STRATEGIC HOTEL CAPITAL, INC.

 

                  FORM OF ARTICLES OF AMENDMENT AND RESTATEMENT

 

 

                  FIRST: Strategic Hotel Capital, Inc., a Maryland corporation

(the "Corporation"), desires to amend and restate its charter as currently in

effect and as hereinafter amended.

 

                  SECOND: The following provisions are all the provisions of the

charter currently in effect and as hereinafter amended:

 

                                    ARTICLE I

                                  INCORPORATOR

 

                  The undersigned, Patricia McGowan, whose address is c/o

Venable LLP, 1800 Mercantile Bank & Trust Bldg., 2 Hopkins Plaza, Baltimore,

Maryland 21201, 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:

                          Strategic Hotel Capital, Inc.

 

                                   ARTICLE III

                                     PURPOSE

 

                  The purposes for which the Corporation is formed are to engage

in any lawful act or activity (including, without limitation or obligation,

engaging in business as a real estate investment trust under the Internal

Revenue Code of 1986, as amended, or any successor statute (the "Code")) for

which corporations may be organized under the general laws of the State of

Maryland as now or hereafter in force. For purposes of these Articles, "REIT"

means a real estate investment trust under Sections 856 through 860 of the Code.

 

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                                   ARTICLE IV

 

                  PRINCIPAL OFFICE IN STATE AND RESIDENT AGENT

 

                  The address of the principal office of the Corporation in the

State of Maryland is c/o The Corporation Trust Incorporated, 300 East Lombard

Street, Baltimore, Maryland 21202. The name and address of the resident agent of

the Corporation in the State of Maryland are The Corporation Trust Incorporated,

300 East Lombard Street, Baltimore, Maryland 21202. The resident agent is a

Maryland corporation.

                                    ARTICLE V

 

                        PROVISIONS FOR DEFINING, LIMITING

                      AND REGULATING CERTAIN POWERS OF THE

                CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS

 

                  Section 5.1 Number of Directors. The business and affairs of

the Corporation shall be managed under the direction of the Board of Directors.

The number of directors of the Corporation initially shall be one, which number

may be increased or decreased only by the Board of Directors pursuant to the

Bylaws, but shall never be less than the minimum number required by the Maryland

General Corporation Law (the "MGCL"). The name of the director who shall serve

until the first annual meeting of stockholders and until his successor is duly

elected and qualifies is Laurence S. Geller.

 

                  This director may increase the number of directors and may

fill any vacancy, whether resulting from an increase in the number of directors

or otherwise, on the Board of Directors occurring before the first annual

meeting of stockholders in the manner provided in the Bylaws.

 

                  The Corporation elects, at such time as it becomes eligible to

make the election provided for under Section 3-802(b) of the Maryland General

Corporation Law, that, except as may be provided by the Board of Directors in

setting the terms of any class or series of stock, any and all vacancies on the

Board of Directors may be filled only by the affirmative vote of a majority of

the remaining directors in office, even if the remaining directors do not

constitute a quorum, and any director elected to fill a vacancy shall serve for

the remainder of the full term of the directorship in which such vacancy

occurred.

 

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                  Section 5.2 Extraordinary Actions. Except as specifically

provided in Section 5.8 (relating to removal of directors) and in Article VIII,

notwithstanding any provision of law permitting or requiring any action to be

taken or approved by the affirmative vote of the holders of shares entitled to

cast a greater number of votes, any such action shall be effective and valid if

declared advisable by the Board of Directors and taken or approved by the

affirmative vote of holders of shares entitled to cast a majority of all the

votes entitled to be cast on the matter.

 

                  Section 5.3 Authorization by Board of Stock Issuance. The

Board of Directors may authorize the issuance from time to time of shares of

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 of Directors may deem advisable (or without consideration in the case

of a stock split or stock dividend), subject to such restrictions or

limitations, if any, as may be set forth in the charter or the Bylaws.

 

                  Section 5.4 Preemptive Rights and Appraisal Rights. Except as

may be provided by the Board of Directors in setting the terms of classified or

reclassified shares of stock pursuant to Section 6.4 or as may otherwise be

provided by contract, no holder of shares of stock of the Corporation shall, as

such holder, have any preemptive right to purchase or subscribe for any

additional shares of stock of the Corporation or any other security of the

Corporation which it may issue or sell. Holders of shares of stock shall not be

entitled to exercise any rights of an objecting stockholder provided for under

Title 3, Subtitle 2 of the Maryland General Corporation Law or any successor

statute unless the Board of Directors, upon the affirmative vote of a majority

of the entire Board of Directors, shall determine that such rights apply, with

respect to all or any classes or series of stock, to a particular transaction or

all transactions occurring after the date of such determination in connection

with which holders of such shares would otherwise be entitled to exercise such

rights.

 

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                  Section 5.5 Indemnification. The Corporation shall have the

power, to the maximum extent permitted by Maryland law in effect from time to

time, to obligate itself to indemnify, and to pay or reimburse reasonable

expenses in advance of final disposition of a proceeding to, (a) any individual

who is a present or former director or officer of the Corporation or (b) any

individual who, while a director of the Corporation and at the request of the

Corporation, serves or has served as a director, officer, partner or trustee of

another corporation, real estate investment trust, partnership, joint venture,

trust, employee benefit plan or any other enterprise from and against any claim

or liability to which such person may become subject or which such person may

incur by reason of his or her service in such capacity. The Corporation shall

have the power, with the approval of the Board of Directors, to provide such

indemnification and advancement of expenses to a person who served a predecessor

of the Corporation in any of the capacities described in (a) or (b) above and to

any employee or agent of the Corporation or a predecessor of the Corporation.

 

                  Section 5.6 Determinations by Board. The determination as to

any of the following matters, made in good faith by or pursuant to the direction

of the Board of Directors consistent with the charter 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

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 stock or the payment of other distributions on its 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 matter relating

to the acquisition, holding and disposition of any assets by the Corporation; or

any other matter relating to the business and affairs of the Corporation or

required by the Charter to be determined by the Board of Directors.

 

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                  Section 5.7 REIT Qualification. If the Corporation elects to

qualify for federal income tax treatment as a REIT, the Board of Directors 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 of Directors determines that it is no longer in the best interests of the

Corporation to continue to be qualified as a REIT, the Board of Directors may

revoke or otherwise terminate the Corporation's REIT election pursuant to

Section 856(g) of the Code. The Board of Directors also may determine that

compliance with any restriction or limitation on stock ownership and transfers

set forth in Article VII is no longer required for REIT qualification.

 

                  Section 5.8 Removal of Directors. Subject to the rights of

holders of one or more classes or series of Preferred Stock to elect or remove

one or more directors, any director, or the entire Board of Directors, may be

removed from office at any time, with or without cause, only by the affirmative

vote of at least two thirds of the votes entitled to be cast generally in the

election of directors.

                                   ARTICLE VI

                                      STOCK

 

                  Section 6.1 Authorized Shares. The Corporation has authority

to issue 300,000,000 shares of stock, consisting of 150,000,000 shares of Common

Stock, $.01 par value per share ("Common Stock"), and 150,000,000 shares of

Preferred Stock, $.01 par value per share ("Preferred Stock"). The aggregate par

value of all authorized shares of stock having par value is $3,000,000. If

shares of one class of stock are classified or reclassified into shares of

another class of stock pursuant to Section 6.2, 6.3 or 6.4 of this Article VI,

the number of authorized shares of the former class shall be automatically

decreased and the number of shares of the latter class shall be automatically

increased, in each case by the number of shares so classified or reclassified,

so that the aggregate number of shares of stock of all classes that the

Corporation has authority to issue shall not be more than the total number of

shares of stock set forth in the first sentence of this paragraph. The Board of

Directors, without any action by the stockholders of the Corporation, may amend

the charter from time to time to increase or decrease the aggregate number of

shares of stock or the number of shares of stock of any class or series that the

Corporation has authority to issue.

 

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                  Section 6.2 Common Stock. Subject to the provisions of Article

VII, each share of Common Stock shall entitle the holder thereof to one vote.

The Board of Directors may reclassify any unissued shares of Common Stock from

time to time in one or more classes or series of stock.

 

                  Section 6.3 Preferred Stock. The Board of Directors may

classify any unissued shares of Preferred Stock and reclassify any previously

classified but unissued shares of Preferred Stock of any series from time to

time, in one or more classes or series of stock.

 

                  Section 6.4 Classified or Reclassified Shares. Prior to

issuance of classified or reclassified shares of any class or series, the Board

of Directors by resolution shall: (a) designate that class or series to

distinguish it from all other classes and series of stock of the Corporation;

(b) specify the number of shares to be included in the class or series; (c) set

or change, subject to the provisions of Article VII and subject to the express

terms of any class or series of stock of the Corporation outstanding at the

time, the preferences, conversion or other rights, voting powers, restrictions,

limitations as to dividends or other distributions, qualifications and terms and

conditions of redemption for each class or series; and (d) cause the Corporation

to file articles supplementary with the State Department of Assessments and

Taxation of Maryland ("SDAT"). Any of the terms of any class or series of stock

set or changed pursuant to clause (c) of this Section 6.4 may be made dependent

upon facts or events ascertainable outside the charter (including determinations

by the Board of Directors or other facts or events within the control of the

Corporation) and may vary among holders thereof, provided that the manner in

which such facts, events or variations shall operate upon the terms of such

class or series of stock is clearly and expressly set forth in the articles

supplementary or other charter document.

 

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                  Section 6.5 Charter and Bylaws. All persons who shall acquire

stock in the Corporation shall acquire the same subject to the provisions of the

charter and the Bylaws.

 

                                   ARTICLE VII

                 RESTRICTION ON TRANSFER AND OWNERSHIP OF SHARES

 

                  Section 7.1 Definitions. For the purpose of this Article VII,

the following terms shall have the following meanings:

 

                  Aggregate Stock Ownership Limit. The term "Aggregate Stock

Ownership Limit" shall mean not more than 9.8 percent in value of the aggregate

of the outstanding shares of Capital Stock. The value of the outstanding shares

of Capital Stock shall be determined by the Board of Directors of the

Corporation in good faith, which determination shall be conclusive for all

purposes hereof.

 

                  Beneficial Ownership. The term "Beneficial Ownership" shall

mean ownership of Capital Stock by a Person, whether the interest in the shares

of 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 544 of the Code, as modified by Section 856(h)(1)(B) of the Code. The

terms "Beneficial Owner," "Beneficially Owns" and "Beneficially Owned" shall

have the correlative meanings.

 

                  Business Day. The term "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.

 

                  Capital Stock. The term "Capital Stock" shall mean all classes

or series of stock of the Corporation, including, without limitation, Common

Stock and Preferred Stock.

 

                  Charitable Beneficiary. The term "Charitable Beneficiary"

shall mean one or more beneficiaries of the Trust as determined pursuant to

Section 7.3.6, provided that each such organization must be described in Section

501(c)(3) of the Code and contributions to each such organization must be

eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of the

Code.

 

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                  Charter. The term "Charter" shall mean the charter of the

Corporation, as that term is defined in the MGCL.

 

                  Code. The term "Code" shall mean the Internal Revenue Code of

1986, as amended from time to time.

 

                  Common Stock Ownership Limit. The term "Common Stock Ownership

Limit" shall mean not more than 9.8 percent (in value or in number of shares,

whichever is more restrictive) of the aggregate of the outstanding shares of

Common Stock of the Corporation. The number and value of outstanding shares of

Common Stock of the Corporation shall be determined by the Board of Directors of

the Corporation in good faith, which determination shall be conclusive for all

purposes hereof.

                  Constructive Ownership. The term "Constructive Ownership"

shall mean ownership of Capital Stock by a Person, whether the interest in the

shares of 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 Section 856(d)(5) of

the Code. The terms "Constructive Owner," "Constructively Owns" and

"Constructively Owned" shall have the correlative meanings.

 

                  Excepted Holder. The term "Excepted Holder" shall mean a

stockholder of the Corporation for whom an Excepted Holder Limit is created by

these Articles or by the Board of Directors pursuant to Section 7.2.7.

 

                  Excepted Holder Limit. The term "Excepted Holder Limit" shall

mean, provided that the affected Excepted Holder agrees to comply with the

requirements established by the Board of Directors pursuant to Section 7.2.7,

and subject to adjustment pursuant to Section 7.2.8, the percentage limit

established by the Board of Directors pursuant to Section 7.2.7.

 

                  Initial Date. The term "Initial Date" shall mean the date upon

which the Articles of Amendment containing this Article VII are accepted for

record by the SDAT.

 

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                  Market Price. The term "Market Price" on any date shall mean,

with respect to any class or series of outstanding shares of Capital Stock, the

Closing Price for such Capital Stock on such date. The "Closing Price" on any

date shall mean the last sale price for such Capital Stock, regular way, or, in

case no such sale takes place on such day, the average of the closing bid and

asked prices, regular way, for such Capital Stock, in either case as reported in

the principal consolidated transaction reporting system with respect to

securities listed or admitted to trading on the NYSE or, if such Capital Stock

is not listed or admitted to trading on the NYSE, as reported on the principal

consolidated transaction reporting system with respect to securities listed on

the principal national securities exchange on which such Capital Stock is listed

or admitted to trading or, if such Capital Stock is not listed or admitted to

trading on any national securities exchange, the last quoted price, or, if not

so quoted, the average of the high bid and low asked prices in the

over-the-counter market, as reported by the National Association of Securities

Dealers, Inc. Automated Quotation System or, if such system is no longer in use,

the principal other automated quotation system that may then be in use or, if

such Capital Stock is not quoted by any such organization, the average of the

closing bid and asked prices as furnished by a professional market maker making

a market in such Capital Stock selected by the Board of Directors of the

Corporation or, in the event that no trading price is available for such Capital

Stock, the fair market value of the Capital Stock, as determined in good faith

by the Board of Directors of the Corporation.

 

                  MGCL. The term "MGCL" shall mean the Maryland General

Corporation Law, as amended from time to time.

 

                  NYSE. The term "NYSE" shall mean the New York Stock Exchange.

 

                  Person. The term "Person" shall mean an individual,

corporation, partnership, estate, trust (including a trust qualified under

Sections 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 and also includes a

group as that term is used for purposes of Section 13(d)(3) of the Securities

Exchange Act of 1934, as amended, and a group to which an Excepted Holder Limit

applies.

 

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                  Prohibited Owner. The term "Prohibited Owner" shall mean, with

respect to any purported Transfer, any Person who, but for the provisions of

Section 7.2.1, would Beneficially Own or Constructively Own shares of Capital

Stock, and if appropriate in the context, shall also mean any Person who would

have been the record owner of the shares that the Prohibited Owner would have so

owned.

                  REIT. The term "REIT" shall mean a real estate investment

trust within the meaning of Section 856 of the Code.

 

                  Restriction Termination Date. The term "Restriction

Termination Date" shall mean the first day after the Initial Date on which the

Corporation determines pursuant to Section 5.7 of the Charter that it is no

longer in the best interests of the Corporation to attempt to, or continue to,

qualify as a REIT or that compliance with the restrictions and limitations on

Beneficial Ownership, Constructive Ownership and Transfers of shares of Capital

Stock set forth herein is no longer required in order for the Corporation to

qualify as a REIT.

 

                  Transfer. The term "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 Ownership or Constructive

Ownership, or any agreement to take any such actions or cause any such events,

of Capital Stock or the right to vote or receive dividends on Capital Stock,

including (a) the granting or exercise of any option (or any disposition of any

option), (b) any disposition of any securities or rights convertible into or

exchangeable for Capital Stock or any interest in Capital Stock or any exercise

of any such conversion or exchange right and (c) Transfers of interests in other

entities that result in changes in Beneficial or Constructive Ownership of

Capital Stock; in each case, whether voluntary or involuntary, whether owned of

record, Constructively Owned or Beneficially Owned and whether by operation of

law or otherwise. The terms "Transferring" and "Transferred" shall have the

correlative meanings.

 

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                  Trust. The term "Trust" shall mean any trust provided for in

Section 7.3.1.

 

                  Trustee. The term "Trustee" shall mean the Person unaffiliated

with the Corporation and a Prohibited Owner, that is appointed by the

Corporation to serve as trustee of the Trust.

 

                  Section 7.2  Capital Stock.

 

                      Section 7.2.1 Ownership Limitations. During the period

commencing on the Initial Date and prior to the Restriction Termination Date:

 

                      (a) Basic Restrictions.

 

                          (i) (1) No individual, other than an Excepted Holder,

shall Beneficially Own or Constructively Own shares of Capital Stock in excess

of the Aggregate Stock Ownership Limit, (2) no individual, other than an

Excepted Holder, shall Beneficially Own or Constructively Own shares of Common

Stock in excess of the Common Stock Ownership Limit and (3) no Excepted Holder

shall Beneficially Own or Constructively Own shares of Capital Stock in excess

of the Excepted Holder Limit for such Excepted Holder.

 

                          (ii) No Person shall Beneficially or Constructively

Own shares of Capital Stock to the extent that such Beneficial or Constructive

Ownership of Capital Stock would result in 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 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).

 

                          (iii) Subject to Section 7.4, notwithstanding any

other provisions contained herein, any Transfer of shares of Capital Stock that,

if effective, would result in the Capital Stock being beneficially owned by less

than 100 Persons (determined under the principles of Section 856(a)(5) of the

Code) shall be void ab initio, and the intended transferee shall acquire no

rights in such shares of Capital Stock.

 

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                      (b) Transfer in Trust. If any Transfer of shares of

Capital Stock (whether or not such Transfer is the result of a transaction

entered into through the facilities of the NYSE or any other national securities

exchange or automated inter-dealer quotation system) occurs which, if effective,

would result in any Person Beneficially Owning or Constructively Owning shares

of Capital Stock in violation of Section 7.2.1(a)(i) or (ii),

 

                          (i) then that number of shares of the Capital Stock

the Beneficial or Constructive Ownership of which otherwise would cause such

Person to violate Section 7.2.1(a)(i) or (ii)(rounded to the nearest whole

share) shall be automatically transferred to a Trust for the benefit of a

Charitable Beneficiary, as described in Section 7.3, effective as of the close

of business on the Business Day prior to the date of such Transfer, and such

Person shall acquire no rights in such shares; or

 

                          (ii) subject to Section 7.4, if the transfer to the

Trust described in clause (i) of this sentence would not be effective for any

reason to prevent the violation of Section 7.2.1(a)(i) or (ii), then the

Transfer of that number of shares of Capital Stock that otherwise would cause

any Person to violate Section 7.2.1(a)(i) or (ii) shall be void ab initio, and

the intended transferee shall acquire no rights in such shares of Capital Stock.

 

                      Section 7.2.2 Remedies for Breach. If the Board of

Directors of the Corporation or any duly authorized committee thereof shall at

any time determine in good faith that a Transfer or other event has taken place

that results in a violation of Section 7.2.1 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 Section 7.2.1 (whether or not such violation is

intended), the Board of Directors or a committee thereof shall take such action

as it deems advisable to refuse to give effect to or to prevent such Transfer or

other event, including, without limitation, causing the Corporation to redeem

shares, refusing to give effect to such Transfer on the books of the Corporation

or instituting proceedings to enjoin such Transfer or other event; provided,

however, that any Transfer or attempted Transfer or other event in violation of

Section 7.2.1 shall automatically result in the transfer to the 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

of Directors or a committee thereof.

 

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                      Section 7.2.3 Notice of Restricted Transfer. Any Person

who acquires or attempts or intends to acquire Beneficial Ownership or

Constructive Ownership of shares of Capital Stock that will or may violate

Section 7.2.1(a) or any Person who would have owned shares of Capital Stock that

resulted in a transfer to the Trust pursuant to the provisions of Section

7.2.1(b) shall immediately give written notice to the Corporation of such event

or, in the case of such a proposed or attempted transaction, give at least 15

days prior written notice, 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 on the Corporation's status as a REIT.

 

                      Section 7.2.4 Owners Required To Provide Information. From

the Initial Date and prior to the Restriction Termination Date:

 

                      (a) every owner of five percent or more (or such lower

percentage as required by the Code or the Treasury Regulations promulgated

thereunder) of the outstanding shares of Capital Stock, within 30 days after the

end of each taxable year, shall give written notice to the Corporation stating

the name and address of such owner, the number of shares of Capital Stock and

other shares of the Capital Stock Beneficially Owned and a description of the

manner in which such shares are held. Each such owner shall provide to the

Corporation such additional information as the Corporation may request in order

to determine the effect, if any, of such Beneficial Ownership on the

Corporation's status as a REIT and to ensure compliance with the Aggregate Stock

Ownership Limit; and

 

                      (b) each Person who is a Beneficial or Constructive Owner

of Capital Stock and each Person (including the stockholder of record) who is

holding Capital Stock for a Beneficial or Constructive Owner shall provide to

the Corporation such information as the Corporation may request, in good faith,

in order to determine the Corporation's status as a REIT and to comply with

requirements of any taxing authority or governmental authority or to determine

such compliance.

 

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                      Section 7.2.5 Remedies Not Limited. Subject to Section 5.7

of the Charter, nothing contained in this Section 7.2 shall limit the authority

of the Board of Directors of the Corporation to take such other action as it

deems necessary or advisable to protect the Corporation and the interests of its

stockholders in preserving the Corporation's status as a REIT.

 

                      Section 7.2.6 Ambiguity. In the case of an ambiguity in

the application of any of the provisions of this Section 7.2, Section 7.3, or

any definition contained in Section 7.1, the Board of Directors of the

Corporation shall have the power to determine the application of the provisions

of this Section 7.2 or Section 7.3 or any such definition with respect to any

situation based on the facts known to it. In the event Section 7.2 or 7.3

requires an action by the Board of Directors and the Charter fails to provide

specific guidance with respect to such action, the Board of Directors shall have

the power to determine the action to be taken so long as such action is not

contrary to the provisions of Sections 7.1, 7.2 or 7.3.

 

                      Section 7.2.7 Exceptions.

 

                      (a) Subject to Section 7.2.1(a)(ii), the Board of

Directors of the Corporation, in its sole discretion, may exempt (prospectively

or retroactively) a Person from the Aggregate Stock Ownership Limit and the

Common Stock Ownership Limit, as the case may be, and may establish or increase

an Excepted Holder Limit for such Person if:

 

                          (i) the Board of Directors obtains such

representations and undertakings from such Person as are reasonably necessary to

ascertain that no individual's Beneficial or Constructive Ownership of such

shares of Capital Stock will violate Section 7.2.1(a)(ii);

 

                          (ii) such Person does not and represents that it will

not own, actually or Constructively, an interest in a tenant of the Corporation

(or a tenant of any entity owned or controlled by the Corporation) that would

cause the Corporation to own, actually or Constructively, more than a 9.9%

interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and

the Board of Directors obtains such representations and undertakings from such

Person as are reasonably necessary to ascertain this fact (for this purpose, a

tenant from whom the Corporation (or an entity owned or controlled by the

Corporation) derives (and is expected to continue to derive) a sufficiently

small amount of revenue such that, in the opinion of the Board of Directors of

the Corporation, rent from such tenant would not adversely affect the

Corporation's ability to qualify as a REIT shall not be treated as a tenant of

the Corporation); and

 

                                       14

<PAGE>

 

                          (iii) such Person agrees that any violation or

attempted violation of such representations or undertakings (or other action

which is contrary to the restrictions contained in Sections 7.2.1 through 7.2.6)

will result in such shares of Capital Stock being automatically transferred to a

Trust in accordance with Sections 7.2.1(b) and 7.3.

 

                      (b) Prior to granting any exception pursuant to Section

7.2.7(a), the Board of Directors of the Corporation may require a ruling from

the Internal Revenue Service, or an opinion of counsel, in either case in form

and substance satisfactory to the Board of Directors in its sole discretion, as

it may deem necessary or advisable in order to determine or ensure the

Corporation's status as a REIT. Notwithstanding the receipt of any ruling or

opinion, the Board of Directors may impose such conditions or restrictions as it

deems appropriate in connection with granting such exception.

 

                      (c) Subject to Section 7.2.1(a)(ii), an underwriter which

participates in a public offering or a private placement of Capital Stock (or

securities convertible into or exchangeable for Capital Stock) may Beneficially

Own or Constructively Own shares of Capital Stock (or securities convertible

into or exchangeable for Capital Stock) in excess of the Aggregate Stock

Ownership Limit, the Common Stock Ownership Limit, or both such limits, but only

to the extent necessary to facilitate such public offering or private placement.

 

                      (d) The Board of Directors 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 that is less than the

Common Stock Ownership Limit.

 

                                       15

<PAGE>

 

                      Section 7.2.8 Increase in Aggregate Stock Ownership and

Common Stock Ownership Limits. Subject to Section 7.2.2 (a)(ii), the Board of

Directors may from time to time increase the Common Stock Ownership Limit and

the Aggregate Stock Ownership Limit for one or more Persons and decrease the

Common Stock Ownership Limit and the Aggregate Stock Ownership Limit for all

other Persons; provided, however, that the decreased Common Stock Ownership

Limit and/or Aggregate Stock Ownership Limit will not be effective for any

Person whose percentage ownership in Stock is in excess of such decreased Common

Stock Ownership Limit and/or Aggregate Stock Ownership Limit until such time as

such Person's percentage of Stock equals or falls below the decreased Common

Stock Ownership Limit and/or Aggregate Stock Ownership Limit, but any further

acquisition of Stock in excess of such percentage ownership of Stock will be in

violation of the Common Stock Ownership Limit and/or Aggregate Stock Ownership

Limit and, provided further, that the new Common Stock Ownership Limit and/or

Aggregate Stock Ownership Limit would not allow five or fewer Persons to

Beneficially Own more than 49.9% in value of the outstanding Stock.

 

                      Section 7.2.9 Legend. Each certificate for shares of

Capital Stock shall bear substantially the following legend:

 

                      The shares represented by this certificate are subject to

                      restrictions on Beneficial and Constructive Ownership and

                      Transfer for the purpose, among others, of the

                      Corporation's maintenance of its status as a Real Estate

                      Investment Trust under the Internal Revenue Code of 1986,

                      as amended (the "Code"). Subject to certain further

                      restrictions and except as expressly provided in the

                      Corporation's Charter, (i) no individual may Beneficially

                      or Constructively Own shares of the Corporation's Common

                      Stock in excess of 9.8 percent (in value or number of

                      shares) of the outstanding shares of Common Stock of the

                      Corporation unless such individual is an Excepted Holder

                      (in which case the Excepted Holder Limit shall be

                      applicable); (ii) no individual may Beneficially or

                      Constructively Own shares of Capital Stock of the

                      Corporation

 

                                       16

<PAGE>

 

                      in excess of 9.8 percent of the value of the total

                      outstanding shares of Capital Stock of the Corporation,

                      unless such individual is an Excepted Holder (in which

                      case the Excepted Holder Limit shall be applicable); (iii)

                      no Person may Beneficially or Constructively Own 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 (iv) no

                      Person may Transfer shares of Capital Stock if such

                      Transfer would result in the Capital Stock of the

                      Corporation being owned by fewer than 100 Persons. Any

                      Person who Beneficially or Constructively Owns or attempts

                      to Beneficially or Constructively Own shares of Capital

                      Stock which causes or will cause a Person to Beneficially

                      or Constructively Own shares of Capital Stock in excess or

                      in violation of the above limitations must immediately

                      notify the Corporation. If any of the restrictions on

                      transfer or ownership are violated, the shares of Capital

                      Stock represented hereby will be automatically transferred

                      to a Trustee of a Trust for the benefit of one or more

                      Charitable Beneficiaries. In addition, the Corporation may

                      redeem shares upon the terms and conditions specified by

                      the Board of Directors in its sole discretion if the Board

                      of Directors determines that ownership or a Transfer or

                      other event may violate the restrictions described above.

                      Furthermore, upon the occurrence of certain events,

                      attempted Transfers in violation of the restrictions

                      described above may be void ab initio. All capitalized

                      terms in this legend have the meanings defined in the

                      charter of the Corporation, as the same may be amended

                      from time to time, a copy of which, including the

                      restrictions on transfer and ownership, will be furnished

                      to each holder of Capital Stock of the Corporation on

                      request and without charge. Requests for such a copy may

                      be directed to the Secretary of the Corporation at its

                      Principal Office.

 

                           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.

 

                  Section 7.3 Transfer of Capital Stock in Trust.

 

                      Section 7.3.1 Ownership in Trust. Upon any purported

Transfer or other event described in Section 7.2.1(b) that would result in a

transfer of shares of Capital Stock to a Trust, such shares of Capital Stock

shall be deemed to have been transferred to the Trustee as trustee of a Trust

for the exclusive benefit of one or more Charitable Beneficiaries. Such transfer

to the 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 Trust pursuant to Section 7.2.1(b). The Trustee shall be

appointed by the Corporation and shall be a Person unaffiliated with the

Corporation and any Prohibited Owner. Each Charitable Beneficiary shall be

designated by the Corporation as provided in Section 7.3.6.

 

                                       17

<PAGE>

 

                      Section 7.3.2 Status of Shares Held by the Trustee. Shares

of Capital Stock held by the Trustee shall be issued and outstanding shares of

Capital Stock of the Corporation. The Prohibited Owner shall have no rights in

the shares held by the Trustee. The Prohibited Owner shall not benefit

economically from ownership of any shares held in trust by the Trustee, shall

have no rights to dividends or other distributions and shall not possess any

rights to vote or other rights attributable to the shares held in the Trust.

 

                      Section 7.3.3 Dividend and Voting Rights. The Trustee

shall have all voting rights and rights to dividends or other distributions with

respect to shares of Capital Stock held in the Trust, which rights shall be

exercised for the exclusive benefit of the Charitable Beneficiary. Any dividend

or other distribution paid prior to the discovery by the Corporation that the

shares of Capital Stock have been transferred to the Trustee shall be paid by

the recipient of such dividend or distribution to the Trustee upon demand and

any dividend or other distribution authorized but unpaid shall be paid when due

to the Trustee. Any dividend or distribution so paid to the Trustee shall be

held in trust for the Charitable Beneficiary. The Prohibited Owner shall have no

voting rights with respect to shares held in the Trust and, subject to Maryland

law, effective as of the date that the shares of Capital Stock have been

transferred to the Trustee, the Trustee shall have the authority (at the

Trustee's sole discretion) (i) to rescind as void any vote cast by a Prohibited

Owner prior to the discovery by the Corporation that the shares of Capital Stock

have been transferred to the Trustee and (ii) to recast such vote in accordance

with the desires of the Trustee acting for the benefit of the Charitable

Beneficiary; provided, however, that if the Corporation has already taken

irreversible corporate action, then the Trustee shall not have the authority to

rescind and recast such vote. Notwithstanding the provisions of this Article

VII, until the Corporation has received notification that shares of Capital

Stock have been transferred into a Trust, the Corporation shall be entitled to

rely on its share transfer and other stockholder records for purposes of

preparing lists of stockholders entitled to vote at meetings, determining the

validity and authority of proxies and otherwise conducting votes of

stockholders.

 

                                       18

<PAGE>

 

                      Section 7.3.4 Sale of Shares by Trustee. Within 20 days of

receiving notice from the Corporation that shares of Capital Stock have been

transferred to the Trust, the Trustee of the Trust shall sell the shares held in

the Trust to a person, designated by the Trustee, whose ownership of the shares

will not violate the ownership limitations set forth in Section 7.2.1(a). Upon

such sale, the interest of the Charitable Beneficiary in the shares sold shall

terminate and the Trustee shall distribute the net proceeds of the sale to the

Prohibited Owner and to the Charitable Beneficiary as provided in this Section

7.3.4. The Prohibited Owner shall receive the lesser of (1) the price paid by

the Prohibited Owner for the shares or, if the Prohibited Owner did not give

value for the shares in connection with the event causing the shares to be held

in the Trust (e.g., in the case of a gift, devise or other such transaction),

the Market Price of the shares on the day of the event causing the shares to be

held in the Trust and (2) the price per share received by the Trustee (net of

any commissions and other expenses of sale) from the sale or other disposition

of the shares held in the Trust. The Trustee may reduce the amount payable to

the Prohibited Owner by the amount of dividends and distributions which have

been paid to the Prohibited Owner and are owed by the Prohibited Owner to the

Trustee pursuant to Section 7.3.3 of this Article VII. Any net sales proceeds in

excess of the amount payable to the Prohibited Owner shall be immediately paid

to the Charitable Beneficiary. If, prior to the discovery by the Corporation

that shares of Capital Stock have been transferred to the Trustee, such shares

are sold by a Prohibited Owner, then (i) such shares shall be deemed to have

been sold on behalf of the Trust and (ii) to the extent that the Prohibited

Owner received an amount for such shares that exceeds the amount that such

Prohibited Owner was entitled to receive pursuant to this Section 7.3.4, such

excess shall be paid to the Trustee upon demand.

 

                                       19

<PAGE>

 

                      Section 7.3.5 Purchase Right in Stock Transferred to the

Trustee. Shares of Capital Stock transferred to the Trustee 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

resulted in such transfer to the Trust (or, in the case of a devise or gift, the

Market Price at the time of such devise or gift) and (ii) the Market Price on

the date the Corporation, or its designee, accepts such offer. The Corporation

may reduce the amount payable to the Prohibited Owner by the amount of dividends

and distributions which has been paid to the Prohibited Owner and are owed by

the Prohibited Owner to the Trustee pursuant to Section 7.3.3 of this Article

VII. The Corporation may pay the amount of such reduction to the Trustee for the

benefit of the Charitable Beneficiary. The Corporation shall have the right to

accept such offer until the Trustee has sold the shares held in the Trust

pursuant to Section 7.3.4. Upon such a sale to the Corporation, the interest of

the Charitable Beneficiary in the shares sold shall terminate and the Trustee

shall distribute the net proceeds of the sale to the Prohibited Owner.

 

                                       20

<PAGE>

 

                      Section 7.3.6 Designation of Charitable Beneficiaries. By

written notice to the Trustee, the Corporation shall designate one or more

nonprofit organizations to be the Charitable Beneficiary of the interest in the

Trust such that (i) the shares of Capital Stock held in the Trust would not

violate the restrictions set forth in Section 7.2.1(a) in the hands of such

Charitable Beneficiary and (ii) each such organization must be described in

Section 501(c)(3) of the Code and contributions to each such organization must

be eligible for deduction under each of Sections 170(b)(1)(A), 2055 and 2522 of

the Code.

 

                  Section 7.4 NYSE Transactions. Nothing in this Article VII

shall preclude the settlement of any transaction entered into through the

facilities of the NYSE or any other national securities exchange or automated

inter-dealer quotation system. The fact that the settlement of any transaction

occurs shall not negate the effect of any other provision of this Article VII

and any transferee in such a transaction shall be subject to all of the

provisions and limitations set forth in this Article VII.

 

                  Section 7.5 Enforcement. The Corporation is authorized

specifically to seek equitable relief, including injunctive relief, to enforce

the provisions of this Article VII.

 

                  Section 7.6 Non-Waiver. No delay or failure on the part of the

Corporation or the Board of Directors in exercising any right hereunder shall

operate as a waiver of any right of the Corporation or the Board of Directors,

as the case may be, except to the extent specifically waived in writing.

 

 

                                       21

<PAGE>

 

                                  ARTICLE VIII

                                   AMENDMENTS

 

                  The Corporation reserves the right from time to time to make

any amendment to its charter, now or hereafter authorized by law, including any

amendment altering the terms or contract rights, as expressly set forth in the

charter, of any shares of outstanding stock. All rights and powers conferred by

the charter on stockholders, directors and officers are granted subject to this

reservation. Except as otherwise provided in the charter, any amendment to the

charter shall be valid only if declared advisable by the Board of Directors and

approved by the affirmative vote of a majority of all the votes entitled to be

cast on the matter. However, any amendment to Article VII, Section 5.1, Section

5.8 or to this sentence of the charter shall be valid only if declared advisable

by the Board of Directors and approved by the affirmative vote of two-thirds of

all the votes entitled to be cast on the matter.

 

 

                                       22

<PAGE>

 

                                   ARTICLE IX

                             LIMITATION OF LIABILITY

 

                  To the maximum extent that Maryland law in effect from time to

time permits limitation of the liability of directors and officers of a

corporation, no present or former director or officer of the Corporation shall

be liable to the Corporation or its stockholders for money damages. Neither the

amendment nor repeal of this Article IX, nor the adoption or amendment of any

other provision of the charter or Bylaws inconsistent with this Article IX,

shall apply to or affect in any respect the applicability of the preceding

sentence with respect to any act or failure to act which occurred prior to such

amendment, repeal or adoption.

 

                  THIRD: The amendment to and restatement of the charter as

hereinabove set forth have been duly advised by the Board of Directors and

approved by the stockholders of the Corporation as required by law.

 

                  FOURTH: The current address of the principal office of the

Corporation is as set forth in Article IV of the foregoing amendment and

restatement of the charter.

 

                  FIFTH: The name and address of the Corporation's current

resident agent is as set forth in Article IV of the foregoing amendment and

restatement of the charter.

 

                  SIXTH: The number of directors of the Corporation and the

names of those currently in office are as set forth in Article V of the

foregoing amendment and restatement of the charter.

 

                  SEVENTH: The total number of shares of stock which the

Corporation had authority to issue immediately prior to this amendment and

restatement was 1000 shares, par value $.01 per share, all of one class. The

aggregate par value of all authorized shares having a par value is $10.

 

                  EIGHTH: The total number of shares of stock which the

Corporation has authority to issue pursuant to the foregoing amendment and

restatement of the charter is 300,000,000, consisting of 150,000,000 shares of

Common Stock, par value $.01 per share, and 150,000,000 shares of Preferred

Stock, par value $.01 per share. The aggregate par value of all authorized

shares of stock having par value is $3,000,000.

 

                                       23

<PAGE>

 

                  NINTH: The undersigned President acknowledges these Articles

of Amendment and Restatement to be the corporate act of the Corporation and as

to all matters or facts required to be verified under oath, the undersigned

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

of Amendment and Restatement to be signed in its name and on its behalf by its

President and attested to by its Secretary on this _____ day of ____________,

2004.

 

ATTEST:                                    STRATEGIC HOTEL CAPITAL, INC.

 

 

 

___________________________                 By: _________________________(SEAL)

Patricia Needham, Secretary                     Laurence S. Geller, President

 

 

 

 

 

 

STRATEGIC HOTELS & RESORTS, INC.

ARTICLES OF AMENDMENT

Strategic Hotels & Resorts, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:

FIRST: Section 6.1 of the charter of the Corporation (the “Charter”) is hereby deleted in its entirety and the following is substituted in lieu thereof:

Section 6.1 Authorized Shares. The Corporation has authority to issue 400,000,000 shares of stock, consisting of 250,000,000 shares of Common Stock, $.01 par value per share (“Common Stock”), and 150,000,000 shares of Preferred Stock, $.01 par value per share (“Preferred Stock”). The aggregate par value of all authorized shares of stock having par value is $4,000,000. If shares of one class of stock are classified or reclassified into shares of another class of stock pursuant to Section 6.2, 6.3 or 6.4 of this Article VI, the number of authorized shares of the former class shall be automatically decreased and the number of shares of the latter class shall be automatically increased, in each case by the number of shares so classified or reclassified, so that the aggregate number of shares of stock of all classes that the Corporation has authority to issue shall not be more than the total number of shares of stock set forth in the first sentence of this paragraph. The Board of Directors, without any action by the stockholders of the Corporation, may amend the charter from time to time to increase or decrease the aggregate number of shares of stock or the number of shares of stock of any class or series that the Corporation has authority to issue.

SECOND: The total number of shares of stock which the Corporation had authority to issue immediately prior to the foregoing amendment of the Charter was 300,000,000 shares of stock, consisting of 150,000,000 shares of common stock, $0.01 par value per share, and 150,000,000 shares of serial preferred stock, $0.01 par value per share. The aggregate par value of all shares of stock having par value was $3,000,000.

THIRD: The total number of shares of stock which the Corporation has authority to issue pursuant to the foregoing amendment of the Charter is 400,000,000 shares of stock, consisting of 250,000,000 shares of common stock, $0.01 par value per share, and 150,000,000 shares of serial preferred stock, $0.01 par value per share. The aggregate par value of all authorized shares of stock having par value is $4,000,000.

FOURTH: The information required by Section 2-607(b)(2)(i) of the Maryland General Corporation Law is not changed by foregoing amendment.


FIFTH: The foregoing amendment was approved by the Board of Directors of the Corporation as required by law and was limited to a change expressly authorized by Section 2-105(a)(12) of the MGCL without any action by the stockholders of the Corporation.

SIXTH: The undersigned officer of the Corporation acknowledges these Articles of Amendment to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned officer 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.

- Signature page follows -

 

- 2 -


IN WITNESS WHEREOF, the Corporation has caused these Articles of Amendment to be executed in its name and on its behalf by the undersigned officer and attested by its Secretary on this 13th day of May, 2010.

 

ATTEST:

 

 

STRATEGIC HOTELS & RESORTS, INC.

/s/ Paula Maggio

 

 

By:

 

/s/ Laurence S. Geller

Paula Maggio

 

 

Name:

 

Laurence S. Geller

Secretary

 

 

Title:

 

President and Chief Executive Officer

 

 

 

 

STRATEGIC HOTELS & RESORTS, INC.

ARTICLES SUPPLEMENTARY

Strategic Hotels & Resorts, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland (the “SDAT”) that:

FIRST: Under a power contained in Article VI, Sections 6.3 and 6.4 of the charter of the Corporation (the “Charter”), the Board of Directors of the Corporation (the “Board”), by duly adopted resolutions, reclassified and designated 100,000 shares of the authorized but unissued shares of preferred stock of the Corporation, $.01 par value per share, as shares of Series D Junior Participating Preferred Stock, $.01 par value per share (the “Junior Preferred Stock”), of the Corporation 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 the Junior Preferred Stock set forth in the Charter.

SECOND: The additional shares of Junior Preferred Stock have been classified and designated by the Board under the authority contained in the Charter. After giving effect to the classification and designation of the additional shares of Junior Preferred Stock set forth herein, the Corporation has authority to issue 350,000 shares of Junior Preferred Stock.

THIRD: These Articles Supplementary have been approved by the Board in the manner and by the vote required by law.

FOURTH: The undersigned officer 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 officer 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.

[SIGNATURE PAGE FOLLOWS]


IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed under seal in its name and on its behalf by the undersigned officer and attested to by its Secretary on this 13th day of November, 2012.

 

ATTEST:

 

 

 

STRATEGIC HOTELS & RESORTS, INC.

/s/ Paula Maggio

 

 

By:

 

/s/ Stephen M. Briggs

Paula Maggio

 

 

 

Stephen M. Briggs

Secretary

 

 

 

Senior Vice President, Chief Accounting Officer

 

 

[As Filed: 11-13-2012]