ARTICLES OF AMENDMENT AND RESTATEMENT

 

                                       TO

 

                            ARTICLES OF INCORPORATION

 

                                       OF

 

                        GLADSTONE COMMERCIAL CORPORATION

 

           Gladstone Commercial Corporation, a Maryland corporation (the

"CORPORATION"), having its principal office at c/o The Corporation Trust

Incorporated, 300 East Lombard Street, Baltimore City, Maryland, hereby

certifies to the State Department of Assessments and Taxation that:

 

ONE: The Corporation desires to amend and restate the Charter of the

Corporation.

 

TWO: These Articles of Amendment and Restatement of the Corporation were duly

adopted by the Board of Directors of the Corporation and approved by the

stockholders of the Corporation.

 

THREE: The amendment and restatement of the Charter of the Corporation does not

increase nor decrease the authorized capital stock of the Corporation.

 

FOUR: The Charter of the Corporation is hereby amended and restated in its

entirety to read as follows:

 

           FIRST:   The name of the Corporation is Gladstone Commercial

Corporation (which is hereafter called the "CORPORATION").

 

           SECOND : The purpose for which the Corporation is formed is to engage

in any lawful business and activity, including, without limitation, but subject

to any contrary requirements necessary to qualify the Corporation as a real

estate investment trust (a "REIT") under Part II of Subchapter M of the Internal

Revenue Code of 1986, as amended (and any successor provisions and as those

rules may be modified for purposes of REITs) (collectively, the "CODE"):

 

           1. To purchase, acquire, hold, own, improve, develop, sell, convey,

assign, release, finance, refinance, mortgage, encumber, use, lease, hire,

manage, deal in and otherwise dispose of real property and personal property of

every kind and nature or any interest therein, improved or otherwise, including

without limitation mortgage loans, promissory notes, collateralized

certificates, stocks and securities of other corporations or entities; to lend

money; to take real estate, securities and other collateral as security for the

payment of all sums due the Corporation; and to sell, assign and release such

securities;

 

           2. To equip, furnish, improve, develop and manage any property, real

or personal; to invest, trade and deal in any property, real or personal; to

encumber or dispose of any such property at any time held or owned by the

Corporation; and

 

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           3. To have and exercise any and all powers and privileges now or

hereafter conferred by the general laws of the State of Maryland upon

corporations formed under such laws.

 

           The foregoing enumeration of the purposes of the Corporation is made

in furtherance and not in limitation of the powers conferred upon the

Corporation by law. The mention of any particular purpose is not intended in any

manner to limit or restrict the generality of any other purpose mentioned, or to

limit or restrict any of the powers of the Corporation. The Corporation shall

have, enjoy and exercise all of the powers and rights now or hereafter conferred

by the laws of the State of Maryland upon corporations of a similar character,

it being the intention that the purposes set forth in each of the paragraphs of

this Article shall, except as otherwise expressly provided, in nowise be limited

or restricted by reference to or inference from the terms of any other clause or

paragraph of this or any other Article of these Articles of Incorporation, or of

any amendment thereto, and shall each be regarded as independent and construed

as powers as well as purposes; provided, however, that nothing herein contained

shall be deemed to authorize or permit the Corporation to carry on any business

or exercise any power, or do any act, which a corporation formed under the

general laws of the State of Maryland may not at the time lawfully carry on or

do.

 

           THIRD:    The post office address of the principal office of the

Corporation in this State is c/o The Corporation Trust Incorporated, 300 East

Lombard Street, Baltimore, Maryland 21202. The name of the Resident Agent of the

Corporation in this State is The Corporation Trust Incorporated whose address is

300 East Lombard Street, Baltimore, Maryland 21202.

 

           FOURTH:   The total number of shares of capital stock which the

Corporation has authority to issue is twenty million (20,000,000) shares of

common stock, with a par value of $0.001 per share.

 

           FIFTH:    The number of directors of the Corporation shall be three

(3), subject to change in accordance with the Bylaws of the Corporation. The

current directors are: David Gladstone and Terry L. Brubaker. The third seat on

the board of directors is currently vacant, to be filled in accordance with the

Bylaws of the Corporation.

 

           SIXTH:    Except as may otherwise be provided by the Board of

Directors, no holder of any shares of the stock of the Corporation shall have

any pre-emptive right to purchase, subscribe for, or otherwise acquire any

shares of stock of the Corporation of any class now or hereafter authorized, or

any securities exchangeable for or convertible into such shares, or any warrants

or other instruments evidencing rights or options to subscribe for, purchase or

otherwise acquire such shares. The shares have no cumulative voting rights and,

except as provided in Article EIGHTH below, are not subject to redemption.

 

           SEVENTH:  The following provisions are hereby adopted for the purpose

of defining, limiting and regulating the powers of the Corporation and of the

directors and stockholders:

 

           1. The Board of Directors of the Corporation is hereby empowered to

authorize the issuance from time to time of shares of its stock of any class or

classes, whether now or hereafter authorized.

 

 

 

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           2. The Board of Directors of the Corporation may classify or

reclassify any unissued stock by setting or changing in any one or more

respects, from time to time before issuance of such stock, the preferences,

conversion or other rights, voting powers, restrictions, limitations as to

dividends, qualifications and terms and conditions of redemption of such stock.

A majority of the entire Board of Directors, without action by the stockholders,

may amend the Charter to increase or decrease the aggregate number of shares of

stock or the number of shares of stock of any class that the Corporation has

authority to issue.

 

           3. The Corporation reserves the right to amend its Charter so that

such amendment may alter the contract rights, as expressly set forth in the

charter, of any outstanding stock, and any objecting stockholder whose rights

may or shall be thereby substantially adversely affected shall not be entitled

to demand and receive payment of the face value of his stock.

 

           The enumeration and definition of a particular power of the Board of

Directors included in the foregoing shall in no way be limited or restricted by

reference to or inference from the terms of any other cause of this or any other

article of the Charter of the Corporation, or construed as or deemed by

inference or otherwise in any manner to exclude or limit any powers conferred

upon the Board of Directors under the Maryland General Corporation Law now or

hereafter in force.

 

           4. The Corporation shall indemnify (1) its directors and officers,

whether serving the Corporation or at its request any other entity, to the full

extent required or permitted by the General Laws of the State of Maryland now or

hereafter in force, including the advance of expenses under the procedures and

to the full extent permitted by law, and (2) other employees and agents

(including Corporation's advisers) to such extent as shall be authorized by the

Board of Directors or the Corporation's Bylaws and be permitted by law. The

foregoing rights of indemnification shall not be exclusive of any other rights

to which those seeking indemnification may be entitled. The Board of Directors

may take such action as is necessary to carry out these indemnification

provisions and is expressly empowered to adopt, approve, and amend from time to

time such Bylaws, resolutions, or contracts implementing such provisions or such

further indemnification arrangements as may be permitted by law. No amendment of

the Charter or repeal of any of its provisions shall limit or eliminate the

right to indemnification provided hereunder with respect to acts or omissions

occurring prior to such amendment or repeal.

 

           5. No director or officer of the Corporation shall be liable to the

Corporation or to its stockholders for money damages except (1) to the extent

that it is proved that such director or officer actually received an improper

benefit or profit in money, property or services actually received, or (2) to

the extent that a judgment or other final adjudication adverse to such director

or officer is entered in a proceeding based on a finding in the proceeding that

such director's or officer's action, or failure to act, was (a) the result of

active and deliberate dishonesty, or (b) intentionally wrongful, willful or

malicious and, in each such case, was material to the cause of action

adjudicated in the proceeding.

 

           6. Notwithstanding any provision of law to the contrary, the

affirmative vote of a majority of all the votes entitled to be cast on the

matter shall be sufficient, valid and effective, after due authorization,

approval or advice of such action by the Board of Directors, as required by law,

to approve and authorize the following acts of the Corporation:

 

 

 

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                (a) The amendment of the Charter of the Corporation;

 

                (b) the consolidation of the Corporation with one or more

corporations to form a new consolidated corporation;

 

                (c) the merger of the Corporation into another corporation or

the merger of one or more other corporations into the Corporation;

 

                (d) the sale, lease, exchange or other transfer of all, or

substantially all, of the property and assets of the Corporation, including its

goodwill and franchises;

 

                (e) the participation by the Corporation in a share exchange (as

defined in the Corporation and Associations Article of the Annotated Code of

Maryland) as the corporation the stock of which is to be acquired; and

 

                (f) the voluntary or involuntary liquidation, dissolution or

winding-up of the Corporation.

 

           EIGHTH:   The following provisions are hereby adopted for the purpose

of restricting the transfer and acquisition of shares, and providing a

redemption right:

 

           1. Whenever it is deemed by the Board of Directors to be prudent in

protecting the tax status of the Corporation as a REIT, the Board of Directors

may require to be filed with the Corporation a statement or affidavit from each

proposed transferee of shares of capital stock of the Corporation setting forth

the number of such shares already owned, or deemed to be owned under rules of

constructive ownership, by the transferee and any other person(s) specified in

the form prescribed by the Board of Directors for that purpose and such other

information as the Board of Directors deems relevant for this purpose. Any

contract for the sale or other transfer of shares of capital stock of the

Corporation shall be subject to this provision.

 

           2. Prior to any transfer or transaction which would cause a person to

own, directly, indirectly or constructively, shares in excess of the Limit (as

defined in Section 4 of this Article EIGHTH), and in any event upon demand of

the Board of Directors or its designee, such stockholder shall file with the

Corporation an affidavit setting forth the number of shares of capital stock of

the Corporation (i) owned directly and (ii) owned indirectly (for purposes of

this Section, shares of capital stock not owned directly shall be deemed to be

owned indirectly by a person if that person would be the beneficial owner of

such shares for purposes of Rule 13d-3, or any successor rule thereto,

promulgated under the Securities Exchange Act of 1934, as amended (the "EXCHANGE

ACT"), or would be considered to own such shares by reason of the attribution

rules in Section 544 of the Code or the regulations issued thereunder or any

successor provision and as those rules may be modified for purposes of the REIT

provisions of the Code) by the person filing the affidavit. Such affidavit shall

contain such additional information as deemed relevant by the Board of Directors

for purposes of carrying out its duties hereunder. The affidavit to be filed

with the Corporation shall set forth all information required to be disclosed by

stockholders under Treasury Regulation Section 1.857-9 issued under the Code or

similar provisions of any successor regulation, and in reports to be filed under

Section 13(d) of the Exchange Act. The affidavit, or an amendment thereto, shall

be filed with the Corporation within ten (10) days after

 

 

 

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demand therefor and at least fifteen (15) days prior to any transfer or

transaction which, if consummated, would cause the filing person to hold a

number of shares of capital stock of the Corporation in excess of the Limit (as

defined in Section 4 of this Article EIGHTH below). The Board of Directors or

its designee shall have the right, but shall not be required, to refuse to

transfer any shares of capital stock of the Corporation purportedly transferred

other than in compliance with the provisions of this Section.

 

           3. Any acquisition of shares of capital stock of the Corporation that

would result in the disqualification of the Corporation as a REIT under the Code

shall be void ab initio to the fullest extent permitted under applicable law and

the intended transferee of such shares shall be deemed never to have had an

interest therein. If the foregoing provision is determined to be void or invalid

by virtue of any legal decision, statute, rule or regulation, then the

transferee of such shares shall be deemed, at the option of the Corporation, to

have acted as agent on behalf of the Corporation in acquiring such Excess Shares

(as defined below) and to hold such Excess Shares on behalf of the ultimate

owner of such Excess Shares. Any person who receives dividends, interest or any

other distribution paid on account of Excess Shares shall hold and retain these

dividends, interest or any other distribution as an agent for the Corporation.

 

           While the Excess Shares are so held on behalf of the ultimate owner

of such Excess Shares, such Excess Shares shall not have any voting rights and

shall not be considered for purposes of any stockholder vote or determining a

quorum for such a vote. The Excess Shares shall not be treasury stock but shall

continue as issued and outstanding Shares under the General Corporation Law of

Maryland.

 

           Upon discovering the ownership of any Excess Shares, the Board of

Directors may (i) cause the Corporation to immediately redeem such Excess Shares

pursuant to Section 6 of this Article EIGHTH or (ii) grant the stockholder

thirty (30) days to transfer such Excess Shares to any person or group whose

ownership of such Excess Shares would not result in a violation of this Article

EIGHTH. Upon such permitted transfer, the Corporation shall pay or distribute to

the transferee any dividends on the Excess Shares not previously paid or

distributed. If such Excess Shares are not transferred within such thirty

(30)-day period, the Corporation will be deemed to have redeemed such Excess

Shares pursuant to Section 6 of this Article EIGHTH.

 

           4. Notwithstanding any other provision hereof to the contrary and

subject to the provisions of Section 5 of this Article EIGHTH, no person or

persons acting as a group shall at any time own (directly or under constructive

ownership rules relevant for purposes of qualifying the Corporation as a REIT)

in the aggregate more than nine and eight-tenths percent (9.8%) of the

outstanding shares of capital stock of the Corporation (the "LIMIT"). Shares

which but for this Article EIGHTH would be owned by a person or persons acting

as a group and would, at any time, be in excess of the Limit shall be deemed

Excess Shares. For the purpose of determining ownership of Excess Shares,

"OWNERSHIP" of shares shall be deemed to include shares constructively owned by

a person under the provisions Sections 542, 544 and 856 of the Code (and any

successor provision and as those rules may be modified for purposes of the REIT

provisions of the Code) and also shall include shares beneficially owned under

the provisions of Rule 13d-3 promulgated under the Exchange Act. For purposes of

determining persons acting as a group, "GROUP" shall have the same meaning as

such term has for purposes of Section 13(d)(3) of the Exchange Act. All shares

of capital stock of the Corporation which any person or persons

 

 

 

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<PAGE>

 

acting as a group have the right to acquire upon exercise of outstanding rights,

options and warrants, and upon conversion of any securities convertible into

such shares, if any, shall be considered outstanding for purposes of determining

the applicable Limit if such inclusion will cause such person or persons acting

as a group to own more than the Limit. The Board of Directors shall have the

right, but shall not be required, to refuse to transfer shares of capital stock

of the Corporation if, as a result of the proposed transfer, any person or

persons acting as a group would hold or be deemed to hold Excess Shares.

 

           5. The Limit set forth in Section 4 of this Article EIGHTH shall not

apply to the acquisition of shares of capital stock of the Corporation: (i) by

an underwriter in a public offering of such shares; (ii) pursuant to a cash

tender offer made for all outstanding shares (including securities convertible

into common stock, which subsequently may be issued by the Corporation) in

conformity with applicable federal and state securities laws where at least

ninety percent (90%) of the outstanding shares (not including shares or

subsequently issued securities convertible into common stock, which are held by

the tender offeror or any "affiliates" or "associates" thereof within the

meaning of the Exchange Act) are duly tendered and accepted pursuant to the cash

tender offer; or (iii) in any transaction involving the issuance of shares of

capital stock by the Corporation in which the Board of Directors determines that

the underwriter or other person or party initially acquiring such shares will

timely distribute such shares to or among others such that, following such

distribution, none of such shares will deemed to be Excess Shares. The Board of

Directors in its discretion may exempt from the Limit and from the filing

requirements of Section 2 of this Article EIGHTH ownership or transfers of

certain designated shares of capital stock of the Corporation while owned by or

transferred to a person who has provided the Board of Directors with evidence

and assurances acceptable to the Board of Directors that the qualification of

the Corporation as a REIT under the Code and the regulations issued under the

Code would not be jeopardized thereby.

 

           6. At the discretion of the Board of Directors, all Excess Shares may

be redeemed by the Corporation. Written notice of redemption shall be provided

to the holder of the Excess Shares not less than one week prior to the

redemption date (the "REDEMPTION DATE") determined by the Board of Directors and

included in the notice of redemption. The redemption price to be paid for Excess

Shares shall be equal to the lesser of the price paid for the Excess Shares by

the stockholder in whose possession the redeemed shares were formerly Excess

Shares or the Fair Market Value of the Excess Shares. "Fair Market Value" shall

mean (i) the closing price of such shares on the principal national securities

exchange on which such shares are listed or admitted to trading on the last

business day prior to the Redemption Date, or (ii) if such shares are not so

listed or admitted to trading, the closing bid price on such last business day

as reported on the NASDAQ System, if quoted thereon, or (iii) if the redemption

price is not determinable in accordance with clause (i) or (ii) of this

sentence, the fair market value of such shares determined in good faith by the

Board of Directors. The redemption price for any shares of capital stock of the

Corporation so redeemed shall be paid on the Redemption Date. From and after the

Redemption Date, the holder of any shares of capital stock of the Corporation

called for redemption shall cease to be entitled to any distributions and other

benefits with respect to such shares, except the right to payment of the

redemption price fixed as aforesaid.

 

 

 

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           7. Nothing contained in this Article EIGHTH or in any other provision

hereof shall limit the authority of the Board of Directors to take such other

action as it in its sole discretion deems necessary or advisable to protect the

Corporation and the interests of its stockholders by maintaining the

Corporation's eligibility to be, and preserving the Corporation's status as, a

qualified REIT under the Code.

 

           8. For purposes of this Article EIGHTH only, the term "PERSON" shall

include individuals (including natural persons and organizations treated as

natural persons in Section 542(a) of the Code), corporations, limited

partnerships, general partnerships, joint stock companies or associations, joint

ventures, associations, consortia, companies, trusts, banks, trust companies,

land trusts, common law trusts, business trusts, unincorporated associations or

other entities and governments and agencies and political subdivisions thereof.

 

           9. If any provision of this Article EIGHTH or any application of any

such provision is determined to be invalid by any federal or state court having

jurisdiction over the issue, the validity of the remaining provisions shall not

be affected and other applications of such provision shall be affected only to

the extent necessary to comply with the determination of such court. To the

extent any provision of this Article EIGHTH may be inconsistent with any other

provisions of these articles of incorporation, this Article EIGHTH shall be

controlling.

 

           10. In the event that a stockholder knowingly holds Excess Shares and

the Corporation consequently loses its status as a REIT under the Code or

becomes a personal holding company, such stockholder shall be required to

indemnify the Corporation for the full amount of any damages and expenses

(including, without limitation, increased corporate taxes, attorneys' fees and

administrative costs) resulting from the Corporation's loss of its REIT

qualification under the Code.

 

           11. Nothing herein contained shall limit the ability of the

Corporation to impose or seek judicial or other imposition of additional

restrictions if deemed necessary or advisable to protect the Corporation and the

interests of its stockholders by preservation of the Corporation's status as a

REIT.

 

           12. All persons or groups who own five percent (5%) or more of the

Corporation's outstanding shares during any taxable year of the Corporation

shall file with the Corporation an affidavit setting forth the number of shares

during such taxable year (a) owned directly (held of record by such person or

group, or by a nominee or nominees of such person or group), and (b) owned

indirectly (by reason of Section 542, 544 or 856 of the Code or for purposes of

Section 13(d) of the Exchange Act) by the person or group filing the affidavit.

The affidavit to be filed with the Corporation shall set forth all the

information required to be reported (i) in returns of stockholders under

Treasury Regulation Section 1.857-9 issued under the Code or similar provisions

of any successor regulation, and (ii) in reports to be filed under Section 13(d)

of the Exchange Act. The affidavit or amendment to a previously-filed affidavit

shall be filed with the Corporation annually within 60 days after the close of

the Corporation's taxable year. A person or group shall have satisfied the

requirements of this Section 12 of this Article EIGHTH if the person or group

furnishes to the Corporation the information in such person or group's

possession after such person or group has made a good faith effort to determine

the shares it

 

 

 

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indirectly owns and to acquire the information required by Treasury Regulation

Section 1.857-9 issued under the Code or similar provisions of any successor

regulation.

 

           TENTH:    The duration of the Corporation shall be perpetual.

 

                                     ******

 

 

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           IN WITNESS WHEREOF, I, David Gladstone, Chief Executive Officer of

Gladstone Commercial Corporation, hereby acknowledge on behalf of Gladstone

Commercial Corporation that the foregoing Articles of Amendment and Restatement

are the corporate act of the Corporation under the penalties of perjury this ___

day of _______, 2003.

 

 

 

                                  ----------------------------------------

                                  David Gladstone, Chief Executive Officer

 

 

 

 

WITNESS:

 

-----------------------------

Terry L. Brubaker, Secretary

[As Filed: 06/11/2003]

 

 

 

GLADSTONE COMMERCIAL CORPORATION

ARTICLES SUPPLEMENTARY

Gladstone Commercial Corporation, 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 Title 3, Subtitle 8 of the Maryland General Corporation Law (the “MGCL”), by provision in the Bylaws of the Corporation (the “Bylaws”) duly adopted by the Board of Directors of the Corporation (the “Board”) and notwithstanding any other provision in the Corporation’s charter or the Bylaws to the contrary, the Corporation elects to be subject to Sections 3-803, 3-804 and 3-805 of the MGCL, the repeal of which may be effected only by the means authorized by Section 3-802(b)(3) of the MGCL.

SECOND: The Corporation’s election to be subject to Sections 3-803, 3-804 and 3-805 of the MGCL has been approved by the Board in the manner and by the vote required by law.

THIRD: The undersigned 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 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 by its Secretary on this 16th day of March, 2010.

 

 

 

ATTEST:

 

GLADSTONE COMMERCIAL CORPORATION

/s/ Terry L. Brubaker

 

/s/ David Gladstone

 

 

 

Terry L. Brubaker
Secretary

 

David Gladstone
Chief Executive Officer

 

 

GLADSTONE COMMERCIAL CORPORATION
ARTICLES SUPPLEMENTARY

Gladstone Commercial Corporation, a corporation organized and existing under the laws of the State of Maryland (the “Company”), certifies to the State Department of Assessments and Taxation of Maryland (the “Department”) that:

FIRST: Pursuant to the authority expressly vested in the Board of Directors of the Company (the “Board”) by Article SEVENTH of the charter of the Company (the “Charter”) and Section 2-105 of the Maryland General Corporation Law, the Board, by resolutions duly adopted on August 2, 2010, reclassified and designated 4,000,000 authorized but unissued shares of the Company’s original class of senior common stock, par value $0.001 per share (the “Shares”), as common stock, par value $0.001 par value per share (the “Common Stock”).

SECOND: A description of the Common Stock is contained in Article FOURTH of the Charter.

THIRD: The Shares have been reclassified and designated by the Board under the authority contained in the Charter.

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

FIFTH: These Articles Supplementary shall be effective at the time the Department accepts these Articles Supplementary for record.

SIXTH: The undersigned Chief Executive Officer of the Company acknowledges these Articles Supplementary to be the act of the Company and, as to all matters or facts required to be verified under oath, the undersigned Chief Executive 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.

[signatures on next page]

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IN WITNESS WHEREOF, the Company 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 Assistant Secretary on this 8th day of September, 2010.

 

 

 

ATTEST:

 

GLADSTONE COMMERCIAL CORPORATION

     /s/ George Stelljes III—

 

By:       /s/ David Gladstone— (SEAL)

 

 

 

Name: George Stelljes III
Title: Assistant Secretary

 

Name: David Gladstone
Title: Chief Executive Officer

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