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8-K - FORM 8-K - TIPTREE INC. | y03916e8vk.htm |
EX-99.1 - EX-99.1 - TIPTREE INC. | y03916exv99w1.htm |
Exhibit 3.1
CARE INVESTMENT TRUST INC.
THIRD ARTICLES OF AMENDMENT AND RESTATEMENT
FIRST: Care Investment Trust Inc., a Maryland corporation (the Corporation), desires
to amend and restate its charter (the Charter) as currently in effect and as hereinafter amended.
SECOND: The following provisions are all of the provisions of the Charter currently in
effect and as hereinafter amended:
ARTICLE 1
INCORPORATOR
The undersigned, James L. Galante, whose address is c/o DLA Piper US LLP, 6225 Smith Avenue,
Baltimore, Maryland 21209, does hereby form a corporation under the general laws of the State of
Maryland.
ARTICLE 2
NAME
The
name of the corporation (the Corporation) is:
Care Investment Trust Inc.
ARTICLE 3
PURPOSE
The purposes for which the Corporation is formed are to engage in any lawful act or activity
(including, without limitation or obligation, engaging in business as a real estate investment
trust under the Internal Revenue Code of 1986, as amended, or any successor statute (the Code))
for which corporations may be organized under the general laws of the State of Maryland as now or
hereafter in force. For purposes of these Articles, REIT means a real estate investment trust
under Sections 856 through 860 of the Code. The foregoing enumerated purposes and objects shall be
in no way limited or restricted by reference to, or inference from, the terms of any other clause
of this or any other article of the charter of the Corporation (the Charter) and each shall be
regarded as independent; and they are intended to be and shall be construed as powers as well as
purposes and objects of the Corporation and shall be in addition to and not in limitation of the
general powers of corporations under the General Laws of the State of Maryland.
ARTICLE 4
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The address of the principal office of the Corporation in the State of Maryland is The
Corporation Trust Incorporated, 350 West Camden Street, Baltimore, Maryland 21201. The name of the
resident agent of the Corporation in the State of Maryland is The Corporation Trust Incorporated,
the address of which is 350 West Camden Street, Baltimore, Maryland 21201. The resident agent is a
corporation of the State of Maryland.
ARTICLE 5
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 5.1 Number of Directors; Vacancies. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. The number of directors
of the Corporation initially shall be one, which number may be increased or decreased pursuant to
the Bylaws of the Corporation (the Bylaws), but shall never be less than the minimum number
required by the Maryland General Corporation Law or any successor statute (the MGCL). At all
times, except in the case of a vacancy, a majority of the Board of Directors shall be Independent
Directors (as defined below). For the purposes hereof, Independent Director shall mean a director
of the Corporation who meets the independence requirements under the rules and regulations of the
New York Stock Exchange as in effect from time to time.
The name of the director currently in office and who shall serve until the next annual meeting
of stockholders and until his successor is duly elected and qualifies is Flint D. Besecker. This
director may increase the number of directors and may fill any vacancy, whether resulting from an
increase in the number of directors or otherwise, on the Board of Directors occurring before the
first annual meeting of stockholders in the manner provided in the Bylaws. The Corporation elects,
at such time as it becomes eligible under Section 3-802 of the MGCL, to become subject to the
provisions of Section 3-804(c) of the MGCL and that, except as may be provided by the Board of
Directors in setting the terms of any class or series of stock, any and all vacancies on the Board
of Directors may be filled only by the affirmative vote of a majority of the remaining directors in
office, even if the remaining directors do not constitute a quorum, and any director elected to
fill a vacancy shall serve for the remainder of the full term of the directorship in which such
vacancy occurred and until a successor is elected and qualified.
Section 5.2 Extraordinary Actions. Except as specifically provided in Section 5.8
(relating to removal of directors) and in the last sentence of Article VIII (relating to amendment
of Section 5.8), notwithstanding any provision of law permitting or requiring any action to be
taken or approved by the affirmative vote of the holders of shares entitled to cast a greater
number of votes, any such action shall be effective and valid if taken or approved by the
affirmative vote of holders of shares entitled to cast a majority of all the votes entitled to be
cast on the matter.
Section 5.3 Authorization by Board of Stock Issuance. The Board of Directors may
authorize the issuance from time to time of shares of stock of the Corporation of any class or
series, whether now or hereafter authorized, or securities or rights convertible into shares of its
stock of any class or series, whether now or hereafter authorized, for such consideration as the
Board of Directors may deem advisable (or without consideration in the case of a stock split or
stock dividend), subject to such restrictions or limitations, if any, as may be set forth in the
Charter or the Bylaws.
Section 5.4 Preemptive and Appraisal Rights. Except as may be provided by the Board of
Directors in setting the terms of classified or reclassified shares of stock pursuant to Section
6.4 or as may otherwise be provided by contract approved by the Board of Directors, no holder of
shares of stock of the Corporation shall, as such holder, have any preemptive right to purchase or
subscribe for any additional shares of stock of the Corporation or any other security of the
Corporation which it may issue or sell. No holder of shares of stock of the Corporation shall be
entitled to the right to fair value of their stock under Subtitle 2 of Title 3 of the Corporations
and Associations Article of the Annotated Code of Maryland unless a majority of the Board of
Directors determines in advance that such rights will apply to one or more transactions.
Section 5.5 Indemnification. The Corporation shall have the power, to the maximum
extent permitted by Maryland law in effect from time to time, to obligate itself to indemnify, and
to pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, (a) any
individual who is a present or former director or officer of the Corporation or (b) any individual
who, while a director or officer of the Corporation and at the request of the Corporation, serves
or has served as a director, officer, partner or trustee of another corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan or any other enterprise
from and against any claim or liability to which such person may become subject or which such
person may incur by reason of his or her service in any of the foregoing capacities. The
Corporation shall have the power, with the approval of the Board of Directors, to provide such
indemnification and advancement of expenses to a person who served a predecessor of the Corporation
in any of the capacities described in (a) or (b) above and to any employee or agent of the
Corporation or a predecessor of the Corporation.
The Corporation may, to the fullest extent permitted by law, purchase and maintain insurance
on behalf of any person described in the preceding paragraph against any liability which may be
asserted against such person.
The indemnification provided herein shall not be deemed to limit the right of the Corporation
to indemnify any other person for any such expenses to the fullest extent permitted by law, nor
shall it be deemed exclusive of any other rights to which any person seeking indemnification from
the Corporation may be entitled under any agreement, vote of stockholders or disinterested
directors, or otherwise, both as to action in such persons official capacity and as to action in
another capacity while holding such office.
Section 5.6 Determinations by Board. The determination as to any of the following
matters, made in good faith by or pursuant to the direction of the Board of Directors consistent
with the Charter and in the absence of actual receipt of an improper benefit in money, property or
services or active and deliberate dishonesty established by a court, shall be final and conclusive
and shall be binding upon the Corporation and every holder of shares of its stock: the amount
of the net income of the Corporation for any period and the amount of assets at any time legally
available for the payment of dividends, redemption of its stock or the payment of other
distributions on its stock; the amount of paid-in surplus, net assets, other surplus, annual or
other net profit, cash flow, funds from operations, net assets in excess of capital, undivided
profits or excess of profits over losses on sales of assets; the amount, purpose, time of creation,
increase or decrease, alteration or cancellation of any reserves or charges and the propriety
thereof (whether or not any obligation or liability for which such reserves or charges shall have
been created shall have been paid or discharged); any interpretation of the terms, preferences,
conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or
distributions, qualifications or terms or conditions of redemption of any class or series of stock
of the Corporation; the fair value, or any sale, bid or asked price to be applied in determining
the fair value, of any asset owned or held by the Corporation or any shares of stock of the
Corporation, the number of shares of any class or series of stock of the Corporation; any matter
relating to the acquisition, holding and disposition of any assets by the Corporation; or any other
matter relating to the business and affairs of the Corporation or required or permitted by
applicable law, the Charter, the Bylaws or otherwise to be determined by the Board of Directors.
Section 5.7 REIT Qualification. If the Corporation elects to qualify for federal
income tax treatment as a REIT, the Board of Directors shall use its reasonable best efforts to
take such actions as are necessary or appropriate to preserve the qualification of the Corporation
as a REIT; however, if the Board of Directors determines that it is no longer in the best interests
of the Corporation to continue to be qualified as a REIT, the Board of Directors may revoke or
otherwise terminate the Corporations REIT election pursuant to Section 856(g) of the Code. The
Board of Directors also may determine that compliance with any restriction or limitation on stock
ownership and transfers set forth in Article VII is no longer required for REIT qualification.
Section 5.8 Removal of Directors. Subject to the rights of holders of one or more
classes or series of Preferred Stock to elect or remove one or more directors, any director, or the
entire Board of Directors, may be removed from office at any time, but only for cause and then only
by the affirmative vote of at least two thirds of the votes entitled to be cast generally in the
election of directors. For the purpose of this paragraph, cause shall mean, with respect to any
particular director, conviction of a felony or a final judgment of a court of competent
jurisdiction holding that such director caused demonstrable, material harm to the Corporation
through gross negligence, willful misconduct, bad faith or active and deliberate dishonesty.
Section 5.9 Filling of Vacancies. At such time as the provisions of Title 3, Subtitle
8 of the Corporations and Associations Article of the Annotated Code of Maryland become applicable
to the Corporation, the Corporation elects to be subject to the provisions of Section 3 804(c) of
the MGCL regarding the filling of vacancies on the Board of Directors.
Section 5.10 Advisor Agreements. Subject to such approval of stockholders and other
conditions, if any, as may be required by any applicable statute, rule or regulation, the Board of
Directors may authorize the execution and performance by the Corporation of one or more agreements
with any person, corporation, association, company, trust, partnership (limited or general) or
other organization whereby, subject to the supervision and control of the Board of
Directors, any such other person, corporation, association, company, trust, partnership
(limited or general) or other organization shall render or make available to the Corporation
managerial, investment, advisory and/or related services, office space and other services and
facilities (including, if deemed advisable by the Board of Directors, the management or supervision
of the investments of the Corporation) upon such terms and conditions as may be provided in such
agreement or agreements (including, if deemed fair and equitable by the Board of Directors, the
compensation payable thereunder by the Corporation).
Section 5.11 Tax on Disqualified Organizations. To the extent that the Corporation
incurs any tax pursuant to Section 860E(e)(6) of the Code as the result of any excess inclusion
income (within the meaning of Section 860E of the Code) of the Corporation that is allocable to a
stockholder that is a disqualified organization (as defined in Section 860E(e)(5) of the Code),
the Board of Directors may, in its sole discretion, cause the Corporation to allocate such tax
solely to the stock held by such disqualified organization in the manner described in Treasury
Regulation Section 1.860E-2(b)(4), by reducing from one or more distributions paid to such
stockholder the tax incurred by the Corporation pursuant to Section 860E(e)(6) as a result of such
stockholders stock ownership.
ARTICLE 6
STOCK
Section 6.1 Authorized Shares. The Corporation has authority to issue 350,000,000
shares of stock, consisting of 250,000,000 shares of Common Stock, $.001 par value per share
(Common Stock), and 100,000,000 shares of Preferred Stock, $.001 par value per share (Preferred
Stock). The aggregate par value of all authorized shares of stock having par value is $350,000. If
shares of one class of stock are classified or reclassified into shares of another class or series
of stock pursuant to this Article VI, the number of authorized shares of the former class or series
shall be automatically decreased and the number of shares of the latter class or series shall be
automatically increased, in each case by the number of shares so classified or reclassified, so
that the aggregate number of shares of stock of all classes and series that the Corporation has
authority to issue shall not be more than the total number of shares of stock set forth in the
first sentence of this paragraph. To the extent permitted by Maryland law, the Board of Directors,
without any action by the stockholders of the Corporation, may amend the Charter from time to time
to increase or decrease the aggregate number of shares of stock or the number of shares of stock of
any class or series that the Corporation has authority to issue.
Section 6.2 Common Stock. Subject to the provisions of Article VII and except as may
otherwise be specified in the terms of any class or series of Common Stock, each share of Common
Stock shall entitle the holder thereof to one vote on each matter upon which holders of Common
Stock are entitled to 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 6.3 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 from time to time, in one or more classes or series of stock.
Section 6.4 Classified or Reclassified Shares. Prior to issuance of classified or
reclassified shares of any class or series, the Board of Directors by resolution shall: (a)
designate that class or series to distinguish it from all other classes and series of stock of the
Corporation; (b) specify the number of shares to be included in the class or series; (c) set or
change, subject to the provisions of Article VII and subject to the express terms of any class or
series of stock of the Corporation outstanding at the time, the preferences, conversion or other
rights, voting powers, restrictions (including, without limitation, restrictions on
transferability), limitations as to dividends or other distributions, qualifications and terms and
conditions of redemption for each class or series; and (d) cause the Corporation to file articles
supplementary with the State Department of Assessments and Taxation of Maryland (the SDAT). Any
of the terms of any class or series of stock set or changed pursuant to clause (c) of this Section
6.4 may be made dependent upon facts or events ascertainable outside the Charter (including
determinations by the Board of Directors or other facts or events within the control of the
Corporation) and may vary among holders thereof, provided that the manner in which such facts,
events or variations shall operate upon the terms of such class or series of stock is clearly and
expressly set forth in the articles supplementary or other charter document filed with and accepted
for record by the SDAT.
Section 6.5 Charter and Bylaws. All persons who shall acquire stock in the Corporation
shall acquire the same subject to the provisions of the Charter and the Bylaws.
ARTICLE 7
RESTRICTION ON TRANSFER AND OWNERSHIP OF SHARES
Section 7.1 Definitions. For the purpose of this Article VII, the following terms
shall have the following meanings:
Aggregate Stock Ownership Limit. The term Aggregate Stock Ownership Limit shall mean
not more than 9.8 percent (in value or in number of shares, whichever is more restrictive) of the
aggregate of the outstanding shares of Capital Stock. The value and number of the outstanding
shares of Capital Stock shall be determined by the Board of Directors of the Corporation in good
faith, which determination shall be conclusive for all purposes hereof.
Beneficial Ownership. The term Beneficial Ownership shall mean ownership of Capital
Stock by a Person, whether the interest in the shares of Capital Stock is held directly or
indirectly (including by a nominee), and shall include interests that would be treated as owned
through the application of Section 544 of the Code, as modified by Sections 856(h)(1)(B) and
856(h)(3) of the Code. The terms Beneficial Owner, Beneficially Owns and Beneficially Owned
shall have the correlative meanings.
Business Day. The term Business Day shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions in New York City
are authorized or required by law, regulation or executive order to close.
Capital Stock. The term Capital Stock shall mean all classes or series of stock of
the Corporation, including, without limitation, Common Stock and Preferred Stock.
Charitable Beneficiary. The term Charitable Beneficiary shall mean one or more
beneficiaries of the Trust as determined pursuant to Section 7.3.6, provided that each such
organization must be described in Section 501(c)(3) of the Code and contributions to each such
organization must be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of
the Code.
Charter. The term Charter shall mean the charter of the Corporation, as that term is
defined in the MGCL.
Code. The term Code shall mean the Internal Revenue Code of 1986, as amended from
time to time.
Common Stock Ownership Limit. The term Common Stock Ownership Limit shall mean not
more than 9.8 percent (in value or in number of shares, whichever is more restrictive) of the
aggregate of the outstanding shares of Common Stock of the Corporation. The number and value of the
outstanding shares of Common Stock of the Corporation shall be determined by the Board of Directors
of the Corporation in good faith, which determination shall be conclusive for all purposes hereof.
For purposes of determining the percentage ownership of Common Stock by any Person, shares of
Common Stock that may be acquired upon conversion, exchange or exercise of any securities of the
Corporation directly or constructively held by such Person, but not Common Stock issuable with
respect to the conversion, exchange or exercise of securities for the Corporation held by other
Persons, shall be deemed to be outstanding prior to conversion, exchange or exercise.
Constructive Ownership. The term Constructive Ownership shall mean ownership of
Capital Stock by a Person, whether the interest in the shares of Capital Stock is held directly or
indirectly (including by a nominee), and shall include interests that would be treated as owned
actually or constructively through the application of Section 318(a) of the Code, as modified by
Section 856(d)(5) of the Code. The terms Constructive Owner, Constructively Owns and
Constructively Owned shall have the correlative meanings.
Excepted Holder. The term Excepted Holder shall mean a Person for whom an Excepted
Holder Limit is created by the Charter or by the Board of Directors pursuant to Section 7.2.7.
Excepted Holder Limit. The term Excepted Holder Limit shall mean, provided that the
affected Excepted Holder agrees to comply with the requirements established by the Charter or by
the Board of Directors pursuant to Section 7.2.7 and subject to adjustment pursuant to Section
7.2.8, the percentage limit established for an Excepted Holder by the Board of Directors pursuant
to Section 7.2.7.
Initial Date. The term Initial Date shall mean the date upon which the Articles of
Amendment containing this Article VII are filed with the SDAT.
Market Price. The term Market Price on any date shall mean, with respect to any
class or series of outstanding shares of Capital Stock, the Closing Price for such Capital Stock on
such date. The Closing Price on any date shall mean the last reported sale price for
such Capital Stock, regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, for such Capital Stock, in either case as
reported in the principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the NYSE or, if such Capital Stock is not listed or admitted to
trading on the NYSE, as reported on the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on which such Capital
Stock is listed or admitted to trading or, if such Capital Stock is not listed or admitted to
trading on any national securities exchange, the last quoted price, or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated Quotation System or, if such system is
no longer in use, the principal other automated quotation system that may then be in use or, if
such Capital Stock is not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in such Capital Stock selected
by the Board of Directors of the Corporation or, in the event that no trading price is available
for such Capital Stock, the fair market value of the Capital Stock, as determined in good faith by
the Board of Directors of the Corporation.
MGCL. The term MGCL shall mean the Maryland General Corporation Law, as amended from
time to time.
NYSE. The term NYSE shall mean the New York Stock Exchange.
Person. The term Person shall mean an individual, corporation, partnership, limited
liability company, estate, trust (including a trust qualified under Sections 401(a) or 501(c)(17)
of the Code), a portion of a trust permanently set aside for or to be used exclusively for the
purposes described in Section 642(c) of the Code, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other entity and also includes a
group as that term is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, and a group to which an Excepted Holder Limit applies.
Prohibited Owner. The term Prohibited Owner shall mean, with respect to any
purported Transfer (or other event), any Person who, but for the provisions of Section 7.2.1, would
Beneficially Own or Constructively Own shares of Capital Stock in violation of the provisions of
7.2.1(a) and, if appropriate in the context, shall also mean any Person who would have been the
record owner of the shares of Capital Stock that the Prohibited Owner would have so owned.
REIT. The term REIT shall mean a real estate investment trust within the meaning of
Section 856 of the Code.
Restriction Termination Date. The term Restriction Termination Date shall mean the
first day after the Initial Date on which the Corporation determines pursuant to Section 5.7 of the
Charter that it is no longer in the best interests of the Corporation to attempt to, or continue
to, qualify as a REIT or that compliance with the restrictions and limitations on Beneficial
Ownership, Constructive Ownership and Transfers of shares of Capital Stock set forth herein is no
longer required in order for the Corporation to qualify as a REIT.
Transfer. The term Transfer shall mean any issuance, sale, transfer, gift,
assignment, devise or other disposition, as well as any other event that causes any Person to
acquire Beneficial Ownership or Constructive Ownership, or any agreement to take any such actions
or cause any such events, of Capital Stock or the right to vote or receive dividends on Capital
Stock, including (a) the granting or exercise of any option (or any disposition of any option), (b)
any disposition of any securities or rights convertible into or exchangeable for Capital Stock or
any interest in Capital Stock or any exercise of any such conversion or exchange right and (c)
Transfers of interests in other entities that result in changes in Beneficial or Constructive
Ownership of Capital Stock; in each case, whether voluntary or involuntary,
whether owned of record, Constructively Owned or Beneficially Owned and whether by operation
of law or otherwise. The terms Transferring and Transferred shall have the correlative
meanings.
Trust. The term Trust shall mean any trust provided for in Section 7.3.1.
Trustee. The term Trustee shall mean the Person unaffiliated with the Corporation
and a Prohibited Owner, that is appointed by the Corporation to serve as trustee of the Trust.
Section 7.2 Capital Stock.
Section 7.2.1 Ownership Limitations. During the period commencing on the Initial Date and
prior to the Restriction Termination Date:
(a) Basic Restrictions.
(i) (1) No Person, other than an Excepted Holder, shall Beneficially Own or Constructively Own
either shares of Capital Stock in excess of the Aggregate Stock Ownership Limit or shares of Common
Stock in excess of the Common Stock Ownership Limit and (2) no Excepted Holder shall Beneficially
Own or Constructively Own shares of Capital Stock in excess of the Excepted Holder Limit for such
Excepted Holder.
(ii) No Person shall Beneficially or Constructively Own shares of Capital Stock to the extent
that such Beneficial or Constructive Ownership of Capital Stock would result in the Corporation
being closely held within the meaning of Section 856(h) of the Code (without regard to whether
the ownership interest is held during the last half of a taxable year), or otherwise failing to
qualify as a REIT (including, but not limited to, Beneficial or Constructive Ownership to the
extent that such Beneficial or Constructive Ownership would result in the Corporation owning
(actually or Constructively) a 9.9% interest in a tenant that is described in Section 856(d)(2)(B)
of the Code (for this purpose, a tenant from whom the Corporation (or an entity owned or controlled
by the Corporation) derives (and is expected to continue to derive) a sufficiently small amount of
revenue such that, in the opinion of the Board of Directors of the Corporation, rent from such
tenant would not adversely affect the Corporations ability to qualify as a REIT, shall not be
treated as a tenant of the Corporation)).
(iii) Notwithstanding any other provisions contained herein, any Transfer of shares of Capital
Stock (whether or not such Transfer is the result of a transaction entered into through the
facilities of the NYSE or any other national securities exchange or automated inter-dealer
quotation system) that, if effective, would result in the Capital Stock being Beneficially Owned by
less than 100 Persons (determined under the principles of Section 856(a)(5) of the Code) shall be
void ab initio, and the intended transferee shall acquire no rights in such shares of Capital
Stock.
(b) Transfer in Trust. If any Transfer of shares of Capital Stock (whether or not such
Transfer is the result of a transaction entered into through the facilities of the NYSE or any
other national securities exchange or automated inter-dealer quotation system) occurs which, if
effective, would result in any Person Beneficially Owning or Constructively Owning shares of
Capital Stock in violation of Section 7.2.1(a),
(i) then that number of shares of Capital Stock the Beneficial or Constructive Ownership of
which otherwise would cause such Person to violate Section 7.2.1(a) (rounded up to the nearest
whole share) shall be automatically transferred to a Trust for the benefit of a Charitable
Beneficiary, as described in Section 7.3, effective as of the close of business on the Business Day
prior to the date of such Transfer (or other event), and such Person shall acquire no rights in
such shares of Capital Stock; or
(ii) if the transfer to the Trust described in clause (i) of this sentence would not be
effective for any reason to prevent the violation of Section 7.2.1(a), then the Transfer of that
number of shares of Capital Stock that otherwise would cause any Person to violate Section 7.2.1(a)
shall be void ab initio, and the intended transferee shall acquire no rights in such shares of
Capital Stock.
(iii) In determining which shares of Capital Stock are to be transferred to a Trust in
accordance with this Section 7.2.1(b) and Section 7.3 hereof, shares shall be so transferred to a
Trust in such manner that minimizes the aggregate value of the shares that are transferred to the
Trust (except to the extent that the Board of Directors determines that the shares transferred to
the Trust shall be those directly or indirectly held or Beneficially Owned or Constructively Owned
by a Person or Persons that caused or contributed to the application of this Section 7.2.1(b)), and
to the extent not inconsistent therewith, on a pro rata basis.
(iv) To the extent that, upon a transfer of shares of Capital Stock pursuant to this Section
7.2.1(b), a violation of Section 7.2.1(a) would nonetheless be continuing, (for example where the
ownership of shares of Capital Stock by a single Trust would result in the Capital Stock being
beneficially owned (determined under the principles of Section 856(a)(5) of the Code) by less than
100 persons), the shares of Capital Stock shall be transferred to that number of Trusts, each
having a distinct Trustee and a Charitable Beneficiary or Beneficiaries that are distinct from
those of each other Trust, such that there is no violation of Section 7.2.1(a).
Section 7.2.2 Remedies for Breach. If the Board of Directors of the Corporation or any
duly authorized committee thereof (or other designees if permitted by the MGCL) shall at any time
determine in good faith that a Transfer or other event has taken place that results in a
violation of Section 7.2.1(a) or that a Person intends to acquire or has attempted to acquire
Beneficial Ownership or Constructive Ownership of any shares of Capital Stock in violation of
Section 7.2.1(a) (whether or not such violation is intended), the Board of Directors or a committee
thereof (or other designees if permitted by the MGCL) shall take such action as it deems advisable
to refuse to give effect to or to prevent such Transfer or other event, including, without
limitation, causing the Corporation to redeem shares of Capital Stock, refusing to give effect to
such Transfer on the books of the Corporation or instituting proceedings to enjoin such Transfer or
other event; provided, however, that any Transfer or attempted Transfer or other event in violation
of Section 7.2.1(a) shall automatically result in the transfer to the Trust described above and,
where applicable, such Transfer (or other event) shall be void ab initio as provided above
irrespective of any action (or non-action) by the Board of Directors or a committee thereof.
Section 7.2.3 Notice of Restricted Transfer. Any Person who acquires or attempts or
intends to acquire Beneficial Ownership or Constructive Ownership of shares of Capital Stock that
will or may violate Section 7.2.1(a) or any Person who would have owned shares of Capital Stock
that resulted in a transfer to the Trust pursuant to the provisions of Section 7.2.1(b) shall
immediately give written notice to the Corporation of such event, or in the case of such a proposed
or attempted transaction, give at least 15 days prior written notice, 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 on the Corporations qualification as a REIT.
Section 7.2.4 Owners Required. To Provide Information. From the Initial Date and prior
to the Restriction Termination Date:
(a) every owner of more than five percent (or such lower percentage as required by the Code or
the Treasury Regulations promulgated thereunder) in number or value of the outstanding shares of
Capital Stock, within 30 days after the end of each taxable year, shall give written notice to the
Corporation stating the name and address of such owner, the number of shares of Capital Stock and
other shares of the Capital Stock Beneficially Owned and a description of the manner in which such
shares are held. Each such owner shall provide to the Corporation such additional information as
the Corporation may request in order to determine the effect, if any, of such Beneficial Ownership
on the Corporations qualification as a REIT and to ensure compliance with the Aggregate Stock
Ownership Limit and the Common Stock Ownership Limit; and
(b) each Person who is a Beneficial or Constructive Owner of Capital Stock and each Person
(including the stockholder of record) who is holding Capital Stock for a Beneficial or Constructive
Owner shall provide to the Corporation such information as the Corporation may request, in good
faith, in order to determine the Corporations qualification as a REIT and to comply with
requirements of any taxing authority or governmental authority or to determine such compliance and
to ensure compliance with the Aggregate Stock Ownership Limit and the Common Stock Ownership Limit.
Section 7.2.5 Remedies Not Limited. Subject to Section 5.7 of the Charter, nothing
contained in this Section 7.2 shall limit the authority of the Board of Directors of the
Corporation to take such other action as it deems necessary or advisable to protect the
Corporation and the interests of its stockholders in preserving the Corporations
qualification as a REIT.
Section 7.2.6 Ambiguity. In the case of an ambiguity in the application of any of the
provisions of this Section 7.2, Section 7.3 or any definition contained in Section 7.1, the Board
of Directors of the Corporation shall have the power to determine the application of the provisions
of this Section 7.2 or Section 7.3 or any such definition with respect to any situation based on
the facts known to it. In the event Section 7.2 or Section 7.3 requires an action by the Board of
Directors and the Charter fails to provide specific guidance with respect to such action, the Board
of Directors shall have the power to determine the action to be taken so long as such action is not
contrary to the provisions of Sections 7.1, 7.2 or 7.3. Absent a decision to the contrary by the
Board of Directors (which the Board of Directors may make in its sole and absolute discretion), if
a Person would have (but for the remedies set forth in Section 7.2.1) acquired Beneficial Ownership
or Constructive Ownership of Capital Stock in violation of Section 7.2.1, such remedies (as
applicable) shall apply first to the shares of Capital Stock that, but for such remedies, would
have been actually owned by such Person, and second to shares of Capital Stock which, but for such
remedies, would have been Beneficially Owned or Constructively Owned (but not actually owned) by
such Person, pro rata among the Persons who actually own such shares of Capital Stock based upon
the relative number of the shares of Capital Stock held by each such Person.
Section 7.2.7 Exceptions.
(a) Subject to Section 7.2.1, the Board of Directors of the Corporation, in its sole
discretion, may exempt (prospectively or retroactively) a Person from the Aggregate Stock Ownership
Limit, the Common Stock Ownership Limit, or both such limits and may establish or increase an
Excepted Holder Limit for such Person if:
(i) the Board of Directors obtains such representations and undertakings from such Person as
are reasonably necessary to ascertain that no individuals Beneficial or Constructive Ownership of
such shares of Capital Stock will violate Section 7.2.1(a)(ii);
(ii) such Person does not and represents that it will not own, actually or Constructively, an
interest in a tenant of the Corporation (or a tenant of any entity owned or controlled by the
Corporation) that would cause the Corporation to own, actually or Constructively, more than a 9.9%
interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Board of
Directors obtains such representations and undertakings from such Person as are reasonably
necessary to ascertain this fact; and
(iii) such Person agrees that any violation or attempted violation of such representations or
undertakings (or other action which is contrary to the restrictions contained in Sections 7.2.1
through 7.2.6) will result in such shares of Capital Stock being automatically transferred to a
Trust in accordance with Sections 7.2.1(b) and 7.3.
(b) Prior to granting any exception pursuant to Section 7.2.7(a), the Board of Directors of
the Corporation may require a ruling from the Internal Revenue Service, or
an opinion of counsel, in either case in form and substance satisfactory to the Board of
Directors in its sole discretion, as it may deem necessary or advisable in order to determine or
ensure the Corporations qualification as a REIT. Notwithstanding the receipt of any ruling or
opinion, the Board of Directors may impose such conditions or restrictions as it deems appropriate
in connection with granting such exception.
(c) Subject to Section 7.2.1(a)(ii), an underwriter or placement agent that participates in a
public offering or a private placement of Capital Stock (or securities convertible into or
exchangeable for Capital Stock) may Beneficially Own or Constructively Own shares of Capital Stock
(or securities convertible into or exchangeable for Capital Stock) in excess of the Aggregate Stock
Ownership Limit, the Common Stock Ownership Limit, or both such limits, but only to the extent
necessary to facilitate such public offering or private placement.
(d) The Board of Directors may only reduce the Excepted Holder Limit for an Excepted Holder:
(1) with the written consent of such Excepted Holder at any time, or (2) pursuant to the terms and
conditions of the agreements and undertakings entered into with such Excepted Holder in connection
with the establishment of the Excepted Holder Limit for that Excepted Holder. No Excepted Holder
Limit shall be reduced to a percentage that is less than the Aggregate Stock Ownership Limit or the
Common Stock Ownership Limit, as the case may be.
Section 7.2.8 Increase in Aggregate Stock Ownership Limit and Common Stock Ownership
Limit. The Board of Directors may from time to time increase the Aggregate Stock Ownership
Limit and the Common Stock Ownership Limit.
Section 7.2.9 Legend. Each certificate for shares of Capital Stock shall bear
substantially the following legend:
The shares represented by this certificate are subject to restrictions on Beneficial and
Constructive Ownership and Transfer for the purpose of the Corporations maintenance of its
qualification as a Real Estate Investment Trust under the Internal Revenue Code of 1986, as
amended (the Code). Subject to certain further restrictions and except as expressly
provided in the Corporations Charter, (i) no Person may Beneficially or Constructively Own
either (A) shares of the Corporations Capital Stock in excess of 9.8 percent (in value or
in number of shares, whichever is more restrictive) of the aggregate
of the outstanding shares of Capital Stock of the Corporation or (B) shares of the Corporations Common Stock
in excess of 9.8 percent (in value or in number of shares, whichever is more restrictive) of
the aggregate of the outstanding shares of Common Stock of the Corporation, unless such
Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable);
(ii) no Person may Beneficially or Constructively Own Capital Stock that would result in the
Corporation being closely held under Section 856(h) of the Code or otherwise cause the
Corporation to fail to qualify as a REIT; and (iii) no Person may Transfer shares of Capital
Stock if such Transfer would result in the Capital Stock of the Corporation being owned by
fewer than 100 Persons. Any Person who Beneficially or Constructively Owns or attempts to
Beneficially or Constructively Own shares of Capital Stock which causes or will cause a
Person to Beneficially or Constructively Own shares of Capital Stock in excess or in
violation of the above limitations must immediately notify the Corporation. If any of the
restrictions on transfer or ownership are violated, the shares of Capital Stock represented
hereby will be automatically transferred to a Trustee of a Trust for the benefit of one or
more Charitable Beneficiaries. In addition, upon the occurrence of certain events, attempted
Transfers in violation of the restrictions described above may be void ab initio. All
capitalized terms in this legend have the meanings defined in the charter of the
Corporation, as the same may be amended from time to time, a copy of which, including the
restrictions on transfer and ownership, will be furnished to each holder of Capital Stock of
the Corporation on request and without charge.
Instead of the foregoing legend, the certificate may state that the Corporation will furnish
a full statement about certain restrictions on transferability to a stockholder on request
and without charge.
Section 7.3 Transfer of Capital Stock in Trust.
Section 7.3.1 Ownership in Trust. Upon any purported Transfer or other event described
in Section 7.2.1(a) that would result in a transfer of shares of Capital Stock to a Trust, such
shares of Capital Stock shall be deemed to have been transferred to the Trustee as trustee of a
Trust for the exclusive benefit of one or more Charitable Beneficiaries. Such transfer to the
Trustee shall be deemed to be effective as of the close of business on the Business Day prior to
the purported Transfer or other event that results in the transfer to the Trust pursuant to Section
7.2.1(b). The Trustee shall be appointed by the Corporation and shall be a Person unaffiliated with
the Corporation and any Prohibited Owner. Each Charitable Beneficiary shall be designated by the
Corporation as provided in Section 7.3.6.
Section 7.3.2 Status of Shares Held by the Trustee. Shares of Capital Stock held by
the Trustee shall continue to be issued and outstanding shares of Capital Stock of the Corporation.
The Prohibited Owner shall have no rights in the shares of Capital Stock held by the Trustee. The
Prohibited Owner shall not benefit economically from ownership of any shares held in trust by the
Trustee, shall have no rights to dividends or other distributions and shall not possess any rights
to vote or other rights attributable to the shares held in the Trust.
Section 7.3.3 Dividend and Voting Rights. The Trustee shall have all voting rights and
rights to dividends or other distributions with respect to shares of Capital Stock held in the
Trust, which rights shall be exercised for the exclusive benefit of the Charitable Beneficiary. Any
dividend or other distribution paid to a Prohibited Owner prior to the discovery by the Corporation
that the shares of Capital Stock have been transferred to the Trustee shall be paid with respect to
such shares of Capital Stock by the Prohibited Owner to the Trustee upon demand and any dividend or
other distribution authorized but unpaid shall be paid when due to the Trustee. Any dividend or
distribution so paid to the Trustee shall be held in trust for the Charitable Beneficiary. The
Prohibited Owner shall have no voting rights with respect to shares held in the Trust and, subject
to Maryland law, effective as of the date that the shares of Capital Stock have been transferred to
the Trustee, the Trustee shall have the authority (at the Trustees sole discretion) (i) to rescind
as void any vote cast by a Prohibited Owner prior to the discovery by the Corporation that the
shares of Capital Stock have been transferred to the Trustee and (ii) to recast such vote in
accordance with the desires of the Trustee acting for the benefit of the
Charitable Beneficiary; provided, however, that if the Corporation has already taken
irreversible corporate action, then the Trustee shall not have the authority to rescind and recast
such vote. Notwithstanding the provisions of this Article VII, until the Corporation has received
notification that shares of Capital Stock have been transferred into a Trust, the Corporation shall
be entitled to rely on its share transfer and other stockholder records for purposes of preparing
lists of stockholders entitled to vote at meetings, determining the validity and authority of
proxies and otherwise conducting votes of stockholders.
Section 7.3.4 Sale of Shares by Trustee. Within 20 days of receiving notice from the
Corporation that shares of Capital Stock have been transferred to the Trust, the Trustee of the
Trust shall sell the shares held in the Trust to a person, designated by the Trustee, whose
ownership of the shares will not violate the ownership limitations set forth in Section 7.2.1(a).
Upon such sale, the interest of the Charitable Beneficiary in the shares sold shall terminate and
the Trustee shall distribute the net proceeds of the sale to the Prohibited Owner and to the
Charitable Beneficiary as provided in this Section 7.3.4. The Prohibited Owner shall receive the
lesser of (1) the price paid by the Prohibited Owner for the shares or, if the Prohibited Owner did
not give value for the shares in connection with the event causing the shares to be held in the
Trust (e.g., in the case of a gift, devise or other such transaction), the Market Price of the
shares on the day of the event causing the shares to be held in the Trust and (2) the price per
share received by the Trustee (net of any commissions and other expenses of sale) from the sale or
other disposition of the shares held in the Trust. The Trustee may reduce the amount payable to the
Prohibited Owner by the amount of dividends and distributions paid to the Prohibited Owner and
owned by the Prohibited Owner to the Trustee pursuant to Section 7.3.3 of this Article VII. Any net
sales proceeds in excess of the amount payable to the Prohibited Owner shall be immediately paid to
the Charitable Beneficiary. If, prior to the discovery by the Corporation that shares of Capital
Stock have been transferred to the Trustee, such shares are sold by a Prohibited Owner, then (i)
such shares shall be deemed to have been sold on behalf of the Trust and (ii) to the extent that
the Prohibited Owner received an amount for such shares that exceeds the amount that such
Prohibited Owner was entitled to receive pursuant to this Section 7.3.4, such excess shall be paid
to the Trustee upon demand.
Section 7.3.5 Purchase Right in Stock Transferred to the Trustee. Shares of Capital
Stock transferred to the Trustee shall be deemed to have been offered for sale to the Corporation,
or its designee, at a price per share equal to the lesser of (i) the price per share in the
transaction that resulted in such transfer to the Trust (or, in the case of a devise or gift, the
Market Price at the time of such devise or gift) and (ii) the Market Price on the date the
Corporation, or its designee, accepts such offer. The Corporation may reduce the amount payable to
the Prohibited Owner by the amount of dividends and distributions paid to the Prohibited Owner and
owed by the Prohibited Owner to the Trustee pursuant to Section 7.3.3 of this Article VII. The
Corporation may pay the amount of such reduction to the Trustee for the benefit of the Charitable
Beneficiary. The Corporation shall have the right to accept such offer until the Trustee has sold
the shares held in the Trust pursuant to Section 7.3.4. Upon such a sale to the Corporation, the
interest of the Charitable Beneficiary in the shares sold shall terminate and the Trustee shall
distribute the net proceeds of the sale to the Prohibited Owner and any dividends or other
distributions held by the Trustee shall be paid to the Charitable Beneficiary.
Section 7.3.6 Designation of Charitable Beneficiaries. By written notice to the
Trustee, the Corporation shall designate one or more nonprofit organizations to be the Charitable
Beneficiary of the interest in the Trust such that (i) the shares of Capital Stock held in the
Trust would not violate the restrictions set forth in Section 7.2.1(a) in the hands of such
Charitable Beneficiary and (ii) each such organization must be described in Section 501(c)(3) of
the Code and contributions to each such organization must be eligible for deduction under each of
Sections 170(b)(1)(A), 2055 and 2522 of the Code.
Section 7.4 NYSE Transactions. Nothing in this Article VII shall preclude the
settlement of any transaction entered into through the facilities of the NYSE or any other national
securities exchange or automated inter-dealer quotation system. The fact that the settlement of any
transaction occurs shall not negate the effect of any other provision of this Article VII and any
transferee in such a transaction shall be subject to all of the provisions and limitations set
forth in this Article VII.
Section 7.5 Enforcement. The Corporation is authorized specifically to seek equitable
relief, including injunctive relief, to enforce the provisions of this Article VII.
Section 7.6 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.
Section 7.7 Severability. If any provision of this Article VII or any application of
any such provision is determined to be invalid by any federal or state court having jurisdiction
over the issues, the validity of the remaining provisions shall not be affected and other
applications of such provisions shall be affected only to the extent necessary to comply with the
determination of such court.
ARTICLE 8
AMENDMENTS
The Corporation reserves the right from time to time to make any amendment to the Charter, now
or hereafter authorized by law, including any amendment altering the terms or contract rights, as
expressly set forth in the Charter, of any shares of outstanding stock. All rights and powers
conferred by the Charter on stockholders, directors and officers are granted subject to this
reservation. Any amendment to Section 5.8 or to this sentence of the Charter shall be valid only if
approved by the affirmative vote of two thirds of all the votes entitled to be cast on the matter.
ARTICLE 9
LIMITATION OF LIABILITY
To the maximum extent that Maryland law in effect from time to time permits limitation of the
liability of directors and officers of a corporation, no present or former director
or officer of the Corporation shall be liable to the Corporation or its stockholders for money
damages. Neither the amendment nor repeal of this Article IX, nor the adoption or amendment of any
other provision of the charter or Bylaws inconsistent with this Article IX, shall apply to or
affect in any respect the applicability of the preceding sentence with respect to any act or
failure to act which occurred prior to such amendment, repeal or adoption.
THIRD: The amendment to and restatement of the Charter as hereinabove set forth have
been duly advised by the Board of Directors and approved by the stockholders of the Corporation as
required by law.
FOURTH: The current address of the principal office of the Corporation is as set forth
in Article IV of the foregoing amendment and restatement of the Charter.
FIFTH: The name and address of the Corporations current resident agent is as set
forth in Article IV of the foregoing amendment and restatement of the Charter.
SIXTH: The number of directors of the Corporation and the names of those currently in
office are as set forth in Article V of the foregoing amendment and restatement of the Charter.
SEVENTH: The total number of shares of stock which the Corporation had authority to
issue immediately prior to this amendment and restatement was 1,000, consisting of 1,000 shares of
Common Stock, $.001 par value per share. The aggregate par value of all shares of stock having par
value was $1.00.
EIGHTH: The total number of shares of stock which the Corporation has authority to
issue pursuant to the foregoing amendment and restatement of the Charter is 350,000,000, consisting
of 250,000,000 shares of Common Stock, $.001, par value per share, and 100,000,000 shares of
Preferred Stock, $.001 par value per share. The aggregate par value of all authorized shares of
stock having par value is $350,000.
NINTH: The undersigned President acknowledges these Articles of Amendment and
Restatement to be the corporate act of the Corporation and as to all matters or facts required to
be verified under oath, the undersigned President acknowledges that to the best of his knowledge,
information and belief, these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment and Restatement to
be signed in its name and on its behalf by its President and attested to by its Secretary on this
2nd day of September, 2010.
ATTEST: | CARE INVESTMENT TRUST INC. | |||||||
/s/
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By: | /s/ | (SEAL) | |||||
Secretary
|
President |