EXHIBIT 3(ii)
BYLAWS
OF
SIZELER PROPERTY INVESTORS, INC.
A MARYLAND CORPORATION
SIZELER PROPERTY INVESTORS, INC.
BYLAWS
TABLE OF CONTENTS
PAGE
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ARTICLE I............................................................ 1
OFFICES...................................................... 1
Section 1. PRINCIPAL OFFICE.............................. 1
Section 2. ADDITIONAL OFFICES............................ 1
ARTICLE II........................................................... 1
STOCKHOLDERS................................................. 1
Section 1. ANNUAL MEETING................................ 1
Section 2. SPECIAL MEETING............................... 2
Section 3. PLACE OF MEETINGS............................. 2
Section 4. NOTICE........................................ 2
Section 5. QUORUM; ADJOURNMENTS.......................... 2
Section 6. VOTING........................................ 3
Section 7. PROXIES....................................... 3
Section 8. ORGANIZATION.................................. 4
Section 9. CONDUCT OF BUSINESS........................... 4
Section 10. CONDUCT OF VOTING............................. 5
Section 11. ADVANCE NOTICE PROVISIONS FOR ELECTION
OF DIRECTORS................................. 5
Section 12. ADVANCE NOTICE PROVISIONS FOR BUSINESS
TO BE TRANSACTED AT ANNUAL MEETING........... 6
Section 13. LIST OF STOCKHOLDERS.......................... 7
Section 14. VOTING OF STOCK BY CERTAIN HOLDERS............ 8
Section 15. INFORMAL ACTION BY STOCKHOLDERS............... 8
Section 16. MEETING BY TELEPHONE CONFERENCE............... 8
ARTICLE III.......................................................... 9
DIRECTORS.................................................... 9
Section 1. GENERAL POWERS; QUALIFICATIONS................ 9
Section 2. NUMBER AND TENURE............................. 9
Section 3. VACANCIES..................................... 9
Section 4. REGULAR MEETINGS.............................. 9
Section 5. SPECIAL MEETINGS.............................. 10
Section 6. NOTICE........................................ 10
Section 7. QUORUM........................................ 10
Section 8. VOTING........................................ 11
Section 9. TELEPHONE MEETINGS............................ 11
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Section 10. INFORMAL ACTION BY DIRECTORS.................. 11
Section 11. COMPENSATION.................................. 11
Section 12. REMOVAL OF DIRECTORS.......................... 11
Section 13. LOSS OF DEPOSIT............................... 12
Section 14. SURETY BONDS.................................. 12
Section 15. RELIANCE...................................... 12
Section 16. CERTAIN RIGHTS OF DIRECTORS................... 12
Section 17. RESIGNATION................................... 12
Section 18. PRESUMPTION OF ASSENT......................... 13
Section 19. ADVISORY DIRECTORS............................ 13
ARTICLE IV........................................................... 13
COMMITTEES................................................... 13
Section 1. NUMBER, TENURE AND QUALIFICATIONS............. 13
Section 2. POWERS........................................ 13
Section 3. CONDUCT OF BUSINESS........................... 14
ARTICLE V............................................................ 14
OFFICERS..................................................... 14
Section 1. GENERAL PROVISIONS............................ 14
Section 2. ELECTION, TENURE AND REMOVAL OF OFFICERS...... 15
Section 3. CHAIRMAN OF THE BOARD......................... 15
Section 4. VICE-CHAIRMAN................................. 15
Section 5. PRESIDENT..................................... 15
Section 6. VICE-PRESIDENTS............................... 16
Section 7. CHIEF FINANCIAL OFFICER, TREASURER
AND CONTROLLER............................... 16
Section 8. SECRETARY..................................... 16
Section 9. ASSISTANT AND SUBORDINATE OFFICERS............ 16
Section 10. SALARIES...................................... 17
Section 11. DELEGATION OF AUTHORITY....................... 17
ARTICLE VI........................................................... 17
INDEMNIFICATION.............................................. 17
Section 1. PROCEDURE..................................... 17
Section 2. EXCLUSIVITY, ETC.............................. 18
Section 3. SEVERABILITY; DEFINITIONS..................... 18
ARTICLE VII.......................................................... 19
STOCK........................................................ 19
Section 1. CERTIFICATES.................................. 19
Section 2. TRANSFERS..................................... 20
Section 3. LOST CERTIFICATE.............................. 20
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Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF
RECORD DATE.................................. 20
Section 5. STOCK LEDGER.................................. 21
ARTICLE VIII......................................................... 21
SPECIAL REIT PROVISIONS...................................... 21
Section 1. DEFINITIONS................................... 21
Section 2. CONFLICTS OF INTEREST......................... 22
Section 3. ANNUAL REPORTS................................ 23
Section 4. ADVISORY CONTRACT............................. 23
Section 5. ADVISOR COMPENSATION.......................... 23
Section 6. REAL ESTATE BROKERAGE COMMISSIONS ON
RESALE OF PROPERTY........................... 24
ARTICLE IX........................................................... 24
FISCAL YEAR.................................................. 24
ARTICLE X............................................................ 25
DIVIDENDS.................................................... 25
Section 1. DECLARATION................................... 25
Section 2. CONTINGENCIES................................. 25
ARTICLE XI........................................................... 25
INVESTMENT POLICY............................................ 25
ARTICLE XII.......................................................... 25
SEAL......................................................... 25
Section 1. SEAL.......................................... 25
Section 2. AFFIXING SEAL................................. 26
ARTICLE XIII......................................................... 26
WAIVER OF NOTICE............................................. 26
ARTICLE XIV.......................................................... 26
FINANCE...................................................... 26
Section 1. CONTRACTS..................................... 26
Section 2. CHECKS AND DRAFTS............................. 27
Section 3. DEPOSITS...................................... 27
Section 4. ANNUAL STATEMENT OF AFFAIRS................... 27
ARTICLE XV........................................................... 27
CERTAIN ELECTIONS............................................ 27
Section 1. ELECTION OF SUBTITLE 8 PROVISIONS REGARDING
UNSOLICITED TAKEOVERS........................ 27
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Section 2. EXEMPTION FROM CONTROL SHARE
ACQUISITION STATUTE.......................... 27
ARTICLE XVI.......................................................... 28
SUNDRY PROVISIONS............................................ 28
Section 1. BOOKS AND RECORDS............................. 28
Section 2. BONDS......................................... 28
Section 3. VOTING UPON SHARES IN OTHER CORPORATIONS...... 28
Section 4. MAIL.......................................... 28
Section 5. CONTRACTS AND AGREEMENTS...................... 29
Section 6. FACSIMILE SIGNATURES.......................... 29
Section 7. RELIANCE UPON BOOKS, REPORTS AND RECORDS...... 29
Section 8. TIME PERIODS.................................. 29
ARTICLE XVII......................................................... 30
AMENDMENT OF BYLAWS.......................................... 30
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MARYLAND BYLAWS
OF
SIZELER PROPERTY INVESTORS, INC.
ARTICLE I
OFFICES
SECTION 1. PRINCIPAL OFFICE
The principal office of the Corporation shall be located in Maryland
at such place as the Board of Directors may designate.
SECTION 2. ADDITIONAL OFFICES
The Corporation may have its principal executive offices and
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
STOCKHOLDERS
SECTION 1. ANNUAL MEETING
The Corporation shall hold an annual meeting of its stockholders to
elect directors and transact any other business within its powers at such time
and on such date as the Chairman or Board of Directors shall set. Except as the
Charter or statute provides otherwise, any business may be considered at an
annual meeting without the purpose of the meeting having been specified in the
notice. Failure to hold an annual meeting does not invalidate the Corporation's
existence or affect any otherwise valid corporate acts.
SECTION 2. SPECIAL MEETING
At any time in the interval between annual meetings, a special meeting
of the stockholders may be called by the Chairman of the Board, the President,
or by a majority of the Board of Directors by a vote at a meeting or in writing
(addressed to the Chairman of the Board) with or without a meeting. Subject to
the procedures set forth in Section 11 of this Article II and this Section,
special meetings of the stockholders shall be called by the Secretary at the
request of stockholders only on the written request of stockholders entitled to
cast at least a majority of all the votes entitled to be cast at the meeting. A
request for a special meeting shall state the purpose of such meeting and the
matters proposed to be acted on at such meeting. The Secretary shall inform the
stockholders making such request of the reasonably estimated costs of preparing
and mailing a notice of the meeting and, upon such stockholders' payment to the
Corporation of such costs, the Secretary shall give notice to each stockholder
entitled to notice of the meeting. The Board of Directors shall have sole power
to fix the date and time of the special meeting.
SECTION 3. PLACE OF MEETINGS
Meetings of stockholders shall be held at such place as is set from
time to time by the Board of Directors.
SECTION 4. NOTICE
Not less than ten nor more than 90 days before each meeting of
stockholders, the Secretary shall give written notice of the meeting 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. The notice shall
state the time and place of the meeting and, if a special meeting or notice of
the purpose is required by statute, the purpose of the meeting. Notice is given
to a stockholder when it is personally delivered to the stockholder, left at the
stockholder's residence or usual place of business, mailed to him or her at his
or her address as it appears on the records of the Corporation or transmitted to
the stockholder by electronic mail to any electronic mail address of the
stockholder or by any other electronic means. Notwithstanding the foregoing
provisions, each person who is entitled to notice waives notice if he or she
before or after the meeting signs a waiver of the notice which is filed with the
records of the stockholders' meetings or is present at the meeting in person or
by proxy.
SECTION 5. QUORUM; ADJOURNMENTS
Unless the statute or the Charter provides otherwise, at a 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
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requirement under any statute or the Charter of the Corporation for the vote
necessary for the adoption of any measure.
Whether or not a quorum is present at any meeting of the stockholders,
a majority of the stockholders entitled to vote at such meeting, present in
person or by proxy, shall have 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 6. 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.
In all elections for directors, 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 or with respect to a
particular class or series of stock and other than Excess Stock of the
Corporation, each outstanding share of stock, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders; however, a share is not entitled to be voted if any installment
payable on it is overdue and unpaid.
SECTION 7. PROXIES
A stockholder may vote the stock the stockholder owns of record either
in person or by proxy. A stockholder may sign a writing authorizing another
person to act as proxy. Signing may be accomplished by the stockholder or the
stockholder's authorized agent signing the writing or causing the stockholder's
signature to be affixed to the writing by any reasonable means, including
facsimile signature. A stockholder may authorize another person to act as proxy
by transmitting, or authorizing the transmission of, an authorization by a
telegram, cablegram, datagram, electronic mail or any other electronic or
telephonic means to the person authorized to act as proxy or to any other person
authorized to receive the proxy authorization on behalf of the person authorized
to act as the proxy, including a proxy solicitation firm, proxy support service
organization, or other person authorized by the person who will act as proxy to
receive the transmission. Unless a proxy provides otherwise, it is not valid
more than 11 months after its date. A proxy is revocable by a stockholder at
any time without condition or qualification unless the proxy states that it is
irrevocable and the proxy is coupled with an interest. A proxy may be made
irrevocable for so long as it is coupled with an interest. The interest with
which a proxy may be coupled includes an interest in the stock to be voted under
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the proxy or another general interest in the Corporation or its assets or
liabilities. Before or at the time of the meeting, a proxy shall be filed with
the Secretary of the Corporation or with any person authorized by the Secretary
to receive proxy authorizations and who shall promptly submit such proxy
authorizations to the Secretary.
SECTION 8. ORGANIZATION
The Chairman or, if the Board of Directors has designated another
person, such other person, or, in the absence of such other person, the highest
ranking officer of the Corporation who is present shall call to order any
meeting of the stockholders and act as chairman of the meeting. In the absence
of the Secretary of the Corporation, the secretary of the meeting shall be such
person as the chairman of the meeting appoints. The chairman of the meeting
shall have the power, in his sole discretion, to adjourn, recess, delay or
otherwise postpone the date or time of any annual or special meeting of
stockholders.
SECTION 9. CONDUCT OF BUSINESS
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 (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation (i) who was a stockholder of record at the time
of giving notice(s) provided for in Section 11 and Section 12 of this Article
II, (ii) who is entitled to vote at the meeting and (iii) who complied with the
notice(s) procedures set forth in Section 11 and Section 12 of this Article II.
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 a special
meeting of stockholders (a) only pursuant to the Corporation's notice of meeting
and (b), in the case of nominations of persons for election to the Board of
Directors, (i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the Corporation (A) who was a stockholder of record at the time
of giving notice provided for in Section 11, (B) who is entitled to vote at the
meeting and (C) who complied with the notice procedures set forth in Section 11
of this Article II. 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 in accordance with the procedures set forth in Section 11
and Section 12 of this Article II and this Section and, if any proposed
nomination or business is not in compliance with Section 11 and Section 12 of
this Article II and this Section, to declare that such defective nomination or
proposal be disregarded.
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SECTION 10. CONDUCT OF VOTING
At all meetings of stockholders, unless the voting is conducted by
inspectors, the proxies and ballots shall be received, and all questions
touching the qualification of voters and the validity of proxies, the acceptance
or rejection of votes and procedures for the conduct of business not otherwise
specified by these Bylaws, the Charter or law, shall be decided or determined by
the chairman of the meeting. If demanded by stockholders, present in person or
by proxy, entitled to cast 10% in number of votes entitled to be cast, or if
ordered by the chairman of the meeting, the vote upon any election or question
shall be taken by ballot. Before any meeting of the stockholders, the Board of
Directors may appoint persons to act as inspectors of election at the meeting
and any adjournment thereof. If no inspectors of election are so appointed, the
chairman of the meeting may, and on the request of stockholders, present in
person or by proxy, entitled to cast 10% in number of votes entitled to be cast,
shall appoint inspectors of election at the meeting. The number of inspectors
shall be either one or three. If inspectors are appointed at a meeting on the
request of stockholders, the holders of a majority of shares present in person
or by proxy shall determine whether one or three inspectors are to be appointed.
No candidate for election as a director at a meeting shall serve as an inspector
thereat. If any person appointed as inspector fails to appear or fails or
refuses to act, the chairman of the meeting may, and upon the request of any
stockholder shall, appoint a person to fill that vacancy. The inspectors shall
determine the number of shares outstanding and the voting power of each, the
shares represented at the meeting the existence of a quorum, and the
authenticity, validity and effect of proxies; receive votes, ballots or
consents; hear and determine all challenges and questions in any way arising in
connection with the right to vote; count and tabulate all votes or consents;
determine when polls shall close; determine the result; and do any other acts
that may be proper to conduct the election or vote with fairness to all
stockholders. Unless so demanded or ordered, no vote need be by ballot and
voting need not be conducted by inspectors.
SECTION 11. ADVANCE NOTICE PROVISIONS FOR ELECTION OF DIRECTORS
Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation.
Nominations of persons for election to the Board of Directors may be made at any
annual meeting of stockholders, or at any special meeting of stockholders called
for the purpose of electing directors, (a) by or at the direction of the Board
of Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the date of
the giving of the notice provided for in this Section and on the record date for
the determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section. A stockholder's
notice must be delivered to or mailed and received by the Chairman of the Board
at the principal executive offices of the Corporation (a) in the case of an
annual meeting, not less than 90 days nor more than 120 days prior to the first
anniversary of the date of mailing of the notice for 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
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such anniversary date, notice by the stockholder must be so delivered not
earlier than the 120th day prior to the date of mailing of the notice for such
annual meeting and not later than the close of business on the later of the
90th day prior to the date of mailing of the notice for such annual meeting or
the tenth day following the day on which public announcement of the date of
mailing of the notice for such meeting is first made; and (b) in the case of a
special meeting of stockholders called for the purpose of electing directors,
not later than the close of business on the tenth day following the day on which
notice of the date of the special meeting was mailed or public disclosure of the
date of the special meeting was made, whichever first occurs. A stockholder's
notice to the Chairman of the Board must be in writing and set forth (a) as to
each person whom the stockholder proposes to nominate for election as a
director, all information relating to such person that is required to be
disclosed in connection with solicitations of proxies for election of directors
pursuant to Regulation 14A of the Exchange Act, and the rules and regulations
promulgated thereunder; and (b) as to the stockholder giving the notice (i) the
name and address of such stockholder as they appear on the Corporation's books
and of the beneficial owner, if any, on whose behalf the nomination is made,
(ii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder and
such beneficial owner, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Regulation 14A of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to be named as a nominee and to serve as a director if
elected. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section. If the chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman of the meeting
shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded. No adjournment or postponement of a
meeting of stockholders shall commence a new period for the giving of notice of
a stockholder proposal hereunder.
SECTION 12. ADVANCE NOTICE PROVISIONS FOR BUSINESS TO BE TRANSACTED AT ANNUAL
MEETING
No business may be transacted at an annual meeting of stockholders,
other than business that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise properly brought before
the annual meeting by any stockholder of the Corporation (i) who is stockholder
of record on the
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date of the giving of the notice provided for in this Section and on the record
date for the determination of stockholders entitled to vote at such annual
meeting and (ii) who complies with the notice procedures set forth in this
Section. A stockholder's notice must be delivered to or mailed and received by
the Chairman of the Board at the principal executive offices of the Corporation
not less than 90 days nor more than 120 days prior to the first anniversary of
the date of mailing of the notice for 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, notice by the stockholder must be so delivered not earlier
than the 120th day prior to the date of mailing of the notice for such annual
meeting and not later than the close of business on the later of the 90th day
prior to the date of mailing of the notice for such annual meeting or the tenth
day following the day on which public announcement of the date of mailing of the
notice for such meeting is first made. A stockholder's notice to the Chairman of
the Board must in writing set forth as to each matter such stockholder proposes
to bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and address of such
stockholder as they appear on the Corporation's books and of the beneficial
owner, if any, on whose behalf the proposal is made, (iii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder and such beneficial owner, (iv) a
description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the
proposal of such business by such stockholder and any material interest of such
stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the annual meeting to bring such
business before the meeting. No business shall be conducted at the annual
meeting of stockholders except business brought before the annual meeting in
accordance with the procedures set forth in Section 11 of this Article II or in
this Section, provided, however, that once business has been properly brought
before the annual meeting in accordance with such procedures, nothing in Section
11 of this Article II nor in this Section shall be deemed to preclude discussion
by any stockholder of any such business. If the chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the chairman of the meeting shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted. No adjournment or
postponement of a meeting of stockholders shall commence a new period for the
giving of notice of a stockholder proposal hereunder.
SECTION 13. LIST OF STOCKHOLDERS
At each meeting of stockholders, a full, true and complete list of all
stockholders entitled to vote at such meeting, showing the number and class of
shares held by each and certified by the transfer agent for such class or by the
Secretary, shall be furnished by the Secretary.
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SECTION 14. VOTING OF STOCK BY CERTAIN HOLDERS
Stock 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
board of directors of such corporation or other entity presents a certified copy
of such bylaw or resolution, in which case such person may vote such stock. Any
director or other fiduciary may vote stock registered in his or her name as such
fiduciary, either in person or by proxy.
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 of
closing of the stock transfer books, the time after the record date of 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.
SECTION 15. INFORMAL ACTION BY STOCKHOLDERS
Except as provided below, any action required or permitted to be taken
at a meeting of stockholders may be taken without a meeting if a unanimous
written consent which sets forth the action and is signed by each stockholder
entitled to vote on the matter is filed with the records of stockholders
meetings. Unless the Charter requires otherwise, the holders of any class of
stock other than Common Stock, entitled to vote generally in the election of
directors, may take action or consent to any action by the written consent of
stockholders entitled to cast not less than the minimum number of votes that
would be necessary to authorize or take the action at a stockholders meeting if
the Corporation gives notice of the action to each stockholder not later than 10
days after the effective time of the action.
SECTION 16. MEETING BY TELEPHONE CONFERENCE
If permitted in the sole discretion of the chairman of the meeting,
stockholders may participate in meetings by means of a conference telephone or
similar communications
8
equipment if all persons participating in the meeting can hear each other at the
same time. Participation in a meeting by these means constitutes presence in
person at such meeting.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS; QUALIFICATIONS
The business and affairs of the Corporation shall be managed under the
direction of its Board of Directors. All powers of the Corporation may be
exercised by or under authority of the Board of Directors, except as conferred
on or reserved to the stockholders by statute or by the Charter or Bylaws.
SECTION 2. NUMBER AND TENURE
The Corporation shall have at least one director. The Corporation
shall have the number of directors provided in the Charter until changed as
herein provided. The Board of Directors shall be divided into three classes as
and in the manner provided in the Charter. Except as the Charter provides
otherwise, a majority of the entire Board of Directors may alter the number of
directors set by the Charter to not exceeding 15 nor less than the minimum
number then permitted herein, but the action may not affect the tenure of office
of any director. Each director shall hold office for such term as is specified
in the Charter and until his or her successor is elected and qualified, or until
his or her resignation, removal (in accordance with the Charter), retirement or
death.
SECTION 3. VACANCIES
Vacancies on the Board of Directors shall be filled as provided in the
Charter of the Corporation.
SECTION 4. REGULAR MEETINGS
After each meeting of stockholders at which directors shall have been
elected, the Board of Directors shall meet as soon thereafter as practicable for
the purpose of organization and the transaction of other business. In the event
that no other time and place are specified by resolution of the Board of
Directors or announced by the Chairman of the Board at such stockholders
meeting, the Board of Directors shall meet immediately following the close of,
and
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at the place of, such stockholders meeting. Any other regular meeting of
the Board of Directors shall be held on such date and time and at such place as
may be designated from time to time by the Board of Directors. No notice of
such meeting following a stockholders meeting or any other regular meeting shall
be necessary if held as hereinabove provided.
SECTION 5. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by a majority
of the Directors then in office or at the request of the Chairman. A special
meeting of the Board of Directors shall be held on such date and at any place as
may be designated from time to time by the Board of Directors. In the absence
of designation such meeting shall be held at such place as may be designated in
the call.
SECTION 6. NOTICE
Except as provided in Article III, Section 4, the Chairman of the
Board or the Chairman of the Board's designee shall give notice to each director
of each regular and special meeting of the Board of Directors. The notice shall
state the time and place of the meeting. Notice is given to a director when it
is delivered personally to him or her, left at his or her residence or usual
place of business, or sent by telegraph, facsimile transmission or telephone, at
least 24 hours before the time of the meeting or, in the alternative by mail to
his or her address as it shall appear on the records of the Corporation, at
least 72 hours before the time of the meeting. Unless these Bylaws or a
resolution of the Board of Directors provides otherwise, the notice need not
state the business to be transacted at or the purposes of any regular or special
meeting of the Board of Directors. No notice of any meeting of the Board of
Directors need be given to any director who attends except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened, or to any
director who, in writing executed and filed with the records of the meeting
either before or after the holding thereof, waives such notice. Any meeting of
the Board of Directors, regular or special, may adjourn from time to time to
reconvene at the same or some other place, and no notice need be given of any
such adjourned meeting other than by announcement.
SECTION 7. QUORUM
A majority of the entire Board of Directors shall constitute a quorum
for the 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,
10
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.
SECTION 8. VOTING
The action of a 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 or lesser proportion is required for such action by
the Charter, these Bylaws or applicable statute.
SECTION 9. 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 constitutes presence in person at a meeting.
SECTION 10. INFORMAL ACTION BY DIRECTORS
Any action required or permitted to be taken at a meeting of the Board
of Directors may be taken without a meeting, if an unanimous 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 11. COMPENSATION OF DIRECTORS
Unless restricted by the Charter, the Board of Directors shall have
the authority to fix the fees and other compensation of directors for their
service as directors, including, without limitation, their services as members
of committees of the Board of Directors.
SECTION 12. REMOVAL OF DIRECTORS
The stockholders may remove any director or the entire Board of
Directors in the manner provided in the Charter of the Corporation.
11
SECTION 13. LOSS OF DEPOSIT
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 14. SURETY BONDS
Unless required by law, no director shall be obligated to give any
bond or surety or other security for the performance of any of his or her
duties.
SECTION 15. 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 advisers, 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 16. CERTAIN RIGHTS OF DIRECTORS
The directors shall have no responsibility to devote their full time
to the affairs of the Corporation. Any director, officer, employee or agent of
the Corporation, in his or her personal capacity or in a capacity as an
affiliate, employee, or agent of any other person, or otherwise, may have
business interests and engage in business activities similar to or in addition
to those of or relating to the Corporation.
SECTION 17. RESIGNATION
Any director may resign at any time by sending a written notice of
such resignation to the home office of the Corporation addressed to the Chairman
of the Board. Unless otherwise specified therein such resignation shall take
effect upon receipt thereof by the Chairman of the Board.
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SECTION 18. PRESUMPTION OF ASSENT
A director of the Corporation who is present at a meeting of the Board
of Directors at which action on any corporate matter is taken shall be presumed
to have assented to the action taken unless his or dissent or abstention shall
be entered in the minutes of the meeting or unless he or she shall file his or
her written dissent to such action with the person acting as the secretary of
the meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a director
who votes in favor of such action or fails to make his dissent known at the
meeting.
SECTION 19. ADVISORY DIRECTORS
The Board of Directors may by resolution appoint advisory directors to
the Board of Directors, who may also serve as directors emeriti, and shall have
such authority and receive such compensation and reimbursement as the Board of
Directors shall provide. Advisory directors or directors emeriti shall not have
the authority to participate by vote in the transaction of business.
ARTICLE IV
COMMITTEES
SECTION 1. NUMBER, TENURE AND QUALIFICATIONS
The Board of Directors may appoint from among its members an executive
committee and other committees, composed of one or more directors, to serve at
the pleasure of the Board of Directors. The Board of Directors may designate,
if it desires, other Directors as alternative members who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of any member of any committee and any alternate member in his
place, the member or members of the committee present at the meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may by
unanimous vote appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member.
SECTION 2. POWERS
The Board of Directors may delegate to committees appointed under
Section 1 of this Article IV any of the powers of the Board of Directors, except
the power to authorize
13
dividends on stock, elect directors, issue stock other than as provided below,
recommend to the stockholders any action which requires stockholder approval,
amend these Bylaws, or approve any merger or share exchange which does not
require stockholder approval. If the Board of Directors has given general
authorization for the issuance of stock providing for or establishing a method
or procedure for determining the maximum number of shares to be issued, a
committee of the Board, in accordance with that general authorization or any
stock option or other plan or program adopted by the Board of Directors, may
authorize or fix the terms of stock subject to classification or
reclassification and the terms on which any stock may be issued, including all
terms and conditions required or permitted to be established or authorized by
the Board of Directors.
SECTION 3. CONDUCT OF BUSINESS
Each committee may determine the procedural rules for meeting and
conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provisions shall be made
for notice to members of all meetings; a majority of the members shall
constitute a quorum, and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
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 constitutes presence in person
at a meeting.
ARTICLE V
OFFICERS
SECTION 1. GENERAL PROVISIONS
The officers of the Corporation shall include a chairman of the board,
a vice-chairman, a president, one or more vice-presidents, a secretary, a
treasurer and such other subordinate officers as may from time to time be
appointed by the Board of Directors. The Board of Directors, in its discretion,
may establish for such period of time as it deems advisable the offices of vice
chairman and of principal operating officer, respectively.
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SECTION 2. ELECTION, TENURE AND REMOVAL OF OFFICERS
Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of
stockholders and at other meetings as may be appropriate to fill a vacancy in an
office. The Board of Directors may from time to time authorize any committee or
officer to appoint assistant and subordinate officers. Election or appointment
of an officer, employee or agent shall not of itself create contract rights.
Each officer shall hold his office until his successor is elected and qualified
or until his earlier resignation or removal. Any two or more offices except
president and vice president may be held by the same person. The Board of
Directors (or, as to any assistant or subordinate officer, any committee or
officer authorized by the Board) may remove an officer at any time, with or
without cause. The removal of an officer does not prejudice any of his or her
contract rights. The Board of Directors (or, as to any assistant or subordinate
officer, any committee or officer authorized by the Board) may fill a vacancy
which occurs in any office for the unexpired portion of the term.
SECTION 3. CHAIRMAN OF THE BOARD
The Chairman of the Board shall be the Chief Executive Officer of the
Corporation. Subject to the provisions of these Bylaws and to the direction of
the Board of Directors, he shall have the responsibility for the general
management and control of the affairs and business of the Corporation and shall
perform all duties and have all powers which are commonly incident to the office
of chief executive or which are delegated to him by the Board of Directors. The
term "Chairman" in these Bylaws shall mean the Chairman of the Board unless the
context clearly indicates that it is intended to mean the chairman of a
specified committee or meeting.
SECTION 4. VICE-CHAIRMAN
The Vice-Chairman, if any, shall exercise such duties as are delegated
to him by the Chairman, and he shall report primarily to the Chairman. In the
absence or disability of the Chairman, the Vice-Chairman shall perform the
duties of the Chairman, subject to the right of the Board of Directors to
designate another officer to perform some or all of these duties.
SECTION 5. PRESIDENT
The President shall be the Chief Operating Officer of the Corporation
and, except as set forth in the following sentence, shall perform all duties
incident to the Office of the Chief Operating Officer and such other duties as
from time to time may be assigned to him by the
15
Board of Directors or, to the extent not inconsistent with any assignment by the
Board of Directors, by the Chairman.
SECTION 6. VICE-PRESIDENTS
Each vice-president shall perform such duties as the Board of
Directors shall prescribe. In the absence or disability of the President, the
vice-president who is designated by the Board of Directors shall perform the
duties and exercise the powers of the President.
SECTION 7. CHIEF FINANCIAL OFFICER, TREASURER AND CONTROLLER
The Chief Financial Officer (CFO) shall have general supervision of
all the accounts and books of account of the Corporation and of all accounting
personnel and shall supervise all controls with respect to the monies and
securities of the Corporation. The CFO shall advise and report to the Chairman
and the President of the Corporation with respect to corporate financial and
accounting policy, compliance with contractual restrictions affecting the
Corporation's finances, negotiations with the Corporation's lenders and
prospective lenders and investors and such general financial and accounting
matters as may be requested by the Chairman or President. When requested by the
Chairman or the Board of Directors or the Audit Committee or its chairman, the
CFO shall report to the Board of Directors or Audit Committee on financial and
accounting matters. The Treasurer and Controller shall report to the CFO. The
Treasurer shall have direct responsibility for handling of the monies and
securities of the Corporation, and the Controller shall be directly responsible
for corporate accounting; provided, however, that the Board of Directors may, in
its discretion from time to time, specify additional duties for the Treasurer or
Controller or, in the absence of such specification by the Board of Directors,
the Chairman, President or CFO may assign additional duties. In the absence of
a Treasurer or Controller, the Board shall so designate another individual or
individuals to perform the functions of each such office.
SECTION 8. SECRETARY
The Secretary shall issue all authorized notices for, and shall keep
minutes of, all meetings of the stockholders and the Board of Directors. The
Secretary shall have charge of the corporate books.
SECTION 9. ASSISTANT AND SUBORDINATE OFFICERS
The assistant and subordinate officers of the Corporation are all
officers below the office of Vice-President, Secretary, or Treasurer. The
assistant or subordinate officers shall have
16
such duties as are from time to time assigned to them by the Board of Directors,
the chairman, or the President.
SECTION 10. SALARIES
The salaries and other compensation or remuneration, of whatever kind,
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 and other compensation
or remuneration by reason of the fact that he or she is also a director of the
Corporation.
SECTION 11. DELEGATION OF AUTHORITY
The Board of Directors may from time to time delegate the powers or
duties of any officer to any other officers or agent, notwithstanding any
provision hereof.
ARTICLE VI
INDEMNIFICATION
SECTION 1. PROCEDURE
Any indemnification, or payment of expenses in advance of the final
disposition of any proceeding, shall be made promptly, and in any event within
60 days, upon the written request of the director or officer entitled to seek
indemnification (the "Indemnified Party"). The right to indemnification and
advances hereunder shall be enforceable by the Indemnified Party in any court of
competent jurisdiction, if (i) the Corporation denies such request, in whole or
in part; or (ii) no disposition thereof is made within 60 days. The Indemnified
Party's costs and expenses incurred in connection with successfully establishing
his or her right to indemnification, in whole or in part, in any such action
shall also be reimbursed by the Corporation. It shall be a defense to any
action for advance for expenses that (a) a determination has been made that the
facts then known to those making the determination would preclude
indemnification or (b) the Corporation has not received both (i) an undertaking
as required by law to repay such advances in the event it shall ultimately be
determined that the standard of conduct has not been met and (ii) a written
affirmation by the Indemnified Party of such Indemnified Party's good faith
belief that the standard of conduct necessary for indemnification by the
Corporation has been met.
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SECTION 2. EXCLUSIVITY, ETC.
The indemnification and advance of expenses provided by the Charter
and these Bylaws shall not be deemed exclusive of any other rights to which a
person seeking indemnification or advance of expenses may be entitled under any
law (common or statutory), or any agreement, vote of stockholders or
disinterested directors or other provision that is consistent with law, both as
to action in his or her official capacity and as to action in another capacity
while holding office or while employed by or acting as agent for the
Corporation, shall continue in respect of all events occurring while a person
was a director or officer after such person has ceased to be a director or
officer, and shall inure to the benefit of the estate, heirs, executors and
administrators of such person. The Corporation shall not be liable for any
payment under this Bylaw in connection with a claim made by a director or
officer to the extent such director or officer has otherwise actually received
payment under an insurance policy, agreement, vote or otherwise, of the amounts
otherwise indemnifiable hereunder. All rights to indemnification and advance of
expenses under the Charter of the Corporation and hereunder shall be deemed to
be a contract between the Corporation and each director or officer of the
Corporation who serves or served in such capacity at any time while this Bylaw
is in effect. Nothing herein shall prevent the amendment of this Bylaw,
provided that no such amendment shall diminish the rights of any person
hereunder with respect to events occurring or claims made before its adoption or
as to claims made after its adoption in respect of events occurring before its
adoption. Any repeal or modification of this Bylaw shall not in any way
diminish any rights to indemnification or advance of expenses of such director
or officer or the obligations of the Corporation arising hereunder with respect
to events occurring, or claims made, while this Bylaw or any provision hereof is
in force, nor shall such repeal or modification diminish any person's rights to
indemnification or advances of expenses or performance of other obligations of
the Corporation under any agreement of indemnification between the Corporation
and such person.
SECTION 3. SEVERABILITY; DEFINITIONS
The invalidity or unenforceability of any provision of this Article VI
shall not affect the validity or enforceability of any other provision hereof.
The phrase "this Bylaw" in this Article VI means this Article VI in its
entirety.
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ARTICLE VII
STOCK
SECTION 1. CERTIFICATES
The Corporation's Excess Stock (the "Excess Stock"), shall be issued
in book entry form only, and without certificates. For that purpose, the
Corporation shall cause appropriate records to be maintained of all registered
holders of the Excess Stock and the number of shares of Excess Stock,
respectively, held by each, from time to time.
Except as provided above with respect to the Excess Stock, 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 or
her in the Corporation. Each certificate shall be signed by the Chairman of the
Board, 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 actual seal or a facsimile thereof, 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 or series of stock, each class or series may have its own number
sequence. 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 stock certificate
shall include on its face the name of the Corporation, the name of the
stockholder or other person to whom it is issued, and the class of stock and
number of shares it represents. Each certificate shall also include on its face
or back (a) a statement of any restrictions on transferability and a statement
of the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends, qualifications, and terms and
conditions of redemption of the stock of each class which the Corporation is
authorized to issue, of the differences in the relative rights and preferences
between the shares of each series of a preferred or special class in series
which the Corporation is authorized to issue, to the extent they have been set,
and of the authority of the Board of Directors to set the relative rights and
preferences of subsequent series of a preferred or special class of stock or (b)
a statement which provides in substance that the Corporation will furnish a full
statement of such information to any stockholder on request and without charge.
Such request may be made to the Chairman of the Board. Except as provided in
the Maryland Uniform Commercial Code - Investment Securities, the fact that a
stock certificate does not contain or refer to a restriction on transferability
that is adopted after the date of issuance does not mean that the restriction is
invalid or unenforceable. A certificate is valid and may be issued whether or
not an officer who signed it is still an officer when it is issued. A
certificate may not be issued until the stock represented by it is fully paid.
A certificate representing stock validly issued by a constituent corporation in
a merger in which the Corporation is the surviving corporation shall be valid to
the extent provided in the Agreement or Articles of Merger notwithstanding that
the form of the certificate does not comply with the requirements for a
certificate issued by the Corporation.
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SECTION 2. TRANSFERS
The Board of Directors shall have the power and authority to make such
rules and regulations as it may deem expedient concerning the issue, transfer
and registration of certificates of stock; and may appoint transfer agents and
registrars thereof. The duties of the transfer agent and registrar may be
combined.
SECTION 3. LOST CERTIFICATE
The Board of Directors of the Corporation may determine the conditions
for issuing a new stock certificate in place of one which is alleged to have
been lost, stolen or destroyed, or the Board of Directors may delegate such
power to any officer or officers of the Corporation. In their discretion, the
Board of Directors or such officer or officers may require the owner of the
certificate to give a bond, with sufficient surety, to indemnify the Corporation
against any loss or claim arising as a result of the issuance of a new
certificate. In their discretion, the Board of Directors or such officer or
officers may refuse to issue such new certificate save upon the order of some
court having jurisdiction in the premises.
SECTION 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE
The Board of Directors may, and shall have the sole power to, set a
record date or direct that the stock transfer books be closed for a stated
period for the purpose of making any proper determination with respect to
stockholders, including which stockholders are entitled to request a special
meeting of stockholders, notice of a meeting of stockholders, vote at a meeting
of stockholders, receive a dividend, or be allotted other rights. The record
date may not be prior to the close of business on the day the record date is
fixed nor, subject to Article II, Section 5, more than 90 days before the date
on which the action requiring the determination will be taken; the transfer
books may not be closed for a period longer than 20 days; and, in the case of a
meeting of stockholders, the record date or the closing of the transfer books
shall be at least ten days before the date of the meeting. Any shares of the
Corporation's own stock acquired by the Corporation between the record sate for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders and the time of the meeting may be voted at the meeting by the
holder of record as of the record date and shall be counted in determining the
total number of outstanding shares entitled to be voted at the 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; 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
20
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 where the determination has been
made through the closing of the transfer books and the stated period of closing
has expired.
SECTION 5. STOCK LEDGER
The Corporation shall maintain at its principal office or at the
office of its 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. The stock ledger may be in written form or in any
other form which can be converted within a reasonable time into written form for
visual inspection.
ARTICLE VIII
SPECIAL REIT PROVISIONS
SECTION 1. DEFINITIONS
The following definitions of terms apply to the provisions contained
in this Article VIII:
(1) "Advisor" means the person(s) or entity responsible for directing
or performing the day-to-day business affairs of the Corporation, including a
person or entity to which an Advisor subcontracts substantially all such
functions. To the extent the provisions of this Article VIII are germane, they
shall apply to an independent contractor the Corporation has engaged to manage
the Corporation's properties.
(2) "Affiliate" means (i) any person directly or indirectly
controlling, controlled by or under common control with another person, (ii) any
person owning or controlling 10% or more of the outstanding voting securities or
beneficial interests of such other person, (iii) any officer, director or
trustee of, or general partner in, of such person and (iv) if such other person
is an officer, director or trustee of, or general partner in, another entity,
then the entity for which that person acts in any such capacity.
21
(3) "Competitive Real Estate Commission" means that real estate or
brokerage commission paid for the purchase or sale of a property which is
reasonable, customary and competitive in light of the size, type and location of
such property.
(4) "Unaffiliated Director(s)" means the Directors of the Corporation
who are not affiliated, directly or indirectly, with an Advisor of the
Corporation, whether by ownership of, ownership interest in, employment by, any
material business or professional relationship with, or service as an officer or
director of, such Advisor or an affiliated business entity of such Advisor.
Unaffiliated Directors shall also mean those Directors who perform no other
services for the Corporation, except as Director(s). An indirect relationship
shall include circumstances in which a member of the immediate family of a
Director (which shall include such person's spouse, parents, children, siblings,
mothers and fathers-in-law, sons and daughters-in-law and brothers and sisters-
in-law) has one of the foregoing relationships with an Advisor of the
Corporation or the Corporation.
(5) "REIT" is a corporation, trust or association (other than a real
estate syndication) which is engaged primarily in investing in equity interests
in real estate (including fee ownership and leasehold interests) or in loans
secured by real estate or both.
SECTION 2. CONFLICTS OF INTEREST
(1) The Corporation shall not purchase property from an Advisor, a
Director or Affiliate thereof, unless a majority of directors (including a
majority of Unaffiliated Directors) not otherwise interested in such transaction
approve the transaction as being fair and reasonable to the Corporation and at a
price to the Corporation no greater than the cost of the asset to such Advisor,
Director or Affiliate thereof, or, if the price to the Corporation is in excess
of such cost, that substantial justification for such excess exists and such
excess is not unreasonable. In no event shall the cost of such asset to the
Corporation exceed its current appraised value.
(2) The Corporation shall not sell property to an Advisor, a Director
or Affiliates thereof, unless a majority of Directors (including a majority of
Unaffiliated Directors) not otherwise interested in such transaction approve the
transaction as being fair and reasonable to the Corporation. In no event shall
the price of an interest in real property to be sold by the Corporation to the
Advisor, a Director or any Affiliate thereof be less than its current appraised
value.
(3) The Corporation may not make loans to or borrow money from an
Advisor, a Director or Affiliate thereof, unless a majority of Directors
(including a majority of Unaffiliated Directors) not otherwise interested in
such transaction approve the transaction as being fair, competitive, and
commercially reasonable and no less favorable to the Corporation than loans
between unaffiliated lenders and borrowers under the same circumstances.
22
(4) The Corporation shall not invest in any joint venture with an
Advisor, a Director or Affiliates thereof, unless a majority of Directors
(including a majority of Unaffiliated Directors) not otherwise interested in
such transaction approve the transaction as being fair and reasonable to the
Corporation and the participation of the Corporation is on substantially the
same terms and conditions as that of the other joint venturers.
(5) All other transactions between the Corporation and an Advisor, a
Director or Affiliates thereof shall require approval by a majority of the
Directors (including a majority of Unaffiliated Directors) not otherwise
interested in such transactions as being fair and reasonable to the Corporation
and on terms and conditions not less favorable to the Corporation than those
available from unaffiliated third parties.
SECTION 3. ANNUAL REPORTS
(1) The Corporation shall prepare an annual report concerning its
operations for each fiscal year containing financial statements prepared in
accordance with generally accepted accounting principles which are audited and
reported on by independent certified public accountants.
(2) Annual reports shall be mailed or delivered to each stockholder of
the Corporation as of a record date after the end of such fiscal year within 120
days after the end of the fiscal year to which it relates.
SECTION 4. ADVISORY CONTRACT
The Board of Directors shall determine, in its sole discretion,
whether the Corporation shall be self-advised or shall enter into an Advisory
Contract with an Advisor. The Directors shall have the duty to evaluate the
performance of the Advisor before entering into or renewing an Advisory
Contract. The criteria used in such evaluation shall be reflected in the
minutes of such meeting. Each contract for the services of an Advisor shall
have a term of no more than one year.
SECTION 5. ADVISOR COMPENSATION
The Unaffiliated Directors shall determine from time to time and at
least annually that the compensation which the Corporation contracts to pay to
the Advisor is reasonable in relation to the nature and quality of services
performed. The Unaffiliated Directors shall also supervise the performance of
the Advisor and the compensation paid to it by the Corporation to determine that
the provisions of such contract are being carried out. Each such determination
shall be based on the factors set forth below and all other factors such
Unaffiliated Directors may
23
deem relevant, and the findings of such Directors on each of such factors shall
be recorded in the minutes of the Directors:
(1) The size of the advisory fee in relation to the size, composition
and profitability of the portfolio of the Corporation;
(2) The rates charged to other REITs and to investors other than REITs
by advisors performing similar services;
(3) Additional revenues realized by the Advisor and its Affiliates
through their relationship with the Corporation, including loan administration,
underwriting or broker commissions, servicing, engineering, inspection and other
fees, whether paid by the Corporation or by others with whom the Corporation
does business;
(4) The quality and extent of service and advice furnished by the
Advisor; and
(5) The performance of the investment portfolio of the Corporation,
including income, conservation or appreciation of capital, frequency of problem
investments and competence in dealing with distress situations.
SECTION 6. REAL ESTATE BROKERAGE COMMISSIONS ON RESALE OF PROPERTY
If an Advisor, Director or Affiliate provides a substantial amount of
the services in the effort to sell any property of the Corporation, then such
person may receive all or a portion of a brokerage commission paid, but in no
event shall the amount so paid, when added to the sums paid to unaffiliated
parties in such a capacity, exceed a Competitive Real Estate Commission.
ARTICLE IX
FISCAL 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.
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ARTICLE X
DIVIDENDS
SECTION 1. DECLARATION
Dividends upon the stock of the Corporation may be declared by the
Board of Directors, subject to the provisions of law and the Charter of the
Corporation. Dividends 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, 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 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 XI
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 XII
SEAL
SECTION 1. SEAL
The Board of Directors may authorize the adoption of a seal by the
Corporation. The seal shall have inscribed thereon the name of the Corporation
and the year of its
25
organization. The Board of Directors or a committee thereof may authorize one or
more duplicate seals and provide for the custody thereof.
SECTION 2. AFFIXING SEAL
Whenever the Corporation is required to place 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 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 herein, 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
FINANCE
SECTION 1. CONTRACTS
To the extent permitted by applicable law, and except as otherwise
prescribed by the Charter of the Corporation or these Bylaws, the Board of
Directors may authorize any officer, employee or agent to enter into any
contract or to execute and deliver any instrument in the name of and on behalf
of the Corporation. 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.
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SECTION 2. CHECKS AND DRAFTS
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness, 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.
SECTION 4. ANNUAL STATEMENT OF AFFAIRS
The President or Chief Financial Officer shall prepare annually a full
and correct statement of the affairs of the Corporation, to include a balance
sheet and a financial statement of operations for the preceding fiscal year.
The statement of affairs shall be submitted at the annual meeting of the
stockholders and, within 20 days after the meeting, placed on file at the
Corporation's principal office.
ARTICLE XV
CERTAIN ELECTIONS
SECTION 1. ELECTION OF SUBTITLE 8 PROVISIONS REGARDING UNSOLICITED TAKEOVERS
The Corporation hereby elects to be subject to the following
provisions of Title 3, Subtitle 8 of the Maryland General Corporation Law:
Section 3-804(c).
SECTION 2. EXEMPTION FROM CONTROL SHARE ACQUISITION STATUTE
The provisions of Sections 3-701 to 3-709 of the Maryland General
Corporation Law shall not apply to any share of the capital stock of the
Corporation. Such shares of capital stock are exempted from such Sections to
the fullest extent permitted by Maryland law.
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ARTICLE XVI
SUNDRY PROVISIONS
SECTION 1. BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
its accounts and transactions and minutes of the proceedings of its stockholders
and Board of Directors and of any executive or other committee when exercising
any of the powers of the Board of Directors. The books and records of the
Corporation may be in written form or in any other form which can be converted
within a reasonable time into written form for visual inspection. Minutes shall
be recorded in written form but may be maintained in the form of a reproduction.
The original or a certified copy of these Bylaws shall be kept at the principal
office of the Corporation.
SECTION 2. BONDS
The Board of Directors may require any officer, agent or employee of
the Corporation to give a bond to the Corporation, conditioned upon the faithful
discharge of his or her duties, with one or more sureties and in such amount as
may be satisfactory to the Board of Directors.
SECTION 3. VOTING UPON SHARES IN OTHER CORPORATIONS
Stock of other corporations, associations or trusts, registered in the
name of the Corporation, may be voted by the Chairman, President, a Vice-
President or a proxy appointed by any of them. The Board of Directors, however,
may by resolution appoint some other person to vote such shares, in which case
such person shall be entitled to vote such shares upon the production of a
certified copy of such resolution.
SECTION 4. MAIL
Any notice or other document which is required by these Bylaws to be
mailed shall be deposited in the United States mails, postage prepaid.
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SECTION 5. CONTRACTS AND AGREEMENTS
To the extent permitted by applicable law, and except as otherwise
prescribed by the Charter or these Bylaws, the Board of Directors may authorize
any officer, employee or agent of the Corporation to enter into any contract or
execute and deliver any instrument in the name of and on behalf of the
Corporation. Such authority may be general or confined to specific instances or
transactions. A person who hold more than one office in the Corporation may not
act in more than one capacity to execute, acknowledge, or verify an instrument
required by law to be executed, acknowledged, or verified by more than one
officer.
SECTION 6. FACSIMILE SIGNATURES
In addition to the provisions for the use of facsimile signatures
elsewhere specifically authorized in these Bylaws, facsimile signatures of any
officer or officers of the Corporation may be used whenever and as authorized by
the Board of Directors or a committee thereof.
SECTION 7. RELIANCE UPON BOOKS, REPORTS AND RECORDS
Each director and officer of the Corporation shall, in the performance
of his or her duties with respect to the Corporation, be entitled to rely on any
information, opinion report or statement, including financial statement or other
financial data, prepared or presented by an officer or employee of the
Corporation whom the director or officer reasonably believes to be reliable and
competent in the matters presented, by a lawyer, certified public accountant or
other person as to a matter which the director or officer reasonably believes to
be within the person's professional or expert competence or by a committee of
the Board of Directors on which the director does not serve, as to a matter
within its designated authority, if the director believes the committee to merit
confidence.
SECTION 8. TIME PERIODS
In applying any provision of these Bylaws which require that an act be
done or not done a specified number of days prior to an event or that an act be
done during a period of a specified number of days prior to an event, calendar
days shall be used, the day of the doing of the act shall be excluded and the
day of the event shall be included.
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ARTICLE XVII
AMENDMENT OF BYLAWS
In accordance with the Charter, these Bylaws may be repealed, altered,
amended or rescinded (a) by the stockholders of the Corporation (considered for
this purpose as one class) by the affirmative vote of not less than 75% of all
of the votes entitled to be cast at any meeting of stockholders called for that
purpose (provided that notice of such proposed repeal, alteration, amendment or
rescission is included in the notice of such meeting) or (b) by vote of a
majority of the Board of Directors at a meeting held in accordance with the
provisions of these Bylaws.
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