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BYLAWS
OF
BASIC U.S. REIT, INC.
INCORPORATED UNDER THE LAWS
OF THE
STATE OF MARYLAND
ON
JULY 30, 1996
LAW OFFICES
OF
SCHNADER, HARRISON, SEGAL & LEWIS
1600 MARKET STREET, SUITE 3600
PHILADELPHIA, PENNSYLVANIA 19103
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TABLE OF CONTENTS
PAGE
ARTICLE I
OFFICES
1.01. Principal Office........................................................1
1.02. Other Offices...........................................................1
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.01. Place of Meetings.......................................................1
2.02. Annual Meeting..........................................................1
2.03. Special Meetings........................................................2
2.04. Notice of Meetings......................................................2
2.05. Quorum..................................................................2
2.06. Stockholders Entitled to Vote...........................................3
2.07. Informal Action by Stockholders.........................................3
2.08. Exemption from Control Share Acquisition Statute........................4
2.09. Voting of Stock by Certain Holders......................................4
2.10. Inspectors..............................................................5
2.11. Nominations and Stockholder Business....................................5
ARTICLE III
DIRECTORS
3.01. Number and Term of Office...............................................8
3.02. Vacancies...............................................................8
3.03. General Powers..........................................................9
3.04. Place of Meetings.......................................................9
3.05. Regular Meetings........................................................9
3.06. Special Meetings........................................................9
3.07. Quorum..................................................................9
3.08. Informal Action........................................................10
3.09. Telecommunications.....................................................10
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PAGE
3.10. Committees.............................................................10
3.11. Compensation of Directors..............................................11
3.12. Removal of Directors...................................................11
3.13. Loss of Deposits.......................................................11
3.14. Surety Bonds...........................................................11
3.15. Reliance...............................................................12
3.16. Certain Rights of Directors, Officers,
Employees & Agents.....................................................12
ARTICLE IV
NOTICES
4.01. Notices................................................................12
4.02. Waiver of Notice.......................................................13
ARTICLE V
OFFICERS
5.01. Officers...............................................................13
5.02. Other Officers and Agents..............................................13
5.03. Salaries...............................................................13
5.04. Removal of Officers; Vacancies.........................................13
5.05. Chairman of the Board..................................................14
5.06. President..............................................................14
5.07. Executive Vice-President...............................................14
5.08. Vice-Presidents........................................................14
5.09. Secretary and Assistant Secretary......................................15
5.10. Treasurer and Assistant Treasurers.....................................15
ARTICLE VI
SHARES OF CAPITAL STOCK
6.01. Certificates of Stock..................................................16
6.02. Facsimile Signature....................................................17
6.03. Lost Certificates......................................................17
6.04. Transfers of Stock.....................................................17
6.05. Fixing Record Date.....................................................18
PAGE
6.06. Registered Stockholders................................................18
6.07. Stock Ledger...........................................................18
6.08. Fractional Stock; Issuance of Units....................................18
ARTICLE VII
CONTRACTS, LOANS, CHECKS, DEPOSITS AND PROXIES
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7.01. Contracts..............................................................19
7.02. Loans..................................................................19
7.03. Checks.................................................................19
7.04. Deposit Accounts.......................................................19
7.05. Proxies................................................................19
ARTICLE VIII
INDEMNIFICATION...............................................................20
ARTICLE IX
GENERAL PROVISIONS............................................................20
9.01. Dividends..............................................................20
9.02. Reserves...............................................................21
9.03. Annual Statement.......................................................21
9.04. Fiscal Year............................................................21
9.05. Seal...................................................................21
ARTICLE X
INVESTMENT POLICY AND RESTRICTIONS
10.01 Policies...............................................................21
10.02 Restrictions...........................................................22
ARTICLE XI
AMENDMENT OF BYLAWS
11.01 AMENDMENTS...........................................................23
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BYLAWS
OF
BASIC U.S. REIT, INC.
(a Maryland Corporation)
ARTICLE I
OFFICES
SECTION 1.01. PRINCIPAL OFFICE. The address of the principal office of
the Corporation is 11 East Chase Street, in the City of Baltimore, State of
Maryland. The principal office of the Corporation may be changed from time to
time by the Board of Directors.
SECTION 1.02. OTHER OFFICES. The Corporation may have other offices at
such other places within and without the State of Maryland as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. PLACE OF MEETINGS. All meetings of the stockholders for the
election of directors shall be held at the principal office of the Corporation
in the State of Maryland, at such place as may be fixed from time to time by the
Board of Directors, or at such other place either within or without the State of
Maryland as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting. Meetings of stockholders for any other
purpose may be held at such time and place, within or without the State of
Maryland, as shall be stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
SECTION 2.02. ANNUAL MEETING. Annual meetings of stockholders, commencing
with the year 1997, shall be held on the date and at the time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. At such meetings, the stockholders shall elect a Board of
Directors, which election need not be by written ballot, and transact such other
business as may properly be brought before the meeting. Written notice of the
annual meeting stating the place, date and hour of the meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten (10) nor
more than ninety (90) days before the date of the meeting.
SECTION 2.03. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Corporation's Articles of
Incorporation, may be called by the president, the chief executive officer or
the Board of Directors and shall be called by the secretary of the Corporation
upon the written request of stockholders owning at least twenty-five percent
(25%) in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote thereat. Such request shall state the purpose
or purposes of the proposed meeting and the matters proposed to be acted on
thereat. The secretary shall inform such stockholders of the reasonably
estimated cost of preparing and mailing notice of the meeting and, upon payment
to the Corporation by such stockholders of such costs, the secretary shall give
notice to each stockholder entitled to notice of the meeting. The secretary
shall not fix upon a date which unduly delays the meeting or shall have the
effect of defeating the purpose of the meeting.
SECTION 2.04. NOTICE OF MEETINGS. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given not less than ten (10) nor more than
ninety (90) days before the date of the meeting to each stockholder entitled to
vote at such meeting. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
SECTION 2.05. QUORUM. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Articles of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, to a date not more than 120 days after the original record date and
until a quorum shall be present or represented. At such adjourned meeting at
which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified. If the
adjournment is for more than thirty (30) days or if, after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting. The stockholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION 2.06. STOCKHOLDERS ENTITLED TO VOTE. At each meeting of the
stockholders every stockholder entitled to vote thereat shall be entitled to one
vote, in person or by proxy, for each share of capital stock held by such
stockholder, but no proxy shall be entitled to vote after eleven (11) months
after its date, unless the proxy provides for a longer period. Every proxy
shall have been executed in writing (which shall include telegraphing, cabling
or telephotographic transmission), and shall be filed with the
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secretary of the Corporation before or at the time of the meeting. When a
quorum is present at any meeting, the vote of the holders of the majority of the
shares having voting power, present in person or represented by proxy, shall
decide any question brought before such meeting, other than the election of
directors for which the vote of the holders of a plurality of the shares having
voting power present in person or represented by proxy is required, unless the
question is one upon which, by express provision of the statutes or of the
Articles of Incorporation or these Bylaws, a different vote is required, in
which case such express provision shall govern and control the decision of such
question.
SECTION 2.07. INFORMAL ACTION BY STOCKHOLDERS. Unless otherwise provided
in the Articles of Incorporation, any action required to be taken at any annual
or special meeting of stockholders of a Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if (i) a unanimous
consent in writing, setting forth the action so taken, shall be signed by each
holder of outstanding stock and (ii) a written waiver of any right to dissent
signed by each stockholder entitled to notice of the meeting but not entitled to
vote at it shall be delivered to the Corporation by delivery to its principal
office in the State of Maryland or to its principal place of business or to an
officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded and filed with the records
of stockholders meetings. Delivery made to the Corporation's principal office
or its principal place of business shall be by hand or by certified mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs it.
SECTION 2.08. EXEMPTION FROM CONTROL SHARE ACQUISITION STATUTE.
Notwithstanding any other provision of the Articles of Incorporation of the
Corporation or these Bylaws, Title 3, Subtitle 7 of the Maryland General
Corporation Law (or any successor statute) shall not apply to any acquisition by
any person of shares of stock of the Corporation. This section may be repealed,
in whole or in part, at any time, whether before of after an acquisition of
control shares and, upon such repeal, may, to the extent provided by any
successor bylaw, apply to any prior or subsequent control share acquisition.
SECTION 2.9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the
Corporation registered in the name of a corporation, partnership, trust or other
entity, if entitled to be voted, may be voted by the president or a vice
president, a general partner or trustee thereof, as the case may be, or by a
proxy appointed by any of the foregoing individuals, unless some other person
who has been appointed to vote such stock pursuant to a bylaw or a resolution of
the governing body of such corporation or other entity or agreement of the
partners of a partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote
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such stock. Any director or other fiduciary may vote stock registered in his
name as such fiduciary either in person or by proxy.
Shares of stock of the Corporation directly or indirectly owned by it
shall not be voted at any meting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Corporation; and any other provisions with respect to the procedure which
the Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
SECTION 2.10. INSPECTORS. At any meeting of stockholders, the
chairman of the meeting may, or upon the request of any stockholder 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 stockholders.
Each report of an inspector shall be in writing and signed by him or
by a majority of them. If there is more than one inspector, 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 2.11. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of persons
for election to the Board of Directors and the proposal of business to be
considered by the stockholders (except for stockholder proposals included in the
proxy materials pursuant
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to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) may be made at an annual meeting of stockholders (i) pursuant
to the Corporation's notice of meeting, (ii) by or at the direction of the Board
of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
Section 2.11(a), who is entitled to vote at the meeting and who complied with
the notice procedures set forth in this Section 2.11(a).
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (iii) of
paragraph (a)(1) of this Section 2.11, the stockholder must have given timely
notice thereof in writing to the secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the secretary at the principal
executive offices of the Corporation not less than sixty (60) days nor more than
ninety (90) days prior to the first anniversary of the preceding year's annual
meeting or special meeting in lieu thereof; provided, however, that in the event
that the date of the annual meeting is advanced by more than seven (7) calendar
days or delayed by more than sixty (60) days from such anniversary date, notice
by the stockholder to be timely must be so delivered not earlier than the
ninetieth (90th) day prior to such annual meeting and not later than the close
of business on the later of the sixtieth (60th) day prior to such annual meeting
or the twentieth (20th) day following the earlier of the day on which public
announcement of the date of such meeting is first made or notice of the meeting
is mailed to stockholders. Such stockholder's notice shall set forth (i) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Exchange Act
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (ii) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (iii) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (x) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (y) the number of shares
of each class of stock of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2)of this Section 2.11 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of
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the increased Board of Directors made by the Corporation at least 85 days prior
to the first anniversary of the preceding year's annual meeting, a stockholder's
notice required by this Section 2.11(a) shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if
it shall be delivered to the secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day following the
day on which such pubic announcement is first made by the Corporation.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction of the Board of
Directors or (iii) provided that the Board of Directors has determined that
directors shall be elected at such special meeting by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 2.11(b), who is entitled to vote at the meeting and
who complied with the notice procedures set forth in this Section 2.11(b). In
the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, any such
stockholder may nominate a person or persons (as the case may be) for election
to such position as specified in the Corporation's notice of meeting, if the
stockholder's notice containing the information required by paragraph (a)(2) of
this Section 2.11 shall be delivered to the secretary at the principal executive
offices of the Corporation not earlier than the ninetieth (90th) day prior to
such special meeting and not later than the close of business on the later of
the sixtieth (60th) day prior to such special meeting or the tenth (10th) day
following the day on which pubic announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(c) GENERAL. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 2.11 shall be eligible
to serve as directors and only such business shall be conducted at a meeting
with stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 2.11. The presiding officer 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 this Section 2.11 and, if any proposed
nomination or business is not in compliance with this Section 2.11, to declare
that such defective nomination or proposal be disregarded.
(2) For purposes of this Section 2.11, "public
announcement" shall mean disclosure in a press release reported by
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the Dow Jones News Service, Associated Press or comparable news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 2.11, a stockholder shall also comply with all applicable requirements
of state law and of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth in this Section 2.11. Nothing in this
Section shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
ARTICLE III
DIRECTORS
SECTION 3.01. NUMBER AND TERM OF OFFICE. The number of directors which
shall constitute the whole Board shall be not less than three (3) nor more than
ten (10). Within the limits above specified, the number of directors shall be
determined by resolution of the Board of Directors, or by the stockholders at
the annual meeting. The directors shall be elected at the annual meeting of
stockholders, except as provided in Section 3.02 of this Article, and each
director shall hold office until the next annual meeting of stockholders and
thereafter until his successor is duly elected and qualified, unless a prior
vacancy shall occur by reason of his death, resignation or removal from office.
Directors need not be stockholders.
SECTION 3.02. VACANCIES. Vacancies for reasons other than an increase in
the authorized number of directors may be filled by a majority of the directors
then in office, though less than a quorum, and the directors so chosen shall
hold office until the next annual meeting of stockholders and until their
successors are duly elected and qualified, unless a prior vacancy shall occur by
reason of his death, resignation or removal from office. Any vacancy created by
an increase in the authorized number of directors may be filled by a majority
vote of the entire Board of Directors. If there are no directors in office,
then an election of directors may be held in the manner provided by statute. Any
individual so elected as a director shall hold office until the next annual
meeting of the stockholders and until his successor is elected and qualified.
SECTION 3.03. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by its Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Articles of Incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
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SECTION 3.04. PLACE OF MEETINGS. The Board of Directors of the
Corporation may hold meetings, both regular and special, either within or
without the State of Maryland.
SECTION 3.05. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held without notice at such time and at such place as shall
from time to time be determined by the Board.
SECTION 3.06. SPECIAL MEETINGS. Special meetings of the Board may be
called by the president, chairman of the board or a majority of the directors
then in office on two (2) days' notice to each director, either personally or by
mail or by telephone, telegram or facsimile.
SECTION 3.07. QUORUM. At all meetings of the Board, a majority of the
directors in office shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the Articles of Incorporation.
If a quorum shall not be present at any meeting of the Board of Directors, a
majority of the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. The directors present at a meeting which has been duly called
and convened may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.08. INFORMAL ACTION. Unless otherwise restricted by the
Articles of Incorporation or these Bylaws, any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
SECTION 3.09. TELECOMMUNICATIONS. Members of the Board of Directors, or
any committee designated by such Board, may participate in a meeting of such
Board or committee by means of conference telephone or similar communications
equipment by means of which all such persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute presence
in person at such meeting.
SECTION 3.10. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board, designate one or more committees, each
committee to consist of two (2) or more of the directors of the Corporation.
The Board may designate one or more directors as alternative members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and
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not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at any
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Articles of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and, unless the
resolution or the Articles of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Such committee or committees shall have such
name or names as may be determined from time to time by resolution adopted by
the Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
SECTION 3.11. COMPENSATION OF DIRECTORS. Unless otherwise restricted by
the Articles of Incorporation or by these Bylaws, the Board of Directors shall
have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. Members of special or
standing committees may be allowed similar compensation for attending committee
meetings. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
SECTION 3.12. REMOVAL OF DIRECTORS. At any special meeting of the
stockholders, duly called as provided in these Bylaws, any director or directors
may, by the affirmative vote of the holders of a majority of all the shares of
stock outstanding and entitled to vote for the election of directors, be removed
from office, either with or without cause. At such meeting a successor or
successors may be elected, or if any such vacancy is not so filled it may be
filled by the directors as provided in Section 3.02 above. If stockholders are
entitled to vote cumulatively to elect directors then, unless the entire Board
be removed, no individual director shall be removed in case the votes of a
sufficient number of shares are cast against the resolution for his removal
which, if cumulatively voted at an annual election, would be sufficient to elect
one or more directors.
SECTION 3.13. LOSS OF DEPOSITS. No director shall be liable for any
loss which may occur by reason of the failure of the bank,
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trust company, savings and loan association, or other institution which whom
moneys or stock have been deposited.
SECTION 3.14. SURETY BONDS. Unless required by law, no director
shall be obligated to give any bond or surety or other security for the
performance of any of his duties.
SECTION 3.15. 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 advisor, accountant,
appraisers or other experts or consultants selected by the Board of Directors or
officer of the Corporation, regardless of whether such counsel or expert may
also be a director.
SECTION 3.16. CERTAIN RIGHTS OF DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS. The directors shall have no responsibility to devote their full time to
the affairs of the Corporation. Any director or officer, employee or agent of
the Corporation, in his personal capacity or in a capacity as an affiliate,
employee, or agent of any other person, or otherwise, may have business
interests and engage in business activities similar to or in addition to or in
competition with those of or relating to the Corporation.
ARTICLE IV
NOTICES
SECTION 4.01. NOTICES. Whenever, under the provisions of the statutes or
of the Articles of Incorporation or of these Bylaws, notice is required to be
given to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to directors may also be given by telephone or facsimile. Telephone
notice shall be deemed to be given when the director is personally given such
notice in a telephone call to which he is a party. Facsimile transmission
notice shall be deemed to be given upon completion of the transmission of the
message to the number given to the Corporation by the director and receipt of a
completed answer-back indicating receipt.
SECTION 4.02. WAIVER OF NOTICE. Whenever any notice is required to be
given under the provisions of the Maryland General Corporation Law or of the
Articles of Incorporation or of these
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Bylaws, a waiver thereof in writing, signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Notice is also deemed to be waived if the person is
present at the meeting for which notice was required.
ARTICLE V
OFFICERS
SECTION 5.01. OFFICERS. The officers of the Corporation shall be chosen
by the Board of Directors and shall include a president, a secretary and a
treasurer. The Board of Directors may also choose a chairman of the board, one
or more vice-presidents, assistant secretaries and assistant treasurers. Any
number of offices may be held by the same person, unless the Articles of
Incorporation or these Bylaws provide otherwise, except that a person may not
serve concurrently as both president and vice-president of the Corporation. The
Board of Directors at its first meeting after each annual meeting of
stockholders shall choose the appropriate officers of the Corporation. Each
officer shall hold his office until his successor is elected and qualified or
until his earlier death, resignation or removal. Any officer may resign at any
time upon written notice to the Corporation.
SECTION 5.02. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it shall deem necessary who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board.
SECTION 5.03. SALARIES. The salaries and other compensation of all
officers and agents of the Corporation shall be fixed from time to time by the
Board of Directors. No officer shall be prevented from receiving such salary or
other compensation by reason of the fact that he is also a director.
SECTION 5.04. REMOVAL OF OFFICERS; VACANCIES. The officers of the
Corporation shall hold office until their successors are elected and qualified.
Any officer elected or appointed by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors if the
Board of Directors finds that such removal will serve the best interests of the
Corporation. Such removal does not prejudice any of such officer's contract
rights. Any vacancy occurring in any office of the Corporation shall be filled
by the Board of Directors for the balance of the term.
SECTION 5.05. CHAIRMAN OF THE BOARD. The chairman of the board, if one be
designated by the Board of Directors, shall preside at all meetings of the
stockholders and of the Board of Directors, shall act in an advisory capacity to
the other principal
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officers and shall have such powers and perform such duties as the Board may
prescribe.
SECTION 5.06. PRESIDENT. The president shall be the chief executive
officer of the Corporation, and in the absence of or inability to act of a
chairman of the board, shall preside at all meetings of the stockholders and the
Board of Directors, shall have general and active management of the business of
the Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect. He shall execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
SECTION 5.07. EXECUTIVE VICE-PRESIDENT. The executive vice-president, if
one be designated by the Board of Directors, shall perform such executive and
administrative functions and duties as are delegated to him by the president,
shall, in the absence of or inability to act of the president, temporarily act
in his place, and shall perform such other duties as the Board of Directors may
prescribe.
SECTION 5.08. VICE-PRESIDENTS. In the absence or inability to act of the
president and executive vice-president, the vice-president (or in the event
there be more than one vice-president, the vice-presidents in the order
designated, or in the absence of any designation, then in the order of their
election) shall perform the duties of the president or executive vice-president,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the president or executive vice-president. The vice-
presidents shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
SECTION 5.09. SECRETARY AND ASSISTANT SECRETARY. The secretary shall
attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or president, under whose supervision he
shall be. He shall have custody of the corporate seal of the Corporation and
he, or an assistant secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his signature
or by the signature of such assistant secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature.
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The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the Board of Directors (of if there be no
such determination, then in the order of their election), shall, in the absence
of the secretary or in the event of his inability to act, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
SECTION 5.10. TREASURER AND ASSISTANT TREASURERS. The treasurer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. 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 the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election), shall, in
the absence of the treasurer or in the event of his inability to act, perform
the duties and exercise the powers of the treasurer and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
ARTICLE VI
SHARES OF CAPITAL STOCK
SECTION 6.01. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate, signed by, or in the name
of the Corporation by, the chairman of the Board of Directors, or the president
or a vice-president or the chairman of the board, and countersigned by the
treasurer or an assistant treasurer, or the secretary or an assistant secretary
of the Corporation, certifying the number of shares owned by him in the
Corporation. Such signatures may be manual or facsimile. If the
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Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in Section 2-211 of
the Maryland General Corporation Law, in lieu of the foregoing requirements,
there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a statement
that the Corporation will furnish without charge to each stockholder who so
requests a full statement of the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
SECTION 6.02. VALIDITY OF SIGNATURE. In case any officer who has signed
or whose facsimile signature has been placed upon a certificate shall have
ceased to be such officer before such certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer at the date of
issue.
SECTION 6.03. LOST CERTIFICATES. Any officer designated by the Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the officer designated by the Board of Directors may, in his discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
SECTION 6.04. TRANSFERS OF STOCK. 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, 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.
The Corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or
on the part of any other
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person, whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Maryland.
Notwithstanding the foregoing, transfers of shares of any class of
stock will be subject in all respects to the Articles of Incorporation of the
Corporation and all of the terms and conditions contained therein.
SECTION 6.05. FIXING RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than ninety (90) nor less than
ten (10) days before the date of such meeting. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting. In order that
the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix, in advance,
a record date, which shall not be more than ten (10) days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors.
SECTION 6.06. REGISTERED STOCKHOLDERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of the State of Maryland.
SECTION 6.07. STOCK LEDGER. The Corporation shall maintain at its
principal office, principal executive offices or at the office of its counsel,
accountants or transfer agent, an original or duplicate share ledger containing
the name and address of each stockholder and the number of shares of each class
held by such stockholder.
SECTION 6.08. FRACTIONAL STOCK; ISSUANCE OF UNITS. The Board of Directors
may issue fractional stock or provide for the issuance of scrip, all on such
terms and under such conditions as they may determine. Notwithstanding any
other provision of the Articles of Incorporation or these Bylaws, the Board of
Directors may issue units consisting of different securities of the Corporation.
Any security issued in a unit shall have the same characteristics as
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any identical securities issued by the Corporation, except that the Board of
Directors may provide that for a specified period securities of the Corporation
issued in such unit may be transferred on the books of the Corporation only in
such unit.
ARTICLE VII
CONTRACTS, LOANS, CHECKS, DEPOSITS AND PROXIES
SECTION 7.01. CONTRACTS. The Board of Directors may authorize any officer
or officers, agent or agents, to enter into any contract or 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 7.02. LOANS. No loans shall be contracted on behalf of the
Corporation, and no evidences of indebtedness shall be issued in its name,
unless authorized by a resolution of the Board of Directors. Such authority may
be general or confined to specific instances.
SECTION 7.03. CHECKS. 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
resolution of the Board of Directors.
SECTION 7.04. DEPOSIT ACCOUNTS. 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 select.
SECTION 7.05. PROXIES. Proxies to vote with respect to shares of stock of
other Corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
president or a vice-president or by any other person or persons thereunto
authorized by the Board of Directors.
ARTICLE VIII
INDEMNIFICATION AND ADVANCES FOR EXPENSES
To the maximum extent permitted by Maryland Law in effect from time to
time, the Corporation, without requiring a preliminary determination of the
ultimate entitlement to indemnification, shall indemnify and shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any individual who is a present or former director or officer of the
Corporation and who is made a party to the proceeding by reason of his service
in that
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capacity or (b) any individual who, while a director of the Corporation and at
the request of the Corporation, serves or has served another corporation,
partnership, joint venture, trust, employee benefit plan, limited liability
company or any other enterprise as a director, officer, partner, trustee or
manager of such corporation, partnership, joint venture, trust, employee benefit
plan, limited liability company or other enterprise and who is made party to the
proceeding by reason of his service in that capacity. The Corporation may, with
the approval of its Board of Directors, provide such indemnification for and
advance expenses to a person who served a predecessor of the Corporation in any
of the capacities described in (a) or (b) above and to any employee or agent of
the Corporation or a predecessor of the Corporation.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any other provision of these Bylaws or the Articles of
Incorporation of the Corporation inconsistent with this Article, shall apply to
or affect in any respect the applicability of the preceding paragraph with
respect to any act or failure to act occurred prior to such amendment, repeal or
adoption.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Articles of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock of the Corporation, subject to the provisions of the Articles
of Incorporation.
SECTION 9.02. RESERVES. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 9.03. ANNUAL STATEMENT. The Board of Directors shall present at
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
SECTION 9.04. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
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SECTION 9.05. SEAL. The corporate seal shall have inscribed thereon the
name of the Corporation, the year of its organization and the words "Corporate
Seal, Maryland". The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise. Whenever the Corporation is
permitted or required to affix its seal to a document, it shall be sufficient to
met the requirements of any law, rule or regulation relating to the seal to
place the word "(Seal)" adjacent to the signature of the person authorized to
executed the document on behalf of the Corporation.
ARTICLE X
INVESTMENT POLICY AND RESTRICTIONS
SECTION 10.01. POLICIES. Subject to the provisions of the Articles of
Incorporation of the Corporation, the Board of Directors may from time to time
by the majority approval of the Board of Directors, such majority to include a
majority of the independent directors, 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.
SECTION 10.02. RESTRICTIONS. Notwithstanding the provisions of Section
10.01 hereof, but subject to the provisions of the Articles of Incorporation
and the other provisions of these Bylaws, the Board of Directors may from time
to time by the majority approval of the Board of Directors, such majority to
include a majority of the independent directors, recommend the amendment,
revision or termination of the following investment restrictions, which
amendment, revision or termination shall become effective upon the approval of a
majority of the votes cast at a meeting of the holders of the Common Stock of
the Corporation:
(a) the Corporation will not make any investment that would
result in its ceasing to qualify as a real estate investment trust under the
U.S. Internal Revenue of Code of 1986, as amended ("Code");
(b) the Corporation may not incur indebtedness if the aggregate
outstanding principal amount of all indebtedness of the Corporation exceeds
sixty percent (60%) of the greater of the aggregate acquisition prices or the
current fair market value of all properties of the Corporation. For purposes of
the foregoing determination, the fair market value of the properties of the
Corporation is required to be determined by an independent third party
appraisal;
(c) the Corporation may not engage in construction or
development of real property except to the extent to maintain its properties in
good repair, for expansion of an existing
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property or to otherwise enhance the income producing ability of the properties;
(d) except as otherwise permitted by the Code, for investment
from proceeds of financings, pending investment or reinvestment, cash on hand
will be invested in certificates of deposit with terms of less than one year or
U.S. government securities with terms of less than one year (such as treasury
obligations);
(e) the Corporation may not invest in mortgages, unless the
underlying security is income-producing property or is in the process of being
developed as income-producing property, all such mortgages in the aggregate do
not exceed 10% of the aggregate cost of assets of the Corporation, the mortgage
is a first mortgage, the term of the mortgage is five (5) years or less and the
amortization period is thirty (30) years or less;
(f) after the acquisition of its first two real properties, the
Corporation may not acquire any single investment in real property if the
acquisition price of such property will exceed (1) $25 million until the
aggregate acquisition prices of all properties owned by the Corporation
inclusive of the proposed investment exceeds $100,000,000 and (2) after the
aggregate acquisition prices of all properties owned by the Corporation exceeds
$100,000,000, twenty-five percent (25%) of the aggregate acquisition prices of
all properties inclusive of the proposed investment; and
(g) the Corporation may not grant or assume a mortgage on any
office property if the aggregate outstanding principal amount of the mortgage
and of all other mortgages granted or assumed by the Corporation secured against
its office properties or any part thereof exceeds fifty percent (50%) of the
aggregate acquisition prices of all office properties of the Corporation.
ARTICLE XI
AMENDMENT OF BYLAWS
SECTION 11.01. AMENDMENTS. These Bylaws may be altered, amended or
repealed or new Bylaws may be adopted by the Board of Directors or by the
stockholders at any regular meeting of the Board of Directors or of the
stockholders, or at any special meeting of the Board of Directors or of the
stockholders if notice of such alteration, amendment, repeal or adoption of new
Bylaws is contained in the notice of such special meeting.
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