Exhibit 3.3
COLECREDIT PROPERTY TRUST III
AMENDED AND RESTATED BYLAWS
EFFECTIVE JUNE 19, 2013
ARTICLE I
OFFICES
Section 1.11.PRINCIPAL OFFICE. The principal office ofCole Credit Property Trust III, Inc. (the“Corporation”) in the State of Maryland shall be located at such place as theboardBoard ofdirectorsDirectors may designate from time to time..
Section 1.22.ADDITIONAL OFFICES. The Corporation may have additional offices, including a principal executive office, at such places as theboardBoard ofdirectorsDirectors may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.11.PLACE. All meetings of stockholders shall be held at the principal executive office of the Corporation or at such other place as shall be setby the board of directorsin accordance with these Bylaws and stated in the notice of the meeting.
Section 2.22.ANNUAL MEETING. An annual meeting ofthestockholders for the election of directors and the transaction of any business within the powers of the Corporation shall be held ona date and at the time set by the board of directors during the month of May in each year; provided, however, such meeting shall not be held less than 30 days after delivery of the annual report to stockholders. The purpose of each annual meeting of the stockholders shall be to elect directors of the Corporation and to transact such other business as may properly come before the meeting.the date and at the time and place set by the Board of Directors.
Section 2.3SPECIAL MEETINGS . The chief executive officer, the president, a majority of the board of directors or a majority of the Independent Directors as defined in the Corporation’s charter (the “Charter”), may call special meetings of the stockholders. Special meetings of stockholders shall also be called by the secretary of the Corporation upon the written request of the holders of shares entitled to cast not less than ten percent (10%) of all the votes entitled to be cast at such meeting. Such request shall state the purpose of such meeting and the matters proposed to be acted on at such meeting. The secretary shall, within ten (10) days of his or her receipt of such written request, provide written notice, either in person or by mail, to all stockholders of the Corporation of a meeting and the purpose of such meeting, to be held on a date not less than fifteen nor more than sixty days after the distribution of such notice, at a time and place specified in the request, or if none is specified, at a time and place convenient to the stockholders.
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Section 3. SPECIAL MEETINGS.
(a) General. Each of the chairman of the board, chief executive officer, president and Board of Directors may call a special meeting of stockholders. Except as provided in subsection (b)(4) of this Section 3, a special meeting of stockholders shall be held on the date and at the time and place set by the chairman of the board, chief executive officer, president or Board of Directors, whoever has called the meeting. Subject to subsection (b) of this Section 3, a special meeting of stockholders shall also be called by the secretary of the Corporation to act on any matter that may properly be considered at a meeting of stockholders upon the written request of stockholders entitled to cast not less than a majority of all the votes entitled to be cast on such matter at such meeting.
(b) Stockholder-Requested Special Meetings. (1) Any stockholder of record seeking to have stockholders request a special meeting shall, by sending written notice to the secretary (the “Record Date Request Notice”) by registered mail, return receipt requested, request the Board of Directors to fix a record date to determine the stockholders entitled to request a special meeting (the “Request Record Date”). The Record Date Request Notice shall set forth the purpose of the meeting and the matters proposed to be acted on at it, shall be signed by one or more stockholders of record as of the date of signature (or their agents duly authorized in a writing accompanying the Record Date Request Notice), shall bear the date of signature of each such stockholder (or such agent) and shall set forth all information relating to each such stockholder and each matter proposed to be acted on at the meeting that would be required to be disclosed in connection with the solicitation of proxies for the election of directors in an election contest (even if an election contest is not involved), or would otherwise be required in connection with such a solicitation, in each case pursuant to Regulation 14A (or any successor provision)under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”). Upon receiving the Record Date Request Notice, the Board of Directors may fix a Request Record Date. The Request Record Date shall not precede and shall not be more than ten days after the close of business on the date on which the resolution fixing the Request Record Date is adopted by the Board of Directors. If the Board of Directors, within ten days after the date on which a valid Record Date Request Notice is received, fails to adopt a resolution fixing the Request Record Date, the Request Record Date shall be the close of business on the tenth day after the first date on which a Record Date Request Notice is received by the secretary.
(2) In order for any stockholder to request a special meeting to act on any matter that may properly be considered at a meeting of stockholders, one or more written requests for a special meeting (collectively, the “Special Meeting Request”) signed by stockholders of record (or their agents duly authorized in a writing accompanying the request) as of the Request Record Date entitled to cast not less than a majority of all of the votes entitled to be cast on such matter at such meeting (the “Special Meeting Percentage”) shall be delivered to the secretary. In addition, the Special Meeting Request shall (a) set forth the purpose of the meeting and the matters proposed to be acted on at it (which shall be limited to those lawful matters set forth in the Record Date Request Notice received by the secretary), (b) bear the date of signature of each such stockholder (or such agent) signing the Special Meeting Request, (c) set forth (i) the name and address, as they appear in the Corporation’s books, of each stockholder signing such request (or on whose behalf the Special Meeting Request is signed), (ii) the class, series and number of all shares of stock of the Corporation which are owned (beneficially or of record) by each such stockholder and (iii) the nominee holder for, and
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number of, shares of stock of the Corporation owned beneficially but not of record by such stockholder, (d) be sent to the secretary by registered mail, return receipt requested, and (e) be received by the secretary within 60 days after the Request Record Date. Any requesting stockholder (or agent duly authorized in a writing accompanying the revocation of the Special Meeting Request) may revoke his, her or its request for a special meeting at any time by written revocation delivered to the secretary.
(3) The secretary shall inform the requesting stockholders of the reasonably estimated cost of preparing and mailing or delivering the notice of the meeting (including the Corporation’s proxy materials). The secretary shall not be required to call a special meeting upon stockholder request and such meeting shall not be held unless, in addition to the documents required by paragraph (2) of this Section 3(b), the secretary receives payment of such reasonably estimated cost prior to the preparation and mailing or delivery of such notice of the meeting.
(4) In the case of any special meeting called by the secretary upon the request of stockholders (a “Stockholder-Requested Meeting”), such meeting shall be held at such place, date and time as may be designated by the Board of Directors;provided, however, that the date of any Stockholder-Requested Meeting shall be not more than 90 days after the record date for such meeting (the “Meeting Record Date”); andprovided further that if the Board of Directors fails to designate, within ten days after the date that a valid Special Meeting Request is actually received by the secretary (the “Delivery Date”), a date and time for a Stockholder-Requested Meeting, then such meeting shall be held at 2:00 p.m., local time, on the 90th day after the Meeting Record Date or, if such 90th day is not a Business Day (as defined below), on the first preceding Business Day; andprovided further that in the event that the Board of Directors fails to designate a place for a Stockholder-Requested Meeting within ten days after the Delivery Date, then such meeting shall be held at the principal executive office of the Corporation. In fixing a date for a Stockholder-Requested Meeting, the Board of Directors may consider such factors as it deems relevant, including, without limitation, the nature of the matters to be considered, the facts and circumstances surrounding any request for the meeting and any plan of the Board of Directors to call an annual meeting or a special meeting. In the case of any Stockholder-Requested Meeting, if the Board of Directors fails to fix a Meeting Record Date that is a date within 30 days after the Delivery Date, then the close of business on the 30th day after the Delivery Date shall be the Meeting Record Date. The Board of Directors may revoke the notice for any Stockholder-Requested Meeting in the event that the requesting stockholders fail to comply with the provisions of paragraph (3) of this Section 3(b).
(5) If written revocations of the Special Meeting Request have been delivered to the secretary and the result is that stockholders of record (or their agents duly authorized in writing), as of the Request Record Date, entitled to cast less than the Special Meeting Percentage have delivered, and not revoked, requests for a special meeting on the matter to the secretary: (i) if the notice of meeting has not already been delivered, the secretary shall refrain from delivering the notice of the meeting and send to all requesting stockholders who have not revoked such requests written notice of any revocation of a request for a special meeting on the matter, or (ii) if the notice of meeting has been delivered and if the secretary first sends to all requesting stockholders who have not revoked requests for a special meeting on the matter written notice of any revocation of a request for the special meeting and written notice of the Corporation’s intention to revoke the notice of the meeting or for the chairman of the meeting to adjourn the meeting without action on the matter, (A) the secretary may revoke the
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notice of the meeting at any time before ten days before the commencement of the meeting or (B) the chairman of the meeting may call the meeting to order and adjourn the meeting without acting on the matter. Any request for a special meeting received after a revocation by the secretary of a notice of a meeting shall be considered a request for a new special meeting.
(6) The chairman of the board, chief executive officer, president or Board of Directors may appoint regionally or nationally recognized independent inspectors of elections to act as the agent of the Corporation for the purpose of promptly performing a ministerial review of the validity of any purported Special Meeting Request received by the secretary. For the purpose of permitting the inspectors to perform such review, no such purported Special Meeting Request shall be deemed to have been received by the secretary until the earlier of (i) five Business Days after actual receipt by the secretary of such purported request and (ii) such date as the independent inspectors certify to the Corporation that the valid requests received by the secretary represent, as of the Request Record Date, stockholders of record entitled to cast not less than the Special Meeting Percentage. Nothing contained in this paragraph (6) shall in any way be construed to suggest or imply that the Corporation or any stockholder shall not be entitled to contest the validity of any request, whether during or after such five Business Day period, or to take any other action (including, without limitation, the commencement, prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief in such litigation).
(7) For purposes of these Bylaws, “Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in the State of Arizona are authorized or obligated by law or executive order to close.
Section 2.44.NOTICE . Except as provided in Section 3 of this Article II, not. Not less than ten(10) nor more thanninety90 days before each meeting of stockholders, the secretary shall give to each stockholder entitled to vote at such meeting and to each stockholder not entitled to vote who is entitled to notice of the meetingwritten or printednotice in writing or by electronic transmission stating the time and place of the meeting and, in the case of a special meeting or as otherwise may be required bythe Maryland General Corporation Law (the “MGCL”)any statute, the purpose for which the meeting is called. Notice shall be deemed delivered to a stockholder upon (i), by mail, by presenting it to such stockholder personally,(ii)by leaving it at the stockholder’s residence or usual place of business,(iii) mailing it to the stockholder, (iv) transmitting it to the stockholder by electronic mail to any electronic mail address of the stockholder or by any other electronic means, or (v) deliveryby electronic transmission or by any other means permitted by Maryland law. If mailed, such notice shall be deemed to be given when deposited in the United States mail addressed to the stockholder at the stockholder’s address as it appears on the records of the Corporation, with postage thereon prepaid.If transmitted electronically, such notice shall be deemed to be given when transmitted to the stockholder by an electronic transmission to any address or number of the stockholder at which the stockholder receives electronic transmissions. The Corporation may give a single notice to all stockholders who share an address, which single notice shall be effective as to any stockholder at such address, unless such stockholder objects to receiving such single notice or revokes a prior consent to receiving such single notice. Failure to give notice of any meeting to one or more stockholders, or any irregularity in such notice, shall not affect the validity of any meeting fixed in accordance with this Article II or the validity of any proceedings at any such meeting.
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Subject to Section 1211(a) of this Article II, any business of the Corporation may be transacted at an annual meeting of stockholders without being specifically designated in the notice, except such business as is required bythe MGCLany statute to be stated in such notice. No business shall be transacted at a special meeting of stockholders except as specifically designated in the notice.Section 2.5The Corporation may postpone or cancel a meeting of stockholders by making a public announcement (as defined in Section 11(c)(3) of this Article II) of such postponement or cancellation prior to the meeting. Notice of the date, time and place to which the meeting is postponed shall be given not less than ten days prior to such date and otherwise in the manner set forth in this section.
Section 5.ORGANIZATION AND CONDUCT. Every meeting of stockholders shall be conducted by an individual appointed by theboardBoard ofdirectorsDirectors to be chairman of the meeting or, in the absence of such appointment or appointed individual, by the chairman of the board or, in the case of a vacancy in the office or absence of the chairman of the board, by one of the following officers present at the meeting: in the following order: the vice chairman of the board, if therebeis one,the chief executive officer,the president, the vice presidents in their order of rank and seniority,the secretary,or, in the absence of such officers, a chairman chosen by the stockholders by the vote of a majority of the votes cast by stockholders present in person or by proxy. The secretary, or, in the secretary’s absence, an assistant secretary, or, in the absence of both the secretary and assistant secretaries, an individual appointed by theboardBoard ofdirectorsDirectors or, in the absence of such appointment, an individual appointed by the chairman of the meeting shall act as secretary. In the event that the secretary presides at a meeting of the stockholders, an assistant secretary, or, in the absence ofallassistant secretaries, an individual appointed by theboardBoard ofdirectorsDirectors or the chairman of the meeting, shall record the minutes of the meeting. The order of business and all other matters of procedure at any meeting of stockholders shall be determined by the chairman of the meeting. The chairman of the meeting may prescribe such rules, regulations and procedures and take such action as, in the discretion ofsuchthe chairman and without any action by the stockholders, are appropriate for the proper conduct of the meeting, including, without limitation, (a) restricting admission to the time set for the commencement of the meeting; (b) limiting attendance at the meeting to stockholders of record of the Corporation, their duly authorized proxies andsuch other such individuals as the chairman of the meeting may determine; (c) limiting participation at the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies and other such individuals as the chairman of the meeting may determine; (d) limiting the time allotted to questions or comments by participants; (e) determining whenand for how longthe polls should be opened andwhen the polls should beclosed; (f) maintaining order and security at the meeting; (g) removing any stockholder or any other individual who refuses to comply with meeting procedures, rules or guidelines as set forth by the chairman of the meeting;and(h) concluding a meeting or recessing or adjourning the meeting to a later date and time and at a place announced at the meeting.; and (i) complying with any state and local laws and regulations concerning safety and security.Unless otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
Section 2.66.QUORUM. At any meeting of stockholders, the presence in person or by proxy of stockholders entitled to cast50%a majority of all the votes entitled to be cast at such meeting on any matter shall constitute a quorum; but this section shall not affect any requirement under
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any statute, the Charter or these Bylaws or the charter of the Corporation for the vote necessary for theadoptionapproval of anymeasurematter. If, however, such quorumshallis notbe presentestablished at any meeting of the stockholders, the chairman of the meetingshall have the power tomay adjourn the meetingsine die orfrom time to time to a date not more than 120 days after the original record date without notice other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been transacted at the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting which has been duly called andconvenedat which a quorum has been established, may continue to transact business until adjournment, notwithstanding the withdrawalfrom the meetingof enough stockholders to leavelessfewer than would be required to establish a quorum.
Section 2.77.VOTING . The holders of a majority of shares of stock entitled to vote who are present in person or by proxy. A plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present, may, without the necessity for concurrence by the board of directors, vote shall be sufficient to elect a director. Each sharemay be votedentitles the holder thereof to vote for as many individuals as there are directors to be elected and for whose election theshareholder is entitled tobe votedvote. A majority of the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to approve any other matter which may properly come beforeathe meeting duly called and at which a quorum is present, unless more than a majority of the votes cast is required bythe MGCL,statute or by the Charter or these Bylaws. Unless otherwise provided by statute or by thecharterCharter, each outstanding share, regardless of class,shall be entitled toentitles the holder thereof to cast one vote on each matter submitted to a vote at a meeting of stockholders.Voting on any question or in any election may beviva voce unless the chairman of the meeting shall order that voting be by ballot or otherwise.
Section 2.88.PROXIES.A stockholder may cast the votes entitled to be cast by theA holder of record of shares of stockownedofrecord by the stockholderthe Corporation may cast votes in person or by proxy executed by the stockholder or by the stockholder’s duly authorized agent in any manner permitted by law. Such proxy or evidence of authorization of such proxy shall be filed with the secretary of the Corporation before or at the meeting. No proxy shall be valid more than eleven months after its date unless otherwise provided in the proxy.
Section 2.99.VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in the name of a corporation,limited liability company,partnership,joint venture,trust or other entity, if entitled to be voted, may be voted by the president or a vice president,amanaging member, manager, general partner or trustee thereof, as the case may be, or a proxy appointed by any of the foregoing individuals, unless some other person who has been appointed to vote such stock pursuant to a bylaw or a resolution of the governing body of such corporation or other entity or agreement of the partners of a partnership presents a certified copy of such bylaw, resolution or agreement, in which case such person may vote such stock. Any director orotherfiduciary may vote stock registered inhis or herthe nameasof such person in the capacity of such director or fiduciary, either in person or by proxy.
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Shares of stock of the Corporation directly or indirectly owned by it shall not be voted at any meeting and shall not be counted in determining the total number of outstanding shares entitled to be voted at any given time, unless they are held by it in a fiduciary capacity, in which case they may be voted and shall be counted in determining the total number of outstanding shares at any given time.
TheboardBoard ofdirectorsDirectors may adopt by resolution a procedure by which a stockholder may certify in writing to the Corporation that any shares of stock registered in the name of the stockholder are held for the account of a specified person other than the stockholder. The resolution shall set forth the class of stockholders who may make the certification, the purpose for which the certification may be made, the form of certification and the information to be contained in it; if the certification is with respect to a record date or closing of the stock transfer books, the time after the record dateor closing of the stock transfer bookswithin which the certification must be received by the Corporation; and any other provisions with respect to the procedure which theboardBoard ofdirectorsDirectors considers necessary or desirable. On receipt by the Corporation of such certification, the person specified in the certification shall be regarded as, for the purposes set forth in the certification, thestockholderholder of record of the specified stock in place of the stockholder who makes the certification.
Section 2.1010.INSPECTORS.The board of directors or the chairman of the meeting, in advance of any meeting, may, but need not,The Board of Directors or the chairman of the meeting may appoint, before or at the meeting, one or moreindividual inspectors or one or more entities that designate individuals as inspectors to act at the meeting or any adjournment thereof. If an inspector or inspectors are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the board of directors in advance of the meeting or at the meeting by the chairman of the meeting. Theinspectors for the meeting and any successor to the inspector. Except as otherwise provided by the chairman of the meeting, the inspectors, if any, shall(i) determine the number of sharesoutstanding and the voting power of each, the sharesof stock represented at the meeting,the existence of a quorum,in person or by proxy, and the validity and effect of proxies,and shall(ii) receiveand tabulate allvotes, ballots or consents,(iii) report such tabulation to the chairman of the meeting, (iv) hear and determine all challenges and questions arising in connection with the right to vote,count and tabulate all votes, ballots or consents,determine the result,and (v) do such acts as are proper tofairlyconduct the election or vote with fairness to all stockholders. Each such report shall be in writing and signed byhim or herthe inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall beprima facie evidence thereof.
Section 2.11 CONTROL SHARE ACQUISITION ACT . Notwithstanding any other provision of the Charter or these Bylaws, Title 3, Subtitle 7 of the MGCL (or any successor statute) shall not apply to any acquisition by Cole Capital Advisors, Inc. or any affiliate of Cole Capital Advisors, Inc., of shares of stock of the Corporation. This section may be repealed, in whole or in part by a majority of the board of directors, at any time, whether before or after an acquisition of “control shares,” as such term is defined in the MGCL, and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.
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Section 2.12 NOMINATIONS AND
Section 11. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDERBUSINESS.PROPOSALS.
(a)Annual Meetings of Stockholders. (1) Nominations of individuals for election to theboardBoard ofdirectorsDirectors and the proposal ofotherbusiness to be considered by the stockholders may be made at an annual meeting of stockholders (Ai) pursuant to the Corporation’s notice ofsuchmeeting, (Bii) by or at the direction of theboardBoard ofdirectors;Directors or (Ciii) by any stockholder of the Corporation who (i) was a stockholder of record both at the time of giving of noticeby the stockholder asprovided for in this Section 1211(a) and at the time of the annual meeting in question,(ii)who is entitled to vote atsuch meeting; and (iii)the meeting in the election of each individual so nominated or on any such other business and who has complied withthe notice procedures set forth inthis Section 1211(a).
(2) Fornominationsany nomination or other business to be properly broughtatbefore an annual meeting by a stockholder pursuant tothis paragraph (a)(2) orclause (iii) of paragraph (a)(1) of this Section 12,11, the stockholder mustgivehave given timely notice thereof in writing to the secretary of the Corporation.and any such other business must otherwise be a proper matter for action by the stockholders.To be timely, a stockholder’s notice shallset forth all information required under this Section 11 and shallbe delivered to theSecretarysecretary at the principal executive office of the Corporation notlessearlier than120 daysthe 150th day normorelater than150 days5:00 p.m., Pacific Time, on the 120th day prior to the first anniversary of the date ofmailing of the noticethe proxy statement (as defined in Section 11(c)(3) of this Article II) for the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced or delayed by more than 30 days from the first anniversary of the date of the preceding year’s annual meeting,in order fornotice by the stockholder to be timely, such notice must be so delivered not earlier than the 150th day prior to the date of such annual meeting and not later thanthe close of business5:00 p.m., Pacific Time, on the later of the 120th day prior to the date of such annual meeting, as originally convened, or the10thtenth day following the day on whichdisclosurepublic announcement of the date of such meeting is first made.In no event shall the The public announcement of a postponement or adjournment of an annual meetingshall notcommence a new time period for the giving of a stockholder’s notice as described above.
(3)Such stockholder’s notice shall set forth:
(Ai) as to each individual whom the stockholder proposes to nominate for election or reelection as a director (i) the name, age, business address, and residence address of such individual; (ii) the class and number of shares of stock of the Corporation that are beneficially owned by such individual; and (iii) all othereach, a “Proposed Nominee”), all information relating tosuch individualthe Proposed Nominee thatiswould be required to be disclosed insolicitationsconnection with the solicitation of proxies forthe election ofdirectorsthe Proposed Nominee as a director in an election contest (even if an election contest is not involved), oriswould otherwiseberequired in connection with such solicitation, in each case pursuant to Regulation 14Aunder the Securities Exchange Act of 1934, as amended (or any successor provision) underthe“Exchange Act”) (including such individual’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);Exchange Act;
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(Bii) as to any other business that the stockholder proposes to bring before the meeting,(i) a briefa description ofthesuch business desired to be brought before the meeting, (ii), thestockholder’s reasons forconductingproposing such business at the meeting, and (iii) any material interest in such business of such stockholderandor any Stockholder Associated Person (as defined below), individually or in the aggregate, including any anticipated benefit to the stockholderandor the Stockholder Associated Person therefrom;
(Ciii) as to the stockholder giving the notice, any Proposed Nominee and any Stockholder Associated Person,
(iA) the class, series and number of all shares of stockor other securities of the Corporationor any affiliate thereof (collectively, the “Company Securities”), if any, which are owned(beneficially or of record)by such stockholder and by such, Proposed Nominee or Stockholder Associated Person,if any, and (ii) the date on which each such Company Security was acquired and the investment intent of such acquisition, and any short interest (including any opportunity to profit or share in any benefit from any decrease in the price of such stock or other security) in any Company Securities of any such person,
(B)the nominee holder for, and number of,sharesany Company Securities owned beneficially but not of record by such stockholder, Proposed Nominee or Stockholder Associated Person,and by any such Stockholder Associated Person;
(C) any substantial interest, direct or indirect (including, without limitation, any existing or prospective commercial, business or contractual relationship with the Corporation), by security holdings or otherwise, of such stockholder, Proposed Nominee or Stockholder Associated Person, in the Corporation or any affiliate thereof, other than an interest arising from the ownership of Company Securities where such stockholder, Proposed Nominee or Stockholder Associated Person receives no extra or special benefit not shared on apro rata basis by all other holders of the same class or series;
(Div) as to the stockholder giving the notice and, any Stockholder Associated Personcovered bywith an interest or ownership referred to in clauses (Bii) or (Ciii) of this paragraph (23) of this Section 1211(a) and any Proposed Nominee,
(A)the name and address of such stockholder, as they appear on the Corporation’s stock ledger, and the current nameand business address, if different,and the name and address of suchof each such Stockholder Associated Person and any Proposed Nominee and
(B) the investment strategy or objective, if any, of such stockholder and each such Stockholder Associated Person who is not an individual and a copy of the prospectus, offering memorandum or similar document, if any, provided to investors or potential investors in such stockholder and each such Stockholder Associated Person;
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(v) the name and address of any person who contacted or was contacted by the stockholder giving the notice or anyStockholder Associated Person about the Proposed Nominee or other business proposal prior to the date of such stockholder’s notice; and
(Evi) to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the nominee for electionofor reelection as a director or the proposal of other business on the date of such stockholder’s notice.
(4) Such stockholder’s notice shall, with respect to any Proposed Nominee, be accompanied by a certificate executed by the Proposed Nominee (i) certifying that such Proposed Nominee (a) is not, and will not become, a party to any agreement, arrangement or understanding with any person or entity other than the Corporation in connection with service or action as a director that has not been disclosed to the Corporation and (b) will serve as a director of the Corporation if elected; and (ii) attaching a completed Proposed Nominee questionnaire (which questionnaire shall be provided by the Corporation, upon request, to the stockholder providing the notice and shall include all information relating to the Proposed Nominee that would be required to be disclosed in connection with the solicitation of proxies for the election of the Proposed Nominee as a director in an election contest (even if an election contest is not involved), or would otherwise be required in connection with such solicitation, in each case pursuant to Regulation 14A (or any successor provision) under the Exchange Act and the rules thereunder, or would be required pursuant to the rules of any national securities exchange on which any securities of the Corporation are listed or over-the-counter market on which any securities of the Corporation are traded).
(3 (5) Notwithstanding anything inthe second sentence of paragraph (a)(2this subsection (a) of this Section 1211 to the contrary, in the event that the number of directors to be elected to theboardBoard ofdirectorsDirectors is increased, and there is no public announcementnaming all of the nominees for directors or specifying the size of the increased board of directors made by the Corporationof such action at least 130 days prior to the first anniversary of the date ofmailing of the noticethe proxy statement (as defined in Section 11(c)(3) of this Article II) for the preceding year’s annual meeting, a stockholder’s notice required by this Section 1211(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to theSecretarysecretary at the principal executiveofficesoffice of the Corporationnonot later thanthe close of business5:00 p.m., Pacific Time, on the10thtenth day following the day on which such public announcement is first made by the Corporation.
(4 (6) For purposes of this Section 12,11, “Stockholder Associated Person” of any stockholder shall mean (i) any personcontrolling, directly or indirectly, oracting in concert with, such stockholder, (ii) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder(other than a stockholder that is a depositary)and (iii) any personcontrolling,that directly, or indirectly through one or more intermediaries, controls, or is controlled by, oris under common control with, such stockholder or such Stockholder Associated Person.
(b)Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice ofsaidmeeting. Nominations of individuals for election to theboardBoard of
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directorsDirectors may be made at a special meeting of stockholders at which directors are to be electedonly(i) pursuant to the Corporation’s notice of said meeting, (ii) by or at the direction of theboardBoard ofdirectors,Directors or (iiiii) providedthe board of directors has determined that directors shall be elected at suchthat the special meeting has been called in accordance with Section 3(a) of this Article II for the purpose of electing directors, by any stockholder of the Corporation who (A) is a stockholder of record both at the time of giving of notice provided for in this Section 12(b)11 and at the time of the special meeting,(B)who is entitled to vote at the meeting, and (C) in the election of each individual so nominated and who has complied with the notice procedures set forth in this Section 12(b).11.In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or moredirectorsindividuals to theboardBoard ofdirectorsDirectors, any such stockholder may nominate an individual or individuals (as the case may be) for electionto such positionas a director as specified in the Corporation’s notice of meeting, if the stockholder’s notice, containing the information required byparagraphparagraphs (a)(23) and (4) of this Section 12 shall be11, is delivered to theSecretarysecretary at the principal executiveofficesoffice of the Corporation not earlier than the150th day prior to such special meeting and not later than the close of business on the later of the120th day prior to such special meetingand not later than 5:00 p.m., Pacific Time, on the later of the 90th day prior to such special meetingor the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by theboardBoard ofdirectorsDirectors to be elected at such meeting.In no event shall the The public announcement of a postponement or adjournment of a special meetingshall notcommence a new time period for the giving of a stockholder’s notice as described above.
(c)General.(1) Upon written request by the secretary or the board of directors or any committee thereof, (1) If information submitted pursuant to this Section 11 by any stockholder proposing a nominee for election as a director or any proposal for other business at a meeting of stockholders shallprovide, within five business daysbe inaccurate in any material respect, such information may be deemed not to have been provided in accordance with this Section 11. Any such stockholder shall notify the Corporation of any inaccuracy or change (within two Business Days of becoming aware of such inaccuracy or change) in any such information. Upon written request by the secretary or the Board of Directors, any such stockholder shall provide, within five Business Days of delivery of such request (or such other period as may be specified in such request), (A) written verification, satisfactory, in the discretion of theboard of directors or any committee thereofBoard of Directors or any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by the stockholder pursuant to this Section 12.11, and (B) a written update of any information (including, if requested by the Corporation, written confirmation by such stockholder that it continues to intend to bring such nomination or other business proposal before the meeting) submitted by the stockholder pursuant to this Section 11 as of an earlier date.If a stockholder fails to provide such written verification or written update within such period, the information as to which written verificationor a written updatewas requested may be deemed not to have been provided in accordance with this Section 12.11.
(2) Only suchpersonsindividuals who are nominated in accordance withthe procedures set forth inthis Section 1211 shall be eligibleto servefor election by stockholders as directors, and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance withthe procedures set forth inthis Section 12.11.Thepresiding officerchairman of the meeting shall have the power to determine whether a nomination or anyother
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business proposed to be brought before the meeting was madeor proposed, as the case may be,in accordance withthe procedures set forth in this Section 12, and, if any proposed nomination or business is not in compliance with this Section 12, to declare that such defective nomination or proposal, if any, be disregarded.this Section 11.
(3) For purposes of this Section 12, (i) 11, “the“date ofmailing ofthenoticeproxy statement” shallmean the date of the proxy statement for the solicitation of proxies for election of directors and (ii) “publichave the same meaning as “the date of the company’s proxy statement released to shareholders” as used in Rule 14a-8(e) promulgated under the Exchange Act, as interpreted by the Securities and Exchange Commission from time to time. “Public announcement” shall mean disclosure(A) in a press release reported by the Dow Jones News Service, Associated Press or comparable, Business Wire, PR Newswire or other widely circulated newsor wireservice or(B) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant toSections 13, 14 or 15(d) ofthe Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 12,11, a stockholder shall also comply with all applicable requirements of state law andofthe Exchange Act and the rules and regulationspromulgatedthereunder with respect to the matters set forth in this Section 12.11.Nothing in this Section 1211 shall be deemed to affect anyrightsright ofstockholdersa stockholder to request inclusion ofproposalsa proposal in,noror the right of the Corporation to omitproposalsa proposal from,the Corporation’sany proxy statementfiled by the Corporation with the Securities and Exchange Commissionpursuant to Rule 14a-8under(or any successor provision) under the Exchange Act. Nothing in this Section 11 shall require disclosure of revocable proxies received by the stockholder or Stockholder Associated Person pursuant to a solicitation of proxies after the filing of an effective Schedule 14A by such stockholder or Stockholder Associated Person under Section 14(a) of the Exchange Act.
Section 2.13 VOTING BY BALLOT . Voting on any question or in any election may be viva voce unless the presiding officer shall order, or any stockholder shall demand, that voting be by ballot
Section 12. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of the Charter or these Bylaws, Title 3, Subtitle 7 of the Maryland General Corporation Law, or any successor statute (the “MGCL”), shall not apply to any acquisition by any person of shares of stock of the Corporation. This section may be repealed, in whole or in part, at any time, whether before or after an acquisition of control shares and, upon such repeal, may, to the extent provided by any successor bylaw, apply to any prior or subsequent control share acquisition.
Section 13. STOCKHOLDERS’ CONSENT IN LIEU OF MEETING. Any action required or permitted to be taken at any meeting of stockholders may be taken without a meeting (a) if a unanimous consent setting forth the action is given in writing or by electronic transmission by each stockholder entitled to vote on the matter and filed with the minutes of proceedings of the stockholders or (b) if the action is advised, and submitted to the stockholders for approval, by the Board of Directors and a consent in writing or by electronic transmission of stockholders entitled to cast not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting of stockholders is delivered to the Corporation in accordance with the MGCL. The Corporation shall give notice of any action taken by less than unanimous consent to each stockholder not later than ten days after the effective time of such action.
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ARTICLE III
DIRECTORS
Section 3.11.GENERAL POWERS. The business and affairs of the Corporation shall be managed under the direction of itsboardBoard ofdirectorsDirectors.
Section 3.22.NUMBER, TENURE ANDQUALIFICATIONS .boardBoard ofdirectorsDirectors may establish, increase or decrease the number of directors, provided that except as provided in the Charter, the number thereof shall never be less than the minimum number required by theMGCL or the Charter, whichever is greaterMaryland General Corporation Law (the “MGCL”), nor more than 15, and further provided that the tenure of office of a director shall not be affected by any decrease in the number of directors.Any director of the Corporation may resign at any time by delivering his or her resignation to the Board of Directors, the chairman of the board or the secretary. Any resignation shall take effect immediately upon its receipt or at such later time specified in the resignation. The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in the resignation.
Section 3.33.ANNUAL AND REGULAR MEETINGS. An annual meeting of theboardBoard ofdirectorsDirectors shall be held immediately after and at the same place as the annual meeting of stockholders, no notice other than this Bylaw being necessary. In the event such meeting is not so held, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of theboardBoard ofdirectorsDirectors. TheboardBoard ofdirectorsDirectors may provide, by resolution, the time and place for the holding of regular meetings of theboard of directors, either within or without the State of Maryland,Board of Directors without other notice than such resolution.
Section 3.44.SPECIAL MEETINGS. Special meetings of theboardBoard ofdirectorsDirectors may be called by or at the request of the chairman of the board, the chief executive officer, the president or by a majority of the directors then in office. The person or persons authorized to call special meetings of theboardBoard ofdirectorsDirectors may fix any place as the place for holding any special meeting of theboardBoard ofdirectorsDirectors called by them. TheboardBoard ofdirectorsDirectors may provide, by resolution, the time and place for the holding of special meetings of theboardBoard ofdirectorsDirectors without other notice than such resolution.
Section 3.55.NOTICE. Notice of any special meeting of theboardBoard ofdirectorsDirectors shall be delivered personally or by telephone, electronic mail, facsimile transmission,courier orUnited States mailor courierto each director at his or her business or residence address. Notice by personal delivery, telephone, electronic mail or facsimile transmission shall be given at least 24 hours prior to the meeting. Notice by United States mail shall be given at least three days prior to the
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meeting. Notice by courier shall be given at least two days prior to the meeting. Telephone notice shall be deemed to be given when the director or his or her agent is personally given such notice in a telephone call to which the director or his or her agent is a party. Electronic mail notice shall be deemed to be given upon transmission of the message to the electronic mail address given to the Corporation by the director. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Corporation by the director and receipt of a completed answer-back indicating receipt. Notice by United States mail shall be deemed to be given when deposited in the United States mail properly addressed, with postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or delivered to a courier properly addressed. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of theboardBoard ofdirectorsDirectors need be stated in the notice, unless specifically required by statute or these Bylaws.
Section 3.66.QUORUM. A majority of the directors shall constitute a quorum for transaction of business at any meeting of theboardBoard ofdirectorsDirectors, provided that, if less than a majority of such directorsareis present atsaidsuch meeting, a majority of the directors present may adjourn the meeting from time to time without further notice, and provided further that if, pursuant to applicable law, the Charter or these Bylaws, the vote of a majorityor other percentageof a particular group of directors is required for action, a quorum must also include a majorityor such other percentageof such group.
The directors present at a meeting which has been duly called andconvenedat which a quorum has been established may continue to transact business until adjournment, notwithstanding the withdrawalfrom the meetingof enough directors to leavelessfewer thanrequired to establisha quorum.
Section 3.77.VOTING.(a) The action ofthea majority of the directors present at a meeting at which a quorum is present shall be the action of theboardBoard ofdirectorsDirectors, unless the concurrence of a greater proportion is required for such action by applicable law, thecharterCharter or these Bylaws. If enough directors have withdrawn from a meeting to leavelessfewer thanrequired to establisha quorum, but the meeting is not adjourned, the action of the majority of that number of directors necessary to constitute a quorum at such meeting shall be the action of theboardBoard ofdirectorsDirectors, unless the concurrence of a greater proportion is required for such action by applicable law, the charter or these Bylaws.
(b) Any action pertaining to any transaction in which the Corporation is purchasing, selling, leasing or mortgaging any real estate asset, making a joint venture investment or engaging in any other transaction in which an advisor, director or officer of the Corporation, any affiliated lessee or affiliated contract manager of any property of the Corporation, or any affiliate of the foregoing, has any direct or indirect interest other than as a result of their status as a director, officer, or stockholder of the Corporation, shall be approved by the affirmative vote of a majority of the Independent Directors, even if the Independent Directors constitute less than a quorum.
Section 3.88.ORGANIZATION. At each meeting of theboardBoard ofdirectorsDirectors, the chairman of the board or, in the absence of the chairman, the vice chairman of the board, if any, shall act as chairman of the meeting. In the absence of both the chairman and vice chairman of the board, the chief executive officer or, in the absence of the chief executive officer, the president or, in the absence of the president, a director chosen by a majority of the directors present,
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shall act as chairman of the meeting. The secretary or, in his or her absence, an assistant secretary of the Corporation, or, in the absence of the secretary and all assistant secretaries, an individual appointed by theChairmanchairman of the meeting, shall act as secretary of the meeting.
Section 3.99.TELEPHONE MEETINGS. Directors may participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 3.1010.CONSENT BY DIRECTORS WITHOUT A MEETING. Any action required or permitted to be taken at any meeting of theboardBoard ofdirectorsDirectors may be taken without a meeting, if a consent in writing or by electronic transmission to such action is given by each director and is filed with the minutes of proceedings of theboardBoard ofdirectors.Directors.
Section 3.11 11.VACANCIES.REMOVAL;
(a) At any meeting of stockholders called expressly, but not necessarily solely, for that purpose, any director or the entire board of directors may be removed, with our without cause, by a vote of the holders of a majority of the shares then entitled to vote on the election of directors. (b) If for any reason any or all the directors cease to be directors, such event shall not terminate the Corporation or affect these Bylaws or the powers of the remaining directors hereunder (even if fewer than three directors remain). Until such time as the Corporation becomes subject to Section 3-804(c) of the MGCL, any vacancy on the board of directors for any cause other than an increase in the number of directors shall be filled by a majority of the remaining directors, even if such majority is less than a quorum; any vacancy in the number of directors created by an increase in the number of directors may be filled by a majority vote of the entire board of directors; and any individual so elected as director shall serve until the next annual meeting of stockholders and until his or her successor is elected and qualifies. At such time as the Corporation becomes subject to Section 3-804(c) of the MGCL and except. Except as may be provided by theboardBoard ofdirectorsDirectors in setting the terms of any class or series of preferred stock, any vacancy on theboardBoard ofdirectorsDirectors may be filled only by a majority of the remaining directors, even if the remaining directors do not constitute a quorum, and any. Any director elected to fill a vacancy shall serve for the remainder of the full term of thedirectorshipclass in which the vacancy occurred and until a successor is elected and qualifies. Notwithstanding the foregoing, a majority of the Independent Directors shall nominate replacements for vacancies among the Independent Directors’ positions.
Section 3.1212.COMPENSATION. Directors shall not receive any stated salary for their services as directors but, by resolution of theboardBoard ofdirectorsDirectors, may receive compensation per yearor per month, fixed sumsand/or per meeting and/or per visit to real property or other facilities owned or leased by the Corporation and for any service or activity they performed or engaged in as directors. Directors may be reimbursed for expenses of attendance, if any, at each annual, regular or special meeting of theboardBoard ofdirectorsDirectors or of any committee thereof and for their expenses, if any, in connection with each property visit and any other service or activity theyperformedperform orengagedengage in as directors; but nothing herein contained shall be construed to preclude any directors from serving the Corporation in any other capacity and receiving compensation therefor.
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Section 3.13 LOSS OF DEPOSITS . No director shall be liable for any loss which may occur by reason of the failure of the bank, trust company, savings and loan association, or other institution with whom moneys or stock have been deposited.
Section 3.14 SURETY BONDS . Unless required by law, no director shall be obligated to give any bond or surety or other security for the performance of any of his or her duties.
Section 3.1513.RELIANCE. Each director,and officer, employee and agent of the Corporation shall, in the performance of his or her duties with respect to the Corporation, befully justified and protected with regard to any act or failure to act in reliance in good faith upon the books of account or other records of the Corporation, upon an opinion of counsel or upon reports made to the Corporation by any of its officers or employees or by the adviser, accountants, appraisers or other experts or consultants selected by the board of directors or officers of the Corporation, regardless of whether such counsel or expert may also be a director.entitled to rely on any information, opinion, report or statement, including any financial statement or other financial data, prepared or presented by an officer or employee of the Corporation whom the director or officer reasonably believes to be reliable and competent in the matters presented, by a lawyer, certified public accountant or other person, as to a matter which the director or officer reasonably believes to be within the person’s professional or expert competence, or, with respect to a director, by a committee of the Board of Directors on which the director does not serve, as to a matter within its designated authority, if the director reasonably believes the committee to merit confidence.
Section 14. RATIFICATION. The Board of Directors or the stockholders may ratify and make binding on the Corporation any action or inaction by the Corporation or its officers to the extent that the Board of Directors or the stockholders could have originally authorized the matter. Moreover, any action or inaction questioned in any stockholders’ derivative proceeding or any other proceeding on the ground of lack of authority, defective or irregular execution, adverse interest of a director, officer or stockholder, non-disclosure, miscomputation, the application of improper principles or practices of accounting or otherwise, may be ratified, before or after judgment, by the Board of Directors or by the stockholders, and if so ratified, shall have the same force and effect as if the questioned action or inaction had been originally duly authorized, and such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned action or inaction.
Section 3.1615.CERTAIN RIGHTS OF DIRECTORS, AND OFFICERS, EMPLOYEES AND AGENTS . The directors. A director who is not also an officer of the Corporation shall have no responsibility to devotetheirhis or her full time to the affairs of the Corporation. Any director or officer,employee or agent of the Corporation,in his or her personal capacity or in a capacity as an affiliate, employee, or agent of any other person, or otherwise, may have business interests and engage in business activities similar to, in addition to or in competition with those of or relating to the Corporation, subject to any restrictions set forth in the Charter..
Section 3.17 PRESUMPTION OF ASSENT . A director of the Corporation who is present at any meeting of the board of directors at which action on any matter is taken shall be presumed to have assented to the action unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file a written dissent to such action with the individual acting as secretary of the meeting before the adjournment thereof, or shall forward any dissent by certified or registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.
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Section 16. EMERGENCY PROVISIONS. Notwithstanding any other provision in the Charter or these Bylaws, this Section 16 shall apply during the existence of any catastrophe, or other similar emergency condition, as a result of which a quorum of the Board of Directors under Article III of these Bylaws cannot readily be obtained (an “Emergency”). During any Emergency, unless otherwise provided by the Board of Directors, (i) a meeting of the Board of Directors or a committee thereof may be called by any director or officer by any means feasible under the circumstances; (ii) notice of any meeting of the Board of Directors during such an Emergency may be given less than 24 hours prior to the meeting to as many directors and by such means as may be feasible at the time, including publication, television or radio; and (iii) the number of directors necessary to constitute a quorum shall be one-third of the entire Board of Directors.
ARTICLE IV
COMMITTEES
Section 4.11.NUMBER, TENURE AND QUALIFICATIONS. Theboard of directors may, by a resolution adopted by a majority of the entire board of directors, designateBoard of Directors may appoint from among its members an Executive Committee, an Audit Committee,a Compensation Committee, aLeasingCorporate Governance and Nominating Committee, andany other committee it deems appropriate and in the best interest of the Corporation. Each committee shall beother committees, composed of one or more directors, to serve at the pleasure of theboard of directors. The members of the Audit Committee and the Compensation Committee shall at all times consist solely of Independent Directors, and the majority of the members of all committees shall be Independent Directors.Board of Directors.
Section 4.2 Section 2. POWERS. The Board of Directors may delegate to committees appointed under Section 1 of this Article any of the powers of the Board of Directors, except as prohibited by law.POWERS . Subject to the limitations contained herein and the limitations contained in the resolution establishing such committee, to the extent permitted by law, the Executive Committee shall have and may exercise all of the authority of the board of directors in the management of the business and affairs of the Corporation. Each other committee, to the extent expressly provided for in the resolution establishing such committee and except as prohibited by law, shall have and may exercise all of the authority of the board of directors in such other matters and affairs concerning the Corporation. Notwithstanding the foregoing, no committee shall have the authority of the board of directors to fix the compensation of any committee member.
Section 4.33.MEETINGS. Notice of committee meetings shall be given in the same manner as notice for specialor regularmeetings of theboard of directors, as applicable.Board of Directors.A majority of the members of the committee shall constitute a quorum for the transaction of business at any meeting of the committee. The act of a majority of the committee members present at a meeting shall be the act of such committee. TheboardBoard ofdirectorsDirectors may designate a chairman of any committee, and such chairman or, in the absence of a chairman, any two members of any committee (if there are at least two members of the committee) may fix the time and place of its meeting unless theboard of directorsBoard shall otherwise provide. In the absence of any member of any such committee, the members thereof present at any meeting, whether or not they constitute a quorum, may appoint another director to act in the place of such absent member. Each committee shall keep minutes of its proceedings.
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Section 4.44.TELEPHONE MEETINGS. Members of a committee of theboardBoard ofdirectorsDirectors may participate in a meeting by means of a conference telephone or other communications equipment if all persons participating in the meeting can hear each other at the same time. Participation in a meeting by these means shall constitute presence in person at the meeting.
Section 4.55.CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted to be taken at any meeting of a committee of theboardBoard ofdirectorsDirectors may be taken without a meeting, if a consent in writing or by electronic transmission to such action is given by each member of the committee and is filed with the minutes of proceedings of such committee.
Section 4.66.VACANCIES. Subject to the provisions hereof, theboardBoard ofdirectorsDirectors shall have the power at any time to change the membership of any committee, to fillall vacanciesany vacancy, to designateanalternatemembersmember to replace any absent or disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
Section 5.11.GENERAL PROVISIONS. The officers of the Corporation shall includea president, a secretary and a treasurer and may include a chairman of the board, a vice chairman of the board, a chief executive officer, one or more vice presidents, a chief operating officer, a chief financial officer, one or more assistant secretaries and one or more assistant treasurers. In addition, theboardBoard ofdirectorsDirectors may from time to time elect such other officers with such powers and duties as it shall deem necessary or desirable. The officers of the Corporation shall be elected annually by theboardBoard ofdirectorsDirectors, except that the chief executive officer or president may from time to time appoint one or more vice presidents, assistant secretaries and assistant treasurers or other officers.If an election of officers shall not be held at such meeting, such election shall be held as soon thereafter as may be convenient. Each officer shallhold officeserve until his or her successor is elected and qualifies or until his or her death, or his or her resignation or removal in the manner hereinafter provided.In its discretion, the board of directors may leave unfilled any office except that of president, treasurer and secretary. Any two or more offices except president and vice president may be held by the sameindividualperson. Election of an officer or agent shall not of itself create contract rights between the Corporation and such officer or agent.
Section 5.22.REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be removed, with or without cause, by theboardBoard ofdirectorsDirectors if in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. Any officer of the Corporation may resign at any time bygiving written notice ofdelivering his or her resignation to theboardBoard ofdirectorsDirectors, the chairman of the board, thechief executive officer, thepresident or the secretary. Any resignation shall take effect immediately upon its receipt or at such later time specified in thenotice ofresignation. The acceptance of a resignation shall not be necessary to make it effective unless otherwise stated in the resignation. Such resignation shall be without prejudice to the contract rights, if any, of the Corporation.
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Section 5.3 VACANCIES. A vacancy in any office may be filled by the board of directors for the balance of the term.
Section 5.4 CHIEF EXECUTIVE OFFICER . Unless otherwise designated by the board of directors, the president shall also be the chief executive officer. The chief executive officer shall be the highest ranking executive officer of the Corporation and, subject to the supervision of the board of directors, shall have all authority and power with respect to, and shall be responsible for, the general management of the business, financial affairs, and day-to-day operations of the Corporation, including, but not limited to: (i) the supervision and management of all other executive officers; (ii) the development of the Corporation’s long-range strategic plan and the annual operating plan; (iii) the engagement, retention and termination of employees and independent contractors of the Corporation, the setting of the compensation and other material terms of employment or engagement of employees and independent contractors, and the establishment of work rules for employees; (iv) the representation of the Corporation at any business or financial meeting or presentation with stockholders, lenders, affiliates, strategic or joint venture partners, financial institutions, underwriters, analysts and any other entity with which the Corporation does business; and (v) the initiation, development, and implementation of new business, markets and technologies. The chief executive officer shall see that all orders and resolutions of the board of directors are carried into effect and shall perform such other duties and have such other authority and powers as the Board may from time to time prescribe. At the request of the chief executive officer, or in case of his or her absence or inability to act, unless otherwise directed by the board of directors, the president shall perform the duties of the chief executive officer and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the chief executive officer. Additionally, in the event that the Corporation has both a president and a chief executive officer, any powers or duties conferred upon the president in these Bylaws shall concurrently be conferred upon the chief executive officer, and in such event the powers granted to the president shall be subject to the exercise of such powers or duties by the chief executive officer.
Section 3. VACANCIES. A vacancy in any office may be filled by the Board of Directors for the balance of the term.
Section 4. CHAIRMAN OF THE BOARD. The Board of Directors may designate from among its members a chairman of the board, who shall not, solely by reason of these Bylaws, be an officer of the Corporation. The Board of Directors may designate the chairman of the board as an executive or non-executive chairman. The chairman of the board shall preside over the meetings of the Board of Directors. The chairman of the board shall perform such other duties as may be assigned to him or her by these Bylaws or the Board of Directors.
Section 5. CHIEF EXECUTIVE OFFICER. The Board of Directors may designate a chief executive officer. In the absence of such designation, the chairman of the board shall be the chief executive officer of the Corporation. The chief executive officer shall have general responsibility for implementation of the policies of the Corporation, as determined by the Board of Directors, and for the management of the business and affairs of the Corporation. He or she may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of chief executive officer and such other duties as may be prescribed by the Board of Directors from time to time.
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Section 5.56.CHIEF OPERATING OFFICER. TheboardBoard ofdirectorsDirectors may designate a chief operating officer. The chief operating officer shall have the responsibilities and duties asset forthdetermined by theboardBoard ofdirectorsDirectors or the chief executive officer.
Section 5.67.CHIEF FINANCIAL OFFICER. TheboardBoard ofdirectorsDirectors may designate a chief financial officer. The chief financial officer shall have the responsibilities and duties asset forthdetermined by theboardBoard ofdirectorsDirectors or the chief executive officer.
Section 5.7 CHAIRMAN OF THE BOARD . The board of directors shall designate a chairman of the board. The chairman of the board shall preside over the meetings of the board of directors and of the stockholders at which he or she shall be present. The chairman of the board shall perform such other duties as may be assigned to him or her by the board of directors. Unless otherwise designated by the board of directors, the chief executive officer shall also be the chairman of the board.
Section 5.88.PRESIDENT. In the absence of a chief executive officer, the president shall in general supervise and control all of the business and affairs of the Corporation. In the absence of a designation of a chief operating officer by theboardBoard ofdirectorsDirectors, the president shall be the chief operating officer. He or she may execute any deed, mortgage, bond, contract or other instrument, except in cases where the execution thereof shall be expressly delegated by theboardBoard ofdirectorsDirectors or by these Bylaws to some other officer or agent of the Corporation or shall be required by law to be otherwise executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by theboardBoard ofdirectorsDirectors from time to time. Unless otherwise designated by the board of directors, the chief executive officer shall also be the president.
Section 5.99.VICE PRESIDENTS. In the absence of the president or in the event of a vacancy in such office, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated at the time of their election or, in the absence of any designation, then in the order of their election) shall perform the duties of the president and when so acting shall have all the powers of and be subject to all the restrictions upon the president; and shall perform such other duties as from time to time may be assigned to such vice president by thechief executive officer, thepresident orbytheboardBoard ofdirectorsDirectors. TheboardBoard ofdirectorsDirectors may designate one or more vice presidents as executive vice president, senior vice president, or as vice president for particular areas of responsibility.
Section 5.1010.SECRETARY. The secretary shall (a) keep the minutes of the proceedings of the stockholders, theboardBoard ofdirectorsDirectors and committees of theboardBoard ofdirectorsDirectors in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required by law; (c) be custodian of the corporate records and of the seal of the Corporation; (d) keep a register of the post office address of each stockholder which shall be furnished to the secretary by such stockholder; (e) have general charge of the stock transfer books of the Corporation; and (f) in general perform such other duties as from time to time may be assigned to him or her by the chief executive officer, the president or theboardBoard ofdirectors.Directors.
Section 5.1111.TREASURER. The treasurer shall have the custody of the funds and securities of the Corporation and, shall keep full and accurate accounts of receipts and disbursements in
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books belonging to the Corporation and, shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by theboard of directors.Board of Directors and in general perform such other duties as from time to time may be assigned to him or her by the chief executive officer, the president or the Board of Directors. In the absence of a designation of a chief financial officer by theboardBoard ofdirectorsDirectors, the treasurer shall be the chief financial officer of the Corporation.
The treasurer shall disburse the funds of the Corporation as may be ordered by theboardBoard ofdirectorsDirectors, taking proper vouchers for such disbursements, and shall render to the president andboardBoard ofdirectorsDirectors, at the regular meetings of theboardBoard ofdirectorsDirectors or whenever it may so require, an account of all his or her transactions as treasurer and of the financial condition of the Corporation.
If required by the board of directors, the treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his or her office and for the restoration to the Corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, moneys and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.
Section 5.1212.ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The assistant secretaries and assistant treasurers, in general, shall perform such duties as shall be assigned to them by the secretary or treasurer, respectively, or by thechief executive officer, the president or theboardBoard ofdirectors. The assistant treasurers shall, if required by the board of directors, give bonds for the faithful performance of their duties in such sums and with such surety or sureties as shall be satisfactory to the board of directors.Directors.
Section5.13SALARIES .13. COMPENSATION. The salaries and other compensation of the officers shall be fixed from time to time byor undertheboard of directorsauthority of the Board of Directors and no officer shall be prevented from receiving suchsalary or othercompensation by reason of the fact that he or she is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.11.CONTRACTS.The board of directors, the Executive Committee or another committee of the board of directors within the scope of its delegated authorityThe Board of Directors may authorize any officer or agent to enter into any contract or to execute and deliver any instrument in the name of and on behalf of the Corporation and such authority may be general or confined to specific instances. Any agreement, deed, mortgage, lease or other document shall be valid and binding upon the Corporation when duly authorized or ratified by action of theboard of directors or the Executive Committee or such other committeeBoard of Directors and executed by an authorized person.
Section 6.22.CHECKS AND DRAFTS. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer or agent of the Corporation in such manner as shall from time to time be determined by theboardBoard ofdirectors.Directors.
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Section 6.33.DEPOSITS. All funds of the Corporation not otherwise employed shall be depositedor investedfrom time to time to the credit of the Corporationin such banks, trust companies or other depositories asas the Board of Directors, the chief executive officer, the president, the chief financial officer, or any other officer designated by theboardBoard ofdirectorsDirectors maydesignate.determine.
ARTICLE VII
STOCK
Section 7.11.CERTIFICATES . The Corporation may issue some or all of the shares of any or all of the Corporation’s classes or series of stock without certificates if authorized by the board of directors.. Except as may be otherwise provided by the Board of Directors, stockholders of the Corporation are not entitled to certificates representing the shares of stock held by them. In the event that the Corporation issues shares of stock represented by certificates, such certificates shall be in such form as prescribed by theboardBoard ofdirectorsDirectors or a duly authorized officer, shall contain the statements and information required by the MGCL and shall be signed by the officers of the Corporation intheany manner permitted by the MGCL. In the event that the Corporation issues shares of stock without certificates, to the extent then required by the MGCL, the Corporation shall provide to the record holders of such shares a written statement of the information required by the MGCL to be included on stock certificates. There shall be no differences in the rights and obligations of stockholders based on whether or not their shares are represented by certificates.If a class or series of stock is authorized by the board of directors to be issued without certificates, no stockholder shall be entitled to a certificate or certificates representing any shares of such class or series of stock held by such stockholder unless otherwise determined by the board of directors and then only upon written request by such stockholder to the secretary of the Corporation.
Section 7.22.TRANSFERS. All transfers of shares of stock shall be made on the books of the Corporation, by the holder of the shares, in person or by his or her attorney, in such manner as theboardBoard ofdirectorsDirectors or any officer of the Corporation may prescribe and, if such shares are certificated, upon surrender of certificates duly endorsed. The issuance of a new certificate upon the transfer of certificated shares is subject to the determination of theboardBoard ofdirectorsDirectors that such shares shall no longer be represented by certificates. Upon the transfer ofany uncertificated shares, to the extent then required by the MGCL, the Corporation shall provide tothe record holders of such shares a written statement of the information required by the MGCL to be included on stock certificates.
The Corporation shall be entitled to treat the holder of record of any share of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwiseexpresslyprovided by the laws of the State of Maryland.
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Notwithstanding the foregoing, transfers of shares of any classor seriesof stock will be subject in all respects to the Charter and all of the terms and conditions contained therein.
Section 7.33.REPLACEMENT CERTIFICATE. Any officerdesignated byof theboard of directorsCorporation may direct a new certificateor certificatesto be issued in place of any certificatepreviouslyor certificates theretofore issued by the Corporation alleged to have been lost,destroyed, stolen ordestroyedmutilated, upon the making of an affidavit of that fact by the person claiming the certificate to be lost,destroyed,stolen ordestroyedmutilated; provided, however, ifthesuch sharesrepresented by such certificate have ceased to be certificated, no new certificate shall be issued unless requested in writing by such stockholder and theboardBoard ofdirectorsDirectors has determinedthat suchcertificate may be issued. When authorizing the issuance of a new certificate, an officer designated by the board of directors may, in his or her discretion andcertificates may be issued. Unless otherwise determined by an officer of the Corporation, the owner of such lost, destroyed, stolen or mutilated certificate or certificates, or his or her legal representative, shall be required, as a condition precedent to the issuancethereof, require the owner of such lost, stolen or destroyed certificate or the owner’s legal representative to advertise the same in such manner as he shall require and/or to give bond, with sufficient surety, to the Corporation to indemnify it against any loss or claim which may arise as a result of the issuance of a new certificate, and any other reasonable requests imposed by the board of directors. When a certificate has been lost, destroyed or stolen and the stockholder of record fails to notify the Corporation within a reasonable time after he or she has notice of it, if the Corporation registers a transfer of the shares represented by the certificate before receiving such notification, the stockholder of record is precluded from making any claim against the Corporation for the transfer or for a new certificate.of a new certificate or certificates, to give the Corporation a bond in such sums as it may direct as indemnity against any claim that may be made against the Corporation.
Section 7.4CLOSING OF TRANSFER BOOKS OR 4.FIXING OF RECORD DATE. TheboardBoard ofdirectorsDirectors may set, in advance, a record date for the purpose of determining stockholders entitled to notice of or to vote at any meeting of stockholders or determining stockholders entitled to receive payment of any dividend or the allotment of any other rights, or in order to make a determination of stockholders for any other proper purpose. Such date, in any case, shall not be prior to the close of business on the day the record date is fixed and shall be not more than 90 days and, in the case of a meeting of stockholders, not less than ten days, before the date on which the meeting or particular action requiring such determination of stockholders of record is to be held or taken.
In lieu of fixing a record date, the board of directors may provide that the stock transfer books shall be closed for a stated period but not longer than 20 days. If the stock transfer books are closed for the purpose of determining stockholders entitled to notice of or to vote at a meeting of stockholders, such books shall be closed for at least ten days before the date of such meeting.
If no record date is fixed and the stock transfer books are not closed for the determination of stockholders, (a) the record date for the determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day on which the notice of meeting is mailed or the 30th day before the meeting, whichever is the closer date to the meeting; and (b) the record date for the determination of stockholders entitled to receive payment of a dividend or an allotment of any other rights shall be the close of business on the day on which the resolution of the directors, authorizing the dividend or allotment of rights, is adopted, provided that the payment or allotment may not be made more than 60 days after the date on which such resolution is adopted.
When arecord date for thedetermination of stockholders entitled tonotice of and to vote at any meeting of stockholders has beenmadeset as provided in this section, such
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determinationrecord date shall continue to apply toany adjournment thereof, except when (i) the determination has been made through the closing of the transfer books and the stated period of closing has expired or (ii)the meeting if adjourned or postponed, except if the meeting is adjourned or postponed to a date more than 120 days after the record dateoriginallyfixed for theoriginalmeeting, in either of which case a new record dateshallfor such meeting may be determined as set forth herein.
Section 7.55.STOCK LEDGER. The Corporation shall maintain at its principal office or at the office of its counsel, accountants or transfer agent, an original or duplicatesharestock ledger containing the name and address of each stockholder and the number of shares of each class held by such stockholder.
Section 7.66.FRACTIONAL STOCK; ISSUANCE OF UNITS. Theboard of directors mayBoard of Directors may authorize the Corporation to issue fractional stock orprovide forauthorize the issuance of scrip, all on such terms and under such conditions astheyit may determine. Notwithstanding any other provision of the Charter or these Bylaws, theboardBoard ofdirectorsDirectors may issue units consisting of different securities of the Corporation. Any security issued in a unit shall have the same characteristics as any identical securities issued by the Corporation, except that theboardBoard ofdirectorsDirectors may provide that for a specified period securities of the Corporation issued in such unit may be transferred on the books of the Corporation only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
TheboardBoard ofdirectorsDirectors shall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 9.11.AUTHORIZATION. Dividends and other distributions upon the stock of the Corporation may be authorized by theboardBoard ofdirectorsDirectors, subject to the provisions of law and the Charter. Dividends and other distributions may be paid in cash, property or stock of the Corporation, subject to the provisions of law and theCharter.charter.
Section 9.22.CONTINGENCIES. Before payment of any dividends or other distributions, there may be set aside out of any assets of the Corporation available for dividends or other distributions such sum or sums as theboardBoard ofdirectorsDirectors may from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends or other distributions, for repairing or maintaining any property of the Corporation or for such other purpose as theboardBoard ofdirectorsDirectors shall determine to be in the best interest of the Corporation, and theboardBoard ofdirectorsDirectors may modify or abolish any such reserve.
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ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the Charter, theboardBoard ofdirectorsDirectors may from time to time adopt, amend, revise or terminate any policy or policies with respect to investments by the Corporation as it shall deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 11.1SEAL
Section 1. SEAL. TheboardBoard ofdirectorsDirectors may authorize the adoption of a seal by the Corporation. The seal shall contain the name of the Corporation and the year of its incorporation and the words “Incorporated Maryland.” TheboardBoard ofdirectorsDirectors may authorize one or more duplicate seals and provide for the custody thereof.
Section 11.22.AFFIXING SEAL. Whenever the Corporation is permitted or required to affix its seal to a document, it shall be sufficient to meet the requirements of any law, rule or regulation relating to a seal to place the word “(SEAL)” adjacent to the signature of the person authorized to execute the document on behalf of the Corporation.
ARTICLE XII
WAIVER OF NOTICE
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time to time, the Corporation shall indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, shall 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, or witness in, 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, trustee, member, manager or partner of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity. The rights to indemnification and advance of expenses provided by the Charter and these Bylaws shall vest immediately upon election of a director or officer. The Corporation may, with the approval of its Board of Directors, provide such indemnification and advance for expenses to an individual 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. The indemnification and payment or reimbursement of expenses provided in these Bylaws shall not be deemed exclusive of or limit in any way other rights to which any person seeking indemnification or payment or reimbursement of expenses may be or may become entitled under any bylaw, resolution, insurance, agreement or otherwise.
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Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the Charter or these Bylaws inconsistent with this Article, shall apply to or affect in any respect the applicability of the preceding paragraph with respect to any act or failure to act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any noticeof a meetingis required to be given pursuant to the Charter or these Bylaws or pursuant to applicable law, a waiver thereof in writing, signed or by electronic transmission, given by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at nor the purpose of any meeting need be set forth in the waiver of notice of such meeting, unless specifically required by statute. The attendance of any person at any meeting shall constitute a waiver of notice of such meeting, except where such person attends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meetingishas notbeenlawfully called or convened.
ARTICLEXIII
XIV
AMENDMENT OF BYLAWS
TheboardBoard ofdirectorsDirectors shall have the exclusive power to adopt, alter or repeal any provision of these Bylaws and to make new Bylaws.
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