Attached files
Exhibit 3.5
FORM OF CERTIFICATE OF DESIGNATION
OF
SERIES B SPECIAL SHARES
OF
CENTERLINE HOLDING COMPANY
OF
SERIES B SPECIAL SHARES
OF
CENTERLINE HOLDING COMPANY
CENTERLINE HOLDING COMPANY (the Company), a Delaware statutory trust created and existing
under the Delaware Statutory Trust Act, and acting pursuant to the authority expressly vested in
the board of trustees of the Company (the Board) by that certain Second Amended and
Restated Trust Agreement, dated as of November 17, 2003, as amended by Amendment No. 1 thereto,
dated as of September 20, 2005, as further amended by Amendment No. 2 thereto, dated as of November
30, 2005, as further amended by Amendment No. 3 thereto, dated as of June 13, 2006, and as further
amended by Amendment No. 4 thereto, dated as of April 2, 2007 (the Trust Agreement), DOES
HEREBY CERTIFY:
A. | The Board duly approved and adopted resolution on March 5, 2010 (i) creating a
series of shares of beneficial interest in the Company designated as Series B Special
Shares with (1) the designations, powers, preferences, (2) the relative,
participating, optional or other special rights and (3) the qualifications, limitations
or restrictions, as set forth in this certificate of designation (this Certificate
of Designation) (in addition to those set forth in the Trust Agreement) and (ii)
directing that this Certificate of Designation be attached as an appendix to the Trust
Agreement. |
NOW, THEREFORE, the terms of the Series B Special Shares of the Company are as set forth below:
SERIES B SPECIAL SHARES
1. | DESIGNATION AND AMOUNT. The shares of such series shall be designated as Series B
Special Shares (the Series B Shares) and the number of shares constituting the
Series B Shares shall be 1,000,000. Such number of shares may be increased or decreased by
resolution of the Board; provided that no decrease shall reduce the number of shares of Series
B Shares to a number than less than the number of shares then outstanding plus the number of
shares reserved for issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding shares of beneficial interest issued by the Company
convertible into Series B Shares. |
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2. | DISTRIBUTIONS. |
a. | Subject to the prior and superior rights of holders of any shares of any class or
series of shares of the Company ranking prior and superior to the Series B Shares with
respect to distributions, the holders of Series B Shares, in preference to the holders of
Common Shares of beneficial interests in the Company (the Common Shares), the
Convertible Community Reinvestment Act Preferred Shares of beneficial interests in the
Company (the CRA Shares), the Series A Convertible Community Reinvestment Act
Preferred |
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Shares of beneficial interests in the Company (the Series A CRA Shares), the
Special Preferred Voting Shares of beneficial interests in the Company (the Special
Preferred Shares) and the Special Series A Shares of beneficial interests in the
Company (the Special Shares and, together with the Common Shares, the CRA Shares,
the Series A CRA Shares and the Special Preferred Shares, the Existing Shares),
and of any other shares of beneficial interest of the Company ranking junior to the Series B
Shares, shall be entitled to receive, when, as and if declared by the Board out of funds
legally available for the purpose, quarterly distributions payable in cash on the first day
of March, June, September and December in each year (each such date being referred to herein
as a Quarterly Distribution Payment Date), commencing on the first Quarterly
Distribution Payment Date after the first issuance of Series B Share or a fraction of a
Series B Share, in an amount per share (rounded to the nearest cent) equal to the greater of
(i) $1.00 or (ii) subject to the provision for adjustment hereinafter set forth, 1,000,000
times the aggregate per share amount of all cash distributions, and 1,000,000 times the
aggregate per share amount (payable in kind) of all non-cash distributions, other than a
distribution payable in shares of Existing Shares or a subdivision of the outstanding shares
of Existing Shares (by reclassification or otherwise), declared on the Common Shares since
the immediately preceding Quarterly Distribution Payment Date or, with respect to the first
Quarterly Distribution Payment Date, since the first issuance of any Series B Share or
fraction of a Series B Share. In the event the Company shall at any time declare or pay any
distribution on the Existing Shares payable in Existing Shares (by reclassification or
otherwise than by payment of a distribution on the shares of Existing Shares) into a greater
or lesser number of Existing Shares, then in each such case the amount to which holder of
Series B Shares were entitled immediately prior to such event under clause (ii) of the
preceding sentence shall be appropriately adjusted. |
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b. | The Company shall declare a distribution on the Series B Shares as provided in
paragraph (a) of this Section 2 immediately after it declares a distribution on the
Existing Shares (other than a distribution payable in Existing Shares); provided that, in
the event no distribution shall have been declared on Existing Shares during the period
between any Quarterly Distribution Payment Date and the next subsequent Quarterly
Distribution Payment Date, a distribution of $1.00 per share on the Series B Shares shall
nevertheless be payable on such subsequent Quarterly Distribution Payment Date. |
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c. | Distributions shall begin to accrue and be cumulative on outstanding Series B Shares
from the Quarterly Distribution Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record date for the first
Quarterly Distribution Payment Date or is a date after the record date for the
determination of holders of Series B Shares entitled to receive a quarterly distribution
and before such Quarterly Distribution Payment Date, in either of which events such
distributions shall begin to accrue and be cumulative from such Quarterly Payment Date.
Accrued but unpaid distributions shall not bear interest. Distributions paid on the
Series B Shares in an amount less than the total amount of such distributions at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board may fix a record date for the
determination of holders of Series B Shares entitled to receive a payment of a distribution |
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declared thereon, which record date shall not be more than sixty (60) days prior to the date
fixed for the payment thereof. |
3. | Voting Rights. The holder of Series B Shares shall have the following voting rights: |
a. | Subject to the provision for adjustment hereinafter set forth, each Series B Share
shall entitle the holder to 1,000,000 votes on all matters submitted to a vote of the
shareholders of the Company. In the event the Company shall at any time declare or pay any
distribution on the Existing Shares payable in Existing Shares, or effect a subdivision,
combination or consolidation of the outstanding Existing Shares (by reclassification or
otherwise than by payment of a distribution in Existing Shares) into a greater or lesser
number of Existing Shares, then in each such case the number of votes per share to which
holders of Series B Shares were entitled immediately prior to such event shall be
appropriately adjusted. |
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b. | Except as otherwise provided herein, in any other Certificate of Designations creating
a series of shares of the Company, or by law, the holders of Series B Shares and the
holders of Existing Shares and any other shares of beneficial interest in the Company
having general voting rights shall vote together as one single class on all matters
submitted to a vote of shareholders of the Company. |
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c. | Except as set forth herein, or as otherwise provided by law, holders of Series B Shares
shall have no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Existing Shares as set forth herein) for
taking any trust action. |
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d. | If, at the time of any annual meeting of shareholders for the election of members of
the Board, the equivalent of six quarterly distributions (whether or not consecutive)
payable on any Series B Share or Series B Shares are in default, the number of members of
the Board constituting the Board shall be increased by two. In addition to voting together
with the holders of Existing Shares for the election of the other members of the Board, the
holders of record of a majority of the Series B Shares, voting separately as a class to the
exclusion of the holders of Existing Shares, shall be entitled at such meeting of
shareholders (and at each subsequent annual meeting of shareholders), unless all
distributions in arrears on the Series B Shares have been paid or declared and set apart
for payment prior thereto, to nominate and vote for the election of two members of the
Board, the holders of any Series B Shares being entitled to cast a number of votes per
Series B Share as is specified in paragraph (a) of this Section 3. Each such additional
member of the Board shall serve until his successor shall be elected and shall qualify, or
until his right to hold such office terminates pursuant to the provisions of this Section
3(d). Until the default in payment of all distributions which permitted the election of
said members of the Board shall cease to exist, any member of the Board who shall have been
so elected pursuant to the provisions of this Section 3(d) may be removed at any time, with
or without cause, by the affirmative vote of the holders of at least a majority of the
Series B Shares, and any vacancy thereby created may be filled by the vote of such holders.
If and when such default shall cease to exist, the holders of Series B Shares shall be
divested of the foregoing special voting rights, subject to revesting in the event of each |
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and every subsequent like default in payments of distributions. Upon the termination of the
foregoing special voting rights, the terms of office of all persons who may have been
elected members of the Board pursuant to said special voting rights shall forthwith
terminate, and the number of members of the Board constituting the Board shall be reduced by
two. The voting rights granted by this Section 3(d) shall be in addition to any other
voting rights granted to the holders of Series B Shares in this Section 3. |
4. | Certain Restrictions. |
a. | Whenever quarterly distributions or other distributions payable on the Series B Shares
as provided in Section 2 are in arrears, thereafter and until all accrued and unpaid
distributions, whether or not declared, on Series B Shares outstanding shall have been paid
in full, the Company shall not: |
i. | declare or pay distributions, or make any other distributions, on any
shares ranking junior (either as to distributions or upon liquidation, dissolution
or winding up) to the Series B Shares; |
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ii. | declare or pay distributions, or make any other distributions, on any
shares ranking on a parity (either as to distributions or upon liquidation,
dissolution or winding up) with the Series B Shares, except distributions paid
ratably on the Series B Shares and all such parity shares on which distributions
are payable or in arrears in proportion to the total amounts to which the holders
of all such share are then entitled; |
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iii. | redeem or purchase or otherwise acquire for consideration any shares
ranking junior (either as to distributions or upon liquidation, dissolution or
winding up) to the Series B Shares, provided that the Company may at any time
redeem, purchase or otherwise acquire any such junior shares in exchange for any
shares of the Company ranking junior (both as to distributions and upon
dissolution, liquidation or winding up) to the Series B Shares; or |
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iv. | redeem or purchase or otherwise acquire for consideration any Series B
Shares, or any shares ranking on a parity with the Series B Shares, except in
accordance with a purchase offer made in writing or by publication (as determined
by the Board) to all holders of such shares upon terms as the Board, after
consideration of the respective annual distribution rates and other relative rights
and preferences of the respective series and classes, shall determine in good faith
will result in fair and equitable treatment among the respective series or classes. |
b. | The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any share of beneficial interest in the Company unless the
Company could, under paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner. |
5. | Reacquired Shares. Any Series B Shares purchased or otherwise acquired by the
Company in any manner whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized and may be reissued |
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subject to the conditions and restrictions on issuance set forth herein, in the Trust Agreement
or in any other Certificate of Designations creating a series of shares of the Company or as
otherwise required by law. |
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6. | Liquidation, Dissolution or Winding Up. |
a. | Upon any liquidation, dissolution or winding up of the Company, voluntary or otherwise
no distribution shall be made: |
i. | to the holders of shares ranking junior (either as to distributions or
upon liquidation, dissolution or winding up) to the Series B Shares unless, prior
thereto, the holders of Series B Shares shall have received an amount per share
(the Series A Liquidation Preference) equal to $10.00 per share, plus an amount
equal to accrued and unpaid distributions thereon, whether or not declared, to the
date of such payment, provided that the holders of Series B Shares shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000,000 times the aggregate amount to
be distributed per share to holders of Common Shares, or |
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ii. | to the holders of shares ranking on parity (either as to distributions
or upon liquidation, dissolution or winding up) with the Series B Shares, except
distributions made ratably on the Series B Shares and all such parity shares in
proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. |
b. | In the event the Company shall at any time declare or pay any distribution on the
Existing Shares payable in Existing Shares, or effect a subdivision, combination or
consolidation of the outstanding Existing Shares (by reclassification or otherwise than by
payment of a distribution in Existing Shares) into a greater or lesser number of Existing
Shares, then in each such case the aggregate amount to which holders of Series B Shares
were entitled immediately prior to such event under the proviso in clause (i) above shall
be appropriately adjusted. |
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c. | In the event, however, that there are not sufficient assets available to permit payment
in full of the Series A Liquidation Preference and the liquidation preferences of all other
classes and series of shares of beneficial interest in the Company, if any, that rank of a
parity with the Series B Shares in respect thereof, then the assets available for such
distribution shall be distributed ratably to the holders of the Series B Shares and the
holders of such parity shares in proportion to their respective liquidation preferences. |
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d. | Neither the merger or consolidation of the Company into or with another entity nor the
merger or consolidation of another entity into or with the Company shall be deemed to be a
liquidation, dissolution or winding up of the Company within the meaning of this Section 6. |
7. | Consolidation, Merger, Etc. In case the Company shall enter into any consolidation,
merger, combination or other transaction in which the Existing Shares are exchanged for or
changed into other shares or securities, cash and/or any other property, then in any such case
each |
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Series B Share shall at the same time be similarly exchanged or changed into an amount per
share, subject to the provision for adjustment hereinafter set forth equal to 1,000,000 times
the aggregate amount of shares, securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each Common Share is changed or exchanged. In the
event the Company shall at any time declare or pay any distribution on the Existing Shares
payable in Existing Shares, or effect a subdivision, combination or consolidation of the
outstanding Existing Shares (by reclassification or otherwise than by payment of a distribution
in Existing Shares) into a greater or lesser number of Existing Shares, then in each such case
the amount set forth in the preceding sentence with respect to the exchange or change of Series
B Shares shall be appropriately adjusted. |
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8. | No Redemption. The Series B Shares shall not be redeemable by the Company. |
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9. | Rank. The Series B Shares shall rank, with respect to the payment of distributions
and the distribution of assets upon liquidation, dissolution or winding up, junior to all
series of any other class of the Companys shares (other than the Existing Shares), except to
the extent that any such series specifically provided that it shall rank on a parity with or
junior to the Series B Shares. |
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10. | Amendment. At any time share of Series B Shares are outstanding, this Certificate of
Designation shall not be further amended in any manner which would materially alter or change
the powers, preferences or special rights of the Series B Shares so as to affect them
adversely without the affirmative vote or consent of the holders of at least two-thirds of the
outstanding Series B Shares, voting separately as a single class. |
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11. | Fractional Shares. Series B Shares may be issued in fractions of a share that shall
entitle the holder, in proportion to such holders fractional shares, to exercise voting
rights, receive distributions, participate in distributions and to have the benefit of all
other rights of holders of Series B Shares. |
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12. | Governing Law. This Certificate of Designation shall be interpreted in accordance
with the laws of the State of Delaware (without regard to conflict of laws principles), all
rights and remedies being governed by such laws. |
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13. | Severability of Provisions. Each provision of this Certificate of Designation shall
be considered severable and if for any reason any provision or provisions herein are
determined to be invalid, unenforceable or illegal under any existing or future law, such
invalidity, unenforceability or illegality shall not impair the operation of or affect those
portions of this Certificate of Designation which are valid, enforceable and legal. |
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14. | Certificates. |
a. | Each Series B Share shall be represented by a certificate (a Series B Share
Certificate) and each such Series B Share Certificate shall include a statement that
requires the Company to furnish to any holder of Series B Shares upon written request and
without charge, a full statement of (i) any restrictions, limitations, preferences or
redemption provisions concerning the Series B Shares and (ii) the designations and any
preferences, conversion and other rights, voting powers, restrictions, limitations to
distributions, and |
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other qualifications and terms and conditions of redemption of such Series B Shares and the
authority of the Board to set the relative rights and preferences of subsequent series of
Series B Shares.
b. | Notwithstanding any provision of the Trust Agreement or the Fifth Amended and Restated
Bylaws of the Company (as amended, the Company Bylaws) to the contrary, a Series
B Share Certificate shall be validly issued upon the manual signature of (a) the Chief
Execute Officer of the Company (the CEO) or (b) any one or more of the Managing
Trustees. Such a Series B Share Certificate need not be countersigned and registered by
the Companys transfer agent and/or registrar. The CEO or the Managing Trustees, acting
individually or collectively, shall execute and deliver each Series B Share Certificate
substantially in the form attached hereto as Exhibit A, together with such
modifications thereto as such CEO, Managing Trustee or Managing Trustees shall approve
(notwithstanding any other provisions of the Trust Agreement or Company Bylaws but subject
to the requirements sets forth in this Certificate of Designation), such approval to be
conclusively, but not exclusively, evidenced by the execution and delivery thereof by such
CEO, Managing Trustee or Managing Trustees. To the extent that this Section 14(b)
is inconsistent with the Company Bylaws, in accordance with Article XIV of the Company
Bylaws, the Company Bylaws (including Article VII thereof) shall be deemed amended for the
limited purposes set forth in this Section 14(b). |
[Signature Page Follows]
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IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Company by the
undersigned this 5th day of March, 2010.
CENTERLINE HOLDING COMPANY |
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By: | /s/ Marc D. Schnitzer | |||
Name: | Marc D. Schnitzer | |||
Title: | President and Chief Executive Officer | |||
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