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EXHIBIT 3.1
AMENDMENT
TO THE
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CAMDEN PROPERTY TRUST
The undersigned, acting as the Trust Managers of Camden Property Trust, a
real estate investment trust under the Texas Real Estate Investment Trust Act
(the "Texas REIT Act"), hereby adopt the following amendment to the Amended and
Restated Declaration of Trust for such trust which amendment replaces in its
entirety the following Article of the Amended and Restated Declaration of Trust
for such trust.
ARTICLE FIVE
The names and mailing addresses of the Trust Managers are as follows:
Name Mailing Address
---- ---------------
Richard J. Campo 3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
D. Keith Oden 3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
F. Gardner Parker 6200 Savoy, Suite 1200
Houston, Texas 77036
George A. Hrdlicka 1200 Smith, Suite 1400
Houston, Texas 77002
Steven A. Webster 1900 W. Loop South, Suite 1800
Houston, Texas 77027
William R. Cooper 7557 Rambler Road, Suite 1200
Dallas, Texas 75231
Lewis A. Levey 12400 Olive Blvd., Suite 100
St. Louis, MO 63141
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IN WITNESS WHEREOF, the undersigned Trust Managers do hereby execute this
Amendment to the Amended and Restated Declaration of Trust as of the 15th day
of April, 1997.
/s/ RICHARD J. CAMPO
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RICHARD J. CAMPO
/s/ D. KEITH ODEN
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D. KEITH ODEN
/s/ F. GARDNER PARKER
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F. GARDNER PARKER
/s/ GEORGE A. HRDLICKA
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GEORGE A. HRDLICKA
/s/ STEVEN A. WEBSTER
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STEVEN A. WEBSTER
/s/ WILLIAM R. COOPER
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WILLIAM R. COOPER
/s/ LEWIS A. LEVEY
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LEWIS A. LEVEY
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AMENDED AND RESTATED
DECLARATION OF TRUST
OF
CAMDEN PROPERTY TRUST
The undersigned, acting as the Trust Managers of a real estate investment
trust under the Texas Real Estate Investment Trust Act (the "Texas REIT Act"),
hereby adopt the following Amended and Restated Declaration of Trust for such
trust, which replaces in its entirety the previously enacted Declaration of
Trust for such trust.
ARTICLE ONE
The name of the trust (the "Trust") is "Camden Property Trust." An assumed
name certificate setting forth such name has been filed in the manner
prescribed by law.
ARTICLE TWO
The Trust is formed pursuant to the Texas REIT Act and has the following
as its purpose:
To purchase, hold, lease, manage, sell, exchange, develop, subdivide and
improve real property and interests in real property, and in general, to
carry on any other business and do any other acts in connection with the
foregoing and to have and exercise all powers conferred by the laws of the
State of Texas upon real estate investment trusts formed under the Texas
REIT Act, and to do any or all of the things hereinafter set forth to the
same extent as natural persons might or could do. The term "real property"
and the term "interests in real property" for the purposes stated herein
shall not include severed mineral, oil or gas royalty interests.
ARTICLE THREE
As to any real property of any character, major capital improvements must
be made within 15 years of purchase or the property must be sold. Such major
capital improvements must equal or exceed the purchase price of such real
property, if the same is unimproved property at the time of purchase or
property outside the corporate limits of a city, town or village. Any citizen
of the State of Texas may force compliance with this provision by filing suit
in any district court of the State of Texas and shall receive from the Trust,
if the Trust is forced to sell a real property interest under this provision,
the sum of 5% of the sale price of such real property interest as compensation.
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ARTICLE FOUR
The address of the Trust's initial principal office and place of business
is 3200 Southwest Freeway, Suite 1500, Houston, Texas 77027.
ARTICLE FIVE
The names and mailing addresses of the Trust Managers are as follows:
Name* Mailing Address
----- ---------------
Richard J. Campo 3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
D. Keith Oden 3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
* All of the initial Trust Managers qualify as "Resident Trust Managers" as
that term is defined in the Texas REIT Act.
ARTICLE SIX
The period of the Trust's duration is perpetual. The Trust may be sooner
terminated by the vote of the holders of at least a two-thirds majority of the
voting power of the outstanding Shares.
ARTICLE SEVEN
The aggregate number of shares of beneficial interest which the Trust
shall have authority to issue is one hundred million common shares, par value
$.01 per share ("Common Shares"), and ten million preferred shares, par value
$.01 per share ("Preferred Shares"). All of the Common Shares shall be equal in
all respects to every other such Common Share, and shall have no preference,
conversion, exchange or preemptive rights.
Unless otherwise specified, in this Declaration of Trust the term "Shares"
shall be deemed to refer to the Common Shares and, solely to the extent
specifically required by law or as specifically provided in any resolution or
resolutions of the Trust Managers providing for the issue of any particular
series of Preferred Shares, to the Preferred Shares. For purposes of Articles
Ten and Nineteen (other than Article Nineteen (j)) of this Declaration of
Trust, the term Shares shall be deemed to refer to both the Common Shares and
the Preferred Shares and, for purposes of such Articles Ten and Nineteen (other
than Article Nineteen (j)), the number of outstanding Shares shall be deemed to
be equal to the value of the Trust's outstanding Shares as determined from time
to time by resolution of the Trust Managers, such determination to include an
allocation of relative value among the Common Shares and any outstanding series
of Preferred Shares.
The Trust may issue one or more series of Preferred Shares, each such
series to consist of such number of shares as shall be determined by resolution
of the Trust Managers creating such series. The Preferred Shares of each such
series shall have such designations, preferences, conversion, exchange or other
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rights, participations, voting powers, options, restrictions, limitations,
special rights or relations, limitations as to dividends, qualifications or
terms, or conditions of redemption thereof, as shall be stated and expressed by
the Trust Managers in the resolution or resolutions providing for the issuance
of such series of Preferred Shares pursuant to the authority to do so which is
hereby expressly vested in the Trust Managers.
Except as otherwise specifically provided in any resolution or resolutions
of the Trust Managers providing for the issue of any particular series of
Preferred Shares, the number of shares of any such series so set forth in such
resolution or resolutions may be increased or decreased (but not below the
number of shares of such series then outstanding) by a resolution or
resolutions likewise adopted by the Trust Managers.
Except as otherwise specifically provided in any resolution or resolutions
of the Trust Managers providing for the issue of any particular series of
Preferred Shares, Preferred Shares redeemed or otherwise acquired by the Trust
shall assume the status of authorized but unissued Preferred Shares and shall
be unclassified as to series and may thereafter, subject to the provisions of
this Article Seven and to any restrictions contained in any resolution or
resolutions of the Trust Managers providing for the issuance of any such series
of Preferred Shares, be reissued in the same manner as other authorized but
unissued Preferred Shares.
Except as otherwise specifically provided in any resolution or resolutions
of the Trust Managers providing for the issue of any particular series of
Preferred Shares, holders of Preferred Shares shall have no preemptive rights.
Except as otherwise specifically required by law or this Declaration of
Trust or as specifically provided in any resolution or resolutions of the Trust
Managers providing for the issuance of any particular series of Preferred
Shares, the exclusive voting power of the Trust shall be vested in the Common
Shares of the Trust. Each Common Share entitles the holder thereof to one vote
at all meetings of the shareholders of the Trust.
ARTICLE EIGHT
The Trust shall issue Shares only for money or property actually received.
ARTICLE NINE
The Trust Managers shall hold all money and property received for the
issuance of Shares for the benefit of the owners of such Shares.
ARTICLE TEN
The Trust will not commence operations until the beneficial ownership of
the Shares is held by 100 or more persons with no five persons owning more than
50% of the total number of outstanding Shares. The word "person," as used in
the- second clause of the immediately preceding sentence, shall not include
corporations.
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ARTICLE ELEVEN
The Trust shall not engage in any activities beyond the scope of the
purpose of a real estate investment trust formed pursuant to the Texas REIT
Act, as such purpose is set forth in Article Two hereof.
ARTICLE TWELVE
Cumulative voting for the election of Trust Managers is prohibited.
ARTICLE THIRTEEN
(a) The affirmative vote of the holders of not less than 80% of the
outstanding Shares of the Trust, including the affirmative vote of the holders
of not less than 50% of the outstanding Shares not owned, directly or
indirectly, by any "Related Person" (as hereinafter defined), shall be required
for the approval or authorization of any "Business Combination" (as hereinafter
defined); provided, however, that the 50% voting requirement referred to above
shall not be applicable if the Business Combination is approved by the
affirmative vote of the holders of not less than 90% of the outstanding Shares;
provided further, that neither the 80% voting requirement nor the 50% voting
requirement referred to above shall be applicable if:
(i) The Trust Managers of the Trust by a vote of not less than 80% of the
Trust Managers then holding office (A) have expressly approved in advance the
acquisition of Shares of the Trust that caused the Related Person to become a
Related Person or (B) have expressly approved the Business Combination prior to
the date on which the Related Person involved in the Business Combination shall
have become a Related Person; or
(ii) The Business Combination is solely between the Trust and another
corporation, 100% of the voting stock of which is owned directly or indirectly
by the Trust; or
(iii) The Business Combination is proposed to be consummated within one
year of the consummation of a Fair Tender Offer (as hereinafter defined) by the
Related Person in which Business Combination the cash or Fair Market Value (as
hereinafter defined) of the property, securities or other consideration to be
received per Share by all remaining holders of Shares of the Trust in the
Business Combination is not less than the price offered in the Fair Tender
Offer; or
(iv) All of conditions (A) through (D) of this subparagraph (iv) shall
have been met: (A) if and to the extent permitted by law, the Business
Combination is a merger or consolidation, consummation of which is proposed to
take place within one year of the date of the transaction pursuant to which
such person became a Related Person and the cash or Fair Market Value of the
property, securities or other consideration to be received per share by all
remaining holders of Shares of the Trust in the Business Combination is not
less than the Fair Price (as hereinafter defined); (B) the consideration to be
received by such holders is either cash or, if the Related Person shall have
acquired the majority of its holdings of the Trust's Shares for a form of
consideration other than cash, in the same form of consideration with which the
Related Person acquired such majority; (C) after such person has become a
Related Person and prior to consummation of such Business Combination: (1)
there shall have been no reduction in the annual rate of dividends, if any,
paid per share on the Trust's Shares (adjusted as appropriate for
recapitalizations and for Share splits, reverse Share splits and Share
dividends) except any reduction in such rate that is made
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proportionately with any decline in the Trust's net income for the period for
which such dividends are declared and except as approved by a majority of the
Continuing Trust Managers (as hereinafter defined), and (2) such Related Person
shall not have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advances, guarantees, pledges
or other financial assistance or any tax credits or other tax advantages
provided by the Trust prior to the consummation of such Business Combination
(other than in connection with financing a Fair Tender Offer); and (D) a proxy
statement that conforms in all respects with the provisions of the Securities
Exchange Act of 1934 (the "Exchange Act") and the rules and regulations
thereunder (or any subsequent provisions replacing the Exchange Act or the
rules or regulations thereunder) shall be mailed to holders of the Trust's
Shares at least 30 days prior to the consummation of the Business Combination
for the purpose of soliciting shareholder approval of the Business Combination;
or
(v) The "Rights" (as defined in paragraph (b) of this Article Thirteen)
shall have become exercisable.
(b) If a person has become a Related Person and within one year after the
date (the "Acquisition Date") of the transaction pursuant to which the Related
Person became a Related Person (x) a Business Combination meeting all of the
requirements of subparagraph (iv) of the proviso to paragraph (a) of this
Article Thirteen regarding the applicability of the 80% voting requirement
shall not have been consummated and (y) a Fair Tender Offer shall not have been
consummated and (z) the Trust shall not have been dissolved and liquidated,
then, in such event the beneficial owner of each Share (not including Shares
beneficially owned by the Related Person) (each such beneficial owner being
hereinafter referred to as a "Holder") shall have the right (individually a
"Right" and collectively the "Rights"), which may be exercised subject to the
provisions of paragraph (d) of this Article Thirteen, commencing at the opening
of business on the one-year anniversary date of the Acquisition Date and
continuing for a period of 90 days thereafter, subject to extensions as
provided in paragraph (d) of this Article Thirteen (the "Exercise Period"), to
sell to the Trust on the terms set forth herein one Share upon exercise of such
Right. Within five business days after the commencement of the Exercise Period
the Trust shall notify the Holders of the commencement of the Exercise Period,
specifying therein the terms and conditions for exercise of the Rights. During
the Exercise Period, each certificate representing Shares beneficially owned by
a Holder (a "Certificate") shall also represent the number of Rights equal to
the number of Shares represented thereby and the surrender for transfer of any
Certificate shall also constitute the transfer of the Rights represented by
such Shares. At 5:00 P.M., Houston, Texas time, on the last day of the Exercise
Period, each Right not exercised shall become void, all rights in respect
thereof shall cease as of such time and the Certificates shall no longer
represent Rights.
(c) The purchase price for a Share upon exercise of an accompanying Right
shall be equal to the then-applicable Fair Price paid by the Related Person
(plus, as an allowance for interest, an amount equal to the prime rate of
interest of NationsBank of Texas, N.A. as in effect from time to time from the
Acquisition Date until the date of the payment for such Share but less the
amount of any cash and the Fair Market Value of any property or securities
distributed with respect to such Shares as dividends or otherwise during such
time period), pursuant to the exercise of the Right relating thereto. In the
event the 'Related Person shall have acquired any of its holdings of the
Trust's Shares for a form of consideration other than cash, the value of such
other consideration shall be the Fair Market Value thereof.
(d) Notwithstanding the foregoing in paragraph (b) of this Article
Thirteen, the Exercise Period will be deferred in the event (a "Deferral
Event") that the Trust is otherwise prohibited under applicable law from
repurchasing Shares pursuant to the Rights. In the event the Exercise Period is
deferred,
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or if at any time the Trust reasonably anticipates that a Deferral Event will
exist, the Trust will, as soon as practicable, notify the Holders. If at the
end of any fiscal quarter the Deferral Event ceases to exist, notice shall be
given to the Holders of the commencement of the deferred Exercise Period, which
Exercise Period shall commence no sooner than 15 days nor more than 45 days
from the date of such notice and which shall continue in effect for a period of
time equal in duration to the previously unexpired portion of the Exercise
Period. Notwithstanding any other provision of this Declaration of Trust to the
contrary, during the Exercise Period (including during the existence of any
Deferral Event), neither the Trust nor any subsidiary may declare or pay any
dividend or make any distribution on its shares or to its shareholders (other
than dividends or distributions payable in its shares or, in the case of any
subsidiary, dividends payable to the Trust) or purchase, redeem or otherwise
acquire or retire for value, or permit any subsidiary to purchase or otherwise
acquire for value, any Shares of the Trust if, upon giving effect to such
dividend, distribution, purchase, redemption, or other acquisition or
retirement, the aggregate amount expended for all such purposes (the amount
expended for such purposes, if other than in cash, to be determined by a
majority of the Continuing Trust Managers, whose determination shall be
conclusive) would prejudice the ability of the Trust to satisfy its maximum
obligation to purchase Shares upon exercise of the Rights.
(e) Rights may be exercised upon surrender to the Trust's principal
transfer agent (the "Transfer Agent") at its office in Houston, Texas of the
Certificate or Certificates evidencing the Shares to be tendered for purchase
by the Trust, together with the form on the reverse thereof completed and duly
signed in accordance with the instructions thereon. In the event that a Holder
shall tender a Certificate which represents greater than the number of Shares
which the Holder elects to require the Trust to purchase upon exercise of the
Rights, the Holder shall designate on the reverse side of such Certificate the
number of Shares to be sold from such Certificate. The Transfer Agent shall
thereupon issue a new Certificate or Certificates for the balance of the number
of Shares not sold to the Trust, which new Certificate or Certificates shall
also represent Rights for an equivalent number of Shares.
(f) For the purposes of this Article:
(i) The term "Business Combination" shall mean (A) any merger or
consolidation, if and to the extent permitted by law, of the Trust or a
subsidiary, with or into a Related Person, (B) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition, of all or any Substantial Part
(as hereinafter defined) of the assets of the Trust and its subsidiaries (taken
as a whole) (including, without limitation, any voting securities of a
subsidiary) to or with a Related Person, (C) the issuance or transfer by the
Trust or a subsidiary (other than by way of a pro rata distribution to all
shareholders) of any securities of the Trust or a subsidiary of the Trust to a
Related Person, (D) any reclassification of securities (including any reverse
Share split) or recapitalization by the Trust, the effect of which would be to
increase the voting power (whether or not currently exercisable) of the Related
Person, (E) the adoption of any plan or proposal for the liquidation or
dissolution of the Trust proposed by or on behalf of a Related Person which
involves any transfer of assets, or any other transaction, in which the Related
Person has any direct or indirect interest (except proportionately as a
shareholder), (F) any series or combination of transactions having, directly or
indirectly, the same or substantially the same effect as any of the foregoing,
and (G) any agreement, contract or other arrangement providing, directly or
indirectly, for any of the foregoing.
(ii) The term "Continuing Trust Manager" shall mean (x) any Trust Manager
of the Trust who is not affiliated with a Related Person and who was a Trust
Manager immediately prior to the time that the Related Person became a Related
Person, and (y) any other Trust Manager who is not affiliated with the Related
Person and is recommended either by a majority of the persons described in
clause (x) of this subparagraph (ii) or by persons described in this clause (y)
who are then Trust Managers of the Trust to succeed a person described in
either the said clause (x) or clause (y) as a Trust Manager of the Trust.
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(iii) The term "Fair Market Value" shall mean: (A) in the case of
securities, the highest closing sale price during the 30-day period immediately
preceding the date in question of such security on the Composite Tape for New
York Stock Exchange-Listed Stocks, or, if such security is not quoted on the
Composite Tape, on the New York Stock Exchange, or, if such security is not
listed on such Exchange, on the principal United States securities exchange
registered under the Exchange Act on which such security is listed, or, if such
security is not listed on any such exchange, the highest closing bid quotation
with respect to such security during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotation System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of such security as
reasonably determined by an independent appraiser selected by a majority of the
Continuing Trust Managers (or, if there are no Continuing Trust Managers, by
Kidder, Peabody & Co. Incorporated) in good faith; and (B) in the case of
property other than cash or stock, the fair market value of such property on
the date in question as reasonably determined by an independent appraiser
selected by a majority of the Continuing Trust Managers (or, if there are no
Continuing Trust Managers, by Kidder, Peabody & Co. Incorporated) in good
faith. In each case hereunder in which an independent appraiser is to be
selected to determine Fair Market Value, (1) in the event (x) there are no
Continuing Trust Managers, and (y) Kidder, Peabody & Co. Incorporated is unable
or elects not to serve as such appraiser, or (2) in the event there are
Continuing Trust Managers that do not select an independent appraiser within 10
days of a request for such appointment made by a Related Person, such
independent appraiser may be selected by such Related Person.
(iv) The term "Fair Price" shall mean the highest per-Share price (which,
to the extent not paid in cash, shall equal the Fair Market Value of any other
consideration paid), with appropriate adjustments for recapitalizations and for
Share splits, reverse Share splits and Share dividends, paid by a person in
acquiring any of its holdings of the Trust's Shares.
(v) The term "Fair Tender Offer" shall mean a bona fide tender offer for
all of the Trust's Shares outstanding (and owned by persons other than a
Related Person if the tender offer is made by the Related Person), whether or
not such offer is conditional upon any minimum number of Shares being tendered,
in which the aggregate amount of cash or the Fair Market Value of any
securities or other property to be received by all holders who tender their
Shares for each Share so tendered shall be at least equal to the then
applicable Fair Price paid by a Related Person or paid by the person making the
tender offer if such person is not a Related Person. In the event that at the
time such tender offer is commenced the terms and conduct thereof are not
directly regulated by Section 14(d) or 13(e) of the Exchange Act and the
general rules and regulations promulgated thereunder, then the terms of such
tender offer regarding the time such offer is held open and regarding
withdrawal rights shall conform in all respects with such terms applicable to
tender offers regulated by either of such Sections of the Exchange Act. A Fair
Tender Offer shall not be deemed to be "consummated" until Shares are purchased
and payment in full has been made for all duly tendered Shares.
(vi) The term "Related Person" shall mean and include any individual,
corporation, partnership or other "person" (as defined in Section 13(d)(3) of
the Exchange Act), and the "Affiliates" and "Associates" (as defined in Rule
12b-2 of the Exchange Act) of any such individual, corporation, partnership or
other person which individually or together is the "Beneficial Owner" (as
defined in Rule 13d-3 of the Exchange Act) in the aggregate of more than 50% of
the Shares of the Trust, other than the Trust or any employee benefit plan(s)
sponsored by the Trust.
(vii) The term "Substantial Part" shall mean more than 35% of the book
value of the total assets of the Trust and its subsidiaries (taken as a whole)
as of the end of the fiscal year ending prior to the time the determination is
being made.
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(viii) Any person (as such term is defined in subsection (vi) of this
paragraph (f)) that has the right to acquire any Shares of the Trust pursuant
to any agreement, or upon the exercise of conversion rights, warrants or
options, or otherwise, shall be deemed a Beneficial Owner of such Shares for
purposes of determining whether such person, individually or together with its
Affiliates and Associates, is a Related Person.
(ix) For purposes of subparagraph (iii) of paragraph (a) of this Article
Thirteen, the term "other consideration to be received" shall include, without
limitation, Shares of the Trust retained by its existing public shareholders in
the event of a Business Combination in which the Trust is the surviving entity.
(g) The affirmative vote of the holders of not less than 80% of the
outstanding Shares of the Trust, including the affirmative vote of the holders
of not less than 50% of the outstanding Shares not owned, directly or
indirectly, by any Related Person (such 50% voting requirement shall not be
applicable if such amendment, alteration, change, repeal or rescission is
approved by the affirmative vote of not less than 90% of the outstanding
Shares) shall be required to amend, alter, change, repeal or rescind, or adopt
any provisions inconsistent with, this Article Thirteen.
(h) The provisions of this Article Thirteen shall be subject to all valid
and applicable laws, including, without limitation, the Texas REIT Act, and, in
the event this Article Thirteen or any of the provisions hereof are found to be
inconsistent with or contrary to any such valid laws, such laws shall be deemed
to control and this Article Thirteen shall be regarded as modified accordingly,
and, as so modified, to continue in full force and effect.
ARTICLE FOURTEEN
The Trust Managers may from time to time declare, and the Trust may pay,
dividends on its outstanding Shares in cash, in property or in its Shares,
except that no dividend shall be declared or paid when the Trust is unable to
pay its debts as they become due in the usual course of its business, or when
the payment of such dividend would result in the Trust being unable to pay its
debts as they become due in the usual course of business.
ARTICLE FIFTEEN
A holder of Shares shall not be personally or individually liable in any
manner whatsoever for any debt, act, omission or obligation incurred by the
Trust or the Trust Managers. A holder of Shares shall be under no obligation to
the Trust or to its creditors with respect to such Shares other than the
obligation to pay to the Trust the full amount of the consideration for which
such Shares were issued or to be issued. Upon the payment of such
consideration, such Shares shall be fully paid and non-assessable by the Trust.
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ARTICLE SIXTEEN
(a) In this Article:
(i) "Indemnitee" means (A) any present or former Trust Manager or officer
of the Trust, (B) any person who while serving in any of the capacities
referred to in clause (A) hereof served at the Trust's request as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another real estate investment trust or foreign or domestic
corporation, partnership, joint venture, sole proprietorship, trust, employee
benefit plan or other enterprise and (C) any person nominated or designated by
(or pursuant to authority granted by) the Trust Managers or any committee
thereof to serve in any of the capacities referred to in clauses (A) or (B)
hereof.
(ii) "Official Capacity" means (A) when used with respect to a Trust
Manager, the office of Trust Manager of the Trust and (B) when used with
respect to a person other than a Trust Manager, the elective or appointive
office of the Trust held by such person or the employment or agency
relationship undertaken by such person on behalf of the Trust, but in each case
does not include service for any other real estate investment trust or foreign
or domestic corporation or any partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise.
(iii) "Proceeding" means any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal in such an action, suit or proceeding, and any
inquiry or investigation that could lead to such an action, suit or proceeding.
(b) The Trust shall indemnify every Indemnitee against all judgments,
penalties (including excise and similar taxes), fines, amounts paid in
settlement and reasonable expenses actually incurred by the Indemnitee in
connection with any Proceeding in which he was, is or is threatened to be named
defendant or respondent, or in which he was or is a witness without being named
a defendant or respondent, by reason, in whole or in part, of his serving or
having served, or having been nominated or designated to serve, in any of the
capacities referred to in paragraph (a)(i) of this Article Sixteen, to the
fullest extent that indemnification is permitted by Texas law in accordance
with the Bylaws of the Trust. An Indemnitee shall be deemed to have been found
liable in respect of any claim, issue or matter only after the Indemnitee shall
have been so adjudged by a court of competent jurisdiction after exhaustion of
all appeals therefrom. Reasonable expenses shall include, without limitation,
all court costs and all fees and disbursements of attorneys for the Indemnitee.
(c) Without limitation of paragraph (b) of this Article Sixteen and in
addition to the indemnification provided for in paragraph (b) of this Article
Sixteen, the Trust shall indemnify every Indemnitee against reasonable expenses
incurred by such person in connection with any Proceeding in which he is a
witness or a named defendant or respondent because he served in any of the
capacities referred to in paragraph (a)(i) of this Article Sixteen, if such
person has been wholly successful, on the merits or otherwise, in defense of
the Proceeding.
(d) Reasonable expenses (including court costs and attorneys' fees)
incurred by an Indemnitee who was or is a witness or was, is or is threatened
to be made a named defendant or respondent in a Proceeding shall be paid or
reimbursed by the Trust at reasonable intervals in advance of the final
disposition of such Proceeding after receipt by the Trust of a written
undertaking by or on behalf of such Indemnitee to repay the amount paid or
reimbursed by the Trust if it shall ultimately be determined that he is not
entitled to be indemnified by the Trust as authorized in this Article Sixteen.
Such written undertaking shall be an
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unlimited obligation of the Indemnitee but need not be secured and it may be
accepted without reference to financial ability to make repayment.
Notwithstanding any other provision of this Article Sixteen, the Trust may pay
or reimburse expenses incurred by an Indemnitee in connection with his
appearance as a witness or other participation in a Proceeding at a time when
he is not named a defendant or respondent in the Proceeding.
(e) The indemnification provided by this Article Sixteen shall (i) not be
deemed exclusive of, or to preclude, any other rights to which those seeking
indemnification may at any time be entitled under the Trust's Bylaws, any law,
agreement or vote of shareholders or disinterested Trust Managers, or
otherwise, or under any policy or policies of insurance purchased and
maintained by the Trust on behalf of any Indemnitee, both as to action in his
Official Capacity and as to action in any other Capacity, (ii) continue as to a
person who has ceased to be in the Capacity by reason of which he was an
Indemnitee with respect to matters arising during the period he was in such
Capacity, and (iii) inure to the benefit of the heirs. executors and
administrators of such a person.
(f) The provisions of this Article Sixteen (i) are for the benefit of, and
may be enforced by, each Indemnitee of the Trust, the same as if set forth in
their entirety in a written instrument duly executed and delivered by the Trust
and such Indemnitee and (ii) constitute a continuing offer to all present and
future Indemnitees. The Trust, by its adoption of this Declaration of Trust,
(x) acknowledges and agrees that each Indemnitee of the Trust has relied upon
and will continue to rely upon the provisions of this Article Sixteen in
becoming, and serving in any of the capacities referred to in paragraph (a)(i)
of this Article Sixteen, (y) waives reliance upon, and all notices of
acceptance of, such provisions by such Indemnitees and (z) acknowledges and
agrees that no present or future Indemnitee shall be prejudiced in his right to
enforce the provisions of this Article Sixteen in accordance with their terms
by any act or failure to act on the part of the Trust.
(g) No amendment, modification or repeal of this Article Sixteen or any
provision of this Article Sixteen shall in any manner terminate, reduce or
impair the right of any past, present or future Indemnitees to be indemnified
by the Trust, nor the obligation of the Trust to indemnify any such
Indemnitees, under and in accordance with the provisions of this Article
Sixteen as in effect immediately prior to such amendment, modification or
repeal with respect to claims arising from or relating to matters occurring, in
whole or in part, prior to such amendment, modification or repeal, regardless
of when such claims may be asserted.
(h) If the indemnification provided in this Article Sixteen is either
insufficient to cover all costs and expenses incurred by any Indemnitee as a
result of such Indemnitee being made or threatened to be made a defendant or
respondent in a Proceeding by reason of his holding or having held a position
named in paragraph (a)(i) of this Article Sixteen or (ii) not permitted by
Texas law, the Trust shall indemnify, to the fullest extent that
indemnification is permitted by Texas law, every Indemnitee with respect to all
costs and expenses incurred by such Indemnitee as a result of such Indemnitee
being made or threatened to be made a defendant or respondent in a Proceeding
by reason of his holding or having held a position named in paragraph (a)(i) of
this Article Sixteen.
(i) The indemnification provided by this Article Sixteen shall be subject
to all valid and applicable laws, including, without limitation, the Texas REIT
Act, and, in the event this Article Sixteen or any of the provisions hereof or
the indemnification contemplated hereby are found to be inconsistent with or
contrary to any such valid laws, such laws shall be deemed to control and this
Article Sixteen shall be regarded as modified accordingly, and, as so modified,
to continue in full force and effect.
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(j) The indemnification provisions contained in this Article Sixteen may
be amended only by the affirmative vote of the holders of at least two-thirds
of the outstanding Shares.
(k) Pursuant to Section 24 of the Texas REIT Act, and pursuant to Section
111.003(3) of the Texas Property Code, the Trust is a business trust for
purposes of the Texas Property Code, and accordingly the officers and the Trust
Managers of the Trust shall not be held to the standards for trust management
and investment set forth in the Texas Trust Code.
ARTICLE SEVENTEEN
No Trust Manager or officer of the Trust shall be liable to the Trust for
any act, omission, loss, damage, or expense arising from the performance of his
duty under the Trust save only for his own willful misfeasance or malfeasance
or negligence. In discharging their duties to the Trust, Trust Managers and
officers of the Trust shall be entitled to rely upon experts and other matters
as provided in the Trust's Bylaws.
ARTICLE EIGHTEEN
The number of Trust Managers shall be fixed from time to time by the Trust
Managers as provided in the Bylaws of the Trust. Each Trust Manager shall serve
until his successor is elected and qualified or until his death, retirement,
resignation or removal. In the event of any increase or decrease in the
authorized number of Trust Managers, each Trust Manager then serving as such
shall nevertheless continue as a Trust Manager until the expiration of his
current term, or his prior death, retirement, resignation or removal.
A Trust Manager may be removed by the vote of the holders of two-thirds of
the outstanding Shares at a special meeting of the shareholders called for such
purpose pursuant to the Trust's Bylaws.
ARTICLE NINETEEN
(a) From and after the Initial Public Offering (as hereinafter defined),
no person may own more than 9.8% of the outstanding Shares (the limitation on
the ownership of outstanding Shares is referred to in this Article Nineteen as
the "Ownership Limit" and the 9.8% threshold is referred to in this Article
Nineteen as the "Percentage Limit"), and no Securities (as hereinafter defined)
shall be accepted, purchased, or in any manner acquired by any person if such
issuance or transfer would result in that person's ownership of Shares
exceeding the Percentage Limit. For purposes of determining if the Ownership
Limit is exceeded by a person, Convertible Securities (as hereinafter defined)
owned by such person shall be treated as if the Convertible Securities owned by
such person had been converted into Shares if the effect of such treatment
would be to increase the ownership percentage of such person in the Trust. The
Ownership Limit shall not apply (i) to acquisitions of Securities by any person
that has made a tender offer for all outstanding Shares of the Trust (including
Convertible Securities) in conformity with applicable federal securities laws,
(ii) to the acquisition of Securities of the Trust by an underwriter in a
public offering of Securities of the Trust, or in any transaction involving the
issuance of Securities by the Trust, in which a majority of the Trust Managers
determines that the underwriter or other person or party initially acquiring
such Securities will timely distribute such Securities to or among others so
that, following such distribution, none of such
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Securities will be Excess Securities (as hereinafter defined), or (iii) to the
acquisition of Securities pursuant to the exercise of employee share options.
(b) Nothing in this Article Nineteen shall preclude the settlement of any
transaction in Securities entered into through the facilities of the New York
Stock Exchange. If any Securities are accepted, purchased, or in any manner
acquired by any person resulting in a violation of paragraph (a) or (e) hereof,
such issuance or transfer shall be valid only with respect to such amount of
Securities issued or transferred as does not result in a violation of paragraph
(a) or (e) hereof, and such acceptance, purchase or acquisition shall be void
ab initio with respect to the amount of Securities that results in a violation
of paragraph (a) or (e) hereof (the "Excess Securities"), and the intended
transferee of such Excess Securities shall acquire no rights in such Excess
Securities except as set forth in paragraph (d) below.
(c) Ownership of Securities is conditional upon the owner or prospective
owner having provided to the Trust definitive written information respecting
his ownership of Securities. Failure to provide such information, upon
reasonable request, shall result in the Securities so owned being treated as
Excess Securities pursuant to paragraph (b) hereof for so long as such failure
continues.
(d) The Excess Securities, and the owners thereof, shall have the
following characteristics, rights and powers:
(i) Upon any purported transfer that results in Excess Securities pursuant
to paragraphs (a) or (e) of this Article Nineteen, such Excess Securities shall
be deemed to have been transferred to the Trust, as trustee of a trust for the
exclusive benefit of such beneficiary or beneficiaries to whom an interest in
such Excess Securities may later be transferred pursuant to subparagraph (v) of
this paragraph (d). Any such Excess Securities so held in trust shall be issued
and outstanding stock of the Trust. The purported transferee shall have no
rights in such Excess Securities except as provided in subparagraph (v) of this
paragraph (d).
(ii) Excess Securities shall not be entitled to any dividends, interest
payments or other distributions. Any dividend or distribution paid prior to the
discovery by the Trust that the Securities have become Excess Securities shall
be repaid to the Trust upon demand.
(iii) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of, or any distribution of the assets of, the Trust,
each holder of Excess Securities shall be entitled to receive, ratably with
each other holder of Securities and Excess Securities, that portion of the
assets of the Trust available for distribution to its shareholders as the
number of shares of the Excess Securities held by such holder bears to the
total number of shares of Securities and Excess Securities then outstanding.
The Trust, as holder of the Excess Securities in trust, or if the Trust shall
have been dissolved, any trustee of such trust appointed by the Trust prior to
its dissolution, shall distribute ratably to the beneficiaries of such trust,
when determined, any such assets received in respect of the Excess Securities
in any liquidation, dissolution or winding up of, or any distribution of the
assets of, the Trust.
(iv) The holders of shares of Excess Securities shall not be entitled to
vote on any matters (except as required by law).
(v) Except as otherwise provided in this Article Nineteen, Excess
Securities shall not be transferable. The purported transferee may freely
designate a beneficiary of an interest in the trust (representing the number of
shares of Excess Securities held by the trust attributable to a purported
transfer that resulted in the Excess Securities), if (A) the shares of Excess
Securities held in the trust would not be
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Excess Securities in the hands of such beneficiary and (B) the purported
transferee does not receive a price from such beneficiary that reflects a price
per share for such Excess Securities that exceeds (x) the price per share such
purported transferee paid for the Securities in the purported transfer that
resulted in the Excess Securities, or (y) if the purported transferee did not
give value for such Excess Securities (through a gift, devise or other
transaction), a price per share equal to the Market Price on the date of the
purported transfer that resulted in the Excess Securities. Upon such transfer
of an interest in the trust, the corresponding shares of Excess Securities in
the trust shall be automatically exchanged for an equal number of shares of the
applicable Securities and such Securities shall be transferred of record to the
transferee of the interest in the trust if such Securities would not be Excess
Securities in the hands of such transferee. Prior to any transfer of any
interest in the trust, the purported transferee must give advance notice to the
Trust of the intended transfer and the Trust must have waived in writing its
purchase rights under subparagraph (vi) of this paragraph (d). Notwithstanding
the foregoing, if a purported transferee receives a price for designating a
beneficiary of an interest in the trust that exceeds the amounts allowable
under the foregoing provisions of this subparagraph (v), such purported
transferee shall pay, or cause such beneficiary to pay, such excess to the
Trust.
(vi) Excess Securities shall be deemed to have been offered for sale to
the Trust, or its designee, at a price per share equal to the lesser of (A) the
price per share in the transaction that created such Excess Securities (or, in
the case of a devise or gift, the Market Price at the time of such devise or
gift) and (B) the Market Price on the date the Trust, or its designee, accepts
such offer. The Trust shall have the right to accept such offer for a period of
90 days after the later of (x) the date of the transfer which resulted in such
Excess Securities and (y) the date the Trust Managers determine in good faith
that a transfer resulting in Excess Securities has occurred.
(e) Any sale, transfer, gift, assignment, devise or other disposition of
Shares (a "transfer") that, if effective, would result in (i) the Shares being
owned by less than 100 persons (determined without reference to any rules of
attribution) shall be void ab initio as to the Shares which would otherwise be
beneficially owned by the transferee, (ii) the Trust being "closely held"
within the meaning of Section 856(h) of the Internal Revenue Code of 1986, as
amended (the "Code"), shall be void ab initio as to the transfer of the Shares
that would cause the Trust to be "closely held" within the meaning of Section
856(h) of the Code, and (iii) the disqualification of the Trust as a REIT shall
be void ab initio as to the transfer of the Shares that would cause the Trust
to be disqualified as a REIT, and, in the case of each of clauses (i), (ii) and
(iii) of this paragraph (e), the intended transferee shall acquire no rights in
such- Shares except as set forth in paragraph (d) above.
(f) For purposes of this Article Nineteen:
(i) The term "Convertible Securities" means any securities of the Trust
that are convertible into Shares.
(ii) The term "individual" shall mean any natural person and those
organizations treated as natural persons in Section 542(a) of the Code.
(iii) The term "Initial Public Offering" means the initial sale of Common
Shares to the public pursuant to the Trust's first effective registration
statement for such Common Shares filed under the Securities Act of 1933, as
amended.
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(iv) The term "Market Price" means the last reported sales price of Common
Shares reported on the New York Stock Exchange on the trading day immediately
preceding the relevant date, or if the Common Shares are not then traded on the
New York Stock Exchange, the last reported sales price of the Common Shares on
the trading day immediately preceding the relevant date as reported on any
exchange or quotation system over which the Common Shares may be traded, or if
the Common Shares are not then traded over any exchange or quotation system,
then the market price of the Common Shares on the relevant date as determined
in good faith by the Trust Managers.
(v) The term "ownership" (including "own" or "owns") of Shares means
beneficial ownership. Beneficial ownership, for this purpose shall be defined
in accordance with or by reference to Sections 856, 542 and 544 of the Code
Internal Revenue Code of 1986, as amended (the "Code").
(vi) The term "Person" includes an individual, corporation, partnership,
association, joint stock company, trust, unincorporated association or other
entity and also includes a "group" as that term is defined in Section 13(d)(3)
of the Exchange Act.
(vii) The term "REIT" means a "real estate investment trust" in accordance
with the provisions of Sections 856 through 860 of the Code and applicable
Treasury Regulations.
(viii) The term "Securities" means Shares and Convertible Securities.
(g) If any of the restrictions on transfer set forth in this Article
Nineteen are determined to be void, invalid or unenforceable by virtue of any
legal decision, statute, rule or regulation, then the intended transferee of
any Excess Securities may be deemed, at the option of the Trust, to have acted
as an agent on behalf of the Trust in acquiring the Excess Securities and to
hold the Excess Securities on behalf of the Trust.
(h) Subject to the provisions of the first sentence of paragraph (b)
hereof, nothing herein contained shall limit the ability of the Trust to impose
or to seek judicial or other imposition of additional restrictions if deemed
necessary or advisable to protect the Trust and the interests of its security
holders by preservation of the Trust's status as a qualified real estate
investment trust under the Code.
(i) All persons who own 5% or more of the Trust's outstanding Shares
during any taxable year of the Trust shall file with the Trust an affidavit
setting forth the number of Shares during such taxable year (i) owned directly
(held of record by such person or by a nominee or nominees of such person) and
(ii) owned indirectly (by reason of Sections 542, 544 and 856 of the Code or
for purposes of Rule 13(d) of the Exchange Act) by the person filing the
affidavit. The affidavit to be filed with the Trust shall set forth all the
information required to be reported (i) in returns of shareholders under income
tax regulation 1.857-9 or similar provisions of any successor regulation and
(ii) in reports to be filed under Section 13(d) of the Exchange Act. The
affidavit or an amendment to a previously filed affidavit shall be filed with
the Trust annually within 60 days after the close of the Trust's taxable year.
A person shall have satisfied the requirements of this paragraph (i) if the
person furnishes to the Trust the information in such person's possession after
such person has made a good faith effort to determine the Shares it indirectly
owns and to acquire the information required by income tax regulation 1.857-9
or similar provisions of any successor regulation.
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(j) The affirmative vote of the holders of not less than 80% of all
outstanding Shares of the Trust entitled to vote in the election of Trust
Managers, considered for purposes of this Article Nineteen as one class, shall
be required to amend, alter, change, repeal or rescind any provision of this
Article Nineteen or to adopt any provisions inconsistent with this Article
Nineteen.
ARTICLE TWENTY
Upon resolution adopted by the Trust Managers, the Trust shall be entitled
to purchase, directly or indirectly, its own Shares, provided that following
such repurchase the Trust would continue to be able to pay its debts as they
become due in the ordinary course of its business.
ARTICLE TWENTY-ONE
The Trust Managers shall determine at least annually that the total fees
and expenses of the Trust are reasonable and in accordance with the provisions
of the Trust's Bylaws pertaining to such fees and expenses.
ARTICLE TWENTY-TWO
This Declaration of Trust may be amended from time to time by the
affirmative vote of the holders of at least two-thirds of the outstanding
Shares, except that (i) Article Eleven hereof (relating to the prohibition
against engaging in non-real estate investment trust businesses); (ii) Article
Thirteen hereof (relating to the approval of Business Combinations); (iii)
Article Nineteen hereof (relating to Share ownership requirements) and (iv)
this Article Twenty-Two may not be amended or repealed, and provisions
inconsistent therewith and herewith may not be adopted, except by the
affirmative vote of the holders of at least 80% of the outstanding Shares.
ARTICLE TWENTY-THREE
If any provision of this Declaration of Trust or any application of any
such provision is determined to be invalid by any federal or state court having
jurisdiction over the issue, 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.
IN WITNESS WHEREOF, the undersigned Trust Managers do hereby execute this
Restated and Amended Declaration of Trust as of the 19th day of July, 1993.
/s/ RICHARD J. CAMPO
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Richard J. Campo
/s/ D. KEITH ODEN
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D. Keith Oden
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