Exhibit 3(ii)(a)
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MEDITRUST ACQUISITION COMPANY
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BY-LAWS
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Adopted as of June 19, 1997
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INDEX TO TRUSTEES' REGULATIONS
OF
MEDITRUST
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ARTICLE I - TRUSTEES......................................................... 1
SECTION 1.1. Qualifying Shares Not Required........................ 1
SECTION 1.2. Quorum................................................ 1
SECTION 1.3. Election.............................................. 1
SECTION 1.4. Place of Meeting...................................... 1
SECTION 1.5. Organization Meeting.................................. 1
SECTION 1.6. Regular Meetings...................................... 2
SECTION 1.7. Special Meetings...................................... 2
SECTION 1.8. Adjourned Meetings.................................... 3
SECTION 1.9. Waiver of Notice...................................... 3
SECTION 1.10. Action Without Meeting............................... 3
SECTION 1.11. Telephone Matters.................................... 4
SECTION 1.12. Committee Rules...................................... 4
SECTION 1.13. Required Attendance at Meetings...................... 4
ARTICLE II - OFFICERS........................................................ 5
SECTION 2.1. Enumeration........................................... 5
SECTION 2.2. Powers and Duties of the Chairman..................... 5
SECTION 2.3. Powers and Duties of the President.................... 5
SECTION 2.4. Powers and Duties of Vice President................... 6
SECTION 2.5. Duties of the Secretary............................... 6
SECTION 2.6. Duties of the Treasurer............................... 7
ARTICLE III - SHAREHOLDERS................................................... 8
SECTION 3.1. Effect of Quorum...................................... 8
SECTION 3.2. Place of Meeting...................................... 8
SECTION 3.3. Annual Meeting........................................ 8
SECTION 3.4. Special Meetings...................................... 8
SECTION 3.5. Notice of Regular or Special Meetings................. 9
(i)
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SECTION 3.6. Notice of Adjourned Meetings.......................... 9
SECTION 3.7. Proxies.............................................. 10
SECTION 3.8. Consent of Absentees................................. 10
SECTION 3.9. Voting Rights........................................ 11
SECTION 3.10. Inspectors of Election.............................. 11
ARTICLE IV - TRANSFER OF SHARES............................................. 12
SECTION 4.1. Transferability of Shares............................ 12
SECTION 4.2. Transfers of Stock................................... 13
ARTICLE V - MISCELLANEOUS................................................... 17
SECTION 5.1. Record Dates and Closing of Transfer Books........... 17
SECTION 5.2. Inspection of By-Laws................................ 17
ARTICLE VI - SEAL........................................................... 17
SECTION 6.1. Seal................................................. 17
ARTICLE VII - AMENDMENTS.................................................... 18
SECTION 7.1. By Trustees.......................................... 18
ARTICLE VIII - DEFINITIONS.................................................. 18
SECTION 8.1. Definitions.......................................... 18
ARTICLE IX - FISCAL YEAR.................................................... 18
SECTION 9.1. Fiscal Year.......................................... 18
(ii)
ARTICLE I
TRUSTEES
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SECTION 1.1. Qualifying Shares Not Required. Trustees need not be
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Shareholders of MEDITRUST ACQUISITION COMPANY (the "Trust").
SECTION 1.2. Quorum. A majority of the Trustees shall constitute a
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quorum subject to the provisions of Section 2.6 of the Trust's Declaration of
Trust, as it may be amended from time to time (the "Declaration").
SECTION 1.3. Election. Trustees shall be elected at each Annual Meeting
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of Shareholders. If Trustees are not elected at an annual meeting or if such
meeting is not held, Trustees may be elected at a special meeting of
Shareholders.
SECTION 1.4. Place of Meeting. Meetings of the Trustees shall be held
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at the principal office of the Trust or at such place within or without the
Commonwealth of Massachusetts as the President shall direct or as is fixed from
time to time by resolution of the Trustees. Whenever a place other than the
principal office is fixed by the President or by resolution as the place at
which future meetings are to be held, written notice thereof shall be sent to
all Trustees a reasonable time in advance of any meeting to be held at such
place.
SECTION 1.5. Organization Meeting. Immediately following each Annual
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Meeting of Shareholders, a regular meeting of the Trustees shall be held for the
purpose of
organizing, electing officers and transacting other business. Notice of such
meetings need not be given.
SECTION 1.6. Regular Meetings. Regular meetings of the Trustees shall
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be held at the place determined pursuant to Section 1.4 on the dates, if any,
established at each organizational meeting of the Trustees and notice of such
regular meetings of the Trustees is hereby dispensed with.
SECTION 1.7. Special Meetings. Special meetings of the Trustees may be
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called at any time by the Chairman or President, and the Chairman or President
shall call a special meeting at any time upon the written request of three (3)
Trustees. Written notice of the time and place of a special meeting shall be
given to each Trustee, either personally or by sending a copy thereof by mail or
by telegraph, charges prepaid, to his address appearing on the books of the
Trust or theretofore given by him to the Trust for the purpose of notice. In
case of personal service, such notice shall be so delivered at least twenty-four
(24) hours prior to the time fixed for the meeting. If such notice is mailed, it
shall be deposited in the United States mail in the place in which the principal
office of the Trust is located at least seventy-two (72) hours prior to the time
fixed for the holding of the meeting. If telegraphed, it shall be delivered to
the telegraph company at least forty-eight (48) hours prior to the time fixed
for the holding of the meeting. If notice is not so given by the Secretary it
may be given in the same manner by the Chairman, President or the Trustees
requesting the meeting.
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SECTION 1.8. Adjourned Meetings. A quorum of the Trustees may adjourn
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any Trustees' meeting to meet again at a stated day and hour. In the absence of
a quorum, a majority of the Trustees present may adjourn from time to time to
meet again at a stated day and hour prior to the time fixed for the next regular
meeting of the Trustees. The motion for adjournment shall be lodged with the
records of the Trust. Notice of the time and place of an adjourned meeting need
not be given to any Trustee present at the adjourned meeting if the time and
place is fixed at the meeting adjourned.
SECTION 1.9. Waiver of Notice. The transactions of any meeting of the
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Trustees, however called and noticed or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after the meeting, each of the Trustees not
present signs a written waiver of notice, a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents, or
approvals shall be lodged with the Trust records or made a part of the minutes
of the meeting.
SECTION 1.10. Action Without Meeting. Unless specifically otherwise
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provided in the Declaration, any action required or permitted to be taken by the
Trustees may be taken without a meeting if a majority of the Trustees (or a
majority of the Independent Trustees as to any action which requires such a
majority) shall individually or collectively consent in writing to such action.
Such written consent or consents shall be lodged with the records of the Trust
and shall have the same force and effect as an unanimous vote of such Trustees.
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SECTION 1.11. Telephone Matters. The Trustees may meet by means of a
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telephone conference circuit or similar communications equipment by means of
which all persons participating in the meeting shall be able to hear one another
and participate therein. Such meeting shall be deemed to have been held at a
place designated by the Trustees at the meeting. Participation in a telephone
conference meeting shall constitute presence in person at such meeting for all
purposes except pursuant to Section 1.13 hereof.
SECTION 1.12. Committee Rules. Unless the Trustees otherwise provide,
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each committee designated by the Trustees may adopt, amend and repeal rules for
the conduct of such committee's business. In the absence of a provision by the
Trustees or a provision in the rules of such committee to the contrary, a
majority of the entire authorized number of members of such committee shall
constitute a quorum for the transaction of business, the vote of a majority of
the members present at a meeting at the time of such vote if a quorum is then
present shall be the act of such committee, and in other respects each committee
shall conduct its business in the same manner as the Trustees conduct their
business pursuant to Article II of the Declaration and this Article I of these
regulations.
SECTION 1.13. Required Attendance at Meetings. Any Trustee who fails to
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attend in person (i) three (3) consecutive meetings of the Trustees or (ii) at
least 75% of all meetings of the Trustees during any calendar year, except for
absences caused by the illness of the Trustee or other justifiable cause as
determined by the Trustees, shall be automatically removed as a Trustee without
any further action by the Trustees or the Shareholders. For
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purposes of this provision, participation by conference telephone is not deemed
to constitute attendance in person.
ARTICLE II
OFFICERS
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SECTION 2.1. Enumeration. The officers of the Trust shall be a President,
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a Secretary, a Treasurer, and such other officers as are elected by the Trustees
including, in their discretion, a Chairman, with such duties as are assigned to
them by the Trustees. Officers shall be elected by and shall hold office at the
pleasure of the Trustees. When the duties do not conflict, any two or more
officers, except those of Chairman and/or President and Secretary, may be held
by the same person.
SECTION 2.2. Powers and Duties of the Chairman. The Chairman, if there
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shall be such an officer, shall, if present, preside at all meetings of the
Shareholders and the Trustees and may be the chief executive officer of the
Trust if the Trustees so elect.
SECTION 2.3. Powers and Duties of the President. Subject to such
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supervisory powers, if any, as may be given by the Trustees to the Chairman, the
President shall, subject to the control of the Trustees and the supervision of
the Chairman, have general supervision, direction and control of the business of
the Trust and its employees and shall exercise such general powers of management
as are usually vested in the office of president of the
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corporation. In the absence of the Chairman, or if there be none, he shall
preside at all meetings of the Shareholders and/or Trustees and, unless the
Chairman has been designated as chief executive officer, shall be chief
executive officer of the Trust. He shall be ex officio, a member of all
standing committees.
SECTION 2.4. Powers and Duties of Vice President. Each Vice President, if
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any, designated by the Trustees shall be an administrative officer of the Trust
and have such duties as are designated by the President or the Trustees.
SECTION 2.5. Duties of the Secretary. The Secretary shall:
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(a) Minutes. Keep full and complete minutes of the meetings (or
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actions in lieu thereof) of the Trustees of any committees of the Trustees and
the Shareholders and give notice, as required, of all such meetings;
(b) Trust Seal. Keep the seal of the Trust and affix the same to all
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instruments executed by the Trust which require it;
(c) Books and Other Records. Maintain custody of and keep the books
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of account and other records of the Trust except such that are in the custody of
the Treasurer;
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(d) Share Register. Maintain at the principal office of the Trust a
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share register, showing the ownership and transfers of ownership of all shares
of the Trust, unless a transfer agent is employed to maintain and does maintain
such a share register; and
(e) General Duties. Generally, perform all duties which pertain to
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his office and which are required by the Trustees.
An Assistant Secretary or Secretaries may be appointed to act in the
absence of the Secretary.
SECTION 2.6. Duties of the Treasurer. The Treasurer shall perform all
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duties which pertain to his office and which are required by the Trustees,
including without limitation the receipt, deposit and disbursement of funds
belonging to the Trust.
An Assistant Treasurer or Treasurers may be appointed to act in the absence
of the Treasurer.
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ARTICLE III
SHAREHOLDERS
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SECTION 3.1. Effect of Quorum. Subject to the provisions of the
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Declaration, the Shareholders present at a duly called or held meeting at which
a quorum is present may continue to do business until adjournment
notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum.
SECTION 3.2. Place of Meeting. Meetings of the Shareholders shall
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be held at the principal office of the Trust or at such place within or without
the Commonwealth of Massachusetts as is designated by the Trustees or the
Chairman or President or by the written consent of a majority of the
Shareholders entitled to vote thereat, given either before or after the meeting
and filed with the Secretary of the Trust.
SECTION 3.3. Annual Meeting. A regular annual meeting of the
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Shareholders shall be called by the Chairman or President within six months
after the end of each fiscal year commencing with the fiscal year ending
December 31, 1997.
SECTION 3.4. Special Meetings. Special Meetings of the Shareholders
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may be held at any time for any purpose or purposes permitted by the
Declaration.
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SECTION 3.5. Notice of Regular or Special Meetings. Written notice
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specifying the place, day and hour of any regular or special meeting, the
purposes of the meeting and all other matters required by law shall be given to
each Shareholder of record entitled to vote, either personally or by sending a
copy thereof by mail or telegraph, charges prepaid, to his address appearing on
the books of the Trust or theretofore given by him to the Trust for the purpose
of notice or, if no address appears or has been given, addressed to the place
where the principal office of the Trust is situated. It shall be the duty of
the Secretary to give notice of each Annual Meeting of the Shareholders at least
fifteen (15) days and not more than sixty (60) days before the date on which it
is to be held. Whenever an officer has been duly requested to call a special
meeting of Shareholders, it shall be his duty to fix the date and hour thereof,
which date shall be not less than twenty (20) days and not more than sixty (60)
days after the receipt of such request if the request has been delivered in
person or after the date of mailing the request, as the case may be, and to give
notice of such special meeting within ten (10) days after the receipt of such
request. If the date of such special meeting is not so fixed and notice thereof
given within ten (10) days after the date of receipt of the request, the date
and hour of such meeting may be fixed by the Person or Persons calling or
requesting the meeting and notice thereof shall be given by such Person or
Persons not less than twenty (20) nor more than sixty (60) days before the date
on which the meeting is to be held.
SECTION 3.6. Notice of Adjourned Meetings. It shall not be
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necessary to give notice of the time and place of any adjourned meeting or of
the business to be transacted
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thereat other than by announcement at the meeting at which such adjournment is
taken, except that when a meeting is adjourned for thirty (30) days or more,
notice of the adjourned meeting shall be given as in the case of an original
meeting.
SECTION 3.7. Proxies. The appointment of a proxy or proxies shall
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be made by an instrument in writing executed by the Shareholder or his duly
authorized agent and filed with the Secretary of the Trust. No proxy shall be
valid after the expiration of eleven (11) months from the date of its execution.
At a meeting of Shareholders, all questions concerning the qualification of
voters, the validity of proxies and the acceptance or rejection of votes, shall
be decided by the Secretary of the meeting unless inspectors of election are
appointed pursuant to Section 3.10 in which event such inspectors shall pass
upon all questions and shall have all other duties specified in said section.
SECTION 3.8. Consent of Absentees. The transactions of any meeting
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of Shareholders, either annual, special or adjourned, however called and
noticed, shall be as valid as though had at a meeting duly held after the
regular call and notice if a quorum is present and if, either before or after
the meeting, each Shareholder entitled to vote, not present in person or by
proxy, signs a written waiver of notice, a consent to the holding of such
meeting or an approval of the minutes thereof. All such waivers, consents or
approvals shall be lodged with the Trust records or made a part of the minutes
of the meeting.
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SECTION 3.9. Voting Rights. If no date is fixed for the
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determination of the Shareholders entitled to vote at any meeting of
Shareholders, only Persons in whose names Shares entitled to vote stand on the
share records of the Trust at the opening of business on the day of any meeting
of Shareholders shall be entitled to vote at such meeting.
SECTION 3.10. Inspectors of Election. In advance of any meeting of
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Shareholders, the Trustees may appoint inspectors of election to act at the
meeting or any adjournment thereof. If inspectors of election are not so
appointed, the Chairman of any meeting of Shareholders may, and on the request
of any Shareholder or his proxy shall, appoint inspectors of election at the
meeting. The number of inspectors shall be either one or three. If appointed at
the meeting on the request of one or more Shareholders or proxies, a majority of
Shares present, shall determine whether one or three inspectors are to be
appointed. In case any Person appointed as inspector fails to appear or fails
or refuses to act, the vacancy may be filled by appointment made by the Trustees
in advance of the convening of the meeting or at the meeting by the Chairman of
the meeting. The inspectors of election shall determine the number of Shares
outstanding, 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 the results and do such acts as may be proper to conduct the election
or vote with fairness to all Shareholders. If there are three inspectors of
election, the decision, act or certificate of a majority is effective in all
respects as the decision, act or certificate of all. On request of the
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Chairman of the meeting or of any Shareholder or his proxy, the inspectors
shall make a report in writing of any challenge, question or matter determined
by them and execute a certificate of any facts found by them.
ARTICLE IV
TRANSFER OF SHARES
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SECTION 4.1. Transferability of Shares. Shares shall be transferable on
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the records of the Trust only by the record holder thereof or by his agent
thereunto duly authorized in writing upon delivery to the Trustees or a transfer
agent of the certificate or certificates therefor, properly endorsed or
accompanied by duly executed instruments of transfer and accompanied by all
necessary documentary stamps together with such evidence of the genuineness of
each such endorsement, execution or authorization and of other matters as may
reasonably be required by the Trustees or such transfer agent. Upon such
delivery, the transfer shall be recorded in the records of the Trust and a new
certificate for the Shares so transferred shall be issued to the transferee and
in case of a transfer of only a part of the Shares represented by any
certificate, a new certificate for the balance shall be issued to the
transferor. Any Person becoming entitled to any Shares of the Trust in
consequence of the death of a Shareholder or otherwise by operation of law shall
be recorded as the holder of such Shares and shall receive a new certificate
therefor but only upon delivery to the trustees or a transfer agent of
instruments and other evidence required by the Trustees or such transfer agent
to demonstrate such entitlement, the existing certificate for such Shares and
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such releases from applicable governmental authorities as may be required by the
Trustees or transfer agent.
SECTION 4.2. Transfers of Stock.
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(a) Subject to paragraphs (b), (c) and (d) of this Section 4.2, upon
delivery to the Trustees or transfer agent of a certificate for Shares of the
Trust as set forth in Section 4.1, it shall be the duty of the Trust to issue a
new certificate to the Person entitled thereto, cancel the old certificate and
record the transaction on the records of the Trust.
(b) Immediately following the payment by Meditrust, a Massachusetts
business trust, of Shares of the Trust (the "effective time of the
restriction"), and continuing thereafter until such time as the limitation on
transfer provided for in the Pairing Agreement between the Trust and Meditrust
shall be terminated in the manner therein provided:
(i) the Shares shall not be transferable, and shall not be
transferred on the records of the Trust, unless (1) a simultaneous transfer
is made by the same transferor to the same transferee, or (2) such
transferor has previously arranged with Meditrust for the transfer to the
transferee, of a like number of shares
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of Meditrust beneficial interest without par value (the "Meditrust Shares")
and such shares are paired with one another.
(ii) Each certificate evidencing ownership of Shares of the Trust
issued and not cancelled prior to the effective time of the restriction
shall be deemed to evidence a like number of Meditrust Shares.
(iii) A conspicuous legend shall be placed on the face of each
certificate evidencing ownership of Shares of the Trust issued after the
effective time of the restriction, referring to the restrictions on
transfer set forth in the By-laws of the Trust.
(c) The Shareholders shall upon demand disclose to the Trustees in
writing such information with respect to direct and indirect ownership of the
Shares as the Trustees deem necessary or appropriate to comply with the REIT
Provisions of the Internal Revenue Code or to comply with the requirements of
any taxing authority or governmental agency.
(d) Whenever it is deemed by them to be reasonably necessary to
protect the status of the Trust as REIT, the Trustees may require a statement or
affidavit from each Shareholder or proposed transferee of Shares setting forth
the number of Shares already owned by him and any related Person or Affiliate
specified in the form prescribed by
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the Trustees for that purpose. If, in the opinion of the Trustees, which shall
be conclusive upon any proposed transferee of Shares, any proposed transfer
would jeopardize the status of the Trust as a REIT, the Trustees shall have the
right, but not the duty, to refuse to permit such transfer.
(e) The Trustees, by notice to the holder thereof, may redeem any or
all Shares which have been transferred pursuant to a transfer which, in the
opinion of the Trustees, would jeopardize the status of the Trust as a REIT.
Without limiting the generality of the foregoing, if the Trustees shall, at any
time and in good faith, be of the opinion that direct or indirect ownership of
at least 9.9% or more of the Shares has or may become concentrated in the hands
of one beneficial owner (as defined under Rule 13d-3 under the Securities
Exchange Act of 1934), the Trustees, shall have the power (i) by lot or other
means deemed equitable by them to call for the purchase from any Shareholder a
number of Shares sufficient, in the opinion of the Trustees, to maintain or
bring the direct or indirect ownership of Shares of such beneficial owner to no
more than 9.9% of the outstanding Shares, and (ii) to refuse to transfer or
issue Shares to any Person whose acquisition of such Shares would, in the
opinion of the Trustees, result in the direct or indirect ownership of more than
9.9% of the outstanding Shares. The purchase price for any Shares shall be
equal to the fair market value of the Shares reflected in the closing sale price
for the Shares, if then listed on a national securities exchange, or the average
of the closing sales prices for the Shares if then listed on more than one
national securities exchange, or if the Shares are not then listed on a national
securities exchange, the latest bid quotation for the Shares if then
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traded over-the-counter, on the last business day immediately preceding the day
on which notices of such acquisition are sent, if no such closing sales prices
or quotations are available, then the purchase price shall be equal to the net
asset value of such Shares as determined by the Trustees in accordance with the
provisions of applicable law. Payment of the purchase price shall be made in
cash by the Trust as such time in such manner as may be determined by the
Trustees. From and after the date fixed for purchase by the Trustees, the
holder of any Shares so called for purchase shall cease to be entitled to
distributions, voting rights and other benefits with respect to such Shares,
excepting only the right to payment of the purchase price faxed as aforesaid.
Any transfer of Shares, options, warrants or other securities convertible into
Shares that would create a beneficial owner of more than 9.9% of the outstanding
Shares shall be deemed void ab initio and the intended transferee shall be
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deemed never to have an interest therein. If the foregoing provision is
determined to be void or invalid by virtue of any legal decision, statute, rule
or regulation, then the transferee of such shares, options, warrants or other
securities convertible into Shares shall be deemed, at the option of the Trust
to have acted as agent on behalf of the Trust in acquiring such Shares and to
hold such Shares on behalf of the Trust. Notwithstanding any other provision of
these By-laws to the contrary, any purported acquisition of Shares of the Trust
which would result in the disqualification of the Trust as a REIT shall be null
and void.
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ARTICLE V
MISCELLANEOUS
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SECTION 5.1. Record Dates and Closing of Transfer Books. Pursuant to
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the Declaration, the Trustees may fix record dates for specified purposes. If a
record date is so fixed, only Shareholders of record on the date so fixed shall
be entitled to the rights to which the record date pertains. The Trustees may
close the books of the Trust against transfers of Shares during the whole or any
part of the period between the record date and the date fixed for the meeting,
payment, distribution or other event to which the record date relates.
SECTION 5.2. Inspection of By-Laws. The Trustees shall keep at the
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principal office for the transaction of business of the Trust the original or a
copy of the By-Laws as amended or otherwise altered to date, certified by the
Secretary, which shall be open to inspection by the Shareholders at all
reasonable times during office hours.
ARTICLE VI
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SEAL
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SECTION 6.1. Seal. The Trust shall have a seal containing substantially
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the following words, "MEDITRUST ACQUISITION COMPANY, a Massachusetts business
trust", and referring to the date or year of organization of the Trust.
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ARTICLE VII
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AMENDMENTS
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SECTION 7.1. By Trustees. Except for any change for which the
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Declaration or these By-Laws require approval by more than a majority vote,
these By-Laws may be amended or repealed or new or additional By-Laws may be
adopted by the vote or written consent of a majority of the Trustees.
ARTICLE VIII
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DEFINITIONS
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SECTION 8.1. Definitions. All terms defined in the Declaration shall
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have the same meaning when used in these By-Laws.
ARTICLE IX
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FISCAL YEAR
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SECTION 9.1. Fiscal Year. The fiscal year of the Trust shall be the
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year ending with the 31st day of December in each year.
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