-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MJ6WTp6AC+LG4gE+JRCrmyaC7xERNSPqbmTwkiP0sPFnJOGjUL/Ubc70LuhTjvY9 fAxOJAOBzYP3yyFMVrp2Mg== 0000950131-99-001933.txt : 19990402 0000950131-99-001933.hdr.sgml : 19990402 ACCESSION NUMBER: 0000950131-99-001933 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990330 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PROLOGIS TRUST CENTRAL INDEX KEY: 0000899881 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE [6500] IRS NUMBER: 742604728 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-12846 FILM NUMBER: 99579734 BUSINESS ADDRESS: STREET 1: 14100 EAST 35TH PLACE CITY: AURORA STATE: CO ZIP: 80011 BUSINESS PHONE: 3033759292 MAIL ADDRESS: STREET 1: 14100 EAST 35TH PLACE CITY: AURORA STATE: CO ZIP: 80011 FORMER COMPANY: FORMER CONFORMED NAME: SECURITY CAPITAL INDUSTRIAL TRUST DATE OF NAME CHANGE: 19931228 8-K 1 FORM 8-K ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported) March 30, 1999 -------------------------- PROLOGIS TRUST - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) Maryland - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 1-12846 74-2604728 - -------------------------- ------------------------------------ (Commission File Number) (I.R.S. Employer Identification No.) 14100 East 35th Place, Aurora, Colorado 80011 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (303) 375-9292 - -------------------------------------------------------------------------------- (Registrant's Telephone Number, Including Area Code) ================================================================================ Item 5. Other Events On March 30, 1999, ProLogis Trust, a Maryland real estate investment trust, announced that the merger of Meridian Industrial Trust, Inc., a Maryland corporation, with and into ProLogis had closed and was to become effective as of that date. Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits. (c) Exhibits. 2.1 Articles of Merger merging Meridian Industrial Trust, Inc. with and into ProLogis Trust 3.1 Articles Supplementary with respect to ProLogis' Series E Cumulative Redeemable Preferred Shares of Beneficial Interest 99.1 Press Release dated March 30, 1999 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. PROLOGIS TRUST Dated: March 30, 1999 By: /s/ Edward S. Nekritz -------------------------------------- Edward S. Nekritz Senior Vice President and Secretary EX-2.1 2 ARTICLES OF MERGER EXHIBIT 2.1 ARTICLES OF MERGER Merging MERIDIAN INDUSTRIAL TRUST, INC. (a corporation of the State of Maryland) Into PROLOGIS TRUST (a real estate investment trust of the State of Maryland) MERIDIAN INDUSTRIAL TRUST, INC., a corporation organized and existing under the laws of the State of Maryland ("Meridian"), and PROLOGIS TRUST, a real estate investment trust organized and existing under the laws of the State of Maryland, which shall be the surviving entity ("ProLogis"), agree that Meridian shall be merged with and into ProLogis. The terms and conditions of the merger and the mode of carrying the same into effect are as herein set forth in these Articles of Merger. FIRST: The parties to these Articles of Merger are ProLogis, a real estate investment trust organized and existing under the laws of the State of Maryland, and Meridian, a corporation organized and existing under the laws of the State of Maryland. SECOND: Meridian shall be merged with and into ProLogis in accordance with the Corporations and Associations Article of the Annotated Code of Maryland (the "Maryland Code") and ProLogis shall survive the merger (the "Surviving Entity"). At the Effective Time (as defined below) of the merger, the separate existence of Meridian shall cease in accordance with the provisions of the Maryland Code. From and after the Effective Time, the Surviving Entity shall continue its existence as a real estate investment trust under the Maryland Code, shall succeed to all of the properties, liabilities and other assets and shall be subject to all of the liabilities and obligations of Meridian without further action by either of the parties hereto, and will continue to be governed by the laws of the State of Maryland, including the Maryland Code. At the Effective Time, the declaration of trust and bylaws of ProLogis in effect immediately prior to the Effective Time shall become the declaration of trust and bylaws of the Surviving Entity. At the Effective Time, the trustees and officers in office immediately prior to the Effective Time shall be the trustees and officers of the Surviving Entity, and such persons shall hold such positions until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal, in accordance with the declaration of trust and bylaws of the Surviving Entity. THIRD: The merger shall be effective as soon as practical after the shareholder votes on March 30, 1999 (the "Effective Time"). FOURTH: The resident agent and office of ProLogis is The Prentice- Hall Corporation System, Maryland, located at 11 East Chase Street, Baltimore, Maryland 21202. The principal office of ProLogis is located at 14100 East 35th Place, Aurora, Colorado 80011. The resident agent and office of Meridian is CSC--Lawyers Incorporating Service Company, 11 East Chase Street, Baltimore, Maryland 21202. The principal office of Meridian is located at 455 Market Street, 17th Floor, San Francisco, California 94105. Neither Meridian nor ProLogis owns any interest in land in any county in the State of Maryland. FIFTH: The terms and conditions of the transaction set forth in these Articles of Merger were advised, authorized and approved by each party to these Articles of Merger in the manner and by the vote required by Meridian's articles of incorporation or ProLogis' declaration of trust, as the case may be, and the laws of the State of Maryland. SIXTH: The merger was duly (a) advised by the board of directors of Meridian by the adoption of a resolution declaring that the merger set forth in these Articles of Merger was advisable on substantially the terms and conditions set forth or referred to in the resolution and directing that the proposed merger be submitted for consideration at a special meeting of the stockholders of Meridian and (b) approved by the stockholders of Meridian by the vote required by its articles of incorporation and the Maryland Code. SEVENTH: The merger was duly (a) advised by the board of trustees of ProLogis by the adoption of a resolution declaring that the merger set forth in these Articles of Merger was advisable on substantially the terms and conditions set forth or referred to in the resolution and directing that the proposed merger be submitted for consideration at a special meeting of the shareholders of ProLogis and (b) approved by the shareholders of ProLogis by the vote required by its declaration of trust and the Maryland Code. EIGHTH: The declaration of trust of the Surviving Entity will not be amended as a result of the Merger. NINTH: The total number of shares of beneficial interest of all classes which ProLogis has authority to issue is two hundred thirty million (230,000,000) shares of beneficial interest, of the par value of one cent ($0.01) each, all such shares having an aggregate par value of two million three hundred thousand dollars ($2,300,000). Of such shares of beneficial interest, five million four hundred thousand (5,400,000) shares have been classified as Series A Cumulative Redeemable Preferred Shares of Beneficial Interest, eight million fifty thousand (8,050,000) shares have been classified as Series B Cumulative Convertible Preferred Shares of Beneficial Interest, two million (2,000,000) shares have been classified as Series C Cumulative Redeemable Preferred Shares of Beneficial Interest, ten million (10,000,000) shares have been classified as Series D Cumulative Redeemable Preferred Shares of Beneficial Interest, two million (2,000,000) shares have been classified as Series E Cumulative Redeemable Preferred Shares of Beneficial Interest ("ProLogis New Preferred Shares") and two million three hundred thousand (2,300,000) shares have been classified as Series A Junior Participating Preferred Shares of Beneficial Interest. Meridian has the authority to issue two hundred million (200,000,000) shares of the par value of one one-thousandth of a dollar ($0.001) each, all such shares having an aggregate par value of two hundred thousand dollars ($200,000), of which twenty-five million (25,000,000) shares are authorized to be shares of preferred stock. Of the twenty-five million shares of preferred stock, two million two hundred seventy-two thousand seven hundred seventy-two shares (2,272,772) have been classified as Series B Convertible Preferred Stock, two million (2,000,000) have been classified as Series D Cumulative Redeemable Preferred Stock and one hundred fifty thousand (150,000) shares have been classified as Series C Junior Participating Preferred Stock. TENTH: As of the Effective Time, by virtue of the Merger and without any action on the part of ProLogis, Meridian, or any holder of any of the following securities: (a) Cancellation of Meridian Subsidiary-Owned and ProLogis-Owned Meridian Capital Stock. Each share of the common stock, $0.001 par value per share, of Meridian ("Meridian Common Stock"), together with the rights (the "Meridian Rights") attached thereto to purchase Series C Junior Participating Preferred Stock of Meridian (the "Meridian Junior Preferred Stock") issued pursuant to the Rights Agreement, dated as of March 12, 1998, between Meridian and First Chicago Trust Company of New York, as Rights Agent (as it may be amended), that is owned by Meridian or any subsidiary of Meridian, and each share of Meridian Common Stock (with the associated Meridian Rights) that is owned by ProLogis or any subsidiary of ProLogis shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered or deliverable in exchange therefor. Each share of Series D Cumulative Redeemable Preferred Stock of Meridian ("Meridian Series D Preferred Stock") that is owned by Meridian or any subsidiary of Meridian, and each share of Meridian Series D Preferred Stock that is owned by ProLogis or any subsidiary of ProLogis shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered or deliverable in exchange therefor. 2 (b) Conversion of Meridian Common Stock. Subject to Article ELEVENTH, each issued and outstanding share of Meridian Common Stock (with the associated Meridian Rights), other than shares canceled pursuant to paragraph (a) of this Article, shall be converted into the right to receive (1) one and one-tenth (1.10) (the "Conversion Number") of a validly issued, fully paid, and nonassessable common share of beneficial interest, $0.01 par value per share, of ProLogis ("ProLogis Common Shares"), together with the rights (the "ProLogis Rights") attached thereto to purchase Series A Junior Participating Preferred Shares of Beneficial Interest of ProLogis issued pursuant to the Rights Agreement, dated as of December 31, 1993 between ProLogis and State Street Bank and Trust Company, as Rights Agent (as amended), and (2) $2.00 (the "Cash Consideration"). The consideration to be issued to the holders of Meridian Common Stock is referred to herein as the "Merger Consideration." (c) Conversion of Meridian Series D Preferred Stock. Subject to Article ELEVENTH, each issued and outstanding share of Meridian Series D Preferred Stock, other than shares canceled pursuant to paragraph (a) of this Article, shall be converted into the right to receive one validly issued, fully paid, and nonassessable ProLogis New Preferred Share. (d) Cancellation and Retirement of Meridian Capital Stock. All shares of Meridian Common Stock (with the associated Meridian Rights and any shares of Meridian Junior Preferred Stock issuable upon exercise thereof) converted into the right to receive the Merger Consideration pursuant to paragraph (b) of this Article shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate or other right representing any such shares of Meridian Common Stock (with the associated Meridian Rights) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration in accordance with paragraph (b) of this Article, and any cash in lieu of fractional ProLogis Common Shares pursuant to paragraph (e) of Article ELEVENTH, upon surrender of such certificate or other right in accordance with Article ELEVENTH. As of the Effective Time, all shares of Meridian Series D Preferred Stock converted into the right to receive ProLogis New Preferred Shares pursuant to paragraph (c) of this Article shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and each holder of a certificate or other right representing any such shares of Meridian Series D Preferred Stock shall cease to have any rights with respect thereto, except the right to receive ProLogis New Preferred Shares in accordance with paragraph (c) of this Article upon surrender of such certificate or other right in accordance with Article ELEVENTH. (e) Conversion of Meridian Stock Options. At the Effective Time, each option granted by Meridian to purchase shares of Meridian Common Stock (a "Meridian Stock Option") shall become, notwithstanding anything in the Meridian Second Amended and Restated Employee and Director Incentive Stock Plan (the "Meridian Stock Plan") or any agreement governing Meridian Stock Options to the contrary, fully exercisable and vested as of the Effective Time and shall remain outstanding and be assumed by the Surviving Entity. Each such option shall be deemed to constitute an option to acquire, on the same terms and conditions as were applicable under such Meridian Stock Option, a number of ProLogis Common Shares equal to the number of shares of Meridian Common Stock purchasable pursuant to such Meridian Stock Option, multiplied by the Conversion Number (plus the amount of Cash Consideration, if any, payable with respect to the number of shares of Meridian Common Stock issuable pursuant to such Meridian Stock Option immediately prior to the Effective Time), at a price per share equal to the per-share exercise price for the shares of Meridian Common Stock purchasable pursuant to such Meridian Stock Option divided by the Conversion Number; provided, however, that in the case of any option to which Section 421 of the Internal Revenue Code of 1986, as amended (the "Code") applies by reason of its qualification under any of Sections 422 through 424 of the Code, the option price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424(a) of the Code; and provided further, that, unless otherwise provided in the applicable Meridian Stock Plan or Meridian Stock Option, the number of ProLogis Common Shares that may be purchased upon exercise of such Meridian Stock Option shall not include any fractional share and, upon exercise of such Meridian Stock Option, a cash payment shall be made for any fractional share based upon the closing price of a ProLogis Common Share on the Exchange on the trading day immediately preceding the date of exercise. Notwithstanding the terms of any Meridian Stock Option or the Meridian Stock Plan, each Meridian Stock Option shall be exercisable, and shall not expire or otherwise terminate, until the earlier to occur of (i) the fifth anniversary of the closing of the merger and (ii) the date on which such Meridian Stock Option would otherwise expire 3 if it were to remain outstanding for the longest period of time permitted by the agreement governing such Meridian Stock Option without regard to any termination of employment provisions therein. ELEVENTH: (a) Exchange Agent. As of the Effective Time, ProLogis shall deposit with a bank or trust company designated by ProLogis and reasonably acceptable to Meridian (the "Exchange Agent"), for the benefit of the holders of shares of Meridian Common Stock and Meridian Series D Preferred Stock, as applicable, for exchange in accordance with this Article ELEVENTH, through the Exchange Agent, cash in an amount sufficient to pay the aggregate Cash Consideration, if any, and certificates representing the ProLogis Common Shares and ProLogis New Preferred Shares (such cash and such ProLogis Common Shares and ProLogis New Preferred Shares, together with any dividends or distributions with respect thereto, being hereinafter referred to as the "Exchange Fund"), issuable pursuant to Article TENTH in exchange for outstanding shares of Meridian Common Stock and Meridian Series D Preferred Stock. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the Cash Consideration, if any, the ProLogis Common Shares and ProLogis New Preferred Shares contemplated to be paid and issued pursuant to Article TENTH out of the Exchange Fund. The Exchange Fund shall not be used for any other purpose. (b) Exchange Procedures. (i) As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of a certificate or certificates which, immediately prior to the Effective Time, represented outstanding shares of Meridian Common Stock or Meridian Series D Preferred Stock (each, a "Certificate"), which holder's shares of Meridian Common Stock or Meridian Series D Preferred Stock were converted into the right to receive the amount of Cash Consideration, if any, and the number of whole ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be, in accordance with Article TENTH: a letter of transmittal ("Letter of Transmittal") which shall specify that delivery shall be effected and risk of loss and title to the Certificates shall pass only upon delivery of the Certificates to the Exchange Agent, and shall be in such form and have such other provisions as the Surviving Entity may reasonably specify; and instructions for use in effecting the surrender of the Certificates in exchange for certificates representing ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be. Upon surrender of a Certificate for cancellation to the Exchange Agent, together with the Letter of Transmittal, duly executed, and any other documents reasonably required by the Surviving Entity or the Exchange Agent, (A) the holder of a Certificate formerly representing shares of (1) Meridian Common Stock shall be entitled to receive in exchange therefor the amount of Cash Consideration, a certificate representing that number of whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH, or (2) Meridian Series D Preferred Stock shall be entitled to receive a certificate representing that number of ProLogis New Preferred Shares, which such holder has the right to receive pursuant to the provisions of Article TENTH, and any unpaid dividends and distributions that such holder has the right to receive in accordance with this Article ELEVENTH; and the Certificate so surrendered shall forthwith be canceled. In the event of a transfer of ownership of Meridian Common Stock or Meridian Series D Preferred Stock, which is not registered in the transfer records of Meridian, the appropriate amount of Cash Consideration, if any, and a certificate representing the appropriate number of whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, may be paid and issued to a transferee if the Certificate representing such Meridian Common Stock or Meridian Series D Preferred Stock is presented to the Exchange Agent properly endorsed or accompanied by appropriate stock powers and otherwise in proper form for transfer and accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Article ELEVENTH, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the appropriate amount of Cash Consideration, in the case of a certificate representing Meridian Common Stock, the certificate representing whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, and any unpaid dividends and distributions that such holder has the right to receive in accordance with this Article ELEVENTH. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be, held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of persons entitled thereto. 4 (ii) As soon as reasonably practicable after the Effective Time, the Exchange Agent shall mail to each holder of record of uncertificated shares of Meridian Common Stock or Meridian Series D Preferred Stock, which holder's shares of Meridian Common Stock or Meridian Series D Preferred Stock were converted into the right to receive the amount of Cash Consideration, the number of whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, set forth in Article TENTH, if requested by ProLogis: (i) a Letter of Transmittal which shall specify that delivery of any initial transaction statement shall be effected and risk of loss and title to the shares represented thereby shall pass only upon delivery of the Letter of Transmittal to the Exchange Agent, and shall be in such form and have such other provisions as the Surviving Entity may reasonably specify; and (ii) instructions for completing such Letter of Transmittal to effect the exchange of such uncertificated shares of Meridian Common Stock or Meridian Series D Preferred Stock into uncertificated whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be. Upon valid delivery of a Letter of Transmittal to the Exchange Agent, together with any other documents reasonably required by the Surviving Entity or the Exchange Agent, or if no Letter of Transmittal is requested by ProLogis, at the Effective Time, (A) the holder of uncertificated shares of (1) Meridian Common Stock shall be entitled to receive in exchange therefor the amount of Cash Consideration, and an initial transaction statement representing that number of whole ProLogis Common Shares, the amount of cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH, or (2) Meridian Series D Preferred Stock shall be entitled to receive an initial transaction statement representing that number of ProLogis New Preferred Shares, which such holder has the right to receive in accordance with Article TENTH, and any unpaid dividends and distributions that such holder has the right to receive in accordance with this Article ELEVENTH; and (B) the transaction statement on the books and records of Meridian shall forthwith be canceled. Until exchanged as contemplated by this Article ELEVENTH, each uncertificated share of Meridian Common Stock and Meridian Series D Preferred Stock shall be deemed at any time after the Effective Time to represent only the right to receive upon such exchange the appropriate amount of Cash Consideration, in the case of uncertificated shares of Meridian Common Stock, and an initial transaction statement representing uncertificated whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, and any unpaid dividends and distributions that such holder has the right to receive in accordance with this Article ELEVENTH. The Exchange Agent shall not be entitled to vote or exercise any rights of ownership with respect to ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be, held by it from time to time hereunder, except that it shall receive and hold all dividends or other distributions paid or distributed with respect thereto for the account of persons entitled thereto. (c) Distributions with Respect to Unexchanged Shares. No dividends or other distributions with respect to ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be, declared or made after the Effective Time with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate or any unexchanged uncertificated share with respect to the right to receive shares of ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be, represented thereby until the holder of such Certificate or uncertificated share shall surrender such Certificate or rights in respect of such uncertificated share. Subject to the effect of applicable laws, following surrender of any such Certificate or exchange of any such uncertificated share, there shall be paid to the holder thereof, without interest: (i) at the time of such surrender, the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such shares of ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be; and (ii) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to such surrender and a payment date subsequent to such surrender payable with respect to such ProLogis Common Shares or ProLogis New Preferred Shares, as the case may be. (d) No Further Ownership Rights. Any Cash Consideration and all shares of whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, issued upon the surrender for exchange of shares of Meridian Common Stock and Meridian Series D Preferred Stock in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Meridian Common Stock and Meridian Series D Preferred Stock, subject, however, to the Surviving Entity's obligation to pay any dividends or make any other 5 distributions with a record date prior to the Effective Time that may have been declared or made by Meridian on such shares of Meridian Common Stock and Meridian Series D Preferred Stock and which remain unpaid at the Effective Time, and after the Effective Time there shall be no further registration of transfers on the stock transfer books of the Surviving Entity of the shares of Meridian Common Stock or Meridian Series D Preferred Stock that were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates or rights in respect of uncertificated shares of Meridian Common Stock or Meridian Series D Preferred Stock are presented to the Surviving Entity for any reason, they shall be canceled and exchanged in accordance with Article TENTH. (e) No Fractional ProLogis Common Shares or ProLogis New Preferred Shares. (i) No certificates or scrip representing fractional ProLogis Common Shares or ProLogis New Preferred Shares shall be issued upon the surrender for exchange of certificates representing shares of Meridian Common Stock, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a shareholder of ProLogis. Notwithstanding any other provision of these Articles of Merger, each holder of shares of Meridian Common Stock exchanged pursuant to the Merger who would have otherwise been entitled to receive a fraction of a ProLogis Common Shares (after taking into account all shares of Meridian Common Stock held of record by such holder at the Effective Time) shall receive, in lieu of such fraction of a share, cash in an amount determined and paid as stated in paragraphs (e)(ii)-(v) of this Article ELEVENTH. (ii) As promptly as practicable after the Effective Time, the Exchange Agent shall determine the excess (such excess being referred to as the "Excess Shares") of (A) the aggregate number of whole ProLogis Common Shares issuable pursuant to paragraph (b) of this Article ELEVENTH over (B) the aggregate number of whole ProLogis Common Shares to be distributed to former holders of Meridian Common Stock pursuant to paragraph (b) of this Article ELEVENTH after taking into account the payment of cash in lieu of fractional ProLogis Common Shares (on the premise that the entitlement of each holder of shares of Meridian Common Stock to receive cash in lieu of a fractional ProLogis Common Shares shall be calculated taking into account all shares of Meridian Common Stock held of record at the Effective Time by such holder). Following the Effective Time, the Exchange Agent shall, on behalf of the former holders of Meridian Common Stock, sell the Excess Shares at then-prevailing prices on the New York Stock Exchange ("NYSE") in the manner provided in paragraph (e)(iii) of this Article ELEVENTH. (iii) The sale of the Excess Shares by the Exchange Agent shall be executed on the NYSE through one or more member firms of the NYSE and shall be executed in round lots to the extent practicable. The Exchange Agent shall use reasonable efforts to complete the sale of the Excess Shares as promptly following the Effective Time as, in the Exchange Agent's sole judgment, is practicable consistent with obtaining the best execution of such sales in light of prevailing market conditions. Until the net proceeds of such sale or sales have been distributed to the holders of the certificates formerly representing Meridian Common Stock, the Exchange Agent shall hold such proceeds in trust for such holders (the "Common Shares Trust"). ProLogis shall pay all commissions, transfer taxes and other out-of-pocket transactions costs, including the expenses and compensation of the Exchange Agent incurred in connection with such sale of the Excess Shares. The Exchange Agent shall determine the portion of the Common Shares Trust to which each former holder of Meridian Common Stock is entitled, if any, by multiplying the amount of the aggregate net proceeds comprising the Common Shares Trust by a fraction, the numerator of which is the amount of the fractional share interest to which such former holder of Meridian Common Stock is entitled (after taking into account all shares of Meridian Common Stock held of record at the Effective Time by such holder) and the denominator of which is the aggregate amount of fractional share interest to which all former holders of Meridian Common Stock are entitled. (iv) Notwithstanding the provisions of paragraphs (e)(ii) and (iii) of this Article ELEVENTH, ProLogis may elect at its option, exercised prior to the Effective Time, in lieu of the issuance and sale of Excess Shares and the making of the payments hereinabove contemplated, to pay each former holder of Meridian Common Stock an amount in cash equal to the product obtained by multiplying (A) the fractional share interest to which such former holder (after taking into account all shares of Meridian Common Stock held of record at the Effective Time by such holder) would otherwise be entitled by (B) the average trading price of ProLogis Common Shares (determined by selecting the average of the daily high and low trading prices for the ProLogis Common Shares from 15 randomly selected trading days selected from the 30 trading days, up to and including, the fifth trading day prior to the Closing 6 Date), and, in such case, all references herein to the cash proceeds of the sale of the Excess Shares and similar references shall be deemed to mean and refer to the payments calculated as set forth in this paragraph (e)(iv). (v) As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of certificates formerly representing Meridian Common Stock with respect to any fractional share interests, the Exchange Agent shall make available such amounts to such holders subject to and in accordance with the terms of paragraph (b) of this Article ELEVENTH. (f) Termination of Exchange Fund. Any portion of the Exchange Fund made available to the Exchange Agent that remains undistributed to the former stockholders of Meridian on the first anniversary of the Effective Time shall be delivered to the Surviving Entity, upon demand, and any stockholders of Meridian who have not theretofore received any applicable Cash Consideration, ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, and any other dividends or distributions to which they are entitled under this Article ELEVENTH shall thereafter look only to the Surviving Entity for payment of their claims with respect thereto and only as general creditors thereof. (g) No Liability. Neither the Surviving Entity nor Meridian shall be liable to any holder of shares of Meridian Common Stock or Meridian Series D Preferred Stock, as the case may be, for any part of the Merger Consideration or for dividends or distributions with respect thereto delivered to a public official pursuant to any applicable abandoned property, escheat or similar law. Any amounts remaining unclaimed by holders of any such shares five years after the Effective Time or at such earlier date as is immediately prior to the time at which such amounts would otherwise escheat to or become property of any governmental entity, shall, to the extent permitted by applicable law, become the property of the Surviving Entity, free and clear of any claims or interest of any such holders or their successors, assigns or personal representatives previously entitled thereto. (h) Lost, Stolen, or Destroyed Certificates. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Entity, the posting by such person of a bond in such reasonable amount as the Surviving Entity may direct as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the certificate representing the appropriate amount of Cash Consideration payable in respect of shares of Meridian Common Stock and that number of whole ProLogis Common Shares and cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH or ProLogis New Preferred Shares, as the case may be, that such holder has the right to receive in accordance with the provisions of Article TENTH and any unpaid dividends and distributions that such holder has the right to receive in accordance with this Article ELEVENTH. (i) Withholding of Tax. The Surviving Entity shall be entitled to deduct and withhold from the Merger Consideration, cash in lieu of fractional ProLogis Common Shares, if any, pursuant to paragraph (e) of this Article ELEVENTH, any dividends or distributions otherwise payable to any holder of a Certificate or holder of uncertified shares of Meridian Common Stock or Meridian Series D Preferred Stock, such amount as the Surviving Entity (or any affiliate thereof) or the Exchange Agent is required to deduct and withhold with respect to the making of such payment under federal, state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Entity, such withheld amounts shall be treated for all purposes as having been paid to the former holder of a Certificate or holder of uncertificated shares of Meridian Common Stock or Meridian Series D Preferred stock or other stockholders of Meridian in respect of which such deduction and withholding was made by the Surviving Entity. TWELFTH: The parties hereto intend that the execution of these Articles of Merger constitute the adoption of a "plan of reorganization" within the meaning of Treasury Regulations (S) 1.368-1(c). 7 IN WITNESS WHEREOF, MERIDIAN INDUSTRIAL TRUST, INC., a Maryland corporation, and PROLOGIS TRUST, a Maryland real estate investment trust, the entities parties to the merger, have caused these Articles of Merger to be signed in their respective names and on their behalf and witnessed or attested all as of the 30th day of March, 1999. Each of the individuals signing these Articles of Merger on behalf of MERIDIAN INDUSTRIAL TRUST, INC. or PROLOGIS TRUST acknowledges these Articles of Merger to be the act of such respective entity and, as to all other matters or facts required to be verified under oath, that to the best of his or her knowledge, information and belief, these matters are true in all material respects and that this statement is made under the penalties of perjury. MERIDIAN INDUSTRIAL TRUST, INC. a Maryland corporation By: /s/ Allen J. Anderson (SEAL) ------------------------------ Allen J. Anderson, Chairman and Chief Executive Officer Attest: /s/ Robert A. Dobbin - ---------------------------------- Robert A. Dobbin, Secretary PROLOGIS TRUST, a Maryland real estate investment trust By: /s/ K. Dane Brooksher (SEAL) ------------------------------ K. Dane Brooksher, Chairman and Chief Executive Officer Attest: /s/ Edward S. Nekritz - ---------------------------------- Edward S. Nekritz, Secretary 8 EX-3.1 3 ARTICLES SUPPLEMENTARY CLASSIFYING EXHIBIT 3.1 ProLogis Trust ---------------------------- Articles Supplementary Classifying 2,000,000 Shares of Beneficial Interest as Series E Cumulative Redeemable Preferred Shares of Beneficial Interest ---------------------------- Dated as of March 30, 1999
TABLE OF CONTENTS Page Section 1. Number of Shares and Designation........................... -1- Section 2. Definitions................................................ -1- Section 3. Dividends.................................................. -3- Section 4. Liquidation Rights......................................... -5- Section 5. Conversion................................................. -6- Section 6. Redemption at the Option of the Trust...................... -6- Section 7. Shares to be Retired....................................... -7- Section 9. Voting..................................................... -7- Section 10. Record Holders............................................. -9- Section 11. Sinking Fund............................................... -9- Section 12. Ownership Limitation....................................... -9-
ProLogis Trust ---------------------------- Articles Supplementary Classifying 2,000,000 Shares of Beneficial Interest as Series E Cumulative Redeemable Preferred Shares of Beneficial Interest ---------------------------- ProLogis Trust, a Maryland real estate investment trust (the "Trust"), hereby certifies to the State Department of Assessments and Taxation of Maryland that: FIRST: Pursuant to Section 8-203(b) of the Corporations and Associations Article of the Annotated Code of Maryland and the authority granted to and vested in the Board of Trustees of the Trust by Article II, Section 1 of the Amended and Restated Declaration of Trust of the Trust, as amended and supplemented (the "Charter"), the Board of Trustees at a meeting duly convened and held on November 16, 1999, in accordance with the Agreement and Plan of Merger between the Trust and Meridian Industrial Trust, Inc. dated November 16, 1998 (the "Merger Agreement"), adopted resolutions classifying 2,000,000 unissued shares of beneficial interest of the Trust as Series E Cumulative Redeemable Preferred Shares of Beneficial Interest and setting the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications, and terms and conditions of redemption thereof. Section 1. Number of Shares and Designation. This class of preferred shares of beneficial interest shall be designated as Series E Cumulative Redeemable Preferred Shares of Beneficial Interest, par value $0.01 per share (the "Series E Preferred Stock"). The number of preferred shares constituting the Series E Preferred Stock is 2,000,000. Section 2. Definitions. The following terms shall have the following meanings herein: a. "Beneficial Ownership" shall mean ownership of Equity Stock by a Person, whether the interest in the shares of Equity Stock is held directly or indirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall have correlative meanings. For example, if a corporation is the actual beneficial owner of Equity Stock, the shares will be treated as Beneficially Owned by that corporation (due to its direct ownership of the shares), and the shareholders of that corporation will Beneficially Own their respective proportionate interests in those shares (due to their deemed ownership under Code Section 544(a)(1)), and interests in the same shares may also be treated as Beneficially Owned by others, depending upon the identity of, and relationships between, the shareholders and those related to the shareholders. b. "Board of Trustees" shall mean the Board of Trustees of the Trust or any committee authorized by the Board of Trustees to perform any of its responsibilities with respect to the Series E Preferred Stock. c. "Business Day" shall mean any day other than a Saturday, Sunday or day on which state or federally chartered banking institutions in New York City, New York are not required to be open. d. "Call Date" shall have the meaning set forth in Section 6(b). e. "Capital Gains Amount" shall have the meaning set forth in Section 3(d). f. "Charter" means the Amended and Restated Declaration of Trust, as amended and supplemented, of the Trust, as the same may be amended or supplemented hereafter from time to time. g. "Code" shall have the meaning set forth in Section 12. h. "Common Stock" shall mean the common shares of beneficial interest of the Trust, par value $0.01 per share. i. "Constructive Ownership" shall mean ownership of Equity Stock by a Person, whether the interest in the shares of Equity Stock is held directly or indirectly (including by a nominee), and shall include interests that would be treated as owned through the application of Section 318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms "Constructive Owner," "Constructively Owns" and "Constructively Owned" shall have correlative meanings. For example, if a corporation is the actual beneficial owner of Equity Stock, the shares will be treated as Constructively Owned by that corporation (due to its direct ownership of the shares), and the 10% or more shareholders of that corporation will Constructively Own their respective proportionate interests in those shares (due to their deemed ownership under Code Section 318(a)(2)(C) as modified by Code Section 856(d)(5)), and interests in the same shares may also be treated as Constructively Owned by others, depending upon the identity of, and relationships between, the shareholders and those related to the shareholders. j. "Dividend Payment Date" shall mean the last calendar day (or, if such day is not a Business Day, the next Business Day thereafter) of each January, April, July and October, commencing on April 30, 1999. k. "Dividend Periods" shall mean quarterly dividend periods commencing on February 1, May 1, August 1 and November 1 of each year and ending on April 30, July 31, October 31 and January 31 of such year, respectively (other than the Dividend Period during which any shares of Series E Preferred Stock shall be redeemed pursuant to Section 6, which shall end on and include the Call Date with respect to the shares of Series E Preferred Stock being redeemed). l. "Equity Stock" shall mean shares of beneficial interest that are either Preferred Stock or Common Stock. m. "Excepted Holder" shall mean a shareholder of the Trust for whom an exemption from the Ownership Limit is granted by the Board of Trustees pursuant to Article 2, Section 7(e) of the Charter, and then only to the extent of such exemption (the "Excepted Holder Limit"). n. "Excepted Holder Limit" shall have the meaning set forth in Section 2(m). o. "Exempted Person" shall have the meaning set forth in Section 12. p. "Fully Junior Stock" shall mean the Common Stock and any other class or series of shares of beneficial interest of the Trust now or hereafter issued and outstanding over which the Series E Preferred Stock has preference or priority in both the payment of dividends and the distribution of assets on any liquidation, dissolution or winding up of the Trust. q. "Issue Date" shall mean the first date on which the pertinent shares of the Series E Preferred Stock are issued pursuant to the Merger Agreement. r. "Junior Stock" shall mean the Common Stock and any other class or series of shares of beneficial interest of the Trust now or hereafter issued and outstanding over which the Series E Preferred Stock has -2- preference or priority in the payment of dividends or in the distribution of assets on any liquidation, dissolution or winding up of the Trust. s. "Ownership Limit" shall mean nine and eight tenths percent (9.8%) of the lesser of the number or value of the outstanding shares of any class or series of the Equity Stock of the Trust. The number and value of outstanding shares of any class or series of the Equity Stock of the Trust shall be determined by the Board of Trustees in good faith, which determination shall be conclusive. t. "Parity Stock" shall have the meaning set forth in Section 8(b). u. "Person" shall mean an individual, corporation, partnership, limited liability company, estate, trust (including a trust qualified under Section 401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside for or to be used exclusively for the purposes described in Section 642(c) of the Code, association, private foundation within the meaning of Section 509(a) of the Code, joint stock company, or other entity and also includes a group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended, and any group to which a particular Excepted Holder Limit may be applicable. v. "Preferred Stock" shall mean the preferred shares of beneficial interest of the Trust, par value $0.01 per share. w. "Series E Preferred Stock" shall have the meaning set forth in Section 1. x. "set apart for payment" shall be deemed to include, without any action other than the following; the recording by the Trust in its accounting ledgers of any accounting or bookkeeping entry which indicates, pursuant to an authorization of dividends or other distribution by the Board of Trustees, the allocation of funds to be so paid on any series or class of shares of beneficial interest of the Trust; provided, however, that if any funds for any class or series of Junior Stock or Fully Junior Stock or any class or series of shares of beneficial interest ranking on a parity with the Series E Preferred Stock as to the payment of dividends are placed in a separate account of the Trust or delivered to a disbursing, paying or other similar agent, then "set apart for payment" with respect to the Series E Preferred Stock shall mean placing such funds in such separate account or delivering such funds to a disbursing, paying or other similar agent. y. "Total Dividends" shall have the meaning set forth in Section 3(d). z. "Transfer Agent" means Bank Boston N.A., Canton, Massachusetts, or such other agent or agents of the Trust as may be designated by the Board of Trustees or their designee as the transfer agent, registrar and dividend disbursing agent for the Series E Preferred Stock. Section 3. Dividends. a. Subject to the provisions of Section 8 hereof, the holders of Series E Preferred Stock shall be entitled to receive, when, as and if authorized by the Board of Trustees out of funds legally available for that purpose, cumulative, preferential dividends payable in cash at the rate of 8.75% of the liquidation preference per annum per share (equal to $2.1875 per annum per share). Such dividends shall be deemed to begin to accrue and shall be fully cumulative from February 1, 1999, whether or not in any Dividend Period or Periods there shall be funds of the Trust legally available for the payment of such dividends, and shall be payable quarterly, when, as and if authorized by the Board of Trustees, in arrears on Dividend Payment Dates, commencing on the first Dividend Payment Date after the Issue Date. Such dividends shall be payable in arrears to the holders of record of Series E Preferred Stock, as they appear on the share records of the Trust at the close of business on the record date, not more than 50 nor less than 10 days preceding the relevant Dividend Payment Date, as shall be fixed by the Board of Trustees. Accrued and unpaid dividends for any past Dividend Periods may be authorized and paid on any date -3- and for such interim periods, without reference to any regular Dividend Payment Date, to holders of record on such date, not exceeding 50 days preceding the payment date thereof, as may be fixed by the Board of Trustees. Any dividend payment made on the Series E Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to the Series E Preferred Stock which remains payable. b. The amount of dividends referred to in Section 3(a) payable for each full Dividend Period for the Series E Preferred Stock shall be computed by dividing the annual dividend rate by four, except that the amount of dividends payable for the initial Dividend Period, and for any Dividend Period shorter than a full Dividend Period, for the Series E Preferred Stock shall be computed on the basis of the actual number of days in such Dividend Period. Holders of Series E Preferred Stock shall not be entitled to any dividends, whether payable in cash, property or shares of beneficial interest, in excess of cumulative dividends, as herein provided, on the Series E Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the Series E Preferred Stock that may be in arrears. c. Dividends on Series E Preferred Stock will accrue whether or not the Trust has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are authorized. d. If, for any taxable year, the Trust elects to designate as "capital gain dividends" (as defined in Section 857 of the Code), any portion (the "Capital Gains Amount") of the total dividends (within the meaning of the Code) paid or made available for the year to holders of all classes of beneficial interest (the "Total Dividends"), then the portion of the Capital Gains Amount that shall be allocable to holders of Series E Preferred Stock shall be in the same proportion that the dividends paid or made available to the holders of Series E Preferred Stock for the year bears to the Total Dividends. e. So long as any shares of Series E Preferred Stock are outstanding, no dividends, except as described in the immediately following sentence, shall be authorized or paid or set apart for payment on any class or series of Parity Stock for any period unless full cumulative dividends have been or contemporaneously are authorized and paid or authorized and a sum sufficient for the payment thereof set apart for such payment on any outstanding shares of the Series E Preferred Stock for all Dividend Periods terminating on or prior to the dividend payment date for such class or series of Parity Stock. If dividends are not paid in full or a sum sufficient for such payment is not set apart upon the Series E Preferred Stock, as aforesaid, all dividends authorized upon Series E Preferred Stock and all dividends authorized upon any other class or series of Parity Stock shall be authorized ratably in proportion to the respective amounts of dividends accumulated and unpaid on the Series E Preferred Stock and accumulated and unpaid on such Parity Stock. f. So long as any shares of Series E Preferred Stock are outstanding, no dividends (other than dividends or distributions paid solely in shares of, or options, warrants or rights to subscribe for or purchase shares of, Fully Junior Stock) shall be authorized or paid or set apart for payment or other distribution authorized or made upon Junior Stock or Fully Junior Stock, nor shall any Junior Stock or Fully Junior Stock be redeemed, purchased or otherwise acquired (other than a redemption, purchase or other acquisition of shares of Common Stock made for purposes of any employee incentive or benefit plan of the Trust or any subsidiary) for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such shares) by the Trust, directly or indirectly (except by conversion into or exchange for shares of Fully Junior Stock), unless in each case the full cumulative dividends on all outstanding shares of Series E Preferred Stock and any other Parity Stock of the Trust shall have been or contemporaneously are authorized and paid or authorized and set apart for payment for all past Dividend Periods with respect to the Series E Preferred Stock and all past dividend periods with respect to such Parity Stock and sufficient funds shall have been or contemporaneously are authorized and paid or authorized and set apart for the payment of the dividend for the current Dividend Period with respect to the Series E Preferred Stock and the current dividend period with respect to such Parity Stock. -4- g. No dividends on Series E Preferred Stock shall be authorized by the Board of Trustees or paid or set apart for payment by the Trust at such time as the terms and provisions of any agreement of the Trust, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such authorization, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such authorization or payment shall be restricted or prohibited by law. Section 4. Liquidation Rights. a. In the event of any liquidation, dissolution or winding up of the Trust, whether voluntary or involuntary, before any payment or distribution of the assets of the Trust (whether capital or surplus) shall be made to or set apart for the holders of Junior Stock and subject to the provisions of Section 8 hereof, the holders of the Series E Preferred Stock shall be entitled to receive Twenty Five Dollars ($25.00) per share of Series E Preferred Stock plus an amount equal to all dividends (whether or not earned or authorized) accrued and unpaid thereon to the date of final distribution to such holders; but such holders shall not be entitled to any further payment. If, upon any liquidation, dissolution or winding up of the Trust, the assets of the Trust, or proceeds thereof, distributable among the holders of the Series E Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other shares of any class or series of Parity Stock, then such assets, or the proceeds thereof, shall be distributed among the holders of the Series E Preferred Stock and any such other Parity Stock ratably in accordance with the respective amounts that would be payable on such Series E Preferred Stock and any such other Parity Stock if all amounts payable thereon were paid in full. For the purposes of this Section 4, a consolidation or merger of the Trust with one or more corporations, real estate investment trusts, or other entities, a sale, lease or transfer of all or substantially all of the Trust's assets, or a statutory share exchange shall not be deemed to be a liquidation, dissolution or winding up, voluntary or involuntary, of the Trust. b. Subject to the rights of the holders of shares of any series or class or classes of shares of beneficial interest ranking on a parity with or prior to the Series E Preferred Stock upon liquidation, dissolution or winding up, upon any liquidation, dissolution or winding up of the Trust, after payment shall have been made in full to the holders of the Series E Preferred Stock, as provided in this Section 4, any other series or class or classes of Junior Stock or Fully Junior Stock shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series E Preferred Stock shall not be entitled to share therein. c. No distribution with respect to any series or class or classes of shares of beneficial interest (other than upon voluntary or involuntary liquidation) by dividend, redemption or other acquisition of shares or otherwise, may be made if, after giving effect to such distribution: (i) The Trust would not be able to pay its indebtedness as the indebtedness becomes due in the usual course of business; or (ii) The Trust's total assets would be less than the sum of its total liabilities plus the amounts that would be needed, if the Trust were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of holders of the Series E Preferred Stock, but only if, and to the extent that, the addition of such amounts would not prohibit a distribution necessary, as determined by the Board of Trustees, to maintain the Trust's status as a "real estate investment trust" under the Code. Section 5. Conversion. The shares of Series E Preferred Stock are not convertible or exchangeable for any other property or securities of the Trust. -5- Section 6. Redemption at the Option of the Trust. a. The Series E Preferred Stock shall not be redeemable by the Trust prior to June 30, 2003. On and after that date, the Trust, at its option, may redeem the Series E Preferred Stock, in whole or in part at any time or from time to time, at a redemption price of Twenty Five Dollars ($25.00) per share of Series E Preferred Stock, plus the amounts indicated in Section 6(b). b. Upon any redemption of the Series E Preferred Stock pursuant to this Section 6, the Trust shall pay all accrued and unpaid dividends, if any, thereon ending on or prior to the date of such redemption (the "Call Date"), without interest. If the Call Date falls after a dividend payment record date and prior to the corresponding Dividend Payment Date, then each holder of Series E Preferred Stock at the close of business on such dividend payment record date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided above, the Trust shall make no payment or allowance for unpaid dividends, whether or not in arrears, on shares of Series E Preferred Stock called for redemption. c. If full cumulative dividends on the Series E Preferred Stock and any other class or series of Parity Stock of the Trust have not been authorized and paid or authorized and set apart for payment, the Series E Preferred Stock or Parity Stock may not be redeemed under this Section 6 in part and the Trust may not purchase or acquire the Series E Preferred Stock or any Parity Stock, otherwise than pursuant to a purchase or exchange offer made on the same terms to all holders of Series E Preferred Stock or Parity Stock, as the case may be. d. Notice of the redemption of any Series E Preferred Stock under this Section 6 shall be mailed by first-class mail to each holder of record of Series E Preferred Stock to be redeemed at the address of each such holder as shown on the Trust's records, not less than 30 nor more than 90 days prior to the Call Date. Neither the failure to mail any notice required by this Section 6(d), nor any defect therein or in the mailing thereof, to any particular holder, shall affect the sufficiency of the notice or the validity of the proceedings for redemption with respect to the other holders. Any notice which was mailed in the manner herein provided shall be conclusively presumed to have been duly given on the date mailed whether or not the holder receives the notice. Each such mailed notice shall state, as appropriate: (1) the Call Date; (2) the number of shares of Series E Preferred Stock to be redeemed and, if fewer than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price per share; (4) the place or places at which certificates for such shares are to be surrendered; and (5) that dividends on the shares to be redeemed shall cease to accrue on such Call Date except as otherwise provided herein. Notice having been mailed as aforesaid, from and after the Call Date (unless the Trust shall fail to make available an amount of cash necessary to effect such redemption), (i) except as otherwise provided herein, dividends on the Series E Preferred Stock so called for redemption shall cease to accrue, (ii) shares of such Series E Preferred Stock shall no longer be deemed to be outstanding, and (iii) all rights of the holders thereof as holders of Series E Preferred Stock of the Trust shall cease (except the right to receive cash payable upon such redemption, without interest thereon, upon surrender and endorsement of their certificates if so required and to receive any dividends payable thereon). The Trust's obligation to provide cash in accordance with the preceding sentence shall be deemed fulfilled if, on or before the Call Date, the Trust shall deposit with a bank or trust company (which may be an affiliate of the Trust) that has an office in the Borough of Manhattan, City of New York, and that has, or is an affiliate of a bank or trust company that has, capital and surplus of at least $50,000,000, the amount of cash necessary for such redemption, in trust, with irrevocable instructions that such cash be applied to the redemption of the Series E Preferred Stock so called for redemption. No interest shall accrue for the benefit of the holders of Series E Preferred Stock to be redeemed on any cash so set aside by the Trust. Subject to applicable escheat laws, any such cash unclaimed at the end of two years from the Call Date shall revert to the general funds of the Trust, after which reversion the holders of such shares so called for redemption shall look only to the general funds of the Trust for the payment of such cash. -6- As promptly as practicable after the surrender in accordance with said notice of the certificates for any such shares so redeemed (properly endorsed or assigned for transfer, if the Trust shall so require and if the notice shall so state), such shares shall be exchanged for any cash (without interest thereon) for which such shares have been redeemed. If fewer than all the outstanding shares of Series E Preferred Stock are to redeemed, shares to be redeemed shall be selected by the Trust from outstanding shares of Series E Preferred Stock not previously called for redemption by lot or pro rata (as nearly as may be) or by any other method determined by the Trust in its sole discretion to be equitable. If fewer than all the shares of Series E Preferred Stock represented by any certificate are redeemed, then new certificates representing the unredeemed shares shall be issued without cost to the holder thereof. Section 7. Shares to be Retired. All shares of Series E Preferred Stock which shall have been issued and reacquired in any manner by the Trust shall be restored to the status of authorized but unissued shares of beneficial interest of the Trust, without designation as to class or series. Section 8. Ranking. Any class or series of shares of beneficial interest of the Trust shall be deemed to rank: a. prior to the Series E Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution or winding up, if the holders of such class or series shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of Series E Preferred Stock; b. on a parity with the Series E Preferred Stock, as to the payment of dividends and as to distribution of assets upon liquidation, dissolution or winding up, whether or not the dividend rates, dividend payment dates or redemption or liquidation prices per share thereof be different from those of the Series E Preferred Stock, if the holders of such class or series of shares of stock and the Series E Preferred Stock shall be entitled to the receipt of dividends and of amounts distributable upon liquidation, dissolution or winding up in proportion to their respective amounts of accrued and unpaid dividends per share or liquidation preferences, without preference or priority one over the other, which shall include, without limitation, shares of Preferred Stock classified by the Trust as Series A Cumulative Redeemable Preferred Shares, Series B Cumulative Convertible Preferred Shares, Series C Cumulative Redeemable Preferred Shares and Series D Cumulative Redeemable Preferred Shares ("Parity Stock"); c. junior to the Series E Preferred Stock, as to the payment of dividends or as to the distribution of assets upon liquidation, dissolution or winding up, as the case may be, if such shares of beneficial interest shall be Junior Stock; and d. junior to the Series E Preferred Stock, as to the payment of dividends and as to the distribution of assets upon liquidation, dissolution or winding up, if such shares of beneficial interest shall be Fully Junior Stock. Section 9. Voting. a. On any matter on which the holders of Series E Preferred Stock are entitled to vote (as expressly provided herein or as may be required by law), including any action by written consent, each share of Series E Preferred Stock shall have one vote per share, except that when shares of any other series of Preferred Stock shall have the right to vote with the Series E Preferred Stock as a single class on any matter, then the Series E Preferred Stock and such other series shall have with respect to such matters one vote per $25.00 of stated liquidation preference. With respect to each matter on which the holders of Series E Preferred Stock are entitled to vote, the holder of each share of Series E Preferred Stock may designate a number of proxies equal to the number -7- of votes to which the share is entitled, with each such proxy having the right to vote a whole number of votes on behalf of such holder. b. If and whenever dividends payable for six or more quarterly periods on the Series E Preferred Stock or any series or class of Parity Stock shall be in arrears (which shall, with respect to any such quarterly dividend, mean that any such dividend has not been paid in full), whether or not authorized and whether or not such periods are consecutive, the number of trustees then constituting the Board of Trustees shall be increased by two, and the holders of Series E Preferred Stock, together with the holders of shares of every other series of Parity Stock, voting as a single class regardless of series, shall be entitled to elect the two additional trustees to serve on the Board of Trustees at any annual meeting of shareholders or special meeting held in place thereof, or at a special meeting of the holders of the Series E Preferred Stock and the Parity Stock called as hereinafter provided. Whenever all arrears in dividends on the Series E Preferred Stock and the Parity Stock then outstanding shall have been paid and dividends thereon for the current quarterly dividend period shall have been paid or declared and set apart for payment, then the right of the holders of the Series E Preferred Stock and the Parity Stock to elect such additional two trustees shall immediately cease (but subject always to the same provision for the vesting of such voting rights in the case of any similar future arrearages in six quarterly dividends), and the terms of office of all persons so elected as trustees by the holders of the Series E Preferred Stock and the Parity Stock shall immediately terminate and the number of the Board of Trustees shall be reduced accordingly. At any time after such voting rights shall have been so vested in the holders of Series E Preferred Stock and the Parity Stock, the secretary of the Trust may, and upon the written request of any holder of Series E Preferred Stock (addressed to the secretary at the principal office of the Trust) shall, call a special meeting of the holders of the Series E Preferred Stock and of the Parity Stock for the election of the two trustees to be elected by them as herein provided, such call to be made by notice similar to that provided in the Bylaws of the Trust for a special meeting of the shareholders or as required by law. If any such special meeting required to be called as above provided shall not be called by the secretary within 20 days after receipt of any such request, then any holder of Series E Preferred Stock may call such meeting, upon the notice above provided, and for that purpose shall have access to the stock records of the Trust. The trustees elected at any such special meeting shall hold office until the next annual meeting of the shareholders or special meeting held in lieu thereof if such office shall not have previously terminated as above provided. If any vacancy shall occur among the trustees elected by the holders of the Series E Preferred Stock and the Parity Stock, a successor shall be elected by the Board of Trustees, upon the nomination of the then-remaining trustee elected by the holders of the Series E Preferred Stock and the Parity Stock or the successor of such remaining trustee, to serve until the next annual meeting of the shareholders or special meeting held in place thereof if such office shall not have previously terminated as provided above. c. So long as any shares of Series E Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or by the Charter of the Trust, the affirmative vote of the holders of at least 66-2/3% of the Series E Preferred Stock and the Parity Stock, at the time outstanding, acting as a single class regardless of series, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating: i. Any amendment, alteration or repeal of any of the provisions of the Charter of the Trust (including these Articles Supplementary) that materially and adversely affects the voting powers, rights or preferences of the holders of the Series E Preferred Stock or the Parity Stock; provided, however, that the amendment of the provisions of the Charter of the Trust so as to authorize or create or to increase the authorized amount of shares of any class of any Fully Junior Stock or Junior Stock that are not senior in any respect to the Series E Preferred Stock, or any shares of any class ranking on a parity with the Series E Preferred Stock or the Parity Stock, shall not be deemed to materially adversely affect the voting powers, rights or preferences of the holders of Series E Preferred Stock; and provided further, that if any such amendment, alteration or repeal would materially and adversely affect any voting powers, rights or preferences of the Series E Preferred Stock or another series of Parity Stock that are not enjoyed by some or all of -8- the other series otherwise entitled to vote in accordance herewith, the affirmative vote of at least 66-2/3% of the votes entitled to be cast by the holders of all series similarly affected, similarly given, shall be required in lieu of the affirmative vote of at least 66-2/3% of the votes entitled to be cast by the holders of the Series E Preferred Stock and the Parity Stock otherwise entitled to vote in accordance herewith; ii. A share exchange that affects the Series E Preferred Stock, a consolidation with or merger of the Trust into another entity, or a consolidation with or merger of another entity into the Trust, unless in each such case each share of Series E Preferred Stock (i) shall remain outstanding without a material and adverse change to its terms and rights or (ii) shall be converted into or exchanged for preferred shares of the surviving entity having preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms or conditions of redemption thereof identical to that of a share of Series E Preferred Stock (except for changes that do not materially and adversely affect the holders of the Series E Preferred Stock); or iii The authorization or creation of, or the increase in the authorized amount of, any shares of any class, or any security convertible into shares of any class, ranking prior to the Series E Preferred Stock in the distribution of assets on any liquidation, dissolution or winding up of the Trust or in the payment of dividends; provided, however, that no such vote of the holders of Series E Preferred Stock shall be required if, at or prior to the time when such amendment, alteration or repeal is to take effect, or when the issuance of any such shares or convertible securities is to be made, as the case may be, provision is made for the redemption of all shares of Series E Preferred Stock at the time outstanding. d. Except as otherwise required by applicable law or as set forth herein, the Series E Preferred Stock shall not have any relative, participating, optional or other special voting rights and powers, and the consent of the holders thereof shall not be required for the taking of any corporate action. Section 10. Record Holders. The Trust and the Transfer Agent may deem and treat the record holder of any Series E Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Trust nor the Transfer Agent shall be affected by any notice to the contrary. Section 11. Sinking Fund. The Series E Preferred Stock shall not be entitled to the benefits of any retirement or sinking fund. Section 12. Ownership Limitation. Pursuant to the authority granted to the Board of Trustees under Article 2, Section 7(e) of the Charter, any Person who is not an individual within the meaning of Section 542(a)(2) of the Internal Revenue Code of 1986, as amended (the "Code"), as modified by Section 856(h)(3) of the Code (referred to as an "Exempted Person"), that acquires Beneficial Ownership of shares of Series E Preferred Stock shall not be subject to the Ownership Limit with respect to the Series E Preferred Stock, subject to the condition that no Person who is an individual within the meaning of Section 542(a)(2) of the Code, as modified by Section 856(h)(3) of the Code and who Beneficially Owns any of the shares of Series E Preferred Stock owned directly by the Exempted Person at any time Beneficially Owns an amount of Series E Preferred Stock in excess of the Ownership Limit and that such Person does not own, actually or Constructively, an interest in a tenant of the Company (or a tenant of any entity owned or controlled by the Company in whole or in part) that would cause the Company to own, actually or Constructively, more than a 9.8% interest (as set forth in Section 856(h)(3) of the Code) in such tenant. Each Exempted Person who acquires shares of Series E Preferred Stock in reliance upon the conditional exemption set forth in the preceding sentence represents and warrants to the Trust as a condition of such reliance that each of the conditions set forth therein is satisfied at the time such Exempted Person acquired the shares of Series E Preferred Stock and will be satisfied throughout the period during which such -9- Exempted Person Beneficially Owns the shares of Series E Preferred Stock. Each Exempted Person who acquires shares of Series E Preferred Stock in reliance upon the conditional exemption set forth in the second preceding sentence further agrees that in the event either of the conditions set forth in the second preceding sentence is at any time not satisfied, the exemption granted under this Section 12 no longer shall apply to such Exempted Person and all of the shares of Series E Preferred Stock Beneficially Owned by such Exempted Person shall be subject to all of the restrictions and remedies set forth in Article 2, Section 2 of the Charter (including, without limitation, the remedies set forth in Article 2, Section 7(d) of the Charter). SECOND: The Series E Preferred Stock has been classified by the Board of Trustees under the authority contained in Article 2, Section 1 of the Charter. THIRD: These Articles Supplementary have been approved by the Board of Trustees in the manner and by the votes required by law. FOURTH: The undersigned each acknowledges these Articles Supplementary to be the act of the Trust and further, as to all matters or facts required to be verified under oath, each of the undersigned acknowledges that to the best of his acknowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties of perjury. [Remainder of page intentionally left blank.] -10- IN WITNESS WHEREOF, the Trust has caused these Articles Supplementary to be signed in its name and on its behalf by one of its Senior Vice Presidents and attested to by its Secretary on March 30, 1999. PROLOGIS TRUST By: /s/ Irving F. Lyons, III ----------------------------------------- Name: Irving F. Lyons, III President and Chief Investment Officer ATTEST: /s/ Edward S. Nekritz ----------------------------------------- Name: Edward S. Nekritz Secretary -11- EX-99.1 4 PRESS RELEASE DATED 03/30/1999 Exhibit 99.1 News Release Contact: Investor Relations (800) 820-0181 - ------------ Melissa Marsden (303) 576-2622 SHAREHOLDERS APPROVE PROLOGIS MERGER WITH MERIDIAN INDUSTRIAL TRUST DENVER -- March 30, 1999 -- Shareholders of ProLogis (NYSE: PLD), a leading global provider of distribution services and facilities, and Meridian Industrial Trust (NYSE: MDN), overwhelmingly approved the merger of Meridian with and into ProLogis, effective March 30, 1998. More than 88% of ProLogis' total shares outstanding were voted at the company's special meeting of shareholders today, with 97% of those shares voted in favor of the merger. The merged companies will operate under the ProLogis name. The company previously disclosed that after the close of the merger it would re- evaluate its annual dividend to take into consideration the operating performance of the company, including Meridian for 1999, while maintaining the minimum payout ratio consistent with ProLogis' financial strategy. Following this evaluation, ProLogis announced an increase in its annual common stock dividend for the sixth consecutive year to $1.30 per share from $1.24 per share in 1998. The ProLogis Board declared ProLogis' second quarter dividend in the amount of $0.3272 per common share, payable on May 27, 1999, to holders of record on May 13, 1999. ProLogis is a leading global provider of integrated distribution services, with nearly 1,500 distribution facilities owned and operating throughout North American and Europe. ProLogis has built the industry's first and only global network of distribution facilities with the primary objective to build shareholder value by becoming the leading provider of distribution services. The company expects to achieve this objective through the ProLogis Operating System/TM/, and its commitment to be "The Global Distribution Solution" by providing exceptional corporate distribution services and facilities to meet customer expansion and reconfiguration needs globally. Following the merger with Meridian, ProLogis now has approximately 166.4 million square feet of distribution facilities operating or under development in 94 global markets. In addition to historical information, this press release contains forward- looking statements under the federal securities laws. These statements are based on current expectations, estimates and projections about the industry and markets in which ProLogis operates, management's beliefs and assumptions made by management. Forward-looking statements are not guarantees of future performance and involve certain risks and uncertainties which are difficult to predict. Actual operating results may be affected by changes in national and local economic conditions, competitive market conditions, weather, obtaining governmental approvals and meeting development schedules, and therefore, may differ materially from what is expressed or forecasted in this press release. -1- -----END PRIVACY-ENHANCED MESSAGE-----