10-Q/A: Quarterly report pursuant to Section 13 or 15(d)
Published on October 21, 2005
Exhibit
3.1
ARTICLES
OF RESTATEMENT
(Under
Section 2-608 of Corporations and Associations Article)
OMEGA
HEALTHCARE INVESTORS, INC.,
a
Maryland corporation having its principal office c/o The Corporation Trust
Incorporated, 32, South Street, Baltimore, Maryland 21202 (hereinafter called
the “Corporation”), hereby certifies to the State Department of Assessments and
Taxation of Maryland, that:
FIRST:
The
Corporation desires to restate its charter as currently in effect. The following
constitutes all of the provisions of the charter of the Corporation as currently
in effect:
“ARTICLE
I
NAME
The
name
of this corporation is OMEGA
HEALTHCARE INVESTORS, INC.
ARTICLE
II
PURPOSES
The
purpose for which this corporation is formed is to engage in the ownership
of
real property and mortgages secured by interests in real property and in any
other lawful act or activity for which corporations may be organized under
the
General Corporation Law of Maryland as now or hereafter in force.
ARTICLE
III
PRINCIPAL
OFFICE AND RESIDENT AGENT
The
address of the principal office of the corporation in the State of Maryland
is
c/o The Corporation Trust Incorporated, 32 South Street, Baltimore, Maryland
21202. The name of the resident agent of the corporation in the State of
Maryland is The Corporation Trust Incorporated, and the address is 32 South
Street, Baltimore, Maryland 21202, but this corporation may maintain an office
or offices in such other place or places as may be, from time to time, fixed
by
its Board of Directors or as may be fixed by the Bylaws of the corporation.
1
ARTICLE
IV
CAPITAL
STOCK
Section
1. The
total
number of shares of capital stock which the corporation shall have authority
to
issue is Sixty Million (60,000,000), of which Fifty Million (50,000,000) shall
be shares of Common Stock having a par value of $.l0 per share and Ten Million
(10,000,000) shall be shares of Preferred Stock having a par value of $1.00
per
share. The aggregate par value of all of said shares shall be Fifteen Million
Dollars ($15,000,000).
Section
2. The
Board
of Directors shall have authority to authorize the issuance of Common Stock
or
Preferred Stock from time to time in one or more series, and in such amounts
and
for such consideration as the Board of Directors shall deem appropriate. The
Board of Directors shall have authority to fix the rights, powers and
restrictions of the Preferred Stock by resolution and the filing of articles
supplementary, which shall designate with respect to any series of Preferred
Stock:
(1) the
number of shares constituting such series and the distinctive designation
thereof;
(2) the
voting rights, if any, of such series;
(3) the
rate
of dividends payable on such series, the time or times when such dividends
will
be payable, the preference to, or any relation to, the payment of dividends
to
any other class or series of stock and whether the dividends will be cumulative
or non-cumulative;
(4) whether
there shall be a sinking or similar fund for the purchase of shares of such
series and, if so, the terms and provisions that shall govern such fund;
(5) the
rights of the holders of shares of such series upon the liquidation, dissolution
or winding up of the corporation;
(6) the
rights, if any, of holders of shares of such series to convert such shares
into,
or to exchange such shares for, shares of any other class or classes or any
other series of the same or of any other class or classes of stock of the
corporation, the price or prices or rate or rates of exchange, with such
adjustments as shall be provided, at which such shares shall be convertible
or
exchangeable, whether such rights of conversion or exchange shall be exercisable
at the option of the holder of the shares or the corporation or upon the
happening of a specified event, and any other terms or conditions of such
conversion or exchange; and
(7) any
other
preferences, powers and relative participating, optional or other special rights
and qualifications, limitations or restrictions of shares of such series.
2
Section
3. No
holder
of shares of stock of the corporation shall, as such holder, have any preemptive
or other right to purchase or subscribe for any shares of the capital stock
of
the corporation or any other security of the corporation which it may issue
or
sell (whether out of the number of shares authorized by these Articles of
Incorporation, or out of any shares of the capital stock of the corporation
acquired by it after the issue thereof, or otherwise) other than such right,
if
any, as the Board of Directors, in its discretion, may determine.
ARTICLE
V
DEFINING,
LIMITING AND REGULATING POWERS OF THE CORPORATION
AND
THE BOARD OF DIRECTORS AND SHAREHOLDERS
Section
1. The
Board
of Directors shall have the authority without shareholder approval to designate
capital gain allocation to holders of any series of all series of Preferred
Stock.
Section
2. The
affirmative vote of the holders of not less than 80% of the outstanding shares
of “voting stock” (as hereinafter defined) of the corporation shall be required
for the approval or authorization of any “Business Combination” (as hereinafter
defined) of the corporation with any “Related Person” (as hereinafter defined).
However, such 80% voting requirement shall not be applicable if: (1) the Board
of Directors of the corporation by unanimous vote or written consent shall
have
expressly approved in advance the acquisition of outstanding shares of voting
stock of the corporation that caused the Related Person to become a Related
Person or shall have approved the Business Combination prior to the Related
Person involved in the Business Combination having become a Related Person;
or
(2) the Business Combination is solely between the corporation and another
corporation, one hundred percent of the voting stock of which is owned directly
or indirectly by the corporation. For purposes of this Article V, Section 2:
(i) The
term
“Business Combination” shall mean (a) any merger or consolidation of the
corporation with or into a Related Person, (b) any sale, lease, exchange,
transfer or other disposition, including without limitation a mortgage or any
other security device, of all or any “Substantial Part” (as hereinafter defined)
of the assets of the corporation (including without limitation any voting
securities of a subsidiary) to a Related Person, (c) any merger or consolidation
of a Related Person with or into the corporation, (d) any sale, lease, exchange,
transfer or other disposition of all of any Substantial Part of the assets
of a
Related Person to the corporation, (e) the issuance of any securities (other
than by way of pro rata distribution to all shareholders) of the corporation
to
a Related Person, and (f) any agreement, contract or other arrangement providing
for any of the transactions described in this definition of Business
Combination.
(ii) The
term
“Related Person” shall mean and include any individual, corporation, partnership
or other person or entity which, together with its “Affiliates” and
3
“Associates”
(as defined in Rule 12b-2 under the Securities Exchange Act of 1934),
“Beneficially Owns” (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) in the aggregate 10% or more of the outstanding voting stock of the
corporation, and any Affiliate or Associate of the corporation.
(iii) The
term
“Substantial Part” shall mean more than 10% of the book value of the total
assets of the corporation as of the end of its most recent fiscal year ending
prior to the time the determination is being made.
(iv) Without
limitation, any shares of Common Stock of the corporation that any Related
Person has the right to acquire pursuant to any agreement, or upon exercise
of
conversion rights, warrants or options, or otherwise, shall be deemed
beneficially owned by the Related Person.
(v) The
term
“voting stock” shall mean the outstanding shares of capital stock of the
corporation entitled to vote generally in the election of Directors. In a vote
required by or provided for in this Article V, Section 2, each share of voting
stock shall have the number of votes granted to it generally in the election
of
Directors.
Section
3. Initially,
the Board of Directors shall consist of three (3) Directors. The Board shall
be
classified into three groups of Directors. Each Director in Group I initially
shall serve for a term ending at the annual meeting of shareholders in 1993;
each Director in Group II initially shall serve for a term ending at the annual
meeting of shareholders in 1994; and each Director in Group III initially shall
serve for a term ending at the annual meeting of shareholders in 1995. After
the
respective initial terms of the groups indicated, each such group of Directors
shall be elected for successive terms ending at the annual meeting of
shareholders held during the third year after election. The names of the initial
Directors are Essel W. Bailey, Jr., who shall be a Group I Director, Thomas
J.
Franke, who shall be a Group II Director and Robert L. Parker, who shall be
a
Group III Director.
The
Board
shall have the right to increase the Board to six (6) and thereafter, until
changed by an amendment to the Bylaws, the number of Directors shall be six
(6).
The directors then in office shall appoint the other directors to fill the
vacancies created by the increase in the size of the Board and shall designate
the Group to which each appointee shall belong.
The
number of Directors may be increased or decreased from time to time in such
manner as may be provided in the Bylaws, provided that the number of Directors
shall never be more than nine (9) or less than three (3) and, once the number
of
directors is increased to six (6), the number shall never be less than five
(5).
Section
4. Once
there is a completed public offering of the shares of stock of the corporation,
if the Board of Directors shall, at any time and in good faith, be of the
opinion that direct or indirect ownership of at least 9.9% or more of the voting
shares of stock of the
4
corporation
has or may become concentrated in the hands of one beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934), the Board of Directors
shall have the power (i) by means deemed equitable by the Board of Directors,
and pursuant to written notice, to call for the purchase from any shareholder
of
the corporation a number of voting shares sufficient, in the opinion of the
Board of Directors, to maintain or bring the direct or indirect ownership of
voting shares of stock of the corporation of such beneficial owner to no more
than 9.9% of the outstanding voting shares of stock of the corporation, and
(ii)
to refuse to transfer or issue voting shares of stock of the corporation to
any
person whose acquisition of such voting shares would, in the opinion of the
Board of Directors, result in the direct or indirect ownership by that person
of
more than 9.9% of the outstanding voting shares of stock of the corporation.
The
purchase price for any voting shares of stock shall be equal to the fair market
value of the shares reflected in the closing sales price for the shares, if
then
listed on a national securities exchange, or the average of the closing sales
prices for the shares if then listed on more than one national securities
exchange, or if the shares are not then listed on a national securities
exchange, the latest bid quotation for the shares if then traded
over-the-counter, on the last business day immediately preceding the day on
which notices of such acquisitions are sent, or, if no such closing sales prices
or quotations are available, then the purchase price shall be equal to the
net
asset value of such stock as determined by the Board of Directors in accordance
with the provisions of applicable law. Payment of the purchase price shall
be
made within thirty days following the date set forth in the notice of call
for
purchase, and shall be made in such manner as may be determined by the Board
of
Directors of the corporation. From and after the date fixed for purchase by
the
Board of Directors, as set forth in the notice, the holder of any shares so
called for purchase shall cease to be entitled to distributions, voting rights
and other benefits with respect to such shares, excepting only the right to
payment of the purchase price fixed as aforesaid. Any transfer of shares,
options, warrants or other securities convertible into voting shares that would
create a beneficial owner of more than 9.9% of the outstanding shares of stock
of this corporation shall be deemed void ab
initio
and the
intended transferee shall be deemed never to have had an interest therein.
If
the foregoing provision is determined to be void or invalid by virtue of any
legal decision, statute, rule or regulation, then the transferee of such shares,
options, warrants or other securities convertible into voting shares shall
be
deemed, at the option of the corporation, to have acted as agent on behalf
of
the corporation in acquiring such shares and to hold such shares on behalf
of
the corporation.
Notwithstanding
anything herein to the contrary, the corporation and its transfer agent may
refuse to transfer any shares, passing either by voluntary transfer, by
operation of law, or under the last will and testament of any shareholder if
such transfer would or might, in the opinion of the Board of Directors or
counsel to the corporation, disqualify the corporation as a Real Estate
Investment Trust under the Internal Revenue Code. Nothing herein contained
shall
limit the ability of the corporation to impose or to seek judicial or other
imposition of additional restrictions if deemed necessary or advisable to
preserve the corporation’s tax status as a qualified Real Estate Investment
Trust.
5
Nothing
contained in this Section 4 shall preclude the settlement of any transaction
entered into through the facilities of the New York Stock Exchange.
Section
5. Notwithstanding
any provision of law requiring any action to be taken or authorized by the
affirmative vote of the holders of a greater proportion of the votes of all
classes or of any class of stock of the corporation, such action shall be
effective and valid if taken or authorized by the affirmative vote of a majority
of the total number of votes entitled to be cast thereon, except as otherwise
provided in these Articles or the Bylaws of the corporation.
Section
6. The
provisions of Subtitles 6 (Special Voting Requirements) and 7 (Voting Rights
of
Certain Control Shares) of Title 3 of the Corporations and Associations Article
of the Maryland Code shall not apply to this corporation unless the Board of
Directors elects by resolution to be subject, in whole or in part, specifically,
generally or generally by types, as to specifically identified or unidentified
stockholders, to the provisions of either or both Subtitles.
ARTICLE
VI
LIABILITY
FOR MONETARY DAMAGES AND INDEMNIFICATION
Section
1. To
the
fullest extent that limitations on the liability of directors and officers
are
permitted by the Maryland General Corporation Law, no director or officer of
the
Corporation shall have any liability to the corporation or its stockholders
for
money or other damages. This limitation on liability applies to events occurring
at the time a person serves as a director or officer of the corporation whether
or not such person is a director or officer at the time of any proceeding in
which liability is asserted.
Section
2. The
corporation shall indemnify and advance expenses to its directors to the fullest
extent that indemnification of, and advance of expenses to, directors is
permitted by the Maryland General Corporation Law. The corporation shall
indemnify and advance expenses to its officers to the same extent as its
directors and to such further extent as is consistent with law. The Board of
Directors may by Bylaw, resolution or agreement make further provision for
indemnification of directors, officers, employees and agents to the fullest
extent permitted by the Maryland General Corporation Law.
Section
3. References
to the Maryland General Corporation Law in this Article are to that law as
from
time to time amended.
No
future
amendment to the charter of the corporation shall affect any right of any person
under this Article based on any event, omission or proceeding prior to such
amendment.
6
ARTICLE
VII
AMENDMENTS
Section
1. The
corporation reserves the right from time to time to amend, alter or repeal
any
provision contained in the Articles of Incorporation in the manner now or
hereafter prescribed by statute, including any amendment which alters the
contract rights of any class of outstanding stock as expressly set forth in
the
charter, and all rights conferred on shareholders herein are subject to this
reservation.
Section
2. Notwithstanding
any of the provisions of these Articles or the Bylaws of the corporation (and
not withstanding the fact that a lesser percentage may be specified by law,
these Articles or the Bylaws of the corporation) the affirmative vote of the
holders of at least 80% of the “voting stock” of the corporation, voting
together as a single class, shall be required to repeal or amend any provision
inconsistent with Section 2, Section 3 or Section 4 of Article V.
ARTICLE
VIII
PERPETUAL
EXISTENCE
The
period of the existence of the corporation is to be
perpetual.”
SECOND:
The
foregoing restatement of the charter has been approved by a majority of the
entire board of directors. The number of directors of the Corporation is seven
(7). The names of the directors are: Essel W. Bailey, Jr., James C. Cowles,
James E. Eden, Thomas F. Franke, Harold J. Kloosterman, Bernard J. Korman,
and
Robert L. Parker.
THIRD:
The
charter of the Corporation is not amended by these Articles of
Restatement.
7
IN
WITNESS WHEREOF, Omega Healthcare Investors, Inc. has caused these presents
to
be signed in its name and on its behalf by its Vice President, attested by
its
Secretary, on April 16, 1995.
OMEGA
HEALTHCARE INVESTORS, INC.
By:
/s/
David A. Stover
David
A.
Stover, Vice President
Attest:
/s/
Essel W. Bailey, Jr.
Essel
W.
Bailey, Jr., Secretary
THE
UNDERSIGNED, Vice President of Omega Healthcare Investors, Inc., who executed
on
behalf of said corporation the foregoing Articles of Restatement, of which
this
certificate is made a part, hereby acknowledges, in the name and on behalf
of
said corporation, the foregoing Articles of Restatement to be the corporate
act
of said corporation and further certifies that, to the best of his knowledge,
information and belief, the matters and facts set forth therein with respect
to
the approval thereof are true and in all material respects, under penalties
of
perjury.
/s/
David A. Stover
David
A.
Stover, Vice President
8
OMEGA
HEALTHCARE INVESTORS, INC.
ARTICLES
OF AMENDMENT
OMEGA
HEALTHCARE INVESTORS, INC.,
a
Maryland corporation having its principal Maryland office c/o The Corporation
Trust Incorporated, 32 South Street, Baltimore, Maryland 21210 (hereinafter
called the “Corporation”), hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST:
The
charter of the Corporation is hereby amended by striking out Section 1. of
Article IV in its entirety and inserting in lieu thereof the
following:
ARTICLE
IV
CAPITAL
STOCK
Section
1. The
total
number of shares of capital stock which the corporation shall have authority
to
issue is One Hundred Ten Million (110,000,000), of which One Hundred Million
(100,000,000) shall be shares of Common Stock having a par value of $.10 per
share and Ten Million (10,000,000) shall be shares of Preferred Stock having
a
par value of $1.00 per share. The aggregate par value of all of said shares
shall be Twenty Million Dollars ($20,000,000). Prior to the increase, the
aggregate par value of all said shares was Fifteen Million Dollars
($15,000,000).
SECOND:
The
board of directors of the Corporation, at a meeting duly convened and held
on
January 19, 1999, adopted a resolution in which was set forth the foregoing
amendment to the charter, declaring that the said amendment to the charter
was
advisable and directing that it be submitted for action thereon at a meeting
of
the stockholders of the Corporation to be held on April 20, 1999.
THIRD:
Notice
setting forth the aforesaid amendment of the charter and stating that a purpose
of the meeting of the stockholders would be to take action thereon, was given
as
required by law to all stockholders of the Corporation entitled to vote thereon.
The amendment of the charter of the Corporation as hereinabove set forth was
approved by the stockholders of the Corporation at said meeting by the
affirmative vote required by law.
FOURTH:
(a) The
total number of shares of all classes of stock of the Corporation heretofore
authorized, and the number and par value of the shares of each class were as
follows:
Common
Stock Par
Value
50,000,000 $.10
per
share
Preferred
Stock Par
Value
10,000,000 $1.00
per
share
(b) The
total
number of shares of all classes of stock of the Corporation as increased, and
the number and par value of the shares of each class, are as
follows:
Common
Stock Par
Value
100,000,000
$.10
per
share
Preferred
Stock Par
Value
10,000,000 $1.00
per
share
1
(c) The
aggregate par value of all shares of all classes of stock of the Corporation
heretofore authorized was $15,000,000. The aggregate par value of all shares
of
all classes of stock as increased by this amendment is $20,000,000. This
amendment has the effect of increasing the aggregate par value of all shares
of
all classes of stock of the Corporation by $5,000,000.
IN
WITNESS WHEREOF,
the
Corporation has caused these presents to be signed in its name and on its behalf
by its Vice-President and its corporate seal to be hereunto affixed and attested
by its Secretary.
THE
UNDERSIGNED,
Vice-President acknowledges these Articles of Amendment to be the corporate
act
of the Corporation and states that to the best of his knowledge, information
and
belief the matters and facts set forth therein with respect to the authorization
and approval thereof are true in all material respects and that this statement
is made under the penalties of perjury.
Attest: OMEGA
HEALTHCARE INVESTORS, INC.
/s/
Susan A. Kovach By:
/s/
David A. Stover (SEAL)
Susan
A.
Kovach, Secretary
David
A.
Stover, Vice President
[Affix
corporate seal]
2
ARTICLES
OF AMENDMENT
TO
THE
ARTICLES
OF INCORPORATION
OF
OMEGA HEALTHCARE INVESTORS, INC.
| 1. |
The
name
of the corporation is Omega Healthcare Investors, Inc. (the
“Corporation”).
| 2. |
The
Corporation hereby amends the last paragraph of Article V, Section 3 of its
Articles of Incorporation as follows:
"The
number of Directors may be increased or decreased from time to time in such
manner as may be provided in the Bylaws, provided that the number of Directors
constituting the full Board of Directors shall not be less than five (5) nor
more than thirteen (13), subject, at all times, to the rights of the holders
of
any class of the Corporation's preferred stock to elect directors in certain
circumstances pursuant to the express terms of such preferred
stock."
| 3. |
The
Board
of Directors of the Corporation approved the foregoing amendment by unanimous
written consent on April 2, 2002, declared that said amendment was advisable,
and directed that it be submitted for action thereon at a meeting of the
stockholders of the Corporation to be held on May 30, 2002.
| 4. |
At
a duly
called meeting of stockholders held on May 30, 2002, the stockholders of the
Corporation approved the foregoing amendment by the 80% affirmative vote
required by Article VII of the Articles of Incorporation.
| 5. |
All
other
provisions of the Articles of Amendment shall remain in full force and
effect.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
1
IN
WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to
be
executed this 30th
day of
May, 2002 and its corporate seal to be hereunto affixed and attested to by
its
Secretary.
THE
UNDERSIGNED, Chief Executive Officer acknowledges these Articles of Amendment
to
be the corporate act of the Corporation and states that to the best of his
knowledge, information and belief the matters and facts set forth therein with
respect to the authorization and approval thereof are true in all material
respects and that this statement is made under the penalties of
perjury.
Attest: OMEGA
HEALTHCARE INVESTORS, INC.
/s/
Daniel J. Booth By:
/s/
Taylor Pickett
Name: Daniel
J. Booth Name: Taylor
Pickett
Title:
Secretary Title: CEO
[SEAL]
2
OMEGA
HEALTHCARE INVESTORS, INC.
ARTICLES
OF AMENDMENT
OMEGA
HEALTHCARE INVESTORS, INC.,
a
Maryland corporation having its principal Maryland office at 9690 Deereco Road,
Suite 100, Timonium, Maryland 21093 (the “Company”),
hereby certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
The
board of directors of the Company, at a meeting duly convened and held on April
20, 2004, adopted a resolution in which it was set forth the following amendment
to the charter of the Company (the “Charter”),
declaring that said amendment to the Charter was advisable and directing that
it
be submitted for action thereon at a meeting of the stockholders of the Company
to be held on June 3, 2004.
SECOND:
Notice
setting forth the aforesaid amendment of the Charter and stating that a purpose
of the meeting of the stockholders would be to take action therein, was given
as
required by law to all stockholders entitled to vote thereon. The amendment
of
the Charter of the Company as hereinafter set forth was approved by the
stockholders of the Company at said meeting by the affirmative vote required
by
law and the Charter.
THIRD:
The
Charter is hereby amended by striking out Section 1 of Article IV in its
entirety and inserting in lieu thereof the following:
ARTICLE
IV
CAPITAL
STOCK
Section
1.
The
total number of shares of capital stock which the corporation shall have
authority to issue is One Hundred Twenty Million (120,000,000), of which One
Hundred Million (100,000,000) shall be shares of Common Stock having a par
value
of $.10 per share and Twenty Million (20,000,000) shall be shares of Preferred
Stock having a par value of $1.00 per share. The aggregate par value of all
said
shares shall be Thirty Million Dollars ($30,000,000). Prior to the increase,
the
aggregate par value of all said shares was Twenty Million Dollars
($20,000,000).
FOURTH:
(a) The
total
number of shares of all classes of stock of the Company heretofore authorized,
and the number and par value of the shares of each class, were as
follows:
|
Common
Stock
|
Par
Value
|
|
100,000,000
|
$.10
per share
|
|
Preferred
Stock
|
Par
Value
|
|
10,000,000
|
$1.00
per share
|
(b) The
total
number of shares of all classes of stock of the Company as increased, and the
number and par value of the shares of each class, are as follows:
|
Common
Stock
|
Par
Value
|
|
100,000,000
|
$.10
per share
|
|
Preferred
Stock
|
Par
Value
|
|
20,000,000
|
$1.00
per share
|
1
(c) The
aggregate par value of all shares of all classes of stock of the Company
heretofore authorized was $20,000,000. The aggregate par value of all shares
of
all classes of stock as increased by this amendment is $30,000,000. This
amendment has the effect of increasing the aggregate par value of all shares
of
all classes of stock of the Company by $10,000,000.
FIFTH:
The
undersigned Chief Executive Officer of the Company acknowledges the Articles
of
Amendment to be the corporate act of the Company and, as to all matters or
facts
required to be verified under oath, the undersigned Chief Executive Officer
of
the Company acknowledges that to the best of his or her knowledge, information
and belief, these matters and facts are true in all material respects and that
this statement is made under the penalties for perjury.
[Remainder
of Page Intentionally Left Blank]
2
IN
WITNESS WHEREOF,
the
Company has caused these Articles of Amendment to be executed under seal in
its
name and on its behalf by its Chief Executive Officer and attested to by its
Secretary on this 30th
day of
June, 2004.
|
ATTEST
|
OMEGA
HEALTHCARE INVESTORS, INC.
|
|
|
By:_/s/
Daniel J. Booth_______________
Daniel
J. Booth
Secretary
|
By:_/s/
C. Taylor Pickett____________
C.
Taylor Pickett
Chief
Executive Officer
|
3
OMEGA
HEALTH CARE INVESTORS, INC.
ARTICLES
SUPPLEMENTARY
Omega
Health Care Investors, Inc., a Maryland corporation (“Company”), hereby
certifies to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
Pursuant to authority contained in the Charter, Seven Hundred Thousand (700,000)
shares of authorized but unissued shares of the Company’s 9.25% Series A
Cumulative Preferred Stock have been duly reclassified by the Board of Directors
of the Company as authorized but unissued shares of the Company’s Preferred
Stock par value $1.00 per share as described in Article IV, Section 2 of the
Articles of Incorporation of the Company.
SECOND:
The
reclassification of authorized but unissued shares as set forth in these
Articles Supplementary does not increase the authorized capital of the Company
or the aggregate par value thereof.
THIRD:
These
Articles Supplementary have been approved by the Board of Directors in the
manner and by the vote required by law.
FOURTH:
The
undersigned Vice President of the Company acknowledges these Articles
Supplementary to be the corporate act of the Company and, as to all matters
or
facts required to be verified under oath, the undersigned Vice President of
the
Company acknowledges that to the best of his knowledge, information and belief,
these matters and facts are true in all material respects and that this
statement is made under the penalties for perjury.
IN
WITNESS WHEREOF,
the
Company has caused these Articles Supplementary to be executed under seal in
its
name and on its behalf by its Vice President and attested to by its Secretary
on
this 19th
day of
February, 1997.
ATTEST OMEGA
HEALTHCARE INVESTORS, INC.
/s/
Susan Allene Kovach By:
/s/
David A. Stover
Susan
Allene Kovach, Secretary David
Stover, Vice President
1
OMEGA
HEALTHCARE INVESTORS, INC.
ARTICLES
SUPPLEMENTARY
Omega
Healthcare Investors, Inc., a Maryland corporation (“Company”), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
Pursuant to authority contained in the Charter, One Million Thirty-Nine Thousand
Five Hundred (1,039,500) shares of authorized but unissued shares of the
Company’s Series C Convertible Preferred Stock have been duly reclassified by
the Board of Directors of the Company as authorized but unissued shares of
the
Company’s Preferred Stock, par value $1.00 per share as described in Article IV,
Section 2 of the Articles of Incorporation of the Company, without designation
as to series.
SECOND.
Pursuant
to authority contained in the Charter, Four Million Seven Hundred Thirty-Nine
Thousand Five Hundred (4,739,500) shares of authorized but unissued shares
of
the Company’s Preferred Stock (after giving effect to the reclassification
pursuant to Article FIRST above of the Company’s previously authorized Series C
Convertible Preferred Stock) have been duly classified by the Board of Directors
of the Company as authorized but unissued shares of the Company’s 8.375%
Series D Cumulative Redeemable Preferred Stock.
THIRD:
A
description of the 8.375% Series D Cumulative Redeemable Preferred Stock
is
as follows:
1. Designation
and Number.
A
series of Preferred Stock, designated the “8.375% Series D Cumulative
Redeemable Preferred Stock” (the “Series D Preferred Stock”), is hereby
established. The number of shares of the Series D Preferred Stock shall be
Four
Million Seven Hundred Thirty-Nine Thousand Five Hundred
(4,739,500).
2. Maturity.
The
Series D Preferred Stock has no stated maturity and will not be subject to
any
sinking fund or mandatory redemption.
3. Rank.
The
Series D Preferred Stock will, with respect to dividend rights and rights upon
liquidation, dissolution or winding up of the Company, rank (i) senior to all
classes or series of Common Stock of the Company, and to all equity securities
ranking junior to the Series D Preferred Stock with respect to dividend rights
or rights upon liquidation, dissolution or winding up of the Company; (ii)
on a
parity with the Series A and Series B Preferred Stock and all other equity
securities issued by the Company the terms of which specifically provide that
such equity securities rank on a parity with the Series D Preferred Stock with
respect to dividend rights or rights upon liquidation, dissolution or winding
up
of the Company; and (iii) junior to all existing and future indebtedness of
the
Company. The term “equity securities” does not include convertible debt
securities, which will rank senior to the Series D Preferred Stock prior to
conversion.
1
4. Dividends.
(a) Holders
of shares of the Series D Preferred Stock are entitled to receive, when and
as
declared by the Board of Directors (or a duly authorized committee thereof),
out
of funds legally available for the payment of dividends, preferential cumulative
cash dividends at the rate of 8.375% per annum of the Liquidation Preference
(as
defined below) per share (equivalent to a fixed annual amount of $2.09375 per
share). Dividends on the Series D Preferred Stock shall be cumulative from
the
date of original issue and shall be payable in arrears for each period ended
April 30, July 31, October 31, and January 31, on or before the 15th day of
May,
August, November, February, of each year, or, if not a business day, the next
succeeding business day (each, a “Dividend Payment Date”). The first dividend
will be paid on May 17, 2004, with respect to the period commencing on the
date
of issue and ending on April 30, 2004. Any dividend payable on the Series D
Preferred Stock for any partial period will 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 Company at the
close of business on the applicable record date, which shall be the last day
of
the preceding calendar month prior to the applicable Dividend Payment Date
or on
such other date designated by the Board of Directors of the Company that is
not
more than 30 nor less than 10 days prior to such Dividend Payment Date (each,
a
“Dividend Record Date”).
(b) No
dividends on shares of Series D Preferred Stock shall be declared by the Board
of Directors or paid or set apart for payment by the Company at such time as
the
terms and provisions of any agreement of the Company, 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 thereof or a default thereunder, or if
such declaration or payment shall be restricted or prohibited by
law.
(c) Notwithstanding
the foregoing, dividends on the Series D Preferred Stock will accrue whether
or
not the Company has earnings, whether or not there are funds legally available
for the payment of such dividends and whether or not such dividends are declared
and whether or not such is prohibited by agreement. Accrued but unpaid dividends
on the Series D Preferred Stock will not bear interest and holders of the Series
D Preferred Stock will not be entitled to any distributions in excess of full
cumulative distributions described above. Except as set forth in the next
sentence, no dividends will be declared or paid or set apart for payment on
any
capital stock of the Company or any other series of Preferred Stock ranking,
as
to dividends, on a parity with or junior to the Series D Preferred Stock (other
than a dividend in shares of the Company’s Common Stock or in shares of any
other class of stock ranking junior to the Series D Preferred Stock as to
dividends and upon liquidation) 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
D
Preferred Stock for all past dividend periods and the then current dividend
period. When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon the Series D Preferred Stock and the shares
of
any other series of Preferred Stock ranking on a parity as to dividends with
the
Series D Preferred Stock, all dividends declared upon the Series D Preferred
Stock and any other series of Preferred Stock ranking on a parity as to
dividends with the Series D Preferred Stock shall be declared pro rata so that
the amount of dividends declared per share of Series D 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 D 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.
2
(d) Except
as
provided in the immediately preceding paragraph, unless full cumulative
dividends on the Series D 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, no dividends (other than in shares of Common Stock or other
shares of capital stock ranking junior to the Series D Preferred Stock as to
dividends and upon liquidation) 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 capital stock of the Company ranking junior to or on a
parity with the Series D Preferred Stock as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other shares of capital stock
of
the Company ranking junior to or on a parity with the Series D Preferred Stock
as to dividends or upon liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Company (except by conversion
into or exchange for other capital stock of the Company ranking junior to the
Series D Preferred Stock as to dividends and upon liquidation or redemptions
for
the purpose of preserving the Company’s qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended). Holders
of shares of the Series D 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 D Preferred Stock as provided above. Any dividend
payment made on shares of the Series D Preferred Stock shall first be credited
against the earliest accrued but unpaid dividend due with respect to such shares
which remains payable.
5. Liquidation
Preference.
Upon
any voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Company, the holders of shares of Series D Preferred Stock are
entitled to be paid out of the assets of the Company legally available for
distribution to its shareholders a liquidation preference of $25 per share
in
cash or property at its fair market value as determined by the board of
directors (the “Liquidation Preference”), plus an amount equal to any accrued
and unpaid dividends to the date of payment, but without interest, before any
distribution of assets is made to holders of Common Stock or any other class
or
series of capital stock of the Company that ranks junior to the Series D
Preferred Stock as to liquidation rights. The Company will promptly provide
to
the holders of Series D Preferred Stock written notice of any event triggering
the right to receive such Liquidation Preference. After payment of the full
amount of the Liquidation Preference, plus any accrued and unpaid dividends
to
which they are entitled, the holders of Series D Preferred Stock will have
no
right or claim to any of the remaining assets of the Company. The consolidation
or merger of the Company with or into any other corporation, trust or entity
or
of any other corporation with or into the Company, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or winding
up of the Company; provided that, in each case, effective provision is made
in
the organizational documents of the resulting or surviving entity or otherwise
for the rights of the holders of the Series D Preferred Stock to receive
dividends and participate in any distribution upon liquidation, dissolution
or
winding up of the affairs of such resulting or surviving entity in a manner
consistent with the provisions of this Article Third.
In
determining whether a distribution (other than upon voluntary or involuntary
liquidation) by dividend, redemption or other acquisition of shares of stock
of
the Company or otherwise is permitted under the Maryland General Corporation
Law
(the “MGCL”), no effect shall be given to amounts that would be needed if the
Company would be dissolved at the time of the distribution, to satisfy the
preferential rights upon distribution of holders of shares of stock of the
Company whose preferential rights upon distribution are superior to those
receiving the distribution.
3
6. Redemption.
(a) The
Series D Preferred Stock is not redeemable prior to February 10, 2009
subject, however, to the provisions in paragraph (9) of this Article Third.
On
and after February 10, 2009, the Company, at its option, upon not less
than
30 nor more than 60 days’ written notice, may redeem shares of the Series D
Preferred Stock, in whole or in part, at any time or from time to time, for
cash
at a redemption price of $25 per share, plus all accrued and unpaid dividends
thereon to the date fixed for redemption (except with respect to any shares
of
Series D Preferred Stock that
constitute Excess Shares (as defined in paragraph 9 of this Article
Third))
without
interest. No shares of Series D Preferred Stock may be redeemed except
with
assets legally available for the payment of the redemption price.
(b) Holders
of Series D Preferred Stock to be redeemed shall surrender such Series D
Preferred Stock at the place designated in such notice 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 of any shares
of
Series D Preferred Stock has been given and if the funds necessary for such
redemption have been set aside, separate and apart from other funds, by the
Company in trust for the benefit of the holders of any shares of Series D
Preferred Stock so called for redemption, then from and after the redemption
date dividends will cease to accrue on such shares of Series D Preferred Stock,
such shares of Series D Preferred Stock shall no longer be deemed outstanding
and all rights of the holders of such shares will terminate, except the right
to
receive the redemption price. If less than all of the outstanding Series D
Preferred Stock is to be redeemed, the Series D 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
Company.
(c) Unless
full cumulative dividends on all shares of Series D 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 for all past dividend periods
and
the then current dividend period, no shares of Series D Preferred Stock shall
be
redeemed unless all outstanding shares of Series D Preferred Stock are
simultaneously redeemed and the Company shall not purchase or otherwise acquire
directly or indirectly any shares of Series D Preferred Stock (except by
exchange for capital stock of the Company ranking junior to the Series D
Preferred Stock as to dividends and upon liquidation); provided, however, that
the foregoing shall not prevent the purchase by the Company of any
shares of Series D Preferred Stock that constitute Excess
Shares in order to ensure that the Company continues to meet the requirements
for qualification as a real estate investment trust under the Internal Revenue
Code, or the purchase or acquisition of shares of Series D Preferred Stock
pursuant to a purchase or exchange offer made on the same terms to holders
of
all outstanding shares of Series D Preferred Stock. So long as no dividends
are
in arrears, the Company shall be entitled at any time and from time to time
to
repurchase shares of Series D Preferred Stock in open-market transactions duly
authorized by the Board of Directors and effected in compliance with applicable
laws.
(d) Notice
of
redemption will 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 will be mailed by the Company, postage prepaid, not
less
than 30 nor more than 60 days prior to the redemption date, addressed to the
respective holders of record of the Series D Preferred Stock to be redeemed
at
their respective addresses as they appear on the stock transfer records of
the
Company. No failure to give such notice or any defect therein or in the mailing
thereof shall affect the validity of the proceedings for the redemption of
any
shares of Series D 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 D Preferred Stock
to
be redeemed; (iv) the place or places where the Series D 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
less
than all of the Series D Preferred Stock held by any holder is to be redeemed,
the notice mailed to such holder shall also specify the number of shares of
Series D Preferred Stock held by such holder to be redeemed.
4
(e) Immediately
prior to any redemption of Series D Preferred Stock, the Company shall pay,
in
cash, any accumulated and unpaid dividends through the redemption date, unless
a
redemption date falls after a Dividend Record Date and prior to the
corresponding Dividend Payment Date, in which case each holder of Series D
Preferred Stock at the close of business on such Dividend Record Date shall
be
entitled to the dividend payable on such shares on the corresponding Dividend
Payment Date notwithstanding the redemption of such shares before such Dividend
Payment Date.
(f) Excess
Shares may be redeemed, in whole or in part, at any time when outstanding shares
of Series D Preferred Stock are being redeemed, for cash at a redemption price
of $25 per share, but excluding accrued and unpaid dividends on such Excess
Shares, without interest. Such Excess Shares shall be redeemed in such
proportion and in accordance with such procedures as shares of Series D
Preferred Stock are being redeemed.
(g) All
Series D Preferred Shares redeemed pursuant to this Section 6
shall be
retired and shall be reclassified as authorized and unissued preferred shares,
without designation as to class or series, and may thereafter be reissued as
any
class or series of preferred shares.
7. Voting
Rights.
(a) Holders
of the Series D Preferred Stock will not have any voting rights, except as
set
forth below.
(b) Whenever
dividends on any shares of Series D Preferred Stock shall be in arrears for
any
six or more quarterly dividend periods, regardless of whether such quarterly
periods are consecutive (a “Preferred Dividend Default”), the number of
directors then constituting the Board of Directors shall be increased by two
(if
not already increased by reason of a similar arrearage respect to any Parity
Preferred (as hereinafter defined). The holders of such shares of Series D
Preferred Stock (voting separately as a class with all other series of Preferred
Stock ranking on a parity with the Series D Preferred Stock as to dividends
or
upon liquidation (“Parity Preferred”) upon which like voting rights have been
conferred and are exercisable) will be entitled to vote separately as a class,
in order to fill the vacancies thereby created, for the election of a total
of
two additional directors of the Company (the “Preferred Stock Directors”) at a
special meeting called by the holders of record of at least 20% of the Series
D
Preferred Stock or the holders of record of at least 20% of any series of 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 such shares of
Series D Preferred Stock and Parity Preferred for the past dividend periods
and
the dividend for the then current dividend period shall have been fully paid
or
declared and a sum sufficient for the payment thereof set aside for payment.
In
the event the directors of the Company are divided into classes, each such
vacancy shall be apportioned among the classes of directors to prevent stacking
in any one class and to insure that the number of directors in each of the
classes of directors are as equal as possible. Each Preferred Stock Director,
as
a qualification for election as such (and regardless of how elected) shall
submit to the Board of Directors of the Company a duly executed, valid, binding
and enforceable letter of resignation from the Board of Directors, to be
effective upon the date upon which all dividends accumulated on such shares
of
Series D Preferred Stock and Parity Preferred for the past dividend periods
and
the dividend for the then current dividend period shall have been fully paid
or
declared and a sum sufficient for the payment thereof set aside for payment,
whereupon the terms of office of all persons elected as Preferred Stock
Directors by the holders of the Series D Preferred Stock and any Parity
Preferred shall, upon the effectiveness of their respective letters of
resignation, forthwith terminate, and the number of directors then constituting
the Board of Directors shall be reduced accordingly. A quorum for any such
meeting shall exist if at least a majority of the outstanding shares of Series
D
Preferred Stock and shares of Parity Preferred upon which like voting rights
have been conferred and are exercisable are represented in person or by proxy
at
such meeting. Such Preferred Stock Directors shall be elected upon the
affirmative vote of a plurality of the shares of Series D Preferred Stock and
such Parity Preferred present and voting in person or by proxy at a duly called
and held meeting at which a quorum is present. If and when all accumulated
dividends and the dividend for the then current dividend period on the Series
D
Preferred Stock shall have been paid in full or declared and set aside for
payment in full, the holders thereof shall be divested of the foregoing voting
rights (subject to revesting in the event of each and every Preferred Dividend
Default) and, if all accumulated dividends and the dividend for the then current
dividend period have been paid in full or set aside for payment in full on
all
series of Parity Preferred upon which like voting rights have been conferred
and
are exercisable, the term of office of each Preferred Stock Director so elected
shall terminate. Any Preferred Stock Director may be removed at any time with
or
without cause by, and shall not be removed otherwise than by the vote of, the
holders of record of a majority of the outstanding shares of the Series D
Preferred Stock when they have the voting rights described above (voting
separately as a class with all series of Parity Preferred upon which like voting
rights have been conferred and are exercisable). So long as a Preferred Dividend
Default shall continue, any vacancy in the office of a Preferred Stock Director
may be filled by written consent of the Preferred Stock Director remaining
in
office, or if none remains in office, by a vote of the holders of record of
a
majority of the outstanding shares of Series D Preferred Stock when they have
the voting rights described above (voting separately as a class with all series
of Parity Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Stock Directors shall each be entitled to one vote
per director on any matter.
5
(c) So
long
as any shares of Series D Preferred Stock remain outstanding, the Company will
not, without the affirmative vote or consent of the holders of at least
two-thirds of the shares of the Series D Preferred Stock outstanding at the
time, given in person or by proxy, either in writing or at a meeting (voting
separately as a class):
(i) amend,
alter or repeal the provisions of the Charter or the Articles Supplementary,
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 D Preferred Stock or the holders thereof;
(ii) authorize,
create or issue, or increase the authorized or issued amount of, any class
or
series of shares of Preferred Stock or rights to subscribe to or acquire any
class or series of shares of Preferred Stock or any security convertible into
any class or series of shares of Preferred Stock, in each case ranking
senior to the Series D Preferred Stock with respect to payment of
dividends
or
the distribution of assets upon liquidation, dissolution or winding up, or
reclassify any shares of Preferred Stock into any such shares;
provided,
however,
that
with respect to the occurrence of any Event set forth above, so long as the
Series D Preferred Stock (or any equivalent class or series of stock issued
by
the surviving corporation in any merger or consolidation to which the Company
became a party) remains outstanding with the terms thereof materially unchanged,
the occurrence of any such Event shall not be deemed to materially and adversely
affect such rights, preferences, privileges or voting power of holders of the
Series D Preferred Stock; and provided,
further,
that
(i) any increase in the amount of the authorized Preferred Stock or
the
creation or issuance of any other series of Preferred Stock, or (ii) any
increase in the amount of authorized shares of such series, in each case ranking
on a parity with or junior to the Series D 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.
(d) The
foregoing voting provisions will not apply if, at or prior to the time when
the
act with respect to which such vote would otherwise be required shall be
effected, all outstanding shares of Series D Preferred Stock shall have been
redeemed or called for redemption upon proper notice and sufficient funds shall
have been deposited in trust to effect such redemption.
(e) Except
as
expressly stated in these Articles Supplementary, the Series D Preferred Stock
shall not have any relative, participating, optional or other special voting
rights and powers and the consent of the holders thereof shall not be required
for the taking of any corporate action, including but not limited to, any merger
or consolidation involving the Corporation or a sale of all or substantially
all
of the assets of the Corporation, irrespective of the effect that such merger,
consolidation or sale may have upon the rights, preferences or voting power
of
the holders of the Series D Preferred Stock.
6
8. Conversion.
The
Series D Preferred Stock is not convertible into or exchangeable for any other
property or securities of the Company.
9. Restrictions
on Ownership and Transfer.
Once
there is a completed public offering of the Series D Preferred Stock, if the
Board of Directors shall, at any time and in good faith, be of the opinion
that
actual or constructive ownership of at least 9.9% or more of the value of the
outstanding capital stock of the Company (“Excess Shares”) has or may become
concentrated in the hands of one owner, the Board of Directors shall have the
power (i) by means deemed equitable by the Board of Directors, and pursuant
to
written notice, to call for the purchase from any shareholder of the corporation
a number of shares of Series D Preferred Stock sufficient, in the opinion of
the
Board of Directors, to maintain or bring the direct or indirect ownership of
such beneficial owner to no more than 9.9% of the value of the outstanding
capital stock of the corporation, and (ii) to refuse to transfer or issue shares
of Series D Preferred Stock to any person whose acquisition of such Series
D
Preferred Stock would, in the opinion of the Board of Directors, result in
the
direct or indirect ownership by that person of more than 9.9% of the value
of
the outstanding capital stock of the Company. The purchase price for any shares
of Series D Preferred Stock shall be equal to the fair market value of the
shares reflected in the closing sales price for the shares, if then listed
on a
national securities exchange, or if the shares are not then listed on a national
securities exchange, the purchase price shall be equal to the redemption price
of such shares of Series D Preferred Stock. Payment of the purchase price shall
be made within thirty days following the date set forth in the notice of call
for purchase and shall be made in such manner as may be determined by the Board
of Directors of the Company. From and after the date fixed for purchase by
the
Board of Directors, as set forth in the notice, the holder of any shares so
called for purchase shall cease to be entitled to dividends, and other benefits
with respect to such shares, excepting only the right to payment of the purchase
price fixed as aforesaid. Any transfer of Series D Preferred Shares that would
create an actual or constructive owner of more than 9.9% of the value of the
outstanding shares of capital stock of this Company shall be deemed void
ab
initio
and the
intended transferee shall be deemed never to have had an interest therein.
If
the foregoing provision is determined to be void or invalid by virtue of any
legal decision, statute, rule or regulation, then the transferee of such Series
D Preferred Shares shall be deemed, at the option of the corporation, to have
acted as agent on behalf of the Company in acquiring such shares and to hold
such shares on behalf of the Company.
Notwithstanding
anything herein to the contrary, the Company and its transfer agent may refuse
to transfer any shares of Series D Preferred Stock, passing either by voluntary
transfer, by operation of law, or under the last will and testament of any
shareholder if such transfer would or might, in the opinion of the Board of
Directors or counsel to the Company, disqualify the Company as a Real Estate
Investment Trust under the Internal Revenue Code. Nothing herein contained
shall
limit the ability of the corporation to impose or to seek judicial or other
imposition of additional restrictions if deemed necessary or advisable to
preserve the Company’s tax status as a qualified Real Estate Investment Trust.
Nothing herein contained shall preclude settlement of any transaction entered
into through the facilities of the New York Stock Exchange.
7
10. No
Preemptive Rights.
No
holder
of Series D Preferred Shares shall be entitled to any preemptive rights
to
subscribe for or acquire any unissued shares of Preferred Stock of the Company
(whether now or hereafter authorized) or securities of the Company convertible
into or carrying a right to subscribe to or acquire shares of Preferred Stock
of
the Company.
FOURTH:
The
re-classification and classification of authorized but unissued shares as set
forth in these Articles Supplementary does not increase the authorized capital
of the Company or the aggregate par value thereof.
FIFTH:
These
Articles Supplementary have been approved by the Board of Directors in the
manner and by the vote required by law.
SIXTH:
The
undersigned President of the Company acknowledges these Articles Supplementary
to be the corporate act of the Company and, as to all matters or facts required
to be verified under oath, the undersigned President of the Company acknowledges
that to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made under
the penalties for perjury.
[Balance
of page intentionally left blank]
8
IN
WITNESS WHEREOF,
the
Company has caused these Articles Supplementary to be executed under seal in
its
name and on its behalf by its President and attested to by its Secretary on
this
10th day of February, 2004.
|
ATTEST
By:
/s/
Daniel J. Booth
Name: Daniel
J. Booth
Title: Secretary
and Chief Operating Officer
|
OMEGA
HEALTHCARE INVESTORS, INC.
By:
/s/
C. Taylor Pickett
Name:
C.
Taylor Pickett
Title: President
and Chief Executive Officer
|
9
OMEGA
HEALTHCARE INVESTORS, INC.
ARTICLES
SUPPLEMENTARY
Omega
Healthcare Investors, Inc., a Maryland corporation (“Company”), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
Pursuant to authority contained in the Charter: (i) Two Million Three Hundred
Thousand (2,300,000) shares of authorized but unissued shares of the Company’s
Series A Cumulative Preferred Stock; and (ii) Nine Hundred Sixty Thousand Five
Hundred (960,500) shares of authorized but unissued shares of the Company’s
Series C Convertible Preferred Stock, have been duly reclassified by the Board
of Directors of the Company as authorized but unissued shares of the Company’s
Preferred Stock, par value $1.00 per share as described in Article IV, Section
2
of the Articles of Incorporation of the Company, without designation as to
series.
SECOND.
The
re-classification and classification of authorized but unissued shares as set
forth in these Articles Supplementary does not increase the authorized capital
of the Company or the aggregate par value thereof.
THIRD:
These
Articles Supplementary have been approved by the Board of Directors in the
manner and by the vote required by law.
FOURTH:
The
undersigned President of the Company acknowledges these Articles Supplementary
to be the corporate act of the Company and, as to all matters or facts required
to be verified under oath, the undersigned President of the Company acknowledges
that to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made under
the penalties for perjury.
1
IN
WITNESS WHEREOF,
the
Company has caused these Articles Supplementary to be executed under seal in
its
name and on its behalf by its President and attested to by its Secretary on
this
30th
day of
June, 2004.
|
ATTEST
By:
/s/
Daniel J. Booth
Name: Daniel
J. Booth
Title: Secretary
and Chief Operating Officer
|
OMEGA
HEALTHCARE INVESTORS, INC.
By:
/s/
C. Taylor Pickett
Name:
C.
Taylor Pickett
Title: President
and Chief Executive Officer
|
2
OMEGA
HEALTHCARE INVESTORS, INC.
ARTICLES
SUPPLEMENTARY
Omega
Healthcare Investors, Inc., a Maryland corporation (“Company”), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST:
Pursuant to authority contained in the Charter: Two Million (2,000,000) shares
of authorized but unissued shares of the Company’s Series B Cumulative Preferred
Stock have been duly reclassified by the Board of Directors of the Company
as
authorized but unissued shares of the Company’s Preferred Stock, par value $1.00
per share as described in Article IV, Section 2 of the Articles of Incorporation
of the Company, without designation as to series.
SECOND.
The
re-classification and classification of authorized but unissued shares as set
forth in these Articles Supplementary does not increase the authorized capital
of the Company or the aggregate par value thereof.
THIRD:
These
Articles Supplementary have been approved by the Board of Directors in the
manner and by the vote required by law.
FOURTH:
The
undersigned President of the Company acknowledges these Articles Supplementary
to be the corporate act of the Company and, as to all matters or facts required
to be verified under oath, the undersigned President of the Company acknowledges
that to the best of his knowledge, information and belief, these matters and
facts are true in all material respects and that this statement is made under
the penalties for perjury.
3
IN
WITNESS WHEREOF,
the
Company has caused these Articles Supplementary to be executed under seal in
its
name and on its behalf by its President and attested to by its Secretary on
this
_____ day of June, 2005.
|
ATTEST
By:
/S/
DANIEL J. BOOTH
Name: Daniel
J. Booth
Title: Secretary
and Chief Operating Officer
|
OMEGA
HEALTHCARE INVESTORS, INC.
By:
/S/
C. TAYLOR PICKETT
Name:
C.
Taylor Pickett
Title: President
and Chief Executive Officer
|
|
|
4