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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
November 3, 1999
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Date of Report (Date of earliest event reported)
STARWOOD FINANCIAL INC.
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(Exact Name of Registrant as Specified in its Charter)
MARYLAND 1 - 10150 APPLIED FOR
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(State of Organization) (Commission File Number) (IRS Employer
Identification No.)
1114 AVENUE OF THE AMERICAS, 27TH FLOOR
NEW YORK, NY 10036
(Address of Registrant's Principal Executive Office) (Zip Code)
(212) 930-9494
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(Registrant's telephone number, including area code)
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Item 2. ACQUISITION OR DISPOSITION OF ASSETS.
On November 3, 1999, Starwood Financial Trust, a Maryland real
estate investment trust ("SFT") was merged with and into Starwood Financial
Inc., a Maryland corporation ("SFI"). The purpose of the merger was to change
SFT's form from a trust to a corporation and to eliminate SFT's dual share
structure. In this merger, each issued and outstanding SFT Class A share of
beneficial interest was converted into one share of SFI common stock. Each
issued and outstanding SFT Class B share of beneficial interest was converted
into one forty-ninth of one share of SFI common stock. Each issued and
outstanding 9.5% Series A Preferred Share of SFT was converted into one share
of 9.5% Series A Preferred Stock of SFI. The terms of the SFI 9.5% Series A
Preferred Stock are substantially the same as the terms of the SFT 9.5%
Series A Preferred Shares. SFI intends to continue to elect to be taxed as a
real estate investment trust.
On November 4, 1999, ST Merger Sub, Inc., a Maryland corporation
("STM") wholly owned by SFI, was merged with and into TriNet Corporate Realty
Trust, Inc., a Maryland corporation ("TriNet"). In the merger, each issued and
outstanding share of common stock of TriNet was converted into 1.15 shares of
common stock of SFI. Each issued and outstanding share of 9.375% Series A
Preferred Stock of TriNet was converted into one share of 9.375% Series B
Preferred Stock of SFI. Each issued and outstanding share of 9.2% Series B
Preferred Stock of TriNet was converted into one share of 9.2% Series C
Preferred Stock of SFI. Each issued and outstanding share of 8.0% Series C
Preferred Stock of TriNet was converted into one share of 8.0% Series D
Preferred Stock of SFI. The terms of the SFI Series B, C and D Preferred Stock
are substantially the same as the terms of the TriNet Series A, B and C
Preferred Stock, respectively, except that each share of SFI Series B, C and D
Preferred Stock will be entitled to twenty-five one hundredths of one vote on
all matters submitted to the holders of SFI common stock, voting with the common
stock as a single class.
Simultaneously with the merger described in the preceding paragraph, SA
Merger Sub, Inc., a Delaware corporation ("SAM") wholly owned by SFI, was merged
with and into STW Holdings I, Inc., a Delaware corporation ("STW"). The purpose
of this merger was to internalize SFI's outside advisor. In this merger, each
issued and outstanding share of common stock of STW was converted into 2661.3
shares of common stock of SFI. As a result of this merger, SFI will become a
completely self-managed and self-advised company.
Item 5. OTHER EVENTS.
As previously announced, SFI's Board of Directors has authorized the
company to purchase up to five million shares of its common stock from time
to time in the open market or through negotiated transactions.
Item 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) FINANCIAL STATEMENTS.
The audited financial statements of SFT for the year ended
December 31, 1998 are incorporated by reference to SFT's
Annual Report on Form 10-K for that year. The unaudited
financial statements for the three months ended March 31, 1999
and the six months ended June 30, 1999 are incorporated by
reference to SFT's Form 10-Q filed on May 14, 1999 and August
11, 1999, respectively.
The audited financial statements of TriNet for the year ended
December 31, 1998 are incorporated by reference to TriNet's
Annual Report on Form 10-K for that year. The unaudited
financial statements for the three months ended March 31, 1999
and the six months ended June 30, 1999 are incorporated by
reference to TriNet's Form 10-Q filed on May 17, 1999 and
August 13, 1999, respectively.
(b) PRO FORMA FINANCIAL INFORMATION.
The Pro Forma Consolidating Balance Sheets as of June 30,
1999, the Pro Forma Consolidating Statements of Operations for
the six months ended June 30, 1999 and for the year ended
December 31, 1998, and the Notes and Management's Assumptions
to Unaudited Pro Forma
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Consolidating Financial Statements of SFT, reflecting
post-proxy transactions are incorporated by reference to SFT's
Form S-4, as amended, filed August 25, 1999.
The Pro Forma Consolidating Statements of Operations for the
year ended December 31, 1998, and the Notes and Management's
Assumptions to Unaudited Pro Forma Consolidating Financial
Statements of SFT, reflecting pre-proxy transactions are
incorporated by reference to SFT's Form S-4, as amended, filed
August 25, 1999.
The Pro Forma Consolidating Statements of Operations for the
year ended December 31, 1998, and the Notes and Management's
Assumptions to Unaudited Pro Forma Consolidating Financial
Statements of TRI, reflecting pre-proxy transactions are
incorporated by reference to SFT's Form S-4, as amended, filed
August 25, 1999.
(c) EXHIBITS.
2.1 Agreement and Plan of Merger, dated as of June 15,
1999, by and between Starwood Financial Trust, ST
Merger Sub, Inc. and TriNet Corporate Realty Trust,
Inc. (incorporated by reference to exhibit 10.1 of
Starwood Financial Trust's Form 8-K, dated June 22,
1999).
2.2 Agreement and Plan of Merger, dated as of June 15,
1999, by and between Starwood Financial Trust,
Starwood Financial Inc. and, to the extent described
therein, TriNet Corporate Realty Trust, Inc.
(incorporated by reference to exhibit 10.2 of
Starwood Financial Trust's Form 8-K, dated June 22,
1999).
2.3 Agreement and Plan of Merger and Interest
Contribution Agreement, dated as of June 15, 1999, by
and between Starwood Financial Trust, SA Merger Sub,
Inc., STW Holdings I, Inc., certain stockholder named
therein, Starwood Capital Group, LLC and, to the
extent described therein, TriNet Corporate Realty
Trust, Inc. (incorporated by reference to exhibit
10.3 of Starwood Financial Trust's Form 8-K, dated
June 22, 1999).
2.4 First Amendment to the Agreement and Plan of Merger,
dated as of September 15, 1999, by and between
Starwood Financial Trust, ST Merger Sub, Inc. and
TriNet Corporate Realty Trust, Inc.
2.5 Second Amendment to the Agreement and Plan of Merger,
dated as of October __, 1999, by and between
Starwood Financial Trust, ST Merger Sub, Inc. and
TriNet Corporate Realty Trust, Inc.
4.1 Amended and Restated Charter of Starwood Financial
Inc.
4.2 Amended and Restated By-Laws of Starwood Financial
Inc.
23.1 Consent of PricewaterhouseCoopers LLP (New York).
23.2 Consent of PricewaterhouseCoopers LLP
(San Francisco).
99.1 Press Release re: stock repurchase program
described in Item 5 above.
99.2 Press Release re: shareholder approvals of the
transactions described in Item 2 above.
99.3 Press Release re: closing of the transactions
described in Item 2 above.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
STARWOOD FINANCIAL INC.
By: /s/ Spencer B. Haber
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Name: Spencer B. Haber
Title: Executive Vice President-Finance and
Chief Financial Officer
Date: November 9, 1999
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EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
2.1 Agreement and Plan of Merger, dated as of June 15,
1999, by and between Starwood Financial Trust, ST
Merger Sub, Inc. and TriNet Corporate Realty Trust,
Inc. (incorporated by reference to exhibit 10.1 of
Starwood Financial Trust's Form 8-K, dated June 22,
1999).
2.2 Agreement and Plan of Merger, dated as of June 15,
1999, by and between Starwood Financial Trust,
Starwood Financial Inc. and, to the extent described
therein, TriNet Corporate Realty Trust, Inc.
(incorporated by reference to exhibit 10.2 of
Starwood Financial Trust's Form 8-K, dated June 22,
1999).
2.3 Agreement and Plan of Merger and Interest
Contribution Agreement, dated as of June 15, 1999, by
and between Starwood Financial Trust, SA Merger Sub,
Inc., STW Holdings I, Inc., certain stockholder named
therein, Starwood Capital Group, LLC and, to the
extent described therein, TriNet Corporate Realty
Trust, Inc. (incorporated by reference to exhibit
10.3 of Starwood Financial Trust's Form 8-K, dated
June 22, 1999).
2.4 First Amendment to the Agreement and Plan of Merger,
dated as of September 15, 1999, by and between
Starwood Financial Trust, ST Merger Sub, Inc. and
TriNet Corporate Realty Trust, Inc.
2.5 Second Amendment to the Agreement and Plan of Merger,
dated as of October __, 1999, by and between
Starwood Financial Trust, ST Merger Sub, Inc. and
TriNet Corporate Realty Trust, Inc.
4.1 Amended and Restated Charter of Starwood Financial
Inc.
4.2 Amended and Restated By-Laws of Starwood Financial
Inc.
23.1 Consent of PricewaterhouseCoopers LLP (New York).
23.2 Consent of PricewaterhouseCoopers LLP
(San Francisco).
99.1 Press Release re: stock repurchase program described in
Item 5 above.
99.2 Press Release re: shareholder approvals of the transactions
described in Item 2 above.
99.3 Press Release re: closing of the transactions described in
Item 2 above.
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Exhibit 2.4
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated as of September __, 1999 (the "AMENDMENT"), by
and among STARWOOD FINANCIAL TRUST, a Maryland real estate investment trust
("STARWOOD"), ST MERGER SUB, INC., a Delaware corporation ("STARWOOD SUB") and
TRINET CORPORATE REALTY TRUST, INC., a Maryland corporation ("TRINET").
RECITALS
A. Starwood, Starwood Sub, and TriNet are parties (the "PARTIES") to
that certain Agreement and Plan of Merger dated as of June 15, 1999 (the
"ORIGINAL AGREEMENT").
B. The Parties desire to enter into this Amendment for the purpose of
amending certain provisions of the Original Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants herein contained, the Parties hereby agree as follows:
1. AMENDMENT TO SECTION 5.11. Clause (x) of subparagraph (i) of Section
5.11(b) of the Original Agreement is hereby amended and restated in its entirety
as follows:
"(x) the product of (A) the Market Price, (B) the number of shares of
TriNet Common Stock subject to such TriNet Stock Options and (C) the
Exchange Ratio. . . ."
2. AMENDMENT TO SECTION 9.2. The notice information for TriNet set
forth in Section 9.2(b) of the Original Agreement is hereby amended and restated
in its entirety as follows:
(b) if to TriNet, to
TriNet Corporate Realty Trust, Inc.
One Embarcadero Center
33rd Floor
San Francisco, California 94111
Attn: Geoff Dugan, Esq.
Fax: (415) 391-3092
3. EXHIBITS. EXHIBITS J, K AND L of the Original Agreement are hereby
amended and replaced in their entirety with EXHIBITS J, K AND L to this
Amendment.
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IN WITNESS WHEREOF, Starwood, Starwood Sub and TriNet have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
STARWOOD FINANCIAL TRUST
By: /s/ Spencer B. Haber
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Name: Spencer B. Haber
Title: Chief Financial Officer
ST MERGER SUB, INC.
By: /s/ Spencer B. Haber
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Name: Spencer B. Haber
Title: Chief Financial Officer
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ Elisa F. DiTomasso
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Name: Elisa F. DiTomasso
Title: Chief Financial Officer
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EXHIBIT J
FORM OF CHARTER OF NEW STARWOOD
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EXHIBIT K
FORM OF BYLAWS OF NEW STARWOOD
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EXHIBIT L
FORM OF ARTICLES SUPPLEMENTARY FOR EACH
CLASS OF NEW STARWOOD PREFERRED STOCK
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Exhibit 2.5
AMENDMENT NO. 2
TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 2, dated as of October __, 1999 (the "AMENDMENT"), by and
among STARWOOD FINANCIAL TRUST, a Maryland real estate investment trust
("STARWOOD"), ST MERGER SUB, INC., a Maryland corporation ("STARWOOD Sub") and
TRINET CORPORATE REALTY TRUST, INC., a Maryland corporation ("TRINET").
RECITALS
A. Starwood, Starwood Sub, and TriNet are parties (the "PARTIES") to
that certain Agreement and Plan of Merger dated as of June 15, 1999, as amended
through the date hereof (the "ORIGINAL AGREEMENT").
B. The Parties desire to enter into this Amendment for the purpose of
amending certain provisions of the Original Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
covenants herein contained, the Parties hereby agree as follows:
1. EXHIBITS. EXHIBITS H AND I of the Original Agreement are hereby
amended and replaced in their entirety with EXHIBITS H AND I to this Amendment,
and SCHEDULE G of the Original Agreement is hereby amended and replaced in its
entirety by SCHEDULE G to this Amendment.
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IN WITNESS WHEREOF, Starwood, Starwood Sub and TriNet have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
STARWOOD FINANCIAL TRUST
By: /s/ Jay Sugarman
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Name: Jay Sugarman
Title: President and Chief Executive
Officer
ST MERGER SUB, INC.
By: /s/ Jay Sugarman
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Name: Jay Sugarman
Title: President and Chief Executive
Officer
TRINET CORPORATE REALTY TRUST, INC.
By: /s/ Robert W. Holman, Jr.
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Name: Robert W. Holman, Jr.
Title: Chief Executive Officer
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EXHIBIT H
FORM OF CHARTER OF SURVIVING CORPORATION
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EXHIBIT I
FORM OF BYLAWS OF SURVIVING CORPORATION
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SCHEDULE G
DIRECTORS OF SURVIVING CORPORATION
Barry S. Sternlicht Jeffrey G. Dishner Robin Josephs
Jay Sugarman Jonathan D. Eilian Merrick R. Kleeman
Spencer B. Haber Madison F. Grose William M. Matthes
Willis Andersen, Jr. Robert W. Holman, Jr. John G. McDonald
Stephen B. Oresman Kneeland C. Youngblood [special director]
George R. Puskar
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STARWOOD FINANCIAL INC.
AMENDED AND RESTATED CHARTER
ARTICLE I
INCORPORATION
The undersigned, Michael E. McTiernan, whose address is c/o Rogers &
Wells LLP, 200 Park Avenue, New York, New York 10166, being at least 18 years of
age, does hereby form a corporation under the general laws of the State of
Maryland.
ARTICLE II
NAME
The name of the corporation (the "Corporation") is: Starwood Financial
Inc.
ARTICLE III
PURPOSE
(a) The purposes for which the Corporation is formed and the business
and objects to be carried on and promoted by it are to engage in any lawful act
or activity (including, without limitation or obligation, engaging in business
as a REIT) for which corporations may be organized under the General Laws of the
State of Maryland as now or hereafter in force. In addition, the Corporation
shall have such further powers as are not inconsistent with, and are appropriate
to promote and attain, the purposes of the Corporation as set forth in this
Charter. For purposes of this Charter, "REIT" means a real estate investment
trust under Sections 856 through 860 of the Code.
(b) The primary purposes of the Corporation include to acquire a
diversified portfolio of debt and/or debt like interests in real estate and/or
real estate related assets, including (i) originating mortgage loans and/or
acquiring mortgage loans or acquiring securities collateralized, in whole or in
part, by such mortgage loans, as well as making equity investments in real
estate and real estate-related assets, (ii) acquiring direct or indirect
interests in short term, medium and long-term real estate-related debt
securities and mortgage interests, which may include warrants, equity
participations or similar rights incidental to a debt investment by the
Corporation, (iii) making, holding and disposing of purchase money loans with
respect to assets sold by the Corporation, and (iv) acquiring positions in
non-performing and sub-performing debt for the purpose of either restructuring
it as performing debt or if such efforts are unsuccessful, of obtaining shortly
thereafter primary management rights over or equity interests in the underlying
assets securing such debt (the "Diversified Portfolio"). Such investments may
incorporate a variety of real property equity and financing techniques,
including, without limitation, partnerships, joint ventures, purchase and
leasebacks, land purchase-leases, net lease financings, purchase and installment
salebacks, and Mortgages. The Corporation's authority with respect to the
Diversified Portfolio includes the power to acquire, hold, own, develop,
redevelop, construct, improve, maintain, operate, manage, sell, lease, rent,
transfer, encumber, mortgage, convey, exchange and otherwise dispose
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of all or part of the Diversified Portfolio and the Diversified Portfolio may be
held by the Corporation directly or indirectly.
(c) Without the amendment, termination or waiver of provisions of
certain non-competition agreements between Starwood Capital Group, L.P. and
Starwood Hotels & Resorts, Inc., a publicly traded hotel corporation and
Starwood Hotels & Resorts Worldwide, Inc., the Corporation is prohibited from:
(i) making investments in loans collateralized by hotel assets where it is
anticipated that the underlying equity will be acquired by the debt holder
within one (1) year from the acquisition of such debt, (ii) acquiring equity
interests in hotels (other than acquisitions of warrants, equity participations
or similar rights incidental to a debt investment by the Corporation or that are
acquired as a result of the exercise of remedies in respect of a loan in which
the Corporation has an interest) or (iii) selling or contributing to or
acquiring any interests in Starwood Hotels & Resorts, Inc., including debt
positions or equity interests obtained by the Corporation under, pursuant to or
by reason of the holding of debt positions.
(d) The foregoing enumerated purposes and objects shall be in no way
limited or restricted by reference to, or inference from, the terms of any other
clause of this or any other Article of this Charter, and each shall be regarded
as independent; and they are intended to be and shall be construed as powers as
well as purposes and objects of the Corporation and shall be in addition to and
not in limitation of the general powers of corporations under the General Laws
of the State of Maryland.
ARTICLE IV
PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT
The present 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 and present address of the resident agent of
the Corporation in the State of Maryland are The Corporation Trust Incorporated,
32 South Street, Baltimore, Maryland 21202. The resident agent is a corporation
of and resident of the State of Maryland. The Corporation may have such other
offices or places of business within or without the State of Maryland as the
Board may from time to time determine.
ARTICLE V
CAPITAL STOCK
(a) The total number of shares of stock of all classes which the
Corporation has authority to issue is 230,000,000 shares of Capital Stock (par
value $0.001 per share), amounting in aggregate par value to $230,000. Of these
shares, 200,000,000 are initially classified as "Common Stock" and 30,000,000
are initially classified as "Preferred Stock." Of the shares of Preferred Stock,
4,400,000 shares are initially classified as 9.5% Series A Cumulative Redeemable
Preferred Stock ("Series A Preferred Stock"), 2,300,000 shares are initially
classified as 9 3/8% Series B Cumulative Redeemable Preferred Stock ("Series B
Preferred Stock"), 1,495,000 shares are initially classified as 9.20% Series C
Cumulative Redeemable Preferred Stock ("Series C Preferred Stock"), and
4,600,000 shares are initially classified as 8% Series D Cumulative Redeemable
Preferred Stock ("Series D Preferred Stock"). Subject to the other provisions of
this Article V, the Board may: (i) classify and reclassify any unissued shares
of Capital Stock by setting or changing in any one or more respects the
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications or
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terms or conditions of redemption of such shares of Capital Stock and (ii) to
the extent permitted by Maryland law from time to time, without any action by
the Stockholders, amend the Charter from time to time to increase or decrease
the aggregate number of shares of Capital Stock or the number of shares of
Capital Stock of any class or series that the Corporation has authority to
issue.
(b) The following is a description of the preferences, conversion and
other rights, voting powers, restrictions, limitations as to dividends,
qualifications and terms and conditions of redemption of the Common Stock of the
Corporation:
(i) Each share of Common Stock shall have one vote, and,
except as otherwise provided in respect of the Preferred Stock and in
respect of any other class of stock hereafter classified or
reclassified, the exclusive voting power for all purposes shall be
vested in the holders of the Common Stock. Shares of Common Stock shall
not have cumulative voting rights.
(ii) Subject to the provisions of law and any preferences of
the Preferred Stock or any other class of stock hereafter classified or
reclassified, dividends, including dividends payable in shares of
another class of the Corporation's stock, may be paid ratably on the
Common Stock at such time and in such amounts as the Board may deem
advisable.
(iii) In the event of any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the holders of
the Common Stock shall be entitled, together with the holders of any
other class of stock hereafter classified or reclassified not having a
preference on distributions in the liquidation, dissolution or winding
up of the Corporation, to share ratably in the net assets of the
Corporation remaining, after payment or provision for payment of the
debts and other liabilities of the Corporation and the amount to which
the holders of any class of stock hereafter classified or reclassified
having a preference on distributions in the liquidation, dissolution or
winding up of the Corporation shall be entitled.
(c) The description of the preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of the Series A Preferred Stock, the Series B
Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock
of the Corporation are set forth in Annex A, Annex B, Annex C and Annex D to
this Charter, respectively.
(d) Subject to the foregoing, the power of the Board to classify and
reclassify any of the shares of Capital Stock shall include, without limitation,
subject to the provisions of this Charter, authority to classify or reclassify
any unissued shares of Capital Stock into a class or classes of preferred stock,
preference stock, special stock or other stock, and to divide and classify
shares of any class into one or more series of such class by determining,
fixing, or altering one or more of the following:
(i) The distinctive designation of such class or series and
the number of shares to constitute such class or series; provided that,
unless otherwise prohibited by the terms of such or any other class or
series, the number of shares of any class or series may be decreased by
the Board in connection with any classification or reclassification of
unissued shares and the number of shares of such class or series may be
increased by the Board in connection with any such classification or
reclassification, and any shares of any class or series which have been
redeemed, purchased, otherwise acquired or converted into shares of
Common Stock or any other class or series shall no longer be deemed to
be outstanding and shall become part of the
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authorized Capital Stock and be subject to classification and
reclassification as provided in this sub-paragraph.
(ii) Whether or not and, if so, the rates, amounts and times
at which, and the terms and conditions under which, dividends shall be
payable on shares of such class or series, whether any such dividends
shall rank senior or junior to or on a parity with the dividends
payable on any other class or series of stock, and the status of any
such dividends as cumulative, cumulative to a limited extent or
non-cumulative and as participating or non-participating.
(iii) Whether or not shares of such class or series shall have
limitations on voting rights or voting rights in addition to any voting
rights provided by law, and, if so, the terms of such voting rights.
(iv) Whether or not shares of such class or series shall have
conversion or exchange privileges and, if so, the terms and conditions
thereof, including provision for adjustment of the conversion or
exchange rate in such events or at such times as the Board shall
determine.
(v) Whether or not shares of such class or series shall be
subject to redemption and, if so, the terms and conditions of such
redemption, including the date or dates upon or after which they shall
be redeemable and the amount per share payable in case of redemption,
which amount may vary under different conditions and at different
redemption dates; and whether or not there shall be any sinking fund or
purchase account in respect thereof, and if so, the terms thereof.
(vi) The rights of the holders of shares of such class or
series upon the liquidation, dissolution or winding up of the affairs
of, or upon any distribution of the assets of, the Corporation, which
rights may vary depending upon whether such liquidation, dissolution or
winding up is voluntary or involuntary and, if voluntary, may vary at
different dates, and whether such rights shall rank senior or junior to
or on a parity with such rights of any other class or series of stock.
(vii) Whether or not there shall be any limitations
applicable, while shares of such class or series are outstanding, upon
the payment of dividends or making of distributions on, or the
acquisition of, or the use of moneys for purchase or redemption of, any
stock of the Corporation, or upon any other action of the Corporation,
including action under this sub-paragraph, and, if so, the terms and
conditions thereof.
(viii) Any other preferences, rights, restrictions, including
restrictions on transferability, and qualifications of shares of such
class or series, not inconsistent with law and the Charter.
(e) For the purposes hereof and of any articles supplementary to the
Charter providing for the classification or reclassification of any shares of
Capital Stock or of any other Charter document of the Corporation (unless
otherwise provided in any such articles or document), any class or series of
stock of the Corporation shall be deemed to rank:
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(i) prior to another class or series either as to dividends or
upon liquidation, if the holders of such class or series shall be
entitled to the receipt of dividends or of amounts distributable on
liquidation, dissolution or winding up, as the case may be, in
preference or priority to holders of such other class or series;
(ii) on a parity with another class or series either as to
dividends or upon liquidation, whether or not the dividend rates,
dividend payment dates or redemption or liquidation price per share
thereof be different from those of such others, if the holders of such
class or series of stock shall be entitled to receipt of dividends or
amounts distributable upon liquidation, dissolution or winding up, as
the case may be, in proportion to their respective dividend rates or
redemption or liquidation prices, without preference or priority over
the holders of such other class or series; and
(iii) junior to another class or series either as to dividends
or upon liquidation, if the rights of the holders of such class or
series shall be subject or subordinate to the rights of the holders of
such other class or series in respect of the receipt of dividends or
the amounts distributable upon liquidation, dissolution or winding up,
as the case may be.
(f) All persons who shall acquire stock in the Corporation shall
acquire such stock subject to the provisions of this Charter and the Bylaws of
the Corporation. The Directors shall have the exclusive power to make, adopt,
amend, or repeal the Bylaws of the Corporation to the extent not inconsistent
with law or with this Charter.
ARTICLE VI
BOARD OF DIRECTORS
(a) The initial number of Directors of the Corporation shall be 10,
which number may be increased or decreased, from time to time, by resolution of
the Board approved by at least a majority of the Directors then in office
pursuant to the Bylaws of the Corporation, or by the affirmative vote of the
holders of a majority of the combined voting power of all shares of Capital
Stock entitled to vote thereon, voting together as a single class, provided that
the number of Directors so fixed shall not be less than seven nor more than 18,
and shall never be less than the minimum number permitted by the MGCL now or
hereafter in force.
(b) Subject to the rights of the holders of any class separately
entitled to elect one or more Directors, newly created Directorships resulting
from any increase in the authorized number of Directors or any vacancies on the
Board resulting from death, resignation, retirement, disqualification, removal
from office, or other cause shall be filled by resolution of the Board approved
by at least a majority of the Directors then in office, pursuant to the Bylaws
or by the affirmative vote of the holders of a majority of the votes cast at a
meeting at which a quorum is present. A Director so elected by the stockholders
shall hold office for the balance of the term then remaining. No decrease in the
number of Directors shall affect the tenure of office of any Director. Until
vacancies are filled, the remaining Directors (even though less than seven) may
exercise the powers of the Board hereunder.
(c) Whenever the holders of any one or more series of Capital Stock of
the Corporation shall have the right, voting separately as a class, to elect one
or more Directors of the Corporation, the Board shall consist of said Directors
so elected in addition to the number of Directors fixed as provided in paragraph
(a) of this Article VI. Notwithstanding the foregoing, and except as
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otherwise may be required by law or by this Charter, whenever the holders of any
one or more series of Capital Stock of the Corporation shall have the right,
voting separately as a series, to elect one or more Directors of the
Corporation, the terms of the Director or Directors elected by such holders
shall expire at the next succeeding annual meeting of Stockholders.
(d) Subject to the rights of the holders of any series separately
entitled to elect one or more Directors, any Director, or the entire Board of
Directors, may be removed from office at any time, with or without cause, at a
special meeting of the Stockholders by the affirmative vote of a majority of the
holders of the combined voting power of all classes of shares of Capital Stock
entitled to vote in the election for Directors voting together as a single
class. For purposes of the foregoing, "cause" shall mean a Director's willful
violations of this Charter or the Bylaws which violations are materially adverse
to the interests of the Stockholders, or gross negligence in the performance of
his or her duties.
(e) The Directors shall be divided into two classes as follows:
(i) the term of office of Class I Directors shall be until the
annual meeting of Stockholders held in the year 2000 and until their
successors shall be elected and have qualified and thereafter shall be
for two years and until their successors shall be elected and have
qualified; and
(ii) the term of office of Class II Directors shall be until
the annual meeting of Stockholders held in the year 2001 and until
their successors shall be elected and have qualified and thereafter
shall be for two years and until their successors shall be elected, and
have qualified.
If the number of Directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain or attain, if possible, the
equality of the number of Directors in each class.
(f) The names of the individuals who now serve as Directors of the
Corporation and until their successors are elected and qualify are as follows:
(i) The following person shall serve as Class I Directors:
Jeffrey G. Dishner
Jonathan Eilian
Robin Josephs
Merrick R. Kleeman
Madison F. Grose
(ii) The following persons shall serve as Class II Directors:
Barry S. Sternlicht
Jay Sugarman
William M. Mathes
Kneeland C. Youngblood
Spencer B. Haber
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(g) A minimum of the greater of (i) 33-1/3% of the total number of
Directors or (ii) three (3) members of the Board and the Executive Committee (as
established in the Bylaws) of the Board shall be Persons who are not Affiliates
of Starwood Capital Group, L.L.C.; provided, however, that if at any time the
number of Directors or members of the Executive Committee who are not Affiliates
of such Person becomes less than the minimum number set forth above, whether
because of the death, resignation, removal, or change in affiliation of one or
more Directors or members of the Executive Committee or otherwise, then such
requirement shall not be applicable for a period of ninety (90) days after such
event occurs, during which period the continuing Directors or Director then in
office shall appoint, pursuant to paragraph (b) of Article VI, a sufficient
number of other individuals as Directors or as members of the Executive
Committee so that again a minimum of the greater of (i) 33-1/3% of the total
number of Directors or (ii) three (3) members of the Board and the Executive
Committee then in office are not Affiliates of such Person. The Directors shall
at all times endeavor to comply with the requirement of this paragraph (i) of
Article VII as to independence, but failure so to comply with such requirement
shall not affect the validity or effectiveness of any action of the Directors or
of the Executive Committee.
ARTICLE VII
PROVISIONS FOR DEFINING, LIMITING
AND REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS
(a) The Board is empowered to authorize the issuance from time to time
of shares of Capital Stock of the Corporation of any class or series, whether
now or hereafter authorized, or Securities or rights convertible into shares of
its stock of any class or series, whether now or hereafter authorized, for such
consideration as the Board may deem advisable and without any action by the
Stockholders.
(b) No holder of any stock or any other Securities of the Corporation,
whether now or hereafter authorized, shall have any preemptive right to
subscribe for or purchase any stock or any other Securities of the Corporation
other than such, if any, as the Board, in its sole discretion, may determine and
at such price or prices and upon such other terms as the Board, in its sole
discretion, may fix; and any stock or other Securities which the Board may
determine to offer for subscription may, as the Board in its sole discretion
shall determine, be offered to the holders of any class or series of stock or
other Securities at the time outstanding to the exclusion of the holders of any
or all other classes or series of stock or other securities at the time
outstanding.
(c) The Corporation shall indemnify (i) its Directors and officers,
whether serving the Corporation or, at its request, any other entity, to the
full extent required or permitted by the General Laws of the State of Maryland
now or hereafter in force, including the advance or reimbursement of reasonable
expenses as incurred (including reasonable attorneys fees) under the procedures
and to the full extent permitted by law and (ii) other employees and agents to
such extent as shall be authorized by the Board or the Corporation's Bylaws and
be permitted by law. The foregoing rights of indemnification shall not be
exclusive of any other rights to which those seeking indemnification may be
entitled. The Board may take such action as is necessary to carry out these
indemnification provisions and is expressly empowered to adopt, approve and
amend from time to time such Bylaws, resolutions or contracts implementing such
provisions or such further indemnification arrangements as may be permitted by
law. No amendment of the Charter or repeal of any of its provisions shall limit
or eliminate the right to indemnification provided hereunder with respect to
acts or omissions occurring prior to such amendment or repeal.
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(d) To the fullest extent permitted by Maryland statutory or decisional
law, as amended or interpreted, no Director or officer of the Corporation shall
be personally liable to the Corporation or its Stockholders for money damages.
No amendment of the Charter of the Corporation or repeal of any of its
provisions shall limit or eliminate the limitation on liability provided to
Directors and officers hereunder with respect to any act or omission occurring
prior to such amendment or repeal. In addition to any Maryland statute limiting
the liability of directors or officers of a Maryland corporation, no Director or
officer of the Corporation shall be liable to the Corporation or to any Director
for any act or omission of any other Director, Stockholder, officer, or agent of
the Corporation or be held to any personal liability whatsoever in tort,
contract, or otherwise in connection with the affairs of this Corporation except
only that arising from his own willful violation of the provisions of this
Charter or of the Bylaws which violation is materially against the interests of
the Stockholders and results in material harm to such interests, or gross
negligence in the performance of his or her duties.
(e) The determination as to any of the following matters, made in good
faith by or pursuant to the direction of the Board consistent with the Charter
and the Bylaws and in the absence of actual receipt of an improper benefit in
money, property or services or active and deliberate dishonesty established by a
court, shall be final and conclusive and shall be binding upon the Corporation
and every holder of shares of its Capital Stock: the amount of the net income of
the Corporation for any period and the amount of assets at any time legally
available for the payment of dividends, redemption of its Capital Stock or the
payment of other distributions on its Capital Stock; the amount of paid-in
surplus, net assets, other surplus, annual or other net profit, net assets in
excess of capital, undivided profits or excess of profits over losses on sales
of assets; the amount, purpose, time of creation, increase or decrease,
alteration or cancellation of any reserves or charges and the propriety thereof
(whether or not any obligation or liability for which such reserves or charges
shall have been created shall have been paid or discharged); the fair value, or
any sale, bid or asked price to be applied in determining the fair value, of any
asset owned or held by the Corporation; any matters relating to the acquisition,
holding and disposition of any assets by the Corporation; and to determine
whether and to what extent and at what times and places and under what
conditions and regulations the books, accounts and documents of the Corporation,
or any of them, shall be open to the inspection of stockholders, except as
otherwise provided by the MGCL or by the Bylaws, and, except as so provided, no
stockholder shall have any right to inspect any book, account or document of the
Corporation unless authorized to do so by resolution of the Board.
(f) The Board shall use its reasonable best efforts to take such
actions as are necessary or appropriate to preserve the status of the
Corporation as a REIT; however, if the Board determines that it is no longer in
the best interests of the Corporation to continue to be qualified as a REIT, the
Board may revoke or otherwise terminate the Corporation's REIT election pursuant
to Section 856(g) of the Code.
(g) The Board shall, in connection with the exercise of its business
judgment involving a Business Combination (as defined in Section 3-601 of the
MGCL) or any actual or proposed transaction which would or may involve a change
in control of the Corporation (whether by purchases of shares of stock or any
other Securities of the Corporation in the open market, or otherwise, tender
offer, merger, consolidation, dissolution, liquidation, sale of all or
substantially all of the assets of the Corporation, proxy solicitation or
otherwise) in determining what is in the best interest of the Corporation and
its Stockholders and in making any recommendation to its Stockholders, give due
consideration to all relevant factors, including, but not limited to (i) the
economic effect, both immediate and long-term, upon the Corporation's
Stockholders, including Stockholders, if any, who do not participate in the
transaction; (ii) whether the proposal is acceptable based on the historical and
current operating results or financial condition of the Corporation; (iii)
whether a more favorable price could be obtained for the Corporation's stock or
other Securities in the future; (iv) the reputation and business practices of
the offeror and its
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management and affiliates as they would affect the employees of the Corporation
and its subsidiaries; (v) the future value of the stock or any other Securities
of the Corporation; (vi) any antitrust or other legal and regulatory issues that
are raised by the proposal; and (vii) the business and financial condition and
earnings prospects of the acquiring person or entity, including, but not limited
to, debt service and other existing financial obligations, financial obligations
to be incurred in connection with the acquisition, and other likely financial
obligations of the acquiring person or entity. If the Board determines that any
proposed Business Combination (as defined in Section 3-601 of the MGCL) or
actual or proposed transaction which would or may involve a change in control of
the Corporation should be rejected, it may take any lawful action to defeat such
transaction, including, but not limited to, any or all of the following:
advising Stockholders not to accept the proposal; instituting litigation against
the party making the proposal; filing complaints with governmental and
regulatory authorities; acquiring the stock or any of the Securities of the
Corporation; selling or otherwise issuing authorized but unissued stock, other
Securities, or granting options or rights with respect thereto; acquiring a
Corporation to create an antitrust or other regulatory problem for the party
making the proposal; and obtaining a more favorable offer from another
individual or entity. Nothing in this section shall preclude the Board of
Directors from specifically or generally approving or exempting business
combinations with the Corporation.
(h) Notwithstanding any provision of law permitting or requiring any
action to be taken or approved by the affirmative vote of the holders of shares
of Capital Stock entitled to cast a greater number of votes, any such action
shall be effective and valid if taken or approved by the affirmative vote of
holders of shares of Capital Stock entitled to cast a majority of all the votes
entitled to be cast on the matter, except as otherwise specifically provided in
the Charter.
(i) The Bylaws of the Corporation may be altered, amended or repealed,
and new Bylaws may be adopted, at any meeting of the Board by a majority vote of
the Directors.
(j) In the event that any provision or portion of a provision of this
Article VII is determined to be in conflict with any applicable statute, such
provision or portion thereof shall be inapplicable to the extent of such
conflict. In the event that any provision or portion of a provision of this
Article VII is determined to be invalid, void, illegal or unenforceable, the
remainder of the provisions of this Article VII shall continue to be valid and
enforceable and shall in no way be affected, impaired or invalidated. Nothing in
this Article VII shall be construed to diminish, limit or impair any rights or
defenses afforded to officers or Directors by common law, statute, other
provisions of this Charter, the Bylaws or otherwise, and the provisions of this
Article VII shall be deemed to be cumulative thereto. References in this Article
VII to Directors or officers shall be deemed to refer to any person who is or
was a Director or officer of the Corporation and any person who, while a
Director or officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, venturer, proprietor, trustee,
employee, agent or similar functionary of another corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or other
enterprise.
ARTICLE VIII
INVESTMENT POLICY
(a) GENERAL STATEMENT OF POLICY. While the Directors are authorized,
pursuant to Article VI, to invest the Corporation Assets in a wide variety of
investments, it is the present intention of the Corporation that it shall be a
principal investment objective and policy of the Corporation to invest the
Corporation Assets in the Diversified Portfolio.
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Investments of the Corporation may be made in various combinations and
may involve participations with other Persons, including Affiliates of the
Directors. Such investments may incorporate a variety of real property equity
and financing techniques, including, without limitation, partnerships, joint
ventures, purchase and leasebacks, land purchase-leases, net lease financings,
purchase and installment salebacks, and Mortgages, and include investments
through subsidiary corporations and other entities.
The general purpose of the Corporation is to seek qualifying real
estate investment trust gross income as defined in the REIT Provisions of the
Code consistent with the investment objective and policy of the Corporation as
set forth above. The Directors intend to make investments in such a manner as to
comply with the requirements of the REIT Provisions of the Code with respect to
the composition of the Corporation's investments and the derivation of its
income; provided, however, that no Director, officer, employee, or agent of the
Corporation shall be liable to any Person, including any Stockholder, for any
act or omission resulting in the loss of tax benefits, or in the incurrence of
tax detriments, under the Code or for the Corporation not being treated for tax
purposes as a "real estate investment trust" under the REIT Provisions of the
Code. Subject to paragraph (c) of this Article VIII hereof and subject to such
restrictions as may be necessary to qualify the Corporation as a "real estate
investment trust" as defined in the REIT Provisions of the Code, the Directors
may alter the above-declared investment policy in light of changes in economic
circumstances and other relevant factors, and the methods of implementing the
Corporation's investment policies may change, in the discretion of the Directors
as economic and other conditions change.
(b) OTHER PERMISSIBLE INVESTMENTS. To the extent that the Corporation
has assets not invested in accordance with paragraph (a) of this Article VIII,
the Corporation may invest them in, subject to such restrictions as may be
necessary to qualify the Corporation as a "real estate investment trust" as
defined in the REIT Provisions of the Code:
(i) Obligations of, or guaranteed or insured by, the United
States Government or any agency or political subdivision thereof;
(ii) Obligations of, or guarantees by, any state, territory,
or possession of the United States of America or any agency or
political subdivision thereof;
(iii) Evidences of deposits in, or obligations of, banking
institutions, savings and loan associations, and savings institutions;
(iv) Real and personal property and interests therein; and
(v) Other Securities, liquid short-term investments, and
property.
(c) PROHIBITED INVESTMENTS AND ACTIVITIES. The Corporation shall not
invest in commodities, foreign currencies, or bullion except in connection with
investments in other property.
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ARTICLE IX
RESTRICTION ON TRANSFER, ACQUISITION AND REDEMPTION
OF SHARES OF CAPITAL STOCK
(a) OWNERSHIP LIMITATION.
(i) Except as provided in paragraphs (k) and (u) of Article
IX, and subject to sub-paragraph (iv) of this paragraph (a) of Article
IX, from the Restriction Commencement Date until the Restriction
Termination Date, no Person (other than an Excepted Holder) shall
Beneficially or Constructively Own shares of Capital Stock in excess of
the Ownership Limit and no Excepted Holder shall Beneficially or
Constructively Own shares of Capital Stock in excess of the Excepted
Holder Limit for such Excepted Holder.
(ii) Subject to sub-paragraph (iv) of this paragraph (a) of
Article IX, from the Restriction Commencement Date until the
Restriction Termination Date, any Transfer that, if effective, would
result in (1) the Corporation being "closely held" within the meaning
of Section 856(h) of the Code (without regard to whether the ownership
interest is held during the last half of a taxable year), or (2) the
Corporation otherwise failing to qualify as a REIT (including, but not
limited to, Beneficial or Constructive Ownership that would result in
the Corporation owning (actually or Constructively) an interest in a
tenant that is described in Section 856(d)(2)(B) of the Code if the
income derived by the Corporation from such tenant would cause the
Corporation to fail to satisfy any of the gross income requirements of
Section 856(c) of the Code) shall be void and the intended transferee
shall acquire no rights in such shares of Capital Stock.
(iii) Subject to sub-paragraph (iv) of this paragraph (a) of
Article IX, from the Restriction Commencement Date until the
Restriction Termination Date, any Transfer that, if effective, would
result in the shares of Capital Stock being beneficially owned by less
than 100 Persons (determined without reference to any rules of
attribution) shall be void AB INITIO as to the Transfer of shares of
Capital Stock which would be otherwise beneficially owned (as provided
in Section 856(a) of the Code) by the transferee and the intended
transferee shall acquire no rights in such shares of Capital Stock.
(iv) Nothing contained in this Article IX shall preclude the
settlement of any transaction entered into through the facilities of
the principal securities exchange on which the shares of Capital Stock
are currently traded. The fact that the settlement of any transaction
is permitted shall not negate the effect of any other provision of this
Article IX and any transferee in such a transaction shall be subject to
all of the provisions and limitations set forth in this Article IX.
(b) TRANSFER IN TRUST. If, notwithstanding the other provisions
contained in this Article IX, at any time from the Restriction Commencement Date
until the Restriction Termination Date, there is a purported Transfer such that
any Person would Beneficially or Constructively Own shares of Capital Stock in
violation of sub-paragraph (a)(i) or (ii),
(i) then that number of shares of Capital Stock the Beneficial
or Constructive Ownership of which otherwise would cause such Person to
violate paragraph (a)(i) or (ii) (rounded to the higher whole share)
shall be automatically transferred to a Charitable Trust for the
benefit of a Charitable Beneficiary, as described in paragraph (n),
effective as of the close
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of business on the Business Day prior to the date of such Transfer, and
such Person shall acquire no rights in such shares of Capital Stock; or
(ii) if the transfer to the Charitable Trust described in
clause (i) of this sentence would not be effective for any reason to
prevent the violation of paragraph (a)(i) or (ii), then the Transfer of
that number of shares of Capital Stock that otherwise would cause any
Person to violate paragraph (a)(i) or (ii) shall be void AB INITIO, and
the intended transferee shall acquire no rights in such shares of
Capital Stock.
(c) REMEDIES FOR BREACH. If the Board or its designee shall at any time
determine in good faith that a Transfer has taken place in violation of
paragraph (a) of Article IX or that a Person intends to acquire or has attempted
to acquire Beneficial or Constructive Ownership of any shares of Capital Stock
in violation of paragraph (a) of Article IX, the Board or its designee shall
take such action as it deems advisable to refuse to give effect to or to prevent
such transfer, including, but not limited to, refusing to give effect to such
Transfer on the books of the Corporation or instituting proceedings to enjoin
such Transfer; PROVIDED, HOWEVER, that any Transfers or attempted Transfers in
violation of paragraph (a) of Article IX shall automatically result in the
transfer to the Charitable Trust described above and, where applicable, such
Transfer (or other event) shall be void AB INITIO as provided above irrespective
of any action (or non-action) by the Board.
(d) NOTICE TO TRUST. Any Person who acquires or attempts to acquire
Beneficial or Constructive Ownership of Capital Stock in violation of paragraph
(a) of Article IX, or any Person who would be a transferee of such Capital Stock
but for the Transfer to the Charitable Trust under paragraph (b) of Article IX,
shall immediately give written notice or, in the event of a proposed or
attempted Transfer, shall give at least fifteen (15) days prior written notice
to the Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or attempted Transfer on the Corporation's status as a
REIT.
(e) INFORMATION FOR CORPORATION. From the Restriction Commencement Date
and until the Restriction Termination Date:
(i) every owner of more than 5% (or such other percentage,
between1/2of 1% and 5%, as provided under the REIT Provisions of the
Code) of the number or value of outstanding shares of Capital Stock of
the Corporation shall upon the Corporation's written request, within
thirty (30) days after January 1 of each year, give written notice to
the Corporation stating the name and address of such owner, the number
of shares of Capital Stock Beneficially or Constructively Owned, and a
description of how such shares of Capital Stock are held. Each such
Beneficial Owner shall provide to the Corporation such additional
information as the Corporation may reasonably request in order to
determine the effect, if any, of such Beneficial or Constructive
Ownership on the Corporation's status as a REIT.
(ii) each Person who is a Beneficial or Constructive Owner of
shares of Capital Stock and each Person (including the stockholder of
record) who is holding shares of Capital Stock for a Beneficial or
Constructive Owner shall provide to the Corporation in writing such
information with respect to direct, indirect and constructive ownership
of shares of Capital Stock as the Board deems reasonably necessary to
comply with the provisions of the Code applicable to a REIT, to
determine the Corporation's status as a REIT, to comply with the
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requirements of any taxing authority or governmental agency or to
determine any such compliance.
(f) OTHER ACTION BY BOARD. Subject to sub-paragraph (iv) of paragraph
(a) of Article IX, nothing contained in this Article IX shall limit the
authority of the Board to take such other action as it deems necessary or
advisable to protect the Corporation and the interests of its Stockholders by
preservation of the Corporation's status as a REIT.
(g) AMBIGUITIES. In the case of an ambiguity in the application of any
of the provisions of this Article IX, including any definition contained in
Article XI, the Board shall have the power to determine the application of the
provisions of this Article IX with respect to any situation based on the facts
known to it and the Board's determination shall be conclusive for all purposes.
(h) MODIFICATION OF EXCEPTED HOLDER AND EXISTING HOLDER LIMITS. The
Excepted Holder and Existing Holder Limits may be modified as follows:
(i) Subject to the limitations provided in paragraph (j) of
Article IX, the Board may grant options which result in Beneficial or
Constructive Ownership of shares of Capital Stock by an Existing Holder
pursuant to an option plan approved by the Board and/or the
Stockholders. Any such grant shall increase the Existing Holder Limit
for the affected Existing Holder to the maximum extent possible under
paragraph (j) of Article IX to permit the Beneficial or Constructive
Ownership of the shares of Capital Stock issuable upon the exercise of
such option.
(ii) Subject to the limitations provided in paragraph (j) of
Article IX, an Existing Holder may elect to participate in a dividend
reinvestment plan approved by the Board which results in Beneficial or
Constructive Ownership of shares of Capital Stock by such participating
Existing Holder. Any such participation shall increase the Existing
Holder Limit for the affected Existing Holder to the maximum extent
possible under paragraph (j) of Article IX to permit Beneficial or
Constructive Ownership of the shares of Capital Stock acquired as a
result of such participation.
(iii) The Board shall reduce the Excepted Holder Limit for any
Excepted Holder after any Transfer permitted in this Article IX by such
Excepted Holder by the percentage of the outstanding shares of Capital
Stock so Transferred or after the lapse (without exercise) of an option
described in sub-paragraph (i) of this paragraph (h) of Article IX by
the percentage of the shares of Capital Stock that the option, if
exercised, would have represented, but in either case no Excepted
Holder Limit shall be reduced to a percentage which is less than the
Ownership Limit.
(iv) Subject to the limitations provided in paragraph (j) of
Article IX, the Board may otherwise modify an Excepted Holder Limit
from time to time.
(i) INCREASE OR DECREASE IN OWNERSHIP LIMIT. Subject to the limitations
provided in paragraph (j) of Article IX, the Board may from time to time
increase or decrease the Ownership Limit; PROVIDED, HOWEVER, that any decrease
may only be made prospectively as to subsequent holders (other than a decrease
as a result of a retroactive change in existing law that would require a
decrease to retain REIT status, in which case such decrease shall be effective
immediately).
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(j) LIMITATIONS ON CHANGES IN EXCEPTED HOLDER AND OWNERSHIP LIMITS.
(i) Neither the Ownership Limit nor any Excepted Holder Limit
may be increased (nor may any additional Excepted Holder Limit be
created) if, after giving effect to such increase (or creation), five
Beneficial Owners of shares of Capital Stock (including all of the then
Excepted Holders) could Beneficially Own, in the aggregate, more than
49.9% in number or value of the outstanding shares of Capital Stock.
(ii) Prior to the modification of any Excepted Holder Limit or
Ownership Limit pursuant to paragraphs (h) or (i) of Article IX, the
Board may require (but shall not be obligated to obtain) such opinions
of counsel, affidavits, undertakings or agreements as it may deem
necessary or advisable in order to determine or ensure the
Corporation's status as a REIT.
(iii) The Board may only reduce the Excepted Holder Limit for
an Excepted Holder: (1) with the written consent of such Excepted
Holder at any time, or (2) pursuant to the terms and conditions of the
agreements and undertakings entered into with such Excepted Holder in
connection with the establishment of the Excepted Holder Limit for that
Excepted Holder. No Excepted Holder Limit shall be reduced to a
percentage which is less than the Ownership Limit.
(k) EXCEPTIONS BY BOARD.
(i) The Board, upon receipt of a ruling from the Internal
Revenue Service or an opinion of counsel or other evidence satisfactory
to the Board and upon at least fifteen (15) days written notice from a
transferee prior to the proposed Transfer which, if consummated, would
result in the intended transferee owning shares of Capital Stock in
excess of the Ownership Limit or the Excepted Holder Limit, as the case
may be, and upon such other conditions as the Board may direct, may
grant an exception to the Ownership Limit or the Excepted Holder Limit,
as the case may be, with respect to such transferee.
(ii) In addition to exceptions permitted under sub-paragraph
(i) above, the Board may grant an exception to the Ownership Limit with
respect to a Person if: (a) such Person submits to the Board
information satisfactory to the Board, in its reasonable discretion,
demonstrating that such Person is not an individual for purposes of
Section 542(a)(2) of the Code (determined taking into account Section
856(h)(3)(A) of the Code); (b) such Person submits to the Board
information satisfactory to the Board, in its reasonable discretion,
demonstrating that no Person who is an individual for purposes of
Section 542(a)(2) of the Code (determined taking into account Section
856(h)(3)(A) of the Code) would be considered to Beneficially Own
shares of Capital Stock in excess of the Ownership Limit by reason of
the ownership of shares of Capital Stock in excess of the Ownership
Limit by the Person receiving the exception granted under this
sub-paragraph (ii); (c) such Person submits to the Board information
satisfactory to the Board, in its reasonable discretion, demonstrating
that the ownership of shares of Capital Stock in excess of the
Ownership Limit by the Person receiving the exception granted under
this sub-paragraph (ii) will not result in the Corporation failing to
qualify as a REIT; and (d) such Person provides to the Board such
representations and undertakings, if any, as the Board may, in its
reasonable discretion, require to ensure that the conditions in clauses
(a), (b) and (c) above are satisfied and will continue to be satisfied
throughout the period during which such Person owns shares of Capital
Stock in excess of the Ownership Limit pursuant to any exception
granted under this sub-paragraph (ii), and such Person agrees that any
violation of such representations and undertakings
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or any attempted violation thereof will result in the application of
the remedies set forth in paragraph (c) of Article IX with respect to
shares of Capital Stock held in excess of the Ownership Limit by such
Person (determined without regard to the exception granted such Person
under this sub-paragraph (ii)).
(l) LEGEND. Each certificate for shares of Capital Stock shall bear
substantially the following legend:
The securities represented by this certificate are subject to
restrictions on Beneficial and Constructive Ownership and Transfer for
the purpose of the Corporation's maintenance of its status as a REIT
under the Internal Revenue Code of 1986, as amended. Except as
otherwise provided pursuant to the Charter, (i) no Person may
Beneficially or Constructively Own shares of Capital Stock in excess of
9.8% (or such greater percentage as may be determined by the Board of
Directors of the Corporation) of the number or value of the outstanding
shares of Capital Stock of the Corporation unless such Person is an
Excepted Holder (in which case the Excepted Holder Limit shall be
applicable), (ii) no Person may Beneficially or Constructively Own
shares of Capital Stock that would result in the Corporation being
"closely held" under Section 856(h) of the Code or otherwise cause the
Corporation to fail to qualify as a REIT; and (iii) no Person may
Transfer shares of Capital Stock if such Transfer would result in
Capital Stock of the Corporation being owned by fewer than 100 Persons.
Any Person who attempts or proposes to Beneficially or Constructively
Own shares of Capital Stock in excess of the above limitations must
notify the Corporation in writing at least 15 days prior to such
proposed or attempted Transfer. If the restrictions on transfer are
violated, the securities represented hereby will be automatically
transferred to a Charitable Trustee of a Charitable Trust for the
benefit of one or more Charitable Beneficiaries. In addition, upon the
occurrence of certain events, attempted Transfers in violation of the
restrictions described above may be void AB INITIO. A Person who
attempts to Beneficially or Constructively Own Capital Stock in
violation of the ownership limitations described above shall have no
claim, cause of action, or any recourse whatsoever against a transferor
of such Capital Stock. All capitalized terms in this legend have the
meanings defined in the Charter, a copy of which, including the
restrictions on transfer, will be sent without charge to each
Stockholder who so requests.
Instead of the foregoing legend, the certificate may state
that the Corporation will furnish a full statement about certain
restrictions on transferability to a Stockholder on request and without
charge.
(m) SEVERABILITY. If any provision of this Article IX or any
application of any such provision is determined to be void, invalid or
unenforceable by any court having jurisdiction over the issue, the validity and
enforceability of the remaining provisions shall be affected only to the extent
necessary to comply with the determination of such court.
(n) TRUST FOR SHARES TRANSFERRED TO CHARITABLE TRUST. Upon any
purported Transfer or other event that would result in a transfer of Capital
Stock to a Charitable Trust pursuant to paragraph (b) of Article IX, such
Capital Stock shall be deemed to have been transferred to the Charitable Trustee
as trustee of a Charitable Trust for the exclusive benefit of the Charitable
Beneficiary. Such transfer to the Charitable Trustee shall be deemed to be
effective as of the close of business on the Business Day prior to the purported
Transfer or other event that results in the transfer to the Charitable Trust
pursuant to paragraph (b). The Charitable Trustee shall be appointed by the
Corporation and shall be a Person unaffiliated with the Corporation and any
Purported Beneficial Transferee. Each Charitable Beneficiary shall be designated
by the Corporation as provided in paragraph (t). Such Capital Stock so held in
trust shall be issued and outstanding shares of Capital Stock of the
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Corporation. The Purported Beneficial Transferee shall have no rights in such
Capital Stock held by the Charitable Trustee except as provided in paragraph (b)
of Article IX. The Purported Beneficial Transferee shall not benefit
economically from ownership of any Capital Stock held in trust by the Charitable
Trustee, shall have no rights to dividends or other distributions and shall not
possess any rights to vote or other rights attributable to the Capital Stock
held in the Charitable Trust. The Purported Beneficial Transferee shall have no
claim, cause of action, or any other recourse whatsoever against the purported
transferor of such Capital Stock.
(o) DISTRIBUTIONS ON SHARES HELD BY CHARITABLE TRUST. Any distributions
(whether as dividends, distributions upon liquidation, dissolution or winding up
or otherwise) on Capital Stock held by the Charitable Trustee shall be paid to
the Charitable Trust for the benefit of the Charitable Beneficiary. Upon
liquidation, dissolution or winding up, the Purported Record Transferee shall
receive the lesser of (i) the amount of any distribution made upon liquidation,
dissolution or winding up or (ii) the price paid by the Purported Record
Transferee for the shares of Capital Stock, or if the Purported Record
Transferee did not give value for the shares of Capital Stock, the Market Price
of the shares of Capital Stock on the day of the event causing the shares of
Capital Stock to be held in trust. Any such dividend paid or distribution paid
to the Purported Record Transferee in excess of the amount provided in the
preceding sentence prior to the discovery by the Corporation that the Capital
Stock with respect to which the dividend or distribution was made had been
transferred to the Charitable Trust pursuant to paragraph (b) shall be repaid to
the Charitable Trust for the benefit of the Charitable Beneficiary.
(p) VOTING OF SHARES HELD BY CHARITABLE TRUST. The Charitable Trustee
shall be entitled to all voting rights with respect to the Capital Stock held in
the Charitable Trust for the benefit of the Charitable Beneficiary on any
matter. Any vote taken by a Purported Record Transferee prior to the discovery
by the Corporation that the shares of Capital Stock were held in trust shall,
subject to Maryland Law, be rescinded and recast in accordance with the desires
of the Charitable Trustee acting for the benefit of the Charitable Beneficiary;
PROVIDED, HOWEVER, that if the Corporation has already taken irreversible
action, then the Charitable Trustee shall not have the power to rescind and
recast such vote. The owner of the Capital Stock held by the Charitable Trustee
shall be deemed to have given an irrevocable proxy to the Charitable Trustee to
vote the Capital Stock held by the Charitable Trustee for the benefit of the
Charitable Beneficiary.
(q) SALE OF SHARES HELD BY CHARITABLE TRUST. Shares held by the
Charitable Trust shall be transferable only as provided in this paragraph (q) of
Article IX. At the direction of the Corporation, the Charitable Trustee shall
sell the shares of Capital Stock held in the Charitable Trust to a person whose
ownership of the shares of Capital Stock will not violate paragraph (a). Such
transfer shall be made within 60 days after the latest of (i) the date of the
Transfer which resulted in such Transfer to the Charitable Trust and (ii) the
date the Board determines in good faith that a Transfer resulting in the
Transfer to the Charitable Trust has occurred, if the Corporation does not
receive a notice of such Transfer pursuant to paragraph (d) of Article IX. If
such a transfer is made, the interest of the Charitable Beneficiary shall
terminate and proceeds of the sale shall be payable to the Purported Record
Transferee and to the Charitable Beneficiary. The Purported Record Transferee
shall receive the lesser of (x) the price paid by the Purported Record
Transferee for the shares of Capital Stock or, if the Purported Record
Transferee did not give value for the shares of Capital Stock, the Market Price
of the shares of Capital Stock on the day of the event causing the shares of
Capital Stock to be held in the Charitable Trust, and (y) the price received by
the Charitable Trust from the sale or other disposition of the shares of Capital
Stock. Any proceeds in excess of the amount payable to the Purported Record
Transferee shall be paid to the Charitable Beneficiary. Prior to any transfer of
any shares of Capital Stock held by the Charitable Trust by the Charitable
Trustee, the Corporation must have waived in writing its
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purchase rights under paragraph (r) of Article IX. It is expressly understood
that the Purported Record Transferee may enforce the provisions of this
paragraph (q) of Article IX against the Charitable Beneficiary.
(r) If any of the foregoing restrictions on transfer of shares held by
the Charitable Trust is determined to be void, invalid or unenforceable by any
court of competent jurisdiction, then the Purported Record Transferee may be
deemed, at the option of the Corporation, to have acted as an agent of the
Corporation in acquiring such shares and to hold such shares on behalf of the
Corporation.
(s) CALL BY CORPORATION ON SHARES HELD BY THE CHARITABLE TRUST. Shares
of Capital Stock held by the Charitable Trust shall be deemed to have been
offered for sale to the Corporation, or its designee, at a price per share equal
to the lesser of (i) the price per share in the transaction that created such
shares held by the Charitable Trust (or, in the case of a devise, gift or other
transaction in which no value was given for such shares held by the Charitable
Trust, the Market Price at the time of such devise, gift or other transaction)
and (ii) the Market Price of the shares of Capital Stock to which such shares
held by the Charitable Trust relates on the date the Corporation, or its
designee, accepts such offer (the "Redemption Price"). The Corporation shall
have the right to accept such offer until the Charitable Trustee has sold the
shares of Capital Stock held in the Charitable Trust pursuant to paragraph (q).
Upon such a sale to the Corporation, the interest of the Charitable Beneficiary
in the shares of Capital Stock sold shall terminate and the Charitable Trustee
shall distribute the net proceeds of the sale to the Purported Record
Transferee.
(t) DESIGNATION OF CHARITABLE BENEFICIARIES. By written notice to the
Charitable Trustee, the Corporation shall designate one or more nonprofit
organizations to be the Charitable Beneficiary of the interest in the Charitable
Trust such that (i) Capital Stock held in the Charitable Trust would not violate
the restrictions set forth in paragraph (a) in the hands of such Charitable
Beneficiary and (ii) each such organization must be described in Section
501(c)(3), 170(b)(1)(A) or 170(c)(2) of the Code.
(u) UNDERWRITTEN OFFERINGS. The Ownership Limit shall not apply to the
acquisition of shares of Capital Stock or rights, options or warrants for, or
securities convertible into, shares of Capital Stock by an underwriter in a
public offering, provided that the underwriter makes a timely distribution of
such shares of Capital Stock or rights, options or warrants for, or securities
convertible into, shares of Capital Stock.
ARTICLE X
AMENDMENTS
The Corporation reserves the right from time to time to make any
amendments of the Charter which may now or hereafter be authorized by law,
including any amendments changing the terms or contract rights, as expressly set
forth in the Charter, of any of its outstanding stock by classification,
reclassification or otherwise. Except as otherwise provided in the Charter, any
amendment to the Charter shall be valid only if approved by the affirmative vote
of a majority of all the votes entitled to be cast on the matter.
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ARTICLE XI
DEFINITIONS
(a) The following terms shall, whenever used in this Charter, unless
the context otherwise requires, have the meanings specified in this Article XI.
The singular shall refer to the plural, and the masculine gender shall be deemed
to refer to the feminine and neuter, and vice versa, as the context requires.
"AFFILIATE" shall mean with respect to a Stockholder or Director (i)
any Person directly or indirectly owning, controlling, or holding, with power to
vote, 20% or more of the outstanding voting securities of such Stockholder, (ii)
any Person 20% or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held, with power to vote, by such Director, or
such Stockholder, and (iii) any officer, director, or partner of such
Stockholder.
"BENEFICIAL OWNERSHIP" shall mean ownership of shares of Capital Stock
by a Person who would be treated as an owner of such shares of Capital Stock
either directly or constructively through the application of Section 544 of the
Code, as modified by Section 856(h) of the Code. The terms "BENEFICIAL OWNER,"
"BENEFICIALLY OWNS," "BENEFICIALLY OWN" and "BENEFICIALLY OWNED" shall have
correlative meanings.
"BOARD" shall mean the Board of Directors of the Corporation.
"BUSINESS DAY" shall mean any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in New
York City are authorized or required by law, regulation or executive order to
close.
"BYLAWS" shall mean the Bylaws of the Corporation and all amendments
thereto.
"CAPITAL STOCK" shall mean all classes and series of stock which the
Corporation shall have authority to issue. The term "CAPITAL STOCK" shall
include Common Stock, preferred stock, preference stock, special stock or other
stock.
"CHARITABLE BENEFICIARY" shall mean one or more beneficiaries of the
Charitable Trust as determined pursuant to paragraph (t) of Article IX, provided
that each such organization must be described in Sections 501(c)(3),
170(b)(1)(A) and 170(c)(2) of the Code.
"CHARITABLE TRUST" shall mean any trust provided for in paragraph
(b)(i) and paragraph (n) of Article IX.
"CHARITABLE TRUSTEE" shall mean the Person unaffiliated with the
Corporation and a Purported Beneficial Transferee, that is appointed by the
Corporation to serve as trustee of the Charitable Trust.
"CHARTER" shall mean these Articles of Amendment and Restatement of the
Corporation, as amended, supplemented or modified from time to time. References
in this Charter to "herein" and "hereunder" shall be deemed to refer to this
Charter in its entirety and shall not be limited to the particular text,
article, or section in which such words appear.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time, including successor statutes thereto.
"CONSTRUCTIVE OWNERSHIP" shall mean ownership of Capital Stock by a
Person, whether the interest in Capital Stock is held directly or indirectly
(including by a nominee), and shall include interests that would be treated as
owned through the application of Section 318(a) of the Code, as modified by
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Section 856(d)(5) of the Code. The terms "CONSTRUCTIVE OWNER," "CONSTRUCTIVELY
OWNS" and "CONSTRUCTIVELY OWNED" shall have the correlative meanings.
"CORPORATION ASSETS" shall mean, as of any particular time, any and all
property, real, personal, or otherwise, tangible or intangible, which is held,
transferred, conveyed, or paid to the Corporation and all rents, income,
profits, and gains therefrom.
"DEBT" shall mean indebtedness of the Corporation.
"DIRECTOR" shall mean the Person that is elected pursuant to Article VI
to serve as Director of the Corporation, and any successor thereto.
"EXCEPTED HOLDER" shall mean (i) a stockholder of the Corporation for
whom an Excepted Holder Limit is created by the Board pursuant to paragraph (k)
of Article IX and (ii) an Existing Holder.
"EXCEPTED HOLDER LIMIT" shall mean (i) provided that the affected
Excepted Holder agrees to comply with the requirements established by the Board
pursuant to paragraph (k) of Article IX and subject to adjustment pursuant to
paragraph (h) of Article IX, the percentage limit established by the Board for
such Excepted Holder pursuant to paragraph (k) of Article IX and (ii) with
respect to an Existing Holder, the Existing Holder Limit.
"EXISTING HOLDER" shall mean (i) any Person who is, or would be upon
the exchange of Debt or any Security of the Corporation, the Beneficial or
Constructive Owner of shares of Capital Stock in excess of the Ownership Limit
immediately after the Restriction Commencement Date, so long as, but only so
long as, such Person Beneficially or Constructively Owns or would, upon exchange
of Debt or any Security of the Corporation, Beneficially or Constructively Own
shares of Capital Stock in excess of the Ownership Limit and (ii) any Person to
whom an Existing Holder Transfers, subject to the limitations provided in this
Article IX, Beneficial or Constructive Ownership of shares causing such
transferee to Beneficially or Constructively Own shares of Capital Stock in
excess of the Ownership Limit.
"EXISTING HOLDER LIMIT" (i) for any Existing Holder who is an Existing
Holder by virtue of clause (i) of the definition thereof, shall mean, initially,
the percentage of the outstanding shares of Capital Stock Beneficially or
Constructively Owned (with such percentage for each class determined separately)
or which would be Beneficially or Constructively Owned upon the exchange of Debt
or any Security of the Corporation, by such Existing Holder upon and immediately
after the Restriction Commencement Date, and, after any adjustment pursuant to
paragraph (h) of Article IX, shall mean such percentage of the outstanding
shares of Capital Stock as so adjusted, and (ii) for any Existing Holder who
becomes an Existing Holder by virtue of clause (ii) of the definition thereof,
shall mean, initially, the percentage of the outstanding shares of Capital Stock
Beneficially or Constructively Owned (with such percentage for each class
determined separately) by such Existing Holder at the time that such Existing
Holder becomes an Existing Holder, but in no event shall such percentage be
greater than the lesser of (a) the Existing Holder Limit for the Existing Holder
who Transferred Beneficial or Constructive Ownership of such shares of Capital
Stock or, in the case of more than one transferor, in no event shall such
percentage be greater than the smallest Existing Holder Limit of any
transferring Existing Holder, or (b) the Ownership Limit if the Existing Holder
is a person other than a trust qualified under Section 401(a) of the Code and
exempt from tax under Section 501(a) of the Code, and, after any adjustment
pursuant to paragraph (h) of Article IX, shall mean such percentage of the
outstanding shares of Capital Stock as so adjusted. From the Restriction
Commencement Date until the Restriction Termination Date, the Corporation shall
maintain and, upon request, make available to each Existing Holder, a schedule
which sets forth the then current Existing Holder Limit for each Existing
Holder.
"MARKET PRICE" shall mean the last reported sales price reported on the
NYSE for a particular class of shares of Capital Stock on the trading day
immediately preceding the relevant date, or if not then traded on such exchange,
the last reported sales price for such class of shares of Capital Stock on the
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trading day immediately preceding the relevant date as reported on any exchange
or quotation system over or through which such class of shares of Capital Stock
may be traded, or if not then traded over or through any exchange or quotation
system, then the market price of such class of shares of Capital Stock on the
relevant date as determined in good faith by the Board.
"MGCL" shall mean the Maryland General Corporation Law, as amended from
time to time, including successor statutes thereto.
"MORTGAGES" shall mean mortgages, deeds of trust, or other security
instruments on real property or rights or interests in real property or entities
owning or controlling real property.
"OWNERSHIP LIMIT" shall initially mean 9.8%, in number of shares of
Capital Stock, or value of the aggregate outstanding shares of Capital Stock,
whichever is more restrictive, of the Corporation, and after any adjustment as
set forth in paragraph (i) of Article IX, shall mean such percentage in number
of shares of Capital Stock, or value of the aggregate outstanding shares of
Capital Stock, as so adjusted. Such number and/or value shall be determined by
the Board in good faith, which determination shall be conclusive for all
purposes hereof.
"PERSON" shall mean 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.
"PURPORTED BENEFICIAL TRANSFEREE" shall mean, with respect to any
purported Transfer, any Person who, but for the provisions of paragraph (b) of
Article IX, would Beneficially or Constructively Own shares of Capital Stock.
"PURPORTED RECORD TRANSFEREE" shall mean, with respect to any purported
Transfer, any Person who, but for the provisions of paragraph (b) of Article IX,
would be the record owner of shares of Capital Stock.
"REIT" shall mean a real estate investment trust under Sections 856
through 860 of the Code.
"REIT PROVISIONS OF THE CODE" shall mean Part II, Subchapter M of
Chapter 1 of Subtitle A of the Code, as now enacted or hereafter amended,
including successor statutes and regulations promulgated thereunder.
"RESTRICTION COMMENCEMENT DATE" shall mean the date upon which the
Charter containing this Article IX is accepted for record with the State
Department of Assessments and Taxation of Maryland.
"RESTRICTION TERMINATION DATE" shall mean the first day after the
Restriction Commencement Date on which the Board determines that it is no longer
in the best interests of the Corporation to attempt to, or continue to, qualify
as a REIT.
"SECURITIES" shall mean common and preferred stock in a corporation,
shares of beneficial interest in a trust or other unincorporated association,
general partner interests in a general partnership, interests in a joint
venture, general or limited partnership interests in a limited partnership,
membership interests or non-member manager interests in a limited liability
company, notes, debentures, bonds, and other evidences of indebtedness,
including Mortgages, whether secured or unsecured, and includes any options,
warrants, and rights to subscribe to or convert into any of the foregoing.
"STOCKHOLDERS" shall mean, at any particular time, those Persons who
are shown as the holders of record of all shares of Capital Stock on the records
of the Corporation at such time.
"TRANSFER" shall mean any issuance, sale, transfer, gift, assignment,
devise or other disposition, as well as any other event that causes any Person
to acquire Beneficial or Constructive Ownership, of shares
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of Capital Stock (including (a) a change in the capital structure of the
Corporation, (b) a change in the relationship between two or more Persons which
causes a change in Beneficial or Constructive Ownership of shares of Capital
Stock, (c) Transfers of interests in other entities that result in changes in
Beneficial or Constructive Ownership of shares of Capital Stock, (d) the
granting of any option, warrant or similar agreement, or entering into any
agreement for the sale, transfer or other disposition of shares of Capital
Stock, (e) the sale, transfer, assignment or other disposition of any Securities
or rights convertible into or exchangeable for shares of Capital Stock, but
excluding the exchange of Debt or any Security of the Corporation for shares of
Capital Stock and (f) any transfer or other disposition of any interest in
shares of Capital Stock as a result of a change in the marital status of the
holder thereof), whether voluntary or involuntary, whether of record,
constructively or beneficially and whether by operation of law or otherwise. The
terms "TRANSFERS" and "TRANSFERRED" shall have correlative meanings.
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STARWOOD FINANCIAL INC.
AMENDED AND RESTATED
BYLAWS
--------------------------------------
ARTICLE I
OFFICES
Section 1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office
of Starwood Financial, Inc. (the "Company") shall be located at such place or
places as the Board of Directors may designate.
Section 2. ADDITIONAL OFFICES. The Company may have additional offices
at such places as the Board of Directors may from time to time determine or the
business of the Company may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the
principal office of the Company or at such other place within the United States
as shall be stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for
the election of directors and the transaction of any business within the powers
of the Company shall be held on such date as shall be set by the Board of
Directors. Except as the Articles of Incorporation of the Company, as amended
(the "Charter") or statute provides otherwise, any business may be considered at
an annual meeting without the purpose of the meeting having been specified in
the notice. Failure to hold an annual meeting does not invalidate the Company's
existence or affect any otherwise valid corporate acts.
Section 3. SPECIAL MEETINGS. The president, chief executive officer or
Board of Directors may call special meetings of the stockholders. Special
meetings of stockholders shall also be called by the secretary of the Company
upon the written request of the holders of shares entitled to cast not less than
a majority of all the votes entitled to be cast at such meeting. Such request
shall state the purpose of such meeting and the matters proposed to be acted on
at such meeting. The secretary shall inform such stockholders of the reasonably
estimated cost of preparing and mailing notice of the meeting and, upon payment
to the Company by such stockholders of such costs, the secretary shall give
notice to each stockholder entitled to notice of the meeting.
Section 4. NOTICE OF MEETINGS; WAIVER OF NOTICE. Not less than ten nor
more than 90 days before each stockholders' meeting, the Secretary shall give
written notice of the meeting to each stockholder entitled to vote at the
meeting and each other stockholder entitled to notice of the meeting. The notice
shall state the time and place of the
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meeting and, if the meeting is a special meeting or notice of the purpose is
required by statute, the purpose of the meeting. Notice is given to a
stockholder when it is personally delivered to him or her, left at his or her
residence or usual place of business, or mailed to him or her at his or her
address as it appears on the records of the Company. Notwithstanding the
foregoing provisions, each person who is entitled to notice waives notice if he
or she before or after the meeting signs a waiver of the notice which is filed
with the records of stockholders' meetings, or is present at the meeting in
person or by proxy.
Section 5. ORGANIZATION. At every meeting of stockholders, the Chairman
of the Board, if there be one, shall conduct the meeting or, in the case of
vacancy in office or absence of the Chairman of the Board, one of the following
officers present shall conduct the meeting in the order stated: the Vice
Chairman of the Board, if there be one, the President, the Vice Presidents in
their order of rank and seniority, or a Chairman chosen by the stockholders
entitled to cast a majority of the votes which all stockholders present in
person or by proxy are entitled to cast, shall act as Chairman, and the
secretary of the Company, or, in his absence, an assistant secretary of the
Company, or in the absence of both the Secretary and assistant secretaries, a
person appointed by the Chairman shall act as Secretary.
Section 6. QUORUM; ADJOURNMENTS. At any meeting of stockholders, the
presence in person or by proxy of stockholders entitled to cast a majority of
all the votes entitled to be cast at such meeting shall constitute a quorum; but
this section shall not affect any requirement under any statute or the Charter
of the Company for the vote necessary for the adoption of any measure. If,
however, such quorum shall not be present at any meeting of the stockholders,
the stockholders entitled to vote at such meeting, present in person or by
proxy, shall have the power to adjourn the meeting from time to time to a date
not more than 120 days after the original record date without notice other than
announcement at the meeting. At such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 7. VOTING. A plurality of all the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient to
elect a director. Each share may be voted for as many individuals as there are
directors to be elected and for whose election the share is entitled to be
voted. A majority of the votes cast at a meeting of stockholders duly called and
at which a quorum is present shall be sufficient to approve any other matter
which may properly come before the meeting, unless more than a majority of the
votes cast is required by statute or by the Charter. Unless otherwise provided
in the Charter, each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote at a meeting of stockholders.
Section 8. PROXIES. A stockholder may authorize another person to act
as proxy by transmitting, or authorizing the transmission of, a telegram,
cablegram, datagram, or other means of electronic transmission to the person
authorized to act as proxy or to a proxy solicitation firm, proxy support
service organization, or other person authorized by the person who will act as
proxy to receive the transmission. Unless a proxy provides otherwise, it is not
valid more than 11 months after its date. A proxy is revocable by a stockholder
at any time without condition or qualification unless the proxy states that it
is irrevocable and the proxy is coupled with an interest. A proxy may be made
irrevocable for so long as it is coupled with an
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interest. The interest with which a proxy may be coupled includes an interest in
the stock to be voted under the proxy or another general interest in the Company
or its assets or liabilities.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Company
registered in the name of a corporation, partnership, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the partners
of a partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such stock. Any director or other
fiduciary may vote stock registered in his name as such fiduciary, either in
person or by proxy.
Shares of stock of the Company directly or indirectly owned by it shall
not be voted at any meeting and shall not be counted in determining the total
number of outstanding shares entitled to be voted at any given time, unless they
are held by it in a fiduciary capacity, in which case they may be voted and
shall be counted in determining the total number of outstanding shares at any
given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Company that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Company; and any other provisions with respect to the procedure which the
Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
Section 10. INSPECTORS. At any meeting of stockholders, the chairman of
the meeting may, or upon the request of any stockholder shall, appoint one or
more persons as inspectors for such meeting. Such inspectors shall ascertain and
report the number of shares represented at the meeting based upon their
determination of the validity and effect of proxies, count all votes, report the
results and perform such other acts as are proper to conduct the election and
voting with impartiality and fairness to all the stockholders.
Each report of an inspector shall be in writing and signed by him or by
a majority of them if there is more than one inspector acting at such meeting.
If there is more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be PRIMA FACIE evidence thereof.
Section 11. NOMINATIONS AND STOCKHOLDER BUSINESS
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(a) ANNUAL MEETINGS OF STOCKHOLDERS. Nominations of persons for
election to the Board of Directors and the proposal of business to be considered
by the stockholders may be made at an annual meeting of stockholders (i)
pursuant to the Company's notice of meeting, (ii) by or at the direction of the
Board of Directors or (iii) by any stockholder of the Company who was a
stockholder of record at the time notice of such meeting was sent.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Company's notice of meeting. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected (i) pursuant to the Company's
notice of meeting, (ii) by or at the direction of the Board of Directors or
(iii) provided that the Board of Directors has determined that directors shall
be elected at such special meeting, by any stockholder of the Company who is a
stockholder of record at the time of giving of notice provided for in this
Section 11(b), who is entitled to vote at the meeting and who complied with the
notice procedures set forth in this Section 11(b). In the event the Company
calls a special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person
or persons (as the case may be) for election to such position as specified in
the Company's notice of meeting.
(c) GENERAL. (1) Only such persons who are nominated in accordance with
the procedures set forth in this Section 11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 11. The presiding officer of the meeting shall have
the power and duty to determine whether a nomination or any business proposed to
be brought before the meeting was made in accordance with the procedures set
forth in this Section 11 and, if any proposed nomination or business is not in
compliance with this Section 11, to declare that such defective nomination or
proposal be disregarded.
(2) Notwithstanding the foregoing provisions of this Section 11, a
stockholder shall also comply with all applicable requirements of state law with
respect to the matters set forth in this Section 11.
Section 12. VOTING BY BALLOT. Voting on any question or in any election
may be VIVA VOCE unless the presiding officer shall order or any stockholder
shall demand that voting be by ballot.
Section 13. LIST OF STOCKHOLDERS. At each meeting of stockholders, a
full, true and complete list of all stockholders entitled to vote at such
meeting, showing the number and class of shares held by each and certified by
the transfer agent for such class or by the secretary of the Company, shall be
furnished by the secretary of the Company.
Section 14. INFORMAL ACTION BY STOCKHOLDERS. Any action required or
permitted to be taken at a meeting of stockholders may be taken without a
meeting if there is filed with the records of stockholders meetings a unanimous
written consent which sets forth the action and is signed by each stockholder
entitled to vote on the matter and a written waiver of any right to dissent
signed by each stockholder entitled to notice of the meeting but not entitled to
vote at it.
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Section 15. MEETING BY CONFERENCE TELEPHONE. Stockholders may
participate in a meeting by means of a conference telephone or similar
communications equipment if all persons participating in the meeting can hear
each other at the same time. Participation in a meeting by these means
constitutes presence in person at a meeting.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS; QUALIFICATIONS. The business and affairs of
the Company shall be managed under the direction of its Board of Directors. All
powers of the Company may be exercised by or under authority of the Board of
Directors, except as conferred on or reserved to the stockholders by statute or
by the Charter or By-Laws.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or
at any special meeting called for that purpose, a majority of the entire Board
of Directors may establish, increase or decrease the number of directors,
provided that the number thereof shall never be less than the minimum number
required by the Maryland General Corporation Law, nor more than 15, and further
provided that the tenure of office of a director shall not be affected by any
decrease in the number of directors. The directors shall be divided into three
classes as nearly equal in number as possible. At each successive annual meeting
of stockholders, the holders of stock present in person or by proxy at such
meeting and entitled to vote thereat shall elect members of such successive
class to serve for three year terms and until their successors are elected and
qualify. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional director of any class
shall, subject to Section 10, hold office for a term that shall coincide with
the remaining term of that class, but in no case shall a decrease in the number
of directors shorten the term of any incumbent director.
Section 3. RESIGNATION. Any director may resign at any time by sending
a written notice of such resignation to the principal executive office of the
Company addressed to the Chairman of the Board or the President. Unless
otherwise specified therein such resignation shall take effect upon receipt
thereof by the Chairman of the Board or the President.
Section 4. REMOVAL OF DIRECTOR. Any director or the entire Board of
Directors may be removed only in accordance with the provisions of the Charter.
Section 5. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board
of Directors shall be held immediately after and at the same place as the annual
meeting of stockholders, no notice other than this Bylaw being necessary. The
Board of Directors may provide, by resolution, the time and place, either within
or without the State of Maryland, for the holding of regular meetings of the
Board of Directors without other notice than such resolution.
Section 6. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by or at the request of the chairman of the board (or any
co-chairman of the board if more than one), president or by a majority of the
directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix any place, either
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within or without the State of Maryland, as the place for holding any special
meeting of the Board of Directors called by them.
Section 7. NOTICE. Except as provided in Sections 5 and 6, the
Secretary shall give notice to each director of each regular and special meeting
of the Board of Directors. The notice shall state the time and place of the
meeting. Notice is given to a director when it is delivered personally to him or
her, left at his or her residence or usual place of business, or sent by
telegraph, facsimile transmission or telephone, at least 24 hours before the
time of the meeting or, in the alternative by mail to his or her address as it
shall appear on the records of the Company, at least 72 hours before the time of
the meeting. Unless these By-Laws or a resolution of the Board of Directors
provides otherwise, the notice need not state the business to be transacted at
or the purposes of any regular or special meeting of the Board of Directors. No
notice of any meeting of the Board of Directors need be given to any director
who attends except where a director attends a meeting for the express purpose of
objecting to the transaction of any business because the meeting is not lawfully
called or convened, or to any director who, in writing executed and filed with
the records of the meeting either before or after the holding thereof, waives
such notice. Any meeting of the Board of Directors, regular or special, may
adjourn from time to time to reconvene at the same or some other place, and no
notice need be given of any such adjourned meeting other than by announcement.
Section 8. QUORUM. A majority of the directors shall constitute a
quorum for transaction of business at any meeting of the Board of Directors,
provided that, if less than a majority of such directors are present at said
meeting, a majority of the directors present may adjourn the meeting from time
to time without further notice, and provided further that if, pursuant to the
Charter of the Company or these Bylaws, the vote of a majority of a particular
group of directors is required for action, a quorum must also include a majority
of such group.
The Board of Directors present at a meeting which has been duly called
and convened may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
Section 9. VOTING. The action of the majority of the directors present
at a meeting at which a quorum is present shall be the action of the Board of
Directors, unless the concurrence of a greater proportion is required for such
action by applicable statute.
Section 10. PRESUMPTION OF ASSENT. A director of the Company who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his or her dissent or abstention shall be entered in the minutes of the meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the Secretary of the Company
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who votes in favor of such action.
Section 11. TELEPHONE MEETINGS. Directors may participate in a meeting
by means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
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Section 12. INFORMAL ACTION BY DIRECTORS. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting, if a consent in writing to such action is signed by each
director and such written consent is filed with the minutes of proceedings of
the Board of Directors.
Section 13. VACANCIES. If for any reason any or all the directors cease
to be directors, such event shall not terminate the Company or affect these
Bylaws or the powers of the remaining directors hereunder (even if fewer than
three directors remain). Any vacancy on the Board of Directors for any cause
other than an increase in the number of directors shall be filled by a majority
of the remaining directors, although such majority is less than a quorum. Any
vacancy in the number of directors created by an increase in the number of
directors may be filled by a majority vote of the entire Board of Directors. Any
individual so elected as director shall hold office for the unexpired term of
the director he is replacing.
Section 14. COMPENSATION. Directors shall not receive any stated salary
for their services as directors but, by resolution of the Board of Directors,
may receive fixed sums per year and/or per meeting and/or per visit to real
property owned or to be acquired by the Company and for any service or activity
they performed or engaged in as directors. Directors may be reimbursed for
expenses of attendance, if any, at each annual, regular or special meeting of
the Board of Directors or of any committee thereof and for their expenses, if
any, in connection with each property visit and any other service or activity
they performed or engaged in as directors; but nothing herein contained shall be
construed to preclude any directors from serving the Company in any other
capacity and receiving compensation therefor.
Section 15. LOSS OF DEPOSITS. No director shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or stock have been
deposited.
Section 16. SURETY BONDS. Unless required by law, no director shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 17. RELIANCE. Each director, officer, employee and
agent of the Company shall, in the performance of his duties with respect to the
Company, be fully justified and protected with regard to any act or failure to
act in reliance in good faith upon the books of account or other records of the
Company, upon an opinion of counsel or upon reports made to the Company by any
of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the
Company, regardless of whether such counsel or expert may also be a director.
Section 18. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS. The directors shall have no responsibility to devote their full time to
the affairs of the Company. Any director or officer, employee or agent of the
Company, in his personal capacity or in a capacity as an affiliate, employee, or
agent of any other person, or otherwise, may have business interests and engage
in business activities similar to or in addition to or in competition with those
of or relating to the Company.
ARTICLE IV
COMMITTEES
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Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors
may appoint from among its members an Executive Committee, an Audit Committee, a
Compensation Committee and other committees, composed of one or more directors,
to serve at the pleasure of the Board of Directors; provided, however, that the
Audit Committee, if formed, shall consist only of independent directors and the
Compensation Committee, if formed, shall consist of two or more Independent
Directors. For purposes of this section, an "Independent Director" shall mean
any person if, in the opinion of the Board of Directors such person will
exercise independent judgment and will materially assist in the function of the
committee, except that such person shall not be an officer or employee of the
Company, or a director who represents a close relative of a person who would not
qualify as an Independent Director.
Section 2. POWERS. The Board of Directors may delegate to committees
appointed under Section 1 of this Article any of the powers of the Board of
Directors, except the power to authorize dividends on stock, elect directors,
issue stock other than as provided in the next sentence, recommend to the
stockholders any action which requires stockholder approval, amend these
By-Laws, or approve any merger or share exchange which does not require
stockholder approval. If the Board of Directors has given general authorization
for the issuance of stock providing for or establishing a method or procedure
for determining the maximum number or shares to be issued, a committee of the
Board of Directors, in accordance with that general authorization or any stock
option or other plan or program adopted by the Board of Directors, may authorize
or fix the terms of stock subject to classification or reclassification and the
terms on which any stock may be issued, including all terms and conditions
required or permitted to be established or authorized by the Board of Directors.
Section 3. MEETINGS. Notice of committee meetings shall be given in the
same manner as notice for special meetings of the Board of Directors. A majority
of the members of the committee shall constitute a quorum for the transaction of
business at any meeting of the committee. The act of a majority of the committee
members present at a meeting shall be the act of such committee. The Board of
Directors may designate a chairman of any committee, and such chairman or any
two members of any committee may fix the time and place of its meeting unless
the Board shall otherwise provide. In the absence of any member of any such
committee, the members thereof present at any meeting, whether or not they
constitute a quorum, may appoint another director to act in the place of such
absent member. Each committee shall keep minutes of its proceedings.
Section 4. TELEPHONE MEETINGS. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference telephone or
similar communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 5. INFORMAL ACTION BY COMMITTEES. Any action required or
permitted to be taken at any meeting of a committee of the Board of Directors
may be taken without a meeting, if a consent in writing to such action is signed
by each member of the committee and such written consent is filed with the
minutes of proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, the Board of
Directors shall have the power at any time to change the membership of any
committee, to fill all
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vacancies, to designate alternate members to replace any absent or disqualified
member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Company shall
include a chief executive officer, a president, a secretary and a chief
financial officer and may include a chairman of the board (or one or more
co-chairmen of the board), a vice chairman of the board, one or more executive
vice presidents, one or more senior vice presidents, one or more vice
presidents, a chief operating officer, a treasurer, one or more assistant
secretaries and one or more assistant treasurers. In addition, the Board of
Directors may from time to time appoint such other officers with such powers and
duties as they shall deem necessary or desirable or authorize any committee or
officer to appoint assistant or subordinate officers. The officers of the
Company shall be elected annually by the Board of Directors at the first meeting
of the Board of Directors held after each annual meeting of stockholders, except
that the chief executive officer may appoint one or more vice presidents,
assistant secretaries and assistant treasurers. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as may be convenient. Each officer shall hold office at the pleasure
of the Board of Directors or until his death, resignation or removal in the
manner hereinafter provided. Any two or more offices except president and vice
president may be held by the same person. In its discretion, the Board of
Directors may leave unfilled any office except that of president, treasurer and
secretary. Election of an officer or agent shall not of itself create contract
rights between the Company and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Company
may be removed by the Board of Directors if in its judgment the best interests
of the Company would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Any officer
of the Company may resign at any time by giving written notice of his
resignation to the Board of Directors, the chairman of the board (or any
co-chairman of the board if more than one), the president or the secretary. Any
resignation shall take effect at any time subsequent to the time specified
therein or, if the time when it shall become effective is not specified therein,
immediately upon its receipt. The acceptance of a resignation shall not be
necessary to make it effective unless otherwise stated in the resignation. Such
resignation shall be without prejudice to the contract rights, if any, of the
Company.
Section 3. CHIEF EXECUTIVE OFFICER. The Board of Directors may
designate a chief executive officer. In the absence of such designation, the
chairman of the board (or, if more than one, the co-chairmen of the board in the
order designated at the time of their election or, in the absence of any
designation, then in the order of their election) shall be the chief executive
officer of the Company. The chief executive officer shall have general
responsibility for implementation of the policies of the Company, as determined
by the Board of Directors, and for the management of the business and affairs of
the Company.
Section 4. CHIEF OPERATING OFFICER. The Board of Directors may
designate a chief operating officer. The chief operating officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
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Section 5. CHIEF FINANCIAL OFFICER. The Board of Directors may
designate a chief financial officer. The chief financial officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
Section 6. CHAIRMAN OF THE BOARD. The Board of Directors shall
designate a chairman of the board (or one or more co-chairmen of the board). The
chairman of the board shall preside over the meetings of the Board of Directors
and of the stockholders at which he shall be present. If there be more than one,
the co-chairmen designated by the Board of Directors will perform such duties.
The chairman of the board shall perform such other duties as may be assigned to
him or them by the Board of Directors.
Section 7. CHAIRMAN OF THE BOARD EMERITUS. The directors may elect by a
majority vote, from time to time, a chairman of the board emeritus (or one or
more co-chairmen of the board emeritus). The chairman of the board emeritus
shall be an honorary position and shall have no vote on any matter considered by
the directors. The chairman of the board emeritus shall serve for such term as
determined by the Board of Directors and may be removed by a majority role of
directors with or without cause.
Section 8. PRESIDENT. The president or chief executive officer, as the
case may be, shall in general supervise and control all of the business and
affairs of the Company. In the absence of a designation of a chief operating
officer by the Board of Directors, the president shall be the chief operating
officer. He may execute any deed, mortgage, bond, contract or other instrument,
except in cases where the execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other officer or agent of the
Company or shall be required by law to be otherwise executed; and in general
shall perform all duties incident to the office of president and such other
duties as may be prescribed by the Board of Directors from time to time.
Section 9. VICE PRESIDENTS. In the absence of the president or in the
event of a vacancy in such office, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated at the
time of their election or, in the absence of any designation, then in the order
of their election) shall perform the duties of the president and when so acting
shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be
assigned to him by the president or by the Board of Directors. The Board of
Directors may designate one or more vice presidents as executive vice president
or as vice president for particular areas of responsibility.
Section 10. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the corporate records and of the seal of
the Company; (d) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder; (e) have general
charge of the share transfer books of the Company; and (f) in general perform
such other duties as from time to time may be assigned to him by the chief
executive officer, the president or by the Board of Directors.
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Section 11. TREASURER. The treasurer shall have the custody of the
funds and securities of the Company and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Directors. In
the absence of a designation of a chief financial officer by the Board of
Directors, the treasurer shall be the chief financial officer of the Company.
The treasurer shall disburse the funds of the Company as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the president and Board of Directors, at the regular meetings of
the Board of Directors or whenever it may so require, an account of all his
transactions as treasurer and of the financial condition of the Company.
If required by the Board of Directors, the treasurer shall give the
Company a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Company, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, moneys and other property of whatever kind in his possession or under
his control belonging to the Company.
Section 12. ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The
assistant secretaries and assistant treasurers, in general, shall perform such
duties as shall be assigned to them by the secretary or treasurer, respectively,
or by the president or the Board of Directors. The assistant treasurers shall,
if required by the Board of Directors, give bonds for the faithful performance
of their duties in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors.
Section 13. SALARIES. The salaries and other compensation of the
officers shall be fixed from time to time by the Board of Directors and no
officer shall be prevented from receiving such salary or other compensation by
reason of the fact that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. The Board of Directors may authorize any officer
or agent to enter into any contract or to execute and deliver any instrument in
the name of and on behalf of the Company and such authority may be general or
confined to specific instances. Any agreement, deed, mortgage, lease or other
document executed by one or more of the directors or by an authorized person
shall be valid and binding upon the Board of Directors and upon the Company when
authorized or ratified by action of the Board of Directors.
Section 2. CHECKS AND DRAFTS. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Company shall be signed by such officer or agent of the Company in
such manner as shall from time to time be determined by the Board of Directors.
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Section 3. DEPOSITS. All funds of the Company not otherwise employed
shall be deposited from time to time to the credit of the Company in such banks,
trust companies or other depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. The Board of Directors may determine to issue
certificated or uncertificated shares of capital stock and other securities of
the Company.
Section 2. TRANSFERS. Upon surrender to the Company or the transfer
agent of the Company of a stock certificate duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, the Company
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
The Company shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the Charter of the Company and all of
the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board
of Directors may direct a new certificate to be issued in place of any
certificate previously issued by the Company alleged to have been lost, stolen
or destroyed upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance
of a new certificate, an officer designated by the Board of Directors may, in
his discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or the owner's legal
representative to advertise the same in such manner as he shall require and/or
to give bond, with sufficient surety, to the Company to indemnify it against any
loss or claim which may arise as a result of the issuance of a new certificate.
Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The
Board of Directors may set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other proper purpose. Such date, in any
case, shall not be prior to the close of business on the day the record date is
fixed and shall be not more than 90 days and, in the case of a meeting of
stockholders, not less than ten days, before the date on which the meeting or
particular action requiring such determination of stockholders of record is to
be held or taken.
In lieu of fixing a record date, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not longer
than 20 days. If the stock
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transfer books are closed for the purpose of determining stockholders entitled
to notice of or to vote at a meeting of stockholders, such books shall be closed
for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed
for the determination of stockholders, (a) the record date for the determination
of stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of stockholders entitled
to receive payment of a dividend or an allotment of any other rights shall be
the close of business on the day on which the resolution of the directors,
declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except when (i) the determination has been
made through the closing of the transfer books and the stated period of closing
has expired or (ii) the meeting is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new
record date shall be determined as set forth herein.
Section 5. STOCK LEDGER. The Company shall maintain at its principal
executive office or at the office of its counsel, accountants or transfer agent,
an original or duplicate share ledger containing the name and address of each
stockholder and the number of shares of each class held by such stockholder.
Section 6. CERTIFICATION OF BENEFICIAL OWNERS. The Board of Directors
may adopt by resolution a procedure by which a stockholder of the Company may
certify in writing to the Company that any shares of stock registered in the
name of the stockholder are held for the account of a specified person other
than the stockholder. The resolution shall set forth the class of stockholders
who may certify; the purpose for which the certification may be made; the form
of certification and the information to be contained in it; if the certification
is with respect to a record date or closing of the stock transfer books, the
time after the record date or closing of the stock transfer books within which
the certification must be received by the Company; and any other provisions with
respect to the procedure which the Board of Directors considers necessary or
desirable. On receipt of a certification which complies with the procedure
adopted by the Board of Directors in accordance with this Section, the person
specified in the certification is, for the purpose set forth in the
certification, the holder of record of the specified stock in place of the
stockholder who makes the certification.
Section 7. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors
may issue fractional stock or provide for the issuance of scrip, all on such
terms and under such conditions as they may determine. Notwithstanding any other
provision of the Charter or these Bylaws, the Board of Directors may issue units
consisting of different securities of the Company. Any security issued in a unit
shall have the same characteristics as any identical securities issued by the
Company, except that the Board of Directors may provide that for a specified
period securities of the Company issued in such unit may be transferred on the
books of the Company only in such unit.
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ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix
the fiscal year of the Company by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the
stock of the Company may be authorized and declared by the Board of Directors,
subject to the provisions of law and the Charter of the Company. Dividends and
other distributions may be paid in cash, property or stock of the Company,
subject to the provisions of law and the Charter.
Section 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Company available
for dividends or other distributions such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper as a reserve
fund for contingencies, for equalizing dividends or other distributions, for
repairing or maintaining any property of the Company or for such other purpose
as the Board of Directors shall determine to be in the best interest of the
Company, and the Board of Directors may modify or abolish any such reserve in
the manner in which it was created.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter of the Company, the Board of
Directors may from time to time adopt, amend, revise or terminate any policy or
policies with respect to investments by the Company as it shall deem appropriate
in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of a
seal by the Company. The seal shall contain the name of the Company and the year
of its incorporation. The Board of Directors may authorize one or more duplicate
seals and provide for the custody thereof.
Section 2. AFFIXING SEAL. Whenever the Company is permitted or
required to affix its seal to a document, it shall be sufficient to meet the
requirements of any law, rule or regulation relating to a seal to place the word
"(SEAL)" adjacent to the signature of the person authorized to execute the
document on behalf of the Company.
14
<PAGE>
ARTICLE XII
INDEMNIFICATION AND ADVANCES FOR EXPENSES
Section 1. PROCEDURE. Any indemnification, or payment of expenses in
advance of the final disposition of any proceeding, shall be made promptly, and
in any event within 60 days, upon the written request of the director or officer
entitled to seek indemnification (the "Indemnified Party"). The right to
indemnification and advances hereunder shall be enforceable by the Indemnified
Party in any court of competent jurisdiction, if (i) the Company denies such
request, in whole or in part, or (ii) no disposition thereof is made within 60
days. The Indemnified Party's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such action shall also be reimbursed by the Company. It shall be a
defense to any action for advance for expenses that (a) a determination has been
made that the facts then known to those making the determination would preclude
indemnification or (b) the Company has not received both (i) an undertaking as
required by law to repay such advance sin the event it shall ultimately be
determined that the standard of conduct has not been met and (ii) a written
affirmation by the Indemnified Party of such Indemnified Party's good faith
belief that the standard of conduct necessary for indemnification by the Company
has been met.
Section 2. EXCLUSIVITY, ETC. The indemnification and advance of
expenses provided by the Charter and these By-Laws shall not be deemed exclusive
of any other rights to which a person seeking indemnification or advance of
expenses may be entitled under any law (common or statutory), or any agreement,
vote of stockholders or disinterested directors or other provision that is
consistent with law, both as to action in his or her official capacity and as to
action in another capacity while holding office or while employed by or acting
as agent for the Company, shall continue in respect of all events occurring
while a person was as director or officer after such person has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of such person. The Company shall not be liable for
any payment under this By-Law in connection with a claim made by a director or
officer to the extent such director or officer has otherwise actually received
payment under insurance policy, agreement, vote or otherwise, of the amounts
otherwise indemnifiable hereunder. All rights to indemnification and advance of
expenses under the Charter of the Company and hereunder shall be deemed to be a
contract between the Company and each director or officer of the Company who
serves or served in such capacity at any time while this By-Law is in effect.
Nothing herein shall prevent the amendment of this By-Law, provided that no such
amendment shall diminish the rights of any person hereunder with respect to
events occurring or claims made before its adoption or as to claims made after
its adoption in respect of events occurring before its adoption. Any repeal or
modification of this By-Law shall not in any way diminish any rights to
indemnification or advance of expenses of such director or officer or the
obligations of the Company arising hereunder with respect to events occurring,
or claims made, while this By-Law or any provision hereof is in force.
Section 3. SEVERABILITY; DEFINITIONS. The invalidity or
unenforceability of any provision of this Article XII shall not affect the
validity or enforceability of any other provision hereof. The phrase "this
By-Law" in this Article XII means this Article XII in its entirety.
15
<PAGE>
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Charter of
the Company or these Bylaws or pursuant to applicable law, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at nor the purpose of any
meeting need be set forth in the waiver of notice, unless specifically required
by statute. The attendance of any person at any meeting shall constitute a
waiver of notice of such meeting, except where such person attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
In accordance with the Charter, these By-Laws may be repealed, altered,
amended or rescinded (a) by the stockholders of the Company but only by the
affirmative vote of not less than 80% of all the votes entitled to be cast by
the outstanding shares of capital stock of the Company entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that purpose (provided
that notice of such proposed repeal, alteration, amendment or rescission is
included in the notice of such meeting) or (b) by affirmative vote of not less
than two-thirds of the Board of Directors at a meeting held in accordance with
the provisions of these By-Laws.
ARTICLE XV
MISCELLANEOUS
Section 1. BOOKS AND RECORDS. The Company shall keep correct and
complete books and records of its accounts and transactions and minutes of the
proceedings of its stockholders and Board of Directors and of any executive or
other committee when exercising any of the powers of the Board of Directors. The
books and records of the Company may be in written form or in any other form
which can be converted within a reasonable time into written form for visual
inspection. Minutes shall be recorded in written form but may be maintained in
the form of a reproduction. The original or a certified copy of these By-laws
shall be kept at the principal office of the Company.
Section 2. VOTING STOCK IN OTHER COMPANIES. Stock of other corporations
or associations, registered in the name of the Company, may be voted by the
President, a Vice-President, or a proxy appointed by either of them. The Board
of Directors, however, may by resolution appoint some other person to vote such
shares, in which case such person shall be entitled to vote such shares upon the
production of a certified copy of such resolution.
Section 3. MAIL. Any notice or other document which is required by
these By-Laws to be mailed shall be deposited in the United States mails,
postage prepaid.
Section 4. EXECUTION OF DOCUMENTS. A person who holds more than one
office in the Company may not act in more than one capacity to execute,
acknowledge, or verify an instrument required by law to be executed,
acknowledged, or verified by more than one officer.
16
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Current Report on
Form 8-K of our report on the financial statements and financial statements
schedules of Starwood Financial Trust, for the three years ended December 31,
1998, dated March 15, 1999, incorporated by reference into its Registration
Statement on Form S-4 (No. 333-85897) dated September 21, 1999.
PricewaterhouseCoopers LLP
New York, NY
November 2, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Current Report on
Form 8-K of our reports on the financial statements and financial statements
schedules of TriNet Corporate Realty Trust, Inc., for the three years ended
December 31, 1998, dated January 22, 1999, except for Note 16, as to which the
date is March 12, 1999, incorporated by reference into its Registration
Statement on Form S-4 (No. 333-85897) dated September 21, 1999.
PricewaterhouseCoopers LLP
San Francisco, CA
November 2, 1999
<PAGE>
Exhibit 99.1
<TABLE>
<S> <C> <C>
N E W S B U L L E T I N RE: Starwood Financial TriNet Corporate
1114 Avenue of the Americas Realty Trust
FROM: 27th Floor One Embarcadero Center
New York, NY 10036 33rd Floor
The Financial Relations Board Traded ASE: APT San Francisco, CA 94111
- ----------------------------- Traded NYSE: TRI
B S M G W O R L D W I D E
</TABLE>
<TABLE>
<S> <C>
AT STARWOOD FINANCIAL: AT TRINET:
Spencer B. Haber Elisa F. DiTommaso
Executive Vice President-Finance and CFO Senior Vice President-Finance and CFO
(212) 930-9400 (415) 391-4300
MEDIA INQUIRIES: INVESTOR INQUIRIES:
Eric Berman, Adam Weiner or Sarah Zitter Milstein Innisfree M&A Incorporated
Kekst and Company (888) 750-5834
(212) 521-4800
- -------------------------------------------------------------------------------------------------
</TABLE>
FOR IMMEDIATE RELEASE
OCTOBER 22, 1999
LEADING VOTING ADVISOR RECOMMENDS
VOTE FOR STARWOOD FINANCIAL-TRINET MERGER
Starwood Financial Board Formally Approves Stock Repurchase Program
NEW YORK and SAN FRANCISCO - October 22, 1999 - Starwood Financial Trust
(ASE: APT) and TriNet Corporate Reality Trust, Inc. (NYSE:TRI) announced
today that Institutional Shareholder Services ("ISS"), the nation's leading
voting advisory service, has recommended that its clients, including
institutional investors, mutual funds and other fiduciaries, vote FOR the
merger of Starwood Financial and TriNet.
In its report, ISS noted that:
- The merger will create the largest publicly-traded finance company with
an exclusive focus on commercial real estate.
- TriNet's business of providing net leases to creditworthy corporate
tenants complements Starwood Financial's role in providing mortgage and
other structured financing alternatives to real estate owners.
- The merger will enhance the national scope of the combined company and
may provide better access to capital and the scale to conduct larger
transactions, which are subject to less competition.
- The merger will increase the diversification of the combined company's
asset base in terms of borrower/tenant concentration, property type,
asset type and geography.
After weighing these positive considerations against any possible risk
factors associated with the proposed transaction, ISS concluded that the
Starwood Financial-TriNet merger agreement warrants shareholder support.
- more -
<PAGE>
Leading Voting Advisor Recommends Vote FOR Starwood Financial-TriNet Merger
Page 2 of 2
Starwood Financial and TriNet have scheduled special shareholder
meetings for Wednesday, November 3, 1999, at which time the results of the
companies' shareholder votes will be announced. An interactive investor
presentation regarding the merger is available on the Internet at
www.vcall.com (enter ticker symbol APT). In addition, shareholders may obtain
a copy of the proxy statement and proxy cards from the companies'
solicitation agent, Innisfree M&A Incorporated at 888-750-5834.
Starwood Financial also announced today that its Board has formally
approved the implementation of a stock repurchase program upon closing of the
merger, as previously described in the proxy statement mailed to shareholders
with regard to the Starwood Financial-TriNet merger. The authorization allows
Starwood Financial to purchase up to five million shares of its common stock
from time to time after the closing of the merger, in the open market or
through negotiated transactions.
TriNet Corporate Realty Trust, Inc. is the largest publicly-traded
company specializing in the net leasing of corporate office and warehouse
distribution properties. TriNet provides capital to major corporations and
real estate owners nationwide by structuring purchase/leaseback transactions
and acquiring properties subject to existing long-term leases to
creditworthy office and industrial tenants. The company's portfolio contains
143 properties comprising more than 19 million square feet in 25 states and
is 96% leased. Additional information on TriNet Corporate Realty Trust, Inc.
is available on the company's Web site at http://www.tricorp.com.
Starwood Financial is the leading publicly-traded finance company
focused exclusively on the commercial real estate industry. The company,
which is taxed as a real estate investment trust, provides structured
mortgage, mezzanine and lease financing through its proprietary origination,
acquisition and servicing platform. The company's mission is to maximize
risk-adjusted returns on equity by providing innovative and value-added
financing solutions to the real estate industry.
###
<PAGE>
Exhibit 99.2
<TABLE>
<S> <C> <C>
N E W S B U L L E T I N RE: Starwood Financial TriNet Corporate
1114 Avenue of the Americas Realty Trust
FROM: 27th Floor One Embarcadero Center
New York, NY 10036 33rd Floor
The Financial Relations Board Traded ASE: APT San Francisco, CA 94111
- ----------------------------- Traded NYSE: TRI
B S M G W O R L D W I D E
</TABLE>
<TABLE>
<S> <C>
AT STARWOOD FINANCIAL: AT TRINET:
Spencer B. Haber Elisa F. DiTommaso
Executive Vice President-Finance and CFO Senior Vice President-Finance and CFO
(212) 930-9400 (415) 391-4300
MEDIA INQUIRIES: INVESTOR INQUIRIES:
Eric Berman, Adam Weiner or Sarah Zitter Milstein Innisfree M&A Incorporated
Kekst and Company (888) 750-5834
(212) 521-4800
- -------------------------------------------------------------------------------------------------
</TABLE>
FOR IMMEDIATE RELEASE
NOVEMBER 3, 1999
TRINET AND STARWOOD FINANCIAL STOCKHOLDERS
APPROVE MERGER OF COMPANIES
SAN FRANCISCO AND NEW YORK CITY, November 3, 1999 - TriNet Corporate
Realty Trust, Inc. (NYSE:TRI) and Starwood Financial Trust (AMEX: APT)
today reported that their respective stockholders have approved the
companies' plan to merge. No other approvals are required in order to
close the transaction. The companies plan to close the merger promptly.
The proposed merger required approval of 66 2/3% of TriNet's outstanding
shares and approval of 66 2/3% of Starwood Financial's outstanding
shares. Approximately 83% of the shares voted by TriNet stockholders were
cast in favor of the merger at a special meeting of TriNet stockholders
held this morning in San Francisco. Over 99% of the shares voted by
Starwood Financial shareholders were cast in favor of the merger at a
special meeting of Starwood Financial's shareholders held this morning in
New York.
In the merger, TriNet stockholders will receive 1.15 shares of Starwood
Financial common stock for each share of TriNet common stock they own.
The combined company will be the largest publicly-traded finance company
focused exclusively on the commercial real estate industry.
Starwood Financial's shareholders also approved Starwood Financial's
proposal to acquire ownership of its external advisor and its proposal to
change Starwood Financial's form of organization from a trust to a
corporation and eliminate its dual class share structure.
TriNet Corporate Realty Trust, Inc. is the largest publicly-traded
company specializing in the net leasing of corporate office and warehouse
distribution properties. TriNet provides capital to major corporations
and real estate owners nationwide by structuring purchase/leaseback
transactions and acquiring properties subject to existing long-term
leases to creditworthy office
-MORE-
<PAGE>
TRINET AND STARWOOD FINANCIAL STOCKHOLDERS APPROVE MERGER OF COMPANIES
PAGE 2 OF 2
and industrial tenants. The company's portfolio contains 142 properties
comprising approximately 19 million square feet in 25 states and is
95% leased. Additional information on TriNet Corporate Realty Trust, Inc.
is available on the company's Web site at http://www.tricorp.com.
Starwood Financial is the leading publicly-traded finance company focused
exclusively on the commercial real estate industry. The company, which is
taxed as a real estate investment trust, provides structured mortgage,
mezzanine and lease financing through its proprietary origination,
acquisition and servicing platform. The company's mission is to maximize
risk-adjusted returns on equity by providing innovative and value-added
financing solutions to the real estate industry.
Statements in this press release which are not historical fact may be
deemed forward-looking statements within the meaning of the Private
Securities Litigation Reform Act of 1995. Although Starwood Financial and
TriNet believe the expectations reflected in any forward-looking
statements are based on reasonable assumptions, the companies can give no
assurance that their expectations will be attained. Factors that could
cause actual results to differ materially from the companies'
expectations include the combined company's ability to achieve its
property disposition targets and its ability to secure a credit
enhancement arrangement on satisfactory terms, the combined company's
ability to originate new investments, the availability and cost of
capital for future investments, competition within the finance and real
estate industries, real estate and economic conditions, and other risks
detailed from time to time in SEC reports filed by Starwood Financial and
TriNet.
###
<PAGE>
Exhibit 99.3
<TABLE>
<S> <C>
N E W S B U L L E T I N RE: STARWOOD FINANCIAL
1114 AVENUE OF THE AMERICAS
FROM: 27TH FLOOR
NEW YORK, NY 10036
THE FINANCIAL RELATIONS BOARD TRADED NYSE: SFI
- -----------------------------
B S M G W O R L D W I D E
</TABLE>
<TABLE>
<S> <C>
AT STARWOOD FINANCIAL: INVESTOR INQUIRIES:
Spencer B. Haber Pamela King
Executive Vice President-Finance and CFO The Financial Relations Board
(212) 930-9400 (212) 661-8030
MEDIA INQUIRIES:
Eric Berman, Adam Weiner or Sarah Zitter Milstein
Kekst and Company
(212) 521-4800
- -------------------------------------------------------------------------------------------------
</TABLE>
FOR IMMEDIATE RELEASE
NOVEMBER 4, 1999
STARWOOD FINANCIAL AND TRINET COMPLETE MERGER
NEW YORK - NOVEMBER 4, 1999 - Starwood Financial Inc. (NYSE: SFI) announced
today that the merger of TriNet Corporate Realty Trust, Inc. with a
subsidiary of Starwood Financial has been completed, creating the largest
publicly-traded finance company focused exclusively on the commerical
real estate industry. Starwood Financial, which was formerly known as
Starwood Financial Trust and was externally advised, also stated that it
is now a self-advised company.
Beginning today, Starwood Financial will trade on the New York Stock
Exchange under the symbol "SFI." Previously, Starwood Financial traded
under the symbol (ASE: APT) and TriNet Corporate Realty traded under the
symbol (NYSE: TRI).
Starwood Financial Inc. is the largest publicly-traded finance company
focused exclusively on the commercial real estate industry. The company's
misssion is to maximize risk-adjusted returns on equity by providing
innovative and value-added financing solutions to the real estate
industry. The company, which is taxed as a real estate investment trust,
provides structured mortgage mezzanine and lease financing through its
proprietary origination, acquisition and servicing platform.
###
