EXHIBIT 3.2
FIVE OAKS INVESTMENT CORP.
SECOND AMENDED AND RESTATED BYLAWS
(as of March 27, 2013)
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of the Corporation in theState of Marylandshall be located at such place as theBoard of Directorsmay designate.
Section 2. ADDITIONAL OFFICES. The Corporation may have additional offices, including a principal executive office, at such places as theBoard of Directorsmay from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGSOF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the principal executive office of the Corporation or at such other place as shall be set by theBoard of Directorsand stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for the election of directors and the transaction of any business within the powers of the Corporation shall be held on the date and at the time set by theBoard of Directors.
Section 3. SPECIAL MEETINGS.
(a)General. The chairman of the board, president, chief executive officer orBoard of Directorsmay call a special meeting of the stockholders. 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 theBoard of Directorsto fix a record date to determine the stockholders entitled to request a special meeting (the “Request Record Date”). TheRecord Date Request Noticeshall 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 theRecord 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 theSecurities Exchange Act of 1934, as amended (the “Exchange Act”). Upon receiving theRecord Date Request Notice, theBoard of Directorsshall fix aRequest Record Date. TheRequest Record Dateshall not precede and shall not be more than ten days after the close of business on the date on which the resolution fixing theRequest Record Dateis adopted by theBoard of Directors. If theBoard of Directors, within ten days after the date on which a validRecord Date Request Noticeis received, fails to adopt a resolution fixing theRequest Record Date, theRequest Record Dateshall be the close of business on the tenth day after the first date on which theRecord Date Request Noticeis 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 theRequest Record Dateentitled 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, theSpecial Meeting Requestshall (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 theRecord Date Request Noticereceived by the secretary), (b) bear the date of signature of each such stockholder (or such agent) signing theSpecial 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 theSpecial Meeting Requestis signed), (ii) the class, series and number of all shares of stock of the Corporation which are owned (beneficially or of record) by such stockholder and (iii) the nominee holder for, and 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 theRequest Record Date. Any requesting stockholder (or agent duly authorized in a writing accompanying the revocation or theSpecial 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 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 theBoard of Directors; provided,however, that the date of anyStockholder-Requested Meetingshall be not more than 90 days after the record date for such meeting (the “Meeting Record Date”); and provided, further, that if the Board of Directors fails to designate, within ten days after the date that a validSpecial Meeting Requestis actually received by the secretary (the “Delivery Date”), a date and time for aStockholder-Requested Meeting, then such meeting shall be held at 2:00 p.m. local time on the 90th day after theMeeting Record Dateor, if such 90th day is not aBusiness Day(as defined below), on the first precedingBusiness Day; and provided, further, that in the event that theBoard of Directorsfails to designate a place for aStockholder-Requested Meetingwithin ten days after theDelivery Date, then such meeting shall be held at the principal executive office of the Corporation. In fixing a date for any special meeting, the chairman of the board, chief executive officer, president orBoard of Directorsmay consider such factors as he, she or 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 theBoard of Directorsto call an annual meeting or a special meeting. In the case of anyStockholder-Requested Meeting, if theBoard of Directorsfails to fix aMeeting Record Datethat is a date within 30 days after theDelivery Date, then the close of business on the 30th day after theDelivery Dateshall be theMeeting Record Date. TheBoard of Directorsmay revoke the notice for anyStockholder-Requested Meetingin the event that the requesting stockholders fail to comply with the provisions of paragraph(3) of this Section 3(b).
| 2 |
(5) If written revocations of theSpecial Meeting Requesthave been delivered to the secretary and the result is that stockholders of record (or their agents duly authorized in writing), as of theRequest Record Date, entitled to cast less than theSpecial Meeting Percentagehave delivered, and not revoked, requests for a special meeting 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 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 orBoard of Directorsmay 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 purportedSpecial Meeting Requestreceived by the secretary. For the purpose of permitting the inspectors to perform such review, no such purportedSpecial Meeting Requestshall be deemed to have been delivered to the secretary until the earlier of (i) fiveBusiness Daysafter 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 theRequest Record Date, stockholders of record entitled to cast not less than theSpecial 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 fiveBusiness Dayperiod, 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).
| 3 |
(7) For purposes of these Second Amended and Restated Bylaws (hereinafter, “Bylaws”), “Business Day” shall mean any day that is not aSaturday,Sundayor a day on which commercial banks inNew York Cityare required or permitted by law to be closed.
Section 4. NOTICE. Not less than ten nor more than 90 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 meeting notice 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 by any statute, the purpose for which the meeting is called, by mail, by presenting it to such stockholder personally, by leaving it at the stockholder’s residence or usual place of business or by any other means permitted byMarylandlaw. If mailed, such notice shall be deemed to be given when deposited in theUnited Statesmail 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 a 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 ArticleIIor the validity of any proceedings at any such meeting.
Subject to Section 11(a)of this ArticleII, 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 by any 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. The Corporation may postpone or cancel a meeting of stockholders by making apublic announcement(as defined in Section 11(c)(3)of this ArticleII)of such postponement or cancellation prior to the meeting. Noticeof 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 theBoard of Directorsto be chairman of the meeting or, in the absence of such appointment, 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 there is one, 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 inpersonor by proxy. The secretary, or, in the secretary’s absence, an assistant secretary, or, in the absence of both the secretary and assistant secretaries, apersonappointed by theBoard of Directorsor, in the absence of such appointment, apersonappointed 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 of assistant secretaries, an individual appointed by theBoard of Directorsor 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 reasonable discretion of the 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 and other such individuals as the chairman of the meeting may determine;(c) limitingparticipationat 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;(e) determining when and for how long the polls should be opened and when the polls should be closed;(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;(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.
| 4 |
Section 6. QUORUM. At any meeting of stockholders, the presence inpersonor by proxy of stockholders entitled to cast 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 any statute or the charter of the Corporation (the “Charter”) for the vote necessary for the adoption of any measure. If such quorum is not established at any meeting of the stockholders, the chairman of the meeting may adjourn the meeting sine die or from 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 inpersonor by proxy, at a meeting which has been duly called and at which a quorum has been established, may continue to transact business until adjournment, notwithstanding the withdrawal from the meeting of enough stockholders to leave fewer than required to establish a quorum.
Section 7. VOTING. A plurality of all the votes cast at a meeting of stockholders duly called and at which a quorum is present shall be sufficient to elect a director. Each share may be voted for as many individuals as there are directors to be elected and for whose election the share is entitled to be voted. 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 before the meeting, unless more than a majority of the votes cast is required by statute or by theCharter. Unless otherwise provided by statute or by theCharter, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders. Voting on any question or in any election may be viva voce unless the chairman of the meeting shall order that voting be by ballot or otherwise.
| 5 |
Section 8. PROXIES. A stockholder may cast the votes entitled to be cast by the holder of the shares of stock owned of record by the stockholder inpersonor 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 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the Corporation registered in the name of a corporation, partnership, trust or other entity, if entitled to be voted, may be voted by the president or a vice president, a general partner, trustee or managingmemberthereof, as the case may be, or a proxy appointed by any of the foregoing individuals, unless some otherpersonwho 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 suchpersonmay vote such stock. Any director or fiduciary may vote stock registered in the name of suchpersonin the capacity of such director or fiduciary, either inpersonor by proxy.
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.
TheBoard of Directorsmay 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 specifiedpersonother 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, the time after the record date within which the certification must be received by the Corporation; and any other provisions with respect to the procedure which theBoard of Directorsconsiders necessary or desirable. On receipt of such certification, thepersonspecified in the certification shall be regarded as, for the purposes set forth in the certification, the holder of record of the specified stock in place of the stockholder who makes the certification.
Section 10. INSPECTORS. TheBoard of Directorsor the chairman of the meeting may appoint, before or at the meeting, one or more inspectors for the meeting and any successor to the inspector. The inspectors, if any, shall(i) determine the number of shares of stock represented at the meeting, inpersonor by proxy, and the validity and effect of proxies,(ii) receive and tabulate all votes, 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, and(v) do such acts as are proper to fairly conduct the election or vote. Each such report shall be in writing and signed by the 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 be prima facie evidence thereof.
| 6 |
Section 11. ADVANCE NOTICE OF STOCKHOLDER NOMINEES FOR DIRECTOR AND OTHER STOCKHOLDER PROPOSALS.
(a)Annual Meetings of Stockholders. (1) Nominations of individuals for election to theBoard of Directorsand the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders (i) pursuant to the Corporation’s notice of meeting, (ii) by or at the direction of theBoard of Directorsor(iii) by any stockholder of the Corporation who was a stockholder of record both at the time of giving of notice by the stockholder as provided for in this Section 11(a)and at the time of the annual meeting, who is entitled to vote at the meeting in the election of each individual so nominated or on any such other business and who has complied with this Section 11(a).
(2) For any nomination or other business to be properly brought before an annual meeting by a stockholder pursuant to clause(iii) of paragraph(a)(1)of this Section 11, the stockholder must have given timely notice thereof in writing to the secretary of the Corporation and such other business must otherwise be a proper matter for action by the stockholders. To be timely, a stockholder’s notice shall set forth all information required under this Section 11and shall be delivered to the secretary at the principal executive office of the Corporation not earlier than the 150th day nor later than 5:00 p.m., Eastern Time, on the 120th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting;provided,however, that in connection with the Corporation’s first annual meeting or 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, notice by the stockholder to be timely must be so delivered not earlier than the 150th day prior to the date of such annual meeting and not later than 5:00 p.m., Eastern Time, on the later of the 120th day prior to the date of such annual meeting, as originally convened, or the tenth day following the day on whichpublic announcementof the date of such meeting is first made. Thepublic announcementof a postponement or adjournment of an annual meeting shall not commence a new time period for the giving of a stockholder’s notice as described above.
(3)Such stockholder’s notice shall set forth:
(i) as to each individual whom the stockholder proposes to nominate for election or reelection as a director (each, a “Proposed Nominee”), all information relating to theProposed Nomineethat would be required to be disclosed in connection with the solicitation of proxies for the election of theProposed Nomineeas 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 theExchange Actand the rules thereunder;
(ii)as to any business that the stockholder proposes to bring before the meeting, a description of such business, the stockholder’s reasons for proposing such business at the meeting and any material interest in such business of such stockholder or anyStockholder Associated Person(as defined below), individually or in the aggregate, including any anticipated benefit to the stockholder or theStockholder Associated Persontherefrom;
| 7 |
(iii)as to the stockholder giving the notice, anyProposed Nomineeand anyStockholder Associated Person,
(A) the class, series and number of all shares of stock or other securities of the Corporation or anyaffiliatethereof (collectively, the “Company Securities”), if any, which are owned (beneficially or of record) by such stockholder,Proposed NomineeorStockholder Associated Person, the date on which each suchCompany Securitywas 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 anyCompany Securitiesof any suchperson,
(B) the nominee holder for, and number of, anyCompany Securitiesowned beneficially but not of record by such stockholder,Proposed NomineeorStockholder Associated Person,
(C) whether and the extent to which such stockholder,Proposed NomineeorStockholder Associated Person, directly or indirectly (through brokers, nominees or otherwise), is subject to or during the last six months has engaged in any hedging, derivative or other transaction or series of transactions or entered into any other agreement, arrangement or understanding (including any short interest, any borrowing or lending of securities or any proxy or voting agreement), the effect or intent of which is to (I) manage risk or benefit of changes in the price of (x) Company Securitiesor (y) any security of any entity that was listed in thePeer Groupin theStock Performance Graphin the most recent annual report to security holders of the Corporation (a “Peer Group Company”) for such stockholder,Proposed NomineeorStockholder Associated Personor (II) increase or decrease the voting power of such stockholder,Proposed NomineeorStockholder Associated Personin the Corporation or anyaffiliatethereof (or, as applicable, in anyPeer Group Company) disproportionately to suchperson’s economic interest in theCompany Securities(or, as applicable, in anyPeer Group Company), and
(D) 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 NomineeorStockholder Associated Person, in the Corporation or anyaffiliatethereof, other than an interest arising from the ownership ofCompany Securitieswhere such stockholder,Proposed NomineeorStockholder Associated Personreceives no extra or special benefit not shared on a pro rata basis by all other holders of the same class or series;
(iv) as to the stockholder giving the notice, anyStockholder Associated Personwith an interest or ownership referred to in clauses(ii) or(iii) of this paragraph (3)of this Section 11(a)and anyProposed Nominee,
(A) the name and address of such stockholder, as they appear on the Corporation’s stock ledger, and the current name and business address, if different, of each suchStockholder Associated Personand anyProposed Nomineeand
(B) the investment strategy or objective, if any, of such stockholder and each suchStockholder Associated Personwho 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 suchStockholder Associated Person; and
| 8 |
(v) to the extent known by the stockholder giving the notice, the name and address of any other stockholder supporting the nominee for election or 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 anyProposed Nominee, be accompanied by a certificate executed by theProposed Nominee(i) certifying that suchProposed Nominee(a) is not, and will not become a party to, any agreement, arrangement or understanding with anypersonor 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 completedProposed Nomineequestionnaire (which questionnaire shall be provided by the Corporation, upon request, to the stockholder providing the notice and shall include all information relating to theProposed Nomineethat would be required to be disclosed in connection with the solicitation of proxies for the election of theProposed Nomineeas 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 theExchange Actand the rules thereunder, or would be required pursuant to the rules of any national securities exchange or over-the-counter market).
(5) Notwithstanding anything in this subsection(a) of this Section 11to the contrary, in the event that the number of directors to be elected to theBoard of Directorsis increased, and there is nopublic announcementof such action at least 130 days prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting, a stockholder’s notice required by this Section 11(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 the secretary at the principal executive office of the Corporation not later than 5:00 p.m., Eastern Time, on the tenth day following the day on which suchpublic announcementis first made by the Corporation.
(6) For purposes of this Section 11, “Stockholder Associated Person” of any stockholder means (i) anyperson acting 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 personthat directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such stockholder or suchStockholder 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 of meeting. Nominations of individuals for election to theBoard of Directorsmay be made at a special meeting of stockholders at which directors are to be elected only (i) by or at the direction of theBoard of Directorsor (ii) provided that the special meeting has been called in accordance with Section 3of this ArticleIIfor the purpose of electing directors, by any stockholder of the Corporation who is a stockholder of record both at the time of giving of notice provided for in this Section 11and at the time of the special meeting, who is entitled to vote at the meeting in the election of each individual so nominated and who has complied with the notice procedures set forth in this Section 11. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more individuals to theBoard of Directors, any such stockholder may nominate an individual or individuals (as the case may be) for election as a director as specified in the Corporation’s notice of meeting, if the stockholder’s notice, containing the information required by paragraph(a)(3)of this Section 11, shall be delivered to the secretary at the principal executive office of the Corporation not earlier than the 120th day prior to such special meeting and not later than 5:00 p.m., Eastern Time, on the later of the 90th day prior to such special meeting or the tenth day following the day on whichpublic announcementis first made of the date of the special meeting and of the nominees proposed by theBoard of Directorsto be elected at such meeting. Thepublic announcementof a postponement or adjournment of a special meeting shall not commence a new time period for the giving of a stockholder’s notice as described above.
| 9 |
(c)General. (1) If information submitted pursuant to this Section 11by any stockholder proposing a nominee for election as a director or any proposal for other business at a meeting of stockholders shall be 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 twoBusiness Daysof becoming aware of such inaccuracy or change) in any such information. Upon written request by the secretary of the Corporation or theBoard of Directors, any such stockholder shall provide, within fiveBusiness Daysof 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 Directorsor any authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by the stockholder pursuant to this Section 11, and (B) a written update of any information submitted by the stockholder pursuant to this Section 11as 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 verification or a written update was requested may be deemed not to have been provided in accordance with this Section 11.
(2) Only such individuals who are nominated in accordance with this Section 11shall be eligible for 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 with this Section 11. The chairman of the meeting shall have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with this Section 11.
(3)“Public announcement” shall mean disclosure (i) in a press release reported by theDow Jones News Service,Associated Press,Business Wire,PR Newswireor other widely circulated news or wire service or (ii) in a document publicly filed by the Corporation with theSecurities and Exchange Commissionpursuant to theExchange Act.
(4) Notwithstanding the foregoing provisions of this Section 11, a stockholder shall also comply with all applicable requirements of state law and of theExchange Actand the rules and regulations thereunder with respect to the matters set forth in this Section 11. Nothing in this Section 11shall be deemed to affect any right of a stockholder to request inclusion of a proposal in, or the right of the Corporation to omit a proposal from, the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under theExchange Act. Nothing in this Section 11shall require disclosure of revocable proxies received by the stockholder orStockholder Associated Personpursuant to a solicitation of proxies after the filing of an effectiveSchedule 14Aby such stockholder orStockholder Associated Personunder Section 14(a) of theExchange Act.
| 10 |
Section 12. TELEPHONE MEETINGS. TheBoard of Directorsor chairman of the meeting may permit one or more stockholders to participate in meetings of the stockholders by means of a conference telephone or other communications equipment by which all persons participating in the meeting can hear each other at the same time. Participationin a meeting by these means constitutes presence inpersonat the meeting.
Section 13. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other provision of theCharteror these Bylaws, Title 3, Subtitle 7 of theMaryland General CorporationLaw, or any successor statute (the “MGCL”), shall not apply to any acquisition by anypersonof 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 14. 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 consent of the holders of shares entitled to cast at least 75% of all the votes entitled to be cast on the matter is given in writing or by electronic transmission or(b) if the action is advised, and submitted to the stockholders for approval, by theBoard of Directorsand 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 theMGCL. 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.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the Corporation shall be managed under the direction of itsBoard of Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting or at any special meeting called for that purpose, a majority of the entireBoard of Directorsmay establish, increase or decrease the number of directors,provided that the number thereof shall never be less than the minimum number required by theMGCL, nor more than 15, andfurther 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 theBoard 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. ANNUAL AND REGULAR MEETINGS. An annual meeting of theBoard of Directorsshall be held immediately after and at the same place as the annual meeting of stockholders, no notice other than thisBylawbeing 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 theBoard of Directors. TheBoard of Directorsmay provide, by resolution, the time and place for the holding of regular meetings of theBoard of Directorswithout other notice than such resolution.
| 11 |
Section 4. SPECIAL MEETINGS. Special meetings of theBoard of Directorsmay 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. Thepersonor persons authorized to call special meetings of theBoard of Directorsmay fix any place as the place for holding any special meeting of theBoard of Directorscalled by them. TheBoard of Directorsmay provide, by resolution, the time and place for the holding of special meetings of theBoard of Directorswithout other notice than such resolution.
Section 5. NOTICE. Notice of any special meeting of theBoard of Directorsshall be delivered personally or by telephone, electronic mail, facsimile transmission, courier or United States mail to 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 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 theBoard of Directorsneed be stated in the notice, unless specifically required by statute or these Bylaws.
Section 6. QUORUM. A majority of the directors shall constitute a quorum for transaction of business at any meeting of theBoard of Directors,provided that, if less than a majority of such directors is present at such meeting, a majority of the directors present may adjourn the meeting from time to time without further notice, andprovided, further, that if, pursuant to applicable law, theCharteror these Bylaws, the vote of a majority or other percentage of a particular group of directors is required for action, a quorum must also include a majority of such group.
The directors present at a meeting which has been duly called and at which a quorum has been established may continue to transact business until adjournment, notwithstanding the withdrawal from the meeting of enough directors to leave fewer than required to establish a quorum.
Section 7. VOTING. The action of a majority of the directors present at a meeting at which a quorum is present shall be the action of theBoard of Directors, unless the concurrence of a greater proportion is required for such action by applicable law, theCharteror these Bylaws. If enough directors have withdrawn from a meeting to leave fewer than required to establish a 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 theBoard of Directors, unless the concurrence of a greater proportion is required for such action by applicable law, theCharteror these Bylaws.
| 12 |
Section 8. ORGANIZATION. At each meeting of theBoard of Directors, 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, 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, apersonappointed by the chairman of the meeting, shall act as secretary of the meeting.
Section 9. 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. Participationin a meeting by these means shall constitute presence inpersonat the meeting.
Section 10. CONSENT BY DIRECTORS WITHOUT A MEETING. Any action required or permitted to be taken at any meeting of theBoard of Directorsmay 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 theBoard of Directors.
Section 11. VACANCIES. 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. Except as may be provided by theBoard of Directorsin setting the terms of any class or series of preferred stock, any vacancy on theBoard of Directorsmay be filled only by a majority of the remaining directors, even if the remaining directors do not constitute a quorum. Any director elected to fill a vacancy shall serve for the remainder of the full term of the class in which the vacancy occurred and until a successor is elected and qualifies.
Section 12. COMPENSATION. Directors shall not receive any stated salary for their services as directors but, by resolution of theBoard of Directors, may receive compensation per year and/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 theBoard of Directorsor of any committee thereof and for their expenses, if any, in connection with each property visit and any other service or activity they performed or engaged 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.
Section 13. RELIANCE. Each director and officer of the Corporation shall, in the performance of his or her duties with respect to the Corporation, be 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 otherperson, as to a matter which the director or officer reasonably believes to be within theperson’s professional or expert competence, or, with respect to a director, by a committee of theBoard of Directorson which the director does not serve, as to a matter within its designated authority, if the director reasonably believes the committee to merit confidence.
| 13 |
Section 14. RATIFICATION. TheBoard of Directorsor the stockholders may ratify and make binding on the Corporation any action or inaction by the Corporation or its officers to the extent that theBoard of Directorsor 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 theBoard of Directorsor 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 15. CERTAIN RIGHTS OF DIRECTORS AND OFFICERS. Subject to any other contractual obligations of the director to the contrary, a director who is not also an officer of the Corporation shall have no responsibility to devote his or her full time to the affairs of the Corporation. Subject to any other contractual restrictions, any director or officer, in his or her personal capacity or in a capacity as anaffiliate, employee, or agent of any otherperson, 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.
Section 16 . EMERGENCY PROVISIONS. Notwithstanding any other provision in theCharteror these Bylaws, this Section 16shall apply during the existence of any catastrophe, or other similaremergencycondition, as a result of which a quorum of theBoard of Directorsunder Article III of these Bylaws cannot readily be obtained (an “Emergency”). During anyEmergency, unless otherwise provided by theBoard of Directors,(i) a meeting of theBoard of Directorsor a committee thereof may be called by any director or officer by any means feasible under the circumstances;(ii) notice of any meeting of theBoard of Directorsduring such anEmergencymay 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 entireBoard of Directors.
ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. TheBoard of Directorsmay appoint from among its members anExecutive Committee, anAudit Committee, aCompensation Committee, aNominating and Corporate Governance Committeeand one or more other committees, composed of one or more directors, to serve at the pleasure of theBoard of Directors.
| 14 |
Section 2. POWERS. TheBoard of Directorsmay delegate to committees appointed under Section 1 of this Article any of the powers of theBoard of Directors, except as prohibited by law.
Section 3. MEETINGS. Notice of committee meetings shall be given in the same manner as notice for special meetings of theBoard 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. TheBoard of Directorsmay 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 theBoardshall otherwise provide. In the absence of anymemberof 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 absentmember.
Section 4. TELEPHONE MEETINGS. Membersof a committee of theBoard of Directorsmay 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. Participationin a meeting by these means shall constitute presence inpersonat the meeting.
Section 5. CONSENT BY COMMITTEES WITHOUT A MEETING. Any action required or permitted to be taken at any meeting of a committee of theBoard of Directorsmay be taken without a meeting, if a consent in writing or by electronic transmission to such action is given by eachmemberof the committee and is filed with the minutes of proceedings of such committee.
Section 6. VACANCIES. Subject to the provisions hereof, theBoard of Directorsshall have the power at any time to change the membership of any committee, to fill any vacancy, to designate an alternatememberto replace any absent or disqualifiedmemberor to dissolve any such committee.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation shall include a 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, a chief investment officer, one or more assistant secretaries and one or more assistant treasurers. In addition, theBoard of Directorsmay from time to time elect such other officers with such powers and duties as they shall deem necessary or desirable. The officers of the Corporation shall be elected annually by theBoard of Directors, 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. Each officer shall serve 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. Any two or more offices except president and vice president may be held by the sameperson. Election of an officer or agent shall not of itself create contract rights between the Corporation and such officer or agent.
| 15 |
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may be removed, with or without cause, by theBoard of Directorsif 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 thepersonso removed. Any officer of the Corporation may resign at any time by delivering his or her resignation to theBoard of Directors, the chairman of the board, the president 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. Such resignation shall be without prejudice to the contract rights, if any, of the Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by theBoard of Directorsfor the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. TheBoard of Directorsmay 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 theBoard 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 theBoard of Directorsor 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 theBoard of Directorsfrom time to time.
Section 5. CHIEF OPERATING OFFICER. TheBoard of Directorsmay designate a chief operating officer. The chief operating officer shall have the responsibilities and duties as determined by theBoard of Directorsor the chief executive officer.
Section 6. CHIEF FINANCIAL OFFICER. TheBoard of Directorsmay designate a chief financial officer. The chief financial officer shall have the responsibilities and duties as determined by theBoard of Directorsor the chief executive officer.
Section 7. CHIEF INVESTMENT OFFICER. TheBoard of Directorsmay designate a chief investment officer. The chief investment officer shall have the responsibilities and duties as determined by theBoard of Directorsor the chief executive officer.
Section 8. CHAIRMAN OF THE BOARD. TheBoard of Directorsshall designate a chairman of the board. The chairman of the board shall preside over the meetings of theBoard of Directorsand 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 theBoard of Directors.
Section 9. 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 theBoard of Directors, 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 theBoard of Directorsor 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 theBoard of Directorsfrom time to time.
| 16 |
Section 10. 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 the president or by theBoard of Directors. TheBoard of Directorsmay designate one or more vice presidents as executive vice president, senior vice president, or as vice president for particular areas of responsibility.
Section 11. SECRETARY. The secretary shall(a) keep the minutes of the proceedings of the stockholders, theBoard of Directorsand committees of theBoard of Directorsin 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 thesealof 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 by theBoard of Directors.
Section 12. 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 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. In the absence of a designation of a chief financial officer by theBoard of Directors, 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 theBoard of Directors, taking proper vouchers for such disbursements, and shall render to the president andBoard of Directors, at the regular meetings of theBoard of Directorsor whenever it may so require, an account of all his or her transactions as treasurer and of the financial condition of the Corporation.
Section 13. 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 the president or theBoard of Directors.
Section 14. COMPENSATION. The compensation of the officers shall be fixed from time to time by or under the authority of theBoard of Directorsand no officer shall be prevented from receiving such compensation by reason of the fact that he or she is also a director.
| 17 |
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. CONTRACTS. TheBoard of Directorsor any manager of the Corporation approved by theBoard of Directorsand acting within the scope of its authority pursuant to amanagement agreementwith the Corporation 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 executed by an authorizedpersonand duly authorized or ratified by action of theBoard of Directorsor a manager acting within the scope of its authority pursuant to amanagement agreement.
Section 2. 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 theBoard of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited or invested from time to time to the credit of the Corporation as theBoard of Directors, the chief executive officer, the chief financial officer, or any other officer designated by theBoard of Directorsmay determine.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. Except as may be otherwise provided by theBoard 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 theBoard of Directorsor a duly authorized officer, shall contain the statements and information required by theMGCLand shall be signed by the officers of the Corporation in the manner permitted by theMGCL. In the event that the Corporation issues shares of stock without certificates, to the extent then required by theMGCL, the Corporation shall provide to the record holders of such shares a written statement of the information required by theMGCLto 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.
Section 2. TRANSFERS. All transfers of shares of stock shall be made on the books of the Corporation, by the holder of the shares, inpersonor by his or her attorney, in such manner as theBoard of Directorsor 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 theBoard of Directorsthat such shares shall no longer be represented by certificates. Upon the transfer of uncertificated shares, to the extent then required by theMGCL, the Corporation shall provide to record holders of such shares a written statement of the information required by theMGCLto be included on stock certificates.
| 18 |
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 otherperson, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class or series of stock will be subject in all respects to theCharterand all of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. Any officer of the Corporation may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, destroyed, stolen or mutilated, upon the making of an affidavit of that fact by thepersonclaiming the certificate to be lost, destroyed, stolen or mutilated;provided, however, if such shares have ceased to be certificated, no new certificate shall be issued unless requested in writing by such stockholder and theBoard of Directorshas determined that such certificates 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 issuance 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 4. FIXING OF RECORD DATE. TheBoard of Directorsmay 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.
When a record date for the determination of stockholders entitled to notice of and to vote at any meeting of stockholders has been set as provided in this section, such record date shall continue to apply to the meeting if adjourned or postponed, except if the meeting is adjourned to a date more than 120 days or postponed to a date more than 90 days after the record date originally fixed for the meeting, in which case a new record date for such meeting may be determined as set forth herein.
Section 5. STOCK LEDGER. The Corporation shall maintain at its principal office or at the office of its counsel, accountants or transfer agent, an original or duplicate stock ledger containing the name and address of each stockholder and the number of shares of each class held by such stockholder.
Section 6. FRACTIONAL STOCK; ISSUANCE OF UNITS. TheBoard of Directorsmay issue fractional stock or provide for the issuance of scrip, all on such terms and under such conditions as they may determine. Notwithstanding any other provision of theCharteror these Bylaws, theBoard of Directorsmay 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 theBoard of Directorsmay 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.
| 19 |
ARTICLE VIII
ACCOUNTING YEAR
TheBoard of Directorsshall have the power, from time to time, to fix the fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the stock of the Corporation may be authorized by theBoard of Directors, subject to the provisions of law and theCharter. Dividends and other distributions may be paid in cash, property or stock of the Corporation, subject to the provisions of law and theCharter.
Section 2. 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 theBoard of Directorsmay from time to time, in its absolute discretion, think proper as a reserve fund for contingencies, for equalizing dividends, for repairing or maintaining any property of the Corporation or for such other purpose as theBoard of Directorsshall determine, and theBoard of Directorsmay modify or abolish any such reserve.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of theCharter, theBoard of Directorsmay 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 1. SEAL. TheBoard of Directorsmay authorize the adoption of asealby the Corporation. Thesealshall contain the name of the Corporation and the year of its incorporation and the words “Incorporated Maryland.” TheBoard of Directorsmay authorize one or more duplicate seals and provide for the custody thereof.
Section 2. AFFIXINGSEAL. Whenever the Corporationis permitted or required to affix itssealto 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 thepersonauthorized to execute the document on behalf of the Corporation.
| 20 |
ARTICLE XII
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 the proceeding by reason of his or her service in that capacity or(b) any individual who, while a director or officer of the Corporation and at the request of the Corporation, serves or has served as a director, officer, partner or trustee of another corporation, real estate investment trust, 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 theCharterand these Bylaws shall vest immediately upon election of a director or officer. The Corporation may, with the approval of itsBoard 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 anypersonseeking indemnification or payment or reimbursement of expenses may be or may become entitled under any bylaw, regulation, insurance, agreement or otherwise.
Neither the amendment nor repeal of this Article, nor the adoption or amendment of any other provision of the Bylaws or theCharterinconsistent 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 notice of a meeting is required to be given pursuant to theCharteror these Bylaws or pursuant to applicable law, a waiver thereof in writing, signed by thepersonor 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, unless specifically required by statute. The attendance of anypersonat any meeting shall constitute a waiver of notice of such meeting, except where suchpersonattends a meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENTOF BYLAWS
TheBoard of Directorsshall have the exclusive power to adopt, alter or repeal any provision of these Bylaws and to make new Bylaws.
| 21 |