CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CBL & ASSOCIATES PROPERTIES, INC.
1. The name of the corporation (which is hereinafter referred to as the
"Corporation") is "CBL & Associates Properties, Inc."
2. The Amended and Restated Certificate of Incorporation of the
Corporation, dated November 2, 1993, as amended by the Certificate of Amendment
to the Amended and Restated Certificate of Incorporation, dated May 2, 1996, as
supplemented by the Certificate of Designation, dated June 25, 1998, and the
Certificate of Designation, dated April 30, 1999, (the "Amended and Restated
Certificate of Incorporation") shall be further amended as provided below.
3. This Certificate of Amendment has been duly proposed by resolutions
adopted and declared advisable by the Board of Directors of the Corporation,
duly adopted by the stockholders of the Corporation and duly executed and
acknowledged by the officers of the Corporation in accordance with the
provisions of Sections 103 and 242 of the General Corporation Law of the state
of Delaware.
4. The text of Article IV of the Amended and Restated Certificate of
Incorporation of the Corporation is hereby amended as follows:
ARTICLE IV
1. The definition of "Beneficial Ownership Limit" shall be amended to read
as follows:
"Beneficial Ownership Limit" shall mean (A) with respect to any Person
other than a Family Group or a member thereof, 6% of the outstanding Equity
Stock of the Corporation, (B) with respect to the Family Groups and their
members in the aggregate, 37.99% of the outstanding Equity Stock of the
Corporation, (C) with respect to the Lebovitz Group and its members in the
aggregate, 25.4% of the outstanding Equity Stock of the Corporation, (D) with
respect to any single member of the David Jacobs Group or the Richard Jacobs
Group that is an Individual, 13.9% of the outstanding Equity Stock of the
Corporation, (E) with respect to any two members of the David Jacobs Group or
the Richard Jacobs Group that are Individuals, 19.9% of the outstanding Equity
Stock of the Corporation and (F) with respect to Jacobs Group and its members in
the aggregate, 19.9% of the outstanding Equity Stock of the Corporation; in each
case, determined by number of shares outstanding, voting power (disregarding, in
the case of the Jacobs Group and its members, any power to designate nominees to
the Corporation's Board of Directors pursuant to the Voting and Standstill
Agreement dated September 25, 2000 among the Corporation, CBL & Associates
Limited Partnership, Jacobs Realty Investors Limited Partnership and others (the
"Voting and Standstill Agreement")) or value (as determined by the
Board of Directors), whichever produces the smallest holding of Equity Stock and
computed taking into account all outstanding shares of Equity Stock and, to the
extent provided by the Code in connection with the determination required by
Section 856(a)(6) of the Code, all shares of Equity Stock issuable under
existing Options and Exchange Rights that have not been exercised or Deferred
Stock that has not vested; provided, however, that (i) in no event shall the
Lebovitz Group or any Person composed of one or more members of the Lebovitz
Group be treated as Beneficially Owning Equity Stock in excess of the
limitations set forth in clauses (B) or (C) above to the extent that the
Lebovitz Group Beneficially Owns not more than the Lebovitz Permitted Ownership
Amount and (ii) in no event shall the Jacobs Group, the David Jacobs Group, the
Richard Jacobs Group or any Person composed of one or more members of any such
group be treated as Beneficially Owning Equity Stock in excess of the
limitations set forth in clauses (B) or (F) above to the extent that the Jacobs
Group Beneficially Owns not more than the Jacobs Permitted Ownership Amount.
2. The definition of "Constructive Ownership Limit" shall be amended to
read as follows:
"Constructive Ownership Limit" shall mean (A) with respect to any Person
other than a Family Group or a member thereof, 6% of the outstanding Equity
Stock of the Corporation and (B) with respect to the Family Groups and their
members in the aggregate, 37.99% of the outstanding Equity Stock of the
Corporation; in each case, determined by number of shares outstanding, voting
power (disregarding, in the case of the Jacobs Group and its members, any power
to designate nominees to the Corporation's Board of Directors pursuant to the
Voting and Standstill Agreement) or value (as determined by the Board of
Directors), whichever produces the smallest holding of Equity Stock and computed
taking into account all outstanding shares of Equity Stock and, to the extent
provided by the Code in connection with the determination required by Section
856(d)(2)(B) of the Code, all shares of Equity Stock issuable under existing
Options and Exchange Rights that have not been exercised or Deferred Stock that
has not vested; provided, however, that (I) except as provided in clause (II)
hereof, (i) in no event shall the Lebovitz Group or any Person composed of one
or more members of the Lebovitz Group be treated as Constructively Owning Equity
Stock in excess of the Constructive Ownership Limit to the extent that the
Lebovitz Group Constructively Owns not more than the Lebovitz Permitted
Ownership Amount and (ii) in no event shall the Jacobs Group, the David Jacobs
Group, the Richard Jacobs Group or any Person composed of one or more members of
any such group be treated as Constructively Owning Equity Stock in excess of the
Constructive Ownership Limit to the extent that the Jacobs Group and its members
Constructively Own not more than the Jacobs Permitted Ownership Amount and (II)
a member of the Lebovitz Group or the Jacobs Group (but not the Lebovitz Group
or the Jacobs Group themselves) will be subject to a Constructive Ownership
Limit of 9.9% of the outstanding Equity Stock of the Corporation at all times
that (x) such member, together with other members of the Lebovitz Group or the
Jacobs Group, as the case may be, each of whom Constructively Owns at least 10%
of the outstanding Equity Stock of the Corporation, Constructively Own, in the
aggregate (a) 10% or more of the total voting power, number of outstanding
shares or value of the outstanding shares of any Tenant that is treated as a
corporation for federal income tax purposes or (b) an interest of 10% or more in
the assets or net profits of any Tenant that is not treated as a corporation for
federal income tax purposes, (y) such member Constructively Owns an equity
interest in such Tenant and (z) the aggregate amount of
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gross income derived by the Corporation in its immediately preceding taxable
year from the Tenants whose ownership is described in clause (x) (taking into
account only ownership by such member and other members of the Group that
includes such member) exceeded $750,000.
3. The definition of "Wolford Group" and all references thereto shall be
deleted.
4. Subparagraph (D)(9) of Article IV is amended by substituting "result in
violation of Section 856(h) of the Code or the receipt of nonqualified income
under Section 856(d)(2)(B) of the Code" for "violate the applicable Ownership
Limit" on the fourth-to-last line thereof.
5. The following definitions shall be added to Article IV(D)(1):
"David Jacobs Group" shall mean (i) the widow of David Jacobs, (ii) the
lineal descendants of David Jacobs and (iii) all Persons that would
Constructively Own or Beneficially Own shares of Equity Stock Constructively
Owned or Beneficially Owned by individuals described in (i) or (ii).
"Family Groups" shall mean the Lebovitz Group, the David Jacobs Group and
the Richard Jacobs Group.
"Individuals" shall mean Persons that are treated as "individuals" for
purposes of Section 542(a)(2) of the Code.
"Jacobs Group" shall mean the David Jacobs Group, the Richard Jacobs Group
and the members of such groups.
"Jacobs Permitted Ownership Amount" shall be defined and adjusted as in the
Share Ownership Agreement.
"Lebovitz Permitted Ownership Amount" shall be defined and adjusted as in
the Share Ownership Agreement.
"Richard Jacobs Group" shall mean (i) Richard Jacobs and each member of his
family for purposes of Section 318(a) or 544 of the Code and (ii) all Persons
that would Constructively Own or Beneficially Own shares of Equity Stock
Constructively Owned or Beneficially Owned by individuals described in (i).
"Share Ownership Agreement" shall mean the Share Ownership Agreement, dated
as of [January 31, 2001] by and between the Corporation, CBL & Associates, Inc.,
Charles B. Lebovitz, Stephen D. Lebovitz, Jacobs Realty Investors Limited
Partnership, Richard E. Jacobs, solely as trustee for the Richard E. Jacobs
Revocable Living Trust and Richard E. Jacobs, solely as trustee for the David H.
Jacobs Marital Trust, as such may be amended from time to time by the parties
thereto.
6. The following subparagraph is added to Article IV(D)(3):
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(c) If the Lebovitz Group or a member thereof or the Jacobs Group or a
member thereof would otherwise Beneficially Own or Constructively Own shares of
Capital Stock in excess of the Lebovitz Permitted Ownership Amount, in the case
of the Lebovitz Group and its members, or the Jacobs Permitted Ownership Amount,
in the case of the Jacobs Group and its members, then the shares of Equity Stock
that otherwise would be so Beneficially Owned or Constructively Owned shall be
designated Shares-in-Trust hereunder and, in accordance with subparagraph E of
this Article IV, transferred automatically and by operation of law to a Trust;
provided, however, that this clause (c) will not apply where the Beneficial and
Constructive Ownership of shares of Equity Stock by the Jacobs Group and its
members, or the Lebovitz Group and its members, as the case may be, would not
violate the limitations that would be imposed upon such group and its members if
there were no special references to such group and its members in this
Certificate of Incorporation.
7. A new subparagraph (D)(14) shall be added to read as follows:
(14) No amendment to this Article IV or modification of the Ownership
Limits pursuant to Article IV(D)(10) or any successor provision shall be
effective if such amendment is adverse to the Jacobs Group or any of its members
(unless Jacobs Realty Investors Limited Partnership, a Delaware limited
partnership, consents) or to the Lebovitz Group or any of its members (unless
LebFam, Inc., a Tennessee corporation, consents) and is not undertaken with
unanimous prior approval of the Corporation's Board of Directors. For the
avoidance of doubt, a decrease in the Standard Beneficial Ownership Limit or a
modification of the Beneficial Ownership Limit in accordance with Article III of
the Share Ownership Agreement shall not be treated as adversely affecting the
Jacobs Group or its members or the Lebovitz Group or its members. References in
this subparagraph (D)(14) to the Jacobs Group or any of its members shall be
deemed deleted after the Share Ownership Agreement has terminated with respect
to the Jacobs Group and its Members. References in this subparagraph (D)(14) to
the Lebovitz Group or any of its members shall be deemed deleted after the Share
Ownership Agreement has terminated with respect to the Lebovitz Group and its
Members.
8. A new subparagraph (I) for Article IV shall be added to read as follows:
I Furnishing Copies
Copies of the Voting and Standstill Agreement and the Share Ownership
Agreement will be furnished by the Corporation without charge to each
shareholder who so requests.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by its Chairman of the Board and Chief Executive Officer
and attested to by its Secretary this __ day of ________, 2001.
CBL & ASSOCIATES PROPERTIES, INC.
BY:
------------------------------
Charles B. Lebovitz
Chairman of the Board
and Chief Executive Officer
Attest:
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John N. Foy
Secretary
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