HINES REAL ESTATE INVESTMENT
TRUST, INC.
Hines Real Estate
Investment Trust, Inc., a Maryland corporation (the
“Company”), hereby certifies to the State Department of
Assessments and Taxation of Maryland that:
FIRST :
Under a power contained in Section 6.3 of Article VI of
the charter of the Company (the “Charter”), the Board
of Directors of the Company (the “Board of Directors”),
by duly adopted resolutions classified and designated
authorized but unissued Preferred Shares (as defined in the
Charter) as shares of ___% Series A Cumulative Redeemable
Preferred Stock, with the following preferences, conversion and
other rights, voting powers, restrictions, limitations as to
dividends and other distributions, qualifications, and terms and
conditions of redemption, which, upon any restatement of the
Charter, shall become part of Article VI of the Charter, with
any necessary or appropriate renumbering or relettering of the
sections or subsections hereof. Unless otherwise defined below,
capitalized terms used below have the meanings given to them in the
Charter.
___%
Series A Cumulative Redeemable Preferred Stock
(1)
Designation and Number . A series of Preferred Shares,
designated the “___% Series A Cumulative Redeemable
Preferred Stock” (the “Series A Preferred
Stock”), is hereby established. The number of shares of the
Series A Preferred Stock shall be
.
(2)
Rank . The Series A Preferred Stock shall, with respect
to rights to the payment of dividends and the distribution of
assets upon the liquidation, dissolution or winding up of the
Company, rank (a) senior to all classes or series of Common
Shares and any other class or series of stock of the Company the
terms of which specifically provide that the holders of the
Series A Preferred Stock are entitled to receive dividends or
amounts distributable upon the liquidation, dissolution or winding
up of the Company in preference or priority to the holders of
shares of such class or series (the “Junior Stock”);
(b) on a parity with any class or series of stock of the
Company the terms of which specifically provide that the holders of
such class or series of stock and the Series A Preferred Stock
are entitled to receive dividends and amounts distributable upon
the liquidation, dissolution or winding up of the Company in
proportion to their respective amounts of accumulated, accrued and
unpaid dividends per share or liquidation preferences, without
preference or priority of one over the other (the “Parity
Stock”); and (c) junior to any class or series of stock
of the Company the terms of which specifically provide that the
holders of such class or series are entitled to receive dividends
or amounts distributable upon the liquidation, dissolution or
winding up of the Company in preference or priority to the holders
of the Series A Preferred Stock (the “Senior
Stock”).
(a) Subject
to the preferential rights of holders of any class or series of
Senior Stock, holders of Series A Preferred Stock shall be
entitled to receive, when and as authorized by the Board of
Directors and declared by the Company, out of funds legally
available for the payment of dividends, cash dividends at the rate
of ___% per annum of the $25.00 liquidation preference (equivalent
to a fixed annual rate of $
per share). The dividends on each share of Series A Preferred
Stock shall accrue and shall be cumulative from the first date on
which such share of Series A Preferred Stock is issued and
shall be payable quarterly in arrears on or before the fifteenth
day of each January, April, July and October of each year or, if
not a Business Day, the next succeeding Business Day (each, a
“Dividend Payment Date”). Any dividend payable on the
Series A Preferred Stock for any partial Dividend Period shall
be computed ratably on the basis of a 365-day year consisting of
twelve 30-day months. Dividends shall be payable in arrears to
holders of record as they appear in the stock records of the
Company at the close of business on the applicable record date or
dates, which shall be each day of the calendar quarter immediately
preceding the calendar quarter in which the applicable Dividend
Payment Date falls or such other date or dates designated by the
Board of Directors for the determination of the holders of
Series A Preferred Stock entitled to receive dividends that is
or are not more than 90 days prior to such Dividend Payment
Date or the date on which such dividends are set aside for payment
(each, a “Dividend Record Date”). The term
“Business Day” shall mean any day, other than Saturday,
Sunday or a day on which banking institutions in the State of Texas
are authorized or obligated by law to close, or a day which is or
is declared a national or a Texas state holiday. The term
“Dividend Period” shall mean the first day of each
calendar quarter through and including the last day of such
calendar quarter.
(b) Holders
of Series A Preferred Stock shall not be entitled to any
dividends in excess of cumulative dividends, as herein provided, on
the Series A Preferred Stock.
(c) No
interest, or sum of money in lieu of interest, shall be payable in
respect of any dividend payment or payments on the Series A
Preferred Stock that may be in arrears.
(d) When
dividends are not paid in full upon the Series A Preferred
Stock or any other class or series of Parity Stock, or a sum
sufficient for such payment is not set apart, all dividends
declared upon the Series A Preferred Stock and any shares of
Parity Stock shall be declared ratably in proportion to the
respective amounts of dividends accumulated, accrued and unpaid on
the Series A Preferred Stock and accumulated, accrued and unpaid on
such Parity Stock (which shall not include any accumulation in
respect of unpaid dividends for prior Dividend Periods if such
Parity Stock does not have a cumulative dividend).
(e) Except
as set forth in the preceding paragraph, unless full cumulative
dividends equal to the full amount of all accumulated, accrued and
unpaid dividends on the Series A Preferred Stock have been, or
are concurrently therewith, declared
-2-
and paid or
declared and set apart for payment for all past Dividend Periods,
no dividends (other than dividends or distributions paid in shares
of Junior Stock or options, warrants or rights to subscribe for or
purchase shares of Junior Stock) shall be declared and paid or
declared and set apart for payment by the Company and no other
distribution of cash or other property may be declared and made,
directly or indirectly, by the Company with respect to any shares
of Junior Stock or Parity Stock, nor shall any shares of Junior
Stock or Parity Stock be redeemed, purchased or otherwise acquired
(other than a redemption, purchase or other acquisition of Common
Shares made for purposes of an employee incentive or benefit plan
of the Company) for any consideration (or any monies be paid to or
made available for a sinking fund for the redemption of any shares
of any such stock), directly or indirectly, by the Company (except
by conversion into or exchange for shares of Junior Stock or
options, warrants or rights to subscribe for or purchase shares of
Junior Stock), nor shall any other cash or other property be paid
or distributed to or for the benefit of holders of shares of Junior
Stock or Parity Stock.
(f) Notwithstanding
the foregoing provisions of this Section 3, the Company shall
not be prohibited from (i) declaring or paying or setting
apart for payment any dividend or other distribution on any shares
of Junior Stock or Parity Stock or (ii) redeeming, purchasing
or otherwise acquiring any Junior Stock or Parity Stock, in each
case, if such declaration, payment, setting apart for payment,
redemption, purchase or other acquisition is necessary in order to
maintain the continued qualification of the Company as a REIT under
Section 856 of the Code.
(4)
Liquidation Preference .
(a) Upon
any voluntary or involuntary liquidation, dissolution or winding up
of the Company, before any payment or distribution by the Company
shall be made to or set apart for the holders of any shares of
Junior Stock, the holders of shares of the Series A Preferred
Stock shall be entitled to be paid out of the assets of the Company
that are legally available for distribution to the stockholders, a
liquidation preference of $25.00 per share (the “Liquidation
Preference”), plus an amount equal to all accumulated,
accrued and unpaid dividends (whether or not declared) to and
including the date of payment. Until the holders of the
Series A Preferred Stock have been paid the Liquidation
Preference in full, plus an amount equal to all accumulated,
accrued and unpaid divide
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