Attached files
Exhibit 3.1 Amendment No. 4 to Declaration of Trust
Pittsburgh & West Virginia Railroad (the "Trust")
Amendment No. 4 to Declaration of Trust
This AMENDMENT NO. 4 to the Declaration of Trust (the "Amendment")
effective October 17, 2011.
WHERAS, the original Declaration of Trust (the "Original
Declaration") was filed with the SEC on a Form 8-K Amendment to Annual
Report on Form 10-K for the year ended December 31, 1988 and was amended on
February 14, 2011, May 16, 2011 and August 11, 2011, (the "Third Amended
Declaration"); and
WHERAS, the Trustees, deeming it desirable and in the Trust's best
interest to amend the Third Amended Declaration, hereby duly adopt this
Amendment.
NOW THEREFORE, the Third Amended Declaration is hereby amended as set
forth herein below.
1. New Article VIII. A new Article VIII is hereby inserted to read
in its entirety as follows:
"
ARTICLE VIII
Restriction on Share Ownership
8.1 Definitions. For the purpose of this Article VIII,
the following terms shall have the following meanings:
Beneficial Ownership. The term "Beneficial Ownership" shall mean
ownership of Shares by a Person, whether the interest in Shares 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, New York are authorized or required
by law, regulation or executive order to close.
Charitable Beneficiary. The term "Charitable Beneficiary" shall
mean one or more beneficiaries of the Charitable Trust as determined
pursuant to Section 8.3.7, provided that each such organization must be
described in Sections 501(c)(3), 170(b)(1)(A) and 170(c)(2) of the Code.
Charitable Trust. The term "Charitable Trust" shall mean any
trust provided for in Section 8.2.1(b)(i) and Section 8.3.1.
Charitable Trustee. The term "Charitable Trustee" shall mean the
Person unaffiliated with the Trust and a Prohibited Owner, that is
appointed by the Trust to serve as trustee of the Charitable Trust.
Constructive Ownership. The term "Constructive Ownership" shall
mean ownership of Shares by a Person who is or would be treated as an owner
of such Shares either actually or constructively through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The
terms "Constructive Owner," "Constructively Own," "Constructively Owns" and
"Constructively Owned" shall have the correlative meanings.
Designated Investment Entity. The term "Designated Investment
Entity" shall mean either (i) a pension trust that qualifies for look-
through treatment under Section 856(h) of the Code, (ii) an entity that
qualifies as a regulated investment company under Section 851 of the Code,
or (iii) a Qualified Investment Manager; provided that each beneficial
owner of such entity would satisfy the Ownership Limit if such beneficial
owner owned directly its proportionate share of the Shares that are held by
such Designated Investment Entity.
Designated Investment Entity Limit. The term "Designated
Investment Entity Limit" shall mean with respect to the Shares, 9.9% (in
value or number of shares, whichever is more restrictive) of the
outstanding Shares.
Initial Date. The term "Initial Date" shall mean the date first
written above.
Market Price. The term "Market Price" on any date shall mean,
with respect to any class or series of outstanding Shares, the Closing
Price for such Shares on such date. The "Closing Price" on any date shall
mean the last sale price for such Shares, 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 Shares, in either case, as reported on the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which
such Shares are listed or admitted to trading or, if such Shares are 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 Shares are 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 Shares
selected by the Board of Trustees or, in the event that no trading price is
available for such Shares, the fair market value of Shares, as determined
in good faith by the Board of Trustees.
NYSE Amex. The term "NYSE Amex" shall mean The New York Stock
Exchange Amex.
Ownership Limit. The term "Ownership Limit" shall mean with
respect to the Shares, 9.9% (in value or number of shares, whichever is
more restrictive) of the outstanding Shares.
Person. The term "Person" shall mean an individual, corporation,
partnership, 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.
Prohibited Owner. The term "Prohibited Owner" shall mean, with
respect to any purported Transfer, any Person who, but for the provisions
of Section 8.2.1, would Beneficially Own Shares, and if appropriate in the
context, shall also mean any Person who would have been the record owner of
Shares that the Prohibited Owner would have so owned.
Qualified Investment Manager. The term "Qualified Investment
Manager" shall mean an entity (i) who for compensation engages in the
business of advising others as to the value of securities or as to the
advisability of investing in, purchasing, or selling securities; (ii) who
purchases securities in the ordinary course of its business and not with
the purpose or effect of changing or influencing control of the Trust, nor
in connection with or as a participant in any transaction having such
purpose or effect, including any transaction subject to Rule 13d-3(b) under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(iii) who has or shares voting power and investment power within the
meaning of Rule 13d-3(a) under the Exchange Act. A Qualified Investment
Manager shall be deemed to beneficially own all Shares beneficially owned
by each of its affiliates, after application of the beneficial ownership
rules under Section 13(d)(3) of the Exchange Act; provided such affiliate
meets the requirements set forth in the preceding clause (ii).
Restriction Termination Date. The term "Restriction Termination
Date" shall mean the first day after the Initial Date on which the Board of
Trustees determines that it is no longer in the best interests of the Trust
to attempt to, or continue to, qualify as a REIT or that compliance with
the restrictions and limitations on Beneficial Ownership and Transfers of
Shares set forth herein is no longer required in order for the Trust 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 any
agreement to take any such actions or cause any such events, of Shares or
the right to vote or receive dividends or distributions on Shares,
including (a) a change in the capital structure of the Trust, (b) a change
in the relationship between two or more Persons which causes a change in
ownership of Shares by application of Section 544 of the Code, as modified
by Section 856(h) of the Code, (c) the granting or exercise of any option
or warrant (or any disposition of any option or warrant), pledge, security
interest, or similar right to acquire Shares, (d) any disposition of any
securities or rights convertible into or exchangeable for Shares or any
interest in Shares or any exercise of any such conversion or exchange right
and (e) Transfers of interests in other entities that result in changes in
Beneficial Ownership of Shares; in each case, whether voluntary or
involuntary, whether owned of record, Beneficially Owned and whether by
operation of law or otherwise. The terms "Transferring" and "Transferred"
shall have the correlative meanings.
8.2 Shares.
8.2.1 Ownership Limitations. During the period commencing
on the Initial Date and prior to the Restriction Termination Date:
(a) Basic Restrictions.
(i) No Person shall Beneficially Own or
Constructively Own Shares in excess of the Ownership Limit, other than a
Designated Investment Entity, which shall not Beneficially Own or
Constructively Own Shares in excess of the Designated Investment Entity
Limit; and
(ii) No Person shall Beneficially Own or
Constructively Own Shares to the extent that (1) such Beneficial Ownership
of Shares would result in the Trust 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 (2) such
Beneficial Ownership or Constructive Ownership of Shares would result in
the Trust otherwise failing to qualify as a REIT.
(iii) No Person shall Transfer any Shares if, as
a result of the Transfer, the Shares would be beneficially owned by less
than 100 Persons (determined without reference to the rules of attribution
under Section 544 of the Code). Any Transfer of Shares that, if effective,
would result in Shares 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.
(b) Transfer in Trust. If any Transfer of Shares
occurs which, if effective, would result in any Person Beneficially Owning
or Constructively Owning Shares in violation of Section 8.2.1(a)(i) or
(ii),
(i) then that number of Shares the Beneficial
Ownership or Constructive Ownership of which otherwise would cause such
Person to violate Section 8.2.1(a)(i) or (ii) (rounded up to the nearest
whole Share) shall be automatically transferred to a Charitable Trust for
the benefit of a Charitable Beneficiary, as described in Section 8.3,
effective as of the close of business on the Business Day prior to the date
of such Transfer, and such Person shall acquire no rights in such Shares;
or
(ii) if the transfer to the Charitable Trust
described in clause (i) of this sentence would not be effective for any
reason to prevent the violation of Section 8.2.1(a)(i) or (ii), then the
Transfer of that number of Shares that otherwise would cause any Person to
violate Section 8.2.1(a)(i) or (ii) shall be void ab initio, and the
intended transferee shall acquire no rights in such Shares.
8.2.2 Remedies for Breach. If the Board of Trustees or
any duly authorized committee thereof shall at any time determine in good
faith that a Transfer or other event has taken place that results in a
violation of Section 8.2.1 or that a Person intends to acquire or has
attempted to acquire Beneficial Ownership of any Shares in violation of
Section 8.2.1 (whether or not such violation is intended), the Board of
Trustees or a committee thereof 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 Trust to redeem Shares,
refusing to give effect to such Transfer on the books of the Trust 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 8.2.1 shall automatically result in the transfer to
the Charitable 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 Trustees or a committee thereof.
8.2.3 Notice of Restricted Transfer. Any Person who
acquires or attempts or intends to acquire Beneficial or Constructive
Ownership of Shares that will or may violate Section 8.2.1(a), or any
Person who would have owned Shares that resulted in a transfer to the
Charitable Trust pursuant to the provisions of Section 8.2.1(b), shall
immediately give written notice to the Trust of such event, or in the case
of such a proposed or attempted transaction, shall give at least 15 days
prior written notice, and shall provide to the Trust such other information
as the Trust may request in order to determine the effect, if any, of such
acquisition or ownership on the Trust's status as a REIT.
8.2.4 Owners Required To Provide Information. From the
Initial Date and prior to the Restriction Termination Date:
(a) every owner of more than two (2) percent (or such
lower percentage as required by the Code or the Treasury Regulations
promulgated thereunder) of the outstanding Shares, within 30 days after the
end of each taxable year, shall give written notice to the Trust stating
the name and address of such owner, the number of Shares Beneficially Owned
and a description of the manner in which such Shares are held; provided,
that a shareholder of record who holds outstanding Shares as nominee for
another Person, which other Person is required to include in gross income
the dividends or distributions received on such Shares (an "Actual Owner"),
shall give written notice to the Trust stating the name and address of such
Actual Owner and the number of Shares of such Actual Owner with respect to
which the shareholder of record is nominee. Each owner shall provide to the
Trust such additional information as the Trust may request in order to
determine the effect, if any, of such Beneficial Ownership on the Trust's
status as a REIT and to ensure compliance with the Ownership Limit or
Designated Investment Entity Limit applicable to such owner; and
(b) each Person who is a Beneficial Owner of Shares
and each Person (including the shareholder of record) who is holding Shares
for a Beneficial Owner shall provide to the Trust such information as the
Trust may request, in good faith, in order to determine the Trust's status
as a REIT and to comply with requirements of any taxing authority or
governmental authority or to determine such compliance.
8.2.5 Remedies Not Limited. Subject to Sections 4.7 and
8.4 of the Declaration of Trust, nothing contained in this Section 8.2
shall limit the authority of the Board of Trustees to take such other
action as it deems necessary or advisable to protect the Trust and the
interests of its shareholders in preserving the Trust's status as a REIT.
8.2.6 Ambiguity. In the case of an ambiguity in the
application of any of the provisions of this Section 8.2, Section 8.3 or
any definition contained in Section 8.1, the Board of Trustees shall have
the power to determine the application of the provisions of this
Section 8.2 or Section 8.3 with respect to any situation based on the facts
known to it. If Section 8.2 or 8.3 requires an action by the Board of
Trustees and the Declaration of Trust fails to provide specific guidance
with respect to such action, the Board of Trustees shall have the power to
determine the action to be taken so long as such action is not contrary to
the provisions of Sections 8.1, 8.2 or 8.3.
8.2.7 Exemptions from the Ownership Limit.
(a) The Board, in its sole discretion, may exempt,
prospectively or retroactively, a Person from the Ownership Limit or
Designated Investment Entity Limit if: (i) such Person submits to the Board
information satisfactory to the Board, in its reasonable discretion,
demonstrating that such Person is not an individual for purposes of
Section 542(a)(2) of the Code (determined taking into account
Section 856(h)(3)(A) of the Code); (ii) such Person submits to the Board
information satisfactory to the Board, in its reasonable discretion,
demonstrating that no Person who is an individual for purposes of
Section 542(a)(2) of the Code (determined taking into account
Section 856(h)(3)(A) of the Code) would be considered to Beneficially Own
Shares in excess of the Ownership Limit or Designated Investment Entity
Limit by reason of such Person's ownership of Shares in excess of the
Ownership Limit or Designated Investment Entity Limit pursuant to the
exemption granted under this subparagraph (a); (iii) such Person submits to
the Board information satisfactory to the Board, in its reasonable
discretion, demonstrating that clause (2) of subparagraph (a)(ii) of
Section 8.2.1 will not be violated by reason of such Person's ownership of
Shares in excess of the Ownership Limit or Designated Investment Entity
Limit pursuant to the exemption granted under this subparagraph (a); and
(iv) such Person provides to the Board such representations and
undertakings, if any, as the Board may, in its reasonable discretion,
require to ensure that the conditions in clauses (i), (ii) and (iii) hereof
are satisfied and will continue to be satisfied throughout the period
during which such Person owns Shares in excess of the Ownership Limit or
Designated Investment Entity Limit pursuant to any exemption thereto
granted under this subparagraph (a), and such Person agrees that any
violation of such representations and undertakings or any attempted
violation thereof will result in the application of the remedies set forth
in Section 8.2 with respect to Shares held in excess of the Ownership Limit
or Designated Investment Entity Limit with respect to such Person
(determined without regard to the exemption granted such Person under this
subparagraph (a)).
(b) Prior to granting any exemption pursuant to
subparagraph (a), the Board, in its sole and absolute discretion, may
require a ruling from the IRS or an opinion of counsel, in either case in
form and substance satisfactory to the Board, in its sole and absolute
discretion as it may deem necessary or advisable in order to determine or
ensure the Trust's status as a REIT; provided, however, that the Board
shall not be obligated to require obtaining a favorable ruling or opinion
in order to grant an exception hereunder.
(c) Subject to Section 8.2.1(a)(ii), an underwriter
that participates in a public offering or a private placement of Shares (or
securities convertible into or exchangeable for Shares) may Beneficially
Own or Constructively Own Shares (or securities convertible into or
exchangeable for Shares) in excess of the Ownership Limit or Designated
Investment Entity Limit, but only to the extent necessary to facilitate
such public offering or private placement.
8.2.8 Increase in Ownership Limit or Designated
Investment Entity Limit. The Board of Trustees may increase the Ownership
Limit or Designated Investment Entity Limit for one or more Persons and
decrease the Ownership Limit or Designated Investment Entity Ownership
Limit for all other Persons subject to the limitations provided in this
Section 8.2.8.
(a) The decreased Ownership Limit and/or Designated
Investment Entity Ownership Limit will not be effective for any Person
whose percentage ownership of Shares is in excess of such decreased
Ownership Limit and/or Designated Investment Entity Ownership Limit until
such time as such Person's percentage of Shares equals or falls below the
decreased Ownership Limit and/or Designated Investment Entity Ownership
Limit, but any further acquisition of Shares in excess of such percentage
ownership of Shares will be in violation of the Ownership Limit and/or
Designated Investment Entity Ownership Limit.
(b) The Ownership Limit or Designated Investment
Entity Limit may not be increased if, after giving effect to such increase,
five Persons who are considered individuals pursuant to Section 542 of the
Code, as modified by Section 856(h)(3) of the Code, could Beneficially Own,
in the aggregate, more than 49% of the value of the outstanding Shares.
(c) Prior to the modification of the Ownership Limit
or Designated Investment Entity Limit pursuant to this Section 8.2.8, the
Board, in its sole and absolute discretion, may require such opinions of
counsel, affidavits, undertakings or agreements as it may deem necessary or
advisable in order to determine or ensure the Trust's status as a REIT if
the modification in the Ownership Limit or Designated Investment Entity
Limit were to be made.
8.2.9 Legend. Each newly issued or replaced certificate
for Shares shall bear substantially the following legend:
The shares evidenced by this certificate are subject to restrictions on
Beneficial Ownership, Constructive Ownership and Transfer. Subject to
certain further restrictions and except as expressly provided in the
Trust's Declaration of Trust, no Person may Beneficially Own or
Constructively Own Shares in excess of 9.9% (in value or number of shares,
whichever is more restrictive) of the outstanding Shares, other than a
Designated Investment Entity; (ii) no Designated Investment Entity may
Beneficially Own or Constructively Own Shares in excess of 9.9% (in value
or number of shares, whichever is more restrictive) of the outstanding
Shares; (iii) no Person may Beneficially Own Shares that would result in
the Trust being "closely held" under Section 856(h) of the Internal Revenue
Code of 1986 (the "Code") or otherwise cause the Trust to fail to qualify
as a real estate investment trust under the Code; and (v) no Person may
Transfer Shares if such Transfer would result in Shares of the Trust being
owned by fewer than 100 Persons. Any Person who Beneficially Owns or
Constructively Owns or attempts to Beneficially Own or Constructively Own
Shares which cause or will cause a Person to Beneficially Own or
Constructively Own Shares in excess or in violation of the limitations set
forth in the Declaration of Trust must immediately notify the Trust. If any
of the restrictions on transfer or ownership are violated, the Shares
evidenced hereby will be automatically transferred to a Charitable Trustee
of a Charitable Trust for the benefit of one or more Charitable
Beneficiaries. In addition, the Trust may redeem Shares upon the terms and
conditions specified by the Board of Trustees in its sole discretion if the
Board of Trustees determines that ownership or a Transfer or other event
may violate the restrictions described above. Furthermore, upon the
occurrence of certain events, attempted Transfers in violation of the
restrictions described above may be void ab initio. A Person who attempts
to Beneficially Own or Constructively Own Shares in violation of the
ownership limitations described above shall have no claim, cause of action,
or any recourse whatsoever against a transferor of such Shares. All
capitalized terms in this legend have the meanings defined in the
Declaration of Trust, 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 Shares on request and without charge.
Instead of the foregoing legend, the newly issued or replaced certificate
may state that the Trust will furnish a full statement about certain
restrictions on transferability to a shareholder on request and without
charge.
8.3 Transfer of Shares in Trust.
8.3.1 Ownership in Trust. Upon any purported Transfer or
other event described in Section 8.2.1(b) that would result in a transfer
of Shares to a Charitable Trust, such Shares shall be deemed to have been
transferred to the Charitable Trustee as trustee of a Charitable Trust for
the exclusive benefit of one or more Charitable Beneficiaries. Such
transfer to the Charitable 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 Charitable Trust
pursuant to Section 8.2.1(b). The Charitable Trustee shall be appointed by
the Trust and shall be a Person unaffiliated with the Trust and any
Prohibited Owner. Each Charitable Beneficiary shall be designated by the
Trust as provided in Section 8.3.7.
8.3.2 Status of Shares Held by the Charitable Trustee.
Shares held by the Charitable Trustee shall be issued and outstanding
Shares of the Trust. The Prohibited Owner shall have no rights in the
Shares held by the Charitable Trustee. The Prohibited Owner shall not
benefit economically from ownership of any Shares held in trust by the
Charitable 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 Charitable Trust. The Prohibited
Owner shall have no claim, cause of action, or any other recourse
whatsoever against the purported transferor of such Shares.
8.3.3 Dividend and Voting Rights. The Charitable Trustee
shall have all voting rights and rights to dividends or other distributions
with respect to Shares held in the Charitable Trust, which rights shall be
exercised for the exclusive benefit of the Charitable Beneficiary. Any
dividend or other distribution paid prior to the discovery by the Trust
that Shares have been transferred to the Charitable Trustee shall be paid
with respect to such Shares to the Charitable Trustee upon demand by
Prohibited Owner and any dividend or other distribution authorized but
unpaid shall be paid when due to the Charitable Trustee. Any dividends or
distributions so paid over to the Charitable 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 Charitable Trust and, subject to
Maryland law, effective as of the date that Shares have been transferred to
the Charitable Trustee, the Charitable Trustee shall have the authority (at
the Charitable Trustee's sole discretion) (i) to rescind as void any vote
cast by a Prohibited Owner prior to the discovery by the Trust that Shares
have been transferred to the Charitable Trustee and (ii) to recast such
vote in accordance with the desires of the Charitable Trustee acting for
the benefit of the Charitable Beneficiary; provided, however, that if the
Trust has already taken irreversible action, then the Charitable Trustee
shall not have the power to rescind and recast such vote. Notwithstanding
the provisions of this Article VIII, until the Trust has received
notification that Shares have been transferred into a Charitable Trust, the
Trust shall be entitled to rely on its share transfer and other shareholder
records for purposes of preparing lists of shareholders entitled to vote at
meetings, determining the validity and authority of proxies and otherwise
conducting votes of shareholders.
8.3.4 Rights Upon Liquidation. Upon any voluntary or
involuntary liquidation, dissolution or winding up of or any distribution
of the assets of the Trust, the Charitable Trustee shall be entitled to
receive, ratably with each other holder of Shares of the class or series of
Shares that is held in the Charitable Trust, that portion of the assets of
the Trust available for distribution to the holders of such class or series
(determined based upon the ratio that the number of Shares or such class or
series of Shares held by the Charitable Trustee bears to the total number
of Shares of such class or series of Shares then outstanding). The
Charitable Trustee shall distribute any such assets received in respect of
the Shares held in the Charitable Trust in any liquidation, dissolution or
winding up of, or distribution of the assets of the Trust, in accordance
with Section 8.3.5.
8.3.5 Sale of Shares by Charitable Trustee. Within 20
days of receiving notice from the Trust that Shares have been transferred
to the Charitable Trust, the Charitable Trustee of the Charitable Trust
shall sell the Shares held in the Charitable Trust to a person, designated
by the Charitable Trustee, whose ownership of the Shares will not violate
the ownership limitations set forth in Section 8.2.1(a). Upon such sale,
the interest of the Charitable Beneficiary in the Shares sold shall
terminate and the Charitable Trustee shall distribute the net proceeds of
the sale to the Prohibited Owner and to the Charitable Beneficiary as
provided in this Section 8.3.5. 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 Charitable 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
Charitable Trust and (2) the price per share received by the Charitable
Trustee from the sale or other disposition of the Shares held in the
Charitable Trust. The Charitable Trust may deduct any expenses incurred,
including without limitation legal expenses, from the sales proceeds
payable to the Prohibited Owner. 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 Trust that Shares
have been transferred to the Charitable Trustee, such Shares are sold by a
Prohibited Owner, then (i) such Shares shall be deemed to have been sold on
behalf of the Charitable 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 8.3.5,
such excess shall be paid to the Charitable Trustee upon demand by
Prohibited Owner. The Charitable Trustee shall have the right and power
(but not the obligation) to offer any Share held in trust for sale to the
Trust on such terms and conditions as the Charitable Trustee shall deem
appropriate.
8.3.6 Purchase Right in Shares Transferred to the
Charitable Trustee. Shares transferred to the Charitable Trustee shall be
deemed to have been offered for sale to the Trust, 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 Charitable 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 Trust, or its designee,
accepts such offer. The Trust shall have the right to accept such offer
until the Charitable Trustee has sold the Shares held in the Charitable
Trust pursuant to Section 8.3.5. Upon such a sale to the Trust, the
interest of the Charitable Beneficiary in the Shares sold shall terminate
and the Charitable Trustee shall distribute the net proceeds of the sale to
the Prohibited Owner.
8.3.7 Designation of Charitable Beneficiaries. By
written notice to the Charitable Trustee, the Trust shall designate one or
more nonprofit organizations to be the Charitable Beneficiary of the
interest in the Charitable Trust such that (i) Shares held in the
Charitable Trust would not violate the restrictions set forth in
Section 8.2.1(a) in the hands of such Charitable Beneficiary and (ii) each
such organization must be described in Sections 501(c)(3), 170(b)(1)(A) or
170(c)(2) of the Code.
8.4 Transactions on Exchange. Nothing in this
Article VIII shall preclude the settlement of any transaction entered into
through the facilities of the NYSE Amex or any other national securities
exchange or automated inter-dealer quotation system. The fact that the
settlement of any transaction takes place shall not negate the effect of
any other provision of this Article VIII and any transferee in such a
transaction shall be subject to all of the provisions and limitations set
forth in this Article VIII.
8.5 Enforcement. The Trust is authorized specifically
to seek equitable relief, including injunctive relief, to enforce the
provisions of this Article VIII.
8.6 Non-Waiver. No delay or failure on the part of the
Trust or the Board of Trustees in exercising any right hereunder shall
operate as a waiver of any right of the Trust or the Board of Trustees, as
the case may be, except to the extent specifically waived in writing."
2. Continued Effect. Other than as amended by this Amendment, the
remaining terms and provisions of the Third Amended Declaration remain
unchanged and in full force and effect.
