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[The following is the text of the Amended and Restated Certificate of
Incorporation of CBL & Associates Properties, Inc. as filed with the Secretary
of State of the State of Delaware on November 2, 1996, as amended by a
Certificate of Amendment thereto filed with the Secretary of State of the
State of Delaware on May 8, 1996]
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CBL & ASSOCIATES PROPERTIES, INC.
ARTICLE I
The name of the corporation (which is hereinafter referred to
as the "Corporation") shall be CBL & Associates Properties, Inc.
ARTICLE II
The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle, 19801. The name of the Corporation's
registered agent at such address is The Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware (the "GCL").
ARTICLE IV
A. Classes and Number of Shares.
The total number of shares of all classes of Equity Stock that
the Corporation shall have authority to issue is One Hundred Million
(100,000,000) shares, consisting of (i) Five Million (5,000,000) shares of
preferred stock, par value $.01 per share (the "Preferred Stock"), and (ii)
Ninety-Five Million (95,000,000) shares of common stock, par value $.01 per
share (the "Common Stock").
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B. Preferred Stock.
The Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to provide for the
issuance of shares of Preferred Stock in series and, by filing a certificate
pursuant to the applicable law of the State of Delaware (hereinafter referred to
as a "Preferred Stock Designation"), to establish from time to time the number
of shares to be included in each such series, and to fix the designation,
powers, preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof. The authority of the Board
of Directors with respect to each series shall include, but not be limited to,
determination of the following:
(i) The designation of the series, which may
be by distinguishing number, letter or title;
(ii) The number of shares of the series, which number the
Board of Directors may thereafter (except where otherwise provided in
the Preferred Stock Designation) increase or decrease (but not below
the number of shares thereof then outstanding);
(iii) Whether dividends, if any, shall be
cumulative or noncumulative and the dividend rate of the series;
(iv) Dates at which dividends, if any, shall be
payable;
(v) The redemption rights and price or prices, if
any, for shares of the series;
(vi) The terms and amounts of any sinking fund
provided for the purchase or redemption of shares of the series;
(vii) The amounts payable on shares of the series
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation;
(viii) Whether the shares of the series shall be
convertible into shares of any other class or series, or any other
security, of the Corporation or any other corporation, and, if so,
the specification of such other class or series of such other
security, the conversion price or prices or rate or rates, any
adjustments thereof, the date or dates on which such shares shall be
convertible and all other terms and conditions upon which such
conversion may be made;
(ix) Restrictions on the issuance of shares of the
same series or of any other class or series; and
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(x) The voting rights, if any, of the holders of
shares of the series.
C. Common Stock.
(1) Common Stock Subject to Terms of Preferred Stock.
The Common Stock shall be subject to the express terms of the
Preferred Stock and any series thereof.
(2) Dividend Rights. Except as otherwise provided in this
Certificate of Incorporation, the holders of shares of Common Stock shall be
entitled to receive such dividends as may be declared by the Board of Directors
of the Corporation out of funds legally available therefor. Until such time, if
any, as the Corporation determines to discontinue its status as a real estate
investment trust under Section 856 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code"), in accordance with paragraph (g) of
Article VI, the Corporation shall declare and pay such dividends as may be
required under the Code, to qualify for treatment as, and to maintain the
Corporation's status as, a real estate investment trust under Section 856 of the
Code.
(3) Rights Upon Liquidation. 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 of shares of Common Stock shall be
entitled to receive, ratably with each other holder of shares of Common Stock,
that portion of the assets of the Corporation available for distribution to the
holders of its Common Stock 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.
(4) Voting Rights. Except as may be provided in this
Certificate of Incorporation, the holders of shares of Common Stock shall have
the exclusive right to vote on all matters (for which a common stockholder shall
be entitled to vote thereon) at all meetings of the stockholders of the
Corporation, and shall be entitled to one vote for each share of Common Stock
entitled to vote at such meeting.
D. Restrictions on Transfer; Designation of Shares-in-Trust.
(1) Definitions. For the purposes of this Article IV,
the following terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of
Equity Stock by a Person who would be treated as an owner of such shares of
Equity Stock either directly or indirectly through the application of Sections
542 and 544 of the Code, as modified by Section 856(h)(1)(B) of the Code, and
any comparable successor
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provisions thereto. The terms "Beneficial Owner," "Beneficially Owns" and
"Beneficially Owned" shall have correlative meanings.
"Beneficial Ownership Limit" shall mean (A) with
respect to any Person other than members of the Lebovitz Group and the Wolford
Group, 6% of the outstanding Equity Stock of the Corporation, (B) with respect
to the Lebovitz Group, 23% of the outstanding Equity Stock of the Corporation
and (C) with respect to the Wolford Group, 8% of the outstanding Equity Stock
of the Corporation, in each case, determined by (i) number of shares
outstanding, (ii) voting power or (iii) value (as determined by the Board of
Directors), whichever produces the smallest holding of Equity Stock under the
three methods, and computed taking into account all outstanding shares of
Equity Stock and, to the extent provided by 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.
"Beneficiary" shall mean, with respect to any
Trust, one or more organizations described in each of Section 170(b)(1)(A) and
Section 170(c) of the Code as designated by the Corporation from time to time
as the beneficiary or beneficiaries of such Trust.
"Board of Directors" shall mean the Board of
Directors of the Corporation.
"Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
"Constructive Ownership" shall mean ownership of
Equity Stock by a Person who would be treated as an owner of such Equity Stock
either directly or indirectly through the application of Section 318 of the
Code, as modified by Section 856(d)(5) of the Code, and any comparable
successor provisions thereto. The terms "Constructive Owner," "Constructively
Owns" and "Constructively Owned" shall have correlative meanings.
"Constructive Ownership Limit" shall mean (A) with
respect to any Person other than members of the Lebovitz Group and the Wolford
Group, 6% of the outstanding Equity Stock of the Corporation, (B) with respect
to the Lebovitz Group, 23% of the outstanding Equity Stock of the Corporation
and (C) with respect to the Wolford Group, 8% of the outstanding Equity Stock
of the Corporation, in each case, determined by (i) number of shares
outstanding, (ii) voting power or (iii) value (as determined by the Board of
Directors), whichever produces the smallest holding of Equity Stock under the
three methods, and computed taking into account all outstanding shares of
Equity Stock and, to the extent provided by 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
members of the Lebovitz Group or the Wolford Group shall be
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subject to a Constructive Ownership Limit of 9.9% of the outstanding Equity
Stock of the Corporation at all times that (x) members of the Lebovitz Group
or the Wolford Group Constructively Own (i) 10% or more of either the total
combined voting power of all classes of stock entitled to vote or the total
number of outstanding shares of stock of any Tenant that is treated as a
corporation for federal income tax purposes or (ii) 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 and (y) the aggregate amount of
income derived by the Corporation in its immediately preceding taxable year
from the Tenants whose ownership is described in clause (x) hereof exceeded
the amount derived from Tenants on the date of the Initial Public Offering,
adjusted as provided herein.
"Deferred Stock" shall mean shares of Deferred
Stock issued under the CBL & Associates Properties, Inc. 1993 Stock Incentive
Plan, as the same may be amended from time to time, or under any similar type
of deferred stock plan authorized by the Board of Directors.
"Equity Stock" shall mean stock that is either
Preferred Stock or Common Stock and shall include all shares of Preferred
Stock or Common Stock that are held as Shares-in-Trust in accordance with the
provisions of paragraph E of this Article IV.
"Exchange Rights" shall mean any rights granted to
limited partners of CBL & Associates Limited Partnership, a Delaware limited
partnership, to exchange (subject to the applicable Ownership Limit) limited
partnership interests in such partnership for shares of Common Stock.
"Independent" shall have the meaning set forth in
paragraph (d) of Article VI.
"Initial Public Offering" shall mean the sale of
shares of Common Stock pursuant to the Corporation's first effective
registration statement for such Common Stock filed under the Securities Act of
1933, as amended.
"Lebovitz Group" shall mean (i) Charles B. Lebovitz
and (ii) any Beneficial Owner or Constructive Owner of shares of Equity Stock
whose shares of Equity Stock are Beneficially Owned or Constructively Owned by
Charles B. Lebovitz or members of his family.
"Market Price" of any class of Equity Stock on any
date shall mean the average of the Closing Price for the five consecutive
Trading Days ending on such date. The "Closing Price" in respect of any class
of Equity Stock on any date shall mean (i) the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the closing
bid and
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asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange, or (ii) if such class of
Equity Stock is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities
exchange on which such class of Equity Stock is listed or admitted to trading,
or (iii) if such class of Equity Stock is not listed or admitted to trading on
any national securities exchange, the last quoted price, or if not so quoted,
the average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System or, if such system is no longer in use, the
principal other automated quotations system that may then be in use, or (iv)
if such class of Equity Stock is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in such class of Equity Stock selected by the
Board of Directors. "Trading Day" shall mean, with respect to any class of
Equity Stock, a day on which the principal national securities exchange on
which such class of Equity Stock is listed or admitted to trading is open for
the transaction of business or, if such class of Equity Stock is not listed or
admitted to trading on any national securities exchange, any day other than a
Saturday, a Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
"Non-Transfer Event" shall mean an event other than
a purported Transfer that would cause any Person to Beneficially Own or
Constructively Own shares of Equity Stock in excess of the applicable
Ownership Limit, including, but not limited to, the granting of any option or
entering into any agreement for the sale, transfer or other disposition of
Equity Stock or the sale, transfer, assignment or other disposition of any
securities or rights convertible into or exchangeable for Equity Stock.
"Options" shall mean any options, rights, warrants
or convertible or exchangeable securities containing the right to subscribe
for or purchase shares of Equity Stock.
"Ownership Limits" shall mean the Beneficial
Ownership Limit and the Constructive Ownership Limit. "Ownership Limit" shall
mean the Beneficial Ownership Limit or the Constructive Ownership Limit, as
appropriate.
"Permitted Transferee" shall mean any Person
designated as a Permitted Transferee in accordance with the provisions of
subparagraph E(5) hereof.
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"Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Section 401(a)
or 501(c)(17) of the Code), a portion of a trust permanently set aside for or
to be used exclusively for the purposes described in Section 642(c) of the
Code, association, private foundation within the meaning of Section 509(a) of
the Code, joint stock company or other entity and also includes a group as
that term is used for purposes of Section 13(d)(3) of the Securities Exchange
Act of 1934, as amended, provided, however, that the term "Person" shall not
include an underwriter or group of underwriters participating in the Initial
Public Offering (with respect to shares issued in connection with the Initial
Public Offering) for a period of 180 days from the commencement of the Initial
Public Offering.
"Prohibited Owner" shall mean, with respect to any
purported Transfer or Non-Transfer Event, any Person who, but for the
provisions of subparagraph (D)(3) of this Article IV, would own record title
to shares of Equity Stock.
"REIT" shall mean a real estate investment trust
under Section 856 of the Code.
"Restriction Termination Date" shall mean the first
day after the date of the Initial Public Offering on which the Corporation's
status or a REIT shall have been terminated by the Board of Directors and the
stockholders of the Corporation pursuant to subparagraph (g) of Article VI.
"Tenant" shall mean any Person that leases or
subleases real property owned, directly or indirectly, by the Corporation or
any partnership of which the Corporation is a partner.
"Transfer" shall mean any sale, transfer, gift,
hypothecation, pledge, assignment, devise or other disposition of Equity Stock
(including (i) the granting of any option (including an option to acquire an
option or any series of such options) or entering into any agreement for the
sale, transfer or other disposition of Equity Stock or (ii) the sale,
transfer, assignment or other disposition of any securities or rights
convertible into or exchangeable for Equity Stock), whether voluntary or
involuntary, whether of record, constructively or beneficially and whether by
operation of law or otherwise.
"Trust" shall mean any separate trust created
pursuant to subparagraph D(3) of this Article IV and administered in
accordance with the terms of subparagraph E of this Article IV, for the
exclusive benefit of one or more Beneficiaries.
"Trustee" shall mean any person or entity
unaffiliated with both the Corporation and any Prohibited Owner,
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such Trustee to be designated by the Corporation to act as trustee of any
Trust, or any successor trustee thereof.
"Wolford Group" shall mean (i) James L. Wolford and
(ii) any Beneficial Owner or Constructive Owner of shares of Equity Stock
whose shares of Equity Stock are Beneficially Owned or Constructively Owned by
James L. Wolford or members of his family.
(2) Restriction on Transfers.
(a) Except as provided in subparagraph D(9) of
this Article IV, from the date of the Initial Public Offering and prior to the
Restriction Termination Date, no Person shall Beneficially Own or
Constructively Own shares of the outstanding Equity Stock in excess of the
applicable Ownership Limit.
(b) Except as provided in subparagraph D(9) of
this Article IV, from the date of the Initial Public Offering and prior to the
Restriction Termination Date, any Transfer that, if effective, would result in
any Person Beneficially Owning or Constructively Owning Equity Stock in excess
of the applicable Ownership Limit shall be void ab initio as to the Transfer
of that number of shares of Equity Stock which would be otherwise Beneficially
Owned or Constructively Owned by such Person in excess of the applicable
Ownership Limit; and the intended transferee shall acquire no rights in such
shares of Equity Stock in excess of the applicable Ownership Limit.
(c) From the date of the Initial Public Offering
and prior to the Restriction Termination Date, any Transfer that, if
effective, would result in the Equity Stock being beneficially owned by fewer
than 100 Persons (determined without reference to any rules of attribution)
shall be void ab initio.
(d) From the date of the Initial Public Offering
and prior to the Restriction Termination Date, any Transfer of shares of
Equity Stock that, if effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Code shall be void
ab initio as to the Transfer of that number of shares of Equity Stock which
would cause the Corporation to be "closely held" within the meaning of Section
856(h) of the Code; and the intended transferee shall acquire no rights in
such shares of Equity Stock in excess of the applicable Ownership Limit.
(3) Transfer in Trust.
(a) If, notwithstanding the other provisions
contained in this Article IV, at any time after the date of the Initial Public
Offering and prior to the Restriction Termination Date, there is a purported
Transfer or Non-Transfer Event such that any Person would either Beneficially
Own or Constructively
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Own Equity Stock in excess of the applicable Ownership Limit, then, (i) except
as otherwise provided in subparagraph D(9), the purported transferee shall
acquire no right or interest (or, in the case of a Non-Transfer Event, the
person holding record title to the Equity Shares Beneficially Owned or
Constructively Owned by such Beneficial Owner or Constructive Owner, shall
cease to own any right or interest) in such number of shares of Equity Stock
which would cause such Beneficial Owner or Constructive Owner to Beneficially
Own or Constructively Own shares of Equity Stock in excess of the applicable
Ownership Limit; and (ii) such number of shares of Equity Stock in excess of
the applicable Ownership Limit (rounded up to the nearest whole share) shall
be designated Shares-in-Trust and, in accordance with subparagraph E of this
Article IV, transferred automatically and by operation of law to a Trust. Such
transfer to a Trust and the designation of the shares as Shares-in-Trust shall
be effective as of the close of business on the business day prior to the date
of the purported Transfer or Non-Transfer Event, as the case may be.
(b) If, notwithstanding the other provisions
contained in this Article IV, at any time after the date of the Initial Public
Offering and prior to the Restriction Termination Date, there is a purported
Transfer or Non-Transfer Event that, if effective, would cause the Corporation
to become "closely held" within the meaning of Section 856(h) of the Code,
then (i) the purported transferee shall not acquire any right or interest (or,
in the case of a Non-Transfer Event occurred, shall cease to own any right or
interest) in such number of shares of Equity Stock, the ownership of which by
such purported transferee or record holder would cause the Corporation to be
"closely held" within the meaning of Section 856(h) of the Code; and (ii) such
number of shares of Equity Stock (rounded up to the nearest whole share) shall
be designated Shares-in-Trust and, in accordance with the provisions of
subparagraph E of this Article IV, transferred automatically and by operation
of law to the Trust to be held in accordance with that subparagraph E. Such
transfer to a Trust and the designation of shares as Shares-in-Trust shall be
effective as of the close of business on the business day prior to the date of
the Transfer or Non-Transfer Event, as the case may be.
(4) Remedies For Breach. If the Corporation or its designees
shall at any time determine in good faith that a Transfer or other event has
taken place in violation of subparagraph D(2) of this Article IV or that a
Person intends to acquire or has attempted to acquire Beneficial Ownership or
Constructive Ownership of any shares of Equity Stock in violation of
subparagraph D(2) of this Article IV, the Corporation or its designees shall
take such action as it or they deem advisable to refuse to give effect to or to
prevent such Transfer or other event, including, but not limited to, refusing to
give effect to such Transfer or other event on the books of the Corporation or
instituting proceedings to enjoin such Transfer or other event.
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(5) Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire shares of Equity Stock in violation of subparagraph D(2) of
this Article IV, or any Person who owned shares of Equity Stock that were
transferred to the Trust pursuant to the provisions of subparagraph D(3) of this
Article IV, 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 the Non-Transfer Event, as the case may be, on the Corporation's
status as a REIT.
(6) Owners Required To Provide Information. From the
date of the Initial Public Offering and prior to the Restriction Termination
Date:
(a) Every Beneficial Owner or Constructive Owner
of more than 5%, or such lower percentage as required pursuant to regulations
under the Code, of the outstanding Equity Stock of the Corporation shall,
before January 30 of each year, give written notice to the Corporation stating
the name and address of such Beneficial Owner or Constructive Owner, the
general ownership structure of such Beneficial Owner or Constructive Owner,
the number of shares of each class of Equity Stock Beneficially Owned or
Constructively Owned, and a description of how such shares are held. Each such
Beneficial Owner or Constructive Owner shall provide to the Corporation such
additional information as the Corporation may request in order to determine
the effect, if any, of such Beneficial Ownership on the Corporation's status
as a REIT and to ensure compliance with the Ownership Limits.
(b) Each Person who is a Beneficial Owner or
Constructive Owner of Equity Stock and each Person (including the stockholder
of record) who is holding Equity Stock for a Beneficial Owner or Constructive
Owner shall provide on demand to the Corporation such information as the
Corporation may reasonably request from time to time in order to determine the
Corporation's status as a REIT and to ensure compliance with the Ownership
Limits.
(7) Remedies Not Limited. Nothing contained in this Article IV
shall limit the authority of the Corporation 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 and to ensure
compliance with the Ownership Limits.
(8) Ambiguity. In the case of an ambiguity in the
application of any of the provisions of subparagraph D of this Article IV,
including any definition contained in subparagraph D(1), the Board of
Directors shall have the power to determine
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the application of the provisions of this subparagraph D with respect to any
situation based on the facts known to it.
(9) Exception. The Corporation, upon receipt of a ruling from
the Internal Revenue Service or an opinion of tax counsel in each case to the
effect that the restrictions contained in subparagraph D(2)(a), (b), (c) or (d)
will not be violated, may, subject to such conditions as the Corporation may
deem appropriate, exempt a Person from the applicable Ownership Limit (A)(i) if
such Person is not an individual for purposes of Section 542(a)(2) of the Code
or (ii) if such Person is an underwriter which participates in a public offering
of Common Stock or Preferred Stock for a period of 90 days following the
purchase by such underwriter of the Common Stock or Preferred Stock or (iii) in
such other circumstances which the Corporation determines are appropriately
excepted from the applicable Ownership Limit and (B) if the Corporation obtains
such representations and undertakings from such Person as are reasonably
necessary to ascertain that such Person's Beneficial Ownership or Constructive
Ownership of Equity Stock will not violate the applicable Ownership Limit and
agrees that any violation or attempted violation will result in such Equity
Stock being transferred to the Trust pursuant to subparagraph D(3) of this
Article IV.
(10) Modification of Ownership Limit. Subject to the
limitations contained in subparagraph D(11), the Board of Directors may from
time to time modify the Ownership Limits.
(11) Limitations on Modifications.
(a) The Ownership Limits may not be modified if,
after giving effect to such modification, five or fewer Persons could
Beneficially Own, in the aggregate, more than 50% of the total value of the
outstanding Equity Stock.
(b) The Ownership Limits may not be modified if,
after giving effect to such modification, the Corporation would fail to meet
the requirements for qualification as a REIT under the Code.
(c) Prior to any modifications of the Ownership
Limits, 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.
(12) Legend. Until the Restriction Termination Date,
each certificate for the respective class of Equity Stock shall bear the
following legend:
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"The shares of Equity Stock represented by this certificate
are subject to restrictions on transfer for the purpose of
the Corporation's maintenance of its status as a real estate
investment trust under the Internal Revenue Code of 1986, as
amended from time to time (the "Code"). Transfers in
contravention of such restrictions may be void ab initio.
Unless otherwise determined by the Board of Directors of the
Corporation, no Person may (1) Beneficially Own or
Constructively Own shares of Equity Stock in excess of 6% of
the total value of the outstanding Equity Stock of the
Corporation, determined as provided in the Corporation's
Amended and Restated Certificate of Incorporation, as the
same may be further amended from time to time (the
"Certificate of Incorporation") (computed taking into
account all outstanding shares of Equity Stock and all
shares of Equity Stock issuable under existing Options and
Exchange Rights that have not been exercised or Deferred
Stock that has not vested) unless such Person is a member of
the Lebovitz Group or the Wolford Group (in which case a
higher Ownership Limit shall be applicable); or (2)
Beneficially Own Equity Stock which would result in the
Corporation being "closely held" under Section 856(h) of the
Code. Any acquisition of Equity Stock and continued holding
of ownership of Equity Stock constitutes a continuous
representation of compliance with the above limitations, and
any Person who attempts to Beneficially Own or
Constructively Own shares of Equity Stock in excess of the
above limitations must immediately so notify the
Corporation. If the restrictions above are violated, the
shares of Equity Stock represented hereby will be
transferred automatically and by operation of law to a Trust
and shall be designated Shares-in-Trust. In addition,
certain Beneficial Owners or Constructive Owners of Equity
Stock must give written notice as to certain information on
a semi-annual or annual basis. All capitalized terms in this
legend have the meanings defined in the Certificate of
Incorporation, a copy of which, including the restrictions
on transfer, will be sent without charge to each stockholder
who so requests."
(13) Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative
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vote of the holders of 66-2/3% of the outstanding voting stock, voting
together as a single class, shall be required to amend, repeal or adopt any
provision inconsistent with the definitions of "Beneficial Ownership Limit" or
"Constructive Ownership Limit" or subparagraph (10) or (11) of paragraph D of
this Article IV. A majority of the Independent members of the Board of
Directors, however, shall have the authority to change the amount referred to
in clause (y) of the definition of "Constructive Ownership Limit."
E. Shares-in-Trust.
(1) Trust. Any shares of Equity Stock transferred to a Trust
and designated Shares-in-Trust pursuant to subparagraph D(3) of this Article IV
shall be held for the exclusive benefit of the Beneficiary. Any transfer to a
Trust, and subsequent designation of shares of Equity Stock as Shares-in-Trust,
pursuant to subparagraph D(3) of this Article IV shall be effective as of the
close of business on the business day prior to the date of the Transfer or
Non-Transfer Event that results in the transfer to the Trust. Shares-in-Trust
shall remain issued and outstanding shares of Equity Stock of the Corporation
and shall be entitled to the same rights and privileges on identical terms and
conditions as are all other issued and outstanding shares of Equity Stock of the
same class and series. When transferred to the Permitted Transferee in
accordance with the provisions of subparagraph E(5) of this Article IV, such
Shares-in-Trust shall cease to be designated as Share-in-Trust.
(2) Dividend Rights. The Trustee, as record holder of
Shares-in-Trust, shall be entitled to receive all dividends and distributions as
may be declared by the Board of Directors of the Corporation on such shares of
Equity Stock and shall hold such dividends or distributions in trust for the
benefit of the Beneficiary. The Prohibited Owner with respect to Shares-in-Trust
shall repay to the Trustee the amount of any dividends or distributions received
by it that (i) are attributable to any shares of Equity Stock designated
Shares-in-Trust and (ii) the record date of which was on or after the date that
such shares became Shares-in-Trust. The Corporation shall take all measures that
it determines reasonably necessary to recover the amount of any such dividend or
distributions paid to a Prohibited Owner, including, if necessary, withholding
any portion of future dividends or distributions payable on shares of Equity
Stock Beneficially Owned or Constructively Owned by the Person who, but for the
provisions of subparagraph D(3) of this Article IV, would Constructively Own or
Beneficially Own the Shares-in-Trust; and, as soon as reasonably practicable
following the Corporation's receipt or withholding thereof, shall pay over to
the Trustee for the benefit of the Beneficiary the dividends so received or
withheld, as the case may be.
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(3) Rights Upon Liquidation. 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 of Shares-in-Trust shall be entitled
to receive, ratably with each other holder of Equity Stock of the same class or
series, that portion of the assets of the Corporation which is available for
distribution to the holders of such class and series of Equity Stock. The
Trustee shall distribute to the Prohibited Owner the amounts received upon such
liquidation, dissolution, or winding up, or distribution; provided, however,
that the Prohibited Owner shall not be entitled to receive amounts pursuant to
this subparagraph E(3) in excess of, in the case of a purported Transfer in
which the Prohibited Owner gave value for shares of Equity Stock and which
Transfer resulted in the transfer of the shares to the Trust, the price per
share, if any, such Prohibited Owner paid for the Equity Stock and, in the case
of a Non-Transfer Event or Transfer in which the Prohibited Owner did not give
value for such shares (e.g., if the shares were received through a gift or
devise) and which Non-Transfer Event or Transfer, as the case may be, resulted
in the transfer of shares to the Trust, the price per share equal to the Market
Price on the date of such Non-Transfer Event or Transfer. Any remaining amount
in such Trust shall be distributed to the Beneficiary.
(4) Voting Rights. The Trustee shall be entitled to vote all
Shares-in-Trust. Any vote by a Prohibited Owner as a holder of shares of Equity
Stock prior to the discovery by the Corporation that the shares of Equity Stock
are Shares-in-Trust shall, subject to applicable law, be rescinded and shall be
void ab initio with respect to such Shares-in-Trust and the Prohibited Owner
shall be deemed to have given, as of the close of business on the business day
prior to the date of the purported Transfer or Non-Transfer Event that results
in the transfer to the Trust of the shares of Equity Stock under subparagraph
D(3) of this Article IV, an irrevocable proxy to the Trustee to vote the
Shares-in-Trust in the manner in which the Trustee, in its sole and absolute
discretion, desires.
(5) Designation of Permitted Transferee. The Trustee shall
have the exclusive and absolute right to designate a Permitted Transferee of any
and all Shares-in-Trust. As reasonably practicable as possible, in an orderly
fashion so as not to materially adversely affect the Market Price of the
Shares-in-Trust, the Trustee shall designate any Person as Permitted Transferee,
provided, however, that (i) the Permitted Transferee so designated purchases for
valuable consideration (whether in a public or private sale) the Shares-in-Trust
and (ii) the Permitted Transferee so designated may acquire such Shares-in-Trust
without such acquisition resulting in a transfer to a Trust and the
redesignation of such shares of the Equity Stock so acquired as Shares-in-Trust
under subparagraph D(3) of this Article IV. Upon the designation by the Trustee
of a Permitted Transferee in accordance with the provisions of this
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subparagraph, the Trustee of a Trust shall (i) cause to be transferred to the
Permitted Transferee that number of Shares-in-Trust acquired by the Permitted
Transferee; (ii) cause to be recorded on the books of the Corporation that the
Permitted Transferee is the holder of record of such number of shares of
Equity Stock; and (iii) distribute to the Beneficiary any and all amounts held
with respect to the Shares-in-Trust after making that payment to the
Prohibited Owner pursuant to subparagraph E(6) of this Article IV.
(6) Compensation to Record Holder of Shares of Equity Stock
that Become Shares-in-Trust. Any Prohibited Owner shall be entitled (following
discovery of the Shares-in-Trust and subsequent designation of the Permitted
Transferee in accordance with subparagraph D(5) of this Article IV) to receive
from the Trustee the lesser of (i) in the case of (a) a purported Transfer in
which the Prohibited Owner gave value for shares of Equity Stock and which
Transfer resulted in the transfer of the shares to the Trust, the price per
share, if any, such Prohibited Owner paid for the Equity Stock, or (b) a
Non-Transfer Event or Transfer in which the Prohibited Owner did not give value
for such shares (e.g., if the shares were received through a gift or devise) and
which Non-Transfer Event or Transfer, as the case may be, resulted in the
transfer of shares to the Trust, the price per share equal to the Market Price
on the date of such Non-Transfer Event or Transfer, and (ii) the price per share
received by the Trustee of the Trust from the sale or other disposition of such
Shares-in-Trust in accordance with subparagraph E(5) of this Article IV. Any
amounts received by the Trustee in respect of such Shares-in-Trust and in excess
of such amounts to be paid the Prohibited Owner pursuant to this subparagraph
E(6) of this Article IV shall be distributed to the Beneficiary in accordance
with the provisions of subparagraph E(5) of this Article IV. Each Beneficiary
and Prohibited Owner waive any and all claims that they may have against the
Trustee and the Corporation arising out of the disposition of Shares-in-Trust,
except for claims arising out of the gross negligence or willful misconduct of,
or any failure to make payments in accordance with paragraph E of this Article
IV by, such Trustee or the Corporation.
(7) Purchase Right in Shares-in-Trust. Shares-in-Trust shall
be deemed to have been offered for sale to the Corporation, or its designee, at
a price per share equal to the lesser of (i) the price per share in the
transaction that created such Shares-in-Trust (or, in the case of devise, gift
or Non-Transfer Event, the Market Price at the time of such devise, gift or
Non-Transfer Event) and (ii) the Market Price on the date the Corporation, or
its designee, accepts such offer. The Corporation shall have the right to accept
such offer for a period of ninety days after the later of (i) the date of the
Non-Transfer Event or purported Transfer which resulted in such Shares-in-Trust
and (ii) the date the Corporation determines in good faith that a Transfer or
Non-Transfer Event resulting in Shares-in-Trust has occurred, if the Corporation
does not receive
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a notice of such Transfer or Non-Transfer Event pursuant to subparagraph D(5)
of this Article IV.
F. Issuance of Rights to Purchase Securities and Other Property.
Subject to the rights of the holders of any series of
Preferred Stock, the Board of Directors is hereby authorized to create and to
authorize and direct the issuance (on either a pro rata or a non-pro rata basis)
by the Corporation of rights, options and warrants for the purchase of shares of
Equity Stock, other securities of the Corporation, or shares or other securities
of any successor in interest of the Corporation (a "Successor"), at such times,
in such amounts, to such persons, for such consideration (if any), with such
form and content (including without limitation the consideration for which any
shares of Equity Stock, other securities of the Corporation, or shares or other
securities of any Successor are to be issued) and upon such terms and conditions
as it may, from time to time, determine upon, subject only to the restrictions,
limitations, conditions and requirements imposed by the GCL, other applicable
laws and this Certificate.
G. 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 provision shall be affected only to
the extent necessary to comply with the determination of such court.
H. New York Stock Exchange Transactions.
Nothing in this Article IV, shall preclude the settlement of
any transaction entered into through the facilities of the New York Stock
Exchange.
ARTICLE V
(a) In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to (i)
make, alter, amend or repeal the Bylaws of the Corporation (the "Bylaws");
provided, however, that 66-2/3% of the voting power of the then outstanding
shares of capital stock of the Corporation entitled to vote generally in the
election of directors ("Voting Stock"), voting together as a single class, may
alter, amend or repeal any provision of the Bylaws, and (ii) from time to time
determine whether and to what extent, and at what times and places, and under
what conditions and regulations, the accounts and books of the Corporation, or
any of them, shall be open to inspection of stockholders; and, except as so
determined or as provided in any Preferred Stock Designation, no
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stockholder shall have any right to inspect any account, book or document of
the Corporation other than such rights as may be conferred by applicable law.
(b) The Corporation may in its Bylaws confer powers upon the
Board of Directors in addition to the foregoing and in addition to the powers
and authorities expressly conferred upon the Board of Directors by applicable
law. Notwithstanding anything contained in this Certificate of Incorporation to
the contrary, the affirmative vote of the holders of 66-2/3% of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend, repeal or adopt any provision inconsistent with paragraph (a) of this
Article V or any provision of the Bylaws adopted by the stockholders pursuant to
paragraph (a) of this Article V.
ARTICLE VI
(a) Subject to the rights of the holders of any series of
Preferred Stock as set forth in a Preferred Stock Designation to elect
additional directors under specified circumstances, the number of directors of
the Corporation shall be fixed by the Bylaws of the Corporation and may be
increased or decreased from time to time in such a manner as may be prescribed
by the Bylaws.
(b) Unless and except to the extent that the Bylaws of the
Corporation shall so require, the election of directors of the Corporation need
not be by written ballot.
(c) The directors, other than those who may be elected by the
holders of any series of Preferred Stock, shall be divided into three classes,
as nearly equal in number as possible. One class of directors shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
1994, another class shall be initially elected for a term expiring at the annual
meeting of stockholders to be held in 1995, and another class shall be initially
elected for a term expiring at the annual meeting of stockholders to be held in
1996. Members of each class shall hold office until their successors are elected
and qualified. At each succeeding annual meeting of the stockholders of the
Corporation, the successors of the class of directors whose term expires at that
meeting shall be elected by a plurality vote of all votes cast at such meeting
to hold office for a term expiring at the annual meeting of stockholders held in
the third year following the year of their election.
(d) At least a majority of the directors shall be Independent.
An individual shall be deemed to be "Independent" hereunder if such individual
(i) is not an Affiliate of CBL & Associates, Inc., CBL & Associates Limited
Partnership or CBL & Associates Management, Inc. or any of their successors and
is not an employee of the Corporation or of CBL & Associates, Inc., CBL &
Associates Limited Partnership or CBL & Associates Management,
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Inc. or any of their successors or of any Affiliate of the Corporation or of
any Affiliate of CBL & Associates, Inc., CBL & Associates Limited Partnership
or CBL & Associates Management, Inc. or any of their successors, provided,
however, that no Person shall be deemed not to qualify as an Independent
director solely because such Person is a director of both the Corporation and
CBL & Associates Management, Inc. and (ii) with reference to any particular
transaction, is not an interested director within the meaning of Section 144
of the GCL. An "Affiliate" shall mean, as to any individual, corporation,
partnership, trust or other association, any person (i) that holds
beneficially, directly or indirectly, 5% or more of the outstanding stock or
equity interests thereof or (ii) who is an officer, director, partner or
director thereof or of any person which controls, is controlled by, or is
under common control with such corporation, partnership, trust or other
association or (iii) which controls, is controlled by or is under common
control with such corporation, partnership, trust or other association.
(e) Subject to the rights of the holders of any series of
Preferred Stock to elect additional directors under specified circumstances, any
director may be removed from office at any time, but only for cause and only by
the affirmative vote of the holders of 75% of the then outstanding Voting Stock,
voting together as a single class.
(f) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of 66-2/3% of
the then outstanding Voting Stock, voting together as a single class, shall be
required to amend, repeal or adopt any provision inconsistent with this Article
VI; provided that the affirmative vote of the holders of 75% of the then
outstanding Voting Stock, voting together as a single class, shall be required
to amend, repeal or adopt any provision inconsistent with paragraph (e) of this
Article VI.
(g) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of a majority
of the then outstanding Voting Stock, voting as a single class, and the approval
of the Board of Directors shall be required to terminate the Corporation's
status as a real estate investment trust.
ARTICLE VII
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation of any receiver or receivers appointed for the
Corporation under the provisions of Sec. 291 of Title 8 of the GCL or on the
application of trustees in dissolution or of any receiver
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or receivers appointed for the Corporation under the provisions of Sec. 279 of
Title 8 of the GCL order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the Corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the Corporation, as the case may be,
and also on the Corporation.
ARTICLE VIII
Each person who is or was or who agrees to become a director
or officer of the Corporation, or each such person who is or was serving or who
agrees to serve at the request of the Board of Directors or an officer of the
Corporation as an employee or agent of the Corporation or as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executor, administrators or
estate of such person), shall be indemnified by the Corporation, in accordance
with the Bylaws of the Corporation, to the full extent permitted from time to
time by the GCL as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) or any other applicable laws
presently or hereafter in effect. Without limiting the generality or the effect
of the foregoing, the Corporation may enter into one or more agreements with any
person which provide for indemnification greater or different than that provided
in this Article VIII. Any amendment or repeal of this Article VIII shall not
adversely affect any right or protection existing hereunder immediately prior to
such amendment or repeal.
ARTICLE IX
No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) pursuant to Section 174 of the GCL or (iv) for any
transaction from which the director derived an improper personal benefit.
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ARTICLE X
In determining what is in the best interest of the
Corporation, a director of the Corporation shall consider the interests of the
stockholders of the Corporation and, in his or her discretion, may consider (i)
the interests of the Corporation's employees, suppliers, creditors and
customers, (ii) the economy of the nation, (iii) community and societal
interests and (iv) the long-term as well as short-term interests of the
Corporation and its stockholders, including the possibility that these interests
may be best served by the continued independence of the Corporation.
ARTICLE XI
The Corporation reserves the right at any time and from time
to time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation or a Preferred Stock Designation, and any other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner now or hereafter prescribed herein or by
applicable law, and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article XI;
provided, however, that any amendment or repeal of Article VIII or Article IX of
this Certificate of Incorporation shall not adversely affect any right or
protection existing hereunder immediately prior to such amendment or repeal.
ARTICLE XII
Subject to the rights of the holders of any series of
Preferred Stock as set forth in a Preferred Stock Designation to elect
additional directors under specific circumstances, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing of such stockholders.
Notwithstanding anything contained in this Certificate of Incorporation to the
contrary, the affirmative vote of at least 80% of the then outstanding Voting
Stock, voting together as a single class, shall be required to amend, repeal, or
adopt any provision inconsistent with this Article XII.