Exhibit 3.1
AMERICAN HOME MORTGAGE INVESTMENT CORP.
ARTICLES SUPPLEMENTARY
ESTABLISHING AND FIXING THE RIGHTS AND
PREFERENCES OF
9.75% SERIES A CUMULATIVE REDEEMABLE PREFERRED STOCK
American Home Mortgage Investment Corp., a corporation organized and
existing under the laws of the State of Maryland (the "Corporation"), certifies
to the State Department of Assessments and Taxation of Maryland (the
"Department") that:
FIRST: Pursuant to the authority expressly vested in the Board of
Directors of the Corporation (sometimes referred to herein as the "Board") by
Article V of the charter (the "Charter") of the Corporation and Section 2-105 of
the Maryland General Corporation Law (the "MGCL"), the Board of Directors of the
Corporation, on April 27, 2004, adopted resolutions authorizing the Corporation,
among other things, to issue up to a stated maximum number of shares of
preferred stock, par value $0.01 per share (the "Preferred Stock"), of the
Corporation and appointing, pursuant to the MGCL and the powers contained in the
Bylaws of the Corporation, a committee (the "Committee" or the "Preferred Stock
Transaction Committee") of the Board of Directors comprised of Michael Strauss
and delegating to the Committee, to the fullest extent permitted by Maryland law
and the Charter and Bylaws of the Corporation, all powers of the Board of
Directors with respect to classifying, authorizing, approving, ratifying and/or
confirming the terms of the Preferred Stock to be issued, including, without
limitation, the preferences, conversion and other rights, voting powers,
restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption, and determining the
consideration per share to be received in respect of the issuance and sale of
each share of Preferred Stock to be issued and sold, and the number of shares of
Preferred Stock to be so classified or reclassified and issued by the
Corporation, subject to the limitations set forth in the resolutions of the
Board of Directors adopted on April 27, 2004.
SECOND: Pursuant to the authority conferred upon the Committee as
aforesaid, the Committee has on June 29, 2004, adopted resolutions classifying
and designating as a separate series of Preferred Stock the 9.75% Series A
Cumulative Redeemable Preferred Stock, with the preferences, conversions and
other rights, voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption and other terms and
conditions of such 9.75% Series A Cumulative Redeemable Preferred Stock (within
the limitations set by the Board of Directors in the resolutions adopted on
April 27, 2004 and referred to in Article FIRST of these Articles Supplementary)
and establishing 1,610,000 as the number of shares to be so classified and
designated, and authorizing the issuance of up to 1,610,000 shares of 9.75%
Series A Cumulative Redeemable Preferred Stock. Capitalized terms used in these
Articles Supplementary and not otherwise defined in these Articles Supplementary
shall have the meanings otherwise ascribed thereto in the Charter.
THIRD: The separate series of Preferred Stock of the Corporation created
by the resolutions duly adopted by the Board of Directors of the Corporation and
by the Committee and referred to in Articles FIRST and SECOND of these Articles
Supplementary shall have the designation, number of shares, preferences,
conversion and other rights, voting powers, restrictions and limitations as to
dividends, qualifications, terms and conditions of redemption and other terms
and conditions as follows (and which, upon any restatement of the Charter, may
be made a part of Article V thereof, with any necessary or appropriate changes
to the numeration or lettering of the sections or subsections hereof):
(1) Designation and Number. A series of Preferred Stock, designated the
"9.75% Series A Cumulative Redeemable Preferred Stock" (the "Series A Preferred
Stock"), is hereby established. Pursuant to the Charter of the Corporation, the
Series A Preferred Stock is also a separate class of Preferred Stock. The number
of shares of Series A Preferred Stock shall be 1,610,000 (the "Series A
Preferred Shares").
(2) Rank. The Series A Preferred Shares will rank, with respect to
dividend rights and rights upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, (a) senior to all classes or
series of Common Stock (as defined in the Charter) and to all equity securities
of the Corporation the terms of which provide that such equity securities shall
rank junior to such Series A Preferred Shares; (b) on a parity with all equity
securities issued by the Corporation other than those referred to in clauses (a)
and (c) of this Section 2; and (c) junior to all equity securities issued by the
Corporation the terms of which provide that such equity securities will rank
senior to the Series A Preferred Shares in accordance with Section 6(d) of this
Article THIRD, and to the existing and future debt of the Corporation,
including, prior to conversion of such debt, any debt convertible into equity
securities of the Corporation.
(3) Dividends.
(a) Holders of Series A Preferred Shares shall be entitled to receive, if,
when and as declared by the Board, out of funds legally available for the
payment of dividends, cumulative preferential cash dividends at the rate of
9.75% of the $25.00 liquidation preference per annum (equivalent to $2.4375 per
annum per share). Such dividends shall accumulate on a daily basis computed on
the basis of a 360-day year consisting of twelve 30-day months and be cumulative
from July 7, 2004 and shall be payable quarterly (such quarterly periods for
purposes of payment and accrual will be the quarterly periods ending on the
dates specified in this sentence and not calendar year quarters) in equal
amounts in arrears on the last calendar day of each January, April, July and
October, or, if not a business day, the next succeeding business day, commencing
October 31, 2004 (each, a "Dividend Payment Date") (it being acknowledged that
by operation of the fourth sentence following, the dividend payable on the first
Dividend Payment Date, October 31, 2004, will be paid on the first business day
immediately following, that is, November 1, 2004). Dividends shall be payable to
holders of record as they appear in the share records of the Corporation at the
close of business on the applicable record date (each, a "Dividend Record
Date"), which shall be the date designated by the Board for the payment of
dividends that is not more than 30 nor less than 10 days prior to the applicable
payment date therefor. Any dividend payable on the Series A Preferred Shares for
any partial dividend period shall be prorated and computed on the basis of a
360-day year consisting of twelve 30-day months (it being understood that the
dividend payable on October 31, 2004 (to be paid on
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November 1, 2004) will be for greater than a regular full dividend period). A
"dividend period" shall mean the period from and excluding July 7, 2004 to and
including the first Dividend Payment Date, and each subsequent period from and
excluding a Dividend Payment Date to and including the next succeeding Dividend
Payment Date or other date as of which accumulated dividends are to be
calculated. If any date on which distributions are to be made on the Series A
Preferred Stock is not a business day, then payment of the distribution to be
made on such date will be made on the next succeeding day that is a business day
(and without any interest or other payment in respect of any such delay) except
that, if such business day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding business day, in each case with the
same force and effect as if made on such date. Notwithstanding any provision to
the contrary contained herein, each outstanding share of Series A Preferred
Stock shall be entitled to receive, and shall receive, a dividend with respect
to any Dividend Record Date equal to the dividend paid with respect to each
other share of Series A Preferred Stock which is outstanding on such date which
shall be equal to the greatest dividend per share payable on any such share on
such date. Accordingly, notwithstanding anything to the contrary set forth
herein, each share of Series A Preferred Stock issued and outstanding on the
record date for the first dividend payment on the Series A Preferred Stock
following the initial issuance of shares of Series A Preferred Stock on July 7,
2004, shall accrue dividends from and excluding the earliest date on which any
shares of the Series A Preferred Stock were issued (July 7, 2004), and shall
receive the same dividend payment regardless of the date on which such share was
actually issued.
(b) No dividend on the Series A Preferred Shares shall be declared by the
Board or be 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, prohibits such authorization, payment or
setting apart for payment or provides that such authorization, payment or
setting apart for payment would constitute a breach thereof, or a default
thereunder, or if such authorization or payment shall be restricted or
prohibited by law.
(c) Notwithstanding anything to the contrary contained herein, dividends
on the Series A Preferred Shares shall accumulate whether or not restrictions
exist in respect thereof, whether or not there are funds legally available for
the payment thereof and whether or not such dividends are declared. Accumulated
but unpaid dividends on the Series A Preferred Shares will accumulate as of the
Dividend Payment Date on which they first become payable or on the date of
redemption, as the case may be.
(d) Except as provided in Section 3(e) below, no dividends shall be
declared or paid or set apart for payment and no other distribution of cash or
other property may be declared or made, directly or indirectly, on or with
respect to any Common Stock or any other equity securities of the Corporation of
any other class or series ranking, as to dividends or upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, on a
parity with or junior to the Series A Preferred Shares (other than a dividend
paid in Common Stock or other equity securities of the Corporation ranking
junior to the Series A Preferred Stock as to dividends and upon voluntary or
involuntary liquidation, dissolution and winding up of the Corporation) for any
period, nor shall any Common Stock or any other equity securities of the
Corporation ranking junior to or on a parity with the Series A Preferred Stock
as to dividends or upon voluntary or involuntary liquidation, dissolution or
winding up of the Corporation be
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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
securities) by the Corporation (except by conversion into or exchange for other
equity securities of the Corporation ranking junior to the Series A Preferred
Stock as to dividends and upon voluntary or involuntary liquidation, dissolution
and winding up of the Corporation, and except pursuant to Article V of the
Charter to ensure the Corporation's continued status as a real estate investment
trust (a "REIT") for federal income tax purposes or comparable Charter
provisions with respect to other classes or series of the Corporation's stock
under which, among other things, the Series A Preferred Stock owned in excess of
the Ownership Limit or Series A Preferred Stock Ownership Limit (as defined in
Section 7 of this Article THIRD) will be transferred to a Share Trust and may be
purchased by the Corporation under certain circumstances), unless full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for such payment
on the Series A Preferred Shares for all past dividend periods.
(e) When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series A Preferred Shares and any other
equity securities ranking as to dividends on a parity with the Series A
Preferred Shares, all dividends declared upon the Series A Preferred Shares and
any other equity securities of the Corporation ranking on a parity with the
Series A Preferred Shares as to dividends and upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation shall be declared pro
rata so that the amount of dividends declared per Series A Preferred Share and
each share of such other equity securities shall in all cases bear to each other
the same ratio that accumulated dividends per Series A Preferred Share and such
share of other equity securities (which shall not include any accumulation in
respect of unpaid dividends for prior dividend periods if such other equity
securities do not have a cumulative dividend) bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on Series A Preferred Shares which may be in arrears.
(f) Accumulated but unpaid dividends on the Series A Preferred Shares will
not bear interest, and holders of Series A Preferred Shares shall not be
entitled to any dividend in excess of full cumulative dividends as described
above. Any dividend payment made on the Series A Preferred Shares shall first be
credited against the earliest accumulated but unpaid dividend due with respect
to such shares which remains payable.
(g) In determining whether a distribution (other than upon voluntary or
involuntary liquidation, dissolution or winding up of the Corporation) by
dividend, redemption or other acquisition of shares of stock of the Corporation
or otherwise is permitted under the MGCL, no effect shall be given to amounts
that would be needed, if the Corporation were to be dissolved at the time of the
distribution, to satisfy the preferential rights upon dissolution of holders of
the Series A Preferred Stock whose preferential rights upon dissolution are
superior to those receiving the distribution.
(h) If, for any taxable year, the Corporation elects to designate as a
"capital gain dividend" (as defined in Section 857 of the Internal Revenue Code
of 1986, as amended), any portion (the "Capital Gains Amount") of the dividends
paid or made available for the year to holders of any class or series of stock
of the Corporation, the portion of the Capital Gains
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Amount that shall be allocable to holders of the Series A Preferred Stock shall
be equal to the total Capital Gains Amount times 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
aggregate amount of dividends (as determined for federal income tax purposes)
paid or made available to the holders of all classes or series of stock of the
Corporation for such year.
(4) Liquidation Preference.
(a) In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, the holders of Series A Preferred Shares then
outstanding shall be entitled to receive out of the assets of the Corporation
legally available for distribution to its stockholders remaining after payment
or provision for payment of all debts and liabilities of the Corporation, a
liquidation preference in cash of $25.00 per share, plus an amount equal to any
accumulated and unpaid dividends to the date of such payment, before any
distribution of assets is made to holders of Common Stock or any other equity
securities of the Corporation that rank junior to the Series A Preferred Shares
as to liquidation rights.
(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 Series A Preferred Shares and the corresponding
amounts payable on all shares of other classes or series of equity securities of
the Corporation ranking on a parity with the Series A Preferred Shares as to
liquidation rights, then the holders of the Series A Preferred Shares and all
other such classes or series of equity securities shall share ratably in any
such 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 days prior to the payment date stated therein, to each record holder of the
Series A Preferred Shares at the respective addresses of such holders as the
same shall appear on the stock 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 Shares will have no
right or claim to any of the remaining assets of the Corporation.
(e) The consolidation or merger of the Corporation with or into another
entity, a 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 property or business shall not be
deemed to constitute a liquidation, dissolution or winding up of the
Corporation.
(5) Optional Redemption.
(a) The Series A Preferred Shares are not redeemable prior to July 7,
2009. To ensure that the Corporation remains a qualified REIT for federal income
tax purposes, however,
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the Series A Preferred Shares shall be subject to the provisions of Article V of
the Charter and Section 7 of this Article THIRD pursuant to which, among other
things, Series A Preferred Shares owned by a stockholder in excess of the
Ownership Limit applicable with respect to the Equity Stock (as such terms are
defined in Article V of the Charter) of the Corporation or the Series A
Preferred Stock Ownership Limit (as defined in Section 7 of this Article THIRD),
or certain other limitations, shall automatically be transferred to a Share
Trust for the benefit of a Charitable Beneficiary (as such terms are defined in
Article V of the Charter) and the Corporation shall have the right to purchase
such shares, as provided in Article V of the Charter. On and after July 7, 2009,
the Corporation, at its option, upon giving notice as provided below, may redeem
the Series A Preferred Shares, in whole or from time to time in part, for cash,
at a redemption price of $25.00 per share, plus all accumulated and unpaid
dividends (except as contemplated in Section 5(d) below in respect of dividends
declared as of a Dividend Record Date prior to the date of redemption and to be
paid as of a Dividend Payment Date subsequent to the date of redemption) on such
Series A Preferred Shares to the date fixed for redemption.
(b) If fewer than all of the outstanding Series A Preferred Shares are to
be redeemed, the shares to be redeemed shall be selected pro rata (as nearly as
practicable without creating fractional shares) or by lot or by any other
equitable method determined by the Corporation. If such redemption is to be by
lot and, as a result of such redemption, any holder of Series A Preferred Shares
would become a holder of a number of Series A Preferred Shares in excess of the
Ownership Limit (or Excepted Holder Limit, as applicable) applicable with
respect to the Equity Stock of the Corporation, or the Series A Preferred Stock
Ownership Limit (or Series A Preferred Stock Excepted Holder Limit, as
applicable) imposed by application of Section 7 of this Article THIRD and
Article V of the Charter (or other limitations set forth in Article V of the
Charter) because such holder's Series A Preferred Shares were not redeemed, or
were only redeemed in part, then, except as otherwise provided in the Charter,
the Corporation will redeem the requisite number of Series A Preferred Shares of
such holder such that no holder will hold in excess of such Ownership Limit or
Series A Preferred Stock Ownership Limit (or such other limits, as applicable)
subsequent to such redemption.
(c) Notwithstanding anything to the contrary contained herein, unless full
cumulative dividends on all Series A Preferred Shares shall have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend periods and the then
current dividend period, no Series A Preferred Shares shall be redeemed unless
all outstanding Series A Preferred Shares are simultaneously redeemed; and
unless full cumulative dividends on all outstanding Series A Preferred Shares
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividend
periods, the Corporation shall not purchase or otherwise acquire directly or
indirectly any Series A Preferred Shares or any equity securities of the
Corporation ranking junior to or on a parity with the Series A Preferred Shares
as to dividends or upon voluntary or involuntary liquidation, dissolution or
winding up of the Corporation (except by conversion into or exchange for equity
securities of the Corporation ranking junior to the Series A Preferred Shares as
to dividends and upon voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, and except pursuant to Article V of the Charter
(including by application of Section 7 of this Article THIRD) or comparable
Charter provisions with respect to other classes or series of the Corporation's
stock); provided, however, that the foregoing shall not prevent the purchase by
the Corporation of Series A Preferred Shares
pursuant to Article V of the Charter (including by application of Section 7 of
this Article THIRD) or otherwise in order to ensure that the Corporation remains
qualified as a REIT for federal or state income tax purposes, or the purchase or
acquisition of Series A Preferred Shares pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding Series A Preferred
Shares.
(d) The holders of shares of Series A Preferred Stock at the close of
business on a Dividend Record Date will be entitled to receive the dividend
payable with respect to the shares of Series A Preferred Stock held on the
corresponding Dividend Payment Date notwithstanding the redemption thereof
between such Dividend Record Date and the corresponding Dividend Payment Date or
the Corporation's default in the payment of the dividend due. Except as provided
herein, and except to the extent the redemption price includes all accumulated
and unpaid dividends, the Corporation will make no payment or allowance for
unpaid dividends, whether or not in arrears, on Series A Preferred Shares to be
redeemed.
(e) The following provisions set forth the procedures for redemption:
(i) Notice of redemption will be mailed by the Corporation, postage
pre-paid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series A Preferred Shares
to be redeemed at their respective addresses as they appear on the share records
of the Corporation. No failure to give such notice or any defect therein or in
the mailing thereof shall affect the validity of the proceedings for the
redemption of any Series A Preferred Shares 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 or automated quotation system upon which the
Series A Preferred Shares may be listed or admitted to trading, such notice
shall state: (A) the redemption date; (B) the redemption price; (C) the number
of Series A Preferred Shares to be redeemed; (D) the place or places where the
certificates evidencing shares of Series A Preferred Shares are to be
surrendered for payment of the redemption price; and (E) that dividends on the
Series A Preferred Shares to be redeemed will cease to accumulate on such
redemption date. If fewer than all of the Series A Preferred Shares held by any
holder are to be redeemed, the notice mailed to such holder shall also specify
the number of Series A Preferred Shares to be redeemed from such holder.
(iii) On or after the redemption date, each holder of Series A
Preferred Shares to be redeemed shall present and surrender the certificates
representing such holder's Series A Preferred Shares to the Corporation at the
place designated in the notice of redemption and shall be entitled to the
redemption price and any accumulated and unpaid dividends payable upon such
redemption upon such surrender and thereupon the redemption price of such shares
(including all accumulated and unpaid dividends 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 Shares 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 Shares are to be redeemed, a
new certificate shall be issued representing the unredeemed shares.
(iv) If notice of redemption of any Series A Preferred Shares has
been given and if the funds necessary for such redemption have been set aside by
the Corporation in trust for
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the benefit of the holders thereof, then from and after the redemption date all
dividends on such Series A Preferred Shares shall cease to accumulate and any
such Series A Preferred Shares will no longer be deemed outstanding and all
rights of the holders thereof will terminate, except the right to receive the
redemption price (including all accumulated and unpaid dividends up to the
redemption date) and such shares shall not thereafter be transferred (except
with the consent of the Corporation) on the Corporation's stock transfer
records. At its election, the Corporation, prior to a redemption date, may
irrevocably deposit the redemption price (including accumulated and unpaid
dividends to the redemption date) of the Series A Preferred Shares 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 Shares 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 accumulated and unpaid dividends to the redemption date). Any
monies so deposited which remain unclaimed by the holders of the Series A
Preferred Shares at the end of two years after the redemption date shall be
returned by such bank or trust company to the Corporation.
(f) Any Series A Preferred Shares that shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued Preferred Stock, without further designation as to series or class
until such shares are once more designated as part of a particular series or
class by the Board.
(6) Voting Rights.
(a) Holders of the Series A Preferred Shares will not have any voting
rights, except as set forth below.
(b) (i) Whenever dividends on any Series A Preferred Shares shall remain
unpaid for six or more quarterly periods (whether or not consecutive) (a
"Preferred Dividend Default"), the number of directors then constituting our
Board of Directors shall be increased by two members (if not already increased
by two members by reason of the election of directors by the holders of any
other class or series of our stock upon which like voting rights have been
conferred and are exercisable and with which the Series A Preferred Stock is
entitled to vote as a class with respect to the election of such two directors),
and the holders of such Series A Preferred Shares (voting as a single class with
all other equity securities of the Corporation ranking on a parity with the
Series A Preferred Shares as to dividends and upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation upon which like voting
rights have been conferred and are exercisable ("Parity Preferred Stock")) will
be entitled to vote for the election of two additional directors of the
Corporation (the "Preferred Stock Directors"), who will be elected by a
plurality of the votes cast in such election for a one-year term and until their
successors are duly elected and shall qualify (or until such director's right to
hold such office terminates as provided herein, whichever occurs earlier,
subject to such director's earlier death, disqualification, resignation or
removal), at a special meeting called by or at the request of the holders of at
least 20% of the outstanding Series A Preferred Shares or the holders of shares
of any other class or series of Parity Preferred Stock with respect to which
dividends are so unpaid
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(unless such request is received less than 120 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 120 days before the
date fixed for the next annual or special meeting of stockholders, at the next
annual or special meeting of stockholders, and at each subsequent annual meeting
until all dividends accumulated on the Series A Preferred Shares for all past
dividend periods shall have been fully paid or declared and a sum sufficient for
the payment thereof set aside for payment in full.
(ii) At any time when the voting rights described in Section 6(b)(i)
above shall have vested, and in the event that a request for a special meeting
shall have first been made in a manner contemplated by Section 6(b)(i) above, a
proper officer of the Corporation shall thereupon and with reasonable
promptness, call or cause to be called, a special meeting of the holders of
Series A Preferred Stock and all the series of Parity Preferred Stock upon which
like voting rights have been conferred and are exercisable (collectively, the
"Parity Securities") by mailing or causing to be mailed to such holders a notice
of such special meeting to be held not more than 90 days after delivery of such
request. The record date for determining holders of the Parity Securities
entitled to notice of and to vote at such special meeting will be the close of
business on the third business day preceding the day on which such notice is
mailed. At any such special meeting, all of the holders of the Parity
Securities, by plurality vote, voting together as a single class without regard
to series, will be entitled to elect two directors on the basis of one vote per
$25.00 of liquidation preference to which such Parity Securities are entitled by
their terms (excluding amounts in respect of accumulated and unpaid dividends)
and not cumulatively. Notice of all meetings at which holders of the Series A
Preferred Stock shall be entitled to vote will be given to such holders at their
addresses as they appear in the transfer records. If a Preferred Dividend
Default shall terminate after the notice of a special meeting has been given but
before such special meeting has been held, the Corporation shall, as soon as
practicable after such termination, mail or cause to be mailed notice of such
termination to holders of the Series A Preferred Stock that would have been
entitled to vote at such special meeting. So long as otherwise relatively
timely, any such special meeting may be combined and held contemporaneously with
the next special or annual meeting of the stockholders of the Corporation.
(c) If and when all dividends accumulated on the Series A Preferred Shares
in respect of all past dividend periods shall have been paid in full or declared
by the Corporation and set aside for payment in full, the holders of Series A
Preferred Shares shall be divested of the voting rights set forth in Section
6(b) above (subject to revesting in the event of each and every Preferred
Dividend Default) and, if all dividends accumulated in respect of all past
dividend periods have been paid in full or declared by the Corporation and set
aside for payment in full on all other classes or 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 forthwith
terminate and the number of directors constituting our Board of Directors will
be reduced accordingly. Any Preferred Stock Director elected by the holders of
Series A Preferred Shares and any other such Parity Preferred Stock may be
removed at any time with or without cause by the vote of, and shall not be
removed otherwise than by the vote of, the holders of a majority of the
outstanding Series A Preferred Shares when they only have the voting rights set
forth, or like those set forth, in Section 6(b) above and by the majority vote
of the outstanding Series A Preferred Shares and all other classes or series of
Parity Preferred Stock upon which
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like voting rights have been conferred and are exercisable (voting as a single
class) when the Series A Preferred Shares and such Parity Preferred Stock is
entitled to vote thereon. So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Stock Director so elected may
be filled by written consent of the Preferred Stock Director so elected
remaining in office, or if none remains in office, by a vote of the holders of a
majority of the outstanding Series A Preferred Shares when they only have the
voting rights set forth, or like those set forth, in Section 6(b) and by the
majority vote of the outstanding Series A Preferred Shares and other classes or
series of Parity Preferred Stock upon which like voting rights have been
conferred and are exercisable (voting as a single class) when the Series A
Preferred Shares and such Parity Preferred Stock is entitled to vote thereon.
(d) So long as any Series A Preferred Stock remains 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 A
Preferred Stock voting separately as a class), (i) authorize or create, or
increase the authorized or issued amount of, any class or series of shares
ranking senior to the Series A Preferred Stock with respect to payment of
dividends or the distribution of assets upon voluntary or involuntary
liquidation, dissolution or winding up of the Corporation or reclassify any
authorized shares of the Corporation into any such shares, or create, authorize
or issue any obligation or security convertible into, exchangeable or
exercisable for, or evidencing the right to purchase any such shares; or (ii)
amend, alter or repeal the provisions of the Charter (including these Articles
Supplementary), whether by merger or consolidation or otherwise (each, an
"Event"), so as to materially and adversely affect any right, preference,
privilege or voting power of the Series A Preferred Stock or the holders
thereof; provided, however, that with respect to the occurrence of any of the
Events set forth in (ii) above, so long as shares of Series A Preferred Stock
(or shares issued by a surviving entity in substitution for the Series A
Preferred Stock) remain outstanding with the terms thereof materially unchanged,
taking into account that upon the occurrence of such an Event, the Corporation
may not be the surviving entity, the occurrence of any such Event shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers of the holders of the Series A Preferred Stock; and provided
further that (x) any increase in the amount of the authorized Preferred Stock or
Series A Preferred Stock or any issuance of Series A Preferred Stock or (y) the
creation or issuance of any other class or series of Preferred Stock or any
increase in the amount of authorized shares of any other class or series of
Preferred Stock in each case ranking on a parity with or junior to the Series A
Preferred Stock with respect to payment of dividends or 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 such
rights, preferences, privileges or voting powers.
(e) The foregoing voting provisions shall not apply if, at or prior to the
time when the act with respect to which such vote would otherwise be required
shall be effected, all outstanding Series A Preferred Shares 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) Restrictions on Ownership and Transfer to Preserve Tax Benefit.
(a) The Series A Preferred Stock constitutes a class of Preferred Stock,
and shares of Preferred Stock constitute Equity Stock of the Corporation.
Therefore, the Series A Preferred
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Stock, being Equity Stock, shall be subject to the Ownership Limit applicable
with respect to Equity Stock generally and all other restrictions and
limitations on the ownership and Transfer of Equity Stock set forth in the
Charter and applicable to Equity Stock, including without limitation Section 2
and Section 4 of Article V (or any successor provision of similar import) of the
Articles of Amendment and Restatement filed with the Department on December 3,
2003 (the "Articles of Amendment and Restatement") and comprising a portion of
the Charter. Capitalized terms used in this Section 7 and not otherwise defined
in these Articles Supplementary shall have the meanings otherwise ascribed
thereto in the Charter.
(b) In addition to the application of the Ownership Limit and all other
restrictions and limitations on Transfer otherwise imposed by or provided for
under the Charter in respect of the Series A Preferred Stock as Preferred Stock
and, therefore, Equity Stock, there shall be, and there hereby is, imposed on
the Series A Preferred Stock a separate and additional Series A Preferred Stock
Ownership Limit as hereinbelow provided, where "Series A Preferred Stock
Ownership Limit" shall initially mean, with respect to the Series A Preferred
Stock, as a separate class, 9.8% of the more restrictive of (i) the total number
of and (ii) value of the total number of, outstanding shares of Series A
Preferred Stock. The Series A Preferred Stock Ownership Limit is hereby imposed
upon the Series A Preferred Stock and shall be applied separately to the Series
A Preferred Stock (and without regard to any other class or series of Preferred
Stock or other Equity Stock of the Corporation) in the same manner as the
Ownership Limit is applied separately to the Common Stock pursuant to or by
application of Section 2 and Section 4 of Article V (or any successor provisions
of the Charter of similar import) of the Articles of Amendment and Restatement.
Accordingly, the Series A Preferred Stock is subject to two (2) ownership
limits: one, the Ownership Limit as defined in and otherwise imposed pursuant to
the Charter and applicable to the Series A Preferred Stock as Preferred Stock
(and, therefore, Equity Stock), which generally has the effect of, among other
things, initially limiting Beneficial Ownership of Equity Stock to 6.5%; and,
two, the Series A Preferred Stock Ownership Limit hereinabove imposed separately
on the Series A Preferred Stock, which generally has the effect of, among other
things, initially limiting Beneficial Ownership of the Series A Preferred Stock
to 9.8%.
(c) The application of the Series A Preferred Stock Ownership Limit to the
Series A Preferred Stock as hereinabove provided shall be subject to all of the
terms and provisions of Section 2 and Section 4 of Article V (or any successor
provision of the Charter of similar import) of the Articles of Amendment and
Restatement, including but not limited to the provisions thereof allowing the
Board of Directors (or as provided below in respect of the Series A Preferred
Stock Ownership Limit, the Preferred Stock Transaction Committee) of the
Corporation to waive in whole or in part application of the Ownership Limit (and
accordingly the Series A Preferred Stock Ownership Limit) or establish and/or
waive any Excepted Holder Limit (which as applied to the Series A Preferred
Stock Ownership Limit may be referred to as a "Series A Preferred Stock Excepted
Holder Limit") to any Person; provided, however, that any waiver of the Series A
Preferred Stock Ownership Limit and /or the establishment of a Series A
Preferred Stock Excepted Holder Limit may be granted or established, and all
determinations with respect thereto may be made, by the Preferred Stock
Transaction Committee and need not be granted, established or made by the Board
of Directors acting as a whole.
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(d) Each certificate for shares of Series A Preferred Stock shall bear
substantially the following legend :
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO SIGNIFICANT
RESTRICTIONS ON OWNERSHIP AND TRANSFER. EXCEPT AS OTHERWISE PROVIDED
PURSUANT TO THE CHARTER OF THE CORPORATION, NO PERSON MAY BENEFICIALLY OWN
(I) SHARES OF SERIES A PREFERRED STOCK OF THE CORPORATION IN EXCESS OF
9.8% OF THE MORE RESTRICTIVE OF THE TOTAL NUMBER OF AND VALUE OF THE TOTAL
NUMBER OF OUTSTANDING SHARES OF SERIES A PREFERRED STOCK OF THE
CORPORATION, (II) SHARES OF COMMON STOCK OF THE CORPORATION IN EXCESS OF
6.5% OF THE MORE RESTRICTIVE OF THE TOTAL NUMBER OR VALUE OF THE
OUTSTANDING SHARES OF COMMON STOCK OF THE CORPORATION, (III) SHARES OF
EQUITY STOCK OF THE CORPORATION IN EXCESS OF 6.5% OF THE MORE RESTRICTIVE
OF THE TOTAL NUMBER OR VALUE OF THE OUTSTANDING SHARES OF EQUITY STOCK OF
THE CORPORATION, (IV) SHARES OF THE CORPORATION'S EQUITY STOCK IF SUCH
ACQUISITION WOULD RESULT IN THE TRUST BEING "CLOSELY HELD" UNDER SECTION
856(h) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), (V)
SHARES OF THE CORPORATION'S EQUITY STOCK IF SUCH ACQUISITION WOULD RESULT
IN THE EQUITY STOCK BEING BENEFICIALLY OWNED BY FEWER THAN 100 PERSONS
(DETERMINED WITHOUT REFERENCE TO ANY RULES OF ATTRIBUTION UNDER THE CODE),
(VI) SHARES OF THE CORPORATION'S EQUITY STOCK IF SUCH ACQUISITION WOULD
CAUSE THE CORPORATION TO FAIL TO QUALIFY AS A REAL ESTATE INVESTMENT TRUST
UNDER THE CODE, OR (VII) SHARES OF THE CORPORATION'S COMMON STOCK OR
EQUITY STOCK (INCLUDING SERIES A PREFERRED STOCK) IN VIOLATION OF ANY OF
THE FURTHER RESTRICTIONS SET FORTH IN THE CORPORATION'S CHARTER. ANY
PERSON WHO ATTEMPTS OR PROPOSES TO BENEFICIALLY OWN SHARES OF THE
CORPORATION'S COMMON STOCK, SERIES A PREFERRED STOCK OR EQUITY STOCK IN
EXCESS OF THE ABOVE LIMITATIONS MUST IMMEDIATELY NOTIFY THE CORPORATION IN
WRITING. IF AN ATTEMPT IS MADE TO VIOLATE OR THERE IS A VIOLATION OF THESE
RESTRICTIONS, (A) ANY PURPORTED TRANSFER WILL BE VOID AB INITIO AND WILL
NOT BE RECOGNIZED BY THE CORPORATION AND (B) THE SHARES OF THE
CORPORATION'S COMMON STOCK, SERIES A PREFERRED STOCK OR EQUITY STOCK IN
VIOLATION OF THESE RESTRICTIONS, WHETHER AS A RESULT OF A TRANSFER OR
NON-TRANSFER EVENT, WILL BE TRANSFERRED AUTOMATICALLY AND BY OPERATION OF
LAW TO A SHARE TRUST AND SHALL BE DESIGNATED SHARES-IN-TRUST. ALL TERMS
USED IN THIS LEGEND AND DEFINED IN THE CORPORATION'S CHARTER HAVE THE
MEANINGS PROVIDED IN THE CORPORATION'S CHARTER, AS THE SAME MAY BE AMENDED
FROM TIME TO TIME, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON
OWNERSHIP AND TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER
WHO SO REQUESTS."
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(e) In the case of an ambiguity in the application of any of the
provisions of this Section 7 (or the corresponding provisions of the Charter),
the Board of Directors shall have the power to determine the application of the
provisions of this Section 7 and those other corresponding provisions of the
Charter referred to herein or applicable hereto, in each case with respect to
any situation based on the facts known to it.
(8) Settlement of New York Stock Exchange Transactions. Nothing in Section
7 above precludes the settlement of transactions entered into through the
facilities of the New York Stock Exchange. Notwithstanding the fact that such
settlement occurs, certain transactions may be subject to the provisions
requiring the Series A Preferred Stock to be held in a Share Trust as set forth
in Section 2(c) of Article V (or any successor provision of the Charter of
similar import) of the Articles of Amendment and Restatement.
(9) Conversion. The Series A Preferred Shares are not convertible into or
exchangeable for any other property or securities of the Corporation.
(10) No Sinking Fund. No sinking fund shall be established for the
retirement or redemption of Series A Preferred Stock.
(11) No Preemptive Rights. No holder of the Series A Preferred Stock of
the Corporation shall, as such holder, have any preemptive rights to purchase or
subscribe for additional shares of stock of the Corporation or any other
security of the Corporation which it may issue or sell.
FOURTH: The Series A Preferred Shares have been classified and designated
by the Board under the authority contained in the Charter.
FIFTH: These Articles Supplementary have been approved by the Board in the
manner and by the vote required by law.
SIXTH: These Articles Supplementary shall be effective at the time the
Department accepts these Articles Supplementary for record.
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SEVENTH: The undersigned Chief Executive Officer and President of the
Corporation acknowledges these Articles Supplementary to be the act of the
Corporation and, as to all matters or facts required to be verified under oath,
the undersigned Chief Executive Officer and 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
Chief Executive Officer and President and attested to by its Corporate Secretary
on this 6th day of July, 2004.
American Home Mortgage Investment Corp.
By: /s/ Michael Strauss
-------------------------------------
Name: Michael Strauss
Title: Chief Executive Officer and President
[SEAL]
ATTEST:
/s/ Alan B. Horn
- --------------------------------
Name: Alan B.Horn
Title: Corporate Secretary
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