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Exhibit 3.6
FORM OF
RESTATED
CERTIFICATE OF INCORPORATION
OF
SPG REALTY CONSULTANTS, INC.
SPG Realty Consultants, Inc. (the "Corporation"), a corporation
organized under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
1. That the name of the Corporation is SPG Realty Consultants, Inc.
2. The original Certificate of Incorporation of the Corporation was
filed under the name Corporate Realty Consultants, Inc. with the Secretary of
State of Delaware on October 1, 1975.
3. This Restated Certificate of Incorporation was duly authorized by
the Corporation's Board of Directors and stockholders, and all specifically
affected classes or series of classes of stockholders, in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
4. This Restated Certificate of Incorporation has been duly adopted
in accordance with Sections 242 and 245 of the General Corporation Law of the
State of Delaware.
5. The text of the Restated Certificate of Incorporation reads as
follows:
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RESTATED
CERTIFICATE OF INCORPORATION
OF
SPG REALTY CONSULTANTS, INC.
FIRST: The name of the corporation (which is hereinafter called the
"Corporation") is:
SPG Realty Consultants, Inc.
SECOND: The purposes for which the Corporation is formed is to
engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of the State of Delaware; provided however,
that the Corporation may not engage in any transaction or activity or take
advantage of any business opportunity which could legally be engaged in or taken
advantage of by Simon Property Group, Inc., a Delaware corporation ("Simon
Group"), without jeopardizing Simon Group's status as a real estate investment
trust under the Internal Revenue Code of 1986, as amended, or under any similar
provisions of any subsequently adopted Federal income tax law, unless the
Corporation shall by written notice delivered to Simon Group have first given
Simon Group, for no consideration payable by Simon Group to the Corporation
other than reimbursement to the Corporation for any expenditure or investment
made by the Corporation in acquiring or creating such transaction, activity or
business opportunity, a first refusal right to engage in such transaction or
activity or to take advantage of such business opportunity and Simon Group shall
not within 60 days of its receipt of such notice have advised the Corporation
that Simon Group desires to exercise such right.
THIRD: The address of its registered office in the State of Delaware
is c/o The Corporation Trust Company, 1209 Orange Street, Wilmington, County of
New Castle, Delaware. The name of its registered agent at such address is The
Corporation Trust Company.
FOURTH: (a) The total number of shares of stock which the
Corporation has authority to issue is 750,000 shares of Common Stock, par value
$.0001 per share ("Common Stock").
(b) The following is a description of the preferences,
conversion and other rights, voting powers, restrictions, limitations as to
dividends, qualifications and terms and conditions of redemption of the Common
Stock of the Corporation:
(1) Each share of Common Stock shall have one vote, and the
exclusive voting power for all purposes shall be
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vested in the holders of the Common Stock. Shares of Common Stock shall
not have cumulative voting rights.
(2) Subject to the provisions of law, dividends or other
distributions, including dividends or other distributions payable in
shares of another class of the Corporation's stock, may be paid ratably on
the Common Stock at such time and in such amounts as the Board of
Directors may deem advisable.
(3) Subject to the provisions of law, in the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of the Common Stock shall be
entitled to share ratably in the net assets of the Corporation remaining,
after payment or provision for payment of the debts and other liabilities
of the Corporation and the amount to which any series of preferred stock
hereafter created having a preference on distributions in the liquidation,
dissolution or winding up of the Corporation shall be entitled.
FIFTH: (a) The powers and duties conferred and imposed upon the
board of directors by the General Corporation Law of the State of Delaware shall
be exercised and performed, in accordance with Section 141 thereof governing the
action of directors, by a board (the "Board of Directors"); provided, however
that pursuant to Section 141(a) of the General Corporation Law of the State of
Delaware: (i) certain of such powers and duties of the Board of Directors set
forth herein shall be exercised and performed only by the Independent Directors
(as defined in Article EIGHTH hereof) and (ii) certain of such powers and duties
of the Board of Directors as described herein may be exercised and performed by
one or more committees consisting of one or more members of the Board of
Directors and one or more other persons to the extent such powers and duties are
delegated thereto by the Board of Directors. The number of directors of the
Corporation shall never be less than the minimum number permitted by the General
Corporation Law of the State of Delaware now or hereafter in force the number of
directors of the Corporation shall be thirteen. The number of directors of the
Corporation shall be fixed by the Board of Directors from time to time and shall
initially be thirteen.
At least a majority of the directors shall be Independent Directors (as defined
in Article EIGHTH).
(b) Newly created directorships resulting from any increase in
the authorized number of directors shall be filled by a vote of the stockholders
or a majority of the entire Board of Directors, and any vacancies on the Board
of Directors resulting from death, disability ("disability," which for purposes
of this paragraph (b) shall mean illness, physical or mental disability or other
incapacity), resignation, retirement,
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disqualification, removal from office, or other cause shall be filled by a vote
of the stockholders or a majority of the directors then in office.
No decrease in the number of directors constituting the Board of Directors shall
affect the tenure of office of any director.
(c) Each director of the Corporation shall be a person who is
a director of Simon Group.
(d) Subject to Section 141(k) of the General Corporation Law
of the State of Delaware, directors may be removed from office at any time, with
or without cause, by the affirmative vote of the holders of at least a majority
of the combined voting power of all classes of shares of capital stock entitled
to vote in the election for directors voting together as a single class.
(e) Pursuant to Section 141(a) of the General Corporation Law
of the State of Delaware, the following are the names of the current directors
of the Corporation, each of whom shall serve until the annual meeting of
stockholders.
Name of Director
Robert E. Angelica
Birch Bayh
Hans C. Mautner
G. William Miller
Terry S. Prindiville
J. Albert Smith, Jr.
Pieter S. van den Berg
David Simon
Herbert Simon
Melvin Simon
Richard S. Sokolov
Frederick W. Petri
M. Denise DeBartolo York
(f) Pursuant to Section 141(a) of the General Corporation Law
of the State of Delaware, any action by the Corporation relating to (1)
transactions between the Corporation and M.S. Management Associates, Inc., Simon
MOA Management Company, Inc., DeBartolo Properties Management, Inc. and/or M.S.
Management Associates (Indiana), Inc. or (2) transactions involving the
Corporation, individually or in its capacity as general partner (whether
directly or indirectly through another entity) of SPG Realty Consultants, L.P.,
in which the Simon Family Group or the DeBartolo Family Group or any member or
affiliate of any member of the Simon Family Group or DeBartolo Family Group has
an interest (other than through ownership interests in the Corporation or SPG
Realty Consultants, L.P.), shall, in addition to such other vote that may be
required,
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require the prior approval of a majority of the Independent Directors.
(g) Elections of directors need not be by written ballot.
(h) Pursuant to Section 141(a) of the Delaware General
Corporation Law, the Board of Directors may appoint an Executive Committee, an
Audit Committee, a Nominating Committee and other committees composed of one or
more directors or one or more other persons delegated such powers and duties by
the Board of Directors. The entire Audit Committee and a majority of the
Compensation Committee shall be Independent Directors. The Nominating Committee
shall have five members, with two being independent Directors.
SIXTH: (a) The following provisions are hereby adopted for the
purpose of defining, limiting, and regulating the powers of the Corporation and
of the directors and the stockholders:
(1) The Board of Directors is hereby empowered to authorize the
issuance from time to time of shares of its stock of any class, whether
now or hereafter authorized, or securities convertible into shares of its
stock of any class or classes, whether now or hereafter authorized, for
such consideration as may be deemed advisable by the Board of Directors
and without any action by the stockholders.
(2) No holder of any stock or any other securities of the
Corporation, whether now or hereafter authorized, shall have any
preemptive right to subscribe for or purchase any stock or any other
securities of the Corporation and at such price or prices and upon such
other terms as the Board of Directors, in its sole discretion, may fix;
and any stock or other securities which the Board of Directors may
determine to offer for subscription may, as the Board of Directors in its
sole discretion shall determine, be offered to the holders of any class,
series or type of stock or other securities at the time outstanding to the
exclusion of the holders of any or all other classes, series or types of
stock or other securities at the time outstanding.
(3) The Board of Directors of the Corporation shall, consistent with
applicable law, have power in its sole discretion to determine from time
to time in accordance with sound accounting practice or other reasonable
valuation methods what constitutes annual or other net profits, earnings,
surplus, or net assets in excess of capital; to fix and vary from time to
time the amount to be reserved as working capital, or determine that
retained earnings or surplus shall remain in the hands of the Corporation;
to set apart out of any funds of the Corporation such reserve or reserves
in such amount or amounts and for such proper
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purpose or purposes as it shall determine and to abolish any such reserve
or any part thereof; to redeem or purchase its stock or to distribute and
pay distributions or dividends in stock, cash or other securities or
property, out of surplus or any other funds or amounts legally available
therefor, at such times and to the stockholders of record on such dates as
it may, from time to time, determine; to determine the amount, purpose,
time of creation, increase or decrease, alteration or cancellation of any
reserves or charges and the propriety thereof (whether or not any
obligation or liability for which such reserves or charges shall have been
created shall have been paid or discharged); to determine the fair value
and any matters relating to the acquisition, holding and disposition of
any assets by the Corporation; and to determine whether and to what extent
and at what times and places and under what conditions and regulations the
books, accounts and documents of the Corporation, or any of them, shall be
open to the inspection of stockholders, except as otherwise provided by
statute or by the By-laws, and, except as so provided, no stockholder
shall have any right to inspect any book, account or document of the
Corporation unless authorized so to do by resolution of the Board of
Directors.
(4) (a) The Corporation shall indemnify to the fullest extent
permitted under and in accordance with the laws of the State of Delaware
any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative by reason of the fact
that he is or was a director or officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer or
trustee of or in any other capacity with another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful.
(b) Expenses incurred in defending a civil or criminal action,
suit or proceeding shall (in the case of any action, suit or proceeding
against a director of the Corporation) or may (in the case of any action,
suit or proceeding against an officer, trustee, employee or agent) be paid
by the Corporation in advance of the final disposition of such action,
suit or proceeding as authorized by the Board of Directors upon receipt of
an undertaking by or on behalf of the indemnified person to repay such
amount
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if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article SIXTH
paragraph (a)(4).
(c) The indemnification and other rights set forth in this
paragraph (a)(4) shall not be exclusive of any provisions with respect
thereto in the By-laws or any other contract or agreement between the
Corporation and any officer, director, employee or agent of the
Corporation.
(d) Neither the amendment nor repeal of this paragraph (a)(4),
subparagraph (a), (b) or (c), nor the adoption of any provision of this
Restated Certificate of Incorporation inconsistent with paragraph (a)(4),
subparagraph (a), (b) or (c), shall eliminate or reduce the effect of this
paragraph (a)(4), subparagraphs (a), (b) and (c), in respect of any matter
occurring before such amendment, repeal or adoption of an inconsistent
provision or in respect of any cause of action, suit or claim relating to
any such matter which would have given rise to a right of indemnification
or right to receive expenses pursuant to this paragraph (a)(5),
subparagraph (a), (b) or (c), if such provision had not been so amended or
repealed or if a provision inconsistent therewith had not been so adopted.
(e) No director shall be personally liable to the Corporation
or any stockholder 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 the law;
(iii) under Section 174 of the General Corporation Law of the
State of Delaware; or
(iv) for any transaction from which the director derived an
improper personal benefit.
If the General Corporation Law of the State of Delaware is amended
after the date hereof to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the General Corporation Law of the State of Delaware,
as so amended. All references in this paragraph (e) shall also be deemed
to refer to the Independent Directors and members of committees of the
Board of Directors.
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(5) For any stockholder proposal to be presented in connection with
an annual meeting of stockholders of the Corporation, including any
proposal relating to the nomination of a director to be elected to the
Board of Directors of the Corporation, the stockholders must have given
timely written notice thereof in writing to the Secretary of the
Corporation in the manner and containing the information required by the
By-laws. Stockholder proposals to be presented in connection with a
special meeting of stockholders will be presented by the Corporation only
to the extent required by the General Corporation Law of the State of
Delaware.
(b) Pursuant to Section 141(a) of the General Corporation Law
of the State of Delaware, the Corporation reserves the right to amend, alter,
change or repeal any provision contained in the Charter, including any
amendments changing the terms or contract rights, as expressly set forth in the
Charter, of any of its outstanding stock by reclassification or otherwise, by a
majority of the directors (including a majority of the Independent Directors
adopting a resolution setting forth the proposed change, declaring its
advisability, and either calling a special meeting of the stockholders certified
to vote on the proposed change, or directing the proposed change to be
considered at the next annual stockholders meeting; provided however, that any
amendment to, repeal of or adoption of any provision inconsistent with
subparagraphs (a)(4)(e) or (a)(5) or this paragraph (b) of Article SIXTH will be
effective only if it is adopted upon the affirmative vote of not less than 80%
of the aggregate votes entitled to be cast thereon.
(c) In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the By-laws of the Corporation.
(d) Pursuant to Section 141(a) of the General Corporation Law
of the State of Delaware, the affirmative vote of least six of the Independent
Directors is necessary to cause any partnership in which the Corporation acts,
directly or indirectly, as a general partner to sell any property owned by such
partnership in accordance with the terms of the partnership agreement of such
partnership.
(e) The enumeration and definition of particular powers of the
Board of Directors included in the foregoing shall in no way be limited or
restricted by reference to or inference from the terms of any other clause of
this or any other Article of the Charter of the Corporation, or construed as or
deemed by inference or otherwise in any manner to exclude or limit any powers
conferred upon the Board of Directors under the General
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Corporation Law of the State of Delaware now or hereafter in force.
SEVENTH: Any action required or permitted to be taken by
stockholders of the Company at a duly called annual or special meeting of such
stockholders of the Company may be effected by written consent without a meeting
by such stockholders.
EIGHTH: The following terms shall have the following meaning:
"Board of Directors" shall mean the Board of Directors of the
Corporation as defined in Article FIFTH.
"By-laws" shall mean the By-laws of the Corporation.
"DeBartolo Family Group" shall mean the Estate of Edward J.
DeBartolo, Sr., Edward J. DeBartolo, Jr. and Marie Denise DeBartolo York,
other members of the immediate family of any of the foregoing, any other
lineal descendants of any of the foregoing, any estates of any of the
foregoing, any trusts established for the benefit of any of the foregoing,
and any other entity controlled by any of the foregoing.
"Independent Director" shall mean a director of the Corporation who
is neither an employee of the Corporation nor a member (or an affiliate of
a member) of the Simon Family Group or the DeBartolo Family Group.
"Simon Family Group" shall mean Melvin Simon, Herbert Simon and
David Simon, other members of the immediate family of any of the
foregoing, any other lineal descendants of any of the foregoing, any
estates of any of the foregoing, any trust established for the benefit of
any of the foregoing, and any other entity controlled by any of the
foregoing.
"Units" shall mean units representing limited partnership interests
in SPG Realty Consultants, L.P.
NINTH: Whenever the Corporation shall have the obligation to
purchase Units and shall have the right to choose to satisfy such obligation by
purchasing such Units either with cash or with Common Stock, the determination
whether to utilize cash or Common Stock to effect such purchase shall be made by
majority vote of the Independent Directors, pursuant to Section 141(a) of the
General Corporation Law of the State of Delaware.
TENTH: In the event any term, provision, sentence or paragraph of
the Charter of the Corporation is declared by a court of competent jurisdiction
to be invalid or unenforceable, such term, provision, sentence or paragraph
shall be deemed
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severed from the remainder of the Charter, and the balance of the Charter shall
remain in effect and be enforced to the fullest extent permitted by law and
shall be construed to preserve the intent and purposes of the Charter. Any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such term, provision, sentence or paragraph of the Charter
in any other jurisdiction.
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IN WITNESS WHEREOF, I have made and signed this Certificate this __ day of
______ __, 1998 and affirm the statements contained herein as true under
penalties of perjury.
______________________
Name:
Title:
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