EXHIBIT 3.1
BIOMED REALTY TRUST, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
FIRST: BioMed Realty Trust, Inc., a Maryland corporation (the
"Corporation"), desires to amend and restate its charter as currently in effect
and as hereinafter amended.
SECOND: The following provisions are all the provisions of the
charter currently in effect and as hereinafter amended:
ARTICLE I
NAME
The name of the corporation (the "Corporation") is:
BioMed Realty Trust, Inc.
ARTICLE II
PURPOSE
The purposes for which the Corporation is formed are to engage in
any lawful act or activity (including, without limitation or obligation,
engaging in business as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, or any successor statute (the "Code")) for
which corporations may be organized under the general laws of the State of
Maryland as now or hereafter in force. For purposes of these Articles, "REIT"
means a real estate investment trust under Sections 856 through 860 of the Code.
ARTICLE III
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The address of the principal office of the Corporation in the State
of Maryland is c/o The Corporation Trust Incorporated, 300 East Lombard Street,
Baltimore, Maryland 21202. The name and address of the resident agent of the
Corporation is The Corporation Trust
Incorporated, 300 East Lombard Street, Baltimore, Maryland 21202. The resident
agent is a Maryland corporation. The resident agent is a Maryland corporation.
ARTICLE IV
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
Section 4.1 Number of Directors. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. The
number of directors of the Corporation initially shall be two, which number may
be increased or decreased only by the Board of Directors pursuant to the Bylaws,
but shall never be less than the minimum number required by the Maryland General
Corporation Law (the "MGCL"). The names of the directors who shall serve until
their successors are duly elected and qualify are:
Alan D. Gold
Gary A. Kreitzer
These directors may increase the number of directors and may fill any vacancy,
whether resulting from an increase in the number of directors or otherwise, on
the Board of Directors occurring before the first annual meeting of stockholders
in the manner provided in the Bylaws. Subject to the rights of holders of one or
more classes or series of Preferred Stock to elect one or more directors, at
each annual meeting of stockholders, the stockholders shall elect directors to
hold office until the next annual meeting of stockholders and until their
successors are elected and qualify.
Section 4.2 Extraordinary Actions. Except as specifically provided
in Section 4.8 (relating to removal of directors) and in Article VII,
notwithstanding any provision of law permitting or requiring any action to be
taken or approved by the affirmative vote of the holders
2
of shares entitled to cast a greater number of votes, any such action shall be
effective and valid if declared advisable by the Board of Directors and taken or
approved by the affirmative vote of holders of shares entitled to cast a
majority of all the votes entitled to be cast on the matter.
Section 4.3 Authorization by Board of Stock Issuance. The Board of
Directors may authorize the issuance from time to time of shares of stock of the
Corporation of any class or series, whether now or hereafter authorized, or
securities or rights convertible into shares of its stock of any class or
series, whether now or hereafter authorized, for such consideration as the Board
of Directors may deem advisable (or without consideration in the case of a stock
split or stock dividend), subject to such restrictions or limitations, if any,
as may be set forth in the charter (the "Charter") or the Bylaws.
Section 4.4 Preemptive Rights and Appraisal Rights. Except as may be
provided by the Board of Directors in setting the terms of classified or
reclassified shares of stock pursuant to Section 5.4 or as may otherwise be
provided by contract, no holder of shares of stock of the Corporation shall, as
such holder, have any preemptive right to purchase or subscribe for any
additional shares of stock of the Corporation or any other security of the
Corporation which it may issue or sell. Holders of shares of stock shall not be
entitled to exercise any rights of an objecting stockholder provided for under
Title 3, Subtitle 2 of the Maryland General Corporation Law or any successor
statute unless the Board of Directors, upon the affirmative vote of a majority
of the Board of Directors, shall determine that such rights apply, with respect
to all or any classes or series of stock, to one or more transactions occurring
after the date of such determination in connection with which holders of such
shares would otherwise be entitled to exercise such rights.
3
Section 4.5 Indemnification. The Corporation shall have the power,
to the maximum extent permitted by Maryland law in effect from time to time, to
obligate itself to indemnify, and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to, (a) any individual who is a
present or former director or officer of the Corporation or (b) any individual
who, while a director or officer of the Corporation and at the request of the
Corporation, serves or has served as a director, officer, partner or trustee of
another corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or any other enterprise from and against any claim
or liability to which such person may become subject or which such person may
incur by reason of his or her service in such capacity. The Corporation shall
have the power, with the approval of the Board of Directors, to provide such
indemnification and advancement of expenses to a person who served a predecessor
of the Corporation in any of the capacities described in (a) or (b) above and to
any employee or agent of the Corporation or a predecessor of the Corporation.
Section 4.6 Determinations by Board. The determination as to any of
the following matters, made in good faith by or pursuant to the direction of the
Board of Directors consistent with the Charter, shall be final and conclusive
and shall be binding upon the Corporation and every holder of shares of its
stock: the amount of the net income of the Corporation for any period and the
amount of assets at any time legally available for the payment of dividends,
redemption of its stock or the payment of other distributions on its stock; the
amount of paid-in surplus, net assets, other surplus, annual or other cash flow,
funds from operations, net profit, net assets in excess of capital, undivided
profits or excess of profits over losses on sales of assets; 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); any interpretation of the terms, preferences,
conversion or other rights, voting
4
powers or rights, restrictions, limitations as to dividends or distributions,
qualifications or terms or conditions of redemption of any class or series of
stock of the Corporation; the fair value, or any sale, bid or asked price to be
applied in determining the fair value, of any asset owned or held by the
Corporation or of any shares of stock of the Corporation; the number of shares
of stock of any class of the Corporation; any matter relating to the
acquisition, holding and disposition of any assets by the Corporation; or any
other matter relating to the business and affairs of the Corporation or required
or permitted by applicable law, the Charter or the Bylaws or otherwise to be
determined by the Board of Directors.
Section 4.7 REIT Qualification. If the Corporation elects to qualify
for federal income tax treatment as a REIT, the Board of Directors shall use its
reasonable best efforts to take such actions as are necessary or appropriate to
preserve the status of the Corporation as a REIT; however, if the Board of
Directors determines that it is no longer in the best interests of the
Corporation to continue to be qualified as a REIT, the Board of Directors may
revoke or otherwise terminate the Corporation's REIT election pursuant to
Section 856(g) of the Code. The Board of Directors also may determine that
compliance with any restriction or limitation on stock ownership and transfers
set forth in Article VI is no longer required for REIT qualification.
Section 4.8 Removal of Directors. Subject to the rights of holders
of one or more classes or series of Preferred Stock to elect or remove one or
more directors, any director, or the entire Board of Directors, may be removed
from office at any time, but only by the affirmative vote of at least two-thirds
of the votes entitled to be cast generally in the election of directors.
ARTICLE V
STOCK
Section 5.1 Authorized Shares. The Corporation has authority to
issue 115,000,000 shares of stock, consisting of 100,000,000 shares of Common
Stock, $.01 par value per share ("Common Stock"), and 15,000,000 shares of
Preferred Stock, $.01 par value per share ("Preferred Stock"). The aggregate par
value of all authorized shares of stock having par value is
5
$1,150,000. If shares of one class of stock are classified or reclassified into
shares of another class of stock pursuant to Section 5.2, 5.3 or 5.4 of this
Article V, the number of authorized shares of the former class shall be
automatically decreased and the number of shares of the latter class shall be
automatically increased, in each case by the number of shares so classified or
reclassified, so that the aggregate number of shares of stock of all classes
that the Corporation has authority to issue shall not be more than the total
number of shares of stock set forth in the first sentence of this paragraph. The
Board of Directors, without any action by the stockholders of the Corporation,
may amend the Charter from time to time to increase or decrease the aggregate
number of shares of stock or the number of shares of stock of any class or
series that the Corporation has authority to issue.
Section 5.2 Common Stock. Subject to the provisions of Article VI
and except as may otherwise be specified in the terms of any class or series of
Common Stock, each share of Common Stock shall entitle the holder thereof to one
vote. The Board of Directors may reclassify any unissued shares of Common Stock
from time to time in one or more classes or series of stock.
Section 5.3 Preferred Stock. The Board of Directors may classify any
unissued shares of Preferred Stock and reclassify any previously classified but
unissued shares of Preferred Stock of any series from time to time, in one or
more classes or series of stock.
Section 5.4 Classified or Reclassified Shares. Prior to issuance of
classified or reclassified shares of any class or series, the Board of Directors
by resolution shall: (a) designate that class or series to distinguish it from
all other classes and series of stock of the Corporation; (b) specify the number
of shares to be included in the class or series; (c) set or change, subject to
the provisions of Article VI and subject to the express terms of any class or
series of stock of the Corporation outstanding at the time, the preferences,
conversion or other rights, voting powers, restrictions, limitations as to
dividends or other distributions, qualifications and terms and conditions of
redemption for each class or series; and (d) cause the Corporation to file
articles supplementary with the State Department of Assessments and Taxation of
Maryland ("SDAT").
6
Any of the terms of any class or series of stock set or changed pursuant to
clause (c) of this Section 5.4 may be made dependent upon facts or events
ascertainable outside the Charter (including determinations by the Board of
Directors or other facts or events within the control of the Corporation) and
may vary among holders thereof, provided that the manner in which such facts,
events or variations shall operate upon the terms of such class or series of
stock is clearly and expressly set forth in such articles supplementary or other
Charter document.
Section 5.5 Charter and Bylaws. All persons who shall acquire stock
in the Corporation shall acquire the same subject to the provisions of the
Charter and the Bylaws.
ARTICLE VI
RESTRICTION ON TRANSFER AND OWNERSHIP OF SHARES
Section 6.1 Definitions. For the purpose of this Article VI, the
following terms shall have the following meanings:
Aggregate Stock Ownership Limit. The term "Aggregate Stock Ownership
Limit" shall mean not more than 9.8 percent in value of the aggregate of the
outstanding shares of Capital Stock.
Beneficial Ownership. The term "Beneficial Ownership" shall mean
ownership of Capital Stock by a Person, whether the interest in the shares of
Capital Stock is held directly or indirectly (including by a nominee), and shall
include interests that would be treated as owned through the application of
Section 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. The
terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall
have the correlative meanings.
Business Day. The term "Business Day" shall mean any day, other than
a Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in California are authorized or required by law, regulation or
executive order to close.
Capital Stock. The term "Capital Stock" shall mean all classes or
series of stock of the Corporation, including, without limitation, Common Stock
and Preferred Stock.
7
Charitable Beneficiary. The term "Charitable Beneficiary" shall mean
one or more beneficiaries of the Trust (defined below) as determined pursuant to
Section 6.3.6, provided that each such organization must be described in Section
501(c)(3) of the Code and contributions to each such organization must be
eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the
Code.
Closing Price. The term "Closing Price" on any date shall mean the
last sale price for such Capital Stock, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, for such Capital Stock, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the NYSE or, if such Capital Stock is not listed or
admitted to trading on the NYSE, as reported on the principal consolidated
transaction reporting system with respect to securities listed on the principal
national securities exchange on which such Capital Stock is listed or admitted
to trading or, if such Capital Stock is not listed or admitted to trading on any
national securities exchange, the last quoted price, or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System or, if such system is no longer in use, the principal other
automated quotation system that may then be in use or, if such Capital Stock is
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in such
Capital Stock selected by the Board of Directors of the Corporation or, in the
event that no trading price is available for such Capital Stock, the fair market
value of the Capital Stock, as determined in good faith by the Board of
Directors of the Corporation.
Common Stock Ownership Limit. The term "Common Stock Ownership
Limit" shall mean not more than 9.8 percent (in value or in number of shares,
whichever is more restrictive) of the aggregate of the outstanding shares of
Common Stock of the Corporation.
Constructive Ownership. The term "Constructive Ownership" shall mean
ownership of Capital Stock by a Person, whether the interest in the shares of
Capital Stock is
8
held directly or indirectly (including by a nominee), and shall include
interests that would be treated as owned through the application of Section
318(a) of the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned" shall
have the correlative meanings.
Excepted Holder. The term "Excepted Holder" shall mean a stockholder
of the Corporation for whom an Excepted Holder Limit is created by these
Articles or by the Board of Directors pursuant to Section 6.2.7.
Excepted Holder Limit. The term "Excepted Holder Limit" shall mean,
provided that the affected Excepted Holder agrees to comply with the
requirements established by the Board of Directors pursuant to Section 6.2.7 and
subject to adjustment pursuant to Section 6.2.8, the percentage limit
established with respect to such affected Excepted Holder by the Board of
Directors pursuant to Section 6.2.7.
Initial Date. The term "Initial Date" shall mean the date upon which
the Articles of Amendment containing this Article VI are accepted for record by
the SDAT.
Market Price. The term "Market Price" on any date shall mean, with
respect to any class or series of outstanding shares of Capital Stock, the
Closing Price for such Capital Stock on such date.
MGCL. The term "MGCL" shall mean the Maryland General Corporation
Law, as amended from time to time.
NYSE. The term "NYSE" shall mean the New York Stock Exchange.
Person. The term "Person" shall mean an individual, corporation,
partnership, estate, trust (including a trust qualified under Sections 401(a) or
501(c)(17) of the Code), a portion of a trust permanently set aside for or to be
used exclusively for the purposes described in Section 642(c) of the Code,
association, private foundation within the meaning of Section 509(a) of the
Code, joint stock company or other entity and also includes a group as that term
is used for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, and a group to which an Excepted Holder Limit applies.
9
Prohibited Owner. The term "Prohibited Owner" shall mean, with
respect to any purported Transfer, any Person who, but for the provisions of
Section 6.2.1, would Beneficially Own or Constructively Own shares of Capital
Stock, and if appropriate in the context, shall also mean any Person who would
have been the record owner of the shares that the Prohibited Owner would have so
owned.
Restriction Termination Date. The term "Restriction Termination
Date" shall mean the first day after the Initial Date on which the Corporation
determines pursuant to Section 4.7 of the Charter that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT or that compliance with the restrictions and limitations on Beneficial
Ownership, Constructive Ownership and Transfers of shares of Capital Stock set
forth herein is no longer required in order for the Corporation to qualify as a
REIT.
Transfer. The term "Transfer" shall mean any issuance, sale,
transfer, gift, assignment, devise or other disposition, as well as any other
event that causes any Person to acquire Beneficial Ownership or Constructive
Ownership, or any agreement to take any such actions or cause any such events,
of Capital Stock or the right to vote or receive dividends on Capital Stock,
including (a) the granting or exercise of any option (or any disposition of any
option), (b) any disposition of any securities or rights convertible into or
exchangeable for Capital Stock or any interest in Capital Stock or any exercise
of any such conversion or exchange right and (c) Transfers of interests in other
entities that result in changes in Beneficial or Constructive Ownership of
Capital Stock; in each case, whether voluntary or involuntary, whether owned of
record, Constructively Owned or Beneficially Owned and whether by operation of
law or otherwise. The terms "Transferring" and "Transferred" shall have the
correlative meanings.
Trust. The term "Trust" shall mean any trust provided for in Section
6.3.1.
10
Trustee. The term "Trustee" shall mean a Person unaffiliated with
the Corporation and a Prohibited Owner, that is appointed by the Corporation to
serve as a trustee of the Trust.
Section 6.2 Capital Stock.
Section 6.2.1 Ownership Limitations. During the period
commencing on the Initial Date and prior to the Restriction Termination Date:
(a) Basic Restrictions.
(i) (1) No Person, other than an Excepted Holder,
shall Beneficially Own or Constructively Own shares of Capital Stock in excess
of the Aggregate Stock Ownership Limit, (2) no Person, other than an Excepted
Holder, shall Beneficially Own or Constructively Own shares of Common Stock in
excess of the Common Stock Ownership Limit and (3) no Excepted Holder shall
Beneficially Own or Constructively Own shares of Capital Stock in excess of the
Excepted Holder Limit for such Excepted Holder.
(ii) No Person shall Beneficially or
Constructively Own shares of Capital Stock to the extent that such Beneficial or
Constructive Ownership of Capital Stock would result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Code (without regard
to whether the ownership interest is held during the last half of a taxable
year), or otherwise failing to qualify as a REIT (including, but not limited to,
Beneficial or Constructive Ownership that would result in the Corporation owning
(actually or Constructively) an interest in a tenant that is described in
Section 856(d)(2)(B) of the Code if the income derived by the Corporation from
such tenant would cause the Corporation to fail to satisfy any of the gross
income requirements of Section 856(c) of the Code).
(iii) Subject to Section 6.4 and notwithstanding
any other provisions contained herein, any Transfer of shares of Capital Stock
that, if effective, would result in the Capital Stock being beneficially owned
by less than 100 Persons (determined under the principles of Section 856(a)(5)
of the Code) shall be void ab initio, and the intended transferee shall acquire
no rights in such shares of Capital Stock.
11
(b) Transfer in Trust. If any Transfer of shares of
Capital Stock occurs which, if effective, would result in any Person
Beneficially Owning or Constructively Owning shares of Capital Stock in
violation of Section 6.2.1(a)(i) or (ii),
(i) then that number of shares of the Capital
Stock the Beneficial or Constructive Ownership of which otherwise would cause
such Person to violate Section 6.2.1(a)(i) or (ii) (rounded to the next highest
whole share) shall be automatically transferred to a Trust for the benefit of a
Charitable Beneficiary, as described in Section 6.3, effective as of the close
of business on the Business Day prior to the date of such Transfer, and such
Person shall acquire no rights in such shares; or
(ii) if the transfer to the Trust described in
clause (i) of this sentence would not be effective for any reason to prevent the
violation of Section 6.2.1(a)(i) or (ii), then the Transfer of that number of
shares of Capital Stock that otherwise would cause any Person to violate Section
6.2.1(a)(i) or (ii) (rounded to the nearest whole share) shall be void ab
initio, and the intended transferee shall acquire no rights in such shares of
Capital Stock.
Section 6.2.2 Remedies for Breach. If the Board of Directors
of the Corporation or any duly authorized committee thereof shall at any time
determine in good faith that a Transfer or other event has taken place that
results in a violation of Section 6.2.1 or that a Person intends to acquire or
has attempted to acquire Beneficial or Constructive Ownership of any shares of
Capital Stock in violation of Section 6.2.1 (whether or not such violation is
intended), the Board of Directors or a committee thereof shall take such action
as it deems advisable to refuse to give effect to or to prevent such Transfer or
other event, including, without limitation, causing the Corporation to redeem
shares, refusing to give effect to such Transfer on the books of the Corporation
or instituting proceedings to enjoin such Transfer or other event; provided,
however, that any Transfer or attempted Transfer or other event in violation of
Section 6.2.1 shall automatically result in the transfer to the Trust described
above, and, where applicable, such Transfer (or other event) shall be void ab
initio as provided above irrespective of any action (or non-action) by the Board
of Directors or a committee thereof.
12
Section 6.2.3 Notice of Restricted Transfer. Any Person who
acquires or attempts or intends to acquire Beneficial Ownership or Constructive
Ownership of shares of Capital Stock that will or may violate Section 6.2.1(a)
or any Person who would have owned shares of Capital Stock that resulted in a
transfer to the Trust pursuant to the provisions of Section 6.2.1(b) shall
immediately give written notice to the Corporation of such event or, in the case
of such a proposed or attempted transaction, give at least 15 days prior written
notice to the Corporation, and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer on the Corporation's status as a REIT.
Section 6.2.4 Owners Required To Provide Information. From the
Initial Date and prior to the Restriction Termination Date:
(a) every owner of five percent or more (or such other
percentage as required by the Code or the Treasury Regulations promulgated
thereunder) of the outstanding shares of Capital Stock, within 30 days after the
end of each taxable year, shall give written notice to the Corporation stating
the name and address of such owner, the number of shares of Capital Stock and
other shares of the Capital Stock Beneficially Owned and a description of the
manner in which such shares are held. Each such owner shall provide to the
Corporation such additional information as the Corporation may request in order
to determine the effect, if any, of such Beneficial Ownership on the
Corporation's status as a REIT and to ensure compliance with the Aggregate Stock
Ownership Limit; and
(b) each Person who is a Beneficial or Constructive
Owner of Capital Stock and each Person (including the stockholder of record) who
is holding Capital Stock for a Beneficial or Constructive Owner shall provide to
the Corporation such information as the Corporation may request, in good faith,
in order to determine the Corporation's status as a REIT and to comply with
requirements of any taxing authority or governmental authority or to determine
such compliance.
13
Section 6.2.5 Remedies Not Limited. Subject to Section 4.7 of
the Charter, nothing contained in this Section 6.2 shall limit the authority of
the Board of Directors of the Corporation to take such other action as it deems
necessary or advisable to protect the Corporation and the interests of its
stockholders in preserving the Corporation's status as a REIT.
Section 6.2.6 Ambiguity. In the case of an ambiguity in the
application of any of the provisions of this Section 6.2, Section 6.3, or any
definition contained in Section 6.1, the Board of Directors of the Corporation
shall have the sole power to determine the application of the provisions of this
Section 6.2 or Section 6.3 or any such definition with respect to any situation
based on the facts known to it. In the event Section 6.2 or 6.3 requires an
action by the Board of Directors and the Charter fails to provide specific
guidance with respect to such action, the Board of Directors shall have the sole
power to determine the action to be taken so long as such action is not contrary
to the provisions of Sections 6.1, 6.2 or 6.3. Absent a decision to the contrary
by the Board of Directors (which the Board may make in its sole and absolute
discretion), if a Person would have (but for the remedies set forth in Section
6.2.2) acquired Beneficial or Constructive Ownership of Stock in violation of
Section 6.2.1, such remedies (as applicable) shall apply first to the shares of
Stock which, but for such remedies, would have been Beneficially Owned or
Constructively Owned (but not actually owned) by such Person, pro rata among the
Persons who actually own such shares of Stock based upon the relative number of
the shares of Stock held by each such Person.
Section 6.2.7 Exceptions.
(a) Subject to Section 6.2.1(a)(ii), the Board of
Directors of the Corporation, in its sole discretion, may exempt (prospectively
or retroactively) a Person from the Aggregate Stock Ownership Limit and the
Common Stock Ownership Limit, as the case may be, and may establish or increase
an Excepted Holder Limit for such Person if:
(i) the Board of Directors obtains such
representations and undertakings from such Person as are reasonably necessary to
ascertain that no individual's
14
Beneficial or Constructive Ownership of such shares of Capital Stock will
violate Section 6.2.1(a)(ii);
(ii) such Person does not, and represents that it
will not, own, actually or Constructively, an interest in a tenant of the
Corporation (or a tenant of any entity owned or controlled by the Corporation)
that would cause the Corporation to own, actually or Constructively, more than a
9.9% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant
and the Board of Directors obtains such representations and undertakings from
such Person as are reasonably necessary to ascertain this fact (for this
purpose, a tenant from whom the Corporation (or an entity owned or controlled by
the Corporation) derives (and is expected to continue to derive) a sufficiently
small amount of revenue such that, in the opinion of the Board of Directors of
the Corporation, rent from such tenant would not adversely affect the
Corporation's ability to qualify as a REIT shall not be treated as a tenant of
the Corporation); and
(iii) such Person agrees that any violation or
attempted violation of such representations or undertakings (or other action
which is contrary to the restrictions contained in Sections 6.2.1 through 6.2.6)
will result in such shares of Capital Stock being automatically transferred to a
Trust in accordance with Sections 6.2.1(b) and 6.3.
(b) Prior to establishing or increasing any Excepted
Holder Limit pursuant to Section 6.2.7(a), the Board of Directors of the
Corporation may require a ruling from the Internal Revenue Service, or an
opinion of counsel, in either case in form and substance satisfactory to the
Board of Directors in its sole discretion, as it may deem necessary or advisable
in order to determine or ensure the Corporation's status as a REIT.
Notwithstanding the receipt of any ruling or opinion, the Board of Directors may
impose such conditions or restrictions as it deems appropriate in connection
with establishing or increasing such Excepted Holder Limit.
(c) Subject to Section 6.2.1(a)(ii), an underwriter
which participates in a public offering or a private placement of Capital Stock
(or securities convertible into or exchangeable for Capital Stock) may
Beneficially Own or Constructively Own shares of
15
Capital Stock (or securities convertible into or exchangeable for Capital Stock)
in excess of the Aggregate Stock Ownership Limit, the Common Stock Ownership
Limit, or both such limits, but only to the extent necessary to facilitate such
public offering or private placement.
(d) The Board of Directors may only reduce the Excepted
Holder Limit for an Excepted Holder: (1) with the written consent of such
Excepted Holder at any time, or (2) pursuant to the terms and conditions of the
agreements and undertakings entered into with such Excepted Holder in connection
with the establishment of the Excepted Holder Limit for that Excepted Holder. No
Excepted Holder Limit shall be reduced to a percentage that is less than the
Common Stock Ownership Limit.
Section 6.2.8 Increase in Aggregate Stock Ownership and Common
Stock Ownership Limits. Subject to Section 6.2.1 (a)(ii), the Board of Directors
may from time to time increase the Common Stock Ownership Limit and the
Aggregate Stock Ownership Limit for one or more Persons and decrease the Common
Stock Ownership Limit and the Aggregate Stock Ownership Limit for all other
Persons; provided, however, that the decreased Common Stock Ownership Limit
and/or Aggregate Stock Ownership Limit will not be effective for any Person
whose percentage ownership in Stock is in excess of such decreased Common Stock
Ownership Limit and/or Aggregate Stock Ownership Limit until such time as such
Person's percentage of Stock equals or falls below the decreased Common Stock
Ownership Limit and/or Aggregate Stock Ownership Limit, as applicable, but any
further acquisition of Stock in excess of such percentage ownership of Stock
will be in violation of the Common Stock Ownership Limit and/or Aggregate Stock
Ownership Limit, as applicable, and, provided further, that the new Common Stock
Ownership Limit and/or Aggregate Stock Ownership Limit would not allow five or
fewer Persons to Beneficially Own more than 49.9% in value of the outstanding
Stock.
Section 6.2.9 Legend. Each certificate for shares of Capital
Stock shall bear substantially the following legend:
16
The shares represented by this certificate are subject to
restrictions on Beneficial and Constructive Ownership and Transfer
for the purpose, among others, of the Corporation's maintenance of
its status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended (the "Code"). Subject to certain
further restrictions and except as expressly provided in the
Corporation's Charter, (i) no Person may Beneficially or
Constructively Own shares of the Corporation's Common Stock in
excess of 9.8 percent (in value or number of shares) of the
outstanding shares of Common Stock of the Corporation unless such
Person is an Excepted Holder (in which case the Excepted Holder
Limit applicable to such Excepted Holder shall apply); (ii) no
Person may Beneficially or Constructively Own shares of Capital
Stock of the Corporation in excess of 9.8 percent of the value of
the total outstanding shares of Capital Stock of the Corporation,
unless such Person is an Excepted Holder (in which case the Excepted
Holder Limit applicable to such Excepted Holder shall apply); (iii)
no Person may Beneficially or Constructively Own Capital Stock that
would result in the Corporation being "closely held" under Section
856(h) of the Code or otherwise cause the Corporation to fail to
qualify as a REIT; and (iv) no Person may Transfer shares of Capital
Stock if such Transfer would result in the Capital Stock of the
Corporation being owned by fewer than 100 Persons. Any Person who
Beneficially or Constructively Owns or attempts to Beneficially or
Constructively Own shares of Capital Stock which causes or will
cause a Person to Beneficially or Constructively Own shares of
Capital Stock in excess or in violation of the above limitations
must immediately notify the Corporation. If any of the restrictions
on transfer or ownership are violated, the shares of Capital Stock
represented hereby will be automatically transferred to a Trustee of
a Trust for the benefit of one or more Charitable Beneficiaries. In
addition, the Corporation may redeem shares upon the terms and
conditions specified by its Board of Directors in its sole
discretion if the Board of Directors determines that ownership or a
Transfer or other event may violate the restrictions described
above. Furthermore, upon the occurrence of certain events, attempted
Transfers in violation of the restrictions described above may be
void ab initio. All capitalized terms in this legend have the
meanings defined in the Charter of the Corporation, as the same may
be amended from time to time, a copy of which, including the
restrictions on transfer and ownership, will be furnished to each
holder of Capital Stock of the Corporation on request and without
charge. Requests for such a copy may be directed to the Secretary of
the Corporation at its Principal Office.
17
Instead of the foregoing legend, the certificate may state
that the Corporation will furnish a full statement about certain restrictions on
transferability to a stockholder on request and without charge.
Section 6.3 Transfer of Capital Stock in Trust.
Section 6.3.1 Ownership in Trust. Upon any purported Transfer
or other event described in Section 6.2.1(b) that would result in a transfer of
shares of Capital Stock to a Trust, such shares of Capital Stock shall be deemed
to have been transferred to the Trustee as trustee of a Trust for the exclusive
benefit of one or more Charitable Beneficiaries. Such transfer to the Trustee
shall be deemed to be effective as of the close of business on the Business Day
prior to the purported Transfer or other event that results in the transfer to
the Trust pursuant to Section 6.2.1(b). The Trustee shall be appointed by the
Corporation and shall be a Person unaffiliated with the Corporation and any
Prohibited Owner. Each Charitable Beneficiary shall be designated by the
Corporation as provided in Section 6.3.6.
Section 6.3.2 Status of Shares Held by the Trustee. Shares of
Capital Stock held by the Trustee shall be issued and outstanding shares of
Capital Stock of the Corporation. The Prohibited Owner shall have no rights in
the shares held by the Trustee. The Prohibited Owner shall not benefit
economically from ownership of any such shares held in trust by the Trustee,
shall have no rights to dividends or other distributions and shall not possess
any rights to vote or other rights attributable to the shares held in the Trust.
Section 6.3.3 Dividend and Voting Rights. The Trustee shall
have all voting rights and rights to dividends or other distributions with
respect to shares of Capital Stock held in the Trust, which rights shall be
exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend
or other distribution paid prior to the discovery by the Corporation
18
that the shares of Capital Stock have been transferred to the Trustee shall be
paid by the recipient of such dividend or distribution to the Trustee upon
demand and any dividend or other distribution authorized but unpaid shall be
paid when due to the Trustee. Any dividend or distribution so paid to the
Trustee shall be held in trust for the Charitable Beneficiary. The Prohibited
Owner shall have no voting rights with respect to shares held in the Trust and,
subject to Maryland law, effective as of the date that the shares of Capital
Stock have been transferred to the Trustee, the Trustee shall have the authority
(at the Trustee's sole discretion) (i) to rescind as void any vote cast by a
Prohibited Owner prior to the discovery by the Corporation that the shares of
Capital Stock have been transferred to the Trustee and (ii) to recast such vote
in accordance with the desires of the Trustee acting for the benefit of the
Charitable Beneficiary; provided, however, that if the Corporation has already
taken irreversible corporate action, then the Trustee shall not have the
authority to rescind and recast such vote. Notwithstanding the provisions of
this Article VI, until the Corporation has received notification that shares of
Capital Stock have been transferred into a Trust, the Corporation shall be
entitled to rely on its share transfer and other stockholder records for
purposes of preparing lists of stockholders entitled to vote at meetings,
determining the validity and authority of proxies and otherwise conducting votes
of stockholders.
Section 6.3.4 Sale of Shares by Trustee. Within 20 days of
receiving notice from the Corporation that shares of Capital Stock have been
transferred to the Trust, the Trustee of the Trust shall sell the shares held in
the Trust to a Person, designated by the Trustee, whose ownership of the shares
will not violate the ownership limitations set forth in Section 6.2.1(a). Upon
such sale, the interest of the Charitable Beneficiary in the shares sold shall
terminate and the Trustee shall distribute the net proceeds of the sale to the
Prohibited Owner
19
and to the Charitable Beneficiary as provided in this Section 6.3.4. The
Prohibited Owner shall receive the lesser of (1) the price paid by the
Prohibited Owner for the shares or, if the Prohibited Owner did not give value
for the shares in connection with the event causing the shares to be held in the
Trust (e.g., in the case of a gift, devise or other such transaction), the
Market Price of the shares on the day of the event causing the shares to be held
in the Trust and (2) the price per share received by the Trustee (net of any
commissions and other expenses of sale) from the sale or other disposition of
the shares held in the Trust. The Trustee may reduce the amount payable to the
Prohibited Owner by the amount of dividends and distributions which have been
paid to the Prohibited Owner and are owed by the Prohibited Owner to the Trustee
pursuant to Section 6.3.3 of this Article VI. Any net sales proceeds in excess
of the amount payable to the Prohibited Owner shall be immediately paid to the
Charitable Beneficiary. If, prior to the discovery by the Corporation that
shares of Capital Stock have been transferred to the Trustee, such shares are
sold by a Prohibited Owner, then (i) such shares shall be deemed to have been
sold on behalf of the Trust and (ii) to the extent that the Prohibited Owner
received an amount for such shares that exceeds the amount that such Prohibited
Owner was entitled to receive pursuant to this Section 6.3.4, such excess shall
be paid to the Trustee upon demand.
Section 6.3.5 Purchase Right in Stock Transferred to the
Trustee. Shares of Capital Stock transferred to the Trustee shall be deemed to
have been offered for sale to the Corporation, or its designee, at a price per
share equal to the lesser of (i) the price per share in the transaction that
resulted in such transfer to the Trust (or, in the case of a devise or gift, the
Market Price at the time of such devise or gift) and (ii) the Market Price on
the date the Corporation, or its designee, accepts such offer. The Corporation
may reduce the amount payable to the Prohibited Owner by the amount of dividends
and distributions which has been
20
paid to the Prohibited Owner and are owed by the Prohibited Owner to the Trustee
pursuant to Section 6.3.3 of this Article VI. The Corporation may pay the amount
of such reduction to the Trustee for the benefit of the Charitable Beneficiary.
The Corporation shall have the right to accept such offer until the Trustee has
sold the shares held in the Trust pursuant to Section 6.3.4. Upon such a sale to
the Corporation, the interest of the Charitable Beneficiary in the shares sold
shall terminate and the Trustee shall distribute the net proceeds of the sale to
the Prohibited Owner.
Section 6.3.6 Designation of Charitable Beneficiaries. By
written notice to the Trustee, the Corporation shall designate one or more
nonprofit organizations to be the Charitable Beneficiary of the interest in the
Trust such that (i) the shares of Capital Stock held in the Trust would not
violate the restrictions set forth in Section 6.2.1(a) in the hands of such
Charitable Beneficiary and (ii) each such organization must be described in
Section 501(c)(3) of the Code and contributions to each such organization must
be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of
the Code.
Section 6.4 NYSE Transactions. Nothing in this Article VI shall
preclude the settlement of any transaction entered into through the facilities
of the NYSE or any other national securities exchange or automated inter-dealer
quotation system. The fact that the settlement of any transaction occurs shall
not negate the effect of any other provision of this Article VI and any
transferee in such a transaction shall be subject to all of the provisions and
limitations set forth in this Article VI.
Section 6.5 Enforcement. The Corporation is authorized specifically
to seek equitable relief, including injunctive relief, to enforce the provisions
of this Article VI.
21
Section 6.6 Non-Waiver. No delay or failure on the part of the
Corporation or the Board of Directors in exercising any right hereunder shall
operate as a waiver of any right of the Corporation or the Board of Directors,
as the case may be, except to the extent specifically waived in writing.
ARTICLE VII
AMENDMENTS
The Corporation reserves the right from time to time to make any
amendment to its Charter, now or hereafter authorized by law, including any
amendment altering the terms or contract rights, as expressly set forth in the
Charter, of any shares of outstanding stock. All rights and powers conferred by
the Charter on stockholders, directors and officers are granted subject to this
reservation. Except as otherwise provided in the Charter, any amendment to the
Charter shall be valid only if declared advisable by the Board of Directors and
approved by the affirmative vote of at least a majority of all the votes
entitled to be cast on the matter. However, any amendment to Section 4.8 or to
this sentence of the Charter shall be valid only if declared advisable by the
Board of Directors and approved by the affirmative vote of at least two-thirds
of all the votes entitled to be cast on the matter.
ARTICLE VIII
LIMITATION OF LIABILITY
To the maximum extent that Maryland law in effect from time to time
permits limitation of the liability of directors and officers of a corporation,
no present or former director or officer of the Corporation shall be liable to
the Corporation or its stockholders for money damages. Neither the amendment nor
repeal of this Article VIII, nor the adoption or amendment of any other
provision of the Charter or Bylaws inconsistent with this Article VIII, shall
apply to
22
or affect in any respect the applicability of the preceding sentence with
respect to any act or failure to act which occurred prior to such amendment,
repeal or adoption.
THIRD: The amendment to and restatement of the charter as
hereinabove set forth have been duly advised by the Board of Directors and
approved by the stockholders of the Corporation as required by law.
FOURTH: The current address of the principal office of the
Corporation is as set forth in Article III of the foregoing amendment and
restatement of the charter.
FIFTH: The name and address of the Corporation's current resident
agent is as set forth in Article III of the foregoing amendment and restatement
of the charter.
SIXTH: The number of directors of the Corporation and the names of
those currently in office are as set forth in Article IV of the foregoing
amendment and restatement of the charter.
SEVENTH: The total number of shares of stock which the Corporation
had authority to issue immediately prior to this amendment and restatement was
100,000,000, consisting of 100,000,000 shares of Common Stock, $.01 par value
per share. The aggregate par value of all shares of stock having par value was
$1,000,000.
EIGHTH: The total number of shares of stock which the Corporation
has authority to issue pursuant to the foregoing amendment and restatement of
the charter is 115,000,000, consisting of 100,000,000 shares of Common Stock,
$.01 par value per share, and 15,000,000 shares of Preferred Stock, $.01 par
value per share. The aggregate par value of all authorized shares of stock
having par value is $1,150,000.
NINTH: By resolution of the Board of Directors of the Corporation,
Karen Sztraicher, the Controller of the Corporation, is authorized to attest
these Articles of Amendment and Restatement.
23
The undersigned Executive Vice President of the Corporation
acknowledges these Articles of Amendment and Restatement to be the corporate act
of the Corporation and, as to all matters or facts required to be verified under
oath, the undersigned Executive Vice 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.
IN WITNESS WHEREOF, the Corporation has caused these Articles of
Amendment and Restatement to be executed in its name and on its behalf by its
Executive Vice President and attested by its Controller this 5th day of August,
2004.
ATTEST: BIOMED REALTY TRUST, INC.
/s/ KAREN SZTRAICHER By: /s/ GARY A. KREITZER
- -------------------------- ----------------------
Karen Sztraicher Gary A. Kreitzer
Controller Executive Vice President
24