Exhibit 3.1
8.50% Series A Cumulative Redeemable Preferred
Stock
ARTICLES SUPPLEMENTARY
STRATEGIC HOTEL CAPITAL, INC.
Articles Supplementary Classifying
and Designating a Series of Preferred Stock
as
8.50% Series A Cumulative Redeemable Preferred
Stock
and Fixing Dividend and Other Preferences and
Rights of Such Series
Dated as of March 15, 2005
STRATEGIC HOTEL CAPITAL, INC.
Articles Supplementary Classifying
and Designating a Series of Preferred Stock
as
8.50% Series A Cumulative Redeemable Preferred
Stock
and Fixing Dividend and Other Preferences and
Rights of Such Series
Strategic Hotel Capital, Inc., a
Maryland corporation (the “ Corporation ”),
hereby certifies to the State Department of Assessments and
Taxation of Maryland pursuant to section 2-208 of the Maryland
General Corporation Law ( the “ MGCL ”)
that:
FIRST: Pursuant to the authority
granted and vested in the Board of Directors of the Corporation
(the “ Board of Directors ”) by Article VI,
Sections 6.3 and 6.4 of the Articles of Amendment and Restatement
dated June 22, 2004 (as amended or supplemented from time to time,
the “ Articles ”), the Board of Directors, by
duly adopted resolutions, has classified 4,600,000 unissued shares
of Preferred Stock (as defined in the Articles) of the Corporation
as 8.50% Series A Cumulative Redeemable Preferred Stock, $0.01 par
value per share (the “ Series A Preferred Shares
”).
SECOND: The following is a
description of the Series A Preferred Shares, including the
preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications, and
terms and conditions of redemption thereof which, upon any
restatement of the Articles, shall become part of Article VI
thereof, with any necessary or appropriate renumbering or
relettering of the sections or subsections thereof:
8.50% Series A Cumulative Redeemable
Preferred Stock
Section 1. Number of Shares and
Designation . This class of Preferred Stock shall be designated
as 8.50% Series A Cumulative Redeemable Preferred Stock (the
“ Series A Preferred Shares ”) and the number of
shares which shall constitute such series shall be 4,600,000, $0.01
par value per share.
Section 2. Definitions . For
purposes of the Series A Preferred Shares, the following terms
shall have the meanings indicated:
“ Board of Directors
” shall mean the Board of Directors of the Corporation or any
committee authorized by such Board of Directors to perform any of
its responsibilities with respect to the Series A Preferred
Shares.
“ Business Day ”
shall mean any day other than a Saturday, Sunday or a day on which
state or federally chartered banking institutions in New York City,
New York are not required to be open.
“ Call Date ”
shall mean the date fixed for redemption of the Series A Preferred
Shares and specified in the notice to holders required under
subparagraph (d) of Section 5 as the Call Date.
“ Common Shares ”
shall mean the shares of Common Stock of the Corporation, par value
$0.01 per share.
“ Dividend Payment Date
” shall mean the last calendar day of March, June, September
and December in each year, commencing on June 30, 2005;
provided , however , that if any Dividend Payment
Date falls on any day other than a Business Day, the dividend
payment due on such Dividend Payment Date shall be paid on the
Business Day immediately following such Dividend Payment Date and
no interest or other sum shall accumulate or be paid on the amount
so payable for the period after such Dividend Payment Date to such
next Business Day.
“ Dividend Periods
” shall mean quarterly dividend periods commencing on January
1, April 1, July 1 and October 1 of each year and ending on and
including the day preceding the first day of the next succeeding
Dividend Period (other than the initial Dividend Period, which
shall commence on the Issue Date and end on and include June 30,
2005, and other than the Dividend Period during which any Series A
Preferred Shares shall be redeemed pursuant to Section 5, which
shall end on and include the Call Date with respect to the Series A
Preferred Shares being redeemed).
“ Fully Junior Shares
” shall mean the Common Shares and any other class or series
of shares of stock of the Corporation now or hereafter issued and
outstanding over which the Series A Preferred Shares have
preference or priority in both (i) the payment of dividends and
(ii) the distribution of assets on any liquidation, dissolution or
winding up of the Corporation.
“ Issue Date ”
shall mean March 16, 2005.
“ Junior Shares ”
shall mean the Common Shares and any other class or series of
shares of stock of the Corporation now or hereafter issued and
outstanding over which the Series A Preferred Shares have
preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding
up of the Corporation and, unless the context clearly indicates
otherwise, shall include Fully Junior Shares.
“ Parity Shares ”
shall have the meaning set forth in paragraph (b) of Section
7.
“ Person ” shall
mean any individual, firm, partnership, limited liability company,
corporation or other entity, and shall include any successor (by
merger or otherwise) of such entity.
2
“ Series A Preferred
Shares ” shall have the meaning set forth in Section 1
hereof.
“ set apart for payment
” shall be deemed to include, without any action other than
the following: the recording by the Corporation in its accounting
ledgers of any accounting or bookkeeping entry which indicates,
pursuant to an authorization by the Board of Directors and a
declaration of dividends or other distribution by the Corporation,
the allocation of funds to be so paid on any series or class of
shares of stock of the Corporation; provided ,
however , that if any funds for any class or series of
Junior Shares or any class or series of shares of stock ranking on
a parity with the Series A Preferred Shares as to the payment of
dividends are placed in a separate account of the Corporation or
delivered to a disbursing, paying or other similar agent, then
“set apart for payment” with respect to the Series A
Preferred Shares shall mean placing such funds in a separate
account or delivering such funds to a disbursing, paying or other
similar agent.
“ Transfer Agent
” means LaSalle Bank, N.A., Chicago, Illinois, or such other
agent or agents of the Corporation as may be designated by the
Board of Directors or their designee as the transfer agent,
registrar and dividend disbursing agent for the Series A Preferred
Shares.
“ Voting Preferred
Shares ” shall have the meaning set forth in Section 8
hereof.
Section 3. Dividends
.
(a) The holders of Series A
Preferred Shares shall be entitled to receive, when, as and if
authorized by the Board of Directors and declared by the
Corporation out of funds legally available for that purpose,
dividends payable in cash in an amount per share equal to 8.50% of
the liquidation preference per annum (equivalent to $2.125 per
share annum), except as provided in Section 3(b). Such dividends
shall begin to accrue and shall be fully cumulative from the Issue
Date, whether or not in any Dividend Period or Periods there shall
be funds of the Corporation legally available for the payment of
such dividends, and shall be payable quarterly, when, as and if
authorized by the Board of Directors and declared by the
Corporation, in arrears on Dividend Payment Dates, commencing on
the first Dividend Payment Date after the Issue Date. Each such
dividend shall be payable in arrears to the holders of record of
Series A Preferred Shares, as they appear on the stock records of
the Corporation at the close of business on such record dates, not
less than 10 nor more than 50 days preceding such Dividend Payment
Dates thereof, as shall be fixed by the Board of Directors. Accrued
and unpaid dividends on the Series A Preferred Shares for any past
Dividend Periods may be declared and paid at any time and for such
interim periods, without reference to any regular Dividend Payment
Date, to holders of record on such date, not less than 10 nor more
than 50 days preceding the payment date thereof, as may be fixed by
the Board of Directors.
(b) The amount of dividends payable
for each full Dividend Period for the Series A Preferred Shares
shall be computed by dividing the annual dividend rate by four. The
amount of dividends payable for the initial Dividend Period, or any
other period shorter or longer than a full Dividend Period, on the
Series A Preferred Shares shall be
3
computed on the basis of twelve
30-day months and a 360-day year. Holders of Series A Preferred
Shares shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of cumulative dividends, as
herein provided, on the Series A Preferred Shares. 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 Shares
that may be in arrears.
(c) So long as any Series A
Preferred Shares are outstanding, no full dividends, except as
described in the immediately following sentence, shall be declared
or paid or set apart for payment on any class or series of Parity
Shares, as to dividends, for any period unless full cumulative
dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof set apart for
such payment on the Series A Preferred Shares for all past Dividend
Periods terminating on or prior to the dividend payment date on
such class or series of Parity Shares. When dividends are not paid
in full (or a sum sufficient for such full payment is not so set
apart), as aforesaid, all dividends declared upon the Series A
Preferred Shares and all dividends declared upon any other class or
series of Parity Shares, as to dividends, shall be declared ratably
in proportion to the respective amounts of dividends accumulated
and unpaid on the Series A Preferred Shares and accumulated and
unpaid on such Parity Shares.
(d) So long as any Series A
Preferred Shares are outstanding, no dividends (other than
dividends or distributions paid solely in shares of, or options,
warrants or rights to subscribe for or purchase shares of, Fully
Junior Shares) shall be declared or paid or set apart for payment
or other distribution declared or made upon Junior Shares, as to
dividends, nor shall any Junior Shares, as to dividends, be
redeemed, purchased or otherwise acquired for any consideration (or
any moneys be paid to or made available for a sinking fund for the
redemption of any Junior Shares, as to dividends) by the
Corporation, directly or indirectly (except by conversion into or
exchange for Fully Junior Shares), unless in each case (i) the full
cumulative dividends on all outstanding Series A Preferred Shares
and any other Parity Shares, as to dividends, of the Corporation
shall have been paid or declared and set apart for payment for all
past Dividend Periods with respect to the Series A Preferred Shares
and all past dividend periods with respect to such Parity Shares
and (ii) sufficient funds shall have been paid or declared and set
apart for the payment of the dividend for the current Dividend
Period with respect to the Series A Preferred Shares and the
current dividend period with respect to such Parity Shares. Any
dividend payment on the Series A Preferred Shares shall first be
credited against the earliest accrued but unpaid dividend due which
remains payable.
(e) No distributions on Series A
Preferred Shares shall be authorized by the Board of Directors of
the Corporation or declared and paid or set apart for payment by
the Corporation at such time as the terms and provisions of any
agreement of the Corporation, including any agreement relating to
its indebtedness for borrowed money, prohibits such declaration,
payment or setting apart for payment or provides that such
declaration, payment or setting apart for payment would constitute
a breach thereof or a default thereunder, or if such declaration or
payment shall be restricted or prohibited by law.
4
(f) If, for any taxable year, the
Board of Directors of the Corporation elects to designate as
“capital gain dividends” (as defined in Section 857 of
the Internal Revenue Code of 1986, as amended), any portion of the
dividends (as determined for federal income tax purposes) paid or
made available for the year to holders of all classes of shares of
stock of the Corporation, then the portion of such designated
amount that shall be allocable to the holders of Series A Preferred
Shares shall be the amount that the total dividends (as determined
for federal income tax purposes) paid or made available to the
holders of the Series A Preferred Shares for the year bears to the
total dividends paid or made available for the year to holders of
all classes of shares of stock of the Corporation.
Section 4. Liquidation
Preference .
(a) In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or
involuntary, before any payment or distribution of the assets of
the Corporation (whether capital or surplus) shall be made to or
set apart for the holders of Junior Shares, as to the distribution
of assets on any liquidation, dissolution or winding up of the
Corporation, the holders of the Series A Preferred Shares shall be
entitled to receive Twenty-Five Dollars ($25.00) per Series A
Preferred Share plus an amount equal to all dividends (whether or
not earned or declared) accrued and unpaid thereon to the date of
final distribution to such holders; but such holders shall not be
entitled to any further payment. If, upon any liquidation,
dissolution or winding up of the Corporation, the assets of the
Corporation, or proceeds thereof, distributable among the holders
of the Series A Preferred Shares shall be insufficient to pay in
f
