Attached files
| file | filename |
|---|---|
| 10-K - HOMEFED CORPORATION 2010 FORM 10-K - HOMEFED CORP | hfc2010form10k.htm |
| EX-21 - HOMEFED CORPORATION LIST OF SUBSIDIARIES - HOMEFED CORP | hfcexhibit21.htm |
| EX-23 - HOMEFED CORPORATION PWC CONSENT - HOMEFED CORP | hfcpwcconsent.htm |
| EX-31.2 - ERIN N. RUHE EXHIBIT 31.2 - HOMEFED CORP | eruheexhibit312.htm |
| EX-32.2 - ERIN N. RUHE EXHIBIT 32.2 - HOMEFED CORP | eruheexhibit322.htm |
| EX-32.1 - PAUL J. BORDEN EXHIBIT 32.1 - HOMEFED CORP | bordenexhibit321.htm |
| EX-31.1 - PAUL J. BORDEN EXHIBIT 31.1 - HOMEFED CORP | bordenexhibit311.htm |
Exhibit 3.7
CERTIFICATE OF AMENDMENT
TO THE
RESTATED CERTIFICATE OF INCORPORATION
OF
HOMEFED CORPORATION
Under Section 242 of the General Corporation Law of the State of Delaware
Pursuant to the provisions of Section 242 of the General Corporation Law of the State of Delaware, HOMEFED CORPORATION does hereby certify:
|
1.
|
The name of the corporation is HOMEFED CORPORATION (the “Corporation”).
|
|
2.
|
This Certificate of Amendment amends the provisions of the Corporation’s Restated Certificate of Incorporation, as amended (the “Restated Certificate of Incorporation”).
|
|
3.
|
Part B of ARTICLE 4 of the Restated Certificate of Incorporation is hereby amended to read in its entirety as follows:
|
B. Transfer Restrictions.
1. Certain Definitions. As used in this part B of this Article 4, the following terms have the following respective meanings:
“Corporation” means HomeFed Corporation.
“Corporation Securities” means (i) shares of common stock of the Corporation, (ii) shares of preferred stock of the Corporation, (iii) warrants, rights, or options (including within the meaning of Treasury Regulation § 1.382-2T(h)(4)(v)) to purchase stock of the Corporation, and (iv) any other interests that would be treated as “stock” of the Corporation pursuant to Treasury Regulation § 1.382-2T(f)(18).
“Percentage Stock Ownership” means percentage stock ownership as determined in accordance with Treasury Regulation § 1.382-2T(g), (h), (j), and (k).
“Five-Percent Shareholder” means a Person or group of Persons that is identified as a “5-percent shareholder” of the Corporation pursuant to Treasury Regulation § l.382-2T(g).
“Person” means an individual, corporation, estate, trust, association, company, partnership, joint venture or similar organization.
“Prohibited Transfer” means any purported Transfer of Corporation Securities to the extent that such Transfer is prohibited and void under this part B of Article 4.
“Restriction Release Date” means the earlier of (i) December 31, 2028, (ii) the repeal of Section 382 of the Internal Revenue Code of 1986, as amended (the “Code”) (and any comparable successor provision) (“Section 382”), or (iii) the beginning of a taxable year of the Corporation (or any successor thereof) to which no Tax Benefits may be carried forward.
“Tax Benefits” means the net operating loss carryovers, capital loss carryovers, general business credit carryovers, alternative minimum tax credit carryovers and foreign tax credit carryovers, as well as any “net unrealized built-in loss” within the meaning of Section 382, of the Corporation or any direct or indirect subsidiary thereof.
“Transfer” means any direct or indirect sale, transfer, assignment, conveyance, pledge, or other disposition. A Transfer also shall include the creation or grant of an option (including within the meaning of Treasury Regulations § 1.382-2T(h)(4)(v)). A Transfer shall not include an issuance or grant of Corporation Securities by the Corporation.
“Treasury Regulation § 1.382-2T” means the temporary income tax regulations promulgated under Section 382, and any successor regulations. References to any subsection of such regulations include references to any successor subsection thereof.
2. Restrictions. Any attempted Transfer of Corporation Securities prior to the Restriction Release Date, or any attempted Transfer of Corporation Securities pursuant to an agreement entered into prior to the Restriction Release Date, shall be prohibited and void ab initio to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either (a) any Person or group of Persons shall become a Five-Percent Shareholder, or (b) the Percentage Stock Ownership interest in the Corporation of any Five-Percent Shareholder shall be increased.
3. Certain Exceptions. The restrictions set forth in Paragraph (2) of this part 3 of Article 4 shall not apply to an attempted Transfer if the transferor or the transferee obtains the approval of the Board of Directors of the Corporation. As a condition to granting its approval, the Board of Directors may, in its discretion, require an opinion of counsel selected by the Board of Directors that the Transfer shall not result in the application of any Section 382 limitation on the use of the Tax Benefits.
4. Treatment of Excess Securities.
(a) No employee or agent of the Corporation shall record any Prohibited Transfer, and the purported transferee of such a Prohibited Transfer (the “Purported Transferee”) shall not be recognized as a shareholder of the Corporation for any purpose whatsoever in respect of the Corporation Securities which are the subject of the Prohibited Transfer (the “Excess Securities”). Until the Excess Securities are acquired by another Person in a Transfer that is not a Prohibited Transfer, the Purported Transferee shall not be entitled with respect to such Excess Securities to any rights of shareholders of the Corporation, including without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any. Once the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Securities shall cease to be Excess Securities.
(b) If the Board of Directors determines that a Transfer of Corporation Securities constitutes a Prohibited Transfer then, upon written demand by the Corporation, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together with any dividends or other distributions that were received by the Purported Transferee from the Corporation with respect to the Excess Securities (“Prohibited Distributions”), to an agent designated by the Board of Directors (the “Agent”). The Agent shall thereupon sell to a buyer or buyers, which may include the Corporation, the Excess Securities transferred to it in one or more arm’s-length transactions; provided, however, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Corporation Securities or otherwise would adversely affect the value of the Corporation Securities. If the Purported Transferee has resold the Excess Shares before receiving the Corporation’s demand to surrender the Excess Shares to the Agent, the Purported Transferee shall be deemed to have sold the Excess Shares for the Agent, and shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the Agent grants written permission to the purported Transferee to retain a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have received from the Agent pursuant to paragraph 4(c) of this Article 4 if the Agent rather than the Purported Transferee had resold the Excess Shares.
(c) The Agent shall apply any proceeds of a sale by it of Excess Shares and, if the Purported Transferee had previously resold the Excess Shares, any amounts received by it from a Purported Transferee, as follows: (1) first, such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder; (2) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Shares (or the fair market value, calculated on the basis of the closing market price for Corporation Securities on the day before the Transfer, of the Excess Shares at the time of the attempted Transfer to the Purported Transferee by gift, inheritance, or similar Transfer), which amount (or fair market value) shall be determined in the discretion of the Board of Directors; and (3) third, any remaining amounts, subject to the limitations imposed by the following proviso, shall be paid to one or more organizations qualifying under Section 501(c)(3) of the Code (and any comparable successor provision) (“Section 501(c)(3)”) selected by the Board of Directors, provided, however, that if the Excess Shares (including any Excess Shares arising from a previous Prohibited Transfer not sold by the Agent in a prior sale or sales), represent a 5% or greater Percentage Stock Ownership interest in any class of Corporation Securities, then any such remaining amounts to the extent attributable to the disposition of the portion of such Excess Shares exceeding a 4.99 Percentage Stock Ownership interest in such class shall be paid to two or more organizations qualifying under Section 501(c)(3) selected by the Board of Directors. The recourse of any Purported Transferee in respect of any Prohibited Transfer shall be limited to the amount payable to the Purported Transferee pursuant to clause (2) of the preceding sentence. In no event shall the proceeds of any sale of Excess Shares pursuant to this part B of Article 4 inure to the benefit of the Corporation.
(d) If the Purported Transferee fails to surrender the Excess Shares or the proceeds of a sale thereof to the Agent within thirty business days from the date on which the Corporation makes a demand pursuant to paragraph 4(b) of this Article, then the Corporation shall institute legal proceedings to compel the surrender.
(e) The Corporation shall make the demand described in paragraph 4(b) of this part B of Article 4 within thirty days of the date on which the Board of Directors determines that the attempted Transfer would result in Excess Securities; provided, however, that if the Corporation makes such demand at a later date, the provisions of this part B of Article 4 shall apply nonetheless.
5. Bylaws, Legends, Etc.
(a) The Bylaws of the Corporation shall make appropriate provisions to effectuate the requirements of this part B of Article 4.
(b) All certificates representing Corporation Securities issued after the effectiveness of this part B of Article 4 shall bear a conspicuous legend as follows:
“THE TRANSFER OF THE SECURITIES REPRESENTED HEREBY IS SUBJECT TO RESTRICTIONS PURSUANT TO PART B OF ARTICLE 4 OF THE RESTATED CERTIFICATE OF INCORPORATION OF HOMEFED CORPORATION REPRINTED IN ITS ENTIRETY ON THE BACK OF THIS CERTIFICATE.”
The Board of Directors of the Corporation shall have the power to determine all matters necessary to determine compliance with this part B of Article 4, including without limitation (1) whether a new Five-Percent Shareholder would be required to be identified in certain circumstances, (2) whether a Transfer is a Prohibited Transfer, (3) the Percentage Stock Ownership in the Corporation of any Five-Percent Shareholder, (4) whether an instrument constitutes a Corporation Security, (5) the amount (or fair market value) due to a Purported Transferee pursuant to clause (2) of paragraph 4(c) of this part B of Article 4, and (6) any other matters which the Board of Directors determines to be relevant; and the good faith determination of the Board of Directors on such matters shall be conclusive and binding for all the purposes of this part B of Article 4.
|
4.
|
In all other respects, the Restated Certificate of Incorporation shall remain unchanged.
|
|
5.
|
The foregoing amendments to the Restated Certificate of Incorporation were duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware.
|
|
6.
|
This Certificate of Amendment of the Restated Certificate of Incorporation will become effective immediately upon its filing with the Secretary of State of the State of Delaware.
|
IN WITNESS WHEREOF, this corporation has caused this Certificate of Amendment to be signed by its officer thereunto duly authorized this 2nd day of August, 2010.
| HomeFed Corporation | |||
|
|
By:
|
/s/ Erin N. Ruhe | |
| Name: Erin N. Ruhe | |||
| Title: Vice President, Treasurer, and Controller | |||