EXHIBIT 3.1
MAGUIRE PROPERTIES, INC.
ARTICLES OF AMENDMENT AND RESTATEMENT
FIRST: Maguire Properties, 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 is:
Maguire Properties, 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 Venable, Baetjer and Howard, LLP, 1800 Mercantile Bank & Trust
Bldg., 2 Hopkins Plaza, Baltimore, Maryland 21201, Attention: James J. Hanks,
Jr. The name of the resident agent of the
Corporation in the State of Maryland is James J. Hanks, Jr., whose post office
address is c/o Venable, Baetjer and Howard, LLP, 1800 Mercantile Bank & Trust
Bldg., 2 Hopkins Plaza, Baltimore, Maryland 21201. The resident agent is a
citizen of and resides in the State of Maryland.
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 six (6), which number
may be increased or decreased pursuant to the Bylaws, but shall never be less
than the minimum number required by the Maryland General Corporation Law. The
names of the directors who shall serve until the first annual meeting of
stockholders and until their successors are duly elected and qualify are:
Robert F. Maguire III, Chairman of the Board
Richard I. Gilchrist
Lawrence S. Kaplan
Caroline S. McBride
Andrea L. Van de Kamp
Walter L. Weisman
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.
Section 4.2 Extraordinary Actions. Except as specifically provided in
Section 4.8 (relating to removal of directors) and in Article VII (relating to
amendments and transactions
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outside the ordinary course of business), notwithstanding any provision of law
permitting or requiring any action to be taken or approved by the affirmative
vote of the holders of shares entitled to cast a greater number of votes, any
such action shall be effective and valid if 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 or the Bylaws.
Section 4.4 Preemptive 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.
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 of the Corporation and at the request of the Corporation,
serves or has served as a director, officer, partner or trustee of another
corporation,
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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 status as a present or former director or officer of the Corporation. 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 and in the absence of actual
receipt of an improper benefit in money, property or services or active and
deliberate dishonesty established by a court, 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 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); 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; 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.
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Section 4.7 REIT Qualification. So long as the Corporation has elected
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 for cause and then only by the affirmative vote of
at least two thirds of the votes entitled to be cast generally in the election
of directors. For the purpose of this paragraph, "cause" shall mean, with
respect to any particular director, conviction of a felony or a final judgment
of a court of competent jurisdiction holding that such director caused
demonstrable, material harm to the Corporation through bad faith or active and
deliberate dishonesty.
Section 4.9 Rights of Objecting Stockholders. Holders of shares of
stock of the Corporation 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 unless the Board of Directors of the Corporation, upon
the affirmative vote of a majority of the entire Board of Directors, shall
determine that such rights shall apply, with respect to all or any classes or
series of stock, to a particular transaction or all transactions occurring after
the date of such
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determination in connection with which holders of such shares of stock of the
Corporation would otherwise be entitled to exercise such rights.
ARTICLE V
STOCK
Section 5.1 Authorized Shares. The Corporation has authority to issue
150,000,000 shares of stock, consisting of 100,000,000 shares of Common Stock,
$.01 par value per share ("Common Stock"), 50,000,000 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 $1,500,000. If shares of one
class of stock are classified or reclassified into shares of another class of
stock pursuant to 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. To the extent permitted by Maryland law, 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, 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.
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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, including, without
limitation, restrictions on transferability, 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"). 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 the articles supplementary filed
with the SDAT.
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.
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ARTICLE VI
RESTRICTION ON TRANSFER AND OWNERSHIP OF SHARES
Section 6.1 Definitions. For the purposes of Article VI, the following
terms shall have the following meanings:
"Beneficial Ownership" shall mean ownership of Common Stock by a Person
who is or would be treated as an owner of such Common Stock either actually or
constructively through the application of Section 544 of the Code, as modified
by Sections 856(h)(l)(B) and 856(h)(3) of the Code. The terms "Beneficial
Owner," "Beneficially Own," "Beneficially Owns" and "Beneficially Owned" shall
have the correlative meanings. For purposes of determining the percentage
ownership of Common Stock by any Person, shares of Common Stock that may be
acquired upon conversion, exchange or exercise of any securities of the
Corporation or any securities of Maguire Properties, L.P. directly or
constructively held by such Person, but not Common Stock issuable with respect
to the conversion, exchange or exercise of securities of the Corporation or
securities of Maguire Properties, L.P. held by other Persons, shall be deemed to
be outstanding prior to conversion, exchange or exercise.
"Charitable Beneficiary" shall mean one or more beneficiaries of a
Trust, as determined pursuant to Section 6.3.6 of this Article VI.
"Code" shall mean the Internal Revenue Code of 1986, as amended. All
section references to the Code shall include any successor provisions thereof as
may be adopted from time to time.
"Common Stock" shall mean that Common Stock that may be issued pursuant
to Article V of the Articles of Amendment and Restatement.
"Constructive Ownership" shall mean ownership of Common Stock by a
Person who is or would be treated as an owner of such Common Stock either
actually or constructively
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through the application of Section 318 of the Code, as modified by Section
856(d)(5) of the Code. The terms "Constructive Owner," "Constructively Own,"
"Constructively Owns" and "Constructively Owned" shall have the correlative
meanings.
"Corporation" shall have the meaning set forth in the preamble to the
Articles of Amendment and Restatement.
"Individual" means an individual, a trust qualified under Section 401
(a) or 501(c)(17) of the Code, a portion of a trust permanently set aside for or
to be used exclusively for the purposes described in Section 642(c) of the Code,
or a private foundation within the meaning of Section 509(a) of the Code,
provided that a trust described in Section 401 (a) of the Code and exempt from
tax under Section 501(a) of the Code shall be excluded from this definition.
"Initial Date" means the date upon which the Articles of Amendment and
Restatement containing this Article VI are filed with the State Department of
Assessments and Taxation of Maryland.
"IRS" means the United States Internal Revenue Service.
"Market Price" means the last reported sales price reported on the New
York Stock Exchange of the Common Stock on the trading day immediately preceding
the relevant date, or if the Common Stock is not then traded on the New York
Stock Exchange, the last reported sales price of the Common Stock on the trading
day immediately preceding the relevant date as reported on any exchange or
quotation system over which the Common Stock may be traded, or if the Common
Stock is not then traded over any exchange or quotation system, then the market
price of the Common Stock on the relevant date as determined in good faith by
the Board of Directors of the Corporation.
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"Ownership Limit" shall mean 9.8% (by value or by number of shares,
whichever is more restrictive) of the outstanding Common Stock of the
Corporation, excluding any such outstanding Common Stock which is not treated as
outstanding for federal income tax purposes. The number and value of shares of
outstanding Common Stock of the Corporation shall be determined by the Board of
Directors in good faith, which determination shall be conclusive for all
purposes hereof.
"Person" shall mean an individual, corporation, partnership, limited
liability company, estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust permanently set aside
for or to be used exclusively for the purposes described in Section 642(c) of
the Code, association, private foundation within the meaning of Section 509(a)
of the Code, joint stock company or other entity; but does not include an
underwriter acting in a capacity as such in a public offering of shares of
Common Stock provided that the ownership of such shares of Common Stock by such
underwriter would not result in the Corporation being "closely held" within the
meaning of Section 856(h) of the Code, or otherwise result in the Corporation
failing to qualify as a REIT.
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer (or other event) which results in a transfer to a Trust, as
provided in Section 6.2.2 of this Article VI, the Purported Record Transferee,
unless the Purported Record Transferee would have acquired or owned shares of
Common Stock for another Person who is the beneficial transferee or owner of
such shares, in which case the Purported Beneficial Transferee shall be such
Person.
"Purported Record Transferee" shall mean, with respect to any purported
Transfer (or other event) which results in a transfer to a Trust, as provided in
Section 6.2.2 of this Article
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VI, the record holder of the shares of Common Stock if such Transfer had been
valid under Section 6.2.1 of this Article VI.
"REIT" shall mean a real estate investment trust under Sections 856
through 860 of the Code.
"Restriction Termination Date" shall mean the first day on which the
Board of Directors of the Corporation determines that it is no longer in the
best interests of the Corporation to attempt to, or continue to, qualify as a
REIT.
"Transfer" shall mean any issuance, sale, transfer, gift, assignment,
devise, other disposition of Common Stock as well as any other event that causes
any Person to Beneficially Own or Constructively Own Common Stock, including (i)
the granting of any option or entering into any agreement for the sale, transfer
or other disposition of Common Stock or (ii) the sale, transfer, assignment or
other disposition of any securities (or rights convertible into or exchangeable
for Common Stock), whether voluntary or involuntary, whether such transfer has
occurred of record or beneficially or Beneficially or Constructively (including
but not limited to transfers of interests in other entities which result in
changes in Beneficial or Constructive Ownership of Common Stock), and whether
such transfer has occurred by operation of law or otherwise.
"Trust" shall mean each of the trusts provided for in Section 6.3 of
this Article VI.
"Trustee" shall mean any Person unaffiliated with the Corporation, or a
Purported Beneficial Transferee, or a Purported Record Transferee, that is
appointed by the Corporation to serve as trustee of a Trust.
Section 6.2 Restriction on Ownership and Transfers.
6.2.1 From the Initial Date and prior to the Restriction
Termination Date:
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(a) except as provided in Section o.9 of this
Article VI, no Person shall Beneficially Own Common Stock in excess of the
Ownership Limit;
(b) except as provided in Section 6.9 of this
Article VI, no Person shall Constructively Own Common Stock in excess of the
Ownership Limit; and
(c) no Person shall Beneficially or
Constructively Own Common Stock to the extent that such Beneficial or
Constructive Ownership would result in the Corporation being "closely held"
within the meaning of Section 856(h) of the Code, or otherwise failing to
qualify as a REIT (including but not limited to 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 (either directly or indirectly through one or more partnerships or
limited liability companies) from such tenant would cause the Corporation to
fail to satisfy any of the gross income requirements of Section 856(c) of the
Code).
6.2.2 If, during the period commencing on the Initial Date
and prior to the Restriction Termination Date, any Transfer occurs that, if
effective, would result in any Person Beneficially or Constructively Owning
Common Stock in violation of Section 6.2.1 of this Article VI, (i) then that
number of shares of Common Stock that otherwise would cause such Person to
violate Section 6.2.1 of this Article VI (rounded up to the nearest 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 or other event, and such
Purported Beneficial Transferee shall thereafter have no rights in such shares
or (ii) if, for any reason, the transfer to the Trust described in clause (i) of
this sentence is not automatically effective as provided therein to prevent any
Person from Beneficially or Constructively Owning Common Stock in violation of
Section 6.2.1 of this Article VI, then the Transfer of that number of shares of
Common Stock that otherwise would
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cause any Person to violate Section 6.2.1 shall, subject to Section 6.12, be
void ab initio, and the Purported Beneficial Transferee shall have no rights in
such shares.
6.2.3 Subject to Section 6.12 of this Article VI and
notwithstanding any other provisions contained herein, during the period
commencing on the Initial Date and prior to the Restriction Termination Date,
any Transfer of Common Stock that, if effective, would result in the capital
stock of the Corporation being beneficially owned by less than 100 Persons
(determined without reference to any rules of attribution) shall be void ab
initio, and the intended transferee shall acquire no rights in such Common
Stock.
6.2.4 It is expressly intended that the restrictions on
ownership and Transfer described in this Section 6.2 of Article VI shall apply
to restrict the rights of any members or partners in limited liability companies
or partnerships to exchange their interest in such entities for Common Stock of
the Corporation.
Section 6.3 Transfers of Common Stock in Trust.
6.3.1 Upon any purported Transfer or other event described
in Section 6.2.2 of this Article VI, such Common Stock shall be deemed to have
been transferred to the Trustee in his capacity 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 a
transfer to the Trust pursuant to Section 6.2.2. The Trustee shall be appointed
by the Corporation and shall be a Person unaffiliated with the Corporation, any
Purported Beneficial Transferee, and any Purported Record Transferee. Each
Charitable Beneficiary shall be designated by the Corporation as provided in
Section 6.3.6 of this Article VI.
6.3.2 Common Stock held by the Trustee shall be issued and
outstanding Common Stock of the Corporation. The Purported Beneficial Transferee
or
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Purported Record Transferee shall have no rights in the shares of Common Stock
held by the Trustee. The Purported Beneficial Transferee or Purported Record
Transferee shall not benefit economically from ownership of any shares held in
trust by the Trustee, shall have no rights to dividends and shall not possess
any rights to vote or other rights attributable to the shares of Common Stock
held in the Trust.
6.3.3 The Trustee shall have all voting rights and rights
to dividends with respect to Common Stock held in the Trust, which rights shall
be exercised for the exclusive benefit of the Charitable Beneficiary. Any
dividend or distribution paid prior to the discovery by the Corporation that
shares of Common Stock have been transferred to the Trustee shall be paid to the
Trustee upon demand, and any dividend or distribution declared but unpaid shall
be paid when due to the Trustee with respect to such Common Stock. Any dividends
or distributions so paid over to the Trustee shall be held in trust for the
Charitable Beneficiary. The Purported Record Transferee and Purported Beneficial
Transferee shall have no voting rights with respect to the Common Stock held in
the Trust and, subject to Maryland law, effective as of the date the Common
Stock has 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
Purported Record Transferee with respect to such Common Stock prior to the
discovery by the Corporation that the Common Stock has 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 the Common Stock has 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
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vote at meetings, determining the validity and authority of proxies and
otherwise conducting votes of stockholders.
6.3.4 Within 20 days of receiving notice from the
Corporation that shares of Common Stock have been transferred to the Trust, the
Trustee of the Trust shall sell the shares of Common Stock held in the Trust to
a person, designated by the Trustee, whose ownership of the shares of Common
Stock will not violate the ownership limitations set forth in Section 6.2.1.
Upon such sale, the interest of the Charitable Beneficiary in the shares of
Common Stock sold shall terminate and the Trustee shall distribute the net
proceeds of the sale to the Purported Record Transferee and to the Charitable
Beneficiary as provided in this Section 6.3.4. The Purported Record Transferee
shall receive the lesser of (i) the price paid by the Purported Record
Transferee for the shares of Common Stock in the transaction that resulted in
such transfer to the Trust (or, if the event which resulted in the transfer to
the Trust did not involve a purchase of such shares of Common Stock at Market
Price, the Market Price of such shares of Common Stock on the day of the event
which resulted in the transfer of such shares of Common Stock to the Trust) and
(ii) 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 of
Common Stock held in the Trust. Any net sales proceeds in excess of the amount
payable to the Purported Record Transferee shall be immediately paid to the
Charitable Beneficiary together with any dividends or other distributions
thereon. If, prior to the discovery by the Corporation that shares of such
Common Stock have been transferred to the Trustee, such shares of Common Stock
are sold by a Purported Record Transferee then (x) such shares of Common Stock
shall be deemed to have been sold on behalf of the Trust and (y) to the extent
that the Purported Record Transferee received an amount for such shares of
Common Stock that exceeds the amount that
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such Purported Record Transferee was entitled to receive pursuant to this
Section 6.3.4, such excess shall be paid to the Trustee upon demand.
6.3.5 Common 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 paid by the Purported
Record Transferee for the shares of Common Stock in the transaction that
resulted in such transfer to the Trust (or, if the event which resulted in the
transfer to the Trust did not involve a purchase of such shares of Common Stock
at Market Price, the Market Price of such shares of Common Stock on the day of
the event which resulted in the transfer of such shares of Common Stock to the
Trust) and (ii) the Market Price on the date the Corporation, or its designee,
accepts such offer. The Corporation shall have the right to accept such offer
until the Trustee has sold the shares of Common Stock 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 of Common Stock sold shall terminate and
the Trustee shall distribute the net proceeds of the sale to the Purported
Record Transferee and any dividends or other distributions held by the Trustee
with respect to such Common Stock shall thereupon be paid to the Charitable
Beneficiary.
6.3.6 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 Common
Stock held in the Trust would not violate the restrictions set forth in Section
6.2.1 in the hands of such Charitable Beneficiary and (ii) each Charitable
Beneficiary is an organization described in Sections 170(b)(l)(A), 170(c)(2) and
501(c)(3) of the Code.
Section 6.4 Remedies For Breach. If the Board of Directors or a
committee thereof or other designees if permitted by the MGCL shall at any time
determine in good faith
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that a Transfer or other event has taken place in violation of Section 6.2 of
this Article VI or that a Person intends to acquire, has attempted to acquire or
may acquire beneficial ownership (determined without reference to any rules of
attribution), Beneficial Ownership or Constructive Ownership of any shares of
the Corporation in violation of Section 6.2 of this Article VI, the Board of
Directors or a committee thereof or other designees if permitted by the MGCL
shall take such action as it deems or they deem advisable to refuse to give
effect or to prevent such Transfer, including, but not limited to, causing the
Corporation to redeem shares of Common Stock, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to enjoin
such Transfer, provided, however, that any Transfers (or, in the case of events
other than a Transfer, ownership or Constructive Ownership or Beneficial
Ownership) in violation of Section 6.2.1 of this Article VI, shall automatically
result in the transfer to a Trust as described in Section 6.2.2 and any Transfer
in violation of Section 6.2.3 shall, subject to Section 6.12, automatically be
void ab initio irrespective of any action (or non-action) by the Board of
Directors.
Section 6.5 Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire shares in violation of Section 6.2 of this Article VI, or
any Person who is a Purported Beneficial Transferee such that an automatic
transfer to a Trust results under Section 6.2.2 of this Article VI, shall
immediately give written notice to the Corporation of such event and shall
provide to the Corporation such other information as the Corporation may request
in order to determine the effect, if any, of such Transfer or attempted Transfer
on the Corporation's status as a REIT.
Section 6.6 Owners Required to Provide Information. From the Initial
Date and prior to the Restriction Termination Date, each Person who is a
beneficial owner or Beneficial Owner or Constructive Owner of shares of Common
Stock and each Person
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(including the stockholder of record) who is holding shares of Common Stock for
a beneficial owner or Beneficial Owner or Constructive Owner shall, on demand,
provide to the Corporation a completed questionnaire containing the information
regarding their ownership of such shares, as set forth in the regulations (as in
effect from time to time) of the U.S. Department of Treasury under the Code. In
addition, each Person who is a beneficial owner or Beneficial Owner or
Constructive Owner of shares of Common Stock and each Person (including the
stockholder of record) who is holding shares of Common Stock for a beneficial
owner or Beneficial Owner or Constructive Owner shall, on demand, be required to
disclose to the Corporation in writing such information as the Corporation may
request in order to determine the effect, if any, of such stockholder's actual
and constructive ownership of shares of Common Stock on the Corporation's status
as a REIT and to ensure compliance with the Ownership Limit, or as otherwise
permitted by the Board of Directors.
Section 6.7 Remedies Not Limited. Nothing contained in this Article VI
(but subject to Section 6.12 of this Article VI) shall limit the authority of
the Board of Directors to take such other action as it deems necessary or
advisable to protect the Corporation and the interests of its stockholders by
preservation of the Corporation's status as a REIT.
Section 6.8 Ambiguity. In the case of an ambiguity in the application
of any of the provisions of this Article VI, including any definition contained
in Section 6.1, the Board of Directors shall have the power to determine the
application of the provisions of this Article VI with respect to any situation
based on the facts known to it (subject, however, to the provisions of Section
6.12 of this Article VI). In the event Article VI requires an action by the
Board of Directors and the Articles of Amendment and Restatement fail to provide
specific guidance with respect to such action, the Board of Directors shall have
the power to determine the action to be taken so long as such action is not
contrary to the provisions of Article VI. Absent a decision to
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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 Common Stock in
violation of Section 6.2.1, such remedies (as applicable) shall apply first to
the shares of Common Stock which, but for such remedies, would have been
actually owned by such Person, and second to shares of Common 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 Common Stock based upon the relative number of the shares of
Common Stock held by each such Person.
Section 6.9 Exceptions.
6.9.1 Subject to Section 6.2.1(c) of this Article VI, the
Board of Directors, in its sole discretion, may exempt (prospectively or
retroactively) a Person from the limitation on a Person Beneficially Owning
shares of Common Stock in excess of the Ownership Limit if the Board determines
that such exemption will not cause any Individual's Beneficial Ownership of
snares of Common Stock to violate the Ownership Limit and that any such
exemption will not cause the Corporation to fail to qualify as a RBIT under the
Code.
6.9.2 Subject to Section 6.2.l(c) of this Article VI, the
Board of Directors, in its sole discretion, may exempt (prospectively or
retroactively) a Person from the limitation on a Person Constructively Owning
Common Stock in excess of the Ownership Limit, as set forth in Section 6.2.l(b),
of this Article VI, if the Board determines that such Person does not and will
not own, actually or Constructively, an interest in a tenant of the Corporation
(or a tenant of any entity owned in whole or in part by the Corporation) that
would cause the Corporation to own, actually or Constructively, more than a 9.8%
interest (as set forth in Section
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856(d)(2)(B) of the Code) in such tenant or that any such ownership would not
cause the Corporation to fail to qualify as a REIT under the Code.
6.9.3 Subject to Section 6.2.1(c) and the remainder of
this Section 6.9.3, the Board of Directors may from time to time increase the
Ownership Limit for one or more Persons and decrease the Ownership Limit for all
other Persons; provided, however, that the decreased Ownership Limit will not be
effective for any Person whose percentage ownership in Common Stock is in excess
of such decreased Ownership Limit until such time as such Person's percentage of
Common Stock equals or falls below the decreased Ownership Limit, but any
further acquisition of Common Stock in excess of such percentage ownership of
Common Stock will be in violation of the Ownership Limit, and, provided further,
that the new Ownership Limit would not allow five or fewer Persons to
Beneficially Own more than 49% in value of the outstanding Common Stock.
6.9.4 In granting a person an exemption under Section 6.9.1
or 6.9.2 above, the Board of Directors may require such Person to make certain
representations or undertakings or to agree that any violation or attempted
violation of such representations or undertakings (or other action which is
contrary to the restrictions contained in Section 6.2 of this Article VI) will
result in such Common Stock being transferred to a Trust in accordance with
Section 6.2.2 of this Article VI. Prior to granting any exception pursuant to
Section 6.9.1 or 6.9.2 of this Article VI, the Board of Directors may require a
ruling from the IRS, 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.
Section 6.10 Legends. Each certificate for Common Stock shall bear the
following legends:
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Restriction on Ownership and Transfer
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON BENEFICIAL AND CONSTRUCTIVE OWNERSHIP AND TRANSFER FOR THE
PURPOSE OF THE CORPORATION'S MAINTENANCE OF ITS STATUS AS A REAL ESTATE
INVESTMENT TRUST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"). SUBJECT TO CERTAIN FURTHER RESTRICTIONS AND EXCEPT AS EXPRESSLY
PROVIDED IN THE CORPORATION'S ARTICLES OF AMENDMENT AND RESTATEMENT, (i) NO
PERSON MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF THE CORPORATION'S COMMON
STOCK IN EXCESS OF 9.8% (BY VALUE OR BY NUMBER OF SHARES, WHICHEVER IS MORE
RESTRICTIVE) OF THE OUTSTANDING COMMON STOCK OF THE CORPORATION; (ii) NO PERSON
MAY BENEFICIALLY OR CONSTRUCTIVELY OWN SHARES OF COMMON 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 (iii) NO
PERSON MAY TRANSFER SHARES OF COMMON 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 COMMON STOCK IN VIOLATION OF THE ABOVE LIMITATIONS
MUST IMMEDIATELY NOTIFY THE CORPORATION. IF ANY OF THE RESTRICTIONS ON TRANSFER
OR OWNERSHIP IS VIOLATED, THE SHARES OF COMMON STOCK REPRESENTED HEREBY WILL BE
AUTOMATICALLY TRANSFERRED TO THE 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 THE 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 TERMS IN THIS LEGEND
THAT ARE DEFINED IN THE ARTICLES OF AMENDMENT AND RESTATEMENT OF THE CORPORATION
SHALL HAVE THE MEANINGS ASCRIBED TO THEM IN THE ARTICLES OF AMENDMENT AND
RESTATEMENT 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 SHARES OF COMMON STOCK ON REQUEST AND WITHOUT
CHARGE. REQUESTS FOR SUCH A COPY MAY BE DIRECTED TO THE SECRETARY OF THE
CORPORATION AT ITS PRINCIPAL OFFICE.
Section 6.11 Severability. If any provision of this Article VI or any
application of any such provision is determined to be invalid by any federal or
state court having jurisdiction over the issues, the validity of the remaining
provision shall not be affected and other
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applications of such provisions shall be affected only to the extent necessary
to comply with the determination of such court.
Section 6.12 NYSE Transactions. Nothing in this Article VI shall
preclude the settlement of any transaction entered into through the facilities
of the New York Stock Exchange. The shares of Common Stock that are the subject
of such a transaction shall continue to be subject to the provisions of this
Article VI after such settlement.
Section 6.13 Enforcement. The Corporation is authorized specifically to
seek equitable relief, including injunctive relief, to enforce the provisions of
this Article VI.
Section 6.14 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 AND TRANSACTIONS OUTSIDE
THE ORDINARY COURSE OF BUSINESS
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. Any amendment to the charter shall be valid only if approved by the
affirmative vote of two-thirds of all the votes entitled to be cast on the
matter. In addition, the Corporation shall not dissolve, merge, sell all or
substantially all of its assets, engage in a share exchange or engage in similar
transactions outside the ordinary course of business unless approved by the
affirmative vote of not less than two-thirds of all votes entitled to be cast on
the matter.
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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 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 XIII, nor the adoption or amendment of any other provision of the
charter or Bylaws inconsistent with this Article XIII, shall apply to 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. The total number of shares
of stock which the Corporation had authority to issue immediately prior to this
amendment and restatement was 1,000 shares, consisting of 900 shares of Common
Stock, $.01 par value per share and 100 shares of Preferred Stock, $.01 par
value per share. The aggregate par value of all shares of stock having par value
was $10. 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
150,000,000 shares, consisting of 100,000,000 shares of Common Stock, $.01 par
value per share, and 50,000,000 shares of Preferred Stock, $.01 par value per
share. The aggregate par value of all authorized shares of stock having par
value is $1,500,000.
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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 undersigned President 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
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 signed in its name and on its behalf by its
President and attested to by its Secretary on this 31st day of May, 2003.
ATTEST: MAGUIRE PROPERTIES, INC.
/s/ Mark Lammas By: /s/ Richard I. Gilchrist (SEAL)
- ----------------------------------- -----------------------------
Mark Lammas, Senior Vice President, Richard I. Gilchrist, Co-Chief Executive
General Counsel and Secretary Officer and President
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