Exhibit 9 (a)(1)
A true Copy Witnessed under the Great
Seal of the Commonwealth of Massachusetts.
/s/ Paul Guzzi
-------------------
Paul Guzzi
Secretary of the Commonwealth.
/s/ John Grace
-------------------
Deputy Secretary.
HUBBARD REAL ESTATE INVESTMENTS
Certificate of Amendment of Fourth
Amended and Restated Declaration of Trust
The undersigned, a Trustee of Hubbard Real Estate Investments (the
"Trust"), hereby certifies pursuant to Section 1.3 of the Fourth Amended and
Restated Declaration of Trust (the "Declaration of Trust"), that at a meeting of
shareholders of the Trust duly called and held on March 29, 1977 in accordance
with said declaration of Trust, at which a quroum of shareholders was present
and voting throughout, the holders of not less than a majority of the aggregate
number of shares of beneficial interest of the Trust then outstanding and
entitled to vote thereon voted to amend the Declaration of Trust by amending
Section 8.4 thereof to read as follows:
SECTION 8.4. Other Activities of the Advisor. The Advisor which the
Trustees employ or with which they contract and any office director, employee or
shareholder of the Adviser who may also be a Trustee, officer or employee of the
Trust, may engage in other activities, including acquiring, managing, operating,
disposing of and otherwise dealing in property of all types, real, personal and
mixed, tangible and intangible, and acting as a broker for, and/or rendering
advice and other services to, other Persons in connection with the sale of
purchase of real estate of Mortgages and the management of its or his own
investments and the investment of other Persons and may be compensated for any
such advice or service by such other Person. Where the Adviser originates or
arranges the acquisition or disposition of a Trust investment, it may receive a
brokerage commission or other compensation therefor from the seller or buyer or
other Person, provided that except upon termination or non-renewal of the
contract with the Adviser, such commission or other compensation is required to
be deducted from future advisory fees otherwise payable by the Trust to the
Adviser. The Adviser may also receive a brokerage commission or other
compensation from a participant for services rendered to such participant in a
real estate, mortgage or other investment in which the Trust has invested
Affiliates of the Adviser may receive compensation from the Trust or other
Persons in connection with investments and activities of the Trust and such
compensation shall not be required to be deducted form advisory fees otherwise
payable by the Trust to the Adviser.
The undersigned further certifies that, pursuant to Section 10 thereof,
such Declaration of Trust has bee amended as aforesaid, effective upon the
filing of this Certificate of Amendment in the Office of the Secretary of the
Commonwealth of Massachusetts.
WITNESS may hand this 29th day of March, 1977.
/s/ Brinley M. Hall
----------------------
Brinley M. Hall - Trustee
COMMONWEALTH OF MASSACHUSETTS |
> ss:
COUNTY OF SUFFOLK |
On this 29th day of March, 1977, before me personally appeared Brinley M.
Hall, who executed the foregoing instrument and acknowledged that he executed
the same as his free act and deed and the free act and deed of the Trustee of
Hubbard Real Estate Investments.
/s/ Ann Adams Hurley
---------------------
Notary Public
SEAL
My Commission Expires:
ANN ADAMS HURLEY
NOTARY PUBLIC
My commission expires June 18, 1978
HUBBARD REAL ESTATE INVESTMENTS
Certificate of Amendment of
Fourth Amended and Restated
Declaration of Trust
The undersigned, a Trustee of Hubbard Real Estate Investments (the
"Trust") hereby certifies pursuant to Section 11.3 of the Fourth Amended and
Restated Declaration of Trust (the "Declaration of Trust"), of the Trust, that
at a meeting of shareholders of the Trust duly called and held on March 9, 1982
in accordance with said Declaration of Trust, at which a quorum of shareholders
was present and voting throughout, the holders of not less than a majority of
the aggregate number of shares of beneficial interest of the Trust then
outstanding and entitled to vote thereon voted to amend the Declaration of Trust
in the following respects:
SECTION 6.19. To amend Section 6.19 of the Declaration of Trust to read in
its entirety as follows:
SECTION 6.19. Redemption of Shares; Disclosure of Holding. In the
event that any Person, or Persons acting as a group, shall at any time
acquire ownership in the aggregate of more than 9.9% of the outstanding
Common Shares of this Trust, the Trustees may redeem such shares in excess
of 9.9% (the "Excess Shares"). Any such redemption right may be exercised
at any time but in no event later than 60 days after the Trustees shall
have received written notice from such Person or Persons regarding such
acquisition. After such 60 day period, the foregoing redemption right
shall extend only to any Excess Shares not referred to in such notice and
may be exercised at any time but in no event later than 60 days after the
Trustees shall have received a similar notice regarding such additional
Excess Shares. The redemption price shall be equal to the fair market
value of the Shares as reflected in the latest bid quotation for the
Shares (if then traded over-the-counter) or the closing sale price (if
then listed on a national securities exchange) of such Shares as of the
business day, preceding the day on which notice of redemption is sent, or,
if no quotations or closing sale price for the Shares are available, as
determined in good faith by the Trustees. From and after the date fixed
for redemption by the Trustees, the holder of any Shares so called for
redemption shall cease to be entitled to dividends, voting rights and
other benefits with respect to such Shares excepting only the right to
payment of the redemption price fixed as aforesaid. The right of
redemption in this Section shall not apply to Excess Shares or additional
Excess Shares acquired as a result of an offer for all outstanding Common
Shares of the Trust. For the purpose of this Section 6.19, the term
"ownership" of Shares shall be defined in accordance with or by reference
to the qualfication requirements of the REIT Provisions of the Internal
Revenue Code and shall also mean ownership as defined under Rule 13(d), as
in effect on January 15, 1982, promulgated by the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934; and the term
"group" shall have the same meaning as that term has for purposes of such
Rule 13(d), as in effect on January 15, 1982.
The Shareholders shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of
Shares as the Trustees deem necessary to comply with the provisions of the
Internal Revenue Code, or to comply with the requirements of any other
taxing authority.
SECTION 6.22. To amend Section 6.22 of the Declaration of Trust to read in
its entirety as follows:
SECTION 6.22. Limitation of Pre-emptive Rights. Holders of Common
Shares shall have no pre-emptive rights with respect to any Shares of any
class or series or any Securities of the Trust which evidence indebtedness
(or any Shares into which such Securities of the Trust may be converted)
sold, offered or issued by the Trust. Holders of any series of Preferred
Shares shall have pre-emptive rights only to the extent, if any, provided
in the provisions of such series.
SECTION 6.23. To amend Section 6.23 of the Declaration of Trust to read in
its entirety an follows:
SECTION 6.23. Dividend Investment and Share Purchase Plans. Subject
to the provisions of any series of Preferred Shares at the time
outstanding, the Trustees may establish from time to time one or more
plans for holders of Common Shares which may permit Shareholders to invest
dividends in Common Shares and which may also permit Shareholders to
purchase additional Common Shares. The Trustees may amend, modify, alter
and terminate any such plans. Any such plans may include a provision
fixing the purchase price at such price as the Trustees shall from time to
time determine, which price may be below market price or book value, or
both, of the Common Shares.
The undersigned further certifies that, pursuant to Section 10.1 thereof,
such Declaration of Trust has been amended as aforesaid, effective upon filing
of this Certificate of Amendment in the Office of the Secretary of The
Commonwealth of Massachusetts.
WTTNESS my hand this 9th day of March, 1982.
/s/ Brinley M. Hall
----------------------------
Brinley M. Hall - Trustee
HUBBARD REAL ESTATE INVESTMENTS
Certificate of Amendement of
Fourth Amended and Restated
Declaration of Trust
The undersigned, a Trustee of Hubbard Real Estate Investments (the
"Trust") hereby certifies pursuant to Section 11.3 of the Fourth Amended and
Restated Declaration of Trust (the "Declaration of Trust"), of the Trust, that
at a meeting of shareholders of the Trust duly called and held on March 12, 1985
in accordance with said Declaration of Trust, at which a quorum of shareholders
was present and voting throughout, the holders of not less than a majority of
the aggregate number of shares of beneficial interest of the Trust then
outstanding and entitled to vote thereon voted to amend the Declaration of Trust
in the following respect:
To amend the second paragraph of Section 1.1 of the Declaration of Trust
to read in its entirety as follows:
Upon the written request of Hubbard Advisory Corporation ("HAC") or
any successor to HAC made no later than 30 days after termination or
expiration of the Advisory Agreement dated as of May 1, 1981 between the
Trust and HAC, as the same may be amended from time to time (such
termination or expiration being hereinafter referred to as the
"termination"), the Trustees shall not later than the earlier of (a) 9
months following the termination or 9 months following the date of such
request, whichever is later, or (b) following the termination, offering
securities in a firm commitment or best efforts underwritten public
offering registered with the Securities and Exchange Commission or in a
firm commitment or best efforts underwritten private offering of equity
securities of the Trust involving more than 35 purchasers, without any
vote or consent of the Shareholders being required, amend the Declaration
of Trust of the Trust to change the name of the Trust to "HRE Properties"
or other name selected by the Trustees which does not' include "Hubbard"
or any approximation thereof including any name using the three or four
letters "Hub" or "Hubb." Upon the effectiveness of such name change, HAC
or its successor shall promptly pay the Trust $50,000 in lieu and in full
discharge of any reimbursement by HAC or its successor of any and all
expenses incurred by the Trust in operation with such name change. In no
event shall the Trust be required to change its name less that 60 days
following the later of the foregoing written request or the termination.
The undersigned further certifies that, pursuant to Section 10.1 thereof,
such Declaration of Trust has been amended as aforesaid, effectve uoon filing of
this Certificate of Amendment in the Office of the Secretary of The Commonwealth
of Massachusetts.
WITNESS my hand this 29th day of March, 1985.
/s/ William F. Murdoch, Jr.
----------------------------
William F. Murdoch, Jr.
HRE PROPERTIES
Certificate of Amendment of
Fourth Amended and Restated
Declaration of Trust
The undersigned, a Trustee of HRE Properties (formerly named Hubbard Real
Estate Investments) (the 'Trust") hereby certifies pursuant to Section 11.3 of
the Fourth Amended and Restated Declaration of Trust (the "Declaration of
Trust"), of the Trust, that at a meeting of shareholders of the Trust duly
called and held on March 18, 1987 in accordance with said Declaration of Trust,
at which a quorum of shareholders was present and voting throughout, the holders
of not less than a majority of the aggregate number of shares of beneficial
interest of the Trust then outstanding and entitled to vote thereon voted' to
amend Sections 5.1, 5.2 and 5.3 of the Declaration of Trust to read as set forth
in Appendix A to this certificate.
The undersigned further certifies that, pursuant to Section 10.1 thereof,
such Declaration of Trust has been amended as aforesaid, effective upon filing
of this Certificate of Amendment in the Office of the Secretary of The
Commonwealth of Massachusetts.
WITNESS my hand this 19th day of March, 1987.
/s/ William F. Murdoch, Jr.
-----------------------------------
William F. Murdoch, Jr. - Trustee
APPENDIX A
Amendments to Sections 5.1, 5.2 and 5.3 of
Declaration of Trust of HRE Properties
Adopted at Meeting of Shareholders
Held on March 18, 1987
-------------------------------------------
VOTED: That Sections 5.1, 5.2 and 5.3 of the Declaration of Trust of HRE
Properties be and they hereby are amended to read in their entirety
as set forth below, and that invalidity or unenforceability of any
of the provisions set forth below shall not affect the validity or
enforceability of the remainder of such provisions:
Section 5.1. No Personal Liability of Shareholders, Trustees, etc.. No
Shareholder shall be subject to any personal liability whatsoever to any other
Person in connection with Trust Property or the affairs of the Trust and no
Trustee, officer, employee or agent of the Trust, or member of the Board of
Consultants, shall be subject to any personal liability whatsoever, in tort,
contract, or otherwise, to any other Person, in connection with Trust Property
or the affairs of the Trust, save only that arising from his bad faith, willful
misfeasance, gross negligence or reckless disregard of his duties or for his
failure to act in good faith in the reasonable belief that his action was in the
best interests of the Trust; and all such other Persons shall look solely to the
Trust Property for satisfaction of claims of any nature arising in connection
with the affairs of the Trust. If any Shareholder, Trustee, officer, employee,
agent, or member of the Board of Consultants, as such, of this Trust, is made a
party to any suit or proceeding to enforce any such liability, he shall not on
account thereof be hold to any personal liability. The Trust shall indemnify and
hold each Shareholder harmless from and against all claims and liabilities, to
which such may become subject by reason of his being or having been a
Shareholder, and shall reimburse such Shareholder for all legal and other
expenses reasonably him in connection with any such claim or liability. The
rights accruing to a Shareholder under this Section 5.1 shall not exclude any
other right to which such Shareholder may be lawfully entitled, nor shall
anything herein contained restrict the right of the Trust to indemnify or
reimburse a Shareholder in any appropriate situation even though not
specifically provided herein.
Section 5.2. Non-Liability of Trustees, etc. No Trustee, officer or
employee or agent of he Trust or member of the Board of Consultants, shall be
liable to the Trust or to any Shareholder, Trustee, officer, employee, agent or
member of the Board of Consultants thereof for any action or failure to act
(including without limitation the failure to compel in any way any former or
acting Trustee to redress any breach of trust) except for his own bad faith,
willful misfeasance, gross negligence or reckless disregard of his duties or for
his failure to act in good faith in the reasonable belief that his action was in
the best interests of the Trust. Notwithstanding anything in this Article 5 or
in Article 9 or elsewhere in this Declaration of Trust to the contrary and
without in any way increasing the liability of the Trustees beyond that
otherwise provided in this Declaration of Trust, no Trustee of the Trust shall
be liable to the Trust or to any Shareholder, Trustee, officer, employee, agent
or member of the Board of Consultants for monetary damages for breach of
fiduciary duty as a Trustee; provided that such provision shall not eliminate or
limit the liability of a Trustee (i) for any breach of the Trustee's duty of
loyalty to the Trust or its Shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or knowing violation of law, or
(iii) for any transaction from which the Trustee derived an improper personal
benefit.
Section 5.3. Mandatory Indemnification. The Trust shall indemnify each of
its Trustees, officers, employees, agents and members of the Board of
Consultants, if any (including persons who serve at its request as directors,
officers, trustees, employees or agents of any Trust employee benefit plan or
another organization in which it has any interest, as a shareholder, creditor or
otherwise) against all liabilities and expenses, including amounts paid in
satisfaction of judgments, in compromise or as fines and penalties, and counsel
fees, reasonably incurred by him in connection with the defense or disposition
of any action, suit or other proceedings, whether civil or criminal, in which he
may be involved or with which he may be threatened, while in office or
thereafter, by reason of his being or having been such a Trustee, officer,
employee, agent or member of the Board of Consultants, except with respect to
any matter as to which he shall have been adjudicated to have acted in bad
faith, willful misfeasance, reckless disregard of his duties or gross negligence
or not to have acted in good faith in the reasonable belief that his action was
in the best interests of the Trust (however, notwithstanding the foregoing
exception, such indemnification shall extend to Trustees who shall have no
personal liability for monetary damages to the Trust or its Shareholders
pursuant to the last sentence in Section 5.2); provided, however, that as to any
matter disposed of by a compromise payment by such person, pursuant to a consent
decree or otherwise, no indemnification either for said payment or for any other
expenses shall be provided unless .the Trust shall have received a written
opinion from independent legal counsel approved by the Trustees to the effect
either (i) that if the matter of bad faith, willful misfeasance, gross
negligence or reckless disregard of duty or good faith and reasonable belief as
to the best interests of the Trust, had been adjudicated, it would have been
adjudicated in favor of such Person or (ii) if the matter of the personal
liability of a Trustee to the Trust or any Shareholder, Trustee, officer,
employee, agent or member of the Board of Consultants for monetary damages for
breach of fiduciary duty pursuant to the last sentence of Section 5.2, had been
adjudicated, it would have been adjudicated in favor of such Person. A Person
shall be entitled to indemnification if such counsel opines favorably as to
either the matter in clause (i) or the matter in clause (ii).
The rights accruing to any Person under the provisions of this Section 5.3
shall not exclude any other right to which he may be lawfully entitled,
including any provision of the By-laws of the Trust consistent with this Section
5.3, nor shall anything contained herein restrict the right of this Trust to
indemnify or reimburse any Person in any proper case even though not
specifically provided for herein, nor shall anything contained herein restrict
such rights of any Person to contribution as may be available under applicable
law, provided, that no Person may satisfy any right of indemnity or
reimbursement granted herein or in Section 5.1 or to which he may be otherwise
entitled except out of the property of the Trust, and no Shareholder shall be
personally liable to any Person with respect to any claim for indemnity or
reimbursement or otherwise. The Trust may make advance payments (and may agree
in advance to make such advance payments generally or in particular cases) in
connection with indemnification under this Section 5.3, provided that the
indemnified Person shall have given a written undertaking to reimburse the Trust
in the event it is subsequently determined that such Person is not entitled to
such indemnification.
In order to carry out the intent and purposes of this Section 5.3, and to
assure the Trust's performance of its obligations hereunder, the Trust shall
have the power to enter into agreements with Trustees, officers, employees,
agents or members of the Board of Consultants designated by the Trustees,
without specific approval thereof by the shareholders of this Trust. The terms
of any such agreements need not be identical to the terms of any other such
agreement and any such agreement which had been entered into may subsequently be
amended or changed by mutual agreement of the parties thereto, without specific
approval thereof by the shareholders of the Trust.
The Trust shall have the power to dedicate the assets of the Trust to
establish arrangements for funding its indemnification obligations under this
Section 5.3, including but not limited to depositing assets in trust funds,
obtaining bank letters of credit in favor of indemnified Persons, establishing
specific reserve accounts and otherwise funding special self-insurance
arrangements for these purposes.
HRE PROPERTIES
Certificate of Vote of the Trustees
Designating a Series of Preferred Shares
The undersigned, a Trustee of HRE Properties (formerly named Hubbard Real
Estate Investments) (the "Trust") hereby certifies pursuant to Section 11.3 of
the fourth amended and restated Declaration of Trust (the "Declaration of
Trust"), of the Trust, that at a meeting of the Trustees of the Trust duly
called and held on October 27, 1988 in accordance with said Declaration of
Trust, at which a quorum of Trustees were present and voting throughout, no less
than seventy-five percent of the Trustees then in office voted to designate a
series of Preferred Shares pursuant to Section 6.3 of the Declaration of Trust
as set forth in Appendix A to this Certificate.
WITNESS my hand this day of October 27th, 1988.
/s/ William F. Murdoch, Jr.
-----------------------------------
William F. Murdoch, Jr.
Trustee
APPENDIX A
VOTE OF THE TRUSTEES OF HRE PROPERTIES
DESIGNATING A SERIES OF
PREFERRED SHARES
VOTED: That pursuant to the authority vested in the Trustees in accordance
with Section 6.3 of the Declaration of Trust, as amended, a series of Preferred
Shares be and it hereby is created, and that the designation and amount thereof
and the voting powers, preferences and relative, participating, optional and
other special rights of the shares of such series, and the qualifications,
limitations and restrictions thereof are as follows:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Participating Preferred Shares" (the "Series A Shares")
and the number of shares constituting such series shall be 150,000.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Shares ranking prior and superior to the
Series A Shares with respect to dividends, the holders of Series A Shares
shall be entitled to receive, when, as and if declared by the Trustees out
of funds legally available for the purpose, quarterly dividends payable in
cash to holders of record on the 15th day of March, June, September and
December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of Series A Shares, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $.25 or (b) subject to the provision for
adjustment set forth in Section 7 hereof, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions
other than a dividend payable in Common Shares or a subdivision of the
outstanding Common Shares (by reclassification or otherwise), declared on
the Common Shares of the Trust (the "Common Shares") since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any share of
fraction of a share of Series A Shares.
(B) The Trust shall declare a dividend or distribution on the Series
A Shares as provided in paragraph (A) of this Section 2 immediately after
it declares a dividend or distribution on the Common Shares (other than a
dividend payable in shares of or subdivision with respect to Common
Shares); provided, however, that, in the event no dividend or distribution
shall have been declared on the Common Shares during the period between
any Quarterly Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $.25 per share on the Series A Shares
shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Shares from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Shares, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record date for the determination of holders of shares of Series A Shares
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid
on the shares of Series A Shares in an amount less than the total amount
of all such dividends at the time accrued and payable on such shares shall
be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Trustees may fix a record date for the
determination of holders of shares of Series A Shares entitled to receive
payment of a dividend or distribution declared thereon, which record date
shall be no more than 60 days prior to the date fixed for the payment
thereof.
Section 3. Voting Rights. The holders of shares of Series A Shares shall
have the following voting rights:
(A) Subject to the provision for adjustment set forth in Section
7 hereof, each share Of Series A Shares shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareholders of the
Trust.
(B) Except as otherwise provided herein, in the Declaration of
Trust, as amended, of the Trust (the "Declaration of Trust") or by law,
the holders of shares of Series A Shares and the holders of shares of
Common Shares shall vote together as one class on all matters submitted to
a vote of shareholders of the Trust.
(C)
(i) If at the time of any annual meeting of shareholders for
the election of trustees a default in preferred dividends (as
hereinafter defined) shall exist, the holders of shares of Preferred
Shares voting separately as a class without regard to series (with
each share of Preferred Shares being entitled to that number of
votes to which it is entitled on matters submitted to shareholders
generally, or, if it is not entitle to vote with respect to such
matters, to one vote), shall have the right to elect two members of
the Trustees of the Trust. The holders of Common Shares shall not be
entitled to vote in the election of the two Trustees so to be
elected by the holders of shares of Preferred Shares. Any trustee
elected by the holders of shares of Preferred Shares, voting as a
class as aforesaid, shall continue to serve as such trustee for the
full term for which he shall have been elected notwithstanding that
prior to the end of such term a default in preferred dividends shall
cease to exist. If, prior to the end of the term of any trustee
elected by the holders of the Preferred Shares, voting as a class as
aforesaid, a vacancy in the office of such trustee shall occur by
reason of death, resignation, removal or disability, or for any
other cause, such vacancy shall be filled for the unexpired term in
the manner provided in the Declaration of Trust, provided that, if
the Declaration of Trust provides that such vacancy shall be filled
by election by the shareholders at a meeting thereof, the right to
fill such vacancy shall be vested in the holders of Preferred
Shares, voting as a class as aforesaid, unless, in any such case, no
default in preferred dividends shall exist at the time of such
election.
(ii) For the purposes of paragraph (C)(i) of this Section 3, a
default in preferred dividends shall be deemed to have occurred
whenever the amount of dividends in arrears upon any series of
Preferred Shares shall be equivalent to six full quarterly dividends
or more and, having so occurred, such default in preferred dividends
shall be deemed to exist thereafter until all accrued dividends on
all shares of Preferred Shares then outstanding shall have been paid
to the end of the last preceding quarterly dividend period. Nothing
herein contained shall be deemed to prevent an amendment of the
Declaration of Trust, in the manner therein provided, which shall
increase the number of Trustees so as to provide as additional
places on the Trustees either or both the trusteeships to be filled
by the two Trustees so to be elected by the holders of the Preferred
Shares or to prevent any other change in the number of trustees of
the Trust.
(D) Except as set forth herein, holders of Series A Shares shall
have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common
Shares as set forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Shares as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series A Shares outstanding shall
have been paid in full, the Trust shall not
(i) declare of pay dividends on, make any other distribution
on, or redeem or purchase or otherwise acquire for consideration any
beneficial shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Shares;
(ii) declare or pay dividends on or make any other
distributions of any beneficial shares ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with
the Series A Shares, except dividends paid ratably on the Series A
Shares and all such parity shares on which dividends are payable or
in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration any beneficial shares ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Shares, provided that the Trust may at any time redeem,
purchase or otherwise acquire such parity shares in exchange for any
beneficial shares of the Trust ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series A Shares; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Shares, or any beneficial shares ranking on a
parity with the Series A Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Trustees) to all holders of such shares upon such terms as the
Trustees, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(B) The Trust shall not permit any subsidiary of the Trust to
purchase or otherwise acquire for consideration any beneficial shares of
the Trust unless the Trust could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Trust, no distribution shall be made to the holders of
beneficial shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Shares unless,
prior thereto, the holders of shares of Series A Shares shall have
received $100 per share plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date
of such payment (the "Series A Liquidation Preference"). Following the
payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series
A Shares unless, prior thereto, the holders of shares of Common Stock
(which term shall include, for the purposes only of this Section 5, any
series of the Trust's Preferred Shares ranking on a parity with the Common
Shares upon liquidation, dissolution or winding up) shall have received an
amount per share (the "Common Adjustment") equal to the quotient obtained
by dividing (i) the Series A Liquidation Preference by (ii) 100 (as
appropriately adjusted as set forth in Section 7 hereof to reflect such
events as share splits, share dividends and recapitalizations with respect
to the Common Shares; such number in clause (ii), the "Adjustment
Number"). In the event, however, that there are not sufficient assets
available to permit payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common
Shares. Following the payment of the full amount of the Series A
Liquidation Preference and the common Adjustment in respect of all
outstanding shares of Series A Shares and Common Shares, respectively,
holders of Series A Shares and holders of shares of Common Shares shall
receive their ratable and proportionate share of the remaining assets to
be distributed in the ratio of the Adjustment Number to one (1) with
respect to such Series A Shares and Common Shares, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of Preferred Shares,
if any, which rank on a parity with the Series A Shares, then such
remaining assets shall be distributed ratably to the holders of such
parity shares in proportion to their respective liquidation preferences.
Section 6. Consolidation, Merqer, etc. In case the Trust shall enter into
any consolidation, merger, combination or other transaction in which the Common
Shares are exchanged for or changed into other stock or securities, cash and/or
any other property, then in any such case the Series A Shares shall at the same
time be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment set forth in Section 7 hereof) equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each Common Share is
changed or exchanged.
Section 7. Certain Adjustments. In the event the Trust shall at any time
declare or pay any dividend on common Shares payable in Common Shares, or effect
a subdivision or combination or consolidation of the outstanding Common Shares
(by reclassification or otherwise than by payment of a dividend in common
Shares) into a greater or lesser number of shares of Common Shares, then, in
each such case, the amounts set forth in Sections 2(A), 3(A), 5(A) and 6 hereof
with respect to the multiple of (i) cash and non-cash dividends, (ii) votes,
(iii) the Series A Liquidation Preference and (iv) an aggregate amount of stock,
securities, cash and/or other property referred to in Section 6 hereof, shall be
adjusted by multiplying such amount by a fraction the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were outstanding
immediately prior to such event.
Section 8. Ranking. The Series A Shares shall rank pari passu with (or if
determined by the Trustees in any vote establishing any other series of
Preferred Shares, either, senior or preferred to or junior and subordinate to as
the case may be) each other series of Preferred Shares of the Trust with respect
to dividends and/or preference upon liquidation, dissolution or winding up.
Section 9. Redemption. Series A Shares may be redeemed by the Trust at
such times and on such terms as may be agreed to between the Trust and the
redeeming shareholder, subject to any limitations which may be imposed by law or
the Declaration of Trust.
Section 10. Amendment. The Declaration of Trust, shall not be amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series A Shares so as to affect them adversely without the
affirmative vote of the holders of two-thirds or more of the outstanding shares
of Series A Shares, if any, voting together as a single class.
Section 11. Fractional Share. Series A Shares may be issued by fractions
of a share which shall entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of Series A
Shares.
Certificate Of Amendment
Of Fourth Amended and
Restated Declaration of Trust
The undersigned, a Trustee of Hubbard Real Estate Investments (the
"Trust"), hereby certifies pursuant to Section 11.3 of the Fourth Amended and
Restated Declaration of Trust (the "Declaration of Trust") of the Trust, that at
a meeting of Trustees of the Trust duly called and held on December 17, 1985, in
accordance with said Declaration of Trust, at which a quorum of Trustees
was present and voting throughout, the Trustees unanimously voted to amend the
Declaration of Trust, effective February 1, 1966, in the following respect:
To amend Section 1.1 of the Declaration of Trust to read in its
entirely as follows:
SECTION 1.1. Name. The trust created by this Declaration of Trust is
herein referred to as the "Trust" and shall be known by the name "HRE
Properties"; so far as may be practicable, legal and convenient, the affairs of
the Trust shall be conducted and transacted under such name, which name (and
the word "Trust" whenever used in this Declaration of Trust, except when the
context otherwise requires) shall refer to the trustees as trustees and not
individually or personally and shall not refer to the beneficiaries or
Shareholders of the Trust, or to any officers, employees, or agents of the Trust
or of such Trustees. Under circumstances in which the Trustees determine that
the use of the name "HRE Properties" is not practicable, legal or convenient,
they may as appropriate use their names with suitable reference to their trustee
status, or some other suitable designation, or they may adopt another name under
which the Trust may hold property or operate in any state, which name shall not
refer to the beneficiaries or Shareholders of the Trust, or any officers
employees, or agents of the Trust or of such Trustees.
To amend Section 1.2 of the Declaration of Trust to read in its entirety
as follows:
SECTION 1.2. Title to Property. Legal title to all of the Trust Property
shall be transferred to, vested in and held by the Trustees, as joint tenants
with right of survivorship as Trustees of this Trust, except as provided in
Section 3.5. Where legal title is transferred (whether to or by the Trust) in
the name HRE Properties, such name shall be deemed to refer to the Trustees as
aforesaid.
The undersigned further certifies that pursuant to Section 10.1. thereof,
such Declaration of Trust has been amended as aforesaid, effective February 1,
1986.
WITNESS my hand this 15 day of January, 1986.
/s/ William F. Murdoch, Jr.
-----------------------------------
William F. Murdoch, Jr.
Trustee
HRE PROPERTIES
Certificate of Amendment
Fourth Amended and Restated
Declaration of Trust
The undersigned, a Trustee of HRE Properties (fomerly named Hubbard Real
Estate Investments) (the "Trust") hereby certifies pursuant to Section 11.3 of
the Fourth Amended and Restated Declaration of Trust (the "Declaration of
Trust"), of the Trust, that at a meeting of shareholders of the Trust duly
called and held on March 3, 1994 in accordance with said Declaration of Trust,
at which a quorum of shareholders was present and voting throughout, the holders
of not less than a majority of the aggregate number of shares of beneficial
interest of the Trust then outstanding and entitled to vote thereon voted to
amend the Declaration of Trust in the following respect:
To amend Section 2.2 of the Declaration of Trust to read in its entirety
as follows:
Section 2.2 Terms of Office; Election and Qualification. Subject to
the provisions of Sections 2.3 and 2.4, each Trustee shall hold office
until the expiration of his term and until the election and qualification
of his successor. Except as otherwise required by the provisions of any
series of Preferred Shares at the time outstanding, commencing at the
Annual Shareholders Meeting held in 1994, the terms of office of the Board
of Trustees shall be divided into three classes, Class 1, Class II and
Class III. All classes shall be as nearly equal in number as possible, and
no class shall include fewer than one or more than five Trustees.
The terms of office of the Trustees initially classified shall be as
follows: (i) that of Class I shall expire at the Annual Meeting of
Shareholders to be held in 1995, (ii) that of Class II shall expire at the
Annual Meeting of Shareholders to be held in 1996, and (iii) that of Class
III shall expire at the Annual Meeting of Shareholders to be held in 1997,
and in all cases until a successor shall have been duly elected and shall
have qualified. At each Annual Meeting of Shareholders after the
aforementioned classification, the successor to Trustees whose terms shall
then expire shall be elected to serve from the time of election and
qualification until the third Annual Meeting of Shareholders following
election and until a successor shall have been duly elected and shall have
qualified. Trustees may succeed themselves in office.
Except as otherwise required by the provisions of any series of
Preferred Shares at the time outstanding, the election of Trustees at any
meeting of Shareholders shall be by the affirmative vote of the holders of
a majority of the shares present in person or by proxy at such meeting and
then entitled to vote in the election of Trustees. A Trustee shall be an
individual at least twenty-one (21) years of age who is not under legal
disability. Such individual shall qualify as a Trustee by signing this
Declaration of Trust, as so amended. Trustees continuing in office by
re-election or re-appointment need not re-qualify as Trustees. Trustees
may, but need not, own shares.
The undersigned further certifies that, pursuant to Section 10.1 thereof,
such Declaration of Trust has been amended as aforesaid, effective upon filing
of this Certificate of Amendment in the Office of the Secretary of The
Commonwealth of Massachusetts.
WITNESS my hand this 3rd day of March, 1994.
/s/ Charles J. Urstadt
--------------------------
Charles J. Urstadt
NO. 30
AMENDMENT RE: TRUSTEES TERMS OF OFFICE
HRE PROPERTIES