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EXHIBIT 4(A)
FORM OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
TAUBMAN CENTERS, INC.
[SET FORTH BELOW IS THE TEXT OF THE ARTICLES OF INCORPORATION OF TAUBMAN
CENTERS, INC., AS AMENDED THROUGH OCTOBER 3, 1997.]
ARTICLE I
Name
The name of the Corporation is: Taubman Centers, Inc.
ARTICLE II
Purpose
The purpose for which the Corporation is organized is to:
1. own, hold, develop and dispose of and invest in any type of
retail real property or mixed use real property having a
retail component of significant value in relation to the value
of the entire mixed use real property, including any entity
whose material assets include such real properties including,
but not limited to, partnership interests in The Taubman
Realty Group Limited Partnership, a Delaware limited
partnership, and any successor thereto ("TRG");
2. act as managing general partner of TRG;
3. at such time, if ever, as TRG distributes its assets to its
partners, own, hold, manage, develop and dispose of said
assets and in all other respects, carry on the business of
TRG;
4. qualify as a REIT (as hereinafter defined); and
5. engage in any other lawful act or activity for which
corporations may be organized under the Michigan Business
Corporation Act in addition to any of the foregoing purposes,
that is consistent with the Corporation's qualification as a
REIT.
ARTICLE III
Capital
1. Classes and Number of Shares.
The total number of shares of all classes of stock that the
Corporation shall have authority to issue is 300,000,000 shares. The classes
and the aggregate number of shares of stock of each class are as follows:
250,000,000 shares of Common Stock, par value $0.01 per share
(the "Common Stock"), which shall have the rights and limitations set
forth below.
50,000,000 shares of preferred stock (the "Preferred Stock"),
which may be issued in one or more series having such relative rights,
preferences, priorities, privileges, restrictions, and limitations as
the Board of Directors may determine from time to time.
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2. Certain Powers, Rights, and Limitations of Capital Stock.
(a) Common Stock. Subject to the rights, preferences, and
limitations that the Board of Directors designates with respect to any series
of Preferred Stock, a statement of certain powers, rights, and limitations of
the shares of the Common Stock is as follows:
(i) Dividend Rights. The holders of shares of the Common
Stock shall be entitled to receive such dividends as may be declared
by the Board of Directors of the Corporation with respect to the
Common Stock, subject to the preferential rights of any series of
Preferred Stock designated by the Corporation's Board of Directors.
(ii) Rights Upon Liquidation. Subject to the provisions
of Subsection (e) of this Section 2 of this Article III, 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 of the Common Stock shall be entitled to receive, ratably
with each other holder of shares of the Common Stock, that portion of
the assets of the Corporation available for distribution to its
holders of shares of Common Stock as the number of shares of the
Common Stock held by such holder bears to the total number of shares
of Common Stock (including shares of Common Stock that have become
Excess Stock) then outstanding.
(b) Voting Rights. Subject to the provisions of Subsection (e) of
this Section 2 of this Article III, the holders of shares of the Common Stock
shall be entitled to vote on all matters (for which a common shareholder shall
be entitled to vote thereon) at all meetings of the shareholders of the
Corporation, and shall be entitled to one vote for each share of the Common
Stock entitled to vote at such meeting. Any action to be taken by the
shareholders, other than the election of directors or adjourning a meeting,
including, but not limited to, the approval of an amendment to these Amended
and Restated Articles of Incorporation (other than an amendment by the Board of
Directors to establish the relative rights, preferences, priorities,
privileges, restrictions, and limitations of Preferred Stock as provided in
Subsection (c) of this Section 2 of this Article III, which amendment by the
Board of Directors shall require no action to be taken by the shareholders),
shall be authorized if approved by the affirmative vote of two-thirds of the
shares of Capital Stock entitled to vote thereon. Directors shall be elected
if approved by a plurality of the votes cast at an election.
(c) Preferred Stock. The Preferred Stock shall have such relative
rights, preferences, priorities, privileges, restrictions, and limitations as
the Board of Directors may determine from time to time by one or more
amendments to these Amended and Restated Articles of Incorporation.
(i) Series A Preferred Stock. Subject in all cases to
the other provisions of this Section 2 of this Article III, including,
without limitation, those provisions restricting the Beneficial
Ownership and Constructive Ownership of shares of Capital Stock and
those provisions with respect to Excess Stock, the following sets
forth the designation, preferences, limitations as to dividends,
voting and other rights, and the terms and conditions of redemption of
the Series A Preferred Stock (defined below) of the Corporation.
(a) There is hereby established a series of
Preferred Stock designated "8.30% Series A Cumulative
Redeemable Preferred Stock, par value $0.01 per share" (the
"Series A Preferred Stock"),which shall consist of 8,000,000
authorized shares.
(b) All shares of Series A Preferred Stock
redeemed, purchased, exchanged, or otherwise acquired by the
Corporation shall be restored to the status of authorized but
unissued shares of Preferred Stock.
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(c) The Series A Preferred Stock shall, with
respect to dividend rights, rights upon liquidation, winding
up or dissolution, and redemption rights, rank (i) junior to
any other series of Preferred Stock hereafter duly established
by the Board of Directors of the Corporation, the terms of
which specifically provide that such series shall rank prior
to the Series A Preferred Stock as to the payment of dividends
and distribution of assets upon liquidation (the "Senior
Preferred Stock"), (ii) pari passu with any other series of
Preferred Stock hereafter duly established by the Board of
Directors of the Corporation, the terms of which specifically
provide that such series shall rank pari passu with the Series
A Preferred Stock as to the payment of dividends and
distribution of assets upon liquidation (the "Parity Preferred
Stock"), and (iii) prior to any other class or series of
Capital Stock, including, without limitation, the Common Stock
of the Corporation, whether now existing or hereafter created
(collectively, the "Junior Stock").
(d) (1) Subject to the rights of any Senior
Preferred Stock, the holders of the then outstanding shares of
Series A Preferred Stock shall be entitled to receive, as and
when declared by the Board of Directors, out of funds legally
available for the payment of dividends, cumulative
preferential cash dividends at the annual rate of 8.30% of the
$25.00 per share liquidation preference (i.e., $2.075 per
annum per share). Such dividends shall accrue and be
cumulative from the date of original issue and shall be
payable in equal quarterly amounts in arrears on or before the
last day of each March, June, September, and December or, if
such day is not a business day, the next succeeding business
day (each, a "Dividend Payment Date") (for the purposes of
this Subparagraph (1) of this Paragraph (d), a "business day"
is any day, other than a Saturday, Sunday, or legal holiday,
on which banks in Detroit, Michigan, are open for business).
The first dividend, which shall be paid on December 31, 1997,
will be for less than a full quarter. All dividends on the
Series A Preferred Stock, including any dividend for any
partial dividend period, shall be computed on the basis of a
360-day year consisting of twelve 30-day months. Dividends
will be payable to holders of record as they appear in the
stock records of the Corporation at the close of business on
the applicable record date, which shall be the 15th day of the
calendar month in which the applicable Dividend Payment Date
falls or on such other date designed by the Board of Directors
of the Corporation for the payment of dividends that is not
more than 30 nor less than ten days prior to such Dividend
Payment Date (each, a "Dividend Record Date").
(2) No dividends on the Series A
Preferred Stock shall be declared by the Board of Directors or
paid or set apart for payment by the Corporation at such time
as any agreement of the Corporation, including any agreement
relating to its indebtedness, prohibits such declaration,
payment, or setting apart for payment or provides that such
declaration, payment, or setting apart for payment would
constitute a breach of, or a default under, such agreement or
if such declaration, payment, or setting aside shall be
restricted or prohibited by law.
(3) Dividends on the Series A Preferred
Stock shall accrue and be cumulative regardless of whether the
Corporation has earnings, regardless of whether there are
funds legally available for the payment of such dividends, and
regardless of whether such dividends are declared. Accrued
but unpaid dividends on the Series A Preferred Stock will
accumulate as of the Dividend Payment Date on which they first
become payable. Except as set forth below in this
Subparagraph (3), no dividends shall be declared or paid or
set apart for payment on any Common Stock or any other series
of Preferred Stock ranking, as to dividends, on a parity with
or junior to the Series A Preferred Stock (other
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than a dividend in shares of Junior Stock) for any
period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for such
payment on the Series A Preferred Stock for all past dividend
periods and the then current dividend period. When dividends
are not paid in full (and a sum sufficient for such full
payment is not so set apart) upon the Series A Preferred Stock
and the shares of any other series of Preferred Stock ranking
on a parity as to dividends with the Series A Preferred Stock,
all dividends declared upon the Series A Preferred Stock and
any other series of Preferred Stock ranking on a parity as to
dividends with the Series A Preferred Stock shall be declared
pro rata, so that the amount of dividends declared per share
of Series A Preferred Stock and such other series of Preferred
Stock shall in all cases bear to each other the same ratio
that accrued dividends per share on the Series A Preferred
Stock and such other series of Preferred Stock (which shall
not include any accrual in respect of unpaid dividends for
prior dividend periods if such Preferred Stock does not have a
cumulative dividend) bear to each other. No interest shall be
payable in respect of any dividend payment on the Series A
Preferred Stock that may be in arrears. Holders of shares of
the Series A Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property, or stock, in
excess of full cumulative dividends on the Series A Preferred
Stock as provided above. Any dividend payment made on shares
of the Series A Preferred Stock shall first be credited
against the earliest accumulated but unpaid dividend due with
respect to such shares that remains payable.
(4) Except as provided in Subparagraph
(3) of this Paragraph (d) of this Item (i) of this Subsection
(c) of this Section 2 of this Article III, unless full
cumulative dividends on the Series A Preferred Stock have been
or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof is set apart for
payment for all past dividend periods and the then current
dividend period: (i) no dividends (other than in shares of
Junior Stock) shall be declared or paid or set aside for
payment nor shall any other distribution be declared or made
upon the Common Stock (or any other Preferred Stock ranking
junior to or on a parity with the Series A Preferred Stock as
to dividends or upon liquidation); and (ii) no shares of
Common Stock (or any other Preferred Stock of the Corporation
ranking junior to or on a parity with the Series A Preferred
Stock as to dividends or upon liquidation) shall be redeemed,
purchased, or otherwise acquired for any consideration (nor
shall any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Corporation
(except by conversion into or exchange for Junior Stock).
(5) If for any taxable year the
Corporation elects to designate as "capital gains dividends"
(as defined in Section 857 of the Code) any portion (the
"Capital Gains Amount") of the dividends paid or made
available for the year to holders of all classes of Capital
Stock (the "Total Dividends"), then the portion of the Capital
Gains Amount that shall be allocable to the holders of Series
A Preferred Stock shall be the amount that the total dividends
paid or made available to the holders of the Series A
Preferred Stock for the year bears to the Total Dividends.
(e) Subject to the rights of any Senior Preferred
Stock, upon any voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the Corporation,
and before any distribution of assets shall be made in respect
of any Junior Stock, the holders of the Series A Preferred
Stock shall be entitled to be paid out of the assets of the
Corporation legally available for distribution to its
shareholders a liquidation preference of $25.00 per share in
cash (or property having a fair market value as determined by
the Board of Directors
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valued at $25.00 per share), plus an amount equal to
any accrued but unpaid dividends to the date of payment.
After payment of the full amount of the liquidating
distributions to which they are entitled, the holders of
Series A Preferred Stock shall have no right or claims to any
of the remaining assets of the Corporation. In the event
that, upon any such voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the Corporation,
the available assets of the Corporation are insufficient to
pay the amount of the liquidation distributions on all
outstanding shares of Series A Preferred Stock and the
corresponding amounts payable on all shares of Parity
Preferred Stock, then the holders of Series A Preferred Stock
and Parity Preferred Stock shall share ratably in any such
distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be respectively
entitled. Neither the consolidation or merger of the
Corporation with or into any other corporation, trust, or
entity (or of any other corporation with or into the
Corporation) nor the sale, lease, or conveyance of all or
substantially all of the property or business of the
Corporation shall be deemed to constitute a liquidation,
dissolution or winding up of the Corporation for the purpose
of this Paragraph (e) of this Item (i).
(f) (1) The Series A Preferred Stock is not
redeemable prior to October 3, 2002. On and after October 3,
2002, the Corporation, at its option upon not less than 30 nor
more than 60 days' written notice, may redeem shares of the
Series A Preferred Stock, in whole or in part, at any time and
from time to time, for a cash redemption price of $25.00 per
share, plus all accrued and unpaid dividends to the date fixed
for redemption (except as provided below).
(2) The redemption price of the Series A
Preferred Stock (other than the portion thereof consisting of
accrued but unpaid dividends) shall be payable solely out of
the sale proceeds of other "capital stock" of the Corporation.
For purposes of the preceding sentence, the term "capital
stock" means any equity securities of the Corporation
(including Common Stock and Preferred Stock), shares,
interest, participation, or other ownership interests (however
designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or
options to purchase any of the foregoing. Holders of Series A
Preferred Stock to be redeemed shall surrender such shares at
the place designated in the notice of redemption and shall be
entitled to the redemption price and any accrued and unpaid
dividends payable upon such redemption following such
surrender. If notice of redemption has been given and if the
Corporation has set aside in trust the funds necessary for the
redemption, then from and after the redemption date: (i)
dividends shall cease to accrue on such shares of Series A
Preferred Stock; (ii) such shares of Series A Preferred Stock
shall no longer be deemed outstanding; and (iii) all rights of
the holders of such shares shall terminate, except the right
to receive the redemption price. If less than all of the
outstanding Series A Preferred Stock is to be redeemed, the
Series A Preferred Stock to be redeemed shall be selected pro
rata (as nearly as may be practicable without creating
fractional shares) or by any other equitable method determined
by the Corporation.
(3) Unless full cumulative dividends on
all shares of Series A Preferred Stock shall have been or
contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment, no
shares of Series A Preferred Stock shall be redeemed unless
all outstanding shares of Series A Preferred Stock are
simultaneously redeemed, and the Corporation shall not
purchase or otherwise acquire directly or indirectly any
shares of Series A Preferred Stock (except by exchange for
Junior Stock); however, the foregoing shall not prevent the
purchase or acquisition of shares of Series A Preferred Stock
pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding shares of Series A
Preferred Stock.
(4) Notice of redemption shall be given
by publication in a newspaper of general circulation in The
City of New York, such publication to be made once a week for
two successive weeks commencing not less than 30 nor more than
60 days prior to the redemption date. A similar notice shall
be mailed by the Corporation, postage prepaid, not less than
30 nor more than 60
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days prior to the redemption date, addressed to the
respective holders of record of the Series A Preferred Stock
to be redeemed at their respective addresses as they appear on
the stock transfer records of the Corporation. No failure to
give or defect in such notice shall affect the validity of the
proceedings for the redemption of any shares of Series A
Preferred Stock except as to the holder to whom notice was
defective or not given. Each notice shall state: (i) the
redemption date; (ii) the redemption price; (iii) the number
of shares of Series A Preferred Stock to be redeemed; (iv) the
place or places where the Series A Preferred Stock is to be
surrendered for payment of the redemption price; and (v) that
dividends on the shares to be redeemed will cease to accrue on
such redemption date. If fewer than all shares of the Series
A Preferred Stock held by any holder are to be redeemed, the
notice mailed to such holder shall also specify the number of
shares of Series A Preferred Stock to be redeemed from such
holder.
(5) The holders of Series A Preferred
Stock at the close of business on a Dividend Record Date shall
be entitled to receive the dividend payable with respect to
such Series A Preferred Stock on the corresponding Dividend
Payment Date notwithstanding the redemption thereof between
such Dividend Record Date and the corresponding Dividend
Payment Date or the Corporation's default in the payment of
the dividend due. Except as provided above, the Corporation
will make no payment or allowance for unpaid dividends,
regardless of whether in arrears, on called Series A Preferred
Stock.
(6) The Series A Preferred Stock has no
stated maturity and shall not be subject to any sinking fund
or mandatory redemption. The Series A Preferred Stock is not
convertible into any other securities of the Corporation, but
is subject to the Excess Stock (and all other) provisions of
this Article III.
(g) (1) Except as may be required by law or
as otherwise expressly provided in this Item (i) of this
Subsection (c) of this Section 2 of this Article III, the
holders of Series A Preferred Stock shall not be entitled to
vote. On all matters with respect to which the Series A
Preferred Stock is entitled to vote, each share of Series A
Preferred Stock shall be entitled to one vote.
(2) Whenever dividends on the Series A
Preferred Stock are in arrears for six or more quarterly
periods, the number of directors then constituting the Board
of Directors shall be increased by two, and the holders of
Series A Preferred Stock (voting separately as a class with
all other series of Preferred Stock upon which like voting
rights have been conferred and are exercisable) ("Voting
Parity Preferred") shall have the right to elect two directors
of the Corporation at a special meeting called by the holders
of record of at least 10% of the Series A Preferred Stock or
at least 10% of any other Voting Parity Preferred so in
arrears (unless such request is received less than 90 days
before the date fixed for the next annual or special meeting
of the shareholders) or at the next annual meeting of
shareholders, and at each subsequent annual meeting, until all
dividends accumulated on the Series A Preferred Stock for the
past dividend periods and the then current dividend period
have been fully paid or declared and a sum sufficient for the
payment of such dividends has been set aside for payment. If
and when all accumulated dividends and the dividend for the
then current dividend period on the Series A Preferred Stock
shall have been paid in full or set aside for payment in full,
the holders of the Series A Preferred Stock shall be divested
of the foregoing voting rights, and if all accumulated
dividends and the dividend for the then current period have
been paid in full or set aside for payment in full on all
series of Voting Parity Preferred, the term of office of each
director so elected by the
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holders of the Series A Preferred Stock and the Voting
Parity Preferred shall terminate.
(3) As long as any shares of Series A
Preferred Stock remain outstanding, the Corporation shall not,
without the affirmative vote or consent of the holders of at
least two-thirds of the outstanding shares of Series A
Preferred Stock (voting as a separate class): (i) authorize or
create, or increase the authorized or issued amount of, any
Capital Stock ranking senior to the Series A Preferred Stock
with respect to the payment of dividends or the distribution
of assets upon liquidation, dissolution, or winding up or
reclassify any authorized Capital Stock of the Corporation
into such shares, or create, authorize, or issue any
obligation or security convertible into or evidencing the
right to purchase any such shares; or (ii) amend, alter, or
repeal the provisions of these Amended and Restated Articles
of Incorporation, whether by merger, consolidation, or
otherwise (an "Event"), so as to materially and adversely
affect any right, preference, privilege, or voting power of
the Series A Preferred Stock or the holders thereof; however,
as long as the Series A Preferred Stock remains outstanding
with its terms materially unchanged, taking into account that
upon the occurrence of an Event, the Corporation may not be
the surviving entity, the occurrence of an Event described in
clause (ii) above of this Subparagraph (3) shall not be deemed
to materially and adversely affect such rights, preferences,
privileges, or voting power of the holders of Series A
Preferred Stock, and (x) any increase in the amount of the
authorized Preferred Stock or the creation or issuance of any
other series of Preferred Stock, or (y) any increase in the
amount of authorized shares of the Series A Preferred Stock or
any other series of Preferred Stock, in each case ranking on a
parity with or junior to the Series A Preferred Stock with
respect to payment of dividends or the distribution of assets
upon liquidation, dissolution, or winding up, shall not be
deemed to materially and adversely affect such rights,
preferences, privileges, or voting powers.
(4) Notwithstanding the foregoing, the
Series A Preferred Stock shall not be entitled to vote, and
the foregoing voting provisions shall not apply, if at or
prior to the time when the act with respect to which such vote
would otherwise be required is effected, all outstanding
shares of the Series A Preferred Stock have been redeemed or
called for redemption, and sufficient funds have been
deposited in trust for the benefit of the holders of the
Series A Preferred Stock to effect such redemption.
(d) Restrictions on Transfer.
(i) Definitions. The following terms shall have the
following meanings for purposes of these Amended and Restated Articles
of Incorporation:
"Affiliate" and "Affiliates" mean, (i) with respect
to any individual, any member of such individual's Immediate Family, a
Family Trust with respect to such individual, and any Person (other
than an individual) in which such individual and/or his Affiliate(s)
owns, directly or indirectly, more than 50% of any class of Equity
Security or of the aggregate Beneficial Interest of all beneficial
owners, or in which such individual or his Affiliate is the sole
general partner, or is the sole managing general partner, or which is
controlled by such individual and/or his Affiliates; and (ii) with
respect to any Person (other than an individual), any Person (other
than an individual) which controls, is controlled by, or is under
common control with, such Person, and any individual who is the sole
general partner or the sole managing general partner in, or who
controls, such Person. The terms "Affiliated" and "Affiliated with"
shall have the correlative meanings.
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"Beneficial Interest" means an interest, whether as
partner, joint venturer, cestui que trust, or otherwise, a contract
right, or a legal or equitable position under or by which the
possessor participates in the economic or other results of the Person
(other than an individual) to which such interest, contract right, or
position relates.
"Beneficial Ownership" means ownership of shares of
Capital Stock (including Capital Stock that may be acquired upon
conversion of Debentures) (i) by a Person who owns such shares of
Capital Stock in his own name or is treated as an owner of such shares
of Capital Stock constructively through the application of Section 544
of the Code, as modified by Sections 856(h)(1)(B) and 856(h)(3)(A) of
the Code; or (ii) by a person who falls within the definition of
"Beneficial Owner" under Section 776(4) of the Act. The terms
"Beneficial Owner", "Beneficially Owns" and "Beneficially Owned" shall
have the correlative meanings.
"Capital Stock" means the Common Stock and the
Preferred Stock, including shares of Common Stock and Preferred Stock
that have become Excess Stock.
"Charitable Proceeds" means the amounts due from time
to time to the Designated Charity, consisting of (i) dividends or
other distributions, including capital gain distributions (but not
including liquidating distributions not otherwise within the
definition of Excess Liquidation Proceeds), paid with respect to
Excess Stock, (ii) in the case of a sale of Excess Stock, the excess,
if any, of the Net Sales Proceeds over the amount due to the Purported
Transferee as determined under Item (iii)(b) of Subsection (e) of this
Section 2 of this Article III, and (iii) in the case of any voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation, the Excess Liquidation Proceeds.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Constructive Ownership" means ownership of shares of
Capital Stock (including Capital Stock that may be acquired upon
conversion of Debentures) by a Person who owns such shares of Capital
Stock in his own name or would be treated as an owner of such shares
of Capital Stock constructively through the application of Section 318
of the Code, as modified by Section 856 (d)(5) of the Code. The terms
"Constructive Owner", "Constructively Owns" and "Constructively Owned"
shall have the correlative meanings.
"Control(s)" (and its correlative terms "Controlled
By" and "Under Common Control With") means, with respect to any Person
(other than an individual), possession by the applicable Person or
Persons of the power, acting alone (or solely among such applicable
Person or Persons, acting together), to designate and direct or cause
the designation and direction of the management and policies thereof,
whether through the ownership of voting securities, by contract, or
otherwise.
"Debentures" means any convertible debentures or
other convertible debt securities issued by the Corporation from time
to time.
"Demand" means the written notice to the Purported
Transferee demanding delivery to the Designated Agent of (i) all
certificates or other evidence of ownership of shares of Excess Stock
and (ii) Excess Share Distributions. Any reference to "the date of
the Demand" means the date upon which the Demand is mailed or
otherwise transmitted by the Corporation.
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"Designated Agent" means the agent designated by the
Board of Directors, from time to time, to act as attorney-in-fact for
the Designated Charity and to take delivery of certificates or other
evidence of ownership of shares of Excess Stock and Excess Share
Distributions from a Purported Transferee.
"Designated Charity" means any one or more
organizations described in Sections 501(c)(3) and 170(c) of the Code,
as may be designated by the Board of Directors from time to time to
receive any Charitable Proceeds.
"Equity Security" has the meaning ascribed to it in
the Securities Exchange Act of 1934, as amended from time to time, and
the rules and regulations thereunder (and any successor laws, rules
and regulations of similar import).
"Excess Liquidation Proceeds" means, with respect to
shares of Excess Stock, the excess, if any, of (i) the amount which
would have been due to the Purported Transferee pursuant to Subsection
(a)(ii) of this Section 2 of this Article III with respect to such
stock in the case of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation if the Transfer had been
valid under Item (ii) of this Subsection (d) of this Section 2 of this
Article III, over (ii) the amount due to the Purported Transferee as
determined under Item (iii)(b)(2) of Subsection (e) of this Section 2
of this Article III.
"Excess Share Distributions" means dividends or other
distributions, including, without limitation, capital gain
distributions and liquidating distributions, paid with respect to
shares of Excess Stock.
"Excess Stock" means shares of Common Stock and
shares of Preferred Stock that have been automatically converted to
Excess Stock pursuant to the provisions of Item (iii) of this
Subsection (d) of this Section 2 of this Article III, and which are
subject to the provisions of Subsection (e) of this Section 2 of this
Article III.
"Existing Holder" means (i) the General Motors
Hourly-Rate Employes Pension Trust, (ii) the General Motors Salaried
Employes Pension Trust (such trusts referred to in (i) or (ii) are
hereinafter referred to as "GMPTS"), (iii) the AT&T Master Pension
Trust, (iv) any nominee of the foregoing, and (v) any Person to whom
an Existing Holder transfers Beneficial Interest of Regular Capital
Stock if (x) the result of such transfer would be to cause the
transferee to Beneficially Own shares of Regular Capital Stock in
excess of the greater of the Ownership Limit or any pre-existing
Existing Holder Limit with respect to such transferee (such excess
being herein referred to as the "Excess Amount") and (y) the
transferor Existing Holder, by notice to the Corporation in connection
with such transfer, designates such transferee as a successor Existing
Holder (it being understood that, upon any such transfer, the Existing
Holder Limit for the transferor Existing Holder shall be reduced by
the Excess Amount and the then applicable Ownership Limit or Existing
Holder Limit for the transferee Existing Holder shall be increased by
such Excess Amount).
"Existing Holder Limit" (i) for any Existing Holder
who is an Existing Holder by virtue of Clauses (i) and (ii) of the
definition thereof means the greater of (x) 9.9% of the outstanding
Capital Stock, reduced (but not below the Ownership Limit) by any
Excess Amount transferred in accordance with clause (v) of the
definition of Existing Holder and (y) 4,365,713 shares of Regular
Capital Stock (as adjusted to reflect any increase in the number of
outstanding shares as the result of a stock dividend or any increase
or decrease in the number of outstanding shares resulting from a stock
split or reverse stock split), reduced (but not below the Ownership
Limit) by any Excess Amount transferred in accordance with clause (v)
of the definition of Existing Holder, (ii) for any Existing Holder who
is an Existing Holder by virtue of
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Clause (iii) of the definition thereof means the greater of (x) 13.74%
of the outstanding Capital Stock, reduced (but not below the
Ownership Limit) by any Excess Amount transferred in accordance with
clause (v) of the definition of Existing Holder and (y) 6,059,080
shares of Regular Capital Stock (as adjusted to reflect any increase
in the number of outstanding shares as the result of a stock dividend
or any increase or decrease in the number of outstanding shares
resulting from a stock split or reverse stock split), reduced (but not
below the Ownership Limit) by any Excess Amount transferred in
accordance with Clause (v) of the definition of Existing Holder, (iii)
for any Existing Holder who is an Existing Holder by virtue of Clause
(iv) of the definition thereof means the percentage of the outstanding
Capital Stock or the number of shares of the outstanding Regular
Capital Stock that the Beneficial Owner for whom the Existing Holder
is acting as nominee is permitted to own under this definition, and
(iv) for any Existing Holder who is an Existing Holder by virtue of
Clause (v) of the definition thereof means the greater of (x) a
percentage of the outstanding Capital Stock equal to the Ownership
Limit or pre-existing Existing Holder Limit applicable to such Person
plus the Excess Amount transferred to such Person pursuant to clause
(v) of the definition of Existing Holder and (y) the number of shares
of outstanding Regular Capital Stock equal to the Ownership Limit or
pre-existing Existing Holder Limit applicable to such Person plus the
Excess Amount transferred to such Person pursuant to clause (v) of the
definition of Existing Holder.
"Family Trust" means, with respect to an individual,
a trust for the benefit of such individual or for the benefit of any
member or members of such individual's Immediate Family or for the
benefit of such individual and any member or members of such
individual's Immediate Family (for the purpose of determining whether
or not a trust is a Family Trust, the fact that one or more of the
beneficiaries (but not the sole beneficiary) of the trust includes a
Person or Persons, other than a member of such individual's Immediate
Family, entitled to a distribution after the death of the settlor if
he, she, it, or they shall have survived the settlor of such trust
and/or includes an organization or organizations exempt from federal
income taxes pursuant to the provisions of Section 501(a) of the Code
and described in Section 501(c)(3) of the Code, shall be disregarded);
provided, however, that in respect of transfers by way of testamentary
or inter vivos trust, the trustee or trustees shall be solely such
individual, a member or members of such individual's Immediate Family,
a responsible financial institution and/or an attorney that is a
member of the bar of any state in the United States.
"Immediate Family" means, with respect to a Person,
(i) such Person's spouse (former or then current), (ii) such Person's
parents and grandparents, and (iii) ascendants and descendants
(natural or adoptive, of the whole or half blood) of such Person's
parents or of the parents of such Person's spouse (former or then
current).
"Look Through Entity" means any Person that (i) is
not an individual or an organization described in Sections 401(a),
501(c)(17), or 509(a) of the Code or a portion of a trust permanently
set aside or to be used exclusively for the purposes described in
Section 642(c) of the Code or a corresponding provision of a prior
income tax law, and (ii) provides the Corporation with (a) a written
affirmation and undertaking, subject only to such exceptions as are
acceptable to the Corporation in its sole discretion, that (x) it is
not an organization described in Sections 401(a), 501(c)(17) or 509(a)
of the Code or a portion of a trust permanently set aside or to be
used exclusively for the purposes described in Section 642(c) of the
Code or a corresponding provision of a prior income tax law, (y) after
the application of the rules for determining stock ownership, as set
forth in Section 544(a) of the Code, as modified by Sections
856(h)(1)(B) and 856(h)(3)(A) of the Code, no "individual" would own,
Beneficially or Constructively, more than the then- applicable
Ownership Limit, taking into account solely for the purpose of
determining such "individual's" ownership for the purposes of this
clause (y) (but not for determining whether such "individual"
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is in compliance with the Ownership Limit for any other purpose) only
such "individual's" Beneficial and Constructive Ownership derived
solely from such Person and (z) it does not Constructively Own
10% or more of the equity of any tenant with respect to real property
from which the Corporation or TRG receives or accrues any rent from
real property, and (b) such other information regarding the Person
that is relevant to the Corporation's qualifications to be taxed as a
REIT as the Corporation may reasonably request.
"Market Price" means, with respect to any class or
series of shares of Regular Capital Stock, the last reported sales
price of such class or series of shares reported on the New York Stock
Exchange on the trading day immediately preceding the relevant date,
or if such class or series of shares of Regular Capital Stock is not
then traded on the New York Stock Exchange, the last reported sales
price of such class or series of shares on the trading day immediately
preceding the relevant date as reported on any exchange or quotation
system over which such class or series of shares may be traded, or if
such class or series of shares of Regular Capital Stock is not then
traded over any exchange or quotation system, then the market price of
such class or series of shares on the relevant date as determined in
good faith by the Board of Directors of the Corporation.
"Net Sales Proceeds" means the gross proceeds
received by the Designated Agent upon a sale of Regular Capital Stock
that has become Excess Stock, reduced by (i) all expenses (including,
without limitation, any legal expenses or fees) incurred by the
Designated Agent in obtaining possession of (x) the certificates or
other evidence of ownership of the Regular Capital Stock that had
become Excess Stock and (y) any Excess Share Distributions, and (ii)
any expenses incurred in selling or transferring such shares
(including, without limitation, any brokerage fees, commissions, stock
transfer taxes or other transfer fees or expenses).
"Ownership Limit" means 8.23% of the value of the
outstanding Capital Stock of the Corporation.
"Person" means (a) an individual, corporation,
partnership, estate, trust (including a trust qualified under Section
401(a) or 501(c)(17) of the Code), a portion of a trust permanently
set aside for or to be used exclusively for the purposes described in
Section 642(c) of the Code, association, private foundation within the
meaning of Section 509(a) of the Code, joint stock company or other
entity and (b) also includes a group as that term is used for purposes
of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations thereunder (and any
successor laws, rules and regulations of similar import).
"Purported Transferee" means, with respect to any
purported Transfer which results in Excess Stock, the purported
beneficial transferee for whom the shares of Regular Capital Stock
would have been acquired if such Transfer had been valid under Item
(ii) of this Subsection (d) of this Section 2 of this Article III.
"Regular Capital Stock" means shares of Common Stock
and Preferred Stock that are not Excess Stock.
"REIT" means a Real Estate Investment Trust defined
in Section 856 of the Code.
"Transfer" means any sale, transfer, gift,
assignment, devise or other disposition of Capital Stock, (including
(i) the granting of any option or entering into any agreement for the
sale, transfer or other disposition of Capital Stock or (ii) the sale,
transfer, assignment or other disposition of any securities or rights
convertible
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into or for Capital Stock), whether voluntary or involuntary,
whether of record or beneficial ownership, and whether by operation of
law or otherwise.
(ii) Restriction on Transfers.
(a) Except as provided in Item (viii) of this
Subsection (d) of this Section 2 of this Article III, no
Person (other than an Existing Holder) shall Beneficially Own
or Constructively Own shares of Capital Stock having an
aggregate value in excess of the Ownership Limit, and No
Existing Holder shall Beneficially Own or Constructively Own
shares of Capital Stock in excess of the Existing Holder Limit
for such Existing Holder.
(b) Except as provided in Item (viii) of this
Subsection (d) of this Section 2 of this Article III, any
Transfer that, if effective, would result in any Person (other
than an Existing Holder) Beneficially Owning or Constructively
Owning shares of Regular Capital Stock having an aggregate
value in excess of the Ownership Limit shall be void ab initio
as to the Transfer of such shares which would be otherwise
Beneficially Owned or Constructively Owned by such Person in
excess of the Ownership Limit, and the intended transferee
shall acquire no rights in such shares.
(c) Except as provided in Item (viii) of this
Subsection (d) of this Section 2 of this Article III, any
Transfer that, if effective, would result in any Existing
Holder Beneficially Owning or Constructively Owning shares of
Regular Capital Stock in excess of the applicable Existing
Holder Limit shall be void ab initio as to the Transfer of
such shares which would be otherwise Beneficially Owned or
Constructively Owned by such Existing Holder in excess of the
applicable Existing Holder Limit, and such Existing Holder
shall acquire no rights in such shares.
(d) Except as provided in Item (viii) of this
Subsection (d) of this Section 2 of this Article III, any
Transfer that, if effective, would result in the Capital Stock
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 of such shares which would be
otherwise beneficially owned by the transferee, and the
intended transferee shall acquire no rights in such shares.
(e) Any Transfer that, if effective, would result
in the Corporation being "closely held" within the meaning of
Section 856(h) of the Code shall be void ab initio as to the
Transfer of the shares of Regular Capital Stock which would
cause the Corporation to be "closely held" within the meaning
of Section 856(h) of the Code, and the intended transferee
shall acquire no rights in such shares.
(f) In determining the shares which any Person
Beneficially Owns (or would Beneficially Own following a
purported Transfer) or Constructively Owns (or would
Constructively Own following a purported Transfer) for
purposes of applying the limitations contained in Paragraphs
(a), (b), (c), (d) and (e) of this Item (ii) of this
Subsection (d) of this Article III:
(1) shares of Capital Stock that may be
acquired upon conversion of Debentures Beneficially Owned or
Constructively Owned by such Person, but not shares of Capital
Stock issuable upon conversion of Debentures held by others,
are deemed to be outstanding.
(2) a pension trust shall be treated as
owning all shares of Capital Stock (including Capital Stock
that may be acquired upon conversion of
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Debentures) as are (x) owned in its own name or with
respect to which it is treated as an owner constructively
through the application of Section 544 of the Code as modified
by Section 856(h)(1)(B) of the Code but not by Section
856(h)(3)(A) of the Code and (y) owned by, or treated as owned
by, constructively through the application of Section 544 of
the Code as modified by Section 856(h)(1)(B) of the Code but
not by Section 856(h)(3)(A) of the Code, all pension trusts
sponsored by the same employer as such pension trust or
sponsored by any of such employer's Affiliates.
Notwithstanding the foregoing, (y) above shall not apply in
the case of either Motors Insurance Corporation and its
subsidiaries (collectively, "MIC") or any pension trusts
sponsored by the General Motors Corporation, a Delaware
corporation ("GMC"), or the American Telephone and Telegraph
Company, a New York corporation ("AT&T"), or by any of their
respective Affiliates, provided that with respect to MIC and
each such pension trust sponsored by GMC, AT&T or any of their
respective Affiliates, other than the Existing Holders
described in (i) through (iii) in the definition thereof, all
of the following conditions are met: (i) each such pension
trust is administered, and will continue to be administered,
by persons who do not serve in an administrative or other
capacity to any other such pension trust sponsored by GMC or
any Affiliate of GMC or AT&T or any Affiliate of AT&T, as
applicable, including the Existing Holders described in (i)
through (iv) in the definition thereof, (it being understood
that the fact that any two such pension trusts may have in
common one or more, but less than a majority, of the persons
having ultimate investment authority for such pension trusts
shall not cause such trusts to be treated as one Person,
provided that they are otherwise separately administered as
hereinbefore described), (ii) day to day investment decisions
with respect to MIC are made by a person or persons different
than the person or persons who make such decisions for the
pension trusts sponsored by GMC or its affiliates, including
the Existing Holders described in (i), (ii) and, in respect of
(i) and (ii), item (iv) in the definition thereof, (although
MIC and the pension trusts sponsored by GMC may have in common
the person or persons with ultimate investment authority for
such entities), and the investment of MIC in the Corporation
does not exceed 2% of the value of the outstanding Capital
Stock of the Corporation, (iii) neither MIC nor any such
pension trust acts or will act, in concert with MIC, any other
pension trust sponsored by GMC or any Affiliate of GMC or AT&T
or any Affiliate of AT&T, as applicable, including the
Existing Holders described in (i) through (iv) in the
definition thereof, with respect to its investment in the
Corporation, and (iv) as from time to time requested by the
Corporation, MIC and each pension trust shall provide the
Corporation with a representation and undertaking in writing
to the foregoing effect.
(3) If there are two or more classes of
stock then outstanding, the total value of the outstanding
Capital Stock shall be allocated among the different classes
and series according to the relative value of each class or
series, as determined by reference to the Market Price per
share of each such class or series, using the date on which
the Transfer occurs as the relevant date, or the effective
date of the change in capital structure as the relevant date,
as appropriate.
(g) If any shares are transferred resulting in a
violation of the Ownership Limit or Paragraphs (b), (c), (d)
or (e) of this Item (ii) of this Subsection (d) of this
Section 2 of this Article III, such Transfer shall be valid
only with respect to such amount of shares transferred as does
not result in a violation of such limitations, and such
Transfer otherwise shall be null and void ab initio.
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(iii) Conversion to Excess Stock.
(a) If, notwithstanding the other provisions
contained in this Article III, at any time there is a
purported Transfer or other change in the capital structure of
the Corporation such that any Person (other than an Existing
Holder) would Beneficially Own or any Person (other than an
Existing Holder) would Constructively Own shares of Regular
Capital Stock in excess of the Ownership Limit, or that any
Person who is an Existing Holder would Beneficially Own or any
Person who is an Existing Holder would Constructively Own
shares of Regular Capital Stock in excess of the Existing
Holder Limit, then, except as otherwise provided in Item
(viii) of this Subsection (d) of this Section 2 of this
Article III, such shares of Common Stock or Preferred Stock,
or both, in excess of the Ownership Limit or Existing Holder
Limit, as the case may be, (rounded up to the nearest whole
share) shall automatically become Excess Stock. Such
conversion shall be effective as of the close of business on
the business day prior to the date of the Transfer or change
in capital structure.
(b) If, notwithstanding the other provisions
contained in this Article III, at any time, there is a
purported Transfer or other change in the capital structure of
the Corporation which, if effective, would cause the
Corporation to become "closely held" within the meaning of
Section 856(h) of the Code then the shares of Common Stock or
Preferred Stock, or both, being Transferred which would cause
the Corporation to be "closely held" within the meaning of
Section 856(h) of the Code or held by a Person in excess of
that Person's Ownership Limit or Existing Holder Limit, as
applicable (rounded up to the nearest whole share) shall
automatically become Excess Stock. Such conversion shall be
effective as of the close of business on the business day
prior to the date of the Transfer or change in capital
structure.
(c) Shares of Excess Stock shall be issued and
outstanding stock of the Corporation. The Purported
Transferee shall have no rights in such shares of Excess Stock
except as provided in Subsection (e) of this Section 2 of this
Article III.
(iv) Notice of Restricted Transfer. Any Person who
acquires or attempts to acquire shares in violation of Item (ii) of
this Subsection (d) of this Section 2 of this Article III, or any
Person who is a transferee such that Excess Stock results under Item
(iii) of this Subsection (d) of this Section 2 of this Article III,
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 regarding such Person's ownership of Capital
Stock.
(v) Owners Required to Provide Information.
(a) Every Beneficial Owner of more than 5% (or
such other percentage, as provided in the applicable
regulations adopted under Sections 856 through 859 of the
Code) of the outstanding shares of the Capital Stock of the
Corporation shall, within 30 days after January 1 of each
year, give written notice to the Corporation stating the name
and address of such Beneficial Owner, the number of shares
Beneficially Owned and Constructively Owned, and a full
description of how such shares are held. Every Beneficial
Owner shall, upon demand by the Corporation, disclose to the
Corporation in writing such additional information with
respect to the Beneficial Ownership and Constructive Ownership
of the Capital Stock as the Board of Directors deems
appropriate or necessary (i) to comply with the provisions of
the Code,
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regarding the qualification of the Corporation as a
REIT under the Code, and (ii) to ensure compliance with the
Ownership Limit or the Existing Holder Limit.
(b) Any Person who is a Beneficial Owner or
Constructive Owner of shares of Capital Stock and any Person
(including the shareholder of record) who is holding Capital
Stock for a Beneficial Owner or Constructive Owner, and any
proposed transferee of shares, upon the determination by the
Board of Directors to be reasonably necessary to protect the
status of the Corporation as a REIT under the Code, shall
provide a statement or affidavit to the Corporation, setting
forth the number of shares of Capital Stock already
Beneficially Owned or Constructively Owned by such shareholder
or proposed transferee and any related person specified, which
statement or affidavit shall be in the form prescribed by the
Corporation for that purpose.
(vi) Remedies Not Limited. Subject to Subsection (h) of
this Section 2 of this Article III, nothing contained in this Article
III shall limit the authority of the Board of Directors to take such
other action as it deems necessary or advisable (i) to protect the
Corporation and the interests of its shareholders in the preservation
of the Corporation's status as a REIT, and (ii) to insure compliance
with the Ownership Limit and the Existing Holder Limit.
(vii) Determination. Any question regarding the
application of any of the provisions of this Subsection (d) of this
Section 2 of this Article III, including any definition contained in
Item (i) of this Subsection (d) of this Section 2 of this Article III,
shall be determined or resolved by the Board of Directors and any such
determination or resolution shall be final and binding on the
Corporation, its shareholders, and all parties in interest.
(viii) Exceptions. The Board of Directors, upon advice from,
or an opinion from, Counsel, may exempt a Person from the Ownership
Limit if such Person is a Look Through Entity, provided, however, in
no event may any such exception cause such Person's ownership, direct
or indirect (without taking into account such Person's ownership of
interests in TRG), to exceed 9.9% of the value of the outstanding
Capital Stock.
For a period of 90 days following the purchase of
Regular Capital Stock by an underwriter that (i) is a Look
Through Entity and (ii) participates in a public offering of
the Regular Capital Stock, such underwriter shall not be
subject to the Ownership Limit with respect to the Regular
Capital Stock purchased by it as a part of such public
offering.
(e) Excess Stock.
(i) Surrender of Excess Stock to Designated Agent.
Within thirty business days of the date upon which the Corporation
determines that shares have become Excess Stock, the Corporation, by
written notice to the Purported Transferee, shall demand that any
certificate or other evidence of ownership of the shares of Excess
Stock be immediately surrendered to the Designated Agent (the
"Demand").
(ii) Excess Share Distributions. The Designated Agent
shall be entitled to receive all Excess Share Distributions. The
Purported Transferee of Regular Capital Stock that has become Excess
Stock shall not be entitled to any dividends or other distributions,
including, without limitation, capital gain distributions, with
respect to the Excess Stock. Any Excess Share Distributions paid to a
Purported Transferee shall be remitted to the Designated Agent within
thirty business days after the date of the Demand.
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(iii) Restrictions on Transfer; Sale of Excess Stock.
(a) Excess Stock shall be transferable by the
Designated Agent as attorney-in-fact for the Designated
Charity. Excess Stock shall not be transferable by the
Purported Transferee.
(b) Upon delivery of the certificates or other
evidence of ownership of the shares of Excess Stock to the
Designated Agent, the Designated Agent shall immediately sell
such shares in an arms-length transaction (over the New York
Stock Exchange or such other exchange over which the shares of
the applicable class or series of Regular Capital Stock may
then be traded, if practicable), and the Purported Transferee
shall receive from the Net Sales Proceeds, the lesser of:
(1) the Net Sales Proceeds; or
(2) the price per share that such
Purported Transferee paid for the Regular Capital Stock in the
purported Transfer that resulted in the Excess Stock, or if
the Purported Transferee did not give value for such shares
(because the Transfer was, for example, through a gift, devise
or other transaction), a price per share equal to the Market
Price determined using the date of the purported Transfer that
resulted in the Excess Stock as the relevant date.
(c) If some or all of the shares of Excess Stock
have been sold prior to receiving the Demand, such sale shall
be deemed to been made for the benefit of and as the agent for
the Designated Charity. The Purported Transferee shall pay to
the Designated Agent, within thirty business days of the date
of the Demand, the entire gross proceeds realized upon such
sale. Notwithstanding the preceding sentence, the Designated
Agent may grant written permission to the Purported Transferee
to retain an amount from the gross proceeds equal to the
amount the Purported Transferee would have been entitled to
receive had the Designated Agent sold the shares as provided
in Item (iii)(b) of this Subsection (e) of this Section 2 of
this Article III.
(d) The Designated Agent shall promptly pay to
the Designated Charity any Excess Share Distributions
recovered by the Designated Agent and the excess, if any, of
the Net Sales Proceeds over the amount due to the Purported
Transferee as provided in Item (iii)(b) of this Subsection (e)
of this Section 2 of this Article III.
(iv) Voting Rights. The Designated Agent shall have the
exclusive right to vote all shares of Excess Stock as the
attorney-in-fact for the Designated Charity. The Purported Transferee
shall not be entitled to vote such shares (except as required by
applicable law). Notwithstanding the foregoing, votes erroneously
cast by a Prohibited Transferee shall not be invalidated in the event
that the Corporation has already taken irreversible corporate action
to effect a reorganization, merger, sale or dissolution of the
Corporation.
(v) 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, a Purported
Transferee shall be entitled to receive the lesser of (i) that amount
which would have been due to such Purported Transferee had the
Designated Agent sold the shares of Excess Stock as provided in Item
(iii)(b) of this Subsection (e) of this Section 2 of this Article III
and (ii) that amount which would have been due to the Purported
Transferee if the Transfer had been valid under Item (ii) of
Subsection (d) of this Section 2 of this Article III, determined (A)
in the case of Common Stock,
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pursuant to Subsection (a)(ii) of this Section 2 of this
Article III, and (B) in the case of Preferred Stock, pursuant to the
provisions of these Amended and Restated Articles of Incorporation,
amended as authorized by Section 1 of this Article III, which sets
forth the liquidation rights of such class or series of Preferred
Stock. With respect to shares of Excess Stock, a Purported Transferee
shall not have any rights to share in the assets of the Corporation
upon the liquidation, dissolution or winding up of the Corporation
other than the right to receive the amount determined in the preceding
sentence and shall not be entitled to any preference or priority (as a
creditor of the Corporation) over the holders of the shares of Regular
Capital Stock. Any Excess Liquidation Proceeds shall be paid to the
Designated Charity.
(vi) Action by Corporation to Enforce Transfer
Restrictions. If the Purported Transferee fails to deliver the
certificates or other evidence of ownership and all Excess Share
Distributions to the Designated Agent within thirty business days of
the date of Demand, the Corporation shall take such legal action to
enforce the provisions of this Article III as may be permitted under
applicable law.
(f) Legend. Each certificate for Capital Stock shall bear the
following legend:
"The Amended and Restated Articles of Incorporation, as the
same may be amended (the "Articles"), impose certain
restrictions on the transfer and ownership of the shares
represented by this Certificate based upon the percentage of
the outstanding shares owned by the shareholder. At no
charge, any shareholder may receive a written statement of the
restrictions on transfer and ownership that are imposed by the
Articles."
(g) Severability. If any provision of this Article III or any
application of any such provision is determined to be invalid by any Federal or
state court having jurisdiction over the issues, the validity of the remaining
provisions shall not be affected and other applications of such provision shall
be affected only to the extent necessary to comply with the determination of
such court.
(h) New York Stock Exchange Settlement. Nothing contained 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 or of any other stock exchange on which shares of the
Common Stock or class or series of Preferred Stock may be listed, or of the
Nasdaq National Market (if the shares are quoted on such Market) and which has
conditioned such listing or quotation on the inclusion in the Corporation's
Amended and Restated Articles of Incorporation of a provision such as this
Subsection (h). The fact that the settlement of any transaction is permitted
shall not negate the effect of any other provision of this Article III and any
transferee in such a transaction shall be subject to all of the provisions and
limitations set forth in this Article III.
ARTICLE IV
Registered Office and Registered Agent
1. Registered Office.
The address and mailing address of the registered office of the
Corporation is 500 North Woodward Avenue, Suite 100, Bloomfield Hills, Michigan
48304.
2. Resident Agent.
The resident agent for service of process on the Corporation at
the registered office is Jeffrey H. Miro.
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ARTICLE V
Plan of Compromise or Reorganization
When a compromise or arrangement or a plan of reorganization of the
Corporation is proposed between the Corporation and its creditors or any class
of them or between the Corporation and its shareholders or any class of them, a
court of equity jurisdiction within the State of Michigan, on application of
the Corporation or of a creditor or shareholder thereof, or on application of a
receiver appointed for the Corporation, may order a meeting of the creditors or
class of creditors or of the shareholders or class of shareholders to be
affected by the proposed compromise or arrangement or reorganization, to be
summoned in such manner as the court directs. If a majority in number
representing 75% in value of the creditors or class of creditors, or of the
shareholders or class of shareholders to be affected by the proposed compromise
or arrangement or a reorganization, agree to a compromise or arrangement or a
reorganization of the Corporation as a consequence of the compromise or
arrangement, the compromise or arrangement and the reorganization, if
sanctioned by the court to which the application has been made, shall be
binding on all the creditors or class of creditors, or on all the shareholders
or class of shareholders and also on the Corporation.
ARTICLE VI
Directors
For so long as the Corporation has the right to designate, pursuant to
The Amended and Restated Agreement of Limited Partnership of TRG (as the same
may be amended, the "Partnership Agreement"), members of the committee of TRG
that have the power to approve or propose all actions, decisions,
determinations, designations, delegations, directions, appointments, consents,
approvals, selections, and the like to be taken, made or given, with respect to
TRG, its business and its properties as well as the management of all affairs
of TRG (the "Partnership Committee"), the Board of Directors shall consist of,
except during the period of any vacancy between annual meetings of the
shareholders, that number of members as are set forth in the By-Laws of the
Corporation of which, except during the period of any vacancy between annual
meetings of the shareholders, not less than 40% (rounded up to the next whole
number) of the members shall be Independent Directors (as hereinafter defined),
and, thereafter, the Board of Directors shall consist of, except during the
period of any vacancy between annual meetings of the shareholders, that number
of members as are set forth in the By-Laws of the Corporation. For purposes of
this Article VI, "Independent Director" shall mean an individual who is neither
one of the following named persons nor an employee, beneficiary, principal,
director, officer or agent of, or a general partner in, or limited partner
(owning in excess of 5% of the Beneficial Interest) or shareholder (owning in
excess of 5% of the Beneficial Interest) in, any such named Person: (i) for so
long as TG Partners Limited Partnership, a Delaware limited partnership, has
the right to appoint one or more Partnership Committee members, A. Alfred
Taubman and any Affiliate of A. Alfred Taubman or any member of his Immediate
Family, (ii) for so long as Taub-Co Management, Inc., a Michigan corporation
(formerly The Taubman Company, Inc. ("T-Co")) has the right to appoint one or
more Partnership Committee members, T-Co or an Affiliate of T-Co, (iii) for so
long as a Taubman Transferee (as hereinafter defined) has the right to appoint
one or more Partnership Committee members, a Taubman Transferee, or an
Affiliate of such Taubman Transferee, (iv) for so long as GMPTS has the right
to appoint one or more Partnership Committee members, GMPTS, General Motors
Corporation, or an Affiliate of GMPTS or of General Motors Corporation, and (v)
for so long as a GMPTS Transferee (as hereinafter defined) has the right to
appoint one or more Partnership Committee members, a GMPTS Transferee or an
Affiliate of such GMPTS Transferee. "Taubman Transferee" means a single Person
that acquires, pursuant to Section 8.1(b) or Section 8.3(a) of The Partnership
Agreement, or upon the foreclosure or like action in respect of a pledge of a
partnership interest in TRG, the then (i.e., at the time of such acquisition)
entire partnership interest in TRG (excluding, in the case of an acquisition
pursuant to Section 8.3(a) of the Partnership Agreement or pursuant to a
foreclosure or like action in respect of a pledge of a partnership interest in
TRG, the ability of such Person to act as a substitute partner) of A. Alfred
Taubman, and any Affiliate of A.
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Alfred Taubman or any member of his Immediate Family, from one or more such
persons or from any Taubman Transferee; provided that the percentage interest
in TRG being transferred exceeds 7.7%. "GMPTS Transferee" means a single
Person that acquires, pursuant to Section 8.1(b) or Section 8.3(a) of the
Partnership Agreement, or upon the foreclosure or like action in respect of a
pledge of a partnership interest in TRG, the then (i.e., at the time of such
acquisition) entire such partnership interest in TRG (excluding, in the case of
an acquisition pursuant to Section 8.3(a) of the Partnership Agreement or
pursuant to a foreclosure or like action in respect of a pledge of partnership
interests in TRG, the ability of such Person to act as a substitute partner) of
GMPTS or of any GMPTS Transferee; provided that the percentage interest in TRG
being transferred exceeds 7.7%.
For so long as the Corporation has the right to designate, pursuant to
the Partnership Agreement, any members of the Partnership Committee, the
affirmative vote of both a majority of the Independent Directors who do not
have a beneficial financial interest in the action before the Board of
Directors and a majority of all members of the Board of Directors who do not
have a beneficial financial interest in the action before the Board of
Directors is required for the approval of all actions to be taken by the Board
of Directors; provided, however, the Corporation may not appoint to the
Partnership Committee as a Corporation appointee an individual who does not
satisfy the definition of Independent Director in one or more respects without
the affirmative vote of all of the Independent Directors then in office.
Thereafter, the affirmative vote of a majority of all members of the Board of
Directors who do not have a beneficial financial interest in the action before
the Board of Directors is required for the approval of all actions to be taken
by the Board of Directors. The establishment of reasonable compensation of
Directors for services to the Corporation as Directors or officers shall not
constitute action in which any Director has a beneficial financial interest.
Subject to the foregoing, a Director shall be deemed and considered in
all respects and for all purposes to be a Director of the Corporation,
including, without limitation, having the authority to vote or act on all
matters, including, without limitation, matters submitted to a vote at any
meeting of the Board of Directors or at any meeting of a committee of the Board
of Directors, and the application to such Director of Articles VII and VIII of
these Amended and Restated Articles of Incorporation, notwithstanding a
Purported Transferee's unauthorized exercise of voting rights with respect to
such Director's election.
ARTICLE VII
Limited Liability of Directors
No director of the Corporation shall be liable to the Corporation or
its shareholders for monetary damages for a breach of the director's fiduciary
duty; provided, however, the foregoing provision shall not be deemed to limit a
director's liability to the Corporation or its shareholders resulting from:
(i) a breach of the director's duty of loyalty to the
Corporation or its shareholders;
(ii) acts or omissions of the director not in good faith
or which involve intentional misconduct or knowing
violation of law;
(iii) a violation of Section 551(1) of the Act or;
(iv) a transaction from which the director derived an
improper personal benefit.
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ARTICLE VIII
Indemnification of Officers, Directors, Etc.
1. Indemnification of Directors.
The Corporation shall and does hereby indemnify a person (including
the heirs, executors, and administrators of such person) who is or was a party
to, or who is threatened to be made a party to, a threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal, including, without limitation,
an action by or in the right of the Corporation, by reason of the fact that he
or she is or was a director of the Corporation, or is or was serving at the
request of the Corporation as a director (or in a similar capacity, including
serving as a member of the Partnership Committee and of any other committee of
TRG) or in any other representative capacity of another foreign or domestic
corporation or of or with respect to any other entity (including TRG), whether
for profit or not, against expenses, attorneys' fees, judgments, penalties,
fines, and amounts paid in settlement actually and reasonably incurred by him
or her in connection with the action, suit, or proceeding. This Section 1 of
this Article VIII is intended to grant the persons herein described with the
fullest protection not prohibited by existing law in effect as of the date of
filing this Amended and Restated Articles of Incorporation or such greater
protection as may be permitted or not prohibited under succeeding provisions of
law.
2. Indemnification of Officers, Etc.
The Corporation has the power to indemnify a person (including the
heirs, executors, and administrators of such person) who is or was a party to,
or who is threatened to be made a party to, a threatened, pending, or
contemplated action, suit, or proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal, including an
action by or in the right of the Corporation, by reason of the fact that he or
she is or was an officer, employee, or agent of the Corporation or is or was
serving at the request of the Corporation as an officer, partner, trustee,
employee, or agent of another foreign or domestic corporation, partnership
(including TRG), joint venture, trust or other enterprise, whether for profit
or not, against expenses, including attorneys' fees, judgments, penalties,
fines, and amounts paid in settlement actually and reasonably incurred by him
or her in connection with the action, suit, or proceeding, if the person acted
in good faith and in a manner he or she reasonably believed to be in or not
opposed to the best interests of the Corporation or its shareholders, and with
respect to a criminal action or proceeding, if the person had no reasonable
cause to believe his or her conduct was unlawful. Unless ordered by a court,
an indemnification under this Section 2 of this Article VIII shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the officer, employee, or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in this Section 2 of this Article VIII.
3. Advancement of Expenses.
The Corporation shall pay the expenses incurred by a person described
in Section 1 of this Article VIII in defending a civil or criminal action,
suit, or proceeding described in such Section 1 in advance of the final
disposition of the action, suit, or proceeding. The Corporation shall pay the
expenses incurred by a person described in Section 2 of this Article VIII in
defending a civil or criminal action, suit, or proceeding described in such
Section 2 in advance of the final disposition of the action, suit, or
proceeding upon receipt of an undertaking by or on behalf of such person to
repay the expenses if it is ultimately determined
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that the person is not entitled to be indemnified by the Corporation. Such
undertaking shall be by unlimited general obligation of the person on whose
behalf advances are made but need not be secured.
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