Exhibit 3.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
BOYKIN LODGING COMPANY
FIRST: The name of the corporation shall be Boykin Lodging Company
(the "Corporation").
SECOND: The place in the State of Ohio where the principal office of
the Corporation is located is Cleveland, Cuyahoga County.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be formed under Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code.
FOURTH: The authorized number of shares of the Corporation is
50,000,000, consisting of 40,000,000 Common Shares, without par value
(hereinafter called "Common Shares"), 5,000,000 Class A Cumulative Preferred
Shares, without par value (hereinafter called "Cumulative Preferred Shares"),
and 5,000,000 Class A Noncumulative Preferred Shares, without par value
(hereinafter called "Noncumulative Preferred Shares").
DIVISION A: PREFERRED SHARES
I. THE CLASS A CUMULATIVE PREFERRED SHARES. The Cumulative
Preferred Shares shall have the following express terms:
Section 1. SERIES. The Cumulative Preferred Shares may be
issued from time to time in one or more series. All Cumulative Preferred
Shares shall be of equal rank and shall be identical, except in respect of
the matters that may be fixed by the Board of Directors as hereinafter
provided, and each share of a series shall be identical with all other shares
of such series, except as to the dates from which dividends shall accrue and
be cumulative. All Cumulative Preferred Shares shall rank on a parity with
the Noncumulative Preferred Shares and shall be identical to all
Noncumulative Preferred Shares except (1) in respect of the matters that may
be fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on Cumulative Preferred
Shares shall be cumulative as set forth herein. Subject to the provisions of
Sections 2 through 5, both inclusive, and of Items III and IV of this
Division, which provisions shall apply to all Cumulative Preferred Shares,
the Board of Directors hereby is authorized to cause such shares to be issued
in one or more series and with respect to each such series to determine and
fix prior to the issuance thereof (and thereafter, to the extent provided in
clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
(b) The authorized number of shares of the series, which
number the Board of Directors may (except when otherwise provided in the
creation of the series) increase or decrease from time to time before or
after the issuance thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series, including the
means by which such rates may be established;
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(d) The date or dates from which dividends shall accrue and be
cumulative and the dates on which and the period or periods for which
dividends, if declared, shall be payable, including the means by which such
dates and periods may be established;
(e) The redemption rights and price or prices, if any, for
shares of the series;
(f) The terms and amount of the sinking fund, if any, for the
purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation;
(h) Whether the shares of the series shall be convertible into
Common Shares or shares of any other class and, if so, the conversion rate or
rates or price or prices, any adjustments thereof and all other terms and
conditions upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth elsewhere in
these Amended and Restated Articles of Incorporation) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time amendments to
the Amended and Restated Articles of Incorporation, as amended, fixing, with
respect to each such series, the matters described in clauses (a) through
(i), both inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. DIVIDENDS.
(a) The holders of Cumulative Preferred Shares of each series,
in preference to the holders of Common Shares and of any other class of
shares ranking junior to the Cumulative Preferred Shares, shall be entitled
to receive out of any funds legally available therefor, when and as declared
by the Board of Directors, dividends in cash at the rate or rates for such
series fixed in accordance with the provisions of Section 1 above and no
more, payable on the dates fixed for such series. Such dividends shall accrue
and be cumulative, in the case of shares of each particular series, from and
after the date or dates fixed with respect to such series. Any dividend
payment made on the Cumulative Preferred Shares shall first be credited
against the earliest accrued but unpaid dividends on such Cumulative
Preferred Shares. No dividends shall be paid upon or declared or set apart
for any series of the Cumulative Preferred Shares for any dividend period
unless at the same time (i) a like proportionate dividend for the dividend
periods terminating on the same or any earlier date, ratably in proportion to
the respective annual dividend rates fixed therefor, shall have been paid
upon or declared or set apart for all Cumulative Preferred Shares of all
series then issued and outstanding and entitled to receive such dividend and
(ii) the dividends payable for the dividend periods terminating on the same
or any earlier date (but only with respect to the then current dividend
period), ratably in proportion to the respective dividend rates fixed
therefor, shall have been paid upon or declared or set apart for all
Noncumulative Preferred Shares then issued and outstanding and entitled to
receive such dividends.
(b) So long as any Cumulative Preferred Shares shall be
outstanding no dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Cumulative Preferred Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in respect of the
Common Shares or any other shares ranking junior to the Cumulative Preferred
Shares, nor shall any Common Shares or any other shares ranking junior to the
Cumulative Preferred Shares be purchased, retired or otherwise acquired by
the Corporation, except out of the proceeds of the sale of Common Shares or
other shares of the Corporation ranking junior to the Cumulative Preferred
Shares received by the Corporation subsequent to the date of first issuance
of Cumulative Preferred Shares of any series, unless:
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(1) All accrued and unpaid dividends on Cumulative
Preferred Shares, including the full dividends for all current dividend
periods, shall have been declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative Preferred
Shares for the then current dividend period shall have been declared and paid
or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Preferred Shares or Noncumulative Preferred Shares
of any series from any sinking fund provided for shares of such series in
accordance with Section 1 of this Division A.I or Section 1 of Division A.II.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption, retirement or other
acquisition of, Common Shares or any other shares ranking on a parity with or
junior to the Cumulative Preferred Shares shall be inapplicable to (i) any
payments in lieu of issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the conversion of
Cumulative Preferred Shares or Noncumulative Preferred Shares into Common
Shares, and (iii) the exercise by the Corporation of its rights pursuant to
Division C or any similar provision hereafter contained in these Amended and
Restated Articles of Incorporation with respect to any other class or series
of shares hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Internal Revenue Code), any portion (the "Capital Gains Amount") of the
dividends paid or made available for the year to holders of all classes of
stock (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocable to holders of the Cumulative Preferred Shares shall
be the amount that the total dividends paid or made available to the holders
of the Cumulative Preferred Shares for the year bears to the Total Dividends.
Section 3. REDEMPTION.
(a) Subject to the express terms of each series of Cumulative
Preferred Shares, the Corporation:
(1) May, from time to time at the option of the Board of
Directors, redeem all or any part of any redeemable series of Cumulative
Preferred Shares at the time outstanding at the applicable redemption price
for such series fixed in accordance with Section 1 of this Division A.I.; and
(2) Shall, from time to time, make such redemptions of
each series of Cumulative Preferred Shares as may be required to fulfill the
requirements of any sinking fund provided for shares of such series at the
applicable sinking fund redemption price fixed in accordance with Section 1
of this Division A.I.;
and shall in each case pay all accrued and unpaid dividends to the redemption
date.
(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Cumulative Preferred Shares
to be redeemed at their respective addresses then appearing on the books of
the Corporation, not less than 30 days nor more than 60 days prior to the
date fixed for such redemption, or such other time prior thereto as the Board
of Directors shall fix for any series pursuant to Section 1 of this Division
prior to the issuance thereof. At any time after notice as provided above has
been deposited in the mail, the Corporation may deposit the aggregate
redemption price of Cumulative Preferred Shares to be redeemed, together with
accrued and unpaid dividends thereon to the redemption date, with any bank or
trust company in Cleveland, Ohio, or New York, New York, having capital and
surplus of not less than $100,000,000, named in such notice and direct that
there be paid to the respective holders of the Cumulative Preferred Shares so
to be redeemed amounts equal to the
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redemption price of the Cumulative Preferred Shares so to be redeemed,
together with such accrued and unpaid dividends thereon, on surrender of the
share certificate or certificates held by such holders; and upon the deposit
of such notice in the mail and the making of such deposit of money with such
bank or trust company, such holders shall cease to be shareholders with
respect to such shares; and from and after the time such notice shall have
been so deposited and such deposit of money shall have been so made, such
holders shall have no rights or claim against the Corporation with respect to
such shares, except only the right to receive such money from such bank or
trust company without interest or to exercise before the redemption date any
unexpired privilege of conversion. If less than all of the outstanding
Cumulative Preferred Shares are to be redeemed, the Corporation shall select
by lot the shares so to be redeemed in such manner as shall be prescribed by
the Board of Directors.
(2) If the holders of Cumulative Preferred Shares which
have been called for redemption shall not within six years after such deposit
claim the amount deposited for the redemption thereof, any such bank or trust
company shall, upon demand, pay over to the Corporation such unclaimed
amounts and thereupon such bank or trust company and the Corporation shall be
relieved of all responsibility in respect thereof and to such holders.
(c) Any Cumulative Preferred Shares which are (1) redeemed by
the Corporation pursuant to this Section, (2) purchased and delivered in
satisfaction of any sinking fund requirement provided for shares of such
series, (3) converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation, shall resume the status of authorized
but unissued Cumulative Preferred Shares without serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Division C or any similar provisions
hereafter contained in these Amended and Restated Articles of Incorporation,
the Corporation may not purchase or redeem (for sinking fund purposes or
otherwise) less than all of the Cumulative Preferred Shares then outstanding
except in accordance with a purchase offer made to all holders of record of
Cumulative Preferred Shares, unless all dividends on all Cumulative Preferred
Shares then outstanding for all previous and current dividend periods shall
have been declared and paid or funds therefor set apart and all accrued
sinking fund obligations applicable thereto shall have been complied with.
Section 4. LIQUIDATION.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
holders of Cumulative Preferred Shares of any series shall be entitled to
receive in full out of the assets of the Corporation, including its capital,
before any amount shall be paid or distributed among the holders of the
Common Shares or any other shares ranking junior to the Cumulative Preferred
Shares, the amounts fixed with respect to shares of such series in accordance
with Section 1 of this Division A.I., plus an amount equal to all dividends
accrued and unpaid thereon to the date of payment of the amount due pursuant
to such liquidation, dissolution or winding up of the affairs of the
Corporation. If the net assets of the Corporation legally available therefor
are insufficient to permit the payment upon all outstanding Cumulative
Preferred Shares and Noncumulative Preferred Shares of the full preferential
amount to which they are respectively entitled, then such net assets shall be
distributed ratably upon all outstanding Cumulative Preferred Shares and
Noncumulative Preferred Shares in proportion to the full preferential amount
to which each such share is entitled.
(2) After payment to the holders of Cumulative Preferred
Shares of the full preferential amounts as aforesaid, the holders of
Cumulative Preferred Shares, as such, shall have no right or claim to any of
the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other Corporation into it, or
the sale, lease or conveyance of all or substantially all the
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assets of the Corporation, shall not be deemed to be a dissolution,
liquidation or winding up for purposes of this Section.
Section 5. VOTING.
(a) The holders of Cumulative Preferred Shares shall have no
voting rights, except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall be in
default in the payment of dividends on any series of Cumulative Preferred
Shares at the time outstanding, whether or not earned or declared, for a
number of dividend payment periods (whether or not consecutive) which in the
aggregate contain at least 540 days, the holders of all series of Cumulative
Preferred Shares, voting separately as a class, shall be entitled to elect,
as herein provided, two members of the Board of Directors of the Corporation;
but the holders of the Cumulative Preferred Shares shall not exercise such
special class voting rights except at meetings of such shareholders for the
election of directors at which the holders of not less than 50% of the
Cumulative Preferred Shares are present in person or by proxy; and the
special class voting rights provided for in this paragraph when the same
shall have become vested shall remain so vested until all accrued and unpaid
dividends on the Cumulative Preferred Shares then outstanding shall have been
paid or declared and a sum sufficient for the payment thereof set aside for
payment, whereupon the holders of the Cumulative Preferred Shares shall be
divested of their special class voting rights in respect of subsequent
elections of directors, subject to the revesting of such special class voting
rights in the event above specified in this paragraph.
(2) On a dividend payment default entitling holders of
Cumulative Preferred Shares to elect two directors as specified in paragraph
(1) of this Subsection, a special meeting of such holders for the purpose of
electing such directors shall be called by the Secretary of the Corporation
upon written request of, or may be called by, the holders of record of at
least 10% of the Cumulative Preferred Shares with respect to which such
default exists and notice thereof shall be given in the same manner as that
required for the annual meeting of shareholders; but the Corporation shall
not be required to call such special meeting if the annual meeting of
shareholders shall be called to be held within 90 days after the date of
receipt of the foregoing written request from the holders of Cumulative
Preferred Shares. At any meeting at which the holders of Cumulative Preferred
Shares shall be entitled to elect directors, holders of 50% of the Cumulative
Preferred Shares, present in person or by proxy, shall be sufficient to
constitute a quorum, and the vote of the holders of a majority of such shares
so present at any such meeting at which there shall be such a quorum shall be
sufficient to elect the members of the Board of Directors which the holders
of Cumulative Preferred Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Articles of Incorporation or the Code
of Regulations of the Corporation or any action taken by the holders of any
class of shares fixing the number of directors of the Corporation, the two
directors who may be elected by the holders of Cumulative Preferred Shares
pursuant to this Subsection shall serve in addition to any other directors
then in office or proposed to be elected otherwise than pursuant to this
Subsection. Nothing in this Subsection shall prevent any change otherwise
permitted in the total number of or classifications of directors of the
Corporation nor require the resignation of any director elected otherwise
than pursuant to this Subsection. Notwithstanding any classification of the
other directors of the Corporation, the two directors elected by the holders
of Cumulative Preferred Shares shall be elected annually for terms expiring
at the next succeeding annual meeting of shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Cumulative Preferred Shares in respect of elections of
directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate immediately
thereupon. If the office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal from office or
otherwise, the remaining director elected by such holders voting as a class
may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.
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(c) The affirmative vote of the holders of at least two-thirds
of the Cumulative Preferred Shares at the time outstanding, voting separately
as a class, given in person or by proxy either in writing or at a meeting
called for the purpose, shall be necessary to effect either of the following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the Amended
and Restated Articles of Incorporation or of the Code of Regulations of the
Corporation which affects adversely and materially the preferences or voting
or other rights of the holders of Cumulative Preferred Shares which are set
forth in these Amended and Restated Articles of Incorporation; but neither an
amendment of these Amended and Restated Articles of Incorporation so as to
authorize, create or change the authorized or outstanding number of
Cumulative Preferred Shares or of any shares ranking on a parity with or
junior to the Cumulative Preferred Shares nor an amendment of the Code of
Regulations so as to change the number or classification of directors of the
Corporation shall be deemed to affect adversely and materially preferences or
voting or other rights of the holders of Cumulative Preferred Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or of any security convertible into shares,
in either case ranking prior to such Cumulative Preferred Shares.
(d) If, and only to the extent, that (1) Cumulative Preferred
Shares are issued in more than one series and (2) Ohio law permits the
holders of a series of a class of shares to vote separately as a class, the
affirmative vote of the holders of at least two-thirds of each series of
Cumulative Preferred Shares at the time outstanding, voting separately as a
class, given in person or by proxy either in writing or at a meeting called
for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of these Amended and Restated Articles of
Incorporation or of the Code of Regulations of the Corporation which affects
adversely and materially the preferences or voting or other rights of the
holders of such series which are set forth in these Amended and Restated
Articles of Incorporation; but neither an amendment of these Amended and
Restated Articles of Incorporation, so as to authorize, create or change the
authorized or outstanding number of Cumulative Preferred Shares or of any
shares ranking on a parity with or junior to the Cumulative Preferred Shares
nor an amendment of the Code of Regulations so as to change the number or
classification of directors of the Corporation, shall be deemed to affect
adversely and materially the preferences or voting or other rights of the
holders of such series.
II. THE CLASS A NONCUMULATIVE PREFERRED SHARES. The Noncumulative
Preferred Shares shall have the following express terms:
Section 1. SERIES. The Noncumulative Preferred Shares may be
issued from time to time in one or more series. All Noncumulative Preferred
Shares shall be of equal rank and shall be identical, except in respect of
the matters that may be fixed by the Board of Directors as hereinafter
provided, and each share of a series shall be identical with all other shares
of such series, except as to the dates on which and the periods for which
dividends may be payable. All Noncumulative Preferred Shares shall rank on a
parity with the Cumulative Preferred Shares and shall be identical to all
Cumulative Preferred Shares except (1) in respect of the matters that may be
fixed by the Board of Directors as provided in clauses (a) through (i),
inclusive, of this Section 1 and (2) only dividends on the Cumulative
Preferred Shares are cumulative as set forth in Division A.I. herein. Subject
to the provisions of Sections 2 through 5, both inclusive, and of Items III
and IV of this Division, which provisions shall apply to all Noncumulative
Preferred Shares, the Board of Directors hereby is authorized to cause such
shares to be issued in one or more series and with respect to each such
series to determine and fix prior to the issuance thereof (and thereafter, to
the extent provided in clause (b) of this Section) the following:
(a) The designation of the series, which may be by
distinguishing number, letter or title;
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(b) The authorized number of shares of the series, which
number the Board of Directors may (except when otherwise provided in the
creation of the series) increase or decrease from time to time before or
after the issuance thereof (but not below the number of shares thereof then
outstanding);
(c) The dividend rate or rates of the series, including the
means by which such rates may be established;
(d) The dates on which and the period or periods for which
dividends, if declared, shall be payable, including the means by which such
dates and periods may be established;
(e) The redemption rights and price or prices, if any, for
shares of the series;
(f) The terms and amount of the sinking fund, if any, for the
purchase or redemption of shares of the series;
(g) The amounts payable on shares of the series in the event
of any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation;
(h) Whether the shares of the series shall be convertible into
Common Shares or shares of any other class and, if so, the conversion rate or
rates or price or prices, any adjustments thereof and all other terms and
conditions upon which such conversion may be made; and
(i) Restrictions (in addition to those set forth elsewhere in
these Amended and Restated Articles of Incorporation) on the issuance of
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time amendments to
the Amended and Restated Articles of Incorporation, as amended, fixing, with
respect to each such series, the matters described in clauses (a) through
(i), both inclusive, of this Section and is authorized to take such actions
with respect thereto as may be required by law in order to effect such
amendments.
Section 2. DIVIDENDS.
(a) The holders of Noncumulative Preferred Shares of each
series, in preference to the holders of Common Shares and of any other class
of shares ranking junior to the Noncumulative Preferred Shares, shall be
entitled to receive out of any funds legally available therefor, if, when and
as declared by the Board of Directors, dividends in cash at the rate or rates
for such series fixed in accordance with the provisions of Section 1 above
and no more, payable on the dates fixed for such series. Such dividends shall
accrue, in the case of shares of each particular series, from and after the
date or dates fixed with respect to such series; provided, however, that if
the Board of Directors fails to declare a dividend payable on a dividend
payment date on any Noncumulative Preferred Shares, the holders of the
Noncumulative Preferred Shares shall have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Corporation shall have no obligation to pay the dividend accrued for such
period, whether or not dividends on such Noncumulative Preferred Shares are
declared payable on any future dividend payment date. Any dividend payment
made on the Noncumulative Preferred Shares shall first be credited against
the earliest declared but unpaid dividend on such Noncumulative Preferred
Shares. No dividends shall be paid upon or declared or set apart for any
series of the Noncumulative Preferred Shares for any dividend period unless
at the same time (i) a like proportionate dividend for the then current
dividend period, ratably in proportion to the respective annual dividend
rates fixed therefor, shall have been paid upon or declared or set apart for
all Noncumulative Preferred Shares of all series then issued and outstanding
and entitled to receive such dividend and (ii) the dividends payable for the
dividend periods terminating on the same or any earlier date, ratably in
proportion to the respective dividend rates fixed therefor, shall have been
paid upon or declared and set apart for all Cumulative Preferred Shares then
issued and outstanding and entitled to receive such dividends.
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(b) So long as any Noncumulative Preferred Shares shall be
outstanding no dividend, except a dividend payable in Common Shares or other
shares ranking junior to the Noncumulative Preferred Shares, shall be paid or
declared or any distribution be made, except as aforesaid, in respect of the
Common Shares or any other shares ranking junior to the Noncumulative
Preferred Shares, nor shall any Common Shares or any other shares ranking
junior to the Noncumulative Preferred Shares be purchased, retired or
otherwise acquired by the Corporation, except out of the proceeds of the sale
of Common Shares or other shares of the Corporation ranking junior to the
Noncumulative Preferred Shares received by the Corporation subsequent to the
date of first issuance of Noncumulative Preferred Shares of any series,
unless:
(1) All accrued and unpaid dividends on Cumulative
Preferred Shares, including the full dividends for all current dividend
periods, shall have been declared and paid or a sum sufficient for payment
thereof set apart;
(2) All unpaid dividends on Noncumulative Preferred
Shares for the then current dividend period shall have been declared and paid
or a sum sufficient for payment therefor set apart; and
(3) There shall be no arrearages with respect to the
redemption of Cumulative Preferred Shares or Noncumulative Preferred Shares
of any series from any sinking fund provided for shares of such series in
accordance with the provisions of Section 1 of this Division A.II or Section
1 of Division A.I.
(c) The foregoing restrictions on the payment of dividends or
other distributions on, or on the purchase, redemption, retirement or other
acquisition of, Common Shares or any other shares ranking on a parity with or
junior to the Noncumulative Preferred Shares shall be inapplicable to (i) any
payments in lieu of issuance of fractional shares thereof, whether upon any
merger, conversion, stock dividend or otherwise, (ii) the conversion of
Cumulative Preferred Shares or Noncumulative Preferred Shares into Common
Shares, and (iii) the exercise by the Corporation of its rights pursuant to
Division C or any similar provisions hereafter contained in these Amended and
Restated Articles of Incorporation with respect to any other class or series
of shares hereafter created or authorized.
(d) If, for any taxable year, the Corporation elects to
designate as "capital gain dividends" (as defined in Section 857 of the
Internal Revenue Code), any portion (the "Capital Gains Amount") of the
dividends paid or made available for the year to holders of all classes of
stock (the "Total Dividends"), then the portion of the Capital Gains Amount
that shall be allocable to holders of the Noncumulative Preferred Shares
shall be the amount that the total dividends paid or made available to the
holders of the Noncumulative Preferred Shares for the year bears to the Total
Dividends.
Section 3. REDEMPTION.
(a) Subject to the express terms of each series, the
Corporation:
(1) May, from time to time at the option of the Board of
Directors, redeem all or any part of any redeemable series of Noncumulative
Preferred Shares at the time outstanding at the applicable redemption price
for such series fixed in accordance with Section 1 of this Division A.II.; and
(2) Shall, from time to time, make such redemptions of
each series of Noncumulative Preferred Shares as may be required to fulfill
the requirements of any sinking fund provided for shares of such series at
the applicable sinking fund redemption price fixed in accordance with Section
1 of this Division A.II.;
and shall in each case pay all unpaid dividends for the then current dividend
period to the redemption date.
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(b) (1) Notice of every such redemption shall be mailed,
postage prepaid, to the holders of record of the Noncumulative Preferred
Shares to be redeemed at their respective addresses then appearing on the
books of the Corporation, not less than 30 days nor more than 60 days prior
to the date fixed for such redemption, or such other time prior thereto as
the Board of Directors shall fix for any series pursuant to Section 1 of this
Division prior to the issuance thereof. At any time after notice as provided
above has been deposited in the mail, the Corporation may deposit the
aggregate redemption price of Noncumulative Preferred Shares to be redeemed,
together with unpaid dividends thereon for the then current dividend period
to the redemption date, with any bank or trust company in Cleveland, Ohio, or
New York, New York, having capital and surplus of not less than $100,000,000,
named in such notice and direct that there be paid to the respective holders
of the Noncumulative Preferred Shares so to be redeemed amounts equal to the
redemption price of the Noncumulative Preferred Shares so to be redeemed
together with such accrued and unpaid dividends thereon for the then current
dividend period, on surrender of the share certificate or certificates held
by such holders; and upon the deposit of such notice in the mail and the
making of such deposit of money with such bank or trust company, such holders
shall cease to be shareholders with respect to such shares; and from and
after the time such notice shall have been so deposited and such deposit of
money shall have been so made, such holders shall have no rights or claim
against the Corporation with respect to such shares, except only the right to
receive such money from such bank or trust company without interest or to
exercise before the redemption date any unexpired privilege of conversion. If
less than all of the outstanding Noncumulative Preferred Shares are to be
redeemed, the Corporation shall select by lot the shares so to be redeemed in
such manner as shall be prescribed by the Board of Directors.
(2) If the holders of Noncumulative Preferred Shares
which have been called for redemption shall not within six years after such
deposit claim the amount deposited for the redemption thereof, any such bank
or trust company shall, upon demand, pay over to the Corporation such
unclaimed amounts and thereupon such bank or trust company and the
Corporation shall be relieved of all responsibility in respect thereof and to
such holders.
(c) Any Noncumulative Preferred Shares which are (1) redeemed
by the Corporation pursuant to this Section, (2) purchased and delivered in
satisfaction of any sinking fund requirement provided for shares of such
series, (3) converted in accordance with the express terms thereof, or (4)
otherwise acquired by the Corporation, shall resume the status of authorized
but unissued Noncumulative Preferred Shares without serial designation.
(d) Except in connection with the exercise of the
Corporation's rights pursuant to Division C or any similar provisions
hereafter contained in these Amended and Restated Articles of Incorporation,
the Corporation may not purchase or redeem (for sinking fund purposes or
otherwise) less than all of the Noncumulative Preferred Shares then
outstanding except in accordance with a purchase offer made to all holders of
record of Noncumulative Preferred Shares, unless all unpaid dividends on all
Noncumulative Preferred Shares then outstanding shall have been paid or funds
therefor set apart and all accrued sinking fund obligations applicable
thereto shall have been complied with.
Section 4. LIQUIDATION.
(a) (1) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation, the
holders of Noncumulative Preferred Shares of any series shall be entitled to
receive in full out of the assets of the Corporation, including its capital,
before any amount shall be paid or distributed among the holders of the
Common Shares or any other shares ranking junior to the Noncumulative
Preferred Shares, the amounts fixed with respect to shares of such series in
accordance with Section 1 of this Division A.II., plus an amount equal to all
dividends declared and unpaid thereon. If the net assets of the Corporation
legally available therefor are insufficient to permit the payment upon all
outstanding Cumulative Preferred Shares and Noncumulative Preferred Shares of
the full preferential amount to which they are respectively entitled, then
such net assets shall be distributed
9
ratably upon all outstanding Cumulative Preferred Shares and Noncumulative
Preferred Shares in proportion to the full preferential amount to which each
such share is entitled.
(2) After payment to the holders of Noncumulative
Preferred Shares of the full preferential amounts as aforesaid, the holders
of Noncumulative Preferred Shares, as such, shall have no right or claim to
any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or
with any other Corporation, the merger of any other Corporation into it, or
the sale, lease or conveyance of all or substantially all the assets of the
Corporation, shall not be deemed to be a dissolution, liquidation or winding
up for purposes of this Section.
Section 5. VOTING.
(a) The holders of Noncumulative Preferred Shares shall have
no voting rights, except as provided in this Section or required by law.
(b) (1) If, and so often as, the Corporation shall not have
fully paid, or shall not have declared and set aside a sum sufficient for the
payment of, dividends on any series of Noncumulative Preferred Shares at the
time outstanding, for a number of dividend payment periods (whether or not
consecutive) which in the aggregate contain at least 540 days, the holders of
all series of such Noncumulative Preferred Shares, voting separately as a
class, shall be entitled to elect, as herein provided, two members of the
Board of Directors of the Corporation; but the holders of the Noncumulative
Preferred Shares shall not exercise such special class voting rights except
at meetings of such shareholders for the election of directors at which the
holders of not less than 50% of the Noncumulative Preferred Shares are
present in person or by proxy; and the special class voting rights provided
for in this paragraph when the same shall have become vested shall remain so
vested until the Corporation shall have fully paid, or shall have set aside a
sum sufficient for the payment of, dividends on such Noncumulative Preferred
Shares then outstanding for a number of consecutive dividend payment periods
which in the aggregate contain at least 360 days, whereupon the holders of
the Noncumulative Preferred Shares shall be divested of their special class
voting rights in respect of subsequent elections of directors, subject to the
revesting of such special class voting rights in the event above specified in
this paragraph.
(2) On an event entitling holders of Noncumulative
Preferred Shares to elect two directors as specified in paragraph (1) of this
Subsection, a special meeting of such holders for the purpose of electing
such directors shall be called by the Secretary of the Corporation upon
written request of, or may be called by, the holders of record of at least
10% of the Noncumulative Preferred Shares of the affected series and notice
thereof shall be given in the same manner as that required for the annual
meeting of shareholders; but the Corporation shall not be required to call
such special meeting if the annual meeting of shareholders shall be called to
be held within 90 days after the date of receipt of the foregoing written
request from the holders of Noncumulative Preferred Shares. At any meeting at
which the holders of Noncumulative Preferred Shares shall be entitled to
elect directors, holders of 50% of the Noncumulative Preferred Shares,
present in person or by proxy, shall be sufficient to constitute a quorum,
and the vote of the holders of a majority of such shares so present at any
such meeting at which there shall be such a quorum shall be sufficient to
elect the members of the Board of Directors which the holders of
Noncumulative Preferred Shares are entitled to elect as herein provided.
Notwithstanding any provision of these Amended and Restated Articles of
Incorporation or the Code of Regulations of the Corporation or any action
taken by the holders of any class of shares fixing the number of directors of
the Corporation, the two directors who may be elected by the holders of
Noncumulative Preferred Shares pursuant to this Subsection shall serve in
addition to any other directors then in office or proposed to be elected
otherwise than pursuant to this Subsection. Nothing in this Subsection shall
prevent any change otherwise permitted in the total number of or
classifications of directors of the Corporation nor require the resignation
of any director elected otherwise than pursuant to this Subsection.
Notwithstanding any
10
classification of the other directors of the Corporation, the two directors
elected by the holders of Noncumulative Preferred Shares shall be elected
annually for terms expiring at the next succeeding annual meeting of
shareholders.
(3) Upon any divesting of the special class voting rights
of the holders of the Noncumulative Preferred Shares in respect of elections
of directors as provided in this Subsection, the terms of office of all
directors then in office elected by such holders shall terminate immediately
thereupon. If the office of any director elected by such holders voting as a
class becomes vacant by reason of death, resignation, removal from office or
otherwise, the remaining director elected by such holders voting as a class
may elect a successor who shall hold office for the unexpired term in respect
of which such vacancy occurred.
(c) The affirmative vote of the holders of at least two-thirds
of the Noncumulative Preferred Shares at the time outstanding, voting
separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect either of the
following:
(1) Any amendment, alteration or repeal, whether by
merger, consolidation or otherwise, of any of the provisions of the Amended
and Restated Articles of Incorporation or of the Code of Regulations of the
Corporation which affects adversely and materially the preferences or voting
or other rights of the holders of Noncumulative Preferred Shares which are
set forth in these Amended and Restated Articles of Incorporation; but
neither an amendment of these Amended and Restated Articles of Incorporation
so as to authorize, create or change the authorized or outstanding number of
Noncumulative Preferred Shares or of any shares ranking on a parity with or
junior to the Noncumulative Preferred Shares nor an amendment of the Code of
Regulations so as to change the number or classification of directors of the
Corporation shall be deemed to affect adversely and materially preferences or
voting or other rights of the holders of Noncumulative Preferred Shares; or
(2) The authorization, creation or increase in the
authorized number of any shares, or any security convertible into shares, in
either case ranking prior to such Noncumulative Preferred Shares.
(d) If, and only to the extent, that (1) Noncumulative
Preferred Shares are issued in more than one series and (2) Ohio law permits
the holders of a series of a class of shares to vote separately as a class,
the affirmative vote of the holders of at least two-thirds of each series of
the Noncumulative Preferred Shares at the time outstanding, voting separately
as a class, given in person or by proxy either in writing or at a meeting
called for the purpose of voting on such matters, shall be required for any
amendment, alteration or repeal, whether by merger, consolidation or
otherwise, of any of the provisions of these Amended and Restated Articles of
Incorporation or of the Code of Regulations of the Corporation which affects
adversely and materially the preferences or voting or other rights of the
holders of such series which are set forth in these Amended and Restated
Articles of Incorporation; but neither an amendment of these Amended and
Restated Articles of Incorporation, so as to authorize, create or change the
authorized or outstanding number of Noncumulative Preferred Shares or of any
shares remaining on a parity with or junior to the Noncumulative Preferred
Shares nor an amendment of the Code of Regulations so as to change the number
or classification of directors of the Corporation shall be deemed to affect
adversely and materially preferences or voting or other rights of the holders
of such series.
III. DEFINITIONS. For the purposes of this Division:
(a) Whenever reference is made to shares "ranking prior to"
Cumulative Preferred Shares or Noncumulative Preferred Shares, such reference
shall mean all shares of the Corporation in respect of which the rights of the
holders thereof as to the payment of dividends or as to distributions in the
event of a voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the
11
Corporation are given preference over the rights of the holders of Cumulative
Preferred Shares or Noncumulative Preferred Shares, as the case may be;
(b) Whenever reference is made to shares "on a parity with"
Cumulative Preferred Shares or Noncumulative Preferred Shares, such reference
shall mean all shares of the Corporation in respect of which the rights of
the holders thereof as to the payment of dividends or as to distributions in
the event of a voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation rank equally (except as to the amounts
fixed therefor) with the rights of the holders of Cumulative Preferred Shares
or Noncumulative Preferred Shares, as the case may be; and
(c) Whenever reference is made to shares "ranking junior to"
Cumulative Preferred Shares or Noncumulative Preferred Shares, such reference
shall mean all shares of the Corporation other than those defined under
Subsections (a) and (b) of this Section as shares "ranking prior to" or "on a
parity with" Cumulative Preferred Shares or Noncumulative Preferred Shares,
as the case may be.
IV. RESTRICTIONS ON TRANSFER TO PRESERVE TAX BENEFIT. The
Cumulative Preferred Shares and the Noncumulative Preferred Shares are
subject to the restrictions on transfer set forth with respect to those
shares in Division C of this Article FOURTH.
DIVISION B: COMMON SHARES
The Common Shares are subject to the express terms of the Cumulative
Preferred Shares and any series thereof and to the express terms of the
Noncumulative Preferred Shares and any series thereof, and have the following
express terms:
Section 1. DIVIDEND RIGHTS. The holders of Common Shares
shall be entitled to receive, when, as and if declared by the Board of
Directors of the Corporation, out of the assets of the Corporation which are
by law available therefor, dividends or distributions payable in cash, in
property or in securities of the Corporation.
Section 2. RIGHTS UPON LIQUIDATION. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Corporation, each holder of Common Shares
shall be entitled to receive, ratably with each other holder of Common
Shares, that portion of the assets of the Corporation available for
distribution to its holders of Common Shares as the number of Common Shares
held by such holder bears to the total number of Common Shares then
outstanding.
Section 3. VOTING RIGHTS. The holders of Common Shares shall
be entitled to vote on all matters presented to the shareholders of the
Corporation (except any matter expressly reserved in these Amended and
Restated Articles of Incorporation to holders of shares other than Common
Shares), and shall be entitled to one vote for each Common Share entitled to
vote thereon.
Section 4. RESTRICTIONS ON TRANSFER TO PRESERVE TAX BENEFIT.
The Common Shares are subject to the restrictions on transfer set forth with
respect to those shares in Division C of this Article FOURTH.
DIVISION C: RESTRICTIONS ON TRANSFER OF PREFERRED SHARES
AND COMMON SHARES
I. RESTRICTIONS ON TRANSFER.
Section 1. DEFINITIONS. For purposes of this Division C of
this Article FOURTH, the following terms shall have the following meanings
set forth below:
12
"Beneficial Ownership" shall mean ownership of Equity Shares by
a Person who would be treated as an owner of such Equity Shares either
directly or indirectly through the application of Section 544 of the Internal
Revenue Code, as modified by Section 856(h)(1)(B) of the Internal Revenue
Code. The terms "Beneficial Owner," "Beneficially Owns," and "Beneficially
Owned" shall have correlative meanings.
"Beneficiary" shall mean, with respect to any Trust, one or
more organizations described in each of Section 170(b)(1)(A) (other than
clause (vii) or (viii) thereof) and Section 170(c)(2) of the Internal Revenue
Code that are named by the Corporation as the beneficiary or beneficiaries of
such Trust, in accordance with Section (1) of Division C.II. hereof.
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Boykin Hotel Properties, L.P. Agreement" shall mean the
Amended and Restated Agreement of Limited Partnership of Boykin Hotel
Properties, L.P., an Ohio limited partnership.
"Constructive Ownership" shall mean ownership of Equity Shares
by a Person who would be treated as an owner of such Equity Shares either
directly or indirectly through the application of Section 318 of the Internal
Revenue Code, as modified by Section 856(d)(5) of the Internal Revenue Code.
The terms "Constructive Owner," "Constructively Owns," and "Constructively
Owned" shall have correlative meanings.
"Equity Shares" shall mean Cumulative Preferred Shares,
Noncumulative Preferred Shares and Common Shares of the Corporation. The term
"Equity Shares" shall include all Cumulative Preferred Shares, Noncumulative
Preferred Shares and Common Shares of the Corporation that are held as
Shares-in-Trust in accordance with this Division C of this Article FOURTH.
"Initial Public Offering" means the sale of Common Shares
pursuant to the Corporation's first effective registration statement for
Common Shares filed under the Securities Act of 1933, as amended.
"Market Price" on any date shall mean the average of the
Closing Price for the five consecutive Trading Days ending on such date. The
"Closing Price" on any date shall mean the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the applicable Equity
Shares are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which
those Equity Shares are listed or admitted to trading or, if those Equity Shares
are 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 quotations system that
may then be in use or, if the shares of Equity Shares are 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 those Equity Shares selected by the
Board of Directors.
"Non-Transfer Event" shall mean an event other than a orted
Transfer that would cause any Person to Beneficially Own or Constructively
Own Equity Shares in excess of the Ownership Limit, including, but not
limited to, the issuance, granting of any option or entering into of any
agreement for the sale, transfer or other disposition of Equity Shares or the
sale, transfer, assignment or other disposition of any securities or rights
convertible into or exchangeable for Equity Shares.
13
"Ownership Limit" shall mean 9% of the number of outstanding
shares of any class of Equity Shares.
"Permitted Transferee" shall mean any Person designated as a
Permitted Transferee in accordance with this Division C.
"Person" shall mean an individual, corporation, partnership,
estate, trust, a portion of a trust permanently set aside for or to be used
exclusively for the purposes described in Section 642(c) of the Internal
Revenue Code, association, private foundation within the meaning of Section
509(a) of the Internal Revenue Code, joint stock company or other entity and
also includes a "group" as that term is used for purposes of Section 12(d)(3)
of the Securities Exchange Act of 1934, as amended.
"Prohibited Owner" shall mean, with respect to any purported
Transfer or Non-Transfer Event, any Person who, but for this Division C of
this Article FOURTH, would own record title to Equity Shares.
"Redemption Rights" shall mean the rights granted under the
Boykin Hotel Properties, L.P. Agreement to the limited partners to exchange,
under certain circumstances, their limited partnership interests for cash
(or, at the option of the Corporation, for Common Shares).
"Restriction Termination Date" shall mean the first day after
the date of the Initial Public Offering on which the Board of Directors
determines that it is no longer in the best interests of the Corporation to
attempt to, or continue to, qualify as a REIT.
"Shares-in-Trust" shall mean any Equity Shares designated as
Shares-in-Trust pursuant to this Division C.
"Trading Day" shall mean a day on which the principal national
securities exchange on which the applicable Equity Shares are listed or
admitted to trading is open for the transaction of business or, if those
Equity Shares are not listed or admitted to trading on any national
securities exchange, shall mean any day other than a Saturday, a Sunday or a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"Transfer" (as a noun) shall mean any sale, transfer, gift,
assignment, devise or other disposition of Equity Shares, whether voluntary
or involuntary, whether of record, constructively or beneficially and whether
by operation of law or otherwise. "Transfer" (as a verb) shall have the
correlative meaning.
"Trust" shall mean any separate trust created pursuant to this
Division C for the exclusive benefit of any Beneficiary.
"Trustee" shall mean any Person or entity unaffiliated with
both the Corporation and any Prohibited Owner, such Trustee to be designated
by the Corporation to act as trustee of any Trust, or any successor trustee
thereof.
Section 2. RESTRICTION ON TRANSFERS AND NON-TRANSFER EVENT.
(a) Except as set forth in Section 7 below and subject to
Section 8 below, from the date of the Initial Public Offering to the
Restriction Termination Date, (i) no Person shall Beneficially Own or
Constructively Own outstanding Equity Shares in excess of the Ownership
Limit, but any Transfer or Non-Transfer Event that, if effective, would
result in any Person Beneficially Owning or Constructively Owning outstanding
Equity Shares in excess of the Ownership Limit shall be void AB INITIO as to
the Transfer or Non-Transfer Event affecting that number of Equity Shares
which would be otherwise
14
Beneficially Owned or Constructively Owned by such Person in excess of the
Ownership Limit and the intended transferee shall acquire no rights in such
excess Equity Shares.
(b) Except as set forth in Section 7 below, from the date of
the Initial Public Offering to the Restriction Termination Date, any Transfer
or Non-Transfer Event that, if effective, would result in any class of Equity
Shares being beneficially owned by fewer than 100 Persons (determined without
reference to any rules of attribution) shall be void AB INITIO as to the
Transfer or Non-Transfer Event affecting that number of shares which would be
otherwise beneficially owned (determined without reference to any rules of
attribution) by the transferee, and the intended transferee shall acquire no
rights in such Equity Shares.
(c) From the date of the Initial Public Offering to the
Restriction Termination Date, any Transfer of or Non-Transfer Event affecting
Equity Shares that, if effective, would result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Internal Revenue
Code shall be void AB INITIO as to the Transfer of or Non-Transfer Event
affecting that number of Equity Shares which would cause the Corporation to
be "closely held" within the meaning of Section 856(h) of the Internal
Revenue Code, and the intended transferee shall acquire no rights in such
Equity Shares.
(d) From the date of the Initial Public Offering to the
Restriction Termination Date, any Transfer of or Non-Transfer Event affecting
Equity Shares that, if effective, would cause the Corporation to
Constructively Own 10% or more of the ownership interests in a tenant of the
real property of the Corporation or of any direct or indirect subsidiary of
the Corporation (a "Subsidiary"), within the meaning of Section 856(d)(2)(B)
of the Internal Revenue Code, shall be void AB INITIO as to the Transfer of
or Non-Transfer Event affecting that number of Equity Shares which would
cause the Corporation to Constructively Own 10% or more of the ownership
interests in a tenant of the Corporation's or of a Subsidiary's real
property, within the meaning of Section 856(d)(2)(B) of the Internal Revenue
Code, and the intended transferee shall acquire no rights in such excess
Equity Shares.
Section 3. TRANSFER TO TRUST.
(a) If, notwithstanding the other provisions contained in this
Division C, at any time after the Initial Public Offering and prior to the
Restriction Termination Date there is a purported Transfer or Non-Transfer
Event such that any Person would either Beneficially Own or Constructively
Own Equity Shares in excess of the Ownership Limit, then, (i) except as set
forth in Section 7 below, the purported transferee shall acquire no right or
interest (or, in the case of a Non-Transfer Event, the Person holding record
title to the Equity Shares Beneficially Owned or Constructively Owned by such
Beneficial Owner or Constructive Owner, shall cease to own any right or
interest) in such number of Equity Shares which would cause such Beneficial
Owner or Constructive Owner to Beneficially Own or Constructively Own Equity
Shares in excess of the Ownership Limit, (ii) such number of Equity Shares in
excess of the Ownership Limit (rounded up to the nearest whole share) shall
be designated Shares-in-Trust and, in accordance with this Division C,
transferred automatically by operation of the terms of this Section IV.C.I.3.
to a Trust to be held in accordance with this Division C, and (iii) the
Prohibited Owner shall submit such number of Equity Shares to the Corporation
for registration in the name of the Trustee. Such transfer to a Trust and the
designation of shares as Shares-in-Trust shall be effective as of the close
of business on the business day prior to the date of the Transfer or
Non-Transfer Event, as the case may be.
(b) If, notwithstanding the other provisions contained in this
Division C, at any time after the Initial Public Offering and prior to the
Restriction Termination Date, there is a purported Transfer or Non-Transfer
Event that, if effective, would (i) result in any class of the Equity Shares
being beneficially owned by fewer than 100 Persons (determined without
reference to any rules of attribution), (ii) result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Internal Revenue
Code, or (iii) cause the Corporation to Constructively Own 10% or more of the
ownership interests in a tenant of the Corporation's or of a Subsidiary's
real property, within the meaning of Section 856(d)(2)(B) of the
15
Internal Revenue Code, then (x) the purported transferee shall not acquire
any right or interest (or, in the case of a Non-Transfer Event, the Person
holding record title to the Equity Shares with respect to which such
Non-Transfer Event occurred, shall cease to own any right or interest) in
such number of Equity Shares, the ownership of which by such purported
transferee or record holder would (A) result in any class of Equity Shares
being beneficially owned by fewer than 100 Persons (determined without
reference to any rules of attribution), (B) result in the Corporation being
"closely held" within the meaning of Section 856(h) of the Internal Revenue
Code, or (C) cause the Corporation to Constructively Own 10% or more of the
ownership interests in a tenant of the Corporation's or of a Subsidiary's
real property, within the meaning of Section 856(d)(2)(B) of the Internal
Revenue Code, (y) such number of Equity Shares (rounded up to the nearest
whole share) shall be designated Shares-in-Trust and, in accordance with this
Division C, transferred automatically by operation of the terms of this
Section IV.C.I.3. to a Trust to be held in accordance with this Division C,
and (z) the Prohibited Owner shall submit such number of Equity Shares to the
Corporation for registration in the name of the Trustee. Such transfer to a
Trust and the designation of shares as Shares-in-Trust shall be effective as
of the close of business on the business day prior to the date of the
Transfer or Non-Transfer Event, as the case may be.
Section 4. REMEDIES FOR BREACH. If the Corporation, or its
designee, shall at any time determine in good faith that a Transfer or
Non-Transfer Event has taken place in violation of this Division C or that a
Person intends to acquire or has attempted to acquire Beneficial Ownership or
Constructive Ownership of any Equity Shares in violation of this Division C,
the Corporation shall take such action as it considers advisable to refuse to
give effect to or to prevent such Transfer or Non-Transfer Event or
acquisition, including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to enjoin
such Transfer or Non-Transfer Event or acquisition.
Section 5. NOTICE OF RESTRICTED TRANSFER. Any Person who
acquires or attempts to acquire Equity Shares in violation of this Division
C, or any Person who owned Equity Shares that were transferred to a Trust
pursuant to this Division C, 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 event on the Corporation's status as a REIT.
Section 6. OWNERS REQUIRED TO PROVIDE INFORMATION. From the
date of the Initial Public Offering to the Restriction Termination Date:
(a) Every Beneficial Owner or Constructive Owner of more than
5%, or such lower percentage as is specified pursuant to regulations issued
under the Internal Revenue Code, of the outstanding shares of any class of
shares of the Corporation shall, within 30 days after January 1 of each year,
provide to the Corporation a written statement or affidavit stating the name
and address of such Beneficial Owner or Constructive Owner, the number of
Equity Shares Beneficially Owned or Constructively Owned, and a description
of how such shares are held.
(b) Each Person who is a Beneficial Owner or Constructive Owner
of Equity Shares and each Person (including the shareholder of record) who is
holding Equity Shares for a Beneficial Owner or Constructive Owner shall
provide to the Corporation a written statement or affidavit stating such
information as the Corporation may request in order to determine the
Corporation's status as a REIT and to ensure compliance with the Ownership
Limit as applicable.
Section 7. EXCEPTIONS. The Ownership Limit shall not apply to
the acquisition of Equity Shares by an underwriter that participates in a
public offering of such shares for a period of 90 days following the purchase
by such underwriter of such shares. In addition, the Board of Directors, upon
receipt of a ruling from the Internal Revenue Service or an opinion of
counsel, in either case to the effect that the Corporation's status as a REIT
would not be jeopardized thereby, may allow a Person to own a certain amount
in excess of the Ownership Limit if (i) the Board of Directors obtains such
representations and undertakings from such Person as are reasonably necessary
to ascertain that no Person's Beneficial
16
Ownership or Constructive Ownership of Equity Shares could result in the REIT
(a) losing its REIT status for federal income tax purposes, or (b) being
"related" to any tenant or lessee under the REIT rules of the Internal
Revenue Code, and (ii) such Person agrees in writing that any violation or
attempted violation that could cause such a result will cause a transfer to a
Trust of Equity Shares pursuant to this Division C.
Section 8. NEW YORK STOCK EXCHANGE TRANSACTIONS.
Notwithstanding any provision contained herein to the contrary, nothing in
these Amended and Restated Articles of Incorporation shall preclude the
settlement of any transaction entered into through the facilities of the New
York Stock Exchange.
II. SHARES-IN-TRUST.
Section 1. TRUST. Any Equity Shares transferred to a Trust and
designated Shares-in-Trust pursuant to this Division C shall be held for the
exclusive benefit of the Beneficiary. The Corporation shall name a
Beneficiary for each Trust within five days after the Corporation first has
actual notice of the existence thereof. Any transfer to a Trust, and
designation of Equity Shares as Shares-in-Trust, shall be effective as of the
close of business on the business day prior to the date of the Transfer or
Non-Transfer Event that results in the transfer to the Trust. Shares-in-Trust
shall continue to constitute issued and outstanding Equity Shares of the
Corporation and shall be entitled to the same rights and privileges as are
all other issued and outstanding Equity Shares of the same class and series.
When transferred to a Permitted Transferee in accordance with this Division
C, such Shares-in-Trust shall cease to be designated as Shares-in-Trust.
Section 2. DIVIDEND RIGHTS. The Trust, as record holder of
Shares-in-Trust, shall be entitled to receive all dividends and distributions
declared by the Board of Directors on such Shares-in-Trust and shall hold
such dividends and distributions in trust for the benefit of the Beneficiary.
The Prohibited Owner with respect to Shares-in-Trust shall repay to the Trust
the amount of any dividends or distributions received by it that (i) are
attributable to those Shares-in-Trust and (ii) the record date of which was
on or after the date that such shares became Shares-in-Trust. The Corporation
shall take all measures that it determines reasonably necessary to recover
the amount of any such dividend or distribution paid to a Prohibited Owner,
including, if necessary, withholding any portion of future dividends or
distributions payable on Equity Shares Beneficially Owned or Constructively
Owned by the Person who, but for the provisions of this Division C, would
Constructively Own or Beneficially Own the Shares-in-Trust; and, as soon as
reasonably practicable following the Corporation's receipt or withholding
thereof, shall pay over to the Trust for the benefit of the Beneficiary the
dividends so received or withheld, as the case may be.
Section 3. RIGHTS UPON LIQUIDATION. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of, or any
distribution of the assets of, the Corporation, each holder of
Shares-in-Trust shall be entitled to receive, ratably with each other holder
of Equity Shares of the same class or series, that portion of the assets of
the Corporation which is available for distribution to the holders of such
class and series of Equity Shares. The Trust shall distribute to the
Prohibited Owner the amounts received upon such liquidation, dissolution, or
winding up, or distribution; PROVIDED, HOWEVER, that the Prohibited Owner
shall not be entitled to receive amounts pursuant to this Division C in
excess of, in the case of a purported Transfer in which the Prohibited Owner
gave value for Equity Shares and which Transfer resulted in the transfer of
the shares to the Trust, the price per share, if any, such Prohibited Owner
paid for the Equity Shares and, in the case of a Non-Transfer Event or
Transfer in which the Prohibited Owner did not give value for such shares
(E.G., if the shares were received through a gift or devise) and which
Non-Transfer Event or Transfer, as the case may be, resulted in the transfer
of shares to the Trust, the price per share equal to the Market Price on the
date of such Non-Transfer Event or Transfer. Any remaining amount in such
Trust shall be distributed to the Beneficiary.
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Section 4. VOTING RIGHTS. The Trustee shall be entitled to
vote all Shares-in-Trust. Any vote by a Prohibited Owner as a holder of
Equity Shares prior to the discovery by the Corporation that the Equity
Shares are Shares-in-Trust shall, so far as is practicable under applicable
law, be rescinded and shall be void AB INITIO with respect to such
Shares-in-Trust and the Prohibited Owner shall be deemed to have given, as of
the close of business on the business day prior to the date of the Transfer
or Non-Transfer Event that results in the transfer to the Trust of Equity
Shares pursuant to this Division C, an irrevocable proxy to the Trustee to
vote the Shares-in-Trust in the manner in which the Trustee, in its sole and
absolute discretion, considers advisable.
Section 5. DESIGNATION OF PERMITTED TRANSFEREE. The Trustee
shall have the exclusive and absolute right to designate a Permitted
Transferee of any Shares-in-Trust. In an orderly fashion so as not to
materially adversely affect the Market Price of the Shares-in-Trust, the
Trustee shall designate a Person as Permitted Transferee, so long as (i) the
Permitted Transferee so designated purchases for valuable consideration
(whether in a public or private sale) the Shares-in-Trust and (ii) the
Permitted Transferee so designated can acquire such Shares-in-Trust without
such acquisition resulting in a transfer to a Trust and the redesignation of
such Equity Shares as Shares-in-Trust. Upon the designation by the Trustee of
a Permitted Transferee, the Trustee shall (i) cause to be transferred to the
Permitted Transferee that number of Shares-inTrust acquired by the Permitted
Transferee, (ii) cause to be recorded on the books of the Corporation that
the Permitted Transferee is the holder of record of such number of Equity
Shares, (iii) cause the Shares-in-Trust to be canceled, and (iv) distribute
to the Beneficiary any and all amounts held by the Trustee with respect to
the Shares-in-Trust after making any payment to the Prohibited Owner required
under Sections IV.C.II.3. and IV.C.II.6.
Section 6. COMPENSATION TO RECORD HOLDER OF EQUITY SHARES THAT
BECOME SHARES-IN-TRUST. Any Prohibited Owner shall be entitled (following
designation of Equity Shares proposed or purported to be held by that
Prohibited Owner as Shares-in-Trust and subsequent designation of a Permitted
Transferee or the Trustee's acceptance of an offer to purchase such shares)
to receive from the Trustee following the sale or other disposition of such
Shares-in-Trust the lesser of (i) in the case of (a) a purported Transfer in
which the Prohibited Owner gave value for Equity Shares and which Transfer
resulted in the transfer of the shares to the Trust, the price per share, if
any, such Prohibited Owner paid for the Equity Shares, or (b) a Non-Transfer
Event or Transfer in which the Prohibited Owner did not give value for such
shares (E.G., if the shares were received through a gift or devise) and which
Non-Transfer Event or Transfer, as the case may be, resulted in the transfer
of shares to the Trust, the price per share equal to the Market Price on the
date of such Non-Transfer Event or Transfer, and (ii) the price per share
received by the Trustee from the sale or other disposition of such
Shares-in-Trust. Any amounts received by the Trustee in respect of such
Shares-in-Trust and in excess of such amounts to be paid to the Prohibited
Owner shall be distributed to the Beneficiary. Each Beneficiary and
Prohibited Owner waive any and all claims that they may have against the
Trustee and the Trust arising out of the disposition of Shares-in-Trust,
except for claims arising out of the gross negligence or willful misconduct
of, or any failure to make payments in accordance with this Division C, by
such Trustee or the Corporation.
Section 7. PURCHASE RIGHT IN SHARES-IN-TRUST. Shares-in-Trust
shall be considered to have been offered for sale to the Corporation, or its
designee, on the date of the event that created such Shares-in-Trust status
at a price per share equal to the lesser of (i) the price per share in the
event that created such Shares-in-Trust status (or, in the case of a devise,
gift or Non-Transfer Event, the Market Price at the time of such devise, gift
or Non-Transfer Event) 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 for a period of ninety days after the later of (i) the date
of the event which created such Shares-in-Trust status and (ii) the date the
Corporation determines in good faith that an event occurred that created such
Shares-in-Trust status, if the Corporation does not receive a notice of such
event.
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III. REMEDIES NOT LIMITED. Subject to Article I, Sections 7 and 8,
nothing contained in this Division C shall limit the authority of the
Corporation to take such other action as it deems necessary or advisable to
protect the Corporation and the interests of its shareholders by preservation
of the Corporation's status as a REIT and to ensure compliance with the
Ownership Limit.
IV. AMBIGUITY. In the case of any ambiguity in the application of
any provision of this Division C, including any definition contained herein,
the Board of Directors shall have the power to determine the application of
that provision.
V. LEGEND. Each certificate for Equity Shares shall bear the
following legend:
"The [Common Shares or Cumulative Preferred Shares or
Noncumulative Preferred Shares] represented by this
certificate are subject to restrictions on 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"). No Person may (i)
Beneficially Own or Constructively Own Common Shares in excess
of 9% of the number of outstanding Common Shares, (ii)
Beneficially Own or Constructively Own shares of any class or
series of Preferred Shares in excess of 9% of the number of
outstanding shares of that class or series of Preferred
Shares, (iii) beneficially own Equity Shares that would result
in the Equity Shares being beneficially owned by fewer than
100 Persons (determined without reference to any rules of
attribution), (iv) Beneficially Own Equity Shares that would
result in the Corporation being "closely held" under Section
856(h) of the Code, or (v) Constructively Own Equity Shares
that would cause the Corporation to Constructively Own 10% or
more of the ownership interests in a tenant of the
Corporation's or of a Subsidiary's real property, within the
meaning of Section 856(d)(2)(B) of the Code. Each holder of
Equity Shares is required to furnish the Corporation such
information as the Corporation may request pursuant to Section
6 of the Corporation's Amended and Restated Articles of
Incorporation. Any Person who attempts to Beneficially Own or
Constructively Own Equity Shares in excess of the above
limitations must immediately notify the Corporation in
writing. If those restrictions are violated, the Equity Shares
represented hereby in excess of those limitations will be
transferred automatically by operation of the Corporation's
Amended and Restated Articles of Incorporation to a Trust and
will be designated Shares-in-Trust. All capitalized terms in
this legend have the meanings defined in the Corporation's
Amended and Restated Articles of Incorporation, as they may be
amended from time to time, a copy of which, including the
restrictions on transfer, will be sent without charge to each
shareholder who so requests."
VI. SEVERABILITY. Each provision of this Article FOURTH shall be
several, and an adverse determination as to any such provision shall in no
way affect the validity of any other provision.
FIFTH: At all times following the consummation of the Initial Public
Offering (as defined in Article FOURTH), at least a majority of the members
of the Board of Directors shall, except as may result from a vacancy or
vacancies therein, be Independent Directors. An "Independent Director" shall
mean a person who is (i) independent of management of the Corporation, (ii)
not employed by or an officer of the Corporation, (iii) not an "affiliate"
(as defined in Rule 405 under the Securities Act of 1933, as amended) of the
Corporation or of any Subsidiary of the Corporation, and (iv) not a person
who acts on a regular basis as an individual or representative of an
organization serving as a professional advisor, legal counsel or consultant
to management if, in the opinion of the Board of Directors, the relationship
is material to the Corporation, that person, or the organization represented.
Any determination to be made by the Board of
19
Directors in connection with any matter presenting a conflict of interest for
any officer of the Corporation or any director of the Corporation who is not
an Independent Director shall be made by the Independent Directors.
SIXTH: No holder of shares of the Corporation of any class shall be
entitled as such, as a matter of right, to subscribe for or purchase shares
of any class, now or hereafter authorized, or to subscribe for or purchase
securities convertible into or exchangeable for shares of the Corporation or
to which shall be attached or appertain any warrants or rights entitling the
holder thereof to subscribe for or purchase shares, except such rights of
subscription or purchase, if any, for such considerations and upon such terms
and conditions as its Board of Directors from time to time may determine.
SEVENTH: Notwithstanding any provision of Sections 1701.01 to
1701.98, inclusive, of the Ohio Revised Code, or any successor statutes now
or hereafter in force, requiring for the authorization or taking of any
action the vote or consent of the holders of shares entitling them to
exercise two-thirds or any other proportion of the voting power of the
Corporation or of any class or classes of shares thereof, such action, unless
otherwise expressly required by law or these Amended and Restated Articles of
Incorporation, may be authorized or taken by the vote or consent of the
holders of shares entitling them to exercise a majority of the voting power
of the Corporation or of such class or classes of shares thereof.
EIGHTH: To the extent permitted by law, the Corporation, by action
of its Board of Directors, may purchase or otherwise acquire shares of any
class issued by it at such times, for such consideration and upon such terms
and conditions as its Board of Directors may determine.
NINTH: No person who is serving or has served as a director of the
Corporation shall be personally liable to the Corporation or any of its
shareholders for monetary damages for breach of any fiduciary duty of such
person as a director by reason of any act or omission of such person as a
director; but the foregoing provision shall not eliminate or limit the
liability of any person (a) for any breach of such person's duty of loyalty
as a director to the Corporation or its shareholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 1701.95 of the Ohio Revised Code,
(d) for any transaction from which such person derived any improper personal
benefit, or (e) to the extent that such liability may not be limited or
eliminated by virtue of Section 1701.13 of the Ohio Revised Code or any
successor section or statute. Any repeal or modification of this Article
NINTH by the shareholders of the Corporation shall be prospective only, and
shall not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification.
TENTH: Section 1701.831 of the Ohio Revised Code shall not apply to
the Corporation.
ELEVENTH: Chapter 1704 of the Ohio Revised Code shall not apply to
the Corporation.
TWELFTH: If any provision (or portion thereof) of these Amended and
Restated Articles of Incorporation shall be found to be invalid, prohibited,
or unenforceable for any reason, the remaining provisions (or portions
thereof) of these Amended and Restated Articles of Incorporation shall remain
in full force and effect, and shall be construed as if such invalid,
prohibited, or unenforceable provision had been stricken herefrom or
otherwise rendered inapplicable, it being the intent of the Corporation and
its shareholders that each such remaining provision (or portion thereof) of
these Amended and Restated Articles of Incorporation remain, to the fullest
extent permitted by law, applicable and enforceable as to all shareholders,
notwithstanding any such finding.
THIRTEENTH: No shareholder of the Corporation may cumulate his
voting power in the election of directors.
20
FOURTEENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in these Amended and Restated
Articles of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon shareholders herein are granted
subject to this reservation.
FIFTEENTH: These Amended and Restated Articles of Incorporation
shall take the place of and supersede the Corporation's existing Articles of
Incorporation.
21
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
BOYKIN LODGING COMPANY
Robert A. Weible, Secretary, of Boykin Lodging Company, an Ohio
corporation (the "Corporation"), does hereby certify that the Executive
Committee of the Board of Directors of the Corporation adopted the following
resolution to amend the Amended and Restated Articles of Incorporation (the
"Articles") of the Corporation by written action pursuant Section 1701.63(D)
of the Ohio Revised Code and pursuant to the authority granted by Section
1701.70(B)(1) of the Ohio Revised Code and Section I.1. of Division A of the
Articles:
RESOLVED, that the Amended and Restated Articles of
Incorporation of the Corporation be, and they hereby are, amended by adding
at the end of Division A.I. of Article FOURTH a new Section 6 that reads as
follows:
SECTION 6. CLASS A CUMULATIVE PREFERRED SHARES, SERIES 1999-A.
A. DESIGNATION AND AMOUNT. Of the 5,000,000 authorized Class
A Cumulative Preferred Shares, 75,000 are designated as "Class A Cumulative
Preferred Shares, Series 1999-A" (the "Series 1999-A Preferred Shares"). The
Series 1999-A Preferred Shares have the express terms set forth in this
Division as being applicable to all Class A Cumulative Preferred Shares as a
class and, in addition, the following express terms. The number of Series
1999-A Preferred Shares may be increased or decreased by resolution of the
Board of Directors and by the filing of a certificate of amendment pursuant
to the General Corporation Law of the State of Ohio stating that the increase
or reduction has been so authorized, but no decrease may reduce the number of
Series 1999-A Preferred Shares to a number less than that of the Series
1999-A Preferred Shares then outstanding plus the number of Series 1999-A
Preferred Shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by the
Corporation.
B. DIVIDENDS AND DISTRIBUTIONS.
(1) Subject to the rights of the holders of any series of
preferred shares (or any similar shares) ranking prior to the Series 1999-A
Preferred Shares with respect to dividends, the holders of Series 1999-A
Preferred Shares, in preference to the holders of Common Shares and of any
other shares ranking junior to the Series 1999-A Preferred Shares, will be
entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, (1) quarterly dividends payable
in cash on the same day as the quarterly dividend payment date for any
regular quarterly dividend payable on the Common Shares with respect to the
same period or, if no such regular quarterly dividend is payable on the
Common Shares, on the fifth day of May, August, November and February in each
year (each such date, a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a Series
1999-A Preferred Share or fraction thereof, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $47.00 or (b) subject to
adjustment as hereinafter set forth, 100 times the per share amount of all
regular quarterly cash dividends, and 100 times the per share value of all
regular quarterly noncash dividends or other distributions (as determined by
the Board of Directors in good faith), other than any dividend payable in
Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares with respect to
the same period, and (2) if a dividend or distribution
22
other than a regular quarterly dividend and other than a dividend payable in
Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise) is authorized, declared or paid to the holders
of Common Shares (including without limitation a dividend or distribution of
cash, rights, options or other securities or any noncash property), a per
share cash dividend in an amount equal to the value of the per share amount
payable on each Common Share (as determined by the Board of Directors in good
faith) multiplied by the Dividend Multiple (as defined below), payable on the
same day as the payment date for that dividend on the Common Shares. The
multiple of dividends declared on the Common Shares to which holders of the
Series 1999-A Preferred Shares are entitled, which is 100 initially but which
will be adjusted from time to time as hereinafter provided, is hereinafter
referred to as the "Dividend Multiple." If the Company at any time after
February 1, 1999: (i) declares or pays any dividend on the Common Shares
payable in Common Shares, or (ii) effects a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater or
lesser number of Common Shares, then in each such case the Dividend Multiple
will thereafter be the Dividend Multiple applicable immediately prior to that
event multiplied by a fraction, the numerator of which is the number of
Common Shares outstanding immediately after that event and the denominator of
which is the number of Common Shares that were outstanding immediately prior
to that event.
(2) The Board of Directors may fix in accordance with
applicable law a record date for the determination of holders of Series
1999-A Preferred Shares entitled to receive payment of a dividend or other
distribution declared thereon, which will be the same day as the record date
for any dividend or distribution payable on the Common Shares with respect to
the same period if any such dividend or distribution is so payable. Dividends
on the Series 1999-A Preferred Shares will accrue and be cumulative (i) with
respect to shares included in the initial issuance of Series 1999-A Preferred
Shares and shares issued any time thereafter to and including the record date
for the payment of the first dividend on the shares included in that initial
issuance (the "First Record Date"), from the date of that initial issuance,
(ii) with respect to shares issued any time after the First Record Date and
not between a record date and the dividend payment date to which that record
date applies (that period, the "Ex-dividend Period"), from the dividend
payment date immediately preceding the date of issue of those shares, and
(iii) with respect to shares issued after the First Record Date and during an
Ex-dividend Period, from the dividend payment date on which that Ex-dividend
Period ends. Accrued but unpaid dividends will not bear interest. Dividends
paid on the Series 1999-A Preferred Shares in an amount less than the total
amount of dividends at the time accrued and payable on those shares will be
allocated pro rata on a share-by-share basis among all such shares at the
time outstanding. The amount of accrued and unpaid dividends on any Series
1999-A Preferred Share at any date is the amount of any dividends payable
thereon in accordance with this Section 6.B. (whether or not declared) that
have not been paid.
C. REDEMPTION. The Series 1999-A Preferred Shares are
redeemable, in whole but not in part, in accordance with Section 3 of
Division A.1.of Article FOURTH, at any time on or after (but not before) the
fifth anniversary of the initial issuance of a Series 1999-A Preferred Share,
at the option of the Board of Directors, upon payment of an amount in cash
for each share redeemed equal to the Conversion Multiple (as defined in
Section E.1., below) times the Adjusted Share Price, together with all
accrued and unpaid dividends thereon to the redemption date (the "Redemption
Price"). The Board of Directors may, at its option, pay all or any portion of
the Redemption Price for any Series 1999-A Preferred Shares redeemed in
accordance with this Section 6.C. by delivering to the holder thereof the
number of Common Shares derived by dividing the portion of the redemption
price to be so paid by the Adjusted Share Price, so long as that form of
payment will not result in the holder beneficially owning more than nine
percent (9.0%) of the total number of the outstanding Common Shares
(determined pursuant to Section 13(d) of the Securities Exchange Act of 1934,
as amended), or violating Division C of this Article FOURTH, whichever is
more restrictive. For purposes of this Section 6.C., "Adjusted Share Price"
means a dollar amount equal to the average last sale price (or bid price if
there were no sales) per Common Share on the NYSE over the twenty-one (21)
days on which the NYSE is open and for which
23
trades in Common Shares are reported immediately preceding the date on which
the Corporation delivers the applicable redemption notice (adjusted to take
into account any splits, combinations, reclassifications, or other changes in
the Corporation's capitalization that occur between the date of that notice
and the redemption date). If the Common Shares are no longer trading on the
NYSE, then the Adjusted Share Price will be determined using the prices
reported on the exchange or automated quotation system on which the Common
Shares then trade. Each holder of Series 1999-A Preferred Shares may exercise
the conversion rights described in Section 6.E. for those shares at any time
prior to the date set for redemption of those shares.
D. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution may be made (x) to the holders of shares ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series 1999-A Preferred Shares unless, prior thereto, the holders
of Series 1999-A Preferred Shares shall have received an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, plus an amount equal to the greater of
(1) $1,648.00 per share or (2) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of Common Shares, or
(y) to the holders of shares ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series 1999-A Preferred
Shares, except distributions made ratably on the Series 1999-A Preferred
Shares and all other such parity shares in proportion to the total amounts to
which the holders of all such shares are entitled upon such liquidation,
dissolution or winding up (the holders of Series 1999-A Preferred Shares
being entitled to receive, for this purpose, the amount determined pursuant
to clause (x) of this sentence). If the Corporation at any time after
February 1, 1999 (i) declares or pays any dividend on Common Shares payable
in Common Shares, or (ii) effects a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater or
lesser number of Common Shares, then in each such case the aggregate amount
per share to which holders of Series 1999-A Preferred Shares were entitled
immediately prior to such event under clause (x)(2) of the immediately
preceding sentence will be adjusted by multiplying that amount by a fraction,
the numerator of which is the number of Common Shares outstanding immediately
after that event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to that event.
Neither the consolidation of nor merger of the Corporation with
or into any other corporation or corporations, nor the sale or other transfer
of all or substantially all of the assets of the Corporation, will be
considered a liquidation, dissolution or winding up of the Corporation within
the meaning of this paragraph D.
E. CONVERSION RIGHTS.
(1) The holders of Series 1999-A Preferred Shares have the
right, at their option, to convert all or any portion of their Series 1999-A
Preferred Shares into Common Shares at any time and from time to time, on the
basis set forth below, but (a) no such holder may so convert Series 1999-A
Preferred Shares if, immediately after that conversion, that holder would be
the record or beneficial owner of more than nine percent (9.0%) of the total
number of the outstanding Common Shares (determined pursuant to Section 13(d)
of the Securities Exchange Act of 1934, as amended), or violate Division C of
this Article FOURTH, whichever is more restrictive, and (b) the right to
convert Series 1999-A Preferred Shares that have been called for redemption
pursuant to Section 6.C. terminates at the close of business on the
redemption date for those Series 1999-A Preferred Shares pursuant to Section
6.C., unless the Corporation defaults in making payment of any cash payable
on that redemption. Each Series 1999-A Preferred Share is initially
convertible into 100 Common Shares (the number of Common Shares into which
each Series 1999-A Preferred Share is convertible, the "Conversion
Multiple"). If the Corporation, at any time after February 1, 1999: (i)
declares or pays any dividend on the Common Shares payable in
24
Common Shares, or (ii) effects a subdivision or combination or consolidation
of the outstanding Common Shares (by reclassification or otherwise than by
payment of a dividend in Common Shares) into a greater or lesser number of
Common Shares, then in each such case the Conversion Multiple will thereafter
be the Conversion Multiple applicable immediately prior to that event
multiplied by a fraction, the numerator of which is the number of Common
Shares outstanding immediately after that event and the denominator of which
is the number of Common Shares that were outstanding immediately prior to
that event.
(2) In order for a holder of Series 1999-A Preferred Shares to
convert Series 1999-A Preferred Shares into Common Shares, that holder shall
surrender the certificate or certificates for those Series 1999-A Preferred
Shares at the office of the transfer agent for the Series 1999-A Preferred
Shares (or at the principal office of the Corporation if the Corporation
serves as its own transfer agent), together with written notice that the
holder elects to convert all or any number of the Series 1999-A Preferred
Shares represented by that certificate or certificates. That notice must
state the holder's name or the names of the nominees in which the holder
wishes the certificate or certificates for Common Shares to be issued and the
number of Series 1999-A Preferred Shares to be converted. If required by the
Corporation, certificates surrendered for conversion must be endorsed or
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Corporation, duly executed by the registered holder or
his or its attorney duly authorized in writing. The date of receipt of those
certificates and notice by the transfer agent or by the Corporation (if the
Corporation serves as its own transfer agent) will be the conversion date
(the "Conversion Date") and the conversion will be effective as of the close
of business on the Conversion Date. The Corporation shall, as soon as
practicable after the Conversion Date, issue and deliver at that office, or
send, on the converting holder's written instruction, to that holder or to
his or its nominees, a certificate or certificates for the number of Common
Shares to which that holder is entitled, together with cash in lieu of any
fraction of a share.
(3) The Corporation shall at all times when any Series 1999-A
Preferred Shares are outstanding, reserve and keep available out of its
authorized but unissued shares, for the purpose of effecting the conversion
of the Series 1999-A Preferred Shares, such number of its duly authorized
Common Shares as are from time to time sufficient to effect the conversion of
all outstanding Series 1999-A Preferred Shares.
(4) Upon any conversion effected in accordance with this
Section 6.E., the Corporation shall pay all accrued and unpaid dividends on
the Series 1999-A Preferred Shares surrendered for conversion.
(5) All Series 1999-A Preferred Shares that have been
surrendered for conversion as herein provided will no longer be considered
outstanding, and all rights with respect to those shares, including the
rights, if any, to receive notices and to vote, will cease and terminate at
the close of business on the Conversion Date, except only the right of the
holders thereof to receive Common Shares in exchange therefor and the
dividend payment provided for in paragraph (4), above. If certificates
representing more than one Series 1999-A Preferred Share are surrendered for
conversion at one time by the same holder, the number of Common Shares
issuable on conversion thereof will be computed on the basis of the aggregate
number of Series 1999-A Preferred Shares so surrendered.
F. FRACTIONAL SHARES. Series 1999-A Preferred Shares may be
issued in whole shares or in any fraction of a share, which will entitle the
holder, in proportion to that holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and have the benefit
of all other rights of holders of Series 1999-A Preferred Shares. In lieu of
issuing fractional shares of less than one one-hundredth (1/100) of a
Preferred Share, the Corporation may elect to make a cash payment in an
amount equal to the same fraction of the last sale price (or bid price if
there were no sales) per Common Share on the New York Stock Exchange on the
business day that immediately precedes the Conversion Date or, if the Common
Shares are not the listed on the New York Stock Exchange, of the market price
25
per share determined using the prices reported on the exchange or automated
quotation system on which the Common Shares then trade, as equitably adjusted
to reflect any change or adjustment to the Conversion Multiple after February
1, 1999.
G. CERTAIN TRANSACTIONS. If the Corporation is a party to any
transaction (including without limitation a merger, consolidation, statutory
share exchange, self tender offer for all or substantially all Common Shares
outstanding, sale of all or substantially all of the Corporation's assets or
recapitalization of the Common Shares but excluding the payment of any
dividend payable in Common Shares or a subdivision, combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise)) (each of the foregoing being referred to herein as a
"Transaction"), in each case as a result of which Common Shares are converted
into the right to receive shares, securities or other property (including
cash or any combination thereof), each Series 1999-A Preferred Share that is
not redeemed or converted into the right to receive shares, securities or
other property in connection with that Transaction will thereafter be
convertible into the kind and amount of shares, securities and other property
(including cash or any combination thereof) receivable upon the consummation
of that Transaction by a holder of that number of Common Shares into which
one Series 1999-A Preferred Share was convertible immediately prior to that
Transaction, assuming that holder of Common Shares (i) is not a Person with
which the Corporation consolidated or into which the Corporation merged or
that merged into the Corporation or to which that sale or transfer was made,
as the case may be (a "Constituent Person"), or an affiliate of a Constituent
Person and (ii) failed to exercise his or her rights of election, if any, as
to the kind or amount of shares, securities and other property (including
cash) receivable upon that Transaction (but if the kind or amount of shares,
securities and other property (including cash) receivable upon that
Transaction is not the same for each Common Share held immediately prior to
that Transaction by other than a Constituent Person or an affiliate thereof
and in respect of which those rights of election have not been exercised
("Non-Electing Share"), then for the purpose of this Section 6.G., the kind
and amount of shares, securities and other property (including cash)
receivable upon that Transaction by each Non-Electing Share will be
considered to be the kind and amount so receivable per share by a plurality
of the Non-Electing Shares). The Corporation shall not be a party to any
Transaction unless the terms of that Transaction are consistent with the
provisions of this Section 6.G. and it shall not consent or agree to the
occurrence of any Transaction until the Corporation has entered into an
agreement with the successor or purchasing entity, as the case may be, for
the benefit of the holders of the Series 1999-A Preferred Shares that will
contain provisions enabling the holders of the Series 1999-A Preferred Shares
that remain outstanding after that Transaction to convert their Series 1999-A
Preferred Shares into the consideration received by holders of Common Shares
at the Conversion Multiple in effect immediately prior to that Transaction.
The provisions of this Section 6.G. similarly apply to successive
Transactions.
H. NOTICE. Whenever the Dividend Multiple or the Conversion
Multiple is adjusted as herein provided, the Corporation shall promptly
deliver to each holder of the Series 1999-A Preferred Shares, at that
holder's last address shown on the share records of the Corporation, a notice
of that adjustment, setting forth the adjusted Dividend Multiple or
Conversion Multiple, as applicable, and the effective date of that adjustment
and a brief statement of the facts requiring that adjustment.
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IN WITNESS WHEREOF, the undersigned has executed this
instrument as of February 1, 1999.
/s/ Robert A. Weible
------------------------------------
Robert A. Weible, Secretary
Boykin Lodging Company
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CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
BOYKIN LODGING COMPANY
Paul A. O'Neil, Treasurer, and Andrew A. Alexander, Assistant
Secretary, of Boykin Lodging Company, an Ohio corporation (the "Company"), do
hereby certify that at a meeting of the Board of Directors of the Company
held on May 25, 1999, the following resolution to amend the Amended and
Restated Articles of Incorporation, as amended, of the Company was adopted
pursuant to the authority granted by Section 1701.70(B)(1) of the Ohio
Revised Code:
RESOLVED, that the Amended and Restated Articles of
Incorporation, as amended, of the Company be, and they hereby are, amended by
adding at the end of Division A-II of Article FOURTH a new Section 6 that
reads as follows:
SECTION 6. CLASS A SERIES 1999-A NONCUMULATIVE PREFERRED
SHARES.
(a) DESIGNATION AND AMOUNT. Of the 5,000,000 authorized Class
A Noncumulative Preferred Shares, without par value, 500,000 are designated
as a series designated as "Class A Series 1999-A Noncumulative Preferred
Shares" (the "Series 1999-A Noncumulative Preferred Shares"). The Series
1999-A Noncumulative Preferred Shares have the express terms set forth in
this Division as being applicable to all Preferred Shares as a class and, in
addition, the following express terms applicable to all Series 1999-A
Noncumulative Preferred Shares as a series of Preferred Shares. The number of
Series 1999-A Noncumulative Preferred Shares may be increased or decreased by
resolution of the Board of Directors and by the filing of a certificate of
amendment pursuant to the provisions of the General Corporation Law of the
State of Ohio stating that such increase or reduction has been so authorized;
however, no decrease shall reduce the number of Series 1999-A Noncumulative
Preferred Shares to a number less than that of the Series 1999-A
Noncumulative Preferred Shares then outstanding plus the number of Series
1999-A Noncumulative Preferred Shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities
issued by the Company.
(b) DIVIDENDS AND DISTRIBUTIONS.
(1)(i) Subject to the rights of the holders of any series of
preferred shares (or any similar shares) ranking prior to the Series
1999-A Noncumulative Preferred Shares with respect to dividends, the
holders of Series 1999-A Noncumulative Preferred Shares, in
preference to the holders of Common Shares and of any other junior
shares, will be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the fifteenth day of March,
June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a Series 1999-A Noncumulative Share or fraction
thereof, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $1.00 or (b) subject to the provisions for
adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all noncash dividends or other
distributions other than a dividend payable in Common Shares or a
subdivision of the outstanding Common Shares (by reclassification or
otherwise), declared on the Common Shares after the immediately
preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend
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Payment Date, after the first issuance of any Series 1999-A
Noncumulative Share or fraction thereof. The multiple of cash and
noncash dividends declared on the Common Shares to which holders of
the Series 1999-A Noncumulative Preferred Shares are entitled, which
is 1,000 initially but which will be adjusted from time to time as
hereinafter provided, is hereinafter referred to as the "Dividend
Multiple." If the Company at any time after May 25, 1999 (the
"Rights Declaration Date"): (i) declares or pays any dividend on the
Common Shares payable in Common Shares, or (ii) effects a
subdivision or combination or consolidation of the outstanding
Common Shares (by reclassification or otherwise than by payment of a
dividend in Common Shares) into a greater or lesser number of Common
Shares, then in each such case the Dividend Multiple thereafter
applicable to the determination of the amount of dividends that
holders of Series 1999-A Noncumulative Preferred Shares are entitled
to receive will be the Dividend Multiple applicable immediately
prior to that event multiplied by a fraction, the numerator of which
is the number of Common Shares outstanding immediately after that
event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to that event.
(ii) Notwithstanding anything else contained in this paragraph
(1), the Company shall, out of funds legally available for that
purpose, declare a dividend or distribution on the Series 1999-A
Noncumulative Preferred Shares as provided in this paragraph (1)
immediately after it declares a dividend or distribution on the
Common Shares (other than a dividend payable in Common Shares); but
if no dividend or distribution has been declared on the Common
Shares during the period between any Quarterly Dividend Payment Date
and the next subsequent Quarterly Dividend Payment Date, a dividend
of $1.00 per share on the Series 1999-A Noncumulative Preferred
Shares shall nevertheless accrue on such subsequent Quarterly
Dividend Payment Date.
(2) Dividends will begin to accrue and be cumulative on
outstanding Series 1999-A Noncumulative Preferred Shares from the Quarterly
Dividend Payment Date next preceding the date of issue of such Series 1999-A
Noncumulative Preferred Shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares will begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of
holders of Series 1999-A Noncumulative Preferred Shares entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends will begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends will not
bear interest. Dividends paid on the Series 1999-A Noncumulative Preferred
Shares in an amount less than the total amount of such dividends at the time
accrued and payable on such shares will be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board
of Directors may fix in accordance with applicable law a record date for the
determination of holders of Series 1999-A Noncumulative Preferred Shares
entitled to receive payment of a dividend or distribution declared thereon,
which record date will be not more than such number of days prior to the date
fixed for the payment thereof as may be allowed by applicable law.
(c) REACQUIRED SHARES. Any Series 1999-A Noncumulative
Preferred Shares purchased or otherwise acquired by the Company in any manner
whatsoever will be retired and canceled promptly after the acquisition
thereof. All such shares will upon their cancellation become authorized but
unissued preferred shares and may be reissued as part of a new series of
Preferred Shares to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
(d) LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Company, no distribution may be made (x) to the holders of shares ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series
29
1999-A Noncumulative Preferred Shares unless, prior thereto, the holders of
Series 1999-A Noncumulative Preferred Shares shall have received an amount
equal to accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, plus an amount equal to the
greater of (1) $1,000.00 per share or (2) an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
times the aggregate amount to be distributed per share to holders of Common
Shares, or (y) to the holders of shares ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series
1999-A Noncumulative Preferred Shares, except distributions made ratably on
the Series 1999-A Noncumulative Preferred Shares and all other such parity
stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. If the
Company at any time after the Rights Declaration Date (i) declares or pays
any dividend on Common Shares payable in Common Shares, or (ii) effects a
subdivision or combination or consolidation of the outstanding Common Shares
(by reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such
case the aggregate amount per share to which holders of Series 1999-A
Noncumulative Preferred Shares were entitled immediately prior to such event
under clause (x) of the preceding sentence will be adjusted by multiplying
such amount by a fraction, the numerator of which is the number of Common
Shares outstanding immediately after such event and the denominator of which
is the number of Common Shares that were outstanding immediately prior to
such event.
Neither the consolidation of nor merging of the Company with or
into any other corporation or corporations, nor the sale or other transfer of
all or substantially all of the assets of the Company, will be considered to
be a liquidation, dissolution or winding up of the Company within the meaning
of this paragraph (d).
(e) CONSOLIDATION, MERGER, ETC. If the Company shall enter
into any consolidation, merger, combination or other transaction in which the
Common Shares are exchanged for or changed into other shares, stock or
securities, cash or any other property, then in any such case the Series
1999-A Noncumulative Preferred Shares will at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount
of shares, stock, securities, or other property, as the case may be, into
which or for which each Common Share is changed or exchanged, plus accrued
and unpaid dividends, if any, payable with respect to the Series 1999-A
Noncumulative Preferred Shares. If the Company at any time after the Rights
Declaration Date (i) declares or pays any dividend on Common Shares payable
in Common Shares, or (ii) effects a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or
otherwise than by payment of a dividend in Common Shares) into a greater or
lesser number of Common Shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of Series
1999-A Noncumulative Preferred Shares will be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of Common Shares
outstanding immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to such event.
(f) REDEMPTION. The Series 1999-A Noncumulative Preferred
Shares are not redeemable, but the foregoing does not limit the ability of
the Company to purchase or otherwise deal in the Series 1999-A Noncumulative
Preferred Shares to the extent otherwise permitted hereby and by law.
(g) AMENDMENT. The Amended and Restated Articles of
Incorporation of the Company, as amended, may not be amended in any manner
that would materially alter or change the powers, preferences or special
rights of the Series 1999-A Noncumulative Preferred Shares so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding Series 1999-A Noncumulative Preferred Shares,
voting separately as a class.
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(h) FRACTIONAL SHARES. Series 1999-A Noncumulative Preferred
Shares may be issued in whole shares or in any fraction of a share that is
one one-thousandth (1/1,000th) of a share or any integral multiple of such
fraction, which will entitle the holder, in proportion to such holder's
fractional shares, to exercise voting rights, receive dividends, participate
in distributions and have the benefit of all other rights of holders of
Series 1999-A Noncumulative Preferred Shares. In lieu of fractional shares,
the Company may elect to make a cash payment as provided in that certain
Rights Agreement dated as of May 25, 1999, between the Company and National
City Bank, a national banking association, as rights agent, for fractions of
a share smaller than one one-thousandth (1/1,000th) of a share or any
integral multiple thereof.
IN WITNESS WHEREOF, we have executed this instrument in one or
more counterparts as of June 9, 1999.
BOYKIN LODGING COMPANY,
an Ohio corporation
/s/ Paul A. O'Neil
Paul A. O'Neil, Treasurer
/s/ Andrew A. Alexander
Andrew A. Alexander, Assistant Secretary
31