MISSION WEST PROPERTIES, INC.
RESTATED BYLAWS
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE. The principal office of the Corporation shall be
located at such place or places as the Board of Directors may designate.
SECTION 2. ADDITIONAL OFFICES. The Corporation may have additional offices at
such places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE. All meetings of stockholders shall be held at the principal
office of the Corporation or at such other place within the United States as
shall be 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 a date and at the time set by the Board of
Directors.
SECTION 3. SPECIAL MEETINGS. The president, chief executive officer or Board of
Directors 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 a
majority 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 inform such stockholders of the reasonably
estimated cost of preparing and mailing notice of the meeting and, upon payment
to the Corporation by such stockholders of such costs, the secretary shall give
notice to each stockholder entitled to notice of the meeting.
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 written or printed notice 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, either by
mail or by presenting it to such stockholder personally or by leaving it at his
residence or usual place of business. If mailed, such notice shall be deemed to
be given when deposited in the United States mail addressed to the stockholder
at his post office address as it appears on the records of the Corporation, with
postage thereon prepaid.
SECTION 5. SCOPE OF NOTICE. 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.
SECTION 6. ORGANIZATION. At every meeting of stockholders, the chairman of the
board, if there be one, shall conduct the meeting or, in the case of vacancy in
office or absence of the chairman of the board, one of the following officers
present shall conduct the meeting in the order stated: the vice chairman of the
board, if there be one, the president, the vice presidents in their order of
rank and seniority, or a chairman chosen by the stockholders entitled to cast a
majority of the votes which all stockholders present in person or by proxy are
entitled to cast, shall act as chairman, and the secretary, or, in his absence,
an assistant secretary, or in the absence of both the secretary and assistant
secretaries, a person appointed by the chairman shall act as secretary.
SECTION 7. QUORUM. At any meeting of stockholders, the presence in person or by
proxy of stockholders entitled to cast a majority of all the votes entitled to
be cast at such meeting shall constitute a quorum; but this section shall not
affect any requirement under any statute or the charter of the Corporation for
the vote necessary for the adoption of any measure. If, however, such quorum
shall not be present at any meeting of the stockholders, the stockholders
entitled to vote at such meeting, present in person or by proxy, shall have the
power to adjourn the meeting 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.
SECTION 8. 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 the charter of the Corporation. Unless
otherwise provided in the charter, each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
stockholders.
SECTION 9. PROXIES. A stockholder may cast the votes entitled to be cast by the
shares of the stock owned of record by him either in person or by proxy executed
in writing by the stockholder or by his duly authorized agent. Such proxy shall
be filed with the secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
SECTION 10. 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 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 or other
fiduciary may vote stock registered in his name as such fiduciary, either in
person or 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.
The Board of Directors 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 date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
Notwithstanding any other provision of the charter of the Corporation or these
Bylaws, Title 3, Subtitle 7 of the Corporations and Associations Article of the
Annotated Code of Maryland (or any successor statute) 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 11. INSPECTORS. At any meeting of stockholders, the chairman of the
meeting may appoint one or more persons as inspectors for such meeting. Such
inspectors shall ascertain and report the number of shares represented at the
meeting based upon their determination of the validity and effect of proxies,
count all votes, report the results and perform such other acts as are proper to
conduct the election and voting with impartiality and fairness to all the
stockholders.
Each report of an inspector shall be in writing and signed by him 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.
SECTION 12. NOMINATIONS AND PROPOSALS BY STOCKHOLDERS.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and
the proposal of 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
the Board of Directors, (iii) by any stockholder of the
Corporation who was a stockholder of record both at the time of
giving of notice provided for in this Section 12(a) and at the
time of the annual meeting, who is entitled to vote at the
meeting and who complied with the notice procedures set forth in
this Section 12(a), or (iv) as provided below in Section 14.
(2) For nominations 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 12, 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 stockholders. To be timely, a stockholder's
notice shall be delivered to the secretary at the principal
executive offices of the Corporation not later than the close of
business on the 60th day nor earlier than the close of business
on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that
the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date or if
the Corporation has not previously held an annual meeting, notice
by the stockholder to be timely must be so delivered not earlier
than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of
the 60th day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of
such meeting is first made by the Corporation. In no event shall
the public announcement of a postponement or adjournment of an
annual meeting to a later date or time commence a new time period
for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (i) as to each person whom
the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election
of directors in an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (including
such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected);
(ii) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest
in such business of such stockholder and of the beneficial owner,
if any, on whose behalf the proposal is made; and (iii) as to the
stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made, (x) the name
and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (y) the
number of shares of each class of stock of the Corporation which
are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(a)(2) of this Section 12 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is
increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of
the increased Board of Directors at least 70 days prior to the
first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 12(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 offices of the
Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made
by the Corporation.
(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 persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors
are to be elected (i) pursuant to the Corporation's notice of meeting,
(ii) by or at the direction of the Board of Directors, (iii) provided
that the Board of Directors has determined that directors shall be
elected at such special meeting, 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 12(b) and at the time of the special
meeting, who is entitled to vote at the meeting and who complied with
the notice procedures set forth in this Section 12(b) or (iv) in any
event, as provided in Section 14. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or
more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be) for election to such
position as specified in the Corporation's notice of meeting, if the
stockholder's notice containing the information required by paragraph
(a)(2) of this Section 12 shall be delivered to the secretary at the
principal executive offices of the Corporation not earlier than the
close of business on the 90th day prior to such special meeting and
not later than the close of business on the later of the 60th day
prior to such special meeting or 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 the Board of Directors to be
elected at such meeting. In no event shall the public announcement of
a postponement or adjournment of a special meeting to a later date or
time commence a new time period for the giving of a stockholder's
notice as described above.
(c) General.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 12 or in Section 14 shall be
eligible to serve 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 the procedures set forth in
this Section 12. The chairman of the meeting shall have the power
and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the 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
nomination or proposal shall be disregarded.
(2) For purposes of this Section 12, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable news service or in a
document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 12, a
stockholder shall also comply with all applicable requirements of
state law and of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
12. Nothing in this Section 12 shall be deemed to affect any
rights of stockholders to request inclusion of proposals in, nor
any right of the Corporation to omit a proposal from, the
Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act.
SECTION 13. VOTING BY BALLOT. Voting on any question or in any election may be
by voice unless the presiding officer shall order or any stockholder shall
demand that voting be by ballot.
SECTION 14. NOMINATION AND ELECTION OF BERG GROUP DIRECTOR REPRESENTATIVES. The
Board of Directors shall include among its members two individuals nominated by
Carl E. Berg, Clyde J. Berg, the members of their respective immediate families
and certain entities controlled by Carl E. Berg and/or Clyde J. Berg which are
Berg & Berg Enterprises, Inc., Baccarat Cambrian Partnership, Baccarat Fremont
Developers LLC and DeAnza Office Partners (collectively the "Berg Group") and
their affiliates (the "Berg Group Board Representatives") so long as the members
of the Berg Group, together with their affiliates (other than the Corporation or
Mission West Properties, L.P., Mission West Properties, L.P. I, Mission West
Properties, L.P. II or Mission West Properties, L.P. III (collectively, the
"Operating Partnership"), in the aggregate, own at least 15% of the total number
of shares of voting stock of the Corporation (taking into account the
conversion, exchange or exercise of all outstanding warrants, options,
convertible securities and other rights to acquire voting stock of the
Corporation and all units of limited partnership interests in the Operating
Partnership exchangeable or redeemable for Common Stock or other voting stock of
the Corporation (without regard to any ownership limit set forth in the
Corporation's charter, the Bylaws or any agreement) (the "Fully-Diluted" number
of shares)). Further, Carl E. Berg shall have the right and power to designate
an individual to replace him on the Board of Directors in the event of his
death, disability or other event which results in Mr. Berg no longer being a
director (the "Berg Designee") to the extent and in the manner set forth in
Article III. The Berg Group shall exercise their rights to name directors
provided in this Section 14 by submitting to the Board of Directors prior to any
annual meeting or other meeting at which directors are elected the name(s) of
the Berg Group nominee(s). One of such directors shall be Carl E. Berg or the
Berg Designee. In the event the Berg Group and their affiliates (other than the
Company and the Operating Partnership), in the aggregate, own less than 15%, but
at least 10%, of the Fully-Diluted number of shares, the Berg Group may nominate
only one director to be a Berg Group Board Representative.
A Berg Group Board Representative may not be replaced, whether by election or
filling of a vacancy, by any individual who has not been nominated by the Berg
Group, and Carl E. Berg may be replaced, whether by election or filling of a
vacancy, only by the Berg Designee, or if there is no Berg Designee, by another
individual nominated by the Berg Group. In the event of doubt concerning the
identification of the nominees of the Berg Group, prior to any meeting of
stockholders at which directors are to be elected, the chief executive officer
or presiding officer, if a different person, shall ask the Berg Group members to
cast ballots, and the one or two individuals, as the case may be, selected by
the holders of a majority of all of the Fully-Diluted shares held by the Berg
Group members shall be deemed to be the nominees of the Berg Group.
As used in this Section 14 the term "affiliate" shall have the meaning ascribed
to it by Rule 12b-2 promulgated under the Exchange Act.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation shall be
managed under the direction of its Board 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 entire Board of
Directors may establish, increase or decrease the number of directors, provided
that the number thereof shall never be less than the minimum number required by
the Maryland General Corporation Law, 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. In accordance with Article II, Section 14 of these
Bylaws, it shall be a qualification of two directors that they be nominated by
the Berg Group and that one such director be Carl E. Berg or the Berg Designee
as long as the Berg Group and its affiliates (other than the Company and the
Operating Partnership) own at least 15% of the Fully-Diluted number of shares;
provided further that it shall be a qualification of one director that such
director be nominated by the Berg Group if such ownership percentage is less
than 15% but at least 10% of the Fully-Diluted number of shares.
SECTION 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the Board of
Directors shall be held immediately after and at the same place as the annual
meeting of stockholders, no notice other than this Bylaw being necessary. The
Board of Directors may provide, by resolution, the time and place, either within
or without the State of Maryland, for the holding of regular meetings of the
Board of Directors without other notice than such resolution.
SECTION 4. SPECIAL MEETINGS. Special meetings of the Board of Directors may be
called by or at the request of the chairman of the board, president or by a
majority of the directors then in office. The person or persons authorized to
call special meetings of the Board of Directors may fix any place, either within
or without the State of Maryland, as the place for holding any special meeting
of the Board of Directors called by them.
SECTION 5. NOTICE. Notice of any special meeting of the Board of Directors shall
be delivered personally or by telephone, facsimile transmission, United States
mail or courier to each director at his business or residence address. Notice by
personal delivery, by telephone or a facsimile transmission shall be given at
least two days prior to the meeting. Notice by mail shall be given at least five
days prior to the meeting and shall be deemed to be given when deposited in the
United States mail properly addressed, with postage thereon prepaid. Telephone
notice shall be deemed to be given when the director is personally given such
notice in a telephone call to which he is a party. 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. Neither the business to be transacted
at, nor the purpose of, any annual, regular or special meeting of the Board of
Directors need be stated in the notice, unless specifically required by statute
or these Bylaws.
SECTION 6. QUORUM.
(a) Subject to the requirements of paragraph (b) of this Section 6, a
majority of the directors shall constitute a quorum for transaction of
business at any meeting of the Board of Directors, provided that, if
less than a majority of such directors are present at said 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
the charter of the Corporation or these Bylaws, the vote of a majority
of a particular group of directors is required for action, a quorum
must also include a majority of such group.
(b) Until the date on which the Berg Group and their affiliates (other
than the Company and the Operating Partnership) own less than 15% of
the Fully-Diluted number of shares, all meetings of the Board of
Directors shall require the presence of Carl E. Berg or in the event
of his death, disability or other event which results in Mr. Berg no
longer being a director, the presence of the Berg Designee. Mr. Berg
shall submit a written statement identifying the Berg Designee to the
Company from time to time to permit identification of the Berg
Designee in the event that death, disability or other event results in
a vacancy on the Board of Directors as a result of Mr. Berg's
inability to serve as a director. Mr. Berg may amend the statement at
his sole discretion. The foregoing notwithstanding meetings of the
Board of Directors may be held without the presence of Mr. Berg or the
Berg Designee with the written consent or waiver of Mr. Berg or the
Berg Designee.
(c) Subject to the foregoing, the directors present at a meeting which has
been duly called and convened may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to
leave less than a quorum.
SECTION 7. VOTING.
(a) Except as provided in paragraph (a) and (b) of this Section 7, the
action of the majority of the directors present at a meeting at which
a quorum is present shall be the action of the Board of Directors,
unless the concurrence of a greater proportion is required for such
action by applicable statute.
(b) The approval of more than 75% of all of the directors then serving on
the Board of Directors shall be required to approve (i) acquisitions
of assets or conduct of any business other than, in either case,
through the Operating Partnership, (ii) the termination of the
Corporation's status as a REIT or (iii) the Corporation's incurring
indebtedness for borrowed funds exceeding 50% of the market value of
the outstanding Common Stock determined as if all outstanding units of
limited partnership interests in the Operating Partnership had been
converted into Common Stock, plus the market value of all other
publicly traded securities of the Corporation outstanding from time to
time, plus the total debt of the Corporation and the Operating
Partnership.
SECTION 8. TELEPHONE MEETINGS. Directors may participate in a meeting by means
of a conference telephone or similar 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 9. INFORMAL ACTION BY DIRECTORS. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting,
if a consent in writing to such action is signed by each director and such
written consent is filed with the minutes of proceedings of the Board of
Directors.
SECTION 10. 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 (even if fewer than three
directors remain). Any vacancy on the Board of Directors for any cause other
than an increase in the number of directors, or a vacancy created by Carl E.
Berg's resignation, death or disability which is filled by the Berg Designee,
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. Any individual so elected as director shall hold
office until the next annual meeting of stockholders and until his successor is
elected and qualifies.
SECTION 11. COMPENSATION. Directors shall receive a salary for their services as
directors as set forth in a resolution of the Board of Directors, and 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 the Board of Directors or 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 12. 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 13. 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
duties. SECTION 14. RELIANCE. Each director, officer, employee and agent of the
Corporation shall, in the performance of his duties with respect to the
Corporation, be fully 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.
SECTION 15. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. The
directors shall have no responsibility to devote their full time to the affairs
of the Corporation. Except as provided otherwise in any agreement between the
Corporation and the affected person, any director or officer, employee or agent
of the Corporation, in his 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 or in addition to or in
competition with those of or relating to the Corporation.
ARTICLE IV
COMMITTEES
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors may appoint
from among its members an Executive Committee, an Audit Committee, a
Compensation Committee, and other committees, composed of one or more directors,
to serve at the pleasure of the Board of Directors.
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 and these Bylaws.
SECTION 3. MEETINGS. Notice of committee meetings shall be given in the same
manner as notice for special meetings of the 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. The Board of
Directors may designate a chairman of any committee, and such chairman may fix
the time and place of its meeting unless the Board 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.
SECTION 4. TELEPHONE MEETINGS. Members of a committee of the Board of Directors
may participate in a meeting by means of a conference telephone or similar
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 5. INFORMAL ACTION BY COMMITTEES. Any action required or permitted to be
taken at any meeting of a committee of the Board of Directors may be taken
without a meeting, if a consent in writing to such action is signed by each
member of the committee and such written consent is filed with the minutes of
proceedings of such committee.
SECTION 6. VACANCIES. Subject to the provisions hereof, the Board of Directors
shall have the power at any time to change the membership of any committee, to
fill all vacancies, to designate alternate members to replace any absent or
disqualified member or to dissolve any such committee.
ARTICLE V
OFFICERS
SECTION 1. GENERAL PROVISIONS. The officers of the Corporation shall include a
chief executive officer, a president, a secretary and a treasurer and may
include a chairman of the board, a vice chairman of the board, 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, the
Board of Directors may from time to time appoint 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 the Board of Directors at the first
meeting of the Board of Directors held after each annual meeting of
stockholders, except that the chief executive officer may appoint one or more
vice presidents, assistant secretaries and assistant treasurers. If the election
of officers shall not be held at such meeting, such election shall be held as
soon thereafter as may be convenient. Each officer shall hold office until his
successor is elected and qualifies or until his death, resignation or removal in
the manner hereinafter provided. Any two or more offices except president and
vice president may be held by the same person. In its discretion, the Board of
Directors may leave unfilled any office except that of president, treasurer and
secretary. Election of an officer or agent shall not of itself create contract
rights between the Corporation and such officer or agent.
SECTION 2. REMOVAL AND RESIGNATION. Any officer or agent of the Corporation may
be removed by the Board of Directors 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 by giving written notice of his
resignation to the Board of Directors, the chairman of the board, the president
or the secretary. Any resignation shall take effect at any time subsequent to
the time specified therein or, if the time when it shall become effective is not
specified therein, immediately upon its receipt. 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 the Board of
Directors for the balance of the term.
SECTION 4. 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.
SECTION 5. CHIEF OPERATING OFFICER. The Board of Directors may designate a chief
operating officer. The chief operating officer shall have the responsibilities
and duties as set forth by the Board of Directors or the chief executive
officer.
SECTION 6. CHIEF FINANCIAL OFFICER. The Board of Directors may designate a chief
financial officer. The chief financial officer shall have the responsibilities
and duties as set forth by the Board of Directors or the chief executive
officer.
SECTION 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 shall be present.
The chairman of the board shall perform such other duties as may be assigned to
him by the Board of Directors.
SECTION 8. PRESIDENT. The president or chief executive officer, as the case may
be, 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
the Board of Directors, the president shall be the chief operating officer. He
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 president and such other duties as
may be prescribed by the Board of Directors from time to time.
SECTION 9. 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 him by the president or by the Board of Directors. The Board of
Directors may designate one or more vice presidents as executive vice president
or as vice president for particular areas of responsibility.
SECTION 10. SECRETARY. The secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors 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 share transfer books of the Corporation; and (f) in
general perform such other duties as from time to time may be assigned to him by
the chief executive officer, the president or by the Board of Directors.
SECTION 11. 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 the Board of
Directors. In the absence of a designation of a chief financial officer by the
Board 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
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the president and Board of Directors, at the regular meetings of the
Board of Directors or whenever it may so require, an account of all his
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 office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, moneys and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
SECTION 12. 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 the Board of Directors. 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.
SECTION 13. SALARIES. The salaries and other compensation of the officers shall
be fixed from time to time by the Board of Directors and no officer shall be
prevented from receiving such salary or other compensation by reason of the fact
that he is also a director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
SECTION 1. CONTRACTS. The 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 executed by one or more of the directors or by an authorized person
shall be valid and binding upon the Board of Directors and upon the Corporation
when authorized or ratified by action of the Board of Directors.
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 the Board of Directors.
SECTION 3. DEPOSITS. All funds of the Corporation not otherwise employed shall
be deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may designate.
ARTICLE VII
STOCK
SECTION 1. CERTIFICATES. Each stockholder shall be entitled to a certificate or
certificates which shall represent and certify the number of shares of each
class of stock held by him in the Corporation. Each certificate shall be signed
by the chief executive officer, the president or a vice president and
countersigned by the secretary or an assistant secretary or the treasurer or an
assistant treasurer and may be sealed with the seal, if any, of the Corporation.
The signatures may be either manual or facsimile. Certificates shall be
consecutively numbered; and if the Corporation shall, from time to time, issue
several classes of stock, each class may have its own number series. A
certificate is valid and may be issued whether or not an officer who signed it
is still an officer when it is issued. Each certificate representing shares
which are restricted as to their transferability or voting powers, which are
preferred or limited as to their dividends or as to their allocable portion of
the assets upon liquidation or which are redeemable at the option of the
Corporation, shall have a statement of such restriction, limitation, preference
or redemption provision, or a summary thereof, plainly stated on the
certificate. If the Corporation has authority to issue stock of more than one
class, the certificate shall contain on the face or back a full statement or
summary of the designations and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of each
class of stock and, if the Corporation is authorized to issue any preferred or
special class in series, the differences in the relative rights and preferences
between the shares of each series to the extent they have been set and the
authority of the Board of Directors to set the relative rights and preferences
of subsequent series. In lieu of such statement or summary, the certificate may
state that the Corporation will furnish a full statement of such information to
any stockholder upon request and without charge. If any class of stock is
restricted by the Corporation as to transferability, the certificate shall
contain a full statement of the restriction or state that the Corporation will
furnish information about the restrictions to the stockholder on request and
without charge.
SECTION 2. TRANSFERS. Upon surrender to the Corporation or the transfer agent of
the Corporation of a stock certificate duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
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 otherwise provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class of stock will be
subject in all respects to the charter of the Corporation and all of the terms
and conditions contained therein, and to the terms of any written agreement
between the Corporation and a stockholder with respect to share transfers
subject to the terms of such agreement.
SECTION 3. REPLACEMENT CERTIFICATE. Any officer designated by the Board of
Directors may direct a new certificate to be issued in place of any certificate
previously issued by the Corporation alleged to have been lost, stolen or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate to be lost, stolen or destroyed. When authorizing the issuance
of a new certificate, an officer designated by the Board of Directors may, in
his discretion and as a condition precedent to the issuance thereof, 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.
SECTION 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The Board of
Directors 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 thirtieth 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,
declaring the dividend or allotment of rights, is adopted.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this section, such determination shall
apply to any 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 is adjourned to a date more than 120 days after
the record date fixed for the original meeting, in either of which case a new
record date shall 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 share 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. The Board of Directors may 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 the charter or these Bylaws, the Board of Directors 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 the Board of Directors 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
The Board of Directors 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 1. AUTHORIZATION. Dividends and other distributions upon the stock of
the Corporation may be authorized and declared by the Board of Directors,
subject to the provisions of law and the charter of the Corporation. Dividends
and other distributions may be paid in cash, property or stock of the
Corporation, subject to the provisions of law and the charter.
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 the Board of
Directors 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 the Board of Directors shall determine to be in the best interest of
the Corporation, and the Board of Directors may modify or abolish any such
reserve in the manner in which it was created.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the Board of
Directors 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 1. SEAL. The Board of Directors 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 in Maryland." The Board of
Directors may authorize one or more duplicate seals and provide for the custody
thereof.
SECTION 2. 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
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 a party to the proceeding by reason of his service in that capacity
or (b) any individual who, while a director of the Corporation and at the
request of the Corporation, serves or has served another corporation, real
estate investment trust, partnership, joint venture, trust, employee benefit
plan or any other enterprise as a director, officer, partner or trustee of such
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise and who is made a party to the
proceeding by reason of his service in that capacity. The Corporation may, with
the approval of its Board of Directors, provide such indemnification and advance
for expenses to a person who served a predecessor of the Corporation in any of
the capacities described in (a) or (b) above and to any employee or agent of the
Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or amendment
of any other provision of the Bylaws or charter of the Corporation 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 notice is required to be given pursuant to the charter of the
Corporation or these Bylaws or pursuant to applicable law, a waiver thereof in
writing, signed 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, 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 meeting is not lawfully called or convened.
ARTICLE XIV
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or repeal
any provision of these Bylaws and to make new Bylaws subject to the provisions
of the corporation's charter and Article III, Section 7 of these Bylaws.