NEWCASTLE
INVESTMENT CORP.
ARTICLES
SUPPLEMENTARY
Newcastle
Investment Corp., a Maryland corporation (the “Corporation”), hereby certifies
to the State Department of Assessments and Taxation of Maryland
that:
FIRST
:
Under a
power contained in Section 6.3 of the charter of the Corporation (the
“Charter”), the Board of Directors of the Corporation (the “Board of
Directors”), by resolution duly adopted at a meeting duly called and held on
February 21, 2007 (the “Board Resolutions”), and the Pricing Committee of the
Board of Directors established by the Board Resolutions, by resolution by
unanimous written consent dated March 12, 2007, classified and designated
2,300,000 shares (the “Shares”) of Preferred Stock (as defined in the Charter)
as shares of 8.375% Series D Cumulative Redeemable Preferred Stock, with the
preferences, conversion and other rights, voting powers, restrictions,
limitations as to dividends and other distributions, qualifications and terms
and conditions of redemption of shares of stock as follows and provided for
the
issuance thereof. Upon any restatement of the Charter, Sections 1 through 13
of
this Article FIRST shall become part of Article VI of the Charter, with such
changes in enumeration as are necessary to complete such
restatement.
(1)
Designation
and Number
.
A
series
of shares of Preferred Stock, designated as the “8.375% Series D Cumulative
Redeemable Preferred Stock” (the “Series D Preferred Stock”), is hereby
established. The number of shares of Series D Preferred Stock shall be
2,300,000. The par value of Series D Preferred Stock shall be $.01 per
share.
(2)
Rank
.
The
Series D Preferred Stock will, with respect to distribution rights and rights
upon liquidation, dissolution or winding up of the Corporation, rank (a) senior
to all classes or series of Common Stock (as defined in the Charter), and to
all
equity securities the terms of which provide that such equity securities shall
rank junior to the Series D Preferred Stock; (b) on a parity with the 9.75%
Series B Cumulative Redeemable Preferred Stock and 8.05% Series C Cumulative
Redeemable Preferred Stock of the Corporation and all other equity securities
issued by the Corporation other than those referred to in clauses (a) and (c);
and (c) junior to all equity securities issued by the Corporation the terms
of
which specifically provide that such equity securities rank senior to the Series
D Preferred Stock. The term “equity securities” shall not include convertible
debt securities.
(3)
Distributions
.
(a)
Holders
of Series D Preferred Stock shall be entitled to receive, when and as authorized
by the Board of Directors, out of legally available funds, cumulative
preferential cash distributions at the rate of 8.375% of the liquidation
preference per annum (which is equivalent to a fixed annual amount of $2.09375
per share of Series D Preferred Stock); provided, however, that during any
period of time that both (i) the Series D Preferred Stock is not listed on
the
New York Stock Exchange (“NYSE”), the American Stock Exchange (“AMEX”), or the
NASDAQ Stock Market (“NASDAQ”), and (ii) the Corporation is not subject to the
reporting requirements of Section 13 or 15(d) of the Securities Exchange Act
of
1934, as amended (the “Exchange Act”), and any shares of Series D Preferred
Stock are outstanding, the holders of Series D Preferred Stock shall be entitled
to receive, when and as authorized by the Board of Directors, out of legally
available funds, cumulative preferential cash distributions at the rate of
9.375% per year of the liquidation preference (which is equivalent to a fixed
annual amount of $2.34375 per year per share) (the “Special Distribution”). Such
distributions shall accrue and cumulate from the date of original issuance
(March 15, 2007) or, with respect to the Special Distribution, if applicable,
from the date following the date on which both (i) the Series D Preferred Stock
ceases to be listed on the NYSE, AMEX or NASDAQ and (ii) the Corporation ceases
to be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act,
and
shall
be payable quarterly in arrears on January 31, April 30, July 31 and October
31
of each year or, if not a business day, the next succeeding business day,
commencing July 31, 2007 (each a “Distribution Payment Date”). The Special
Distribution, if applicable, shall cease to accrue on the date following the
earlier of (i) the listing of the Series D Preferred Stock on the NYSE, AMEX
or
NASDAQ or (ii) the Corporation becoming subject to the reporting requirements
of
Section 13 or 15(d) of the Exchange Act. Any distribution payable on the Series
D Preferred Stock for any partial distribution period shall be prorated and
computed on the basis of a 360-day year consisting of twelve 30-day months.
Distributions shall be payable to holders of record as they appear in the stock
records of the Corporation at the close of business on the applicable
distribution record date, which shall be the first day of the calendar month
in
which the applicable Distribution Payment Date falls or such other date
designated by the Board of Directors for the payment of distributions that
is
not more than 30 nor less than 10 calendar days immediately preceding such
Distribution Payment Date (each, a “Distribution Record Date”).
(b)
Notwithstanding
anything to the contrary contained herein, distributions on the Series D
Preferred Stock shall accrue and cumulate whether or not the Corporation has
earnings, whether or not there are funds legally available for the payment
of
such distributions and whether or not such distributions are authorized by
the
Board of Directors. Accumulated but unpaid distributions on the Series D
Preferred Stock shall cumulate as of the Distribution Payment Date on which
they
first become payable or on the date of redemption, as the case may be. No
interest shall be payable in respect of any distribution on the Series D
Preferred Stock that may be in arrears.
(c)
Except
as
provided in the following sentence, if any shares of Series D Preferred Stock
are outstanding, no distributions, other than distributions in kind of the
Corporation’s Common Stock or other shares of the Corporation’s equity
securities ranking junior to the Series D Preferred Stock as to distributions
and upon liquidation, may be authorized or paid or set apart for payment, and
no
other distribution may be authorized or made upon, the Corporation’s Common
Stock or any other shares of equity securities of the Corporation of any other
class or series ranking, as to distributions and upon liquidation, on a parity
with or junior to the Series D Preferred Stock unless full cumulative
distributions have been or contemporaneously are authorized and paid or
authorized and a sum sufficient set apart for such payment on the Series D
Preferred Stock for all past distribution periods and the then current
distribution period. When distributions are not paid in full (or a sum
sufficient for such full payment is not so set apart) upon the Series D
Preferred Stock and all other equity securities ranking on a parity, as to
distributions, with the Series D Preferred Stock, all distributions authorized
upon the Series D Preferred Stock and any other equity securities ranking on
a
parity, as to distributions, with the Series D Preferred Stock shall be
authorized pro rata so that the amount of distributions authorized per share
of
Series D Preferred Stock and such other equity security shall in all cases
bear
to each other the same ratio that accumulated distributions per share of Series
D Preferred Stock and such other equity security (which shall not include any
accumulation in respect of unpaid distributions for prior distribution periods
if such other equity securities do not have a cumulative distribution) bear
to
each other. No interest, or sum of money in lieu of interest, shall be payable
in respect of any distribution payment or payments on Series D Preferred Stock
which may be in arrears.
(d)
Except
as
provided in clause (c), unless full cumulative distributions on the Series
D
Preferred Stock have been or contemporaneously are authorized and paid or
authorized and a sum sufficient is set apart for payment for all past
distribution periods and the then current distribution period, no Common Stock
or any other shares of equity securities of the Corporation ranking junior
to or
on a parity with the Series D Preferred Stock as to distributions or upon
liquidation shall be redeemed, purchased or otherwise acquired for any
consideration (or any monies be paid to or made available for a sinking fund
for
the redemption of any such shares) by the Corporation (except by conversion
into
or exchange for Common Stock or other shares of equity securities of the
Corporation ranking junior to the Series D Preferred Stock as to distributions
and amounts upon liquidation).
(e)
Holders
of Series D Preferred Stock shall not be entitled to any distribution, whether
payable in cash, property or shares, in excess of full cumulative distributions
on the Series D Preferred Stock as described above. Any distribution payment
made on the Series D Preferred Stock shall first be credited against the
earliest accumulated but unpaid distribution due with respect to the Series
D
Preferred Stock which remains payable.
(4)
Liquidation
Preference
.
(a)
In
the
event of any voluntary or involuntary liquidation, dissolution or winding up
of
the Corporation (referred to herein sometimes as a “liquidation”), the holders
of Series D Preferred Stock then outstanding shall be entitled to receive out
of
the assets of the Corporation available for distribution to stockholders (after
payment or provision for payment of all debts and other liabilities of the
Corporation) a liquidation preference of $25.00 per share, plus any accumulated
and unpaid distributions to the date of payment, whether or not authorized,
before any distribution of assets is made to holders of Common Stock and any
other shares of equity securities of the Corporation that rank junior to the
Series D Preferred Stock as to liquidation rights.
(b)
If,
upon
any such voluntary or involuntary liquidation, dissolution or winding up of
the
Corporation, the assets of the Corporation are insufficient to make full payment
to holders of the Series D Preferred Stock and any shares of other classes
or
series of equity securities of the Corporation ranking on a parity with the
Series D Preferred Stock as to liquidation rights, then the holders of the
Series D Preferred Stock and all other such classes or series of equity
securities ranking on a parity with the Series D Preferred Stock as to
liquidation rights shall share ratably in any distribution of assets in
proportion to the full liquidating distributions to which they would otherwise
be respectively entitled.
(c)
Written
notice of any such liquidation, dissolution or winding up of the Corporation,
stating the payment date or dates when, and the place or places where, the
amounts distributable in such circumstances shall be payable, shall be given
by
first class mail, postage pre-paid, not less than 30 nor more than 60 calendar
days immediately preceding the payment date stated therein, to each record
holder of the Series D Preferred Stock at the respective addresses of such
holders as the same shall appear on the share transfer records of the
Corporation.
(d)
After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Series D Preferred Stock shall have no right or claim
to any of the remaining assets of the Corporation.
(e)
None of
a consolidation or merger of the Corporation with or into another entity, the
merger of another entity with or into the Corporation, a statutory share
exchange by the Corporation or a sale, lease, transfer or conveyance of all
or
substantially all of the Corporation’s property or business shall be considered
a liquidation, dissolution or winding up of the Corporation.
(f)
In
determining whether a distribution (other than upon voluntary or involuntary
dissolution) by dividend, redemption or other acquisition of shares of the
Corporation or otherwise is permitted under Maryland law, amounts that would
be
needed, if the Corporation were to be dissolved at the time of the distribution,
to satisfy the preferential rights upon dissolution of the holders of Series
D
Preferred Stock will not be added to the Corporation’s total
liabilities.
(5)
Redemption
.
(a)
Except
as
set forth in this Section 5(a) and in Section 5(c), the Series D Preferred
Stock
is not redeemable prior to March 15, 2012.
(i)
To
ensure
that the Corporation remains qualified as a real estate investment trust
(“REIT”) for United States federal income tax purposes, however, the Series D
Preferred Stock shall be subject to the provisions of Article VII of the Charter
pursuant to which Series D Preferred Stock owned by a stockholder in excess
of
the Aggregate Stock Ownership Limit (as defined in Article VII of the Charter)
shall automatically be transferred to a Trust for the benefit of a Charitable
Beneficiary (as “Trust” and “Charitable Beneficiary” are each defined in Article
VII of the Charter) and the Corporation shall have the right to purchase, or
to
designate the purchaser of, such shares, as provided in Article VII of the
Charter.
(ii)
In
addition, no Person shall Beneficially Own or Constructively Own (as "Person",
"Beneficially Own" and "Constructively Own" are all defined in Article VII
of
the Charter) in excess of 25 percent of the outstanding shares of Series D
Preferred Stock (the "Series D Ownership Limit"), except in accordance with
an
exemption from the Series D Ownership Limit granted by the Board of Directors
or
otherwise in accordance with Article VII of the Charter, with Article VII of
the
Charter applied as if references therein to the Aggregate Stock Ownership Limit
also include applicable references to the Series D Ownership Limit.
(iii)
To
the
extent that any Person is granted an exemption from the Aggregate Stock
Ownership Limit, such Person shall nevertheless remain subject to the Series
D
Ownership Limit except to the extent that such Person is also expressly granted
an exemption from the Series D Ownership Limit by the Board of Directors, in
which case such Person shall be a "Series D Excepted Holder", and any higher
limit established for such Person shall be a "Series D Excepted Holder Limit",
with the terms "Series D Excepted Holder" and "Series D Excepted Holder Limit"
interpreted in a manner corresponding to the terms "Excepted Holder", and
"Excepted Holder Limit", respectively, in Article VII of the Charter. The
preceding sentence shall apply to any Person for whom an exemption from the
Aggregate Stock Ownership Limit is granted, without regard to whether it is
granted prior or subsequent to the effectiveness of these Articles
Supplementary.
(iv)
If
at any
time both (i) the Series D Preferred Stock ceases to be listed on the NYSE,
AMEX
or NASDAQ, and (ii) the Corporation ceases to be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, and any shares of
Series D Preferred Stock are outstanding, the Corporation, at its option, upon
giving notice as provided below, may redeem the Series D Preferred Stock, in
whole but not in part, within 90 days of the date upon which both the Series
D
Preferred Stock so ceases to be listed and the Corporation so ceases to be
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, for cash at a redemption price of $25.00 per share, plus accumulated and
unpaid distributions, if any, to the redemption date, whether or not authorized
(the “Special Redemption Right”).
(v)
On
or
after March 15, 2012, the Corporation, at its option, upon giving notice as
provided below, may redeem the Series D Preferred Stock, in whole or from time
to time in part, for cash, at a redemption price of $25.00 per share, plus
all
accumulated and unpaid distributions on such Series D Preferred Stock to the
date of redemption, whether or not authorized (the “Regular Redemption
Right”).
(b)
If
fewer
than all of the outstanding shares of Series D Preferred Stock are to be
redeemed pursuant to the Regular Redemption Right, the shares to be redeemed
shall be selected pro rata (as nearly as practicable without creating fractional
shares) or by lot or in such other equitable method prescribed by the Board
of
Directors. If such redemption is to be by lot and, as a result of such
redemption, any holder of Series D Preferred Stock would become a holder of
a
number of Series D Preferred Stock in excess of the Aggregate Stock Ownership
Limit because such holder’s shares of Series D Preferred Stock were not
redeemed, or were only redeemed in part, then, except as otherwise provided
in
the Charter, the Corporation shall redeem the requisite number of shares of
Series D Preferred Stock of such holder such that no holder will hold in excess
of the Aggregate Stock Ownership Limit subsequent to such
redemption.
(c)
Notwithstanding
anything to the contrary contained herein, unless full cumulative distributions
on all shares of Series D Preferred Stock have been or contemporaneously are
authorized and paid or authorized and a sum sufficient set apart for payment
for
all past distribution periods and the then current distribution period, no
shares of Series D Preferred Stock shall be redeemed pursuant to the Regular
Redemption Right unless all outstanding shares of Series D Preferred Stock
are
simultaneously redeemed. In addition, unless full cumulative distributions
on
all shares of Series D Preferred Stock have been or contemporaneously are
authorized and paid or authorized and a sum sufficient set apart for payment
for
all past distribution periods and the then current distribution period, the
Corporation shall not purchase or otherwise acquire directly or indirectly
any
shares of Series D Preferred Stock or any other shares of equity securities
of
the Corporation ranking junior to or on a parity with the Series D Preferred
Stock as to distributions or upon liquidation (except by conversion into or
exchange for shares of equity securities of the Corporation ranking junior
to
the Series D Preferred Stock as to distributions and upon liquidation). The
restrictions in this Section 5 on redemptions, purchases and other acquisitions
shall not prevent the redemption, purchase or acquisition by the Corporation
of
Preferred Stock of any series pursuant to Article VII of the Charter or Section
5(a) hereof, or otherwise in order to ensure that the Corporation remains
qualified as a REIT for United States federal income tax purposes, or the
purchase
or
acquisition of Series D Preferred Stock pursuant to a purchase or exchange
offer
made on the same terms to all holders of the Series D Preferred
Stock.
(d)
Immediately
prior to any redemption of shares of Series D Preferred Stock, the Corporation
shall pay, in cash, any accumulated and unpaid distributions to the redemption
date, whether or not authorized, unless a redemption date falls after a
Distribution Record Date and prior to the corresponding Distribution Payment
Date, in which case each holder of Series D Preferred Stock at the close of
business on such Distribution Record Date shall be entitled to the distribution
payable on such shares on the corresponding Distribution Payment Date
notwithstanding the redemption of such shares before the Distribution Payment
Date. Except as provided in the previous sentence, the Corporation shall make
no
payment or allowance for unpaid distributions, whether or not in arrears, on
Series D Preferred Stock for which a notice of redemption has been
given.
(e)
The
following provisions set forth the procedures for redemption pursuant to the
Regular Redemption Right.
(i)
Notice
of
redemption will be mailed by the Corporation, postage prepaid, no less than
30
nor more than 60 calendar days immediately preceding the redemption date,
addressed to the respective holders of record of the Series D Preferred Stock
to
be redeemed at their respective addresses as they appear on the stock transfer
records of the Corporation. No failure to give such notice or any defect thereto
or in the mailing thereof shall affect the validity of the proceedings for
the
redemption of any Series D Preferred Stock except as to the holder to whom
notice was defective or not given.
(ii)
In
addition to any information required by law or by the applicable rules of any
exchange upon which the Series D Preferred Stock may be listed or admitted
to
trading, each notice shall state: (A) the redemption date; (B) the redemption
price; (C) the number of Series D Preferred Stock to be redeemed; (D) the place
or places where the holders of Series D Preferred Stock may surrender
certificates for payment of the redemption price; and (E) that distributions
on
the Series D Preferred Stock to be redeemed will cease to accumulate on the
redemption date. If less than all of the Series D Preferred Stock held by any
holder are to be redeemed, the notice mailed to each holder shall also specify
the number of Series D Preferred Stock held by such holder to be
redeemed.
(iii)
On
or
after the redemption date, each holder of Series D Preferred Stock to be
redeemed shall present and surrender the certificates representing his Series
D
Preferred Stock to the Corporation at the place designated in the notice of
redemption and thereupon the redemption price of such shares (including all
accumulated and unpaid distributions up to the redemption date) shall be paid
to
or on the order of the person whose name appears on such certificate
representing Series D Preferred Stock as the owner thereof and each surrendered
certificate shall be canceled. If fewer than all the shares represented by
any
such certificate representing Series D Preferred Stock are to be redeemed,
a new
certificate shall be issued representing the unredeemed shares.
(iv)
From
and
after the redemption date (unless the Corporation defaults in payment of the
redemption price), all distributions on the Series D Preferred Stock designated
for redemption and all rights of the holders thereof, except the right to
receive the redemption price thereof and all accumulated and unpaid
distributions up to the redemption date, shall terminate with respect to such
shares and such shares shall not thereafter be transferred (except with the
consent of the Corporation) on the Corporation’s stock transfer records, and
such shares shall not be deemed to be outstanding for any purpose whatsoever.
At
its election, the Corporation, prior to a redemption date, may irrevocably
deposit the redemption price (including accumulated and unpaid distributions
to
the redemption date) of the Series D Preferred Stock so called for redemption
in
trust for the holders thereof with a bank or trust company, in which case the
redemption notice to holders of the Series D Preferred Stock to be redeemed
shall (A) state the date of such deposit, (B) specify the office of such bank
or
trust company as the place of payment of the redemption price and (C) require
such holders to surrender the certificates representing such shares at such
place on or about the date fixed in such redemption notice (which may not be
later than the redemption date) against payment of the redemption price
(including all accumulated and unpaid distributions to the redemption date).
Any
monies so deposited which remain unclaimed by the holders of the Series D
Preferred Stock at the end of two years after the redemption date shall be
returned by such bank or trust company to the Corporation.
(f)
The
following provisions set forth the procedures for redemption pursuant to the
Special Redemption Right.
(i)
Notice
of
redemption will be mailed by the Corporation, postage prepaid, no less than
30
nor more than 60 calendar days immediately preceding the redemption date,
addressed to the respective holders of record of the Series D Preferred Stock
at
their respective addresses as they appear on the stock transfer records of
the
Corporation. No failure to give such notice or any defect thereto or in the
mailing thereof shall affect the validity of the proceedings for the redemption
of the Series D Preferred Stock except as to the holder to whom notice was
defective or not given.
(ii)
In
addition to any information required by law, each notice shall state: (A) the
redemption date; (B) the redemption price; (C) the place or places where the
holders of Series D Preferred Stock may surrender certificates for payment
of
the redemption price; and (D) that distributions on the Series D Preferred
Stock
will cease to accumulate on the redemption date.
(iii)
On
or
after the redemption date, each holder of Series D Preferred Stock shall present
and surrender the certificates representing his Series D Preferred Stock to
the
Corporation at the place designated in the notice of redemption and thereupon
the redemption price of such shares (including all accumulated and unpaid
distributions up to the redemption date) shall be paid to or on the order of
the
person whose name appears on such certificate representing Series D Preferred
Stock as the owner thereof and each surrendered certificate shall be canceled.
(iv)
From
and
after the redemption date (unless the Corporation defaults in payment of the
redemption price), all distributions on the Series D Preferred Stock and all
rights of the holders thereof, except the right to receive the redemption price
thereof and all accumulated and unpaid distributions up to the redemption date,
shall terminate with respect to such shares and such shares shall not thereafter
be transferred (except with the consent of the Corporation) on the Corporation’s
stock transfer records, and such shares shall not be deemed to be outstanding
for any purpose whatsoever. At its election, the Corporation, prior to the
redemption date, may irrevocably deposit the redemption price (including
accumulated and unpaid distributions to the redemption date) of the Series
D
Preferred Stock so called for redemption in trust for the holders thereof with
a
bank or trust company, in which case the redemption notice to holders of the
Series D Preferred Stock shall (A) state the date of such deposit, (B) specify
the office of such bank or trust company as the place of payment of the
redemption price and (C) require such holders to surrender the certificates
representing such shares at such place on or about the date fixed in such
redemption notice (which may not be later than the redemption date) against
payment of the redemption price (including all accumulated and unpaid
distributions to the redemption date). Any monies so deposited which remain
unclaimed by the holders of the Series D Preferred Stock at the end of two
years
after the redemption date shall be returned by such bank or trust company to
the
Corporation.
(g)
Any
Series D Preferred Stock that shall at any time have been redeemed shall, after
such redemption, have the status of authorized but unissued Preferred Stock,
without designation as to series until such shares are once more designated
as
part of a particular series by the Board of Directors.
(6)
Voting
Rights
.
(a)
Holders
of the Series D Preferred Stock shall not have any voting rights, except as
set
forth below.
(b)
Whenever
distributions on the Series D Preferred Stock are in arrears for six or more
quarterly periods (whether or not consecutive) (a “Preferred Distribution
Default”), the holders of Series D Preferred Stock (voting together as a single
class with all other equity securities of the Corporation (including the
Corporation’s 9.75% Series B Cumulative Redeemable Preferred Stock and 8.05%
Series C Cumulative Redeemable Preferred Stock), as applicable, upon which
like
voting rights have been conferred and are exercisable (“Parity Preferred
Stock”)) shall be entitled to elect a total of two additional directors to the
Corporation’s Board of Directors (the “Preferred Stock Directors”) at a special
meeting called by the holders of record of at least 20% of the outstanding
shares of Series D Preferred Stock (unless the request is received less than
90
calendar days before the date fixed for the next annual or special meeting
of
stockholders) or, if the request for a special meeting is received by the
Corporation less than 90 calendar days before the date fixed for the next annual
or special meeting of stockholders, at the next annual meeting of stockholders,
and at each subsequent annual meeting until all distributions accumulated on
the
Series D Preferred Stock for the past distribution periods and the then current
distribution period shall have been fully paid or authorized and a sum
sufficient for the payment thereof set aside for payment.
(c)
If
and
when all accumulated distributions and the distribution for the then current
distribution period on the Series D Preferred Stock shall have been paid in
full
or authorized and a sum sufficient for the payment thereof set aside for payment
in full, the holders of Series D Preferred Stock shall be divested of the voting
rights set forth in clause (b) above (subject to revesting in the event of
each
and every Preferred Distribution Default) and, if all accumulated distributions
and the distribution for the then current distribution period have been paid
in
full or authorized by the Board of Directors and set aside for payment in full
on all other series of Parity Preferred Stock upon which like voting rights
have
been conferred and are exercisable, the term of office of each Preferred Stock
Director so elected shall terminate. Any Preferred Stock Director may be removed
at any time with or without cause by the vote of, and shall not be removed
otherwise than by the vote of, the holders of a majority of the outstanding
Series D Preferred Stock when they have the voting rights set forth in clause
(b) above and all other series of Parity Preferred Stock (voting as a single
class). So long as a Preferred Distribution Default shall continue, any vacancy
in the office of a Preferred Stock Director may be filled by written consent
of
the Preferred Stock Director remaining in office, or if none remains in office,
by a vote of the holders of a majority of the outstanding Series D Preferred
Stock when they have the voting rights set forth in clause (b) above and all
other series of Parity Preferred Stock (voting as a single class). The Preferred
Stock Directors shall each be entitled to one vote per director on any
matter.
(d)
So
long
as any Series D Preferred Stock remain outstanding, the Corporation shall not,
without the affirmative vote of the holders of at least two-thirds of the Series
D Preferred Stock outstanding at the time, given in person or by proxy, either
in writing or at a meeting (such series voting separately as a class), (i)
authorize, create or increase the authorized or issued amount of any class
or
series of equity securities ranking senior to the outstanding Series D Preferred
Stock with respect to the payment of distributions or the distribution of assets
upon voluntary or involuntary liquidation, dissolution or winding up of the
Corporation or reclassify any authorized equity securities of the Corporation
into any such senior equity securities, or create, authorize or issue any
obligation or security convertible into or evidencing the right to purchase
any
such senior equity securities; or (ii) amend, alter or repeal the provisions
of
the Charter (including these Articles Supplementary), whether by merger or
consolidation (in either case, an “Event”) or otherwise, so as to materially and
adversely affect any right, preference, privilege or voting power of the Series
D Preferred Stock; provided, however, that with respect to any such amendment,
alteration or repeal of the provisions of the Charter (including these Articles
Supplementary) upon the occurrence of an Event, so long as shares of the Series
D Preferred Stock remain outstanding with the terms thereof materially unchanged
in any adverse respect, taking into account that, upon the occurrence of an
Event, the Corporation may not be the surviving entity and such surviving entity
may thereafter be the issuer of the Series D Preferred Stock, the occurrence
of
any such Event shall not be deemed to materially and adversely affect the
rights, preferences, privileges or voting powers of the Series D Preferred
Stock; and provided further that any increase in the amount of authorized Series
D Preferred Stock or any other class or series of the Corporation’s equity
securities, in each case ranking on a parity with or junior to the Series D
Preferred Stock with respect to the payment of distributions and the
distribution of assets upon voluntary or involuntary liquidation, dissolution
or
winding up of the Corporation, shall not be deemed to materially and adversely
affect the rights, preferences, privileges or voting powers of the Series D
Preferred Stock.
(e)
The
foregoing voting provisions shall not apply if, at or prior to the time when
the
action with respect to which such vote would otherwise be required shall be
effected, all outstanding Series D Preferred Stock shall have been redeemed
or
called for redemption upon proper notice and sufficient funds shall have been
deposited in trust to effect such redemption.
(7)
Conversion
.
The
Series D Preferred Stock is not convertible into or exchangeable for any other
property or securities of the Corporation.
(8)
Application
of Article VII
.
The
shares of Series D Preferred Stock are subject to the provisions of Article
VII
of the Charter.
(9)
Status
.
Upon
any
redemption of shares of Series D Preferred Stock, the shares of Series D
Preferred Stock which are redeemed will be reclassified as authorized and
unissued shares of Preferred Stock, and the number of shares of Series D
Preferred Stock which the Corporation has the authority to issue will be
decreased by the redemption of shares of Series D Preferred Stock, so that
the
shares of Series D Preferred Stock which were redeemed may not be
reissued.
(10)
Information
Rights
.
During
any period in which the Corporation is not subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act and any shares of Series D Preferred
Stock are outstanding, the Corporation shall (i) transmit by mail to all holders
of Series D Preferred Stock, as their names and addresses appear in the
Corporation's record books and without cost to such holders, copies of the
annual reports and quarterly reports that the Corporation would have been
required to file with the Securities and Exchange Commission (the "SEC")
pursuant to the reporting requirements of Section 13 or 15(d) of the Exchange
Act if the Corporation was subject to such Sections (other than any exhibits
that would have been required), and (ii) promptly upon written request, supply
copies of such reports to any prospective holder of Series D Preferred Stock.
The Corporation will mail the reports to the holders of Series D Preferred
Stock
within 15 days after the respective dates by which the Corporation would have
been required to file the reports with the SEC if the Corporation was subject
to
the reporting requirements of Section 13 or 15(d) of the Exchange
Act.
(11)
Exclusion
of Other Rights
.
The
shares of Series D Preferred Stock shall not have any preferences, conversion
or
other rights, voting powers, restrictions, limitations as to dividends or other
distributions, qualifications or terms or conditions of redemption other than
those specifically set forth in these Articles Supplementary. The shares of
Series D Preferred Stock shall have no preemptive or subscription
rights.
(12)
Headings
of Subdivisions
.
The
headings of the various subdivisions hereof are for convenience of reference
only and shall not affect the interpretation of any of the provisions
hereof.
(13)
Severability
of Provisions
.
If
any
preferences, conversion or other rights, voting powers, restrictions,
limitations as to dividends or other distributions, qualifications or terms
or
conditions of redemption of the Series D Preferred Stock set forth in the
Charter is invalid, unlawful or incapable of being enforced by reason of any
rule of law or public policy, all other preferences, conversion or other rights,
voting powers, restrictions, limitations as to dividends or other distributions,
qualifications or terms or conditions of redemption of Series D Preferred Stock
set forth in the Charter which can be given effect without the invalid, unlawful
or unenforceable provision thereof shall, nevertheless, remain in full force
and
effect, and no preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions, qualifications
or terms or conditions of redemption of Series D Preferred Stock herein set
forth shall be deemed dependent upon any other provision thereof unless so
expressed therein.
SECOND
:
The
Shares have been classified and designated by the Board of Directors under
the
authority contained in the Charter.
THIRD
:
These
Articles Supplementary have been approved by the Board of Directors in the
manner and by the vote required by law.
FOURTH
:
The
undersigned Chief Executive Officer and President of the Corporation
acknowledges these Articles Supplementary to be the corporate act of the
Corporation and, as to all matters or facts required to be verified under oath,
the undersigned Chief Executive Officer and President acknowledges that to
the
best of his knowledge, information and belief, these matters and facts are
true
in all material respects and that this statement is made under the penalties
for
perjury.
IN
WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to
be
executed under seal in its name and on its behalf by its Chief Executive Officer
and attested to by its Secretary on this 12th day of March, 2007.
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ATTEST:
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NEWCASTLE INVESTMENT
CORP.
|
|
|
|
|
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/s/ Randal A.
Nardone
|
|
/s/ Kenneth M.
Riis
(SEAL)
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Randal A. Nardone,
Secretary
|
|
Kenneth M. Riis, Chief Executive Officer
and
President
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