Exhibit 3.1a
ARTICLES OF INCORPORATION
OF
CEDAR INCOME FUND, LTD.
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I, THE UNDERSIGNED, JAMES T. CUNNINGHAM, whose post-office
address is c/o Stroock & Stroock & Lavan LLP, 180 Maiden Lane, New York, New
York 10038, being at least eighteen years of age, do hereby form a corporation,
under and by virtue of the General Laws of the State of Maryland authorizing the
formation of corporations.
ARTICLE I
Name
The name of the Corporation shall be Cedar Income Fund, Ltd.
(the "Corporation").
ARTICLE II
Principal Office, Registered Office and Agent
The address of the Corporation's principal office in Maryland
is c/o The Corporation Trust, Incorporated, 300 East Lombard Street, Baltimore,
Maryland 21202. The address of the Corporation's principal office and registered
office in the State of Maryland is 300 East Lombard Street, Baltimore, Maryland
21202. The name of its registered agent at that office is The Corporation Trust,
Incorporated, a Maryland corporation.
ARTICLE III
Purposes
The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of Maryland as now or hereafter in force.
ARTICLE IV
Capital Stock
A. Authorized Shares. The total number of shares of all classes of
capital stock that the Corporation shall have authority to issue is 55 million
shares, consisting of 50 million shares of Common Stock with a par value of $.01
per share (the "Common Stock"), amounting in the aggregate to par value of
$500,000, and 5 million shares of Preferred Stock with a par value of $.01 per
share (the "Preferred Stock"), amounting in the aggregate to par value of
$50,000.
B. Common Stock
1. Dividend Rights. Subject to the preferential dividend
rights of the Preferred Stock, if any, as may be determined by the Board of
Directors of the Corporation pursuant to paragraph C of this Article IV, Holders
(as defined below) shall be entitled to receive such dividends as may be
declared by the Board of Directors of the Corporation. Upon the declaration of
dividends hereunder, Holders shall be entitled to share in all such dividends,
pro rata, in accordance with the relative number of shares of Common Stock held
by each such Holder.
2. Rights Upon Liquidation. Subject to the preferential rights
of the Preferred Stock, if any, as may be determined by the Board of Directors
of the Corporation pursuant to paragraph C of this Article IV, in the event of
any voluntary or involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Corporation, each Holder shall be entitled to
receive, ratably with each other Holder, that portion of the assets of the
Corporation available for distribution to its stockholders as the number of
shares of the Common Stock held by such Holder bears to the total number of
shares of Common Stock then outstanding.
3. Voting Rights. Each Holder shall be entitled to vote on all
matters (on which a holder of Common Stock shall be entitled to vote), and shall
be entitled to one vote for each share of the Common Stock held by such Holder.
4. Restrictions on Ownership and Transfer to Preserve Tax
Benefit.
(a) Definitions
For the purposes of this Article IV, the following terms shall have the
following meanings:
"Act" shall mean the General Corporation Law of Maryland.
"Beneficial Ownership" shall mean ownership of Common Stock by
a Person who would be treated as an owner of such shares of Common
Stock either directly or constructively through the application of
Section 544 of the Code, as modified by Section 856(h) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned"
shall have the correlative meanings.
"Charitable Trust" shall mean the trust created pursuant to
subparagraph B(4)(c)(i) of this Article IV.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
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"Constructive Ownership" shall mean ownership of Common Stock
by a Person who would be treated as an owner of such shares of Common
Stock either directly 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 Owns" and
"Constructively Owned" shall have the correlative meanings.
"Date of the Merger" shall mean the latter of the Merger and
the redemption of shares of Common Stock held by Cedar Bay Company in
exchange for Units.
"Existing Holder" shall mean (i) Cedar Bay Company and (ii)
any Person (other than another Existing Holder) to whom an Existing
Holder transfers Beneficial Ownership of Common Stock causing such
transferee to Beneficially Own Common Stock in excess of the Ownership
Limit.
"Existing Holder Limit" (i) for any Existing Holder who is an
Existing Holder by virtue of clause (i) of the definition thereof,
shall mean, initially, the percentage of Common Stock Beneficially
Owned by such Person immediately after the Merger, and after any
adjustment pursuant to subparagraph B(4)(i) of this Article IV, shall
mean such percentage of the outstanding Common Stock as so adjusted;
and (ii) for any Existing Holder who becomes an Existing Holder by
virtue of clause (ii) of the definition thereof, shall mean, initially,
the percentage of the outstanding Common Stock Beneficially Owned by
such Existing Holder at the time that such Existing Holder becomes an
Existing Holder, and after any adjustment pursuant to subparagraph
B(4)(i) of this Article IV, shall mean such percentage of the
outstanding Common Stock as so adjusted; provided, however, that the
Existing Holding Limits for all Existing Holders when combined shall
not exceed 85% of the Corporation's Common Stock. For purposes of
determining the Existing Holder Limit, the amount of Common Stock
outstanding at the time of the determination shall be deemed to include
the maximum number of shares that Existing Holders may beneficially own
with respect to options and rights to convert Units into Common Stock
pursuant to Section 8.6 of the Partnership Agreement and shall not
include shares that may be Beneficially Owned solely by other persons
upon exercise of options or rights to convert into Common Stock. From
the Date of the Merger and prior to the Restriction Termination Date,
the Secretary of the Corporation shall maintain and, upon request, make
available to each Existing Holder, a schedule which sets forth the then
current Existing Holder Limits for each Existing Holder.
"Holder" shall mean the record holder of shares of Common
Stock, or in the case of shares held by a Purported Record Transferee,
the Charitable Trust.
"IRS" shall mean the United States Internal Revenue Service.
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"Market Price" shall mean the last reported sales price
reported on the New York Stock Exchange of Common Stock on the trading
day immediately preceding the relevant date, or if the Common Stock is
not then traded on the New York Stock Exchange, the last reported sales
price of the Common Stock on the trading day immediately preceding the
relevant date as reported on any exchange or quotation system over
which the Common Stock may be traded, or if the Common Stock is not
then traded over any exchange or quotation system, then the market
price of the Common Stock on the relevant date as determined in good
faith by the Board of Directors of the Corporation.
"Merger" shall mean the merger of Cedar Income Fund, Ltd., an
Iowa corporation, with and into the Corporation, its wholly-owned
subsidiary.
"Ownership Limit" shall initially mean 3.5% of the outstanding
Common Stock of the Corporation, and after any adjustment as set forth
in subparagraph B(4)(i) of this Article IV, shall mean such greater
percentage.
"Partner" shall mean any Person owning Units.
"Partnership" shall mean Cedar Income Fund Partnership, L.P.,
a Delaware limited partnership.
"Partnership Agreement" shall mean the Agreement of Limited
Partnership of the Partnership, of which the Corporation is the sole
general partner, as such agreement may be amended from time to time.
"Person" shall mean an individual, corporation, partnership,
estate, trust, 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; but does not
include (i) Cedar Bay Company, and (ii) an underwriter which
participates in a public offering of the Common Stock provided that the
ownership of Common Stock by such underwriter would not result in the
Corporation failing to qualify as a REIT.
"Purported Transferee" shall mean, with respect to any
purported Transfer which results in a violation of subparagraph B(4)(b)
of this Article IV, the purported beneficial transferee or owner for
whom the Purported Record Transferee would have acquired or owned
shares of Common Stock, if such Transfer had been valid under such
subparagraph.
"Purported Record Transferee" shall mean, with respect to any
purported Transfer which results in a violation of subparagraph B(4)(b)
of this Article IV, the record holder of the Common Stock if such
Transfer had been valid under such subparagraph.
"REIT" shall mean a Real Estate Investment Trust under Section
856 of the Code.
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"Restriction Termination Date" shall mean the first day after
the Date of the Merger on which the Board of Directors of the
Corporation determines that it is no longer in the best interests of
the Corporation to attempt to, or continue to, qualify as a REIT.
"Transfer" shall mean any sale, transfer, gift, assignment,
devise or other disposition of Common Stock (including (i) the granting
of any option or entering into any agreement for the sale, transfer or
other disposition of Common Stock or (ii) the sale, transfer,
assignment or other disposition of any securities or rights convertible
into or exchangeable for Common Stock), whether voluntary or
involuntary, whether of record or beneficially or Beneficially or
Constructively (including but not limited to transfers of interests in
other entities which result in changes in Beneficial or Constructive
Ownership of Common Stock), and whether by operation of law or
otherwise.
"Trustee" shall mean the Corporation as trustee for the
Charitable Trust, and any successor trustee appointed by the
Corporation.
"Units" shall mean the units into which partnership interests
of the Partnership are divided, and as the same may be adjusted, as
provided in the Partnership Agreement.
(b) Restriction on Ownership and Transfers.
(i) Except as provided in subparagraph B(4)(k) of
this Article IV, from the Date of the Merger and prior to the
Restriction Termination Date, no Person (other than an Existing Holder)
shall Beneficially Own shares of Common Stock in excess of the
Ownership Limit, and no Existing Holder shall Beneficially Own shares
of Common Stock in excess of the Existing Holder Limit for such
Existing Holder.
(ii) Except as provided in subparagraph B(4)(k) of
this Article IV, from the Date of the Merger and prior to the
Restriction Termination Date, any Transfer that, if effective, would
result in any Person (other than an Existing Holder) Beneficially
Owning Common Stock in excess of the Ownership Limit shall be void ab
initio as to the Transfer of such shares of Common Stock which would be
otherwise Beneficially Owned by such Person in excess of the Ownership
Limit; and the Purported Transferee shall acquire no rights in such
shares of Common Stock.
(iii) Except as provided in subparagraph B(4)(k) of
this Article IV, from the Date of the Merger and prior to the
Restriction Termination Date, any Transfer that, if effective, would
result in any Existing Holder Beneficially Owning Common Stock in
excess of the applicable Existing Holder Limit shall be void ab initio
as to the Transfer of such shares of Common Stock which would be
otherwise Beneficially Owned by such Existing Holder in excess of the
applicable Existing Holder Limit; and such Existing Holder shall
acquire no rights in such shares of Common Stock.
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(iv) Except as provided in subparagraph B(4)(k) of
this Article IV, from the Date of the Merger and prior to the
Restriction Termination Date, any Transfer that, if effective, would
result in the Common Stock being beneficially owned by less than 100
Persons (determined without reference to any rules of attribution)
shall be void ab initio as to the Transfer of such shares of Common
Stock which would be otherwise beneficially owned by the transferee;
and the intended transferee shall acquire no rights in such shares of
Common Stock.
(v) Notwithstanding any other provisions contained in
this Article IV, from the Date of the Merger and prior to the
Restriction Termination Date, any Transfer or other event that, if
effective, would result in the Corporation being "closely held" within
the meaning of Section 856(h) of the Code, or would otherwise result in
the Corporation failing to qualify as a REIT (including, but not
limited to, a Transfer or other event that would result in the
Corporation owning (directly or Constructively) an interest in a tenant
that is described in Section 856(d)(2)(B) of the Code if the income
derived by the Corporation from such tenant would cause the Corporation
to fail to satisfy any of the gross income requirements of Section
856(c) of the Code), shall be void ab initio as to the Transfer of the
shares of Common Stock which would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code or would
otherwise result in the Corporation failing to qualify as a REIT; and
the intended transferee or owner or Constructive or Beneficial Owner
shall acquire or retain no rights in such shares of Common Stock.
(c) Effect of Transfer in Violation of Subparagraph (B)(4)(b).
(i) If, notwithstanding the other provisions
contained in this Article IV, at any time after the Date of the Merger
and prior to the Restriction Termination Date, there is a purported
Transfer, change in the capital structure of the Corporation, or other
event such that one or more of the restrictions on ownership and
transfers described in subparagraph B(4)(b) above has been violated,
then the shares of Common Stock being Transferred (or in the case of an
event other than a Transfer, the shares owned or Constructively Owned
or Beneficially Owned) which would cause one or more of the
restrictions on ownership or transfer to be violated (rounded up to the
nearest whole share) (the "Trust Shares"), shall automatically be
transferred to the Corporation, as Trustee of a trust (the "Charitable
Trust") for the exclusive benefit of The American Cancer Society (the
"Designated Charity"), an organization described in Section
170(b)(1)(A) and 170(c) of the Code. The Purported Transferee shall
have no rights in such Trust Shares.
(ii) The Corporation, as Trustee of the Charitable
Trust, may transfer the shares held in such trust to a Person whose
ownership of the shares will not result in a violation of the ownership
restrictions (a "Permitted Transferee"). If such a transfer is made,
the interest of the Designated Charity will terminate and proceeds of
the sale will be payable to the Purported Transferee and to the
Designated Charity. The Purported Transferee will receive the lesser of
(1) the price paid by the Purported Transferee for the shares or, if
the Purported Transferee did not give value for the shares, the Market
Price of the shares on the day of the event causing the shares to be
held in trust, and (2) the price per share received by the Corporation,
as Trustee, from the sale or other disposition of the shares held in
trust. The Designated Charity will receive any proceeds in excess of
the amount payable to the Purported Transferee. The Purported
Transferee will not be entitled to designate a Permitted Transferee.
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(iii) All stock held in the Charitable Trust will be
deemed to have been offered for sale to the Corporation or its designee
for a 90-day period, at the lesser of the price paid for that stock by
the Purported Transferee and the Market Price on the date that the
Corporation accepts the offer. This period will commence on the date of
the violative transfer, if the Purported Transferee gives notice to the
Corporation of the transfer, or the date that the Board of Directors of
the Corporation determines that a violative transfer occurred, if no
such notice is provided.
(iv) Any dividend or distribution paid prior to the
discovery by the Corporation that shares of Common Stock have been
transferred in violation of subparagraph B(4)(b) of this Article IV,
shall be repaid to the Corporation upon demand and shall be held in
trust for the Designated Charity. Any dividend or distribution declared
but unpaid shall be rescinded as void ab initio with respect to such
shares of stock.
(v) Subject to the preferential rights of the
Preferred Stock, if any, as may be determined by the Board of Directors
of the Corporation pursuant to paragraph C of this Article IV, in the
event of any voluntary or involuntary liquidation, dissolution or
winding up of, or any distribution of the assets of, the Corporation,
the Designated Charity shall be entitled to receive, ratably with each
other holder of Common Stock, that portion of the assets of the
Corporation available for distribution to its stockholders as the
number of Trust Shares bears to the total number of shares of Common
Stock then outstanding (including the Trust Shares). The Corporation,
as Trustee, or if the Corporation shall have been dissolved, any
trustee appointed by the Corporation prior to its dissolution, shall
distribute to the Designated Charity, when determined (or if not
determined, or only partially determined, ratably to the other holders
of Common Stock who have been determined and the Designated Charity),
any such assets received in respect of the Trust Shares in any
liquidation, dissolution or winding up of, or any distribution of the
assets of, the Corporation.
(vi) The Purported Transferee will not be entitled to
vote any Common Stock it attempts to acquire, and any stockholder vote
will be rescinded if a Purported Transferee votes and the stockholder
vote would have been decided differently if such Purported Transferee's
vote was not counted.
(d) Remedies for Breach. If the Board of Directors or its
designees shall at any time determine in good faith that a Transfer or other
event has taken place in violation of subparagraph B(4)(b) of this Article IV or
that a Person intends to acquire or has attempted to acquire beneficial
ownership (determined without reference to any rules of attribution), Beneficial
Ownership or Constructive Ownership of any shares of the Corporation in
violation of subparagraph B(4)(b) of this Article IV, the Corporation shall
inform the Purported Transferee of its obligations pursuant to this Article IV,
including such Purported Transferee's obligations to pay over to the Charitable
Trust any and all dividends received with respect to the Trust Shares. In
addition, the Board of Directors or its designees shall take such action as it
deems advisable to refuse to give effect or to prevent such Transfer, including,
but not limited to, refusing to give effect to such Transfer on the books of the
Corporation or instituting proceedings to enjoin such Transfer and to recover
any dividend erroneously paid and declaring any votes erroneously cast to be
retroactively invalid; provided, however, that any Transfers (or, in the case of
events other than a Transfer, ownership or Constructive Ownership or Beneficial
Ownership) in violation of subparagraph B(4)(b) of this Article IV shall
automatically result in a transfer to the Charitable Trust as described in
subparagraph B(4)(c), irrespective of any action (or non-action) by the Board of
Directors.
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(e) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire shares in violation of subparagraph B(4)(b) of this Article
IV, or any Person who is a Purported Transferee, shall immediately give written
notice to the Corporation of such event and shall provide to the Corporation
such other information as the Corporation may request in order to determine the
effect, if any, of such Transfer or attempted Transfer on the Corporation's
status as a REIT.
(f) Owners Required To Provide Information. From the Date of
the Merger and prior to the Restriction Termination Date each Person who is a
beneficial owner or Beneficial Owner or Constructive Owner of Common Stock and
each Person (including the stockholder of record) who is holding Common Stock
for a Beneficial Owner or Constructive Owner shall provide to the Corporation
such information that the Corporation may request, in good faith, in order to
determine the Corporation's status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Article IV
shall limit the authority of the Board of Directors to take such other action as
it deems necessary or advisable to protect the Corporation and the interests of
its stockholders by preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application
of any of the provisions of subparagraph B(4) of this Article IV, including any
definition contained in subparagraph B(4)(a), the Board of Directors shall have
the power to determine the application of the provisions of this subparagraph
B(4) with respect to any situation based on the facts known to it.
(i) Modification of Ownership Limit or Existing Holder Limit.
Subject to the limitations provided in subparagraph B(4)(j), the Board of
Directors may from time to time increase the Ownership Limit or the Existing
Holder Limit and shall file Articles Supplementary with the State Department of
Assessment and Taxation of Maryland to evidence such increase.
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(j) Limitations on Modifications.
(i) From the Date of the Merger and prior to the
Restriction Termination Date, neither the Ownership Limit nor any
Existing Holder Limit may be increased (nor may any additional Existing
Holder Limit be created) if, after giving effect to such increase (or
creation), five Persons who are Beneficial Owners of Common Stock
(including all of the then Existing Holders) could (taking into account
the Ownership Limit and the Existing Holder Limit) Beneficially Own, in
the aggregate, more than 49% of the outstanding Common Stock.
(ii) Prior to the modification of any Existing Holder
Limit or Ownership Limit pursuant to subparagraph B(4)(i) of this
Article IV, the Board of Directors of the Corporation may require such
opinions of counsel, affidavits, undertakings or agreements as it may
deem necessary or advisable in order to determine or ensure the
Corporation's status as a REIT.
(iii) No Existing Holder Limit shall be reduced to a
percentage which is less than the Ownership Limit.
(iv) The Ownership Limit may not be increased to a
percentage which is greater than 9.9%.
(k) Exceptions.
(i) The Board of Directors, in its sole discretion,
may exempt a Person from the Ownership Limit or the Existing Holder
Limit, as the case may be, if such Person is not an individual for
purposes of Section 542(a)(2) of the Code and the Board of Directors
obtains such representations and undertakings from such Person as are
reasonably necessary to ascertain that no individual's Beneficial
Ownership of such shares of Common Stock will violate the Ownership
Limit or the applicable Existing Holder Limit, as the case may be, and
agrees that any violation of such representations or undertaking (or
other action which is contrary to the restrictions contained in this
subparagraph B(4) of this Article IV) or attempted violation will
result in such shares of Common Stock automatically being transferred
to the Charitable Trust.
(ii) Prior to granting any exception pursuant to
subparagraph B(4)(k)(i) of this Article IV, the Board of Directors may
require a ruling from the IRS, 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 Corporation's status as a REIT.
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5. Legend. Each certificate for shares of Common Stock shall
bear legends substantially to the effect of the following:
"The Corporation is authorized to issue two classes of capital
stock which are designated as Common Stock and Preferred Stock. The Board of
Directors is authorized to determine the preferences, limitations and relative
rights of the Preferred Stock before the issuance of any Preferred Stock. The
Corporation will furnish, without charge, to any stockholder making a written
request therefor, a copy of the Corporation's charter and a written statement of
the designations, relative rights, preferences and limitations applicable to
each such class of stock. Requests for the Corporation's charter and such
written statement may be directed to Cedar Income Fund, Ltd., 44 South Bayles
Avenue, Port Washington, New York 11050, Attention: Secretary.
The shares of Common Stock represented by this certificate are
subject to restrictions on ownership and Transfer for the purpose of the
Corporation's maintenance of its status as a Real Estate Investment Trust under
the Code. No Person may Beneficially Own shares of Common Stock in excess of
3.5% (or such greater percentage as may be determined by the Board of Directors
of the Corporation) of the outstanding Common Stock of the Corporation (unless
such Person is an Existing Holder) with certain exceptions set forth in the
Corporation's charter. Any Person who attempts to Beneficially Own shares of
Common Stock in excess of the above limitations must immediately notify the
Corporation. All capitalized terms in this legend have the meanings defined in
the Corporation's charter. Transfers in violation of the restrictions described
above may be void ab initio.
In addition, upon the occurrence of certain events, if the
restrictions on ownership are violated, the shares of Common Stock represented
hereby may be automatically exchanged for Trust Shares which will be held in
trust by the Corporation. The Corporation has an option to acquire Trust Shares
under certain circumstances. The Corporation will furnish to the holder hereof
upon request and without charge a complete written statement of the terms and
conditions of the Trust Shares. Requests for such statement may be directed to
Cedar Income Fund, Ltd., 44 South Bayles Avenue, Port Washington, New York
11050, Attention: Secretary."
6. Severability. If any provision of this Article IV 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.
C. Preferred Stock. The Board of Directors of the Corporation, by
resolution, is hereby expressly vested with authority to provide for the
issuance of the shares of Preferred Stock in one or more classes or one or more
series, with such voting powers, full or limited, or no voting powers, and with
such designations, preferences and relative, participating, optional and other
special rights, and qualifications, limitations or restrictions thereof, if any,
as shall be stated and expressed in the resolution or resolutions providing for
such issue adopted by the Board of Directors. Except as otherwise provided by
law, the holders of the Preferred Stock of the Corporation shall only have such
voting rights as are provided for or expressed in the resolutions of the Board
of Directors relating to such Preferred Stock adopted pursuant to the authority
contained in the Articles of Incorporation. Before issuance of any such shares
of Preferred Stock, the Corporation shall file Articles Supplementary with the
State Department of Assessment and Taxation of Maryland in accordance with the
provision of Section 2-208 of the Act.
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D. Reservation of Shares. Pursuant to the obligations of the
Corporation under the Partnership Agreement to issue shares of Common Stock in
exchange for Units, the Board of Directors is hereby required to reserve a
sufficient number of authorized but unissued shares of Common Stock to permit
the Corporation to issue shares of Common Stock in exchange for Units that may
be exchanged for shares of Common Stock pursuant to the Partnership Agreement.
E. Preemptive Rights. No holder of shares of capital stock of the
Corporation shall, as such holder, have any preemptive or other right to
purchase or subscribe for any shares of Common Stock or any class of capital
stock of the Corporation which the Corporation may issue or sell.
F. Control Shares. Pursuant to Section 3-702(b) of the Act, the terms
of Subtitle 7 of Title 3 of the Act shall be inapplicable to any acquisition of
a Control Share (as defined in the Act) that is not prohibited by the terms of
Article IV.
G. Business Combinations. Pursuant to Section 3-603(e)(1)(iii) of the
Act, the terms of Section 3-602 of such law shall be inapplicable to the
Corporation.
ARTICLE V
Board of Directors
A. Management. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of Directors.
B. Number. The number of directors which will constitute the entire
Board of Directors shall be fixed by, or in the manner provided in, the By-Laws
but shall in no event be less than three. The names of the directors who shall
act until the first annual meeting or until their successors are duly chosen and
qualified are Leo S. Ullman, J.A.M.H. der Kinderen and Everett B. Miller III.
C. Classification. The directors shall be classified, with respect to
the time for which they severally hold office, into three classes, as nearly
equal in number as possible, as shall be provided in the By-Laws of the
Corporation, one class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 1999, another class to be
originally elected for a term expiring at the annual meeting of stockholders to
be held in 2000, and another class to be originally elected for a term expiring
at the annual meeting of stockholders to be held in 2001, with each class to
hold office until its successors are elected and qualified. At each annual
meeting of the stockholders of the Corporation, the date of which shall be fixed
by or pursuant to the By-Laws of the Corporation, the successors of the class of
directors whose terms expire at that meeting shall be elected to hold office for
a term expiring at the annual meeting of stockholders held in the third year
following the year of their election. No election of directors need be by
written ballot. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
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D. Vacancies. Newly created directorships resulting from any increase
in the number of directors may be filled by the Board of Directors, or as
otherwise provided in the By-Laws, and any vacancies on the Board of Directors
resulting from death, resignation, removal or other cause shall only be filled
by the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors, or by a sole remaining
director, or as otherwise provided in the By-Laws. Any director elected in
accordance with the preceding sentence shall hold office until the next annual
meeting of the Corporation, at which time a successor shall be elected to fill
the remaining term of the position filled by such director.
E. Removal. Any director may be removed from office only for cause and
only by the affirmative vote of the holders of a majority of the combined voting
power of the then outstanding shares entitled to vote in the election of
directors. For purposes of this subparagraph E of Article V "cause" shall mean
the willful and continuous failure of a director to substantially perform such
director's duties to the Corporation (other than any such failure resulting from
temporary incapacity due to physical or mental illness) or the willful engaging
by a director in gross misconduct materially and demonstrably injurious to the
Corporation.
F. By-Laws. The power to adopt, alter and/or repeal the By-Laws of the
Corporation is vested exclusively in the Board of Directors.
G. Powers. The enumeration and definition of particular powers of the
Board of Directors included in the foregoing shall in no way be 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, or construed as or
deemed by inference or otherwise in any manner to exclude or limit the powers
conferred upon the Board of Directors under the General Corporation Law of
Maryland as now or hereafter in force.
ARTICLE VI
Liability
The liability of the directors and officers of the Corporation
to the Corporation and its stockholders for money damages is hereby limited to
the fullest extent permitted by Section 5-349 of the Courts and Judicial
Proceedings Code of Maryland (or its successor) as such provisions may be
amended from time to time.
12
ARTICLE VII
Indemnification
The Corporation shall indemnify (A) its directors and
officers, whether serving the Corporation or at its request any other entity, to
the full extent required or permitted by the General Laws of the State of
Maryland now or hereafter in force, including the advance of expenses under the
procedures and to the full extent permitted by law and (B) other employees and
agents to such extent as shall be authorized by the Board of Directors or the
Corporation's By-Laws and be permitted by law. The foregoing rights of
indemnification shall not be exclusive of any other rights to which those
seeking indemnification may be entitled. The Board of Directors may take such
action as is necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to time such By-Laws,
resolutions or contracts implementing such provisions or such further
indemnification arrangements as may be permitted by law. No amendment of the
charter of the Corporation shall limit or eliminate the right to indemnification
provided hereunder with respect to acts or omissions occurring prior to such
amendment or repeal.
ARTICLE VIII
Existence
The Corporation is to have perpetual existence.
IN WITNESS WHEREOF, the undersigned incorporator of Cedar
Income Fund, Ltd. who executed the foregoing Articles of Incorporation hereby
acknowledges the same to be his act and further acknowledges that, to the best
of his knowledge the matters and facts set forth therein are true in all
material respects under the penalties of perjury.
Dated the 11th day of June, 1998.
/s/ James T. Cunningham
--------------------------
JAMES T. CUNNINGHAM
13
CERTIFICATE OF CORRECTION
TO
THE ARTICLES OF INCORPORATION
OF
CEDAR INCOME FUND, LTD.,
a Maryland Corporation
Pursuant to the provisions of Section 1-207 of the Maryland General
Corporation Law, the undersigned executes the following Certificate of
Correction:
1. The title of the document being corrected is the "Articles of Incorporation
of Cedar Income Fund, Ltd." (the "Articles").
2. The name of the sole party to the Articles is James T. Cunningham, as sole
incorporator of Cedar Income Fund, Ltd., a Maryland corporation.
3. The date that the Articles were filed with the State of Maryland Department
of Assessments and Taxation is June 12, 1998.
4. The erroneous provision of the Articles to be corrected is the proviso
beginning on the 11th line of the definition of the term "Existing Holder
Limit" contained in Article IV paragraph B.4.(a) of the Articles (the
"Proviso") which currently reads as follows:
"provided, however, that the Existing Holding Limits for all
Existing Holders when combined shall not exceed 85% of the
Corporation's Common Stock."
5. The foregoing erroneous Proviso is hereby corrected to read as follows:
"provided, however, that the Existing Holder Limits for all
Existing Holders when combined shall not exceed 35% of the
Corporation's Common Stock."
IN WITNESS WHEREOF, the undersigned sole incorporator of Cedar Income
Fund, Ltd., who executes the foregoing Certificate of Correction, hereby
acknowledges the same to be his act and further acknowledges that, to the best
of his knowledge, the matters and facts set forth herein are true in all
material respects under the penalties of perjury.
Dated the 24th day of July, 1998.
/s/ James T. Cunningham
-------------------------
JAMES T. CUNNINGHAM
STATE OF MARYLAND PARRIS N. GLENDENING
DEPARTMENT OF GOVERNOR
ASSESSMENTS AND TAXATION [SEAL] RONALD W. WINEHOLT
DIRECTOR
CHARTER DIVISION PAUL B. ANDERSON
ADMINISTRATOR
- --------------------------------------------------------------------------------
ARTICLES OF AMENDMENT
(See instructions on previous page)
---------------------------------------------------
(1)
(2) Cedar Income Fund, Ltd.
---------------------------------------, a Maryland corporation hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
(3) The charter of the corporation is hereby amended as follows: by striking out
----------------
Article I of the articles of incorporation and inserting in lieu thereof the
- --------------------------------------------------------------------------------
following:
- --------------------------------------------------------------------------------
Article I
-------------
- --------------------------------------------------------------------------------
Name
-------------
- --------------------------------------------------------------------------------
The name of the Corporation shall be Uni-Invest (U.S.A.), Ltd. (the
- --------------------------------------------------------------------------------
"Corporation").
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
This amendment of the charter of the corporation has been approved by
(4) The directors and shareholders.
-----------------------------------------------------------------------------
- --------------------------------------------------------------------------------
We the undersigned President and Secretary swear under penalties of perjury that
the foregoing is a corporate act.
/s/ Stuart H. Widowski /s/ Leo S. Ullman
- ---------------------------------- ----------------------------------
SECRETARY PRESIDENT
MAIL TO: STATE DEPARTMENT OF ASSESSMENTS & TAXATION
301 WEST PRESTON STREET, ROOM 809
BALTIMORE, MD 21201
PHONE: 401-767-1350
STATE OF MARYLAND PARRIS N. GLENDENING
DEPARTMENT OF GOVERNOR
ASSESSMENTS AND TAXATION [SEAL] RONALD W. WINEHOLT
DIRECTOR
CHARTER DIVISION PAUL B. ANDERSON
ADMINISTRATOR
- --------------------------------------------------------------------------------
ARTICLES OF AMENDMENT
(See instructions on previous page)
---------------------------------------------------
(1)
(2) Uni-Invest (U.S.A.), Ltd.
---------------------------------------, a Maryland corporation hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
(3) The charter of the corporation is hereby amended as follows: The name of the
----------------
Corporation is hereby changed to "Cedar Income Fund, Ltd."
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
This amendment of the charter of the corporation has been approved by
(4) The directors.
-----------------------------------------------------------------------------
- --------------------------------------------------------------------------------
We the undersigned President and Secretary swear under penalties of perjury that
the foregoing is a corporate act.
/s/ Stuart H. Widowski /s/ Leo S. Ullman
- ---------------------------------- ----------------------------------
SECRETARY PRESIDENT
Stuart H. Widowski Leo S. Ullman
MAIL TO: STATE DEPARTMENT OF ASSESSMENTS & TAXATION
301 WEST PRESTON STREET, ROOM 809
BALTIMORE, MD 21201
PHONE: 401-767-1350
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR SHOPPING CENTERS, INC.
---------------------
Cedar Shopping Centers, Inc., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
1. The Articles of Incorporation of the Corporation, filed with the State
Department of Assessments and Taxation of Maryland on June 12, 1998, as
amended, are hereby amended as follows:
(i) The first paragraph of Article IV shall be deleted in its
entirety and replaced with the following:
Capital Stock
A. Authorized Shares. The total number of shares of all
classes of capital stock that the Corporation shall have
authority to issue is 55 million shares, consisting of 50
million shares of Common Stock with a par value of $.06 per
share (the "Common Stock"), amounting in the aggregate to par
value of $3,000,000, and 5 million shares of Preferred Stock
with a par value of $.01 per share (the "Preferred Stock"),
amounting in the aggregate to par value of $50,000.
The amendment to the Articles of Incorporation of the Corporation has
been advised by the Board of Directors and approved by the holders of at least
two-thirds of the shares of the Corporation's Common Stock entitled to vote at
the Corporation's Annual Meeting held on October 9, 2003.
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby
swear under penalties of perjury that the adoption of the foregoing Articles of
Amendment of Articles of Incorporation of Cedar Shopping Centers, Inc. is a
corporate act of Cedar Shopping Centers, Inc. and that we have caused these
Articles of Amendment to be executed and attested this 9th day of October, 2003.
CEDAR SHOPPING CENTERS, INC.
By:/s/ Leo S. Ullman
-------------------------
Leo S. Ullman, President
Attest:
/s/ Stuart H. Widowski
- -----------------------------
Stuart H. Widowsky, Secretary
2
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR INCOME FUND, LTD.
----------------------
Cedar Income Fund, Ltd., a Maryland corporation (the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of
Maryland, that:
1. Article I of the Articles of Incorporation of the Corporation, filed
with the State Department of Assessments and Taxation of Maryland on June 12,
1998, as heretofore amended, is hereby amended to read as follows:
ARTICLE I
Name
The name of the Corporation shall be Cedar Shopping Centers, Inc.
(the "Corporation").
2. The amendment of the charter of the Corporation has been approved by
a majority of the entire Board of Directors since the amendment is limited to a
change expressly authorized by Section 2-605 of the Maryland General Corporation
Law.
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby
swear under penalties of perjury that the foregoing Articles of Amendment of
Articles of Incorporation of Cedar Income Fund, Ltd. is a corporate act of Cedar
Income Fund, Ltd. and have caused these Articles of Amendment to be executed and
attested this day of July, 2003.
---
CEDAR INCOME FUND, LTD.
By:
-----------------------------
Leo S. Ullman, President
Attest:
- -------------------------------
Stuart H. Widowsky, Secretary
ARTICLES OF AMENDMENT
OF ARTICLES OF INCORPORATION
OF
CEDAR SHOPPING CENTERS, INC.
---------------------
Cedar Shopping Centers, Inc., a Maryland corporation (the
"Corporation"), hereby certifies to the State Department of Assessments and
Taxation of Maryland that:
1. The Articles of Incorporation of the Corporation, filed with the State
Department of Assessments and Taxation of Maryland on June 12, 1998, as
amended, are hereby amended as follows:
(i) The definition of "Ownership Limit" in subparagraph B(4)(a) of
Article IV shall be deleted in its entirety and replaced with
the following:
"Ownership Limit" shall mean 9.9% of the outstanding Common
Stock of the Corporation, and after any adjustment as set
forth in subparagraph B(4)(i) of this Article IV, shall mean
such greater percentage.
(ii) Clause (i) of the definition of "Existing Holder Limit" in
subparagraph B(4)(a) of Article IV shall be deleted in its
entirety and replaced with the following:
(i) for any Existing Holder who is an Existing Holder by
virtue of clause (i) of the definition thereof, shall mean,
initially, the percentage of Common Stock Beneficially Owned
by such Person immediately after the Public Offering, and
after any adjustment pursuant to subparagraph B(4)(i) of this
Article IV, shall mean such percentage of the outstanding
Common Stock as so adjusted.
(iii) Section B(4)(j)(i) of Article IV shall be deleted in its
entirety and replaced with the following:
(i) Prior to the Restriction Termination Date, neither the
Ownership Limit nor any Existing Holder Limit may be
increased (nor may any additional Existing Holder Limit be
created) if, after giving effect to such increase (or
creation), five persons who are Beneficial Owners of Common
Stock (including all of the then Existing Holders) could
(taking into account the Ownership Limit and the Existing
Holder Limit) Beneficially Own, in the aggregate, more than
49.5% of the outstanding Common Stock.
(iv) The following definition shall be added to Section B(4)(a) of
Article IV:
"Public Offering" shall mean the public offering, if any, of
the Company's common stock that is consummated prior to June
30, 2004.
(v) Section C of Article V shall be deleted in its entirety and
replaced with the following:
C. At each annual meeting of the stockholders of the
Corporation, the date of which shall be fixed by or pursuant
to the By-Laws of the Corporation, the successors of the
class of directors whose terms expire at that meeting shall
be elected to hold office for a term of one year and until
such director's earlier resignation or removal; provided,
however, each director elected at the annual meetings of the
Corporation held in 2001 and 2002 shall serve for the full
three-year term to which such director was elected or until
such director's earlier resignation or removal. No election
of directors need be by written ballot. No decrease in the
number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
2. The amendments to the Articles of Incorporation of the Corporation have
been advised by the Board of Directors and approved by the shareholders
of at least two-thirds of the shares of the Corporation's Common Stock
entitled to vote at the Corporation's Annual Meeting held on October 9,
2003.
2
IN WITNESS WHEREOF, we the undersigned President and Secretary hereby
swear under penalties of perjury that the adoption of the foregoing Articles of
Amendment of Articles of Incorporation of Cedar Shopping Centers, Inc. is a
corporate act of Cedar Shopping Centers, Inc. and that we have caused these
Articles of Amendment to be executed and attested this day of October, 2003.
---
CEDAR SHOPPING CENTERS, INC.
By:
---------------------------
Leo S. Ullman, President
Attest:
- -------------------------------
Stuart H. Widowsky, Secretary
3
CEDAR SHOPPING CENTERS, INC.
ARTICLES SUPPLEMENTARY
8 7/8% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
Cedar Shopping Centers, Inc., a Maryland corporation (the "Corporation"), hereby
certifies to the State Department of Assessments and Taxation of Maryland that:
FIRST : Under a power contained in Article IV of the Articles of Incorporation
of the Corporation, as amended and supplemented (the "Charter"), the Board of
Directors of the Corporation (the "Board of Directors"), by resolution duly
adopted at a meeting duly called and held on July 19, 2004 (the "Board
Resolutions"), and the Pricing Committee of the Board of Directors established
by the Board Resolutions, by resolution duly adopted at a meeting duly called
and held on July 23, 2004, classified and designated 2,350,000 shares (the
"Shares") of Preferred Stock (as defined in the Charter) as shares of 8?% Series
A Cumulative Redeemable Preferred Stock, with the preferences, conversions and
other rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of shares
of stock as follows and provided for the issuance thereof. Upon any restatement
of the Charter, Sections 1 through 13 of this Article FIRST shall become part of
Article IV of the Charter, with such changes in enumeration as are necessary to
complete such restatement.
(1) Designation and Number. A series of shares of Preferred Stock, designated as
the "8 7/8% Series A Cumulative Redeemable Preferred Stock" (the "Series A
Preferred Stock"), is hereby established. The number of shares of Series A
Preferred Stock shall be 2,350,000. The par value of the Series A Preferred
Stock shall be $.01 per share.
(2) Rank. The Series A Preferred Stock will, with respect to distribution rights
and rights upon liquidation, dissolution or winding up of the Corporation, rank
(a) senior to all classes or series of Common Stock (as defined in the Charter),
and to all equity securities the terms of which provide that such equity
securities shall rank junior to the Series A Preferred Stock; (b) on parity with
all equity securities issued by the Corporation the terms of which specifically
provide that such equity securities rank on parity with the Series A Preferred
Stock; and (c) junior to all equity securities issued by the Corporation the
terms of which specifically provide that such equity securities rank senior to
the Series A Preferred Stock. The term "equity securities" shall not include
convertible debt securities.
(3) Distributions.
(a) Holders of Series A Preferred Stock shall be entitled to receive, when and
if declared by the Board of Directors, out of funds legally available for
payment of distributions, cumulative preferential cash distributions at the rate
of 8 7/8% of the liquidation preference per annum (which is equivalent to a
fixed annual amount of $2.21875 per share of Series A Preferred Stock). Such
distributions shall accrue and cumulate from the date of original issuance (July
28, 2004) and shall be payable quarterly in arrears on the 20th day of February,
May, August and November of each year or, if not a business day, the next
succeeding business day (each a "Distribution Payment Date"). The first
distribution on the Series A Preferred Stock
shall be paid on November 20, 2004, will be for more than a full quarter and
will reflect distributions accumulated from the date of original issuance
through November 20, 2004. Any distribution payable on the Series A Preferred
Stock for any partial distribution period shall be prorated and computed on the
basis of a 360-day year consisting of twelve 30-day months. Distributions shall
be payable to holders of record as they appear in the stock records of the
Corporation at the close of business on the applicable distribution record date,
which shall be a date designated by the Board of Directors for the payment of
distributions that is not more than 60 nor less than 10 calendar days
immediately preceding such Distribution Payment Date (each, a "Distribution
Record Date").
(b) No distribution on the Series A Preferred Stock shall be authorized or
declared or paid or set apart for payment by the Corporation at such time as the
terms and provisions of any agreement of the Corporation, including any
agreement relating to its indebtedness or any other of the Corporation's
preferred stock, prohibits such authorization, declaration, payment or setting
apart for payment or provides that such authorization, declaration, payment or
setting apart for payment would constitute a breach or default thereunder, or if
such authorization, declaration, payment or setting apart for payment shall be
restricted or prohibited by law.
Notwithstanding anything to the contrary contained herein, distributions on the
Series A Preferred Stock shall accrue and cumulate whether or not the
Corporation has earnings, whether or not there are funds legally available for
the payment of such distributions and whether or not such distributions are
declared by the Board of Directors. Accrued but unpaid distributions on the
Series A Preferred Stock shall cumulate as of the Distribution Payment Date on
which they first become payable or on the date of redemption, as the case may
be. No interest shall be payable in respect of any distribution on the Series A
Preferred Stock that may be in arrears.
(c) Except as provided in the following sentence, if any Series A Preferred
Stock are outstanding, no distributions, other than distributions in kind of the
Corporation's Common Stock or other shares of the Corporation's equity
securities ranking junior to the Series A Preferred Stock as to distributions
and upon liquidation, may be declared or paid or set apart for payment, and no
other distribution may be declared or made upon, the Corporation's Common Stock
or any other shares of equity securities of the Corporation of any other class
or series ranking, as to distributions and upon liquidation, on parity with or
junior to the Series A Preferred Stock unless full cumulative distributions have
been or contemporaneously are declared and paid or declared and a sum sufficient
is set apart for such payment on the Series A Preferred Stock for all past
distribution periods and the then current distribution period. When
distributions are not paid in full (or a sum sufficient for such full payment is
not so set apart) upon the Series A Preferred Stock and all other equity
securities ranking on parity, as to distributions, with the Series A Preferred
Stock, all distributions declared upon the Series A Preferred Stock and any
other equity securities ranking on parity, as to distributions, with the Series
A Preferred Stock shall be authorized pro rata so that the amount of
distributions authorized per share of Series A Preferred Stock and each such
other equity security shall in all cases bear to each other the same ratio that
accrued distributions per share of Series A Preferred Stock and such other
equity security (which shall not include any accumulation in respect of unpaid
distributions for prior distribution periods if such other equity securities do
not
2
have a cumulative distribution) bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any distribution payment or
payments on Series A Preferred Stock which may be in arrears.
(d) Except as provided in clause (c), unless full cumulative distributions on
the Series A Preferred Stock have been or contemporaneously are declared and
paid or declared and a sum sufficient is set apart for payment for all past
distribution periods and the then current distribution period, no Common Stock
or any other shares of equity securities of the Corporation ranking junior to or
on parity with the Series A Preferred Stock as to distributions or upon
liquidation shall be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund for
the redemption of any such shares) by the Corporation (except by conversion into
or exchange for Common Stock or other shares of equity securities of the
Corporation ranking junior to the Series A Preferred Stock as to distributions
and amounts upon liquidation). The foregoing shall not prohibit any redemption,
purchase or other acquisition by the Corporation of any class or series of
equity securities of the Corporation for the purpose of enforcing restrictions
on ownership contained in the Corporation's Charter or preserving the
Corporation's status as a real estate investment trust.
(e) Holders of Series A Preferred Stock shall not be entitled to any
distribution, whether payable in cash, property or shares, in excess of full
cumulative distributions on the Series A Preferred Stock as described above. Any
distribution payment made on the Series A Preferred Stock, including any capital
gain distributions, shall first be credited against the earliest accrued but
unpaid distribution due with respect to the Series A Preferred Stock which
remains payable.
(f) If, for any taxable year, the Corporation elects to designate as a "capital
gain dividend" (as defined in Section 857 of the Code) any portion (the "Capital
Gains Amount") of the dividends (as determined for federal income tax purposes)
paid or made available for the year to holders of all series or classes of the
Corporation's stock (the "Total Dividends"), then, except as otherwise required
by applicable law, that portion of the Capital Gains Amount that shall be
allocable to the holders of Series A Preferred Stock shall be in proportion to
the amount that the total dividends (as determined for federal income tax
purposes) paid or made available to the holders of the Series A Preferred Stock
for the year bears to the Total Dividends. Except as otherwise required by
applicable law, the Corporation will make a similar allocation with respect to
any undistributed long-term capital gains of the Corporation which are to be
included in its stockholders' long-term capital gains, based on the allocation
of the Capital Gains Amount which would have resulted if such undistributed
long-term capital gains has been distributed as "capital gains dividends" by the
Corporation to its stockholders.
(4) Liquidation Preference.
(a) In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation (referred to herein sometimes as a "liquidation"),
the holders of Series A Preferred Stock then outstanding shall be entitled to
receive out of the assets of the Corporation legally available for distribution
to stockholders (after payment or provision for payment of all debts and other
liabilities of the Corporation) the sum of (i) the liquidation
3
preference of $25.00 per share, (ii) the applicable premium per share (expressed
as a percentage of the liquidation preference of $25.00 per share) as set forth
in the table below during the twelve-month period beginning on July 28 of each
year and (c) an amount equal to any accrued and unpaid distributions (whether or
not declared) to the date of payment, before any distribution of assets is made
to holders of Common Stock (as defined in the Charter) or any equity securities
that the Corporation may issue that rank junior to the Series A Preferred Stock
as to liquidation rights.
<Table>
<Caption>
12-MONTH PERIOD APPLICABLE PREMIUM
- --------------------------------------------------- ---------------------------------------------------
July 28, 2004 to July 27, 2005 5%
July 28, 2005 to July 27, 2006 4%
July 28, 2006 to July 27, 2007 3%
July 28, 2007 to July 27, 2008 2%
July 28, 2008 to July 27, 2009 1%
July 28, 2009 and thereafter 0
</Table>
(b) If, upon any such voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation are insufficient to
make full payment to holders of the Series A Preferred Stock and any shares of
other classes or series of equity securities of the Corporation ranking on
parity with the Series A Preferred Stock as to liquidation rights, then the
holders of the Series A Preferred Stock and all other such classes or series of
equity securities ranking on parity with the Series A Preferred Stock as to
liquidation rights shall share ratably in any distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
(c) Written notice of any such liquidation, dissolution or winding up of the
Corporation, stating the payment date or dates when, and the place or places
where, the amounts distributable in such circumstances shall be payable, shall
be given by first class mail, postage pre-paid, not less than 30 nor more than
60 calendar days immediately preceding the payment date stated therein, to each
record holder of the Series A Preferred Stock at the respective addresses of
such holders as the same shall appear on the share transfer records of the
Corporation.
(d) After payment of the full amount of the liquidating distributions to which
they are entitled, the holders of Series A Preferred Stock shall have no right
or claim to any of the remaining assets of the Corporation.
(e) None of a consolidation or merger of the Corporation with or into another
entity, the merger of another entity with or into the Corporation, a statutory
share exchange by the Corporation or a sale, lease, transfer or conveyance of
all or substantially all of the Corporation's assets or business shall be
considered a liquidation, dissolution or winding up of the Corporation.
(f) In determining whether a distribution (other than upon voluntary or
involuntary dissolution) by dividend, redemption or other acquisition of shares
of the Corporation or otherwise is permitted under Maryland law, amounts that
would be needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights
4
upon dissolution of the holders of Series A Preferred Stock will not be added to
the Corporation's total liabilities.
(5) Redemption.
(a) Except as otherwise set forth in this Section 5 and in Section 8, the Series
A Preferred Stock is not redeemable prior to July 28, 2009, except that the
Corporation will be entitled to redeem, purchase or acquire shares of Series A
Preferred Stock in order to ensure that the Corporation remains qualified as a
REIT for federal income tax purposes.
(b) On or after July 28, 2009 the Corporation, at its option, upon giving notice
as provided below, may redeem the Series A Preferred Stock, in whole or from
time to time in part, for cash, at a redemption price of $25.00 per share, plus
all accrued and unpaid distributions on such Series A Preferred Stock to the
date of redemption, whether or not declared (the "Redemption Right").
(c) If fewer than all of the outstanding shares of Series A Preferred Stock are
to be redeemed pursuant to the Redemption Right, the shares to be redeemed shall
be selected pro rata (as nearly as practicable without creating fractional
shares) or by lot or in such other equitable method prescribed by the Board of
Directors. If such redemption is to be by lot and, as a result of such
redemption, any holder of Series A Preferred Stock would become a holder of a
number of Series A Preferred Stock in excess of the Ownership Limit because such
holder's shares of Series A Preferred Stock were not redeemed, or were only
redeemed in part, then, except as otherwise provided in the Charter, the
Corporation shall redeem the requisite number of shares of Series A Preferred
Stock of such holder such that no holder will hold in excess of the Ownership
Limit subsequent to such redemption.
(d) Notwithstanding anything to the contrary contained herein, unless full
cumulative distributions on all shares of Series A Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient is set
apart for payment for all past distribution periods and the then current
distribution period, no shares of Series A Preferred Stock shall be redeemed
unless all outstanding shares of Series A Preferred Stock are simultaneously
redeemed. In addition, unless full cumulative distributions on all shares of
Series A Preferred Stock have been or contemporaneously are declared and paid or
declared and a sum sufficient is set apart for payment for all past distribution
periods and the then current distribution period, the Corporation shall not
purchase or otherwise acquire directly or indirectly any shares of Series A
Preferred Stock or any other shares of equity securities of the Corporation
ranking junior to or on parity with the Series A Preferred Stock as to
distributions or upon liquidation (except by conversion into or exchange for
shares of equity securities of the Corporation ranking junior to the Series A
Preferred Stock as to distributions and upon liquidation). The restrictions in
this Section 5 on redemptions, purchases and other acquisitions shall not
prevent the redemption, purchase or acquisition by the Corporation of Preferred
Stock of any series pursuant to Article IV of the Charter or Section 5(a)
hereof, or otherwise in order to ensure that the Corporation remains qualified
as a REIT for United States federal income tax purposes, or the purchase or
acquisition of Series A Preferred Stock pursuant to a purchase or exchange offer
made on the same terms to all holders of the Series A Preferred Stock.
5
(e) Immediately prior to any redemption of shares of Series A Preferred Stock,
the Corporation shall pay, in cash, any accrued and unpaid distributions to the
redemption date, whether or not declared, unless a redemption date falls after a
Distribution Record Date and prior to the corresponding Distribution Payment
Date, in which case each holder of Series A Preferred Stock at the close of
business on such Distribution Record Date shall be entitled to the distribution
payable on such shares on the corresponding Distribution Payment Date
notwithstanding the redemption of such shares before the Distribution Payment
Date. Except as provided in the previous sentence, the Corporation shall make no
payment or allowance for unpaid distributions, whether or not in arrears, on
Series A Preferred Stock for which a notice of redemption has been given.
(f) The following provisions set forth the procedures for redemption.
(i) Notice of redemption will be mailed by the Corporation, postage prepaid, no
less than 30 nor more than 60 calendar days immediately preceding the redemption
date, addressed to the respective holders of record of the Series A Preferred
Stock to be redeemed at their respective addresses as they appear on the stock
transfer records of the Corporation. No failure to give such notice or any
defect thereto or in the mailing thereof shall affect the validity of the
proceedings for the redemption of any Series A Preferred Stock except as to the
holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the applicable rules
of any exchange upon which the Series A Preferred Stock may be listed or
admitted to trading, each notice shall state: (A) the redemption date; (B) the
redemption price; (C) the number of Series A Preferred Stock to be redeemed; (D)
the place or places where the holders of Series A Preferred Stock may surrender
certificates for payment of the redemption price; and (E) that distributions on
the Series A Preferred Stock to be redeemed will cease to accrue on the
redemption date. If less than all of the Series A Preferred Stock held by any
holder are to be redeemed, the notice mailed to each holder shall also specify
the number of Series A Preferred Stock held by such holder to be redeemed.
(iii) On or after the redemption date, each holder of Series A Preferred Stock
to be redeemed shall present and surrender the certificates representing his
Series A Preferred Stock to the Corporation at the place designated in the
notice of redemption and thereupon the redemption price of such shares
(including all accrued and unpaid distributions up to the redemption date) shall
be paid to or on the order of the person whose name appears on such certificate
representing Series A Preferred Stock as the owner thereof and each surrendered
certificate shall be canceled. If fewer than all the shares represented by any
such certificate representing Series A Preferred Stock are to be redeemed, a new
certificate shall be issued representing the unredeemed shares.
(iv) From and after the redemption date (unless the Corporation defaults in
payment of the redemption price), all distributions on the Series A Preferred
Stock designated for redemption and all rights of the holders thereof,
6
except the right to receive the redemption price thereof and all accrued and
unpaid distributions up to the redemption date, shall terminate with respect to
such shares and such shares shall not thereafter be transferred (except with the
consent of the Corporation) on the Corporation's stock transfer records, and
such shares shall not be deemed to be outstanding for any purpose whatsoever. At
its election, the Corporation, prior to a redemption date, may irrevocably
deposit the redemption price (including accrued and unpaid distributions to the
redemption date) of the Series A Preferred Stock so called for redemption in
trust for the holders thereof with a bank or trust company, in which case the
redemption notice to holders of the Series A Preferred Stock to be redeemed
shall (A) state the date of such deposit, (B) specify the office of such bank or
trust company as the place of payment of the redemption price and (C) require
such holders to surrender the certificates representing such shares at such
place on or about the date fixed in such redemption notice (which may not be
later than the redemption date) against payment of the redemption price
(including all accrued and unpaid distributions to the redemption date). Any
monies so deposited which remain unclaimed by the holders of the Series A
Preferred Stock at the end of two years after the redemption date shall be
returned by such bank or trust company to the Corporation.
(g) Any Series A Preferred Stock that shall at any time have been redeemed
shall, after such redemption, have the status of authorized but unissued
Preferred Stock, without designation as to series until such shares are once
more designated as part of a particular series by the Board of Directors.
(6) Voting Rights.
(a) Holders of the Series A Preferred Stock shall not have any voting rights,
except as set forth below.
Whenever distributions on the Series A Preferred Stock are in arrears for six or
more consecutive quarterly periods (a "Preferred Distribution Default"), the
holders of Series A Preferred Stock (voting together as a single class with all
other equity securities of the Corporation upon which like voting rights have
been conferred and are exercisable ("Parity Preferred Stock")) shall be entitled
to elect a total of two additional directors to the Corporation's Board of
Directors (the "Preferred Stock Directors") at a special meeting called by the
holders of record of at least 10% of the outstanding shares of Series A
Preferred Stock (unless such request is received less than 90 calendar days
before the date fixed for the next annual or special meeting of stockholders)
or, if the request for a special meeting is received by the Corporation less
than 90 calendar days before the date fixed for the next annual or special
meeting of stockholders, at the next annual meeting of stockholders, and at each
subsequent annual meeting until all distributions accrued on the Series A
Preferred Stock for the past distribution periods and the then current
distribution period shall have been fully paid or declared and a sum sufficient
for the payment thereof set aside for payment. On any matter in which the
holders of Series A Preferred Stock are entitled to vote (as expressly provided
herein or as may be required by law), including any action by written consent,
each share of Series A Preferred Stock shall have one vote per share, except
that when shares of any other series of preferred stock of the Corporation shall
7
have the right to vote with the Series A Preferred Stock as a single class on
any matter, then the Series A Preferred Stock and such other series shall have
with respect to such matters one vote per $25.00 of stated liquidation
preference.
(b) If and when all accrued distributions and the distribution for the then
current distribution period on the Series A Preferred Stock shall have been paid
in full or declared and a sum sufficient for the payment thereof set aside for
payment in full, the holders of Series A Preferred Stock shall be divested of
the voting rights set forth in clause (a) above (subject to revesting in the
event of each and every Preferred Distribution Default) and, if all accrued
distributions and the distribution for the then current distribution period have
been paid in full or declared by the Board of Directors and set aside for
payment in full on all other series of Parity Preferred Stock upon which like
voting rights have been conferred and are exercisable, the term of office of
each Preferred Stock Director so elected shall terminate. Any Preferred Stock
Director may be removed at any time with or without cause by the vote or consent
of, and shall not be removed otherwise than by the vote of, the holders of a
majority of the outstanding Series A Preferred Stock when they have the voting
rights set forth in clause (a) above and all other series of Parity Preferred
Stock (voting as a single class). So long as a Preferred Distribution Default
shall continue, any vacancy in the office of a Preferred Stock Director may be
filled by written consent of the Preferred Stock Director remaining in office,
or if none remains in office, by a vote of the holders of a majority of the
outstanding Series A Preferred Stock when they have the voting rights set forth
in clause (a) above and all other series of Parity Preferred Stock (voting as a
single class). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
(c) So long as any Series A Preferred Stock remain outstanding, the Corporation
shall not, without the affirmative vote or consent of the holders of at least
two-thirds of the Series A Preferred Stock outstanding at the time, given in
person or by proxy, either in writing or at a meeting (such series voting
separately as a class), (i) authorize, create or increase the authorized or
issued amount of any class or series of equity securities ranking senior to the
outstanding Series A Preferred Stock with respect to the payment of
distributions or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation or reclassify any
authorized equity securities of the Corporation into any such senior equity
securities, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such senior equity securities; or
(ii) amend, alter or repeal the provisions of the Charter (including these
Articles Supplementary), whether by merger or consolidation (in either case, an
"Event") or otherwise, so as to materially and adversely affect any right,
preference, privilege or voting power of the Series A Preferred Stock; provided,
however, that with respect to any such amendment, alteration or repeal of the
provisions of the Charter (including these Articles Supplementary) upon the
occurrence of an Event, so long as shares of the Series A Preferred Stock remain
outstanding with the terms thereof materially unchanged in any adverse respect,
taking into account that, upon the occurrence of an Event, the Corporation may
not be the surviving entity and such surviving entity may thereafter be the
issuer of the Series A Preferred Stock, the occurrence of any such Event shall
not be deemed to materially and adversely affect the rights, preferences or
voting powers of the Series A Preferred Stock; and provided further that any
increase in the amount of authorized Series A Preferred Stock or the creation or
issuance of or increase in the amount of any other class or series of the
Corporation's equity securities, in each case ranking on parity with or junior
to the Series A
8
Preferred Stock with respect to the payment of distributions and the
distribution of assets upon voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, shall not be deemed to materially and adversely
affect the rights, preferences, privileges or voting powers of the Series A
Preferred Stock.
(d) The foregoing voting provisions shall not apply if, at or prior to the time
when the action with respect to which such vote or consent would otherwise be
required shall be effected, all outstanding Series A Preferred Stock shall have
been redeemed or called for redemption upon proper notice and sufficient funds
shall have been deposited in trust to effect such redemption.
(7) Conversion. The Series A Preferred Stock is not convertible into or
exchangeable for any other property or securities of the Corporation.
(8) Ownership Limitations. The provisions of this Section 8 shall apply with
respect to the limitations on the ownership and acquisition of shares of Series
A Preferred Stock.
(a) Definitions
For the purposes of this Section 8, the following terms shall have the following
meanings:
"Act" shall mean the General Corporation Law of Maryland.
"Beneficial Ownership" shall mean ownership of Series A Preferred Stock by a
Person who would be treated as an owner of such shares of Series A Preferred
Stock either directly or constructively through the application of Section 544
of the Code, as modified by Section 856(h) of the Code. The terms "Beneficial
Owner," "Beneficially Owns" and "Beneficially Owned" shall have the correlative
meanings.
"Charitable Trust" shall mean the trust created pursuant to subparagraph 8(c)(i)
of this Section 8.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time. All section references to the Code shall include any successor provisions
thereof as may be adopted from time to time.
"Constructive Ownership" shall mean ownership of Series A Preferred Stock by a
Person who would be treated as an owner of such shares of Series A Preferred
Stock either directly 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 Owns" and "Constructively Owned" shall
have the correlative meanings.
"Holder" shall mean the record holder of shares of Series A Preferred Stock, or
in the case of shares held by a Purported Record Transferee, the Charitable
Trust.
"Initial Date" shall mean the date upon which the Corporation issues the Series
A Preferred Stock.
9
"IRS" shall mean the United States Internal Revenue Service.
"Market Price" shall mean the last reported sales price reported on the New York
Stock Exchange of Series A Preferred Stock on the trading day immediately
preceding the relevant date, or if the Series A Preferred Stock is not then
traded on the New York Stock Exchange, the last reported sales price of the
Series A Preferred Stock on the trading day immediately preceding the relevant
date as reported on any exchange or quotation system over which the Series A
Preferred Stock may be traded, or if the Series A Preferred Stock is not then
traded over any exchange or quotation system, then the market price of the
Series A Preferred Stock on the relevant date as determined in good faith by the
Board of Directors of the Corporation.
"Ownership Limit" shall mean 9.9% of the outstanding Series A Preferred Stock of
the Corporation, and after any adjustment as set forth in subparagraph 8(i) of
this Section 8, shall mean such greater percentage.
"Partner" shall mean any Person owning Units.
"Partnership" shall mean Cedar Shopping Centers Partnership, L.P., a Delaware
limited partnership.
"Partnership Agreement" shall mean the Agreement of Limited Partnership of the
Partnership, of which the Corporation is the sole general partner, as amended,
as such agreement may be further amended from time to time.
"Person" shall mean an individual, corporation, partnership, estate, trust, 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; but does
not include an underwriter which participates in a public offering of the Series
A Preferred Stock provided that the ownership of Series A Preferred Stock by
such underwriter would not result in the Corporation failing to qualify as a
REIT.
"Purported Transferee" shall mean, with respect to any purported Transfer (or
other event) which results in a violation of subparagraph 8(b) of this Section
8, the purported beneficial transferee or owner for whom the Purported Record
Transferee would have acquired or owned shares of Series A Preferred Stock, if
such Transfer had been valid under such subparagraph.
"Purported Record Transferee" shall mean, with respect to any purported Transfer
which results in a violation of subparagraph 8(b) of this Section 8, the record
holder of the Series A Preferred Stock if such Transfer had been valid under
such subparagraph.
"REIT" shall mean a Real Estate Investment Trust under Section 856 of the Code.
10
"Restriction Termination Date" shall mean the first day on which the Board of
Directors of the Corporation determines that it is no longer in the best
interests of the Corporation to attempt to, or continue to, qualify as a REIT.
"Transfer" shall mean any sale, issuance, transfer, gift, assignment, devise or
other disposition of Series A Preferred Stock as well as any other event that
causes any Person to Beneficially Own or Constructively Own Series A Preferred
Stock (including (i) the granting of any option or entering into any agreement
for the sale, transfer or other disposition of Series A Preferred Stock or (ii)
the sale, transfer. assignment or other disposition of any securities or rights
convertible into or exchangeable for Series A Preferred Stock), whether
voluntary or involuntary, whether of record or beneficially or Beneficially or
Constructively (including but not limited to transfers of interests in other
entities which result in changes in Beneficial or Constrictive Ownership of
Series A Preferred Stock), and whether by operation of law or otherwise.
"Trustee" shall mean the Corporation as trustee for the Charitable Trust, and
any successor trustee appointed by the Corporation.
"Units" shall mean the units into which partnership interests of the Partnership
are divided, and as the same may be adjusted, as provided in the Partnership
Agreement.
(b) Restriction on Ownership and Transfer.
(i) Except as provided in subparagraph 8(k) of this Section 8, from the Initial
Date and prior to the Restriction Termination Date, no Person shall Beneficially
Own shares of Series A Preferred Stock in excess of the Ownership Limit.
(ii) Except as provided in subparagraph 8(k) of this Section 8, from the Initial
Date and prior to the Restriction Termination Date, any Transfer that, if
effective, would result in any Person Beneficially Owning Series A Preferred
Stock in excess of the Ownership Limit shall be void ab initio as to the
Transfer of such shares of Series A Preferred Stock which would be otherwise
Beneficially Owned by such Person in excess of the Ownership Limit; and the
Purported Transferee shall acquire no rights in such shares of Series A
Preferred Stock.
(iii) Except as provided in subparagraph 8(k) of this Section 8, from the
Initial Date and prior to the Restriction Termination Date, any Transfer that,
if effective, would result in the Series A Preferred Stock being beneficially
owned by less than 100 Persons (determined without reference to any rules of
attribution) shall be void ab initio as to the Transfer of such shares of Series
A Preferred Stock which would be otherwise beneficially owned by the transferee;
and the intended transferee shall acquire no rights in such shares of Series A
Preferred Stock.
(iv) Notwithstanding any other provisions contained in this Section 8, from the
Initial Date and prior to the Restriction Termination Date, any Transfer or
other event that, if effective, would result in the Corporation being "closely
held" within the meaning of Section 856(h) of the Code, or would otherwise
result in the Corporation failing to qualify as a REIT (including, but not
limited to, a Transfer or other event that would result in the Corporation
owning (directly or Constructively) an interest in a tenant that is described in
Section
11
856(d)(2)(B) of the Code if the income derived by the Corporation from such
tenant would cause the Corporation to fail to satisfy, any of the gross income
requirements of Section 856(c) of the Code), shall be void ab initio as to the
Transfer of the shares of Series A Preferred Stock which would cause the
Corporation to be "closely held" within the meaning of Section 856(h) of the
Code or would otherwise result in the Corporation failing to qualify as a REIT;
and the intended transferee or owner or Constructive or Beneficial Owner shall
acquire or retain no rights in such shares of Series A Preferred Stock.
(c) Effect of Transfer in Violation of Subparagraph 8(b).
(i) If, notwithstanding the other provisions contained in this Section 8, at any
time after the Initial Date and prior to the Restriction Termination Date, there
is a purported Transfer, or change in the capital structure of the Corporation,
or other event such that one or more of the restrictions on ownership and
transfers described in subparagraph 8(b) above has been violated, then the
shares of Series A Preferred Stock being Transferred (or in the case of an event
other than a Transfer, the shares owned or Constructively Owned or Beneficially
Owned) which would cause one or more of the restrictions on ownership or
transfer to be violated (rounded up to the nearest whole share) (the "Trust
Shares"), shall automatically be transferred to the Corporation, as Trustee of a
trust (the "Charitable Trust") for the exclusive benefit of The American Cancer
Society (the "Designated Charity"), an organization described in Section
170(b)(1)(A ) and 170(c) of the Code. The Purported Transferee shall have no
rights in such Trust Shares.
(ii) The Corporation, as Trustee of the Charitable Trust, may transfer the
shares held in such trust to a Person whose ownership of the shares will not
result in a violation of the ownership restrictions (a "Permitted Transferee").
If such a transfer is made, the interest of the Designated Charity will
terminate and proceeds of the sale will be payable to the Purported Transferee
and to the Designated Charity. The Purported Transferee will receive the lesser
of (1) the price paid by the Purported Transferee for the shares or, if the
Purported Transferee did not give value for the shares, the Market Price of the
shares on the day of the event causing the shares to be held in trust, and (2)
the price per share received by the Corporation, as Trustee, from the sale or
other disposition of the shares held in trust. The Designated Charity will
receive any proceeds in excess of the amount payable to the Purported
Transferee. The Purported Transferee will not be entitled to designate a
Permitted Transferee.
(iii) All stock held in the Charitable Trust will be deemed to have been offered
for sale to the Corporation or its designee for a 90-day period, at the lesser
of the price paid for that stock by the Purported Transferee and the Market
Price on the date that the Corporation accepts the offer. This period will
commence on the date of the violative transfer, if the Purported Transferee
gives notice to the Corporation of the transfer, or the date that the Board of
Directors of the Corporation determines that a violative transfer occurred, if
no such notice is provided.
(iv) Any dividend or distribution paid prior to the discovery by the Corporation
that shares of Series A Preferred Stock have been transferred in violation of
subparagraph 8(b) of this Section 8, shall be repaid to the Corporation upon
demand and shall be
12
held in trust for the Designated Charity. Any dividend or distribution declared
but unpaid shall be rescinded as void ab initio with respect to such shares of
stock.
(v) In the event of any voluntary or involuntary liquidation, dissolution or
winding up of, or any distribution of the assets of, the Corporation, the
Designated Charity shall be entitled to receive, ratably with each other holder
of Series A Preferred Stock, that portion of the assets of the Corporation
available for distribution to its stockholders as the number of Trust Shares
bears to the total number of shares of Series A Preferred Stock then outstanding
(including the Trust Shares). The Corporation, as Trustee, or if the Corporation
shall have been dissolved, any trustee appointed by the Corporation prior to its
dissolution, shall distribute to the Designated Charity, when determined (or if
not determined, or only partially determined, ratably to the other holders of
Series A Preferred Stock who have been determined and the Designated Charity),
any such assets received in respect of the Trust Shares in any liquidation,
dissolution or winding up of, or any distribution of the assets of, the
Corporation.
(vi) The Purported Transferee will not be entitled to vote any Series A
Preferred Stock it attempts to acquire, and any stockholder vote will be
rescinded if a Purported Transferee votes and the stockholder vote would have
been decided differently if such Purported Transferee's vote was not counted.
(d) Remedies for Breach. If the Board of Directors or its designees shall at any
time determine in good faith that a Transfer or other event has taken place in
violation of subparagraph 8(b) of this Section 8 or that a Person intends to
acquire or has attempted to acquire beneficial ownership (determined without
reference to any rules of attribution), Beneficial Ownership or Constructive
Ownership of any shares of Series A Preferred Stock in violation of subparagraph
8(b) of this Section 8, the Corporation shall inform the Purported Transferee of
its obligations pursuant to this Section 8, including such Purported
Transferee's obligations to pay over to the Charitable Trust any and all
dividends received with respect to the Trust Shares. In addition, the Board of
Directors or its designees shall take such action as it deems advisable to
refuse to give effect or to prevent such Transfer, including, but not limited
to, refusing to give effect to such Transfer on the books of the Corporation or
instituting proceedings to enjoin such Transfer and to recover any dividend
erroneously paid and declaring any votes erroneously cast to be retroactively
invalid; provided, however, that any Transfers (or, in the case of events other
than a Transfer, ownership or Constructive Ownership or Beneficial Ownership) in
violation of subparagraph 8(b) of this Section 8 shall automatically result in a
transfer to the Charitable Trust as described in subparagraph 8(c), irrespective
of any action (or non-action) by the Board of Directors.
(e) Notice of Restricted Transfer. Any Person who acquires or attempts to
acquire shares of Series A Preferred Stock in violation of subparagraph 8(b) of
this Section 8, or any Person who is a Purported Transferee, shall immediately
give written notice to the Corporation of such event and shall provide to the
Corporation such other information as the Corporation may request in order to
determine the effect, if any, of such Transfer or attempted Transfer on the
Corporation's status as a REIT.
(f) Owners Required To Provide Information. From the Initial Date and prior to
the Restriction Termination Date each Person who is a beneficial owner or
13
Beneficial Owner or Constructive Owner of Series A Preferred Stock and each
Person (including the stockholder of record) who is holding Series A Preferred
Stock for a Beneficial Owner or Constructive Owner shall provide to the
Corporation such information that the Corporation may request, in good faith, in
order to determine the Corporation's status as a REIT.
(g) Remedies Not Limited. Nothing contained in this Section 8 shall limit the
authority of the Board of Directors to take such other action as it deems
necessary or advisable to protect the Corporation and the interests of its
stockholders by preservation of the Corporation's status as a REIT.
(h) Ambiguity. In the case of an ambiguity in the application of any of the
provisions of subparagraph 8 of this Section 8, including any definition
contained in subparagraph 8(a), the Board of Directors shall have the power to
determine the application of the provisions of this subparagraph 8 with respect
to any situation based on the facts known to it.
(i) Modification of Ownership Limit. Subject to the limitations provided in
subparagraph 8(j), the Board of Directors may from time to time increase the
Ownership Limit and shall file Articles Supplementary with the State Department
of Assessment and Taxation of Maryland to evidence such increase.
(j) Limitations on Modifications.
(i) From the Initial Date and prior to the Restriction Termination Date, the
Ownership Limit may not be increased if, after giving effect to such increase,
five Persons who are Beneficial Owners of Series A Preferred Stock could (taking
into account the Ownership Limit) Beneficially Own, in the aggregate, more than
49.5% of the outstanding Series A Preferred Stock.
(ii) Prior to the modification of any Ownership Limit pursuant to subparagraph
8(i) of this Section 8, the Board of Directors of the Corporation may require
such opinions of counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the Corporation's status
as a REIT.
(k) Exceptions.
(i) The Board of Directors, in its sole discretion, may exempt a Person from the
Ownership Limit, if such Person is not an individual for purposes of Section
542(a)(2) of the Code and the Board of Directors obtains such representations
and undertakings from such Person as are reasonably necessary to ascertain that
no individual's Beneficial Ownership of such shares of Series A Preferred Stock
will violate the Ownership Limit, and agrees that any violation of such
representations or undertaking (or other action which is contrary to the
restrictions contained in this subparagraph 8 of this Section 8) or attempted
violation will result in such shares of Series A Preferred Stock automatically
being transferred to the Charitable Trust.
(ii) Prior to granting any exception pursuant to subparagraph 8(k)(i) of this
Section 8, the Board of Directors may require a ruling from the IRS, or an
opinion of counsel, in either case in form and substance satisfactory to the
Board of Directors in its sole
14
discretion, as it may deem necessary or advisable in order to determine or
ensure the Corporation's status as a REIT.
(l) Legend. Each certificate for shares of Series A Preferred Stock shall bear
legends substantially to the effect of the following:
"The Corporation is authorized to issue two classes of capital stock which are
designated as Common Stock and Preferred Stock. The Board of Directors is
authorized to determine the preferences, limitations and relative rights of the
Preferred Stock before the issuance of any Preferred Stock. The Corporation will
furnish, without charge, to any stockholder making a written request therefor, a
copy of the Corporation's charter and a written statement of the designations,
relative rights, preferences and limitations applicable to each such class of
stock. Requests for the Corporation's charter and such written statement may be
directed to Cedar Shopping Centers, Inc., 44 South Bayles Avenue, Port
Washington, New York 11050, Attention: Secretary.
The shares of Series A Preferred Stock represented by this certificate are
subject to restrictions on ownership and Transfer for the purpose of the
Corporation's maintenance of its status as a Real Estate Investment Trust under
the Code. No Person may Beneficially Own shares of Series A Preferred Stock in
excess of 9.9% (or such greater percentage as may be determined by the Board of
Directors of the Corporation) of the outstanding Series A Preferred Stock of the
Corporation with certain exceptions set forth in the Corporation's charter. Any
Person who attempts to Beneficially Own shares of Series A Preferred Stock in
excess of the above limitations must immediately notify the Corporation. All
capitalized terms in this legend have the meanings defined in the Corporation's
charter. Transfers in violation of the restrictions described above may be void
ab initio.
In addition, upon the occurrence of certain events, if the restrictions on
ownership are violated, the shares of Series A Preferred Stock represented
hereby may be automatically exchanged for Trust Shares which will be held in
trust by the Corporation. The Corporation has an option to acquire Trust Shares
under certain circumstances. The Corporation will furnish to the holder hereof
upon request and without charge a complete written statement of the terms and
conditions of the Trust Shares. Requests for such statement may be directed to
Cedar Shopping Centers, Inc., 44 South Bayles Avenue, Port Washington, New York
11050, Attention: Secretary."
(m) Severability. If any provision of this Section 8 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 provision shall be affected only to
the extent necessary to comply with the determination of such court.
(9) Status. Upon any redemption of shares of Series A Preferred Stock, the
shares of Series A Preferred Stock which are redeemed will be reclassified as
authorized and unissued shares of Preferred Stock, and the number of shares of
Series A Preferred Stock which the Corporation has the authority to issue will
be decreased by the redemption of shares of Series
15
A Preferred Stock, so that the shares of Series A Preferred Stock which were
redeemed may not be reissued.
(10) Exclusion of Other Rights. The shares of Series A Preferred Stock shall not
have any preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or terms or
conditions of redemption other than those specifically set forth in these
Articles Supplementary. The shares of Series A Preferred Stock shall have no
preemptive or subscription rights.
(11) Headings of Subdivisions. The headings of the various subdivisions hereof
are for convenience of reference only and shall not affect the interpretation of
any of the provisions hereof.
(12) Severability of Provisions. If any preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of the Series A Preferred
Stock set forth in the Charter is invalid, unlawful or incapable of being
enforced by reason of any rule of law or public policy, all other preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of Series A Preferred Stock set forth in the Charter which can be
given effect without the invalid, unlawful or unenforceable provision thereof
shall, nevertheless, remain in full force and effect, and no preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications or terms or conditions of
redemption of Series A Preferred Stock herein set forth shall be deemed
dependent upon any other provision thereof unless so expressed therein.
SECOND : The Shares have been classified and designated by the Board of
Directors under the authority contained in the Charter.
THIRD : These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FOURTH : The undersigned President of the Corporation acknowledges these
Articles Supplementary 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to
be executed under seal in its name and on its behalf by its President and
attested to by its Secretary on this 26th of July, 2004.
ATTEST: CEDAR SHOPPING CENTERS, INC.
/s/ STUART H. WIDOWSKI /s/ LEO S. ULLMAN
- -------------------------------------- -----------------------------------
Stuart H. Widowski, Secretary Leo S. Ullman, President
17
CEDAR SHOPPING CENTERS, INC.
ARTICLES SUPPLEMENTARY
87/8% Series A Cumulative Redeemable Preferred Stock
--------------------
Cedar Shopping Centers, Inc., a Maryland corporation (the "Corporation"),
hereby certifies to the State Department of Assessments and Taxation of Maryland
(the "Department") that:
FIRST: By Articles Supplementary filed with the Department on July 27, 2004
(the "July 2004 Articles Supplementary"), the Corporation classified and
designated 2,350,000 shares of Preferred Stock (as defined in the Charter
(defined below)) as shares of 87/8% Series A Cumulative Redeemable Preferred
Stock (the "Series A Preferred Stock"), and set the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications, terms and conditions of redemption and other terms and
conditions of such Series A Preferred Stock, all as set forth in the July 2004
Articles Supplementary.
SECOND: Under a power contained in Article IV of the Articles of
Incorporation of the Corporation, as amended and supplemented (the "Charter"),
the Board of Directors of the Corporation (the "Board of Directors"), by
resolution duly adopted at a meeting duly called and held on April 15, 2004 (the
"Board Resolutions"), and the Pricing Committee of the Board of Directors
established by the Board Resolutions, by resolution duly adopted on March 30,
2005, classified and designated an additional 1,200,000 shares of Preferred
Stock as Series A Preferred Stock (the "Additional Shares of Series A Preferred
Stock") and provided for the issuance thereof. The Additional Shares of Series A
Preferred Stock form a single series with and have the same preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications and terms and conditions of
redemption of shares of stock as the Series A Preferred Stock established
pursuant to the July 2004 Articles Supplementary, all as set forth in the July
2004 Articles Supplementary, except as provided herein. Upon any restatement of
the Charter, Sections 1 and 2 of this Article SECOND shall become part of
Article IV of the Charter, with such changes in enumeration as are necessary to
complete such restatement.
Section 1. Number, Preferences and Other Rights. The number of Additional
Shares of Series A Preferred Stock shall be 1,200,000 and shall form a single
series with the 2,350,000 shares of Series A Preferred Stock established
pursuant to the July 2004 Articles Supplementary for a total of 3,550,000 shares
of Preferred Stock classified and designated as shares of Series A Preferred
Stock. The Additional Shares of Series A Preferred Stock shall have the same
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption of shares of stock
as the 2,350,000 shares of Series A Preferred Stock established pursuant to the
July 2004 Articles Supplementary, all as set forth in the July 2004 Articles
Supplementary, except as provided herein. The par value of the Additional Shares
of Series A Preferred Stock shall be $.01 per share.
Section 2. Distributions. Holders of the Additional Shares of Series A
Preferred Stock shall be entitled to receive the full amount of all
distributions payable in respect of the Series A Preferred Stock from and after
the date of original issuance of the Additional Shares of Series A Preferred
Stock but shall not be entitled to receive any distributions paid or payable
with regard to Series A Preferred Stock prior to the date of such issuance.
THIRD: The Additional Shares of Series A Preferred Stock have been
classified and designated by the Board of Directors under the authority
contained in the Charter.
FOURTH: These Articles Supplementary have been approved by the Board of
Directors in the manner and by the vote required by law.
FIFTH: The undersigned President of the Corporation acknowledges these
Articles Supplementary 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.
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IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary
to be executed under seal in its name and on its behalf by its President and
attested to by its Secretary on this 1st of April, 2005.
ATTEST: CEDAR SHOPPING CENTERS, INC.
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Lise Oelbaum, Assistant Secretary Leo S. Ullman, President
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