardian, p. 2, accessed 5 June 2020, http://nla.gov.au/nla.news-article60189306.
Board for the Protection of the Aborigines, Twenty-Second Report, John Ferres Government Printer, Melbourne, 1886, p. 8.
Board for the Protection of the Aborigines, Twenty-Fourth Report, Robert S Brain, Government Printer, Melbourne, 1888, p. 9.
Board for the Protection of the Aborigines, Twenty-Fifth Report, Robert S. Brain, Government Printer, Melbourne, 1889, p. 8.
Board for the Protection of the Aborigines, Thirty-First Report, Robert S Bain, Government Printer, Melbourne, 1895, p. 7.
Board for the Protection of the Aborigines, Thirty-Second Report, Robert S Bain, Government Printer, Melbourne, 1896, p. 7.
Board for the Protection of the Aborigines, Thirty-Third Report, Robert S Bain, Government Printer, Melbourne, 1897, p. 7.
Board for the Protection of the Aborigines, Thirty-Sixth Report, Robert S Bain, Government Printer, Melbourne, 1900, p. 7.
Board for the Protection of the Aborigines, Forty-First Report, Robert S Bain, Government Printer, Melbourne, 1905, p. 9.
Board for the Protection of the Aborigines, Forty-Third Report, Robert S Bain, Government Printer, Melbourne, 1907, p. 5.
Board for the Protection of the Aborigines, Forty-Sixth Report, J. Kemp, Government Printer, Melbourne, 1910, p. 5.
Elizabeth Nelson, Sandra Smith and Patricia Grimshaw (eds) Letters from Aboriginal Women of Victoria, 1867-1926, History Department, The University of Melbourne, Melbourne, 2002, p. 329.
Alfred Howitt, 'Notes on the Kurnai', Papers of A. W. Howitt, Manuscript collection, State Library of Victoria, MS9356, Box 1053, items 3 (b) and 4(a), p. 90.
Hagenauer to Howitt 1 May 1880
Registration Number XM188
Physical Description Letter, handwritten in ink. Signed and dated. One sheet, two pages. Condition: good.