Attached files
Exhibit 3A
8743-86
FILED
JUN 15
1979 (10 AM)
/s/
SECRETARY
OF STATE
CERTIFICATE
OF INCORPORATION
OF
HOSPITAL
MORTGAGE GROUP, INC.
1. The
name of the corporation is HOSPITAL
MORTGAGE
GROUP, INC.
-2. The
address of its registered office in the
State of
Delaware is 100 West Tenth Street, in the City of
Wilmington,
County of New Castle. The name of its registered
agent at
such address is The Corporation Trust Company.
3. The
nature of the business or purposes to be
conducted
or promoted is:
To engage in the business of investing
in,
purchasing
or otherwise acquiring, for cash or
for other
property, or through the issuance of
securities
of the corporation, and holding or
retaining
for investment, full or participating
interests
of any type, in real, personal or mixed,
tangible
or intangible, property of-any kind wher-
ever
located, including, without limitation, the
following:
(a) obligations or securities which
are
secured by mortgages on real property;
(u)
rents, lease payments, or other income from,
or
profits from, or the equity or ownership of
real
property or any other interest therein;
(c) deeds
of trust or other security interests in
real
property or in rights or interests, including
leasehold
interests, in real property and buildings,
structures,
improvements, furniture, fixtures located
on or
used in connection with land and rights in
land, or
interests therein; and (d) securities of every
nature,
whether or not secured by mortgages; and
To otherwise engage in any lawful act
or activity
for which
corporations may be organized under the
General
Corporation Law of Delaware.
4. The
total number of shares of capital stock which
the
corporation shall have authority to issue is as follows:
(a) One
Million Five Hundred Thousand (1,500,000)
shares of
Common Stock, and the par value of each of such shares
is One
Dollar ($1), amounting in the aggregate to One Million
Five
Hundred Thousand Dollars ($1,500,000;. Each share
of
Common
Stock shall be issued subject to the following restrictions
on the
rights of any holders thereof to hold or transfer said share:
(i) At
such time as the Board of Directors shall
make a
good faith determination that ownership of
Common
Stock of the corporation may become concentrated
to an
extent which may prevent the corporation from
qualifying
as a real estate investment trust under the
Internal
Revenue Code of 1954, as amended, the corpora-
tion
shall thereafter have the power and right to refuse
the
transfer of any shares of Common Stock to any
person or
persons whose ownership thereof would
result in
the' aforementioned concentration, and in
the event
of such a refusal to transfer, the corpo-
ration
shall have the right to purchase said stock
from the
owner thereof at a price equal to the
average
of the closing sale prices of the corporation's
Common
Stock as reported during the fifteen (15) trading.
days
immediately preceding the date on which the
Board of
Directors directs the refusal to transfer such shares.
(ii) At
such time as the Board of Directors
shall
make a good faith determination that ownership
of common
Stock has become concentrated to the extent
described
in (i) above, the Board shall have the
power to
order any one or more holders of Common
Stock
whose ownership has resulted in or contributed
to such
concentration to promptly divest themselves
of shares
of common Stock, in sales to persons other
than
current stockholders whose ownership either
prior to
or following such transactions contributes
to or
would contribute to such concentration, suffi-
cient in
the aggregate to eliminate the degree of
concentration
in ownership of Common Stock described
in (i)
above; provided, however, that the Board
shall, in
ordering any divestiture hereunder, endeavor
to
allocate the burden of divestiture equitably among
those
holders of Common Stock whose ownership has
contributed
to the concentration described in (i.)
above.
(b) Two
million (2,000,000) shares of Preferred
Stock, and
the par value of each-of such shares is One Dollar
($1),
amounting in the aggregate to Two Million Dollars
($2,000,000). The
Preferred Stock may be issued in one or more
classes,
and in one or more series within a class, with
such
voting rights, designations, preferences, qualifica-
tions,
privileges, limitations, options, conversion rights,
restrictions
and special or relative rights as may be stated
in a
resolution or resolutions providing for the issue of such
shares
adopted from time to time by the Board of Directors
and
without the necessity of any action by the stockholders.
The Board
of Directors may fix the status of any shares of -
Preferred
Stock redeemed, cancelled, surrendered for conver-
sion or
otherwise retired, and if previously Issued shares
are
reacquired and cancelled by the corporation, such a
number of
shares shall thereafter be considered as authorized
and
unissued shares. Notwithstanding the provisions of any
such
resolution, all Preferred Stock shall be subject to
redemption
at the direction of the Board of Directors at such
time or
times as the Board shall be of the opinion that
ownership
of stock of the corporation has or may become
concentrated
to an extent which may prevent the corporation
from
qualifying as a real estate investment trust under the
Internal
Revenue Code of 1954, as amended. In such event,
the Board
shall have the power, by lot or other means deemed
equitable
by them, to call for redemption sufficient shares
of
Preferred Stock to bring the direct or indirect ownership
thereof
into conformity with the requirements for such a
real
estate investment trust. The redemption price paid shall
be as
specified by the Board of Directors in its resolution
designating
the Preferred Stock.
5. The
name and address of the sole incorporator is:
Clinton A.
Stuntebeck, Esquire
1719 Packard
Building
Philadelphia,
Pennsylvania 19102
- 4
-
6. The
corporation is to have perpetual existence.
7. In
furtherance and not in limitation of the
powers
conferred by statute, the Board of Directors is
expressly
authorized to make, alter or repeal the By-Laws
of the
corporation and to authorize and cause to be executed,
mortgagees
and liens upon the property and franchises of the
corporation.
8. The
stockholders and directors shall have the
power to
hold their meetings and to keep the books, documents,
and
papers of the corporation outside the State of Delaware,
at such
places as may be from time to time designated by the
By-laws
or by resolution of the stockholders or directors,
except as
otherwise may be required by the laws of Delaware.
Election
of Directors need not be by written ballot unless the
By-laws
of the corporation shall so provide.
9. No
merger or consolidation of the corporation,
nor any
sale, lease or exchange of substantially all of the
assets of
the corporation, or purchase, lease or exchange of
substantially
all of the assets of any other person by the
corporation
may be effected without the affirmative vote of
the
holders of 66 2/3% of the outstanding shares of Common
Stock of
the corporation entitled to vote thereon at a
meeting
of stockholders called for that purpose.
10. The
corporation reserves the right to amend,
alter,
change or repeal any provision contained in this
Certificate
of Incorporation, in the manner now or hereafter
prescribed
by statute, and all rights conferred upon stock-
holders
herein are granted subject to this reservation;
provided
however, that Articles 4, 9 and 10 hereof may not be
amended,
altered, changed or repealed without the affirmative
vote of
the holders of 65 2/3% of the outstanding shares of
Common
Stock of the corporation entitled to vote thereon at
a meeting
of stockholders called for that purpose.
I, THE UNDERSIGNED, being the
incorporator herein-
before
named, for the purpose of forming a corporation pursuant
to the
General Corporation Law of the State of Delaware, do
make this
certificate, hereby declaring and certifying that
this is
my act and deed and the facts herein stated are true,
and
accordingly have hereunto set my hand this 15th day
of June,
1979.
/s/
Clinton A. Stuntebeck
Clinton A.
Stuntebeck
8743-86
FILED
JUL 31
1979 (10:45 AM)
/s/
SECRETARY
OF STATE
AGREEMENT
OF MERGER
AGREEMENT OF MERGER, made this 27th day
of June
1979 by
and among HOSPITAL MORTGAGE GROUP, a Massachusetts
business
trust (the "Trust") and HOSPITAL MORTGAGE GROUP,
INC., a
Delaware corporation and a wholly-owned subsidiary
of the
Trust (the "Corporation");
W I T N E
S S E T H:
WHEREAS, the Trust desires to merge
into the Corporation; and
WHEREAS, the Trust is a business trust
organized
and
existing under the laws of the Commonwealth of Massachu-
setts
with an authorized capitalization of an unlimited num-
ber of
shares of beneficial interest, par value $1 per share,
of which
1,178,000 shares are validly issued and outstanding;
and
WHEREAS, the Corporation is a
corporation organized
and
existing under the laws of the State of Delaware with an
authorized
capitalization of 1,500,000 shares of common stock,
par value
$1 per share, of which ten shares are validly issued
and
outstanding; and 2,000,000 shares of Preferred Stock, of
which no
shares have been issued; and
WHEREAS, Section 13.3 of the
Declaration of Trust of
the
Trust, as amended and restated July 29, 1975, provides
that "The
Trustees, by vote or written approval of a majority
of the
Trustees, may select or direct the organization of a
corporation,
association, trust or other organization with
which the
Trust may merge, or which shall take over the Trust
Property
and carry on the affairs of the Trust, and after re-
ceiving
an affirmative vote of not less than a majority of the
outstanding
shares. of all classes entitled to vote at any
meeting
of shareholders, the notice for which included a
statement
of such proposed action, the Trustees may effect
such
merger... 11”; and
WHEREAS, Section 254(b) of the Delaware
Corporation
Law
provides for the merger of a Delaware corporation with a
business
trust formed under the laws of another state; and
WHEREAS, the Board of Trustees of the
Trust and the
Board of
Directors of the Corporation deem it advisable to
merge the
Trust with and into the Corporation and have adopted
this
Agreement as a plan of merger subject to the terms and
conditions
hereinafter set forth, all in accordance with the
applicable
laws of Delaware;
NOW, THEREFORE, in consideration of the
premises
and of
the mutual agreements, covenants, representations and
warranties
contained herein, the parties agree as follows:
- 2 -
1. Merger. The Trust
shall be merged (the "Merger")
with and
into the Corporation on the Effective Date (as defined
in
Section 2 hereof) in accordance with the applicable laws of
Delaware
and on the terms and conditions set forth in this
Agreement
of Merger. The corporation shall be the Surviving
Corporation,
and the name of the Surviving corporation shall be
"Hospital
Mortgage Group, Inc." It shall continue to do busi-
ness
under that name as a Corporation organized and existing
under the
laws of the State of Delaware. The registered office
of the
Surviving Corporation in the State of Delaware shall be
No. 100
West Tenth Street, Wilmington, Delaware 19801 and the
existence
of the Corporation shall continue unaffected and un-
impaired
by the Merger, with all rights and privileges, im-
munities
and powers, and subject to all the duties and liabil-
ities of
a corporation organized under the laws, of the State
of
Delaware. On the Effective Date, the separate existence of
the Trust
shall cease, and the corporation shall continue in
existence,
and without other transfer shall succeed to and
possess
all the properties, rights, privileges, powers, pur-
poses,
franchises and immunities of a public or private nature
and shall
be subject 'to all the liabilities, obligations, re-
strictions,
disabilities and duties of each of the constituent
parties,
all without further act or deed, as provided in Sec-
tion 259
of the Delaware Corporation Law.
2. Effective
Date. The Merger shall become effec-
tive at
12:01 p.m. on the date this Agreement of Merger is
- 3 -
filed
with the appropriate offices in the state of Delaware
(the
"Effective Date").
3. Certificate of
Incorporation. From and after
the
Effective Date, the Certificate of Incorporation of the
Surviving
Corporation shall be the Certificate of Incorporation of the
Corporation.
4. Directors and
Officers. The directors and of-
ficers of
the Surviving Corporation shall be as listed below
and shall
continue in office as the directors and officers of
the
Surviving Corporation until their respective successors
shall
have been elected or appointed and have qualified:
|
Name
|
Position
|
|
Bernard
B. Rotko, M.D.
|
Chairman
of the Board,
|
|
President
and Director
|
|
|
Maurice
Wiener
|
Vice
Chairman,
|
|
Secretary
and Director
|
|
|
William
H. Curtis
|
Senior
Vice President
|
|
and
Director
|
|
|
Lionel
Felzer
|
Vice
President,
|
|
Treasurer
and Director
|
|
|
Andrew
M. Rodriquez, Jr.
|
Vice
President,
|
|
Assistant
Secretary
|
|
|
and
Controller
|
|
|
Clinton
A. Stuntebeck
|
Assistant
Secretary
|
|
Walter
G. Arader
|
Director
|
|
John
B. Bailey
|
Director
|
|
Abraham
W. Cohen
|
Director
|
|
Gustav
S. Eyssell
|
Director
|
|
James
Wm. Gaynor
|
Director
|
- 4 -
|
Lee
Gray
|
Director
|
|
Bernard
J. Korman
|
Director
|
|
W.
James Lopp, II
|
Director
|
|
Roger
L. Rothrock
|
Director
|
5. By-Laws. The
by-laws of the Corporation as
they
shall exist on the Effective Date shall continue in
force and
be the by-laws of the Surviving Corporation.
6. Further Assurances. The Surviving
Corporation,
through
its appropriate officers and directors, is hereby au-
thorized,
in either the name of the Trust or its own name, to
execute,
acknowledge and deliver all instruments of further
assurance
and to do all such acts or things as it may, at any
time,
deem necessary or desirable to vest in the Surviving
Corporation
any property or rights of the Trust, or to carry out
any of
the purposes expressed in this Agreement.
7. Reclassification of
Shares. As of the Ef-
fective
Date, each share of Beneficial Interest of the Trust
outstanding
immediately prior to the Effective Date shall be
reclassified
into and exchanged for one share of common stock,
par value
$1 per share, of the surviving Corporation.
8. Rights of Stockholders
Pending Surrender of
Certificates. From
and after the Effective Date, each holder
of an
outstanding certificate representing Shares of the
Truest
shall be entitled, upon surrender of the same to the
Surviving
Corporation, to receive in exchange therefore the
- 5 -
certificates
representing common stock of the Surviving Cor-
poration
determined on the basis provided herein.
Until so surrendered, each outstanding
certificate
representing
Shares of the Trust shall be deemed to represent
only the
right to receive the number of shares of common stock
for which
the Shares represented by the certificate have been.,.
reclassified
by the Merger in accordance with the terms
thereof;
provided, however, that until so surrendered and ex-
changed,
the surviving Corporation shall not be required to
transfer
to the holder the common stock to which the holder
shall be
entitled.
The stock transfer books of the Trust
shall be
closed as
of the close of business on the last business day
immediately
preceding the Effective Date, which day shall be
the
record date for determining the stockholders entitled to
receive
common stock hereunder; and no transfer of Shares
shall
thereafter be made.
9. Entire Agreement.
This Agreement constitutes
the
entire contract between the parties hereto, pertaining to,
the
subject matter hereof, and supersedes all prior and con-
temporaneous
agreements, understandings, negotiations and
discussions,
whether written or oral, of the parties, and
there are
no representations, warranties or other agreements
between
the parties in connection with the subject matter
hereof,
except as specifically set forth herein. No supple-
ment,
modification or waiver of this Agreement shall be bind-
- 6 -
ing
unless executed in writing by the parties to be bound thereby.
10. Termination. This
Agreement may be terminated
by the
affirmative vote of a majority of the Trustees of the
Trust at
any time prior to the filing of this Agreement with
the
Secretary of State of Delaware notwithstanding any ap-
proval of
the Merger by the shareholders of the Trust.
11. Governing Law. The
validity and construction
of this
Agreement shall be governed by the laws of the State
of
Delaware.
12. Section Headings. The
Section headings are
for
reference only and shall not limit or control the meaning thereof.
IN WITNESS WHEREOF, the parties hereto
have duly
executed
this Agreement as of the day and year first above
written.
|
ATTEST:
|
HOSPITAL
MORTGAGE GROUP
|
|
/s/
|
by
/s/
|
|
Assistant
Secretary
|
Senior
Vice President
|
|
(SEAL)
|
|
|
ATTEST:
|
HOSPITAL
MORTGAGE GROUP,
|
|
INC.
|
|
|
/s/
|
by
/s/
|
|
Assistant
Secretary
|
VICE
CHAIRMAN
|
|
(CORPORATE
SEAL)
|
- 7 -
I, MAURICE WIENER, Secretary of
HOSPITAL MORTGAGE
GROUP, a
business trust organized and existing under the laws
of the
commonwealth of Massachusetts, hereby certify, as
such
Secretary and under the seal of the said trust, that the
Agreement
of Merger to which this certificate is attached,
after
having been first duly signed on behalf of said trust
by the
Senior Vice President and Assistant Secretary of HOS-
PITAL
MORTGAGE GROUP, a trust of the Commonwealth of Mas-
sachusetts,
was duly submitted to the stockholders of said
HOSPITAL
MORTGAGE GROUP, that 1,178,000 shares of beneficial
interest
of said trust were on said date and are now
issued
and outstanding and that on July 31, 1979,
shares of
beneficial interest, issued and outstanding on said
date,
were voted in favor of said Agreement of Merger, said
affirmative:
vote representing a majority of the outstanding
shares of
said trust and that thereby the Agreement of Merger
was on
said date duly adopted as the act of the shareholders
of said
HOSPITAL MORTGAGE GROUP, and the duly adopted Agree-
ment of
said trust.
WITNESS my hand and the seal of said
HOSPITAL MORT-
GAGE
GROUP on this 31st day of July, 1979.
|
/s/
Maurice Wiener
|
|
|
Maurice
Wiener, Secretary
|
I, MAURICE
WIENER, Secretary of HOSPITAL MORTGAGE
GROUP,
INC., a corporation organized and existing under the
laws of
the State of Delaware, hereby certify, as such Secre-
tary and
under the seal of the said corporation, that the
Agreement
of Merger to which this certificate is attached,
after
having been first duly signed on behalf of said corpor-
ation by
the Vice Chairman and Assistant Secretary, of HOSPITAL
MORTGAGE
GROUP, INC., a corporation of the State of Delaware,
was duly
submitted to the dole stockholder of said, HOSPITAL
MORTGAGE
GROUP, INC., that ten shares of stock of said corpo-
ration
were on said date and are now issued and outstanding
and that
by Record of Consent of Sole Shareholder dated June 15,
1979, all
ten shares of stock issued and outstanding on said
date were
voted in favor of said Agreement of Merger, said
affirmative
vote representing the total number of shares of the
outstanding
capital stock of said corporation, that thereby the
Agreement
of Merger was on said date duly adopted as the act of
the
stockholder of said HOSPITAL MORTGAGE GROUP, INC,., and the
duly
adopted Agreement of said corporation and that said ten
shares of
stock shall become the property of HOSPITAL MORTGAGE
GROUP,
INC. upon the effective date of the merger and shall be
cancelled
immediately thereafter.
WITNESS my hand and the seal of said
HOSPITAL MORT-
GAGE
GROUP, INC. on this 31 st day of July, 1979.
|
/s/
Maurice Wiener
|
|
|
Maurice
Wiener, Secretary
|
THE AGREEMENT
OF MERGER, having been executed by
a duly
authorized officer and the Assistant Secretary of
each
party thereto, and having been adopted separately by
the
stockholders of each party thereto, in accordance with
the
provisions of the General Corporation Law of the State
of
Delaware, and the fact having been certified on said
Agreement
of merger by the Secretary of each party thereto,
the
undersigned do now hereby execute the Agreement of
Merger
under their respective seals, by the authority of
the
trustees or directors and stockholders thereof, is the
respective
act, deed and agreement of each of said parties,
on the
31st day of July, 1979.
|
ATTEST:
|
HOSPITAL
MORTGAGE GROUP
(a
Massachusetts Trust)
|
|
/s/ Clinton A. Stuntebeck
|
by
/s/ Maurice
Weiner
|
|
Clinton
A. Stuntebeck
|
Maurice
Weiner
|
|
Assistant
Secretary
|
Vice
Chairman
|
|
(SEAL)
|
|
|
ATTEST:
|
HOSPITAL
MORTGAGE GROUP, INC.
|
|
(a
Delaware Corporation)
|
|
|
/s/ Clinton A. Stuntebeck
|
by
/s/ Maurice
Weiner
|
|
Clinton
A. Stuntebeck
|
Maurice
Weiner
|
|
Assistant
Secretary
|
VICE
CHAIRMAN
|
|
(CORPORATE
SEAL)
|
8743-86
FILED
JUN 2
1981 (10 AM)
/s/
SECRETARY
OF STATE
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
***
Hospital
Mortgage Group, Inc., a corporation organized and existing
under and
by virtue of the General Corporation law of the State of
Delaware.
DOES
HEREBY CERTIFY:
FIRST: That at a meting of the Board of
Directors of Hospital
Mortgage
Group, Inc. resolutions were duly adopted setting forth a pro-
posed
amendment of the Certificate of Incorporation of said corporation,
declaring
said amendment to be, advisable and calling a meeting of the
stockholders
of said corporation for consideration thereof. The
resolution
setting forth the proposed amendment is as follows:
RESOLVED, that in the Judgement of the
Board of Directors it is
advisable
to change the Company’s name by amending Article I of the
Company's
Certificate of Incorporation to read in its entirety as follows:
1. The name of the Corporation is HMG
Property
Investors,
Inc."
SECOND: That thereafter, pursuant to
resolution of its Board of
Directors,
an annual meeting of the stockholders of said corporation was
duly
called and held, upon notice in accordance with Section 222 of the
General
Corporation Law of the State of Delaware at which meeting the
necessary
number of shares as required by statute were voted in favor
of the
amendment.
THIRD: That said amendment was duly
adopted in accordance with the
provisions
of Section 242 of the General Corporation Law of the State of
Delaware.
FOURTH: That the capital of said
corporation shall not be reduced
under or
by reason of said amendment.
IN WITNESS WHEREOF, said Hospital
Mortgage Group, Inc. has cause its
corporate
seal to be hereunto affixed and this certificate to be signed by
Maurice
Wiener its President, and Clinton A. Stuntebeck, its Assistant
Secretary,
this 29th day
of May, 1981.
|
By
/s/ Maurice
Wiener
|
|
|
President:
Maurice Wiener
|
|
|
By
/s/ Clinton A.
Stunteback
|
|
|
Assistant
Secretary: Clinton A. Stuntebeck
|
|
STATE
OF NEW YORK
|
:
|
|
: ss
|
|
|
COUNTY
OF NEW YORK
|
:
|
BE IT REMEMBERED that on this 29th day
of May,
A.D.
1981, personally came before me, George Karfunkel
a Notary
Public in and for the County and State aforesaid,
Maurice
Wiener, President of Hospital Mortgage Group, Inc.,
a
Delaware corporation, and Clinton A. Stuntebeck, the
Assistant
Secretary of Hospital Mortgage Group, Inc., known
to me
personally to be such, and they, respectively, duly
executed
the said certificate before me and acknowledged the
said
certificate to be their act and deed and the act and
deed of
said corporation and that the facts stated therein
are true;
that the signatures of the President and Assistant
Secretary
of said corporation to the foregoing certificate
are in
the handwriting of the said President and Assistant
Secretary
of said corporation, and that the seal affixed to
said
certificate, attested by the Assistant Secretary of said
corporation,
is the common or corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set
my hand and
seal the
day and year aforesaid.
|
/s/ George Karfunkel
|
|
|
NOTARY
PUBLIC
|
Certificate
for
Renewal and Revival of Charter
HMG
PORPERTY INVESTORS, INC., a corporation
organized
under the laws of Delaware, the certificate of incorporation of which was filed
in the office of the Secretary of State on the 15th day
of June 1979 and recorded in
The
office of the Recorder of Deeds for New Castle County, the charter of which was
voiced for non-payment of taxes, now desires to procure a restoration, renewal
and revival of its charger, and hereby certifies as follows:
|
1.
|
The
name of this corporation is HMG PROPERTY INVESTORS,
INC.
|
|
2.
|
Its
registered office in the State of Delaware is located at 1209 Orange
Street, City of Wilmington ZIP CODE 19801 County of New Castle the name
and addres of its registered agent is The Corporation Trust Company.
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
|
|
3.
|
The
date when the restoration, renewal, and revival of the charter of this
company is to commence is the 28th
day of February, same being prior to the date of the expiration of the
charter. This renewal and revival of the charter of this corporation is to
be perpetual.
|
|
4.
|
This
corporation was duly organized and carried on the business authorized by
its charter until the 1st
day of March A.D. 1986, at which time its charter became inoperative and
void for non-payment of taxes and this certificate for renewal and revival
is filed by authority of the duly elected directors of the corporation in
accordance with the laws of the State of
Delaware.
|
IN TESTIMONY WHEREOF, and in compliance
with the provisions of Section 312 of the General Corporation Law of the State
of Delaware, as amended, providing for the renewal, extension and restoration of
charters, Lee Gray
the last
and acting President, and Lawrence I. Rothstein, the
last and
acting Secretary of HMG PROPERTY INVESTORS, INC., have
hereunto
set their hands to this certificate this 3rd day
of June, 1986.
|
/s/
|
||
|
LAST
AND ACTING PRESIDENT
|
||
|
ATTEST:
|
/s/
|
|
|
LAST
AND ACTING SECRETARY
|
* * *
CERTIFICATE
OF AMENDMENT
OF
CERTIFICATE
OF INCORPORATION
OF
HMG
PROPERTY INVESTORS, INC.
* * *
HMG Property Investors, Inc. (the
"Company"), a
corporation
organized and existing under and by virtue of the
General
Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board
of Directors
of the
Company resolutions were duly adopted setting forth pro-
posed
amendments of the Certificate of Incorporation of the Com-
pany,
declaring such amendments to be advisable and calling a
meeting
of the stockholders of the Company for consideration
thereof.
The resolutions setting forth the proposed amendments
are as
follows:
RESOLVED, that in the judgment of
the
Board of
Directors it is advisable to change
the
Company's name by amending Article 1 of
the
Certificate of Incorporation of the Com-
pany to
read in its entirety as follows:
"1. The
name of the corporation is HMG/
Courtland
Properties, Inc."
RESOLVED, that in the judgment of
the
Board of
Directors it is advisable to limit
the
liability of the Directors of the Company
to the
extent permitted by Delaware law by
adopting
the following as Paragraph (A) of
Article 9
of the Certificate of Incorporation
of the
Company (whereupon present Article 9
shall
become Paragraph (B) of the amended
Article
9):
"9.(A) A director of the
corporation
shall not
be personally liable to the corpo-
ation or
its stockholders for monetary
damages
for breach of fiduciary duty as a
director,
except for liability (i) for any
breach of
the director's duty of loyalty to
the
corporation or its stockholders, (ii) for
acts
omissions not in good faith or which
involved
intentional misconduct or a knowing
violation
of law, (iii) under Section 174 of
the
Delaware General Corporation Law, or
(iv) for
any transaction from which the direc-
tor
derived an improper personal benefit. If
the
Delaware General Corporation Law is her-
eafter
amended to authorize the further elimi-
nation or
limitation of the liability of a
director,
then the liability of a director of
the
corporation shall be limited or elimination
to the
fullest extent permitted by the amended
Delaware
General Corporation Law. Any repeal
or
modification of this Article 9 shall be
prospective
only, and shall not adversely
affect
any elimination or limitation of the
personal
liability of a director of the cor-
poration
existing at the time of such repeal or modification."
SECOND: That thereafter, pursuant to
resolution of
the Board
of Directors of the Company, an annual meeting of the
stockholders
of the Company was duly called and held, upon
notice
given in accordance with Section 222 of the General
Corporation
Law of the State of Delaware, at which meeting the
necessary
number of shares, as required by statute, was voted in
favor of
each amendment.
THIRD: That said amendments were duly
adopted in
accordance
with the provisions of Section 242 of the General
Corporation
Law of the State of Delaware.
FOURTH: That the capital of said
corporation shall
not be
reduced under or by reason of said amendments.
IN WITNESS WHEREOF, said HMG Property
Investors, Inc.
has
caused its corporate seal to be hereunto affixed and this
certificate
to be signed by Maurice Wiener, its Chairman, and
Lawrence
Rothstein, its Senior Vice-President and Secretary,
this 14th
day of August, 1987.
By: /s/ Maurice
Wiener
Maurice Wiener, Chairman
(CORPORATE
SEAL)
By: /s/ Lawrence
Rothstein
Lawrence Rothstein, Senior
Vice-President
and Secretary
RESTATED
CERTIFICATE OF INCORPORATION
OF
HMG/COURTLAND
PROPERTIES, INC.
The following is the Restated
Certificate of Incor-
poration
of HMG/COURTLAND PROPERTIES, INC., originally incor-
porated
as HOSPITAL MORTGAGE GROUP, INC., whose name was
successively
changed to HMG PROPERTY INVESTORS, INC. and HMG/
COURTLAND
PROPERTIES, INC. The original Certificate of Incor-
poration
was filed with the Secretary of State of the State of
Delaware
on June 15, 1979.
This Restated Certificate of
Incorporation was duly
adopted
by the Board of Directors of the corporation in accor-
dance
with the provisions of Section 245 of the Delaware General
Corporation
Law. It only restates and integrates and does not
further
amend the provisions of the corporation's Certificate of
Incorporation
as heretofore amended and supplemented, and there
is no
discrepancy between those provisions and the provisions
of this
Restated Certificate of Incorporation.
1. The
name of the corporation is HMG/COURTLAND
PROPERTIES,
INC.
2. The
address of its registered office in the
State of
Delaware is 1209 Orange Street, in the City of Wil-
mington,
County of New Castle. The name of its registered
agent at
such address is The Corporation Trust Company.
3. The
nature of the business or purposes to be
or
promoted is:
To engage in the business of investing
in,
purchasing
or otherwise acquiring, for cash or for
other
property, or through the issuance of securities
of the
corporation, and holding or retaining for.
investment,
full or participating interests of any
type, in
real; personal or mixed, tangible or intan-
gible,
property of any kind wherever located, in-
cluding,
without limitation, the following: (a)
obligations.or
securities which are secured by mort-
gages on
real property; (b) rents, lease payments, or
other
income from, or profits from, or the equity or
ownership
of real property or any other interest
therein;
(c) deeds of trust or other security inter-
ests in
real property or in rights or interests,
including
leasehold interests, in real property and
buildings,
structures, improvements, furniture, fix-
tures
located on or used in connection with land and
rights in
land, or interests therein; and (d) secur-
ities of
every nature, whether or not secured by
mortgages;
and
To otherwise engage in any lawful act
or
activity
for which corporations may be organized
under the
General Corporation Law of Delaware.
4. The
total number of shares of capital stock
which the
corporation shall have authority to issue is as fol-
lows:
(a) One
Million Five Hundred Thousand (1,500,000)
shares of
Common Stock, and the par value of each of such shares
is One
Dollar ($1), amounting in the aggregate to One Million
Five
Hundred Thousand Dollars ($1,500,000). Each share of
Com-
mon Stock
shall be issued subject to. the following restrictions
on
the rights of any holders thereof to hold or transfer said
share:
(i) At
such time as the Board of Directors
shall
make a good faith determination that ownership
of Common
Stock of the corporation may become con-
centrated
to an extent which may prevent the corpora-
tion from
qualifying as a real estate investment
trust
under the Internal Revenue Code of 1954, as
amended,
the corporation shall' thereafter have the
power and
right to refuse the transfer of any shares
of Common
Stock to any person or persons whose owner-
ship
thereof would result in the aforementioned con-
centration,
and in the event of such a refusal to
transfer,
the corporation shall have the right to
purchase
said stock from the owner thereof at a price
equal to
the average of the closing sale prices of
the
corporation's Common Stock as reported during
the
fifteen (15) trading days immediately preceding
the date
on which the Board of Directors directs the
refusal
to transfer such shares.
(ii) At
such time as the Board of Directors
shall
make a good faith determination that ownership
of Common
Stock has become concentrated to the extent
described
in (i) above, the Board shall have the power
to order
any one or more holders of Common Stock whose
ownership
has resulted in or contributed to such con-
centraticn
to promptly divest themselves of shares of
Common
Stock, in sales to persons other than current
stockholders
whose ownership either prior to or fol-
lowing
such transactions contributes to or would con-
tribute
to such concentration, sufficient in the ag-
gregate
to eliminate the degree of concentration in
ownership
of Common Stock described in (i) above;
provided,
however, that the Board shall, in ordering
any
divestiture hereunder, endeavor to allocate the
burden of
divestiture equitably among those holders
of Common
Stock whose ownership has contributed to
the
concentration described in (i) above.
(b) Two Million (2,000,000) shares
of Preferred
Stock,
and the par value of each of such shares is one Dollar
($1), amounting
in the aggregate to Two Million Dollars
($2,000,000). The
Preferred Stock may be issued in one or more
classes,
and in one or more series within a class, with such
voting
rights, designations, preferences, qualifications, privi-
leges,
limitations, options, conversion rights, restrictions and
special
or relative rights as may be stated it a resolution or
resolutions
providing for the issue of such shares adopted from
time to
time by the Board of Directors and without the necessity
of any
action by the stockholders. The Board of Directors may
fix the
status of any shares of Preferred Stock redeemed, can-
celled,
surrendered for conversion or otherwise retired, and if
previously
issued shares are reacquired and cancelled by the
corporation,
such a number of shares shall thereafter be con-
sidered
as authorized and unissued shares. Notwithstanding the
provisions
of any such resolution, all Preferred Stock shall be
subject
to redemption at the direction of the Board of Directors
at such
time or times as the Board shall be of the opinion that
ownership
of stock of the corporation has or may become concen-
trated to
an extent which may prevent the corporation; from
qualifying
as a real estate investment trust under the Internal
Revenue
Code of 1954, as amended. In such event, the Board shall
have the
power, by lot or other means deemed equitable by them,
to call
for redemption sufficient shares of Preferred Stock to
bring the
direct or indirect ownership thereof into conformity
with the
requirements for such a real estate investment trust.
The
redemption price paid shall be as specified by the Board of
Directors
in its resolution designating the Preferred Stock.
5. The
corporation is to have perpetual existence.
6. In
furtherance and not in limitation of the
powers
conferred by statute, the Board of Directors is expressly
authorized
to make, alter or repeal the By-Laws of the corpora-
tion and
to authorize and cause to be executed, mortgages and
liens
upon the property and franchises of the corporation.
7. The
stockholders and directors shall have the
power to
hold their meetings and to keep the books, documents,
and
papers of the corporation outside the State of Delaware,
at such
places as may be from time to time designated by the
By-Laws
or by resolution of the stockholders or directors,
except as
otherwise may be required by the laws of Delaware.
Election
of Directors need not be by written ballot unless the
By-Laws
of the corporation shall so provide.
8. (A)
A director of the corporation shall not be
personally
liable to the corporation or its stockholders for
monetary
damages for breach of fiduciary duty as a director,
except
for liability (i) for any breach of the director's duty
of
loyalty to the corporation or its stockholders, (ii) for
acts or
omissions not in good faith or which involved inten-
tional
misconduct or a knowing violation of law, (iii) under
Section
174 of the Delaware General Corporation Law, or (iv)
for any
transaction from which the director derived an improper
personal
benefit. If the Delaware General Corporation Law is
hereafter
amended to authorize the further elimination or
limitation
of the liability of a director, then the liability
of a
director of the corporation shall be limited or eliminated
to the
fullest extent permitted by the amended Delaware General
Corporation
Law. Any repeal or modification of this Article 8
shall be
prospective only, and shall not adversely affect any
elimination
or limitation of the personal liability of a direc-
tor of
the corporation existing at the time of such repeal or
Modification,
(B) No
merger or consolidation of the corpora-
tion, nor
any sale, lease or exchange of substantially all of
the
assets of the corporation, or purchase, lease or exchange.
of
substantially all of the assets of any other person by the
corporation
may be effected without the affirmative vote of the
holders
of 66 3/3% of the outstanding shares of Common Stock of
the
corporation entitled to vote thereon at a meeting of stock-
holders
called for that purpose.
9. The
corporation reserves the right to amend,
alter,
change or repeal any provision contained in this Cer-
tificate
of Incorporation, in the manner now or hereafter
prescribed
by statute, and all rights conferred upon stock-
holders
herein are granted subject to this reservation; pro-
vided
however, that Articles 4, 8 (B) and 9 hereof may not be
amended,
altered, changed or repealed without the affirmative
vote of
the holders of 66 2/3% of the outstanding shares of
Common
Stock of the corporation entitled to vote thereon
at a
meeting of stockholders called for that purpose.
IN WITNESS WHEREOF, said HMG/COURTLAND
PROPERTIES,
INC. has
caused its corporate seal to be hereunto affixed and
this
certificate to be signed by Maurice Wiener, its Chairman,
and
Lawrence Rothestein, its Senior Vice-President and Secretary,
this 15th
day of August, 1987.
|
/s/ Maurice Wiener
|
|
|
Maurice
Wiener, Chairman
|
|
|
[CORPORATE
SEAL] ATTEST:
|
/s/ Lawrence Rothstein
|
|
Lawrence
Rothstein,
|
|
|
Senior
Vice-President and
|
|
|
Secretary
|
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION
OF
HMG/COURTLAND
PROPERTIES, INC.
The
following is the Amended and Restated Certificate of Incorporation
("Certificate") of HMG/COURTLAND PROPERTIES, INC., originally incorporated as
HOSPITAL MORTGAGE GROUP, INC., whose name was successively changed to HMG
PROPERTY INVESTORS, INC. and HMG/ COURTLAND PROPERTIES, INC. The original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on June 15, 1979.
This
Amended and Restated Certificate of Incorporation was duly adopted by the Board
of Directors of the corporation in accordance with the provisions
of Sections 242 and 245 of the Delaware General Corporation Law. It restates and
amends certain provisions of the Corporation's Certificate of Incorporation as
heretofore amended.
ARTICLE
I
1. Name.
The name of the corporation is HMG/COURTLAND PROPERTIES, INC.
ARTICLE
II
2.
Principal Office and Registered Agreement. The address of its registered office
in the State of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE
III
3.
Purpose. The nature of the business or purposes to be conducted or promoted
is:
To engage
in the business of investing in, purchasing or otherwise acquiring, for cash or
for other property, or through the issuance of securities of the corporation,
and holding or retaining for investment, full or participating interests of any
type, in real, personal or mixed, tangible or intangible, property of any kind
wherever located, including, without limitation, the following: (a) obligations
or securities which are secured by mortgages on real property; (b) rents, lease
payments, or other income from, or profits from, or the equity or ownership of
real property or any other interest therein; (c) deeds of trust or other
security interests in real property or in rights or interests, including
leasehold interests, in real property and buildings, structures, improvements,
furniture, fixtures located on or used in connection with land and rights in
land, or interests therein; and (d) securities of every nature,
whether or not secured by mortgages; and
- 2
-
To
otherwise engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
ARTICLE
IV
4. Authorized
Capital. Section 1. The total number of shares of capital stock which the
Corporation shall have authority to issue is as follows:
a. One
Million, Five Hundred Thousand (1,500,000) shares of Common Stock, par value $1
per share, or $1,500,000 in the aggregate.
b. Five
Hundred Thousand (500,000) shares of Excess Stock, par value $1 per share, or
$500,000 in the aggregate.
c. Two
Million (2,000,000) shares of Preferred Stock, par value $1 per share, or
$2,000,000 in the aggregate. The Preferred Stock may be issued in one or more
classes, and in one or more series within a class, with such voting rights,
designations, preferences, qualifications, privileges, limitations, options,
conversion rights, restrictions and special or relative rights as may be stated
in a resolution or resolutions providing for the issue of such shares adopted
from time to time by the Board of Directors and without the necessity of any
action by the stockholders. The Board of Directors may fix the status of any
shares of Preferred Stock redeemed, canceled, surrendered for conversion or
otherwise retired, and if previously issued shares are reacquired and canceled
by the Corporation, such a number of shares shall thereafter be considered as
authorized and unissued shares.
Notwithstanding
the provisions of any such resolution, all Preferred Stock shall be
- 3
-
subject
to redemption at the direction of the Board of Directors at such time or times
as the Board shall be of the opinion that ownership of the capital stock of the
Corporation has or may become concentrated to an extent which may prevent the
Corporation from qualifying as a real estate investment trust ("REIT") under the
Internal Revenue Code of 1986, as amended (the "Code").
In such
event, the Board shall have the power, by lot or other means deemed equitable by
it, to call for redemption sufficient shares of Preferred Stock to bring the
direct or indirect ownership thereof into conformity with the requirements for
such a REIT. The redemption price paid shall be as specified by the Board of
Directors in its resolution designating the Preferred Stock.
d. The
aggregate par value of all authorized shares of stock of the Corporation having
par value is $4,000,000.
Section
2. Common Stock. Subject to the
provisions of Article V, each share of Common Stock shall entitle the holder
thereof to one vote. The Board of Directors may reclassify any unissued shares
of Common Stock from time to time in one or more classes or series of
stock.
Section
3. Preferred Stock. The Board of
Directors may classify any unissued shares of Preferred Stock and reclassify any
previously classified but unissued shares of Preferred Stock of any series, in
one or more series of stock.
- 4
-
ARTICLE
V
5. RESTRICTION ON TRANSFER, ACQUISITION AND
REDEMPTION OF SHARES
Section
1. Definitions. For purposes of
this Article V, the following terms shall have the following
meanings:
"Beneficial
Ownership" shall mean ownership of shares of Equity Stock by a Person who is or
would be treated as the owner, for United States federal income tax purposes, of
such shares of Equity Stock or who is or would be treated as an owner of such
shares of Equity Stock under Section 542(a) (2) of the Code, either directly,
indirectly or constructively through the application of Section 544 of the Code,
as modified by Sections 856 (h) (1) (B) and 856 (h) (3) of the Code. The terms
"Beneficial Owner," "Beneficially Owns," "Beneficially Own," "Beneficially
Owning" and "Beneficially Owned" shall have the correlative
meanings.
"Charitable
Beneficiary" shall mean a beneficiary of the Trust as determined pursuant to
Section 14 of this Article V.
"Code"
shall mean the United States Internal Revenue Code of 1986, as
amended.
"Common
Stock" shall mean the Common Stock of the Corporation, authorized pursuant to
and the rights of which are provided in Article IV.
"Effective
Date" shall mean the date as of which this Amendment and Restated Certificate of
Incorporation is filed of record in Delaware.
- 5
-
"Equity
Stock" shall mean stock that is either Common Stock or Preferred
Stock.
"Excess
Stock" shall mean those shares of Common Stock and/or Preferred Stock which are
classified as Excess Stock as provided in and pursuant to Section
3.
"Market
Price" as to any date shall mean the average of the last reported closing sales
price of Common Stock, or Preferred Stock, as the case may be, on the ten
trading days immediately preceding the relevant date as reported on the
principal United States or foreign securities exchange or quotation system on or
over which the Common Stock, or Preferred Stock, as the case may be, is listed
or admitted to trading, or if not then listed or traded over any such exchange
or quotation system, then the market price of the Common Stock, or Preferred
Stock, as the case may be, on the relevant date as determined in good faith by
the Board of Directors.
"Ownership
Limit" shall initially mean two percent (2%) of the lesser of the aggregate
number or value of the outstanding shares of Common Stock of the Corporation
and, after any adjustment as set forth in Section 9 of this Article V, shall
mean such percentage as so adjusted. The Board of Directors of the Corporation
may, in its sole discretion, in the certificate of designation for the Preferred
Stock, determine a limit on the ownership of one or more classes or series of
its Preferred Stock (the "Preferred Stock Limit"). From and after such
determination, references to the Ownership Limit herein will include the
Preferred Stock Limit, as applicable. If the Board of Directors does not
establish a limit on ownership, then the Preferred Stock shall not be restricted
from transfer under this Article V. The number and value of shares of the Equity
Stock of the Corporation shall be determined by the Board of Directors in good
faith, which determination shall be conclusive for all purposes
hereof.
- 6
-
"Person"
shall mean an individual, corporation, partnership, estate, trust (including a
trust qualified under Section 401(a) or 501(c)(17) of the Code, a trust
permanently set aside for or to be used exclusively for the purposes described
in Section 642(c) of the Code, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other entity but
does not include an underwriter which participated in a public offering of the
Common Stock and/or Preferred Stock for a period of 30 days following the
purchase by such underwriter of shares of the Common Stock and/or Preferred
Stock.
"Purported
Beneficial Transferee" shall mean, with respect to any purported Transfer which
results in Excess Stock as described below in Section 3 of this Article V, the
purported beneficial transferee for whom the Purported Record Transferee would
have acquired shares of Equity Stock, if such Transfer had not been void under
Section 2 of this Article V.
"Purported
Record Transferee" shall mean, with respect to any purported Transfer which
results in Excess Stock as described below in Section 3 of this Article V, the
record holder of the Equity Stock if such Transfer had not been void under
Section 2 of this Article V.
"Restriction
Termination Date" shall mean the first day after the Effective Date on which the
Board of Directors determines that it is no longer in the best interests of the
Corporation to attempt to, or continue to, qualify as a REIT.
- 7
-
"Transfer"
shall mean any issuance, sale, transfer, gift, assignment, devise or other
disposition of Equity Stock (including (i) the granting of any option or
entering into any agreement for the sale, transfer or other disposition of
Equity Stock or (ii) the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Equity Stock), whether
voluntary or involuntary, whether of record or beneficially, and whether by
operation of law or otherwise. The terms "Transfers" and "Transferred" shall
have the correlative meanings.
"Trust"
shall mean the trust created pursuant to Section 14 of this Article
V.
"Trustee"
shall mean the Person that is appointed by the Corporation pursuant to Section
14 of Article V to serve as trustee of the Trust, and any successor
thereto.
Section
2. Ownership
Limitation.
(i)
Except for shares of Common Stock beneficially owned in excess of the Ownership
Limit at the close of business on the Effective Date and except as provided in
Section 11 of this Article V, after the Effective Date and prior to the
Restriction Termination Date, no Person shall Beneficially Own shares of Common
Stock and/or Preferred Stock in excess of the Ownership Limit.
(ii)
Except as provided in Section 11 of this Article V, after the Effective Date and
prior to the Restriction Termination Date, any Transfer that, if effective,
would result in any Person Beneficially Owning Common Stock and/or Preferred
Stock in excess of the Ownership Limit shall be void ab initio as to the
Transfer of such shares of Common Stock and/or Preferred Stock which would be
otherwise Beneficially Owned by such Person in
- 8
-
excess of
the Ownership Limit; and the intended transferee shall acquire no rights in such
shares of Common Stock and/or Preferred Stock.
(iii)
After the Effective Date and prior to the Restriction Termination Date, any
Transfer that, if effective, would result in the Common Stock and/or Preferred
Stock being Beneficially Owned by less than 100 Persons (determined without
reference to any rules of attribution) shall be void ab initio as to the
Transfer of such shares of Common Stock and/or Preferred Stock which would be
otherwise Beneficially Owned by the transferee; and the intended transferee
shall acquire no rights in such shares of Common Stock and/or Preferred
Stock.
(iv)
After the Effective Date and prior to the Restriction Termination Date, any
Transfer that, if effective, would result in the Corporation being "closely
held" within the meaning of Section 856 (h) of the Code shall be void ab initio
as to the Transfer of the shares of Common Stock and/or Preferred Stock which
would cause the Corporation to be "closely held" within the meaning of Section
856(h) of the Code; and the intended transferee shall acquire no rights in such
shares of Common Stock and/or Preferred Stock.
Section
3. Excess Stock.
(i) If,
notwithstanding the other provisions contained in this Article V, at any time
after the date of the Effective Date and prior to the Restriction Termination
Date, there is a purported Transfer or other change in the capital structure of
the Corporation such that any Person would Beneficially Own Common Stock and/or
Preferred Stock in excess of the applicable Ownership Limit, then, except as
otherwise provided in Section 11, such shares of Common Stock and/or Preferred
Stock in excess of such Ownership Limit (rounded up to the nearest whole share)
shall be converted automatically into Excess Stock and be treated
as
- 9
-
provided
in this Article V. Such conversion and treatment shall be effective as of the
close of business on the business day prior to the date of the purported
Transfer or change in capital structure.
(ii) If,
notwithstanding the other provisions contained in this Article V, at any time
after the date of the Effective Date and prior to the Restriction Termination
Date, there is a purported Transfer or other change in the capital structure of
the Corporation which, if effective, would cause the Corporation to become
"closely held" within the meaning of Section 856(h) of the Code, then the shares
of Common Stock and/or Preferred Stock being Transferred which would cause the
Corporation to be "closely held" within the meaning of Section 856 (h) of the
Code (rounded up to the nearest whole share) shall be converted automatically
into Excess Stock and be treated as provided in this Article V. Such conversion
and treatment shall be effective as of the close of business on the business day
prior to the date of the purported Transfer or change in capital
structure.
Section
4. Prevention of Transfer. If
the Board of Directors or its designee shall at any time determine in good faith
that a Transfer has taken place in violation of Section 2 of this Article V or
that a Person intends to acquire or has attempted to acquire Beneficial
Ownership of any shares of stock of the Corporation in violation of Section 2 of
this Article V, the Board of Directors or its designee shall take such action as
it deems advisable to refuse to give effect to or to prevent such Transfer,
including, but not limited to, refusing to give effect to such Transfer on the
books of the Corporation or instituting proceedings to enjoin or rescind such
Transfer; provided, however, that any Transfers or attempted Transfers in
violation of subparagraphs Section 2 (ii) and (iv) of this Article V shall
automatically result in the
- 10
-
conversion
and treatment described in Section 3, irrespective of any action (or non-action)
by the Board of Directors.
Section
5. Notice to Corporation. Any
Person who acquires or attempts to acquire shares of stock of the Corporation in
violation of Section 2 of this Article V, or any Person who is or attempts to
become a transferee such that Excess Stock results under Section 3 of this
Article V, shall immediately give written notice or, in the event of a proposed
or attempted Transfer, give at least 15 days prior written notice to the
Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or attempted Transfer on the Corporation's status as a
REIT.
Section
6. Information for Corporation.
From the date of the Effective Date and prior to the Restriction Termination
Date, each Person who is a Beneficial Owner of Common Stock and/or Preferred
Stock and each Person (including the stockholder of record) who is holding
Common Stock and/or Preferred Stock for a Beneficial Owner shall, upon demand,
provide in writing to the Corporation any such information with respect to the
direct, indirect and constructive ownership of Equity Stock of the Corporation
as the Board of Directors deems necessary to comply with the provisions of the
Code applicable to REITs, to comply with the requirements of any taxing
authority or governmental agency or to determine any such
compliance.
Section
7. Other Action by Board.
Subject to the provisions of Section 19 of this Article V, nothing contained in
this Article V shall limit the authority of the Board of
- 11
-
Directors
to take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its stockholders by preservation of the
Corporation's status as a REIT.
Section
8. Ambiguities. In the case of
an ambiguity in the application of any of the provisions of this Article V,
including any definition contained in Section 1, the Board of Directors shall
have the power to determine the application of the provisions of this Article V
with respect to any situation based on the facts known to it.
Section
9. Change in Ownership Limit.
Subject to the limitations provided in Section 10 of this Article V, the Board
of Directors may from time to time increase or decrease the Ownership
Limit.
Section
10. Limitations on Changes in Ownership
Limit.
(i) The
Ownership Limit for a class or series of Equity Stock may not be increased if,
after giving effect to such increase, five or fewer individuals would
Beneficially Own, in the aggregate, more than 50.0% in value of the outstanding
shares of Equity Stock.
(ii)
Prior to any modification of the Ownership Limit pursuant to Section 9 of this
Article V, the Board of Directors may require such opinions of counsel,
affidavits, undertakings or agreements as it may deem necessary or advisable in
order to determine or to ensure the Corporation's status as a REIT.
Section
11. Exemptions and Exclusions –
Termination of Status as Real Estate Investment Trust.
(i) Exemptions by Board. The Board of
Directors may, in its sole discretion, waive the Ownership Limit with respect to
any particular Person or Persons if evidence
- 12
-
satisfactory
to the Board of Directors and the Corporation's tax counsel is presented that
the changes in ownership pursuant to such waiver will not cause the Corporation
not to continue to be qualified as a REIT and the Board of Directors otherwise
decides that such action is in the best interests of the
Corporation.
(ii)
Exclusion of Existing Shareholders and
Termination of Status as a Real Estate Investment Trust. The restrictions
on transferability and ownership in this Article V shall not apply to (a) shares
owned or shares issuable upon exercise of outstanding options by existing
shareholders that as of the close of business on the Effective Date, own shares
in excess of the Ownership Limit, or (b) if the Board of Directors determines
that is no longer in the best interest of the Corporation to attempt to qualify,
or to continue to qualify, as a REIT and a majority of the Corporation's voting
stockholders approve such determination by the Board.
Section
12. Legend.
(i) In
addition to any other legend required by applicable law, each certificate for
shares of Common Stock shall bear substantially the following
legend:
- 13
-
The
securities represented by this certificate are subject to restrictions on
transfer for the purpose of the Corporation maintaining its status as a real
estate investment trust (a "REIT") under the United States Internal Revenue Code
of 1986, as amended. Except as otherwise provided pursuant to the Certificate of
Incorporation (the "Certificate") of the Corporation, no Person may Beneficially
Own shares of Common Stock in excess of 2% (or such other percentage as may be
determined by the Board of Directors of the Corporation) of the lesser of the
aggregate number or value of the outstanding shares of Common Stock of the
Corporation. Any Person who acquires or attempts to acquire shares of Common
Stock in excess of the aforementioned limitation, or any Person who is or
attempts to become a transferee such that Excess Stock results under the
provisions of the Articles, shall immediately give written notice or, in the
event of a proposed or attempted transfer, give at least 15 days prior written
notice to the Corporation of such event and shall provide to the Corporation
such other information as it may request in order to determine the effect of any
such Transfer on the Corporation's status as a REIT. All capitalized terms in
this legend have the meanings defined in the Certificate, a copy of which,
including the restrictions on transfer, will be sent to any stockholder on
request and without charge. If the restrictions on transfer are violated, the
securities represented hereby will be converted into and treated as shares of
Excess Stock that will be transferred, by operation of law, to the trustee of a
trust for the exclusive benefit of one or more charitable
organizations.
- 14
-
(ii) In
addition to any legend required by applicable law, each certificate for shares
of Preferred Stock shall bear such legend as may be set forth in the Certificate
of Designation with respect to the transferability of such Preferred
Stock.
Section
13. Severability. If any
provision of this Article V or any application of any such provision is
determined to be void, invalid or unenforceable by virtue of any legal decision,
statute, rule or regulation, then the Purported Record Transferee may be deemed,
at the option of the Corporation, to have acted as an agent of the Corporation
in acquiring such shares of Excess Stock and to hold such shares of Excess Stock
on behalf of the Corporation, and the validity and enforcability of remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with such
determination.
Section
14. Trust for Excess Stock. Upon
any purported Transfer that results in Excess Stock pursuant to Section 3 of
this Article V, such Excess Stock shall be deemed to have been transferred by
operation of law to the Trustee of a trust (the "Trust") for the exclusive
benefit of one or more Charitable Beneficiaries. The Trustee shall be appointed
by the Corporation and shall be a person unaffiliated with the Corporation, any
purported Beneficial Transferee or any Purported Record Transferee. By written
notice to the Trustee, the Corporation shall designate one or more non-profit
organizations to be the Charitable Beneficiary(ies) of the interest in the Trust
representing the Excess Stock such that (a) the shares of Equity Stock, from
which the shares of Excess Stock held in the Trust were so
converted,
- 15
-
would not
violate the restrictions set forth in Section 2 of this Article V in the hands
of such Charitable Beneficiary and (b) each Charitable Beneficiary is an
organization described in Sections 170 (b) (1) (A) , 170 (c) and 501 (c) (3) of
the Code. The Trustee of the Trust will be deemed to own the Excess Stock for
the benefit of the Charitable Beneficiary on the date of the purported Transfer
that results in Excess Stock pursuant to Section 3 of this Article V. Shares of
Excess Stock so held in trust shall be issued and outstanding stock of the
Corporation. The Purported Record Transferee shall have no rights in such Excess
Stock except as expressly provided for in this Article V.
Section
15. Dividends on Excess Stock.
Shares of Excess Stock will be entitled to dividends and distributions
authorized and declared with respect to the class or series of Equity Stock from
which the Excess Stock was converted and will be payable to the Trustee of the
Trust in which such Excess Stock is held, for the benefit of the Charitable
Beneficiary. Dividends and distributions will be authorized and declared with
respect to each share of Excess Stock in an amount equal to the dividends and
distributions authorized and declared on each share of stock of the class or
series of Equity Stock from which the Excess Stock was converted. Any dividend
or distribution paid to a Purported Record Transferee of Excess Stock prior to
the discovery by the Corporation that Equity Stock has been transferred in
violation of the provisions of the Charter shall be repaid by the Purported
Record Transferee to the Trustee upon demand. The Corporation shall rescind any
dividend or distribution authorized and declared but unpaid as void ab initio
with respect to the Purported Record Transferee, and the Corporation shall pay
such dividend or distribution when due to the Trustee of the Trust for the
benefit of the Charitable Beneficiary.
Section
16. Liquidation Distributions for
Excess Stock. Subject to the preferential
- 16
-
rights of
the Preferred Stock, if any, as may be determined by the Board of Directors, in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of, or any other distribution of all or substantially all of the assets of the
Corporation, each holder of shares of Excess Stock shall be entitled to receive,
in the case of Excess Stock converted from Preferred Stock, ratably with each
other holder of Preferred Stock and Excess Stock converted from Preferred Stock
and having the same rights to payment upon liquidation, dissolution or winding
up as such Preferred Stock and, in the case of Excess Stock converted from
Common Stock, ratably with each other holder of Common Stock and Excess Stock
converted from Common Stock, that portion of the assets of the Corporation
available for distribution to its stockholders as the number of shares of the
Excess Stock held by such holder bears to the total number of shares of (i)
Preferred Stock and Excess Stock then outstanding (in the case of Excess Stock
converted from Preferred Stock) and (ii) Common Stock and Excess Stock then
outstanding (in the case of Excess Stock converted from Common
Stock).
Any
liquidation distributions to be distributed with respect to Excess Stock shall
be distributed in the same manner as proceeds from the sale of Excess Stock are
distributed as set forth in Section 19 of this Article V.
Section
17. Voting Rights for Excess
Stock. Any vote cast by a Purported Record Transferee of Excess Stock
prior to the discovery by the Corporation that Equity Stock has been transferred
in violation of the provisions of the Charter shall be void ab initio. While the
Excess Stock is held in trust, the Purported Record Transferee will be deemed to
have given an irrevocable proxy to the Trustee to vote the shares of Equity
Stock which have been converted into shares of Excess Stock for the benefit of
the Charitable Beneficiary.
- 17
-
Section
18. Non-Transferability of Excess
Stock. Excess Stock shall not be transferable. In its sole discretion,
the Trustee of the Trust may transfer the interest in the Trust representing
shares of Excess Stock to any Person if the shares of Excess Stock would not be
Excess Stock in the hand of such Person. If such transfer is made, the interest
of the Charitable Beneficiary in the Excess Stock shall terminate and the
proceeds of the sale shall be payable by the Trustee to the Purported Record
Transferee and to the Charitable Beneficiary as herein set forth. The Purported
Record Transferee shall receive from the Trustee the lesser of (i) the price
paid by the Purported Record Transferee for its shares of Equity Stock that were
converted into Excess Stock or, if the Purported Record Transferee did not give
value for such shares (e.g., the stock was received through a gift or devise),
the Market Price of the shares of excess stock on the date of Transfer and (ii)
the price received by the Trustee from the sale or other disposition of the
Excess Stock held in trust. The Trustee may reduce the amount payable to the
Purported Record Transferee by the amount of dividends and distributions which
have been paid to the Purported Record Transferee and are owed by the Purported
Record Transferee to the Trustee pursuant to Section 15 of this Article V. Any
proceeds in excess of the amount payable to the Purported Record Transferee
shall be paid by the Trustee to the Charitable Beneficiary. Upon such transfer
of an interest in the Trust, the corresponding shares of Excess Stock in the
Trust shall be automatically exchanged for an equal number of shares of Common
Stock and/or Preferred Stock, as applicable, and such shares of Common Stock
and/or Preferred Stock, as applicable, would not be Excess Stock in
the hands of such transferee. Prior to any transfer of any interest in the
Trust, the Corporation must have waived in writing its purchase rights under
Section 20 of this Article V.
Section
19. Stock Exchange Transactions.
Nothing in this Article V shall preclude
- 18
-
the
settlement of any transaction entered into through the facilities of any United
States or foreign securities exchange or quotation system on which the stock of
the Corporation is listed or admitted to trading. The fact that the settlement
of any transaction may occur shall not negate the effect of any other provision
of this Article V and any transferee in such a transaction shall be subject to
all of the provisions and limitations set forth in this Article V.
Section
20. Call by Corporation on Excess
Stock. Shares of Excess Stock shall be deemed to have been offered for
sale to the Corporation, or its designee, at a price per share payable to the
Purported Record Transferee equal to the lesser of (i) the price per share in
the transaction that created such Excess Stock (or, in the case of a Transfer
without consideration, the Market Price at the time of such Transfer) and (ii)
the Market Price of the Common Stock or Preferred Stock from which such Excess
Stock was converted on the date the Corporation, or its designee, accepts such
offer. The Corporation may reduce the amount payable to the Purported Record
Transferee by the amount of dividends and distributions which have been paid to
the Purported Record Transferee and are owed by the Purported Record Transferee
to the Trustee pursuant to Section 15 of this Article V. The Corporation may pay
the amount of such reductions to the Trustee for the benefit of the Charitable
Beneficiary. The Corporation shall have the right to accept such
offer for a period of 90 days after the later of (i) the date of the
Corporation's receipt of notice pursuant to Section 5 of this Article V and (ii)
if the Corporation does not receive a notice of such Transfer pursuant to
Section 5 of this Article V, the date that the Board of Directors determines in
good faith that a Transfer resulting in Excess Stock has occurred, but in no
event later than a permitted Transfer pursuant to and in compliance with the
terms of Section 18 of this Article V.
- 19
-
Section
21. Enforcement. The Corporation
is authorized specifically to seek equitable relief, including injunctive
relief, to enforce the provisions of this Article V.
Section
22. Non-Waiver. No delay or
failure on the part of the Corporation or the Board of Directors in exercising
any right hereunder shall operate as a waiver of any right of the Corporation or
the Board of Directors, as the case may be, except to the extent specifically
waived in writing.
ARTICLE
VI
6. Term. The corporation is to have
perpetual existence.
ARTICLE
VII
7. Bylaws. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, alter or repeal the By-Laws of the Corporation and
to authorize and cause to be executed, mortgages and liens upon the property and
franchises of the Corporation.
- 20
-
ARTICLE
VIII
8. Election of Directors. The
stockholders and directors shall have the power to hold their meetings and to
keep the books, documents, and papers of the Corporation outside the State of
Delaware, at such places as may be from time to time designated by the By-Laws
or by resolution of the stockholders or directors, except as otherwise may be
required by the laws of Delaware. Election of Directors need not be by written
ballot unless the By-Laws of the Corporation shall so provide.
ARTICLE
IX
9. Limitation of Liability. To the
maximum extent permitted by Delaware law, a director of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involved
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize the further elimination or
limitation of the liability of a director, then the liability of a director of
the Corporation shall be limited or eliminated o the fullest extent permitted by
the amended Delaware General Corporation Law. Any repeal or modification of this
Article shall be prospective only, and shall not adversely affect any
elimination or limitation of the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
- 21
-
ARTICLE
X
10. Merger or Sale of Assets. No merger or
consolidation of the Corporation, nor any sale, lease or exchange of
substantially all of the assets of the Corporation, may be affected without the
affirmative vote of the holders of 66 2/3% of the outstanding shares of Common
Stock of the Corporation entitled to vote thereon at a meeting of stockholders
called for that purpose.
ARTICLE
XI
11. Right to Amend. The Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, including any amendment altering the terms or contract rights, as
expressly set forth in this charter, of any shares of outstanding stock and all
rights conferred upon stockholders, directors and officers herein are granted
subject to this reservation; provided, however, that Articles V, X and XI may
not be amended, altered, changed or repealed without the affirmative vote of the
holders of 66 2/3% of the outstanding shares of Common Stock of the Corporation
entitled to vote thereon at a meeting of stockholders called for that
purpose.
- 22
-
IN
WITNESS WHEREOF, HMG/COURTLAND PROPERTIES, INC. has caused its corporate seal to
be hereunto affixed and this Certificate to be signed by Maurice Wiener, its
Chairman, and Lawrence Rothstein, its President and Secretary, this day of June,
2001.
| /s/ Maurice Wiener | |
|
Maurice
Wiener, Chairman
|
|
|
[CORPORATE
SEAL] ATTEST:
|
/s/ Lawrence Rothstein |
|
Lawrence
Rothstein,
|
|
|
President
and Secretary
|
- 23
-
CERTIFICATE
OF AMENDMENT OF CERTIFICATE OF INCORPORATION
OF
HMG/COURTLAND PROPERTIES, INC.
HMG/Courtland
Properties, Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “Corporation”), does hereby
certify that:
The
amendments to the Corporation’s Certificate of Incorporation set forth in the
following resolution was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of
Delaware:
RESOLVED,
that the Certificate of Incorporation be amended by striking Article IV in its
entirety and replacing therefor:
“4. Authorized
Capital.
Section
1. The total number of shares of capital stock which the Corporation
shall have authority to issue is as follows:
|
|
a.
|
One
Million, Two Hundred Thousand (1,200,000) shares of Common Stock, par
value $1 per share, or $1,200,000 in the
aggregate.
|
|
|
b.
|
One
Hundred Thousand (100,000) shares of Excess Stock, par value $1 per share,
or $100,000 in the aggregate.
|
|
|
c.
|
The
aggregate par value of all authorized shares of stock of the Company
having par value is $1,300,000.
|
Section
2. Common
Stock. Subject to the provisions of Article V, each share of
Common Stock shall entitle the holder thereof to one vote. The Board
of Directors may reclassify any unissued shares of Common Stock from time to
time in one or more classes or series of stock.”
IN
WITNESS WHEREOF, HMG/Courtland Properties, Inc. has caused this Certificate to
be signed by its duly authorized officer, this 31st day of December,
2009.
|
HMG/COURTLAND
PROPERTIES, INC.
|
||
|
By:
|
/s/ Larry Rothstein | |
|
Larry
Rothstein
|
||
|
President
and Secretary
|
||