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Spirit Realty Capital, Inc. – ‘8-K’ for 7/17/13 – EX-3.1

On:  Wednesday, 7/17/13, at 6:29pm ET   ·   As of:  7/18/13   ·   For:  7/17/13   ·   Accession #:  1193125-13-293250   ·   File #:  1-36004

Previous ‘8-K’:  ‘8-K’ on / for 7/1/13   ·   Next:  ‘8-K’ on 7/18/13 for 7/17/13   ·   Latest:  ‘8-K’ on 1/24/24 for 1/22/24   ·   4 References:   By:  Spirit Realty Capital, Inc. – ‘10-K’ on 2/28/23 for 12/31/22 By:  Spirit Realty Capital, Inc. – ‘S-8’ on 2/22/22 By:  Spirit Realty Capital, Inc. – ‘10-K’ on 2/14/22 for 12/31/21 By:  Spirit Realty Capital, Inc. – ‘10-K’ on 2/19/21 for 12/31/20 

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 7/18/13  Spirit Realty Capital, Inc.       8-K:2,3,4,5 7/17/13   15:1.2M                                   RR Donnelley/FA

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                      HTML     92K 
 2: EX-3.1      Articles of Incorporation/Organization or By-Laws   HTML     97K 
 3: EX-3.2      Articles of Incorporation/Organization or By-Laws   HTML    112K 
 4: EX-10.1     Material Contract                                   HTML     76K 
13: EX-10.10    Material Contract                                   HTML     15K 
 5: EX-10.2     Material Contract                                   HTML    124K 
 6: EX-10.3     Material Contract                                   HTML    123K 
 7: EX-10.4     Material Contract                                   HTML    124K 
 8: EX-10.5     Material Contract                                   HTML    114K 
 9: EX-10.6     Material Contract                                   HTML    114K 
10: EX-10.7     Material Contract                                   HTML    149K 
11: EX-10.8     Material Contract                                   HTML     42K 
12: EX-10.9     Material Contract                                   HTML     31K 
14: EX-16.1     Letter re: Change in Certifying Accountant          HTML      8K 
15: EX-99.1     Miscellaneous Exhibit                               HTML     23K 

Exhibit 3.1

ARTICLES OF MERGER

MERGING

SPIRIT REALTY CAPITAL, INC.

(a Maryland corporation)

WITH AND INTO

COLE CREDIT PROPERTY TRUST II, INC.

(a Maryland corporation)

THIS IS TO CERTIFY THAT:

FIRST: Each of Spirit Realty Capital, Inc., a Maryland corporation (“Spirit”) and Cole Credit Property Trust II, Inc., a Maryland corporation (“CCPT II”) does hereby agree to effect a merger of said entities (the “Merger”) upon the terms and conditions set forth herein and as contemplated by the Agreement and Plan of Merger, dated as of January 22, 2013, among Spirit, Spirit Realty, L.P., a Delaware limited partnership, CCPT II and Cole Operating Partnership II, L.P., a Delaware limited partnership, as amended through the date hereof (the “Merger Agreement”).

SECOND: Spirit is formed under the laws of the State of Maryland. CCPT II is formed under the laws of the State of Maryland. CCPT II shall survive the Merger as the surviving corporation (the “Surviving Corporation”). At the Effective Time (as defined below) of the Merger, the name of the Surviving Corporation shall be Spirit Realty Capital, Inc.

THIRD: The principal office of CCPT II in the State of Maryland is located in Baltimore City and the address of such principal office is c/o The Corporation Trust Incorporated, 351 West Camden Street, Baltimore, Maryland 21201. The principal office of Spirit in the State of Maryland is located in Baltimore City and the address of such principal office is c/o The Corporation Trust Incorporated, 351 West Camden Street, Baltimore, Maryland 21201.

FOURTH: Spirit does not own any interest in land in the State of Maryland.

FIFTH: The terms and conditions of the transaction described in these Articles of Merger were duly advised, authorized and approved by each corporation party to these Articles of Merger in the manner and by the vote required by its charter and the laws of the State of Maryland. The manner of approval was as follows:

(a) At a meeting duly called and held on January 21, 2013, the board of directors of CCPT II adopted resolutions approving and declaring advisable the Merger, the Merger Agreement, and the other transactions contemplated by the Merger Agreement and directed that the Merger pursuant to the Merger Agreement be submitted for consideration by the

stockholders of CCPT II at the next annual meeting of the stockholders of CCPT II. The Merger and the other transactions contemplated by the Merger Agreement were approved by the stockholders of CCPT II at the annual meeting of stockholders duly called and held on June 12, 2013 by the affirmative vote of at least a majority of the votes entitled to be cast on the matter, as required by law and the charter of CCPT II.

(b) At a meeting duly called and held on January 21, 2013, the board of directors of Spirit adopted resolutions approving and declaring advisable the Merger, the Merger Agreement and the other transactions contemplated by the Merger Agreement and directed that the Merger pursuant to the Merger Agreement be submitted for consideration by the stockholders of Spirit at a special meeting of the stockholders of Spirit. The Merger and the other transactions contemplated by the Merger Agreement were approved by the stockholders of Spirit at a special meeting of stockholders duly called and held on June 12, 2013 by the affirmative vote of at least a majority of the votes entitled to be cast on the matter, as required by law and the charter of Spirit.

SIXTH: The charter of CCPT II as in effect immediately prior to the Effective Time shall be amended and restated at the Effective Time as part of the Merger to read in its entirety as set forth on Exhibit A attached hereto, and as so amended and restated shall be the charter of the Surviving Corporation (the “Surviving Corporation Charter”) until further amended or supplemented as provided in the Surviving Corporation Charter or by applicable law.

SEVENTH: (a) Immediately prior to the Effective Time, the total number of shares of all classes of capital stock which CCPT II has the authority to issue pursuant to its charter is 250,000,000, consisting of 240,000,000 shares of common stock, par value $0.01 per share (“CCPT II Common Stock”) and 10,000,000 shares of preferred stock, par value $0.01 per share (“CCPT II Preferred Stock”). The aggregate par value of all shares of capital stock of CCPT II having a par value is $2,500,000.

(b) Immediately prior to the Effective Time, the total number of shares of all classes of capital stock which Spirit has the authority to issue pursuant to its charter is 120,000,000, consisting of 100,000,000 shares of common stock, par value $0.01 per share (“Spirit Common Stock”) and 20,000,000 shares of preferred stock, par value $0.01 per share (“Spirit Preferred Stock”). The aggregate par value of all shares of capital stock of Spirit having a par value is $1,200,000.

EIGHTH: As changed by the amendment and restatement of the charter of CCPT II at the Effective Time as part of the Merger, the total number of shares of all classes of capital stock which the Surviving Corporation will have the authority to issue pursuant to the Surviving Corporation Charter is 490,000,000, consisting of 470,000,000 shares of common stock, par value $0.01 per share and 20,000,000 shares of preferred stock, par value $0.01 per share. The aggregate par value of all shares of capital stock of the Surviving Corporation having a par value will be $4,900,000.

NINTH: At the Effective Time, Spirit shall be merged with and into CCPT II with CCPT II surviving the Merger as the Surviving Corporation; and thereupon the separate corporate existence of Spirit will cease, the Surviving Corporation shall possess any and all powers of

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Spirit, and all leases, licenses, property, rights, privileges and powers of whatever nature and description of Spirit shall be transferred to, vested in and devolved upon the Surviving Corporation without further act or deed and the Surviving Corporation shall be liable for all of the debts, liabilities, duties and obligations of Spirit. Except as otherwise specifically provided in these Articles of Merger, consummation of the Merger at the Effective Time shall have the effects set forth in Section 3-114 of the Maryland General Corporation Law.

TENTH: The manner and basis of converting or exchanging issued stock of the merging corporations at the Effective Time, and the treatment of any issued stock of the merging corporations not to be exchanged or converted, as more fully described in the Merger Agreement, are as follows:

At the Effective Time, by virtue of the Merger and without any action on the part of Spirit or CCPT II:

(a) Each share of Spirit Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Spirit Common Stock owned by any wholly owned subsidiary of Spirit, CCPT II or any subsidiary of CCPT II, which will be cancelled), will be converted automatically into the right to receive 1.9048 shares of CCPT II Common Stock (the “Merger Consideration”).

(b) All shares of Spirit Common Stock, when so converted, shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each holder of a certificate or book entry share registered in the transfer books of Spirit that immediately prior to the Effective Time represented shares of Spirit Common Stock shall cease to have any rights with respect to such Spirit Common Stock other than the right to receive the Merger Consideration in accordance with Section 3.3 of the Merger Agreement, including the right, if any, to receive, pursuant to Section 3.7 of the Merger Agreement, cash in lieu of fractional shares of CCPT II Common Stock into which such shares of Spirit Common Stock have been converted (the “Spirit Fractional Share Consideration”), together with the amounts of dividends or other distributions with respect to CCPT II Common Stock, if any, payable pursuant to Section 3.3(d) of the Merger Agreement.

(c) Each share of CCPT II Common Stock issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding and shall not be affected by the Merger except that any certificate or book-entry share representing outstanding fractional shares of CCPT II Common Stock immediately prior to the Effective Time shall be cancelled and converted at the Effective Time into the right to receive cash, without interest, in an amount set forth in Section 3.7 of the Merger Agreement (the “Cole Fractional Share Consideration,” and together with the Spirit Fractional Share Consideration, the “Fractional Share Consideration”).

(d) There are, and at the Effective Time of the Merger there will be, no shares of Spirit Preferred Stock or shares of CCPT II Preferred Stock issued and outstanding.

Upon the Effective Time, the Surviving Corporation shall cause the Merger Consideration, the Fractional Share Consideration and any amounts of dividends or other

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distributions with respect to CCPT II Common Stock, if any, payable pursuant to the Merger Agreement to be deposited, paid and delivered in accordance with the Merger Agreement.

ELEVENTH: The number and names of the directors of CCPT II immediately prior to the Effective Time will be changed in the Merger and at the Effective Time, the Surviving Corporation shall have nine directors and their names will be:

Thomas H. Nolan, Jr.

Kevin M. Charlton

Todd A. Dunn

David J. Gilbert

Richard I. Gilchrist

Diane M. Morefield

Nicholas P. Shepherd

Sheli Rosenberg

Thomas D. Senkbeil

Each such director of the Surviving Corporation will serve until the next annual meeting of stockholders of the Surviving Corporation and until his or her successor is duly elected and qualifies.

TWELFTH: The titles and names of certain officers of CCPT II immediately prior to the Effective Time will be changed in the Merger and at the Effective Time, the names and titles of such officers of the Surviving Corporation will be:

Each such officer of the Surviving Corporation shall serve until his or her successor is elected and qualifies or until his or her death, resignation or removal in the manner provided in the bylaws of the Surviving Corporation.

THIRTEENTH: The Merger shall become effective (the “Effective Time”) as of the later of (i) the time these Articles of Merger are filed with, and accepted for record by, the State

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Department of Assessments and Taxation of Maryland or (ii) at 9:31 a.m. (Eastern Time) on July 17, 2013.

FOURTEENTH: The undersigned Chief Executive Officer of Spirit and the undersigned Chief Executive Officer of CCPT II each acknowledges these Articles of Merger to be the act and deed of the respective entity on behalf of which he has signed, and further, as to all matters or facts required to be verified under oath, each of the undersigned acknowledges that, to the best of his knowledge, information and belief, these matters and facts relating to the entity on whose behalf he has signed are true in all material respects and that this statement is made under the penalties of perjury.

ELEVENTH: These Articles of Merger may be executed in multiple counterparts, with multiple signature pages, each bearing one or more signatures, but all such counterparts and multiple signature pages shall constitute one and the same instrument.

[Signature Page Follows]

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IN WITNESS WHEREOF, Spirit Realty Capital, Inc. and Cole Credit Property Trust II, Inc., have caused these Articles of Merger to be signed in their respective names and on their behalf by the individuals below and attested by the individuals below, as of the      day of July, 2013.

EXHIBIT A

Surviving Corporation Charter

COLE CREDIT PROPERTY TRUST II, INC.

AMENDED AND RESTATED CHARTER

I.

NAME

The name of the Corporation is:

Spirit Realty Capital, Inc.

II.

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 (a “REIT”) under Sections 856 through 860 of 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.

III.

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, 351 West Camden Street, Baltimore, Maryland 21201. The name of the resident agent of the Corporation in the State of Maryland is The Corporation Trust Incorporated, whose post address is 351 West Camden Street, Baltimore, Maryland 21201. The resident agent is a Maryland corporation.

IV.

PROVISIONS FOR DEFINING, LIMITING AND REGULATING CERTAIN POWERS OF THE CORPORATION AND OF THE STOCKHOLDERS AND DIRECTORS

A. 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 is nine (9), which number may be increased or decreased only by the Board of Directors pursuant to the Bylaws of the Corporation (the “Bylaws”), but shall never be less than the minimum number required by the Maryland General Corporation Law (the “MGCL”). The names of the directors who shall serve until their successors are duly elected and qualify are:

Thomas H. Nolan, Jr.

Kevin M. Charlton

Todd A. Dunn

David J. Gilbert

Richard I. Gilchrist

Diane M. Morefield

Nicholas P. Shepherd

Sheli Z. Rosenberg

Thomas D. Senkbeil

The Board of Directors 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 in the manner provided in the Bylaws.

The Corporation elects, at such time as it becomes eligible under Section 3-802 of the MGCL to make the election provided for under Section 3-804(c) of the MGCL, 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 and until a successor is duly elected and qualifies.

B. Extraordinary Actions. Except as specifically provided in Section 4.8 (relating to removal of directors) and in Article VII (relating to certain amendments of the Charter), 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.

C. Authorization by Board of Directors of Stock Issuance. The Board of Directors, without approval of the stockholders of the Corporation, 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 MGCL, the Charter or the Bylaws.

D. Preemptive 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 a contract approved by the Board of Directors, 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 MGCL or any successor statute unless the Board of Directors, upon the affirmative vote of a majority of the Board of Directors, shall determine that such rights apply, with respect to all or any classes or

series of stock, to one or more transactions occurring after the date of such determination in connection with which holders of such shares would otherwise be entitled to exercise such rights.

E. 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 and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity or (b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner, member, manager, trustee, employee or agent of another corporation, real estate investment trust, partnership, limited liability company, 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.

F. Determinations by Board of Directors. 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, 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 cash flow, funds from operations, 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); any interpretation of the terms, preferences, conversion or other rights, voting powers or rights, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of any class or series of stock of the Corporation; 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 or of any shares of stock of the Corporation; the number of shares of stock of any class of 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 or permitted by applicable law, the Charter or Bylaws or otherwise to be determined by the Board of Directors.

G. REIT Qualification. The Board of Directors shall take such actions as it determines 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 one or more of the restrictions or

limitations on stock ownership and transfers set forth in Article VI is no longer required for REIT qualification.

H. Removal of Directors. Subject to the rights of holders of one or more classes or series of Preferred Stock (as defined below) to elect or remove one or more directors, any director, or the entire Board of Directors, may be removed from office at any time, but only for cause and then only by the affirmative vote of at least two-thirds of the votes entitled to be cast generally in the election of directors. For the purpose of this paragraph, “cause” shall mean, with respect to any particular director, conviction of a felony or a final judgment of a court of competent jurisdiction holding that such director caused demonstrable, material harm to the Corporation through bad faith or active and deliberate dishonesty.

V.

STOCK

A. Authorized Shares. The Corporation has authority to issue 490,000,000 shares of stock, consisting of 470,000,000 shares of Common Stock, $0.01 par value per share (“Common Stock”), and 20,000,000 shares of Preferred Stock, $0.01 par value per share (“Preferred Stock”). The aggregate par value of all authorized shares of stock having par value is $4,900,000. If shares of one class of stock are classified or reclassified into shares of another class of stock pursuant to Section 5.2 or Section 5.3 of this Article V, 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, with the approval of a majority of the entire Board and 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.

B. Common Stock. Subject to the provisions of Article VI and except as may otherwise be specified in the Charter, 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 into one or more classes or series of stock.

C. 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, into one or more classes or series of stock.

D. 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 VI 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, including, without limitation, restrictions on transferability, limitations as to

dividends or other distributions, qualifications or terms or 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 5.4 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.

E. Charter and Bylaws. The rights of all stockholders and the terms of all stock are subject to the provisions of the Charter and the Bylaws. The Bylaws may provide that the Board of Directors shall have the exclusive power to adopt, alter or repeal any provision of the Bylaws and to make new Bylaws.

VI.

RESTRICTION ON TRANSFER AND OWNERSHIP OF SHARES

A. Definitions. For the purpose of this Article VI, 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% in value of the aggregate of the outstanding shares of Capital Stock, subject to adjustment from time to time by the Board of Directors in accordance with Section 6.2.8, excluding any such outstanding Capital Stock which is not treated as outstanding for federal income tax purposes. Notwithstanding the foregoing, for purposes of determining the percentage ownership of Capital Stock by any Person, shares of Capital Stock that are treated as Beneficially Owned or Constructively Owned by such Person shall be deemed outstanding. The value of the outstanding shares of Capital Stock shall be determined by the Board of Directors in good faith, which determination shall be conclusive for all purposes hereof.

Beneficial Ownership. The term “Beneficial Ownership” shall mean ownership of shares 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 are actually owned or would be treated as owned through the application of Section 544 of the Code, as modified by Sections 856(h)(1)(B) and 856(h)(3) of the Code. The terms “Beneficial Owner,” “Beneficially Own,” “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 6.3.6, 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.

Common Stock Ownership Limit. The term “Common Stock Ownership Limit” shall mean 9.8% (in value or in number of shares, whichever is more restrictive, and subject to adjustment from time to time by the Board of Directors in accordance with Section 6.2.8) of the aggregate of the outstanding shares of Common Stock of the Corporation, excluding any such outstanding Common Stock which is not treated as outstanding for federal income tax purposes. Notwithstanding the foregoing, for purposes of determining the percentage ownership of Common Stock by any Person, shares of Common Stock that are treated as Beneficially Owned or Constructively Owned by such Person shall be deemed to be outstanding. The number and value of shares of outstanding Common Stock of the Corporation shall be determined by the Board of Directors in good faith, which determination shall be conclusive for all purposes hereof.

Constructive Ownership. The term “Constructive Ownership” shall mean ownership of shares 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 are actually owned or 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 Own,” “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 the Board of Directors pursuant to Section 6.2.7.

Excepted Holder Limit. The term “Excepted Holder Limit” shall mean for each Excepted Holder, the percentage limit established by the Board of Directors for such Excepted Holder pursuant to Section 6.2.7, which limit may be expressed, in the discretion of the Board of Directors, as one or more percentages and/or numbers of shares of Capital Stock, and may apply with respect to one or more classes of Capital Stock or to all classes of Capital Stock in the aggregate, provided that the affected Excepted Holder agrees to comply with any requirements established by the Board of Directors pursuant to Section 6.2.7 and subject to adjustment pursuant to Section 6.2.8.

Individual. The term “Individual” means an individual, a trust qualified under Section 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, or a private foundation within the meaning of Section 509(a) of the Code, provided that, except as set forth in Section 856(h)(3)(A)(ii) of the Code, a trust described in Section 401(a) of the Code and exempt from tax under Section 501(a) of the Code shall be excluded from this definition.

Initial Date. The term “Initial Date” shall mean the date of the closing of the issuance of Common Stock pursuant to the initial public offering of the Corporation.

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 principal automated quotation system on which such Capital Stock is quoted, 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 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.

NYSE. The term “NYSE” shall mean the New York Stock Exchange.

Person. The term “Person” shall mean an Individual, corporation, partnership, limited liability company, estate, trust, association, joint stock company or other entity.

Prohibited Owner. The term “Prohibited Owner” shall mean, with respect to any purported Transfer, any Person who, but for the provisions of Section 6.2.1, 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.

Restriction Termination Date. The term “Restriction Termination Date” shall mean the first day after the Initial Date on which the Board of Directors determines pursuant to Section 4.7 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, or change its level of, 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 Ownership or Constructive Ownership of Capital Stock; in each case, whether voluntary or involuntary, whether owned of record, Beneficially Owned or Constructively Owned and whether by operation of law or otherwise. The terms “Transferring” and “Transferred” shall have the correlative meanings.

Trust. The term “Trust” shall mean any trust provided for in Section 6.3.1.

Trustee. The term “Trustee” shall mean the Person unaffiliated with the Corporation and any Prohibited Owner, that is appointed by the Corporation to serve as trustee of the Trust.

B. Capital Stock.

Without limitation of the application of any other provision of this Article VI, it is expressly intended that the restrictions on ownership and Transfer described in this Section 6.2.1 of Article VI shall apply to restrict the rights of any members or partners in limited liability companies or partnerships to exchange their interest in such entities for shares of Capital Stock of the Corporation.

The shares represented by this certificate are subject to restrictions on Beneficial and Constructive Ownership and Transfer for the purpose 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 Person may Beneficially or Constructively Own shares of the Corporation’s Common Stock in excess of the Common Stock Ownership Limit unless such Person is an Excepted Holder (in which case the Excepted Holder Limit shall be applicable); (ii) no Person may Beneficially or Constructively Own shares of Capital Stock of the Corporation in excess of the Aggregate Stock Ownership Limit, unless such Person 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 set forth in (i) through (iii) above 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 take other actions, including redeeming shares upon the terms and conditions specified by the Board of Directors in its sole and absolute 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, a certificate may state that the Corporation will furnish a full statement about certain restrictions on ownership and transfer of the shares to a stockholder on request and without charge.

C. Transfer of Capital Stock in Trust.

D. NYSE Transactions. Nothing in this Article VI 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 VI and any transferee in such a transaction shall be subject to all of the provisions and limitations set forth in this Article VI.

E. Enforcement. The Corporation is authorized specifically to seek equitable relief, including injunctive relief, to enforce the provisions of this Article VI.

F. 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.

G. Severability. If any provision of this Article VI or any application of any such provision is determined to be invalid by any federal or state court having jurisdiction over the issues, the validity of the remaining provisions shall not be affected and other applications of such provisions shall be affected only to the extent necessary to comply with the determination of such court.

VII.

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 for amendments to Section 4.8 or the next sentence of the Charter and except for those amendments permitted to be made without stockholder approval under Maryland law or by specific provision 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 holders of shares entitled to cast a majority of all the votes entitled to be cast on the matter. However, any amendment to Section 4.8 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 holders of shares entitled to cast at least two-thirds of all the votes entitled to be cast on the matter.

VIII.

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 VIII, nor the adoption or amendment of any other provision of the Charter or Bylaws inconsistent with this Article VIII, 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.

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Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘8-K’ Filing		Date		Other Filings
Filed as of:		7/18/13		4,  8-K,  S-8
Filed on / For Period End:		7/17/13		3,  8-K,  8-K/A,  S-8
		6/12/13		8-K
		1/22/13		425,  8-K,  SC TO-T
		1/21/13
				List all Filings

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4 Subsequent Filings that Reference this Filing

As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/28/23 Spirit Realty Capital, Inc. 10-K 12/31/22 105:47M Donnelley … Solutions/FA 2/22/22 Spirit Realty Capital, Inc. S-8 2/22/22 4:102K Donnelley … Solutions/FA 2/14/22 Spirit Realty Capital, Inc. 10-K 12/31/21 107:41M ActiveDisclosure/FA 2/19/21 Spirit Realty Capital, Inc. 10-K 12/31/20 162:75M Donnelley … Solutions/FA

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Filing Submission 0001193125-13-293250   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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