1
AMENDED
AND
RESTATED
BYLAWS
OF
SUNSTONE HOTEL INVESTORS, INC.
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TABLE OF CONTENTS
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ARTICLE I -- Offices....................................................... 1
Section 1. Principal Office...................................... 1
Section 2. Additional Offices.................................... 1
Section 3. Fiscal and Taxable Years.............................. 1
ARTICLE II -- Definitions.................................................. 1
ARTICLE III -- Meetings of Shareholders.................................... 2
Section 1. Place................................................. 2
Section 2. Annual Meeting........................................ 2
Section 3. Special Meetings...................................... 2
Section 4. Notice................................................ 2
Section 5. Organization.......................................... 2
Section 6. Quorum................................................ 3
Section 7. Voting................................................ 3
Section 8. Proxies............................................... 3
Section 9. Voting of Shares by Certain Holders................... 3
Section 10. Inspectors............................................ 4
Section 11. Determination of Shareholders of Record............... 4
Section 12. Action Without a Meeting.............................. 5
Section 13. Voting by Ballot...................................... 5
Section 14. Control Share Acquisition Statute..................... 5
ARTICLE IV -- Directors.................................................... 5
Section 1. General Powers........................................ 5
Section 2. Number, Tenure and Qualifications..................... 5
Section 3. Changes in Number; Vacancies.......................... 6
Section 4. Resignations.......................................... 6
Section 5. Removal of Directors.................................. 6
Section 6. Annual and Regular Meetings........................... 6
Section 7. Special Meetings...................................... 6
Section 8. Notice................................................ 6
Section 9. Quorum................................................ 7
Section 10. Voting................................................ 7
Section 11. Telephone Meetings.................................... 8
Section 12. Action Without a Meeting.............................. 8
Section 13. Compensation.......................................... 8
Section 14. Policies and Resolutions.............................. 8
ARTICLE V -- Committees.................................................... 8
Section 1. Committees of the Board............................... 8
(i)
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TABLE OF CONTENTS
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Section 2. Telephone Meetings.................................... 9
Section 3. Action By Committees Without a Meeting................ 9
ARTICLE VI -- Officers..................................................... 9
Section 1. General Provisions.................................... 9
Section 2. Subordinate Officers, Committees and Agents........... 10
Section 3. Removal and Resignation............................... 10
Section 4. Vacancies............................................. 10
Section 5. General Powers........................................ 10
Section 6. Chief Executive Officer............................... 10
Section 7. Chief Operating Officer............................... 10
Section 8. Chairman and Vice Chairman of the Board............... 11
Section 9. President............................................. 11
Section 10. Vice Presidents....................................... 11
Section 11. Secretary............................................. 11
Section 12. Chief Financial Officer or Treasurer.................. 11
Section 13. Assistant Secretaries and Assistant Treasurers........ 12
Section 14. Salaries.............................................. 12
ARTICLE VII -- Contracts, Notes, Checks and Deposits....................... 12
Section 1. Contracts............................................. 12
Section 2. Checks and Drafts..................................... 12
Section 3. Deposits.............................................. 12
ARTICLE VIII -- Capital Shares..............................................13
Section 1. Certificates of Shares................................ 13
Section 2. Lost Certificate...................................... 13
Section 3. Transfer Agents and Registrars........................ 13
Section 4. Transfer of Shares.................................... 13
Section 5. Share Ledger.......................................... 14
ARTICLE IX - Dividends..................................................... 14
Section 1. Declaration........................................... 14
Section 2. Contingencies......................................... 14
ARTICLE X - Indemnification and Limitation of Liability.................... 14
Section 1. Indemnification of Agents............................. 14
Section 2. Insurance............................................. 15
Section 3. Indemnification Non-Exclusive......................... 15
Section 4. Limitation of Liability............................... 15
ARTICLE XI - Seal.......................................................... 15
Section 1. Seal.................................................. 15
Section 2. Affixing Seal......................................... 15
(ii)
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TABLE OF CONTENTS
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ARTICLE XII -- Waiver of Notice............................................. 16
ARTICLE XIII -- Amendment of Bylaws......................................... 16
Section 1. By Directors.......................................... 16
Section 2. By Shareholders....................................... 16
(iii)
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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
SUNSTONE HOTEL INVESTORS, INC.
ARTICLE I
Offices
Section 1. Principal Office. The principal office of SunStone Hotel
Investors, Inc. (the "Corporation") shall be located in California or at any
other 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 Trust may require.
Section 3. Fiscal and Taxable Years. The fiscal and taxable years of the
Corporation shall begin on January 1 and end on December 31.
ARTICLE II
Definitions
For purposes of these Bylaws, the following words shall have the
meanings set forth below:
(a) "Affiliate" of a person shall mean (i) any person that, directly
or indirectly, controls or is controlled by or is under common control with such
person, (ii) any other person that owns, beneficially, directly or indirectly,
five percent (5%) or more of the outstanding capital shares, shares or equity
interests of such person, or (iii) any officer, director, employee, partner or
trustee of such person or any person controlling, controlled by or under common
control with such person (excluding trustees and persons serving in similar
capacities who are not otherwise an Affiliate of such person). The term "person"
means and includes individuals, corporations, general and limited partnerships,
stock companies or associations, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts, or other entities
and governments and agencies and political subdivisions thereof. For the
purposes of this definition, "control" (including the correlative meanings of
the terms "controlled by" and "under common control with"), as used with respect
to any person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such person,
through the ownership of voting securities, partnership interests or other
equity interests.
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(b) "Independent Director" shall mean a Director of the Corporation,
other than C. Robert Enever, who is not an officer or employee of the
Corporation.
ARTICLE III
Meetings of Shareholders
Section 1. Place. All meetings of shareholders shall be held at Suite
203, 300 South El Camino Real, San Clemente, California 92672, or at such other
place within the United States as shall be stated in the notice of the meeting.
Section 2. Annual Meeting. The President or the Board of Directors may
fix the time of the annual meeting of the shareholders for the election of
Directors and the transaction of any business as may be properly brought before
the meeting, but if no such date and time is fixed by the President or the Board
of Directors, the meeting for any calendar year shall be held on the fourth
Thursday in May, if that day is not a legal holiday. If that day is a legal
holiday, the annual meeting shall be held on the next succeeding business day
that is not a legal holiday. Failure to hold an annual meeting does not
invalidate the Corporation's existence or affect any otherwise valid corporate
acts.
Section 3. Special Meetings. The President, a majority of the Board of
Directors or a majority of the Independent Directors may call special meetings
of the shareholders. Special meetings of shareholders also shall be called by
the Secretary upon the written request of the holders of shares entitled to cast
not less than ten percent (10%) of all the votes entitled to be cast at such
meeting. Such request shall state the purpose of such meeting and the matters
proposed to be acted on at such meeting. The Secretary shall inform such
shareholders of the reasonably estimated cost of preparing and mailing notice of
the meeting and, upon payment to the Corporation of such costs by such
shareholders, the Secretary shall give notice to each shareholder entitled to
notice of the meeting. Unless requested by shareholders entitled to cast a
majority of all the votes entitled to be cast at such meeting, a special meeting
need not be called to consider any matter which is substantially the same as a
matter voted on at any special meeting of the shareholders held during the
preceding twelve months.
Section 4. Notice. Not less than 10 nor more than 60 days before each
meeting of shareholders, the Secretary shall give to each shareholder entitled
to vote at such meeting and to each shareholder 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 statute, the purpose for which the meeting is called, either
by mail or by presenting it to such shareholder 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
shareholder at his post office address as it appears on the records of the
Corporation, with postage thereon prepaid.
Section 5. Organization. At every meeting of the shareholders, 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
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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
shareholders entitled to cast a majority of the votes which all shareholders
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 6. Quorum. At any meeting of shareholders, the presence in
person or by proxy of shareholders entitled to cast fifty percent (50%) of all
the votes entitled to be cast at such meeting shall constitute a quorum; but
this Section 7 shall not affect any requirement under any statute, the Charter
or these Bylaws for the vote necessary for the adoption of any measure. If such
quorum shall not be present at any meeting of the shareholders, the shareholders
representing a majority of the shares entitled to vote at such meeting, present
in person or by proxy, may vote 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 until such quorum shall be present. 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 7. Voting. A plurality of all the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be sufficient to
elect a director. There shall be no cumulative voting. Each common 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 shareholders 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,
by the Charter or by these Bylaws. Each shareholder of record shall have the
right, at every meeting of shareholders, to one vote for each share held, except
shares which are the subject of a redemption notice as provided in the Charter.
Section 8. Proxies. A shareholder may vote the common shares owned of
record by him, either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney in fact. 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 9. Voting of Shares by Certain Holders. Shares registered in the
name of a trust or another corporation, if entitled to be voted, may be voted by
the president, a vice president or a proxy appointed by the president or a vice
president of such trust or other corporation, unless some other person who has
been appointed to vote such shares pursuant to a bylaw or a resolution of the
board of such trust or other corporation presents a certified copy of such bylaw
or resolution, in which case such person may vote such shares. Any fiduciary may
vote shares registered in his name as such fiduciary, either in person or by
proxy.
Shares indirectly owned by this Corporation 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 all be counted in
determining the total number of outstanding shares at any given time.
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The Board of Directors may adopt by resolution a procedure by which a
shareholder may certify in writing to the Corporation that any shares registered
in the name of the shareholder are held for the account of a specified person
other than the shareholder. The resolution shall set forth the class of
shareholders 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 share transfer books, the time after the record date or closing
of the share 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 shareholder of record of
the specified shares in place of the shareholder who makes the certification.
Section 10. Inspectors. At any meeting of shareholders, the Chairman of
the meeting may, or upon the request of any shareholder shall, 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 shareholders.
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 11. Determination of Shareholders of Record. The Board of
Directors shall fix a date, not more than sixty (60) nor less than ten (10) days
preceding the date of any meeting of shareholders, and not more than sixty (60)
days preceding the date fixed for the payment of any dividend or distribution,
or the date for the allotment of rights, or the date when any change or
conversion or exchange of shares will be made or go into effect, as a record
date for the determination of the shareholders entitled to notice of, or to vote
at, any such meeting, or entitled to receive any such dividend or distribution
or allotment of rights, or to exercise the rights in respect to any such change,
conversion or exchange of shares.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this Section 12, such determination
shall apply to any adjournment thereof unless the meeting is adjourned to a date
more than 120 days after the date fixed for the original meeting, in which case
the Board of Directors shall fix a new record date.
Section 12. Action Without a Meeting. Any action required or permitted
to be taken at a meeting of shareholders may be taken without a meeting if a
consent in writing, setting forth such action, is signed by each shareholder
entitled to vote on the matter and any other shareholder entitled to notice of a
meeting of shareholders (but not to vote thereat) has waived in writing any
right to dissent from such action, and such consent and waiver are filed with
the minutes of proceedings of the shareholders.
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Section 13. Voting by Ballot. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
Section 14. Control Share Acquisition Statute. Subtitle 7 of Title 3 of
the Maryland General Corporation Law does not apply to any acquisition of shares
of capital stock of the Corporation.
ARTICLE IV
Directors
Section 1. General Powers. The Board of Directors shall have full power
to conduct, manage, and direct the business and affairs of the Corporation, and
all powers of the Corporation, except those specifically reserved or granted to
the shareholders by statute or by the Charter or these Bylaws, shall be
exercised by, or under the authority of, the Board of Directors. Unless
otherwise agreed between the Corporation and the Director, each individual
Director, including each Independent Director, may engage in other business
activities of the type conducted by the Corporation and is not required to
present to the Corporation any investment opportunities presented to them even
though the investment opportunities may be within the scope of the Corporation's
investment policies.
Section 2. Number, Tenure and Qualifications. The number of Directors of
the Corporation shall be not less than three (3) nor more than nine (9) members,
with the exact number of directors to be fixed from time to time within this
range by the shareholders or by the affirmative vote of at least 80% of the
members of the Board of Directors, but shall never be less than the minimum
number permitted by the General Laws of the State of Maryland now or hereafter
in force. At each annual meeting of shareholders, the shareholders shall elect
Directors to serve until the date of the third annual meeting of shareholders
following their election and until their successors are elected and qualify.
Directors need not be shareholders in the Corporation.
At all times (except (i) during a period not to exceed 60 days following
the death, resignation, incapacity or removal from office of a Director prior to
the expiration of the Director's term of office or (ii) prior to the closing
date of the Initial Public Offering (as hereinafter defined) and the
consummation of all transactions related thereto), a majority of the Directors
shall be Independent Directors.
Section 3. Changes in Number; Vacancies. Any vacancy occurring on the
Board of Directors may, subject to the provisions of Section 5 of this Article
IV, be filled by a majority of the remaining members of the Board of Directors,
although such majority is less than a quorum; provided, however, that a majority
of Independent Directors shall nominate replacements for vacancies among the
Independent Directors, which replacements must be elected by a majority of the
Directors, including a majority of the Independent Directors. Any vacancy
occurring by reason of an increase in the number of Directors may be filled by
action of a majority of the entire Board of Directors including a majority of
Independent Directors. If the shareholders of any class or series are entitled
separately to elect one or more Directors, a majority of the remaining Directors
elected by that class or series or the sole remaining Director elected by that
class or series may fill any vacancy among
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the number of Directors elected by that class or series. A Director elected by
the Board of Directors to fill a vacancy shall be elected to hold office until
the next annual meeting of shareholders or until his successor is elected and
qualified. The Board of Directors may declare unqualified a Director who has
been declared of unsound mind by an order of court, who has pled guilty or nolo
contendere to, or been convicted of, a felony involving moral turpitude, or who
has willfully violated the Corporation's Charter or these Bylaws. The office of
a Director declared unqualified shall be considered vacant until filled as
herein provided.
Section 4. Resignations. Any Director or member of a committee may
resign at any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or if no time be specified, at the time of
the receipt by the Chairman of the Board, the President or the Secretary.
Section 5. Removal of Directors. The shareholders may, at any time,
remove any Director, with or without cause, by the affirmative vote of the
holders of not less than two-thirds (66 2/3%) of all the shares entitled to vote
on the election of Directors and may elect a successor to fill any resulting
vacancy for the balance of the term of the removed Director by the affirmative
vote of the holders of not less than a majority of all the shares entitled to
vote on the election of Directors.
Section 6. 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 shareholders, 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 California, for the holding of regular meetings of the
Board of Directors without other notice than such resolution.
Section 7. Special Meetings. Special meetings of the Board of Directors
may be called by or at the request of the President, a majority of the Board of
Directors or a majority of the Independent 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 California, as the place for
holding any special meeting of the Board of Directors called by them.
Section 8. Notice. Notice of any special meeting of the Board of
Directors shall be given by written notice delivered personally, telegraphed or
mailed to each Director at his business or resident address. Personally
delivered or telegraphed notices 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.
If mailed, such notice shall be deemed to be given when deposited in the United
States mail properly addressed, with postage thereon prepaid. If given by
telegram, such notice shall be deemed to be given when the telegram is delivered
to the telegraph company. 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 9. Quorum. Subject to the provisions of Section 10(b) of this
Article IV, a majority of the entire Board of Directors shall constitute a
quorum for transaction of business at any meeting of the Board of Directors,
provided that, if less than a quorum is present at said meeting, a majority of
the Directors present may adjourn the meeting from time to time without further
notice.
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Subject to the provisions of Section 10(b) of this Article IV, 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 majority of the entire Board, provided,
that at least one-third of the entire Board of Directors remains present at that
meeting, in which case a quorum will still be deemed present.
Section 10. Voting. (a) Except as provided in subsection (b) of this
Section 10, 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 the
Charter, these Bylaws, or applicable statute.
(b) Notwithstanding anything in these Bylaws to the contrary, except
(a) during a period not to exceed sixty (60) days following the death,
resignation, incapacity or removal from office of a Director prior to the
expiration of the director's term in office or (b) prior to the closing date of
the Initial Public Offering (as hereinafter defined) and the consummation of all
transactions related thereto, (i) any action pertaining to a sale or other
disposition of a "Sunstone Hotel," as defined in the Corporation's registration
statement on Form S-11 (the "Registration Statement"), as declared effective by
the Securities and Exchange Commission (the "SEC") in connection with the
Corporation's initial public offering of common shares (the "Initial Public
Offering") and (ii) any other action pertaining to any transaction involving the
Corporation, including the purchase, sale, lease, or mortgage of any real estate
asset or any other transaction of a kind or nature typically requiring approval
by the
Board of Directors in which an advisor, Director or officer of the Corporation,
or any Affiliate of any of the foregoing persons, has any direct or indirect
interest other than solely as a result of their status as a director, officer,
or shareholder of the Corporation, must (x) be approved by a majority of the
Directors, including a majority of the Independent Directors, even if the
Independent Directors constitute less than a quorum, or (y) be authorized,
approved or ratified by a majority of the votes entitled to be cast by the
shareholders of the Corporation or (z) be fair and reasonable to the
Corporation.
Section 11. Telephone Meetings. Members 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 12. Action Without a Meeting. 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 13. Compensation. Independent Directors shall receive such
reasonable compensation for their services as Directors as the Board of
Directors may fix or determine from time to time; such compensation may include
a fixed sum, capital shares of the Corporation and reimbursement of reasonable
expenses incurred in traveling to and from or attending regular or special
meetings of the Board of Directors or of any committee thereof.
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Section 14. Policies and Resolutions. It shall be the duty of the Board
of Directors to insure that the purchase, sale, retention and disposal of the
Corporation's assets, the investment policies and the borrowing policies of the
Corporation and the limitations thereon or amendment thereof are all times:
(a) consistent with such policies, limitations and restrictions as
are contained in these Bylaws, or in the Corporation's Charter, or as described
in the Registration Statement or in the Corporation's ongoing periodic reports
filed with the SEC following the Initial Public Offering, subject to revision
from time to time at the discretion of the Board of Directors without
shareholder approval unless otherwise required by law; and
(b) in compliance with the restrictions applicable to real estate
investment trusts pursuant to the Internal Revenue Code of 1986, as amended.
ARTICLE V
Committees
Section 1. Committees of the Board. The Board of Directors may appoint
from among its members an executive committee and other committees comprised of
two or more Directors. A majority of the members of any committee so appointed
shall be Independent Directors. The Board of Directors shall appoint an audit
committee comprised of not less than two members, a majority of whom are
Independent Directors. The Board of Directors may delegate to any committee any
of the powers of the Board of Directors except the power to elect Directors,
declare dividends or distributions on shares, recommend to the shareholders any
action which requires shareholder approval, amend or repeal these Bylaws,
approve any merger or share exchange which does not require shareholder
approval, or issue shares. However, if the Board of Directors has given general
authorization for the issuance of shares, a committee of the Board of Directors,
in accordance with a general formula or method specified by the Board of
Directors by resolution or by adoption of a share option plan, may fix the terms
of shares, subject to classification or reclassification, and the terms on which
any shares may be issued.
Notice of committee meetings shall be given in the same manner as notice
for special meetings of the Board of Directors.
One-third, but not less than two, of the members of any committee shall
be present in person at any meeting of such committee in order to constitute a
quorum for the transaction of business at such meeting, and the act of a
majority present shall be the act of such committee. The Board of Directors may
designate a chairman of any committee, and such chairman or any two members of
any committee may fix the time and place of its meetings unless the Board shall
otherwise provide. In the absence or disqualification of any member of any such
committee, the members thereof present at any meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint another
Director to act at the meeting in the place of such absent or disqualified
members; provided, however, that in the event of the absence or disqualification
of an Independent Director, such appointee shall be an Independent Director.
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Each committee shall keep minutes of its proceedings and shall report
the same to the Board of Directors at the meeting next succeeding, and any
action by the committees shall be subject to revision and alteration by the
Board of Directors, provided that no rights of third persons shall be affected
by any such revision or alteration.
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 alternative members to replace any absent or
disqualified member, or to dissolve any such committee.
Section 2. 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 3. Action By Committees Without a Meeting. 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.
ARTICLE VI
Officers
Section 1. General Provisions. The officers of the Corporation may
consist of a Chairman of the Board, a Vice Chairman of the Board, a President,
one or more Vice Presidents, a Chief Financial Officer or Treasurer, one or more
assistant treasurers, a Secretary, and one or more assistant secretaries and
such other officers as may be elected in accordance with the provisions of
Section 2 of this Article VI. 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 shareholders. 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 may be held by the same
person. In its discretion, the Board of Directors may leave unfilled any office
except that of President and Secretary. Election appointment of an officer or
agent shall not of itself create contract rights between the Corporation and
such officer or agent.
Section 2. Subordinate Officers, Committees and Agents. The Board of
Directors may from time to time elect such other officers and appoint such
committees, employees, other agents as the business of the Corporation may
require, including one or more assistant secretaries, and one or more assistant
treasurers, each of whom shall hold office for such period, have such authority,
and perform such duties as are provided in these Bylaws, or as the Board of
Directors may from time to time determine. The Directors may delegate to any
officer or committee the power to elect subordinate officers and to retain or
appoint employees or other agents.
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Section 3. 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 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.
Section 4. Vacancies. A vacancy in any office may be filled by the Board
of Directors for the balance of the term.
Section 5. General Powers. All officers of the Corporation as between
themselves and the Corporation shall, respectively, have such authority and
perform such duties in the management of the property and affairs of the
Corporation as may be determined by resolution of the Board of Directors, or in
the absence of controlling provisions in a resolution of the Board of Directors,
as may be provided in these Bylaws.
Section 6. Chief Executive Officer. The Board of Directors may designate
a chief executive officer from among the elected officers. The chief executive
officer shall have responsibility for implementation of the policies of the
Corporation, as determined by the Board of Directors, and for the administration
of the business affairs of the Corporation.
Section 7. Chief Operating Officer. The Board of Directors may designate
a chief operating officer from among the elected officers. Said officer will
have the responsibility and duties as set forth by the Board of Directors or the
chief executive officer.
Section 8. Chairman and Vice Chairman of the Board. The Chairman of the
Board, if there be one, shall preside over the meetings of the Board of
Directors and of the shareholders at which he shall be present. In the absence
of the Chairman of the Board, the Vice Chairman of the Board, if there be one,
shall preside at such meetings at which he shall be present. The Chairman of the
Board and the Vice Chairman of the Board shall, respectively, perform such other
duties as may be assigned to him or them by the Board of Directors.
Section 9. President. The President shall in general supervise and
control all of the business and affairs of the Corporation. Unless the President
is not a member of the Board of Directors, in the absence of both the Chairman
and Vice Chairman of the Board, he shall preside at all meetings of the Board of
Directors and of the shareholders at which he shall be present. In the absence
of a designation of a chief executive officer by the Board of Directors, the
President shall be the chief executive officer and shall be ex officio a member
of all committees that may, from time to time, be constituted by the Board of
Directors. He may execute any deed, mortgage, bond, contract or other instrument
to which the Corporation is a party, 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
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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 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 the 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 11. Secretary. The Secretary shall (a) keep the minutes of the
proceedings of the shareholders, 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
shareholder which shall be furnished to the Secretary by such shareholder; (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 President or by the Board of Directors.
Section 12. Chief Financial Officer or Treasurer. The Chief Financial
Officer or Treasurer shall have the custody of the corporate funds and
securities 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.
He 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 they may require it, an account of all his
transactions as Chief Financial Officer or Treasurer and of the financial
condition of the Corporation.
If required by the Board of Directors, he 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, all books, papers, vouchers, moneys and other
property of whatever kind in his possession or under his control belonging to
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 the Chief Financial
Officer 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.
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Section 14. Salaries. The salaries 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 by reason of the fact that he is also a Director of the
Corporation.
ARTICLE VII
Contracts, Notes, 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.
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 officers, agent or agents of
the Corporation and 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 VIII
Capital Shares
Section 1. Certificates of Shares. Each shareholder shall be entitled to
a certificate or certificates which shall represent and certify the number of
shares of each kind and class of shares held by him in the Corporation. Each
certificate shall be signed by the Chairman of the Board or 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 corporate
seal.
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 shares, 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 is restricted as to its transferability or voting powers, which is
preferred or limited as to its dividends or as to its share of the assets upon
liquidation or which is 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. In lieu of such
statement or summary, the Corporation may set forth upon the face or back of the
certificate a statement that the Corporation will furnish to any shareholder,
upon request and without charge, a full statement of such information.
Section 2. Lost Certificate. 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
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destroyed upon the making of an affidavit of that fact by the person claiming
the shares certificate to be lost, stolen or destroyed. When authorizing the
issuance of a new certificate, the Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or his legal representative to advertise
the same in such manner as it 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 3. Transfer Agents and Registrars. At such time as the
Corporation lists its securities on a national securities exchange or qualifies
for trading in the over-the-counter market, the Board of Directors shall appoint
one or more banks or trust companies in such city or cities as the Board of
Directors may deem advisable, from time to time, to act as transfer agents
and/or registrars of the shares of the Corporation; and, upon such appointments
being made, no certificate representing shares shall be valid until
countersigned by one of such transfer agents and registered by one of such
registrars.
Section 4. Transfer of Shares. No transfers of shares of the Corporation
shall be made if (i) void ab initio pursuant to any provision of the
Corporation's Charter or (ii) the Board of Directors, pursuant to any provision
of the Corporation's Charter, shall have refused to permit the transfer of such
shares. Permitted transfers of shares of the Corporation shall be made on the
share records of the Corporation only upon the instruction of the registered
holder thereof, or by his attorney thereunto authorized by power of attorney
duly executed and filed with the Secretary or with a transfer agent or transfer
clerk, and upon surrender of the certificate or certificates, if issued, for
such shares properly endorsed or accompanied by a duly executed share transfer
power and the payment of all taxes thereon. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignment or authority to
transfer, as to any transfers not prohibited by any provision of the
Corporation's Charter by action of the Board of Directors thereunder, it shall
be the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Section 5. Share 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
shareholder and the number of shares of each class held by such shareholder.
ARTICLE IX
Dividends
Section 1. Declaration. Dividends upon the shares of the Corporation may
be declared by the Board of Directors, subject to applicable provisions of law
and the Charter. Dividends may be paid in cash, property or shares of the
Corporation, subject to applicable provisions of law and the Charter.
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Section 2. Contingencies. Before payment of any dividends, there may be
set aside out of any funds of the Corporation available for dividends 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, for repairing or maintaining the property of the Corporation, its
subsidiaries or any partnership for which it serves as general partner, 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
Indemnification and Limitation of Liability
Section 1. Indemnification of Agents. The Corporation shall indemnify,
in the manner and to the fullest extent permitted by law, any person (or the
estate of any person) who is or was a party to, or is threatened to be made a
party to, any threatened, pending or completed action, suit or proceeding,
whether or not by or in the right of the Corporation, and whether civil,
criminal, administrative, investigative or otherwise, by reason of the fact that
such person is or was a director or officer of the Corporation, or such director
or officer is or was serving at the request of the Corporation as a director,
officer, agent or employee of another corporation, partnership, joint venture,
trust or other enterprise. To the fullest extent permitted by law, the
indemnification provided herein shall include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement and any such expenses may
be paid by the Corporation in advance of the final disposition of such action,
suit or proceeding. The Corporation shall indemnify other employees and agents
to such extent as shall be authorized by the Board of Directors or these Bylaws
and be permitted by law. Any repeal or modification of this Article X by the
shareholders of the Corporation shall be prospective only, and shall not
adversely affect any right to indemnification or advancement of expenses
hereunder existing at the time of such repeal or modification.
Section 2. Insurance. The Corporation may, to the fullest extent
permitted by law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against such person.
Section 3. Indemnification Non-Exclusive. The indemnification provided
herein shall not be deemed to limit the right of the Corporation to indemnify
any other person for any such expenses to the fullest extent permitted by law,
nor shall it be deemed exclusive of any other rights to which any person seeking
indemnification from the Corporation may be entitled under any agreement, vote
of shareholders or disinterested directors, or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
Section 4. Limitation of Liability. To the fullest extent permitted by
Maryland statutory or decisional law, as amended or interpreted from time to
time, no director or officer of this Corporation shall be personally liable to
the Corporation or its shareholders, or any of them, for money damages. No
amendment of these Bylaws or repeal of any of its provisions shall limit or
eliminate the benefits provided to directors and officers under this provision
with respect to any act or omission which occurred prior to such amendment or
repeal.
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ARTICLE XI
Seal
Section 1. Seal. The Corporation may have a corporate seal, which may be
altered at will by the Board of Directors. The Board of Directors may authorize
one or more duplicate or facsimile seals and provide for the custody thereof.
Section 2. Affixing Seal. Whenever the Corporation is required to place
its corporate seal to a document, it shall be sufficient to meet the
requirements of any law, rule or regulation relating to a corporate seal to
place the word "(SEAL)" adjacent to the signature of the person authorized to
execute the document on behalf of the Corporation.
ARTICLE XII
Waiver of Notice
Whenever any notice is required to be given pursuant to the Charter or
these Bylaws of the Corporation 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 XIII
Amendment of Bylaws
Section 1. By Directors. The Board of Directors shall have the power to
adopt, alter or repeal any Bylaws of the Corporation and to make new Bylaws,
except that the Board of Directors shall not have the power to alter, amend or
repeal Section 10(b) of Article IV, which may only be amended by the
shareholders of the Corporation as provided in Section 2 of this Article XIII,
or to alter, amend or repeal any Bylaws made by the shareholders, provided that
any amendment to Section 2, Section 3, Section 5 or Section 9 of Article IV
requires the affirmative vote of 80% of the entire Board of Directors.
Section 2. By Shareholders. The shareholders shall have the power to
adopt, alter or repeal any Bylaws of the Corporation and to make new Bylaws,
provided that any amendment to Section 2, Section 3, Section 5, Section 9, or
Section 10(b) of Article IV requires the affirmative vote of the holders of two
thirds (66 2/3%) of all the outstanding shares entitled to vote on the election
of Directors, voting separately as a class.
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The foregoing are certified as the Amended and Restated Bylaws of the
Corporation adopted by the Board of Directors effective July 11, 1997.
/s/ ROGER M. COHEN
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Roger M. Cohen, Assistant Secretary
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