Exhibit 3.2
BRANDYWINE REALTY TRUST
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BYLAWS
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ARTICLE I.
OFFICES
Section 1. Principal Office. The principal office of Brandywine Realty
Trust (the "Trust") shall be located at such place or places as the Board of
Trustees may designate.
Section 2. Additional Offices. The Trust may have additional offices at
such places as the Trustees may from time to time determine or the business of
the Trust may require.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 1. Place. All meetings of shareholders shall be held at the
principal executive office of the Trust or at such other place as shall be
stated in the notice of the meeting.
Section 2. Annual Meeting. An annual meeting of the shareholders for
the election of Trustees and the transaction of any business within the powers
of the Trust shall be held annually and at the time set by the Trustees.
Section 3. Special Meetings.
(a) General. The President, Chairman of the Board or Board of
Trustees may call a special meeting of the shareholders. Subject to subsection
(b) of this Section 3, a special meeting of shareholders shall also be called by
the Secretary of the Trust upon the written request of the shareholders in
accordance with Article 7 of the Declaration of Trust of the Trust.
(b) (1) Any shareholder of record seeking to have shareholders
request a special meeting shall, by sending written notice to the secretary (the
"Record Date Request Notice") by registered mail, return receipt requested,
request the Board of Trustees to fix a record date to determine the shareholders
entitled to request a special meeting (the "Request Record Date"). The Record
Date Request Notice shall set forth the purpose of the meeting and the matters
proposed to be acted on at it, shall be signed by one or more shareholders of
record as of the date of signature (or their duly authorized proxies or other
agents), shall bear the date of signature of each such shareholder (or proxy or
other agent) and shall set forth all information relating to each such
shareholder that must be disclosed in solicitations of proxies for election of
trustees in an election contest (even if an election contest is not involved),
or is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder. Upon receiving the Record Date Request Notice, the Board of
Trustees may fix a Request Record Date. The Request Record Date shall not
precede and shall not be more than ten days after the close of business on the
date on which the resolution fixing the Request Record Date is adopted by the
Board of Trustees. If the Board of Trustees, within ten days after the date on
which a valid Record Date Request Notice is received, fails to adopt a
resolution fixing the Request Record Date and make a public announcement of such
Request Record Date, the Request Record Date shall be the close of business on
the tenth day after the first date on which the Record Date Request Notice is
received by the secretary.
(2) In order for any shareholder to request a special meeting,
one or more written requests for a special meeting signed by shareholders of
record (or their duly authorized proxies or other agents) as of the Request
Record Date entitled to vote not less than ten percent (the "Special Meeting
Percentage") of the issued and outstanding Common Shares of Beneficial Interest
(as defined in the Declaration of Trust) (the "Special Meeting Request") shall
be delivered to the secretary. In addition, the Special Meeting Request shall
set forth the purpose of the meeting and the matters proposed to be acted on at
it (which shall be limited to the matters set forth in the Record Date Request
Notice received by the secretary), shall bear the date of signature of each such
shareholder (or proxy or other agent) signing the Special Meeting Request, shall
set forth the name and address, as they appear in the Trust's books, of each
shareholder signing such request (or on whose behalf the Special Meeting Request
is signed) and the class and number of shares of beneficial interest of the
Trust which are owned of record and beneficially by each such shareholder, shall
be sent to the secretary by registered mail, return receipt requested, and shall
be received by the secretary within 60 days after the Request Record Date. Any
requesting shareholder may revoke his, her or its request for a special meeting
at any time by written revocation delivered to the secretary.
(3) The secretary shall inform the requesting shareholders of
the reasonably estimated cost of preparing and mailing the notice of meeting
(including the Trust's proxy materials). The secretary shall not be required to
call a special meeting upon shareholder request and such meeting shall not be
held unless, in addition to the documents required by paragraph (2) of this
Section 3(b), the secretary receives payment of such reasonably estimated cost
prior to the mailing of any notice of the meeting.
(4) Except as provided in the next sentence, any special
meeting shall be held at such place, date and time as may be designated by the
chairman or Board of Trustees, whoever has called the meeting. In the case of
any special meeting called by the secretary upon the request of shareholders (a
"Shareholder Requested Meeting"), such meeting shall be held at such place, date
and time as may be designated by the Board of Trustees; provided, however, that
the date of any Shareholder Requested Meeting shall be not more than 90 days
after the record date for such meeting (the "Meeting Record Date"); and provided
further that if the Board of Trustees fails to designate, within ten days after
the date that a valid Special Meeting Request is actually received by the
secretary (the "Delivery Date"), a date and time for a Shareholder Requested
Meeting, then such meeting shall be held at 2:00 p.m. local time on the 90th day
after the Meeting Record Date or, if such 90th day is not a Business Day (as
defined below), on the first preceding Business Day; and provided further that
in the event that the Board of Trustees fails to designate a place for a
Shareholder Requested Meeting within ten days after the Delivery Date, then such
meeting shall be held at the principal executive offices of the Trust. In fixing
a date for any special meeting, the chairman or Board of Trustees may consider
such factors as he, she or it deems relevant within the good faith exercise of
business judgment, including, without limitation, the nature of the matters to
be considered, the facts and circumstances surrounding any request for meeting
and any plan of the Board of Trustees to call an annual meeting or a special
meeting. In the case of any Shareholder Requested Meeting, if the Board of
Trustees fails to fix a Meeting Record Date that is a date within 30 days after
the Delivery Date, then the close of business on the 30th day after the Delivery
Date shall be the Meeting Record Date.
(5) If at any time as a result of written revocations of
requests for the special meeting, shareholders of record (or their duly
authorized proxies or other agents) as of the Request Record Date entitled to
cast less than the Special Meeting Percentage shall have delivered and not
revoked requests for a special meeting, the secretary may refrain from mailing
the notice of the meeting or, if the notice of the meeting has been mailed, the
secretary may revoke the notice of the meeting at any time before ten days
before the meeting if the secretary has first sent to all other requesting
shareholders written notice of such revocation and of intention to revoke the
notice of the meeting. Any request for a special meeting received after a
revocation by the secretary of a notice of a meeting shall be considered a
request for a new special meeting.
(6) The chairman, President or the Board of Trustees may
appoint regionally or nationally recognized independent inspectors of elections
to act as the agent of the Trust for the purpose of promptly performing a
ministerial review of the validity of any purported Special Meeting Request
received by the secretary. For the purpose of permitting the inspectors to
perform such review, no such purported Special Meeting Request shall be deemed
to have been delivered to the secretary until the earlier of (i) five Business
Days after receipt by the secretary of such purported request and (ii) such date
as the independent inspectors certify to the Trust that the valid requests
received by the secretary represent at least ten percent of the issued and
outstanding Common Shares of Beneficial Interest. Nothing contained in this
paragraph (6) shall in any way be construed to suggest or imply that the Trust
or any shareholder shall not be entitled to contest the validity of any request,
whether during or after such five Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or defense
of any litigation with respect thereto, and the seeking of injunctive relief in
such litigation).
(7) For purposes of these Bylaws, "Business Day" shall mean
any day other than a Saturday, a Sunday or a day on which banking institutions
in the State of New York or the Commonwealth of Pennsylvania are authorized or
obligated by law or executive order to close.
(8) Notwithstanding the foregoing provisions of this Section
3, holders of a class or series of preferred shares of beneficial interest of
the Trust may call a special meeting in accordance with applicable provisions of
the Declaration of Trust or as otherwise permitted by law.
Section 4. Notice. Not less than ten nor more than 90 days before each
meeting of shareholders, the secretary shall give to each shareholder entitled
to vote at such meeting and to each shareholder not entitled to vote who is
entitled to notice of the meeting written or printed notice stating the time and
place of the meeting and, in the case of a special meeting or as otherwise may
be required by statute, the purpose for which the meeting is called, either by
mail, by presenting it to such shareholder personally, by leaving it at his
residence or usual place of business or by any other means permitted by Maryland
law. If mailed, such notice shall be deemed to be given when deposited in the
United States mail addressed to the shareholder at his post office address as it
appears on the records of the Trust, with postage thereon prepaid.
Section 5. Scope of Notice. Any business of the Trust may be transacted
at an annual meeting of shareholders without being specifically designated in
the notice, except such business as is required by statute to be stated in such
notice. No business shall be transacted at a special meeting of shareholders
except as specifically designated in the notice.
Section 6. Organization and Conduct of Meetings. Every meeting of
shareholders shall be conducted by an individual appointed by the Board of
Trustees to be chairman of the meeting or, in the absence of such appointment,
by the chairman of the board or, in the case of a vacancy in the office or
absence of the chairman of the board, by one of the following officers present
at the meeting: the president, the vice presidents in their order of rank and
seniority or, in the absence of such officers, a chairman chosen by the
shareholders by the vote of a majority of the votes cast by shareholders present
in person or by proxy. The secretary or, in the secretary's absence, an
assistant secretary, or in the absence of both the secretary and assistant
secretaries, a person appointed by the Board of Trustees or, in the absence of
such appointment, a person appointed by the chairman of the meeting shall act as
secretary. In the event that the secretary presides at a meeting of the
shareholders, an assistant secretary shall record the minutes of the meeting.
The order of business and all other matters of procedure at any meeting of
shareholders shall be determined by the chairman of the meeting. The chairman of
the meeting may prescribe such rules, regulations, and procedures and take such
action as, in the discretion of such chairman, are appropriate for the proper
conduct of the meeting, including, without limitation, (a) restricting admission
to the time set for the commencement of the meeting; (b) limiting attendance at
the meeting to shareholders of record of the Trust, their duly authorized
proxies or other such persons as the chairman of the meeting may determine; (c)
limiting participation at the meeting on any matter to shareholders of record of
the Trust entitled to vote on such matter, their duly authorized proxies or
other such persons as the chairman of the meeting may determine; (d) limiting
the time allotted to questions or comments by participants; (e) maintaining
order and security at the meeting; (f) removing any shareholder who refuses to
comply with meeting procedures, rules or guidelines as set forth by the
chairman; and (g) recessing or adjourning the meeting to a later date and time
and place announced at the meeting. Unless otherwise determined by the chairman
of the meeting, meetings of shareholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 7. Quorum. At any meeting of shareholders, the presence in
person or by proxy of shareholders entitled to cast a majority of all the votes
entitled to be cast at such meeting shall constitute a quorum; but this section
shall not affect any requirement under any statute or the Declaration of Trust
for the vote necessary for the adoption of any measure. If, however, such quorum
shall not be present at any meeting of the shareholders, the chairman of the
meeting or the shareholders entitled to vote at such meeting, present in person
or by proxy, shall have power to adjourn the meeting from time to time to a date
not more than 120 days after the original record date without notice other than
announcement at the meeting. At such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally notified.
Section 8. Voting. A plurality of all the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be sufficient to
elect a Trustee. Shareholders shall not be entitled to cumulate their votes in
the election of Trustees. A majority of the votes cast at a meeting of
shareholders duly called and at which a quorum is present shall be sufficient to
approve any other matter which may properly come before the meeting, unless more
than a majority of the votes cast is required by statute or by the Declaration
of Trust. Unless otherwise provided in the Declaration, each outstanding share,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of shareholders.
Section 9. Proxies. A shareholder may cast the votes entitled to be
cast by the shares of beneficial interest owned of record by the shareholder,
either in person or by proxy executed in any manner permitted by law by the
shareholder or by his duly authorized agent. Such proxy shall be filed with the
secretary of the Trust before or at the meeting. No proxy shall be valid more
than eleven months after its date, unless otherwise provided in the proxy.
Section 10. Voting of Shares by Certain Holders. Shares registered in
the name of a corporation, partnership, trust or other entity, if entitled to be
voted, may be voted by the chief executive officer or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who has been
appointed to vote such shares pursuant to a bylaw or a resolution of the board
of directors of such corporation or other entity presents a certified copy of
such bylaw or resolution, in which case such person may vote such shares. Any
trustee or other fiduciary may vote shares registered in his name as such
fiduciary, either in person or by proxy.
Shares of the Trust directly or indirectly owned by it shall not be
voted at any meeting and shall not be counted in determining the total number of
outstanding shares entitled to be voted at any given time, unless they are held
by it in a fiduciary capacity, in which case they may be voted and shall be
counted in determining the total number of outstanding shares at any given time.
The Trustees may adopt by resolution a procedure by which a shareholder
may certify in writing to the Trust that any shares registered in the name of
the shareholder are held for the account of a specified person other than the
shareholder. The resolution shall set forth the class of shareholders who may
make the certification, the purpose for which the certification may be made, the
form of certification and the information to be contained in it; if the
certification is with respect to a record date or closing of the share transfer
books, the time after the record date or closing of the share transfer books
within which the certification must be received by the Trust; and any other
provisions with respect to the procedure which the Trustees consider necessary
or desirable. On receipt of such certification, the person specified in the
certification shall be regarded as, for the purposes set forth in the
certification, the shareholder of record of the specified shares in place of the
shareholder who makes the certification.
Section 11. Inspectors. At any meeting of shareholders, the chairman of
the meeting may, or upon the request of any shareholder shall, appoint one or
more persons as inspectors for such meetings. Such inspectors shall ascertain
and report the number of shares represented at the meeting based upon their
determination of the validity and effect of proxies, count all votes, report the
results and perform such other acts as are proper to conduct the election and
voting with impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or by
a majority of them if there is more than one inspector acting at such meeting.
If there is more than one inspector, the report of a majority shall be the
report of the inspectors. The report of the inspector or inspectors on the
number of shares represented at the meeting and the results of the voting shall
be prima facie evidence thereof.
Section 12. Voting by Ballot. Voting on any question or in any election
may be viva voce unless the presiding officer shall order or any shareholder
shall demand that voting be by ballot.
Section 13. No Shareholder Action by Written Consent. Subject to the
rights of the holders of any series Preferred Shares to elect additional
Trustees under specific circumstances, any action required or permitted to be
taken by the shareholders of the Trust must be effected at an annual or special
meeting of shareholders and may not be effected by any consent in writing by
such shareholders.
Section 14. Nominations and Proposals by Shareholders.
(a) Annual Meetings of Shareholders. (1) Nominations of
persons for election to the Board of Trustees and the proposal of business to be
considered by the shareholders may be made at an annual meeting of shareholders
(i) pursuant to the Trust's notice of meeting, (ii) by or at the direction of
the Board of Trustees or (iii) by any shareholder of the Trust who was a
shareholder of record both at the time of giving of notice provided for in this
Section 14(a) and at the time of the annual meeting, who is entitled to vote at
the meeting and who complied with the notice procedures set forth in this
Section 14(a).
(2) For nominations for election to the Board of
Trustees or other business to be properly brought before an annual meeting by a
shareholder pursuant to clause (iii) of paragraph (a)(1) of this Section 14, the
shareholder must have given timely notice thereof in writing to the secretary of
the Trust and such other business must otherwise be a proper matter for action
by shareholders. To be timely, a shareholder's notice must be delivered to the
secretary at the principal executive office of the Trust by not later than the
close of business on the 90th day prior to the first anniversary of the date of
mailing of the notice for the preceding year's annual meeting nor earlier than
the close of business on the 120th day prior to the first anniversary of the
date of mailing of the notice for the preceding year's annual meeting; provided,
however, that in the event that the date of the mailing of the notice for the
annual meeting is advanced or delayed by more than 30 days from the anniversary
date of the mailing of the notice for the preceding year's annual meeting,
notice by the shareholder to be timely must be so delivered not earlier than the
close of business on the 120th day prior to the date of mailing of the notice
for such annual meeting and not later than the close of business on the later of
the 90th day prior to the date of mailing of the notice for such annual meeting
or the tenth day following the day on which public announcement of the date of
mailing of the notice for such meeting is first made by the Trust. In no event
shall the public announcement of a postponement of the mailing of the notice for
such annual meeting or of an adjournment or postponement of an annual meeting to
a later date or time commence a new time period for the giving of a
shareholder's notice as described above. A shareholder's notice to be proper
must set forth (i) as to each person whom the shareholder proposes to nominate
for election or reelection as a Trustee (A) the name, age, business address and
residence address of such person, (a) the class and number of shares of
beneficial interest of the Trust that are beneficially owned or owned of record
by such person and (C) all other information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest or is otherwise required, in each case pursuant to
Regulation 14A (or any successor provision) 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 Trustee if elected); (ii) as to any other business that the
shareholder proposes to bring before the meeting, a 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
shareholder (including any anticipated benefit to the shareholder therefrom) and
of each beneficial owner, if any, on whose behalf the proposal is made; and
(iii) as to the shareholder giving the notice and each beneficial owner, if any,
on whose behalf the nomination or proposal is made, (x) the name and address of
such shareholder, as they appear on the Trust's share ledger and current name
and address, if different, and of such beneficial owner and (y) the class and
number of shares of beneficial interest of the Trust which are owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence
of paragraph (a)(2) of this Section 14 to the contrary, in the event that the
number of Trustees to be elected to the Board of Trustees is increased and there
is no public announcement by the Trust of such action or specifying the size of
the increased Board of Trustees at least 100 days prior to the first anniversary
of the date of mailing of the notice for the preceding year's annual meeting, a
shareholder's notice required by this Section 14(a) shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if the notice is delivered to the secretary at the principal executive
offices of the Trust not later than the close of business on the tenth day
immediately following the day on which such public announcement is first made by
the Trust.
(b) Special Meetings of Shareholders. Only such business shall
be conducted at a special meeting of shareholders as shall have been brought
before the meeting pursuant to the Trust's notice of meeting.
(c) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Section 14 shall be eligible to
serve as Trustees, and only such business shall be conducted at a meeting of
shareholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 14. The chairman of the meeting shall
have the power and duty to determine whether a nomination or any other business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section 14 and, if any
proposed nomination or other business is not in compliance with this Section 14,
to declare that such nomination or proposal shall be disregarded.
(2) For purposes of this Section 14, (a) the "date of
mailing of the notice" shall mean the date of the proxy statement for the
solicitation of proxies for election of Trustees and (b) "public announcement"
shall mean disclosure (i) in a press release either transmitted to the principal
securities exchange on which shares of the Trust's common shares are traded or
reported by a recognized news service or (ii) in a document publicly filed by
the Trust with the Securities and Exchange Commission.
(3) Notwithstanding the foregoing provisions of this
Section 14, a shareholder 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 14. Nothing in this Section 14
shall be deemed to affect any right of a shareholder to request inclusion of a
proposal in, nor the right of the Trust to omit a proposal from, the Trust's
proxy statement pursuant to Rule 14a-8 (or any successor provision) under the
Exchange Act.
Section 15. Exemption of Certain Shares. All of the acquisitions of:
(i) the common shares of beneficial interest ("Common Shares") of the Trust now
or hereafter owned by Safeguard Scientifics, Inc., The Nichols Company and any
of their current or future affiliates or associates (collectively, the "SSI/TNC
Affiliates"); (ii) the Common Shares and Preferred Shares now or hereafter owned
by Commonwealth of Pennsylvania State Employees' Retirement System, RAI Real
Estate Advisers, Inc. and any of their current or future affiliates or
associates (collectively, the "SERS Affiliates");(iii) the Common Shares now or
hereafter owned by Morgan Stanley Asset Management, Inc., Morgan Stanley
Institutional Fund, Inc. - U.S. Real Estate Portfolio and Morgan Stanley, Sicav
Subsidiary, SA and any of their current or future affiliates or associates
(collectively, the "Morgan Affiliates"); and (iv) the Common Shares now or
hereafter owned by Cohen & Steers Capital Management, Inc. and any of their
current or future affiliates or associates (collectively, the "C&S Affiliates")
are hereby exempted from Subtitle 7 of Title 3 of the Maryland General
Corporation Law, and the Trust shall have no right to exercise the redemption
right with respect to such Common Shares arising under said Subtitle 7. In no
event will any Shareholder of the Trust have any rights under Section 3-708 of
said Subtitle 7 as a result of the ownership by the SSI/TNC Affiliates of Common
Shares or by the SERS Affiliates of Common Shares or Preferred Shares or by the
Morgan Affiliates of Common Shares or by the C&S Affiliates of Common Shares as
aforesaid. As used herein, the terms "affiliates" and "associates" have the
respective meanings assigned to them in Subtitles 6 and 7, respectively, of said
Title 3.
ARTICLE III.
TRUSTEES
Section 1. General Powers: Qualifications. The business and affairs of
the Trust shall be managed under the direction of its Board of Trustees. A
Trustee shall be an individual at least 21 years of age who is not under legal
disability.
Section 2. Annual and Regular Meetings. An annual meeting of the
Trustees shall be held immediately after and at the same place as the annual
meeting of shareholders, no notice other than this Bylaw being necessary. The
Trustees may provide, by resolution, the time and place, either within or
without the State of Maryland, for the holding of regular meetings of the
Trustees without other notice than such resolution.
Section 3. Special Meetings. Special meetings of the Trustees may be
called by or at the request of the chairman or chief executive officer or by
one-half or more of the Trustees then in office. The person or persons
authorized to call special meetings of the Trustees may fix any place, either
within or without the State of Maryland, as the place for holding any special
meeting of the Trustees called by them.
Section 4. Notice. Notice of any special meeting of the Board of
Trustees shall be delivered personally or by telephone, electronic mail,
facsimile transmission, United States mail or courier to each Trustee at his
business, electronic mail or residence address. Notice by personal delivery,
telephone, electronic mail, facsimile transmission or courier shall be given at
least two days prior to the meeting. Notice by United States mail shall be given
at least five business days prior to the meeting and shall be deemed to be given
when deposited in the United States mail properly addressed, with postage
thereon prepaid. Telephone notice shall be deemed to be given when the Trustee
or the Trustee's agent is personally given such notice in a telephone call to
which the Trustee or the Trustee's agent 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 Trust by the Trustee and receipt of a
completed answer-back indicating receipt. Electronic mail shall be deemed to be
given upon transmission of the message to the electronic mail address given to
the Trust by the Trustee. Notice by courier shall be deemed to be given upon
delivery to the address given to the Trust by the Trustee and receipt by such
courier of a signature evidencing delivery thereat. Neither the business to be
transacted at, nor the purpose of, any annual, regular or special meeting of the
Board of Trustees need be stated in the notice, unless specifically required by
statute or these Bylaws.
Section 5. Quorum. A whole number of Trustees equal to at least a
majority of the Whole Board Trustees shall constitute a quorum for transaction
of business at any meeting of the Trustees, provided that, if less than a quorum
are present at said meeting, a majority of the Trustees present may adjourn the
meeting from time to time without further notice, and provided further that if,
pursuant to the Declaration of Trust or these Bylaws, the vote of a majority of
a particular group of Trustees is required for action, a quorum must also
include a majority of such group.
The Trustees present at a meeting which has been duly called and
convened may continue to transact business until adjournment, notwithstanding
the withdrawal of enough Trustees to leave less than a quorum.
Section 6. Voting. The action of the majority of the Trustees present
at a meeting at which a quorum is present shall be the action of the Trustees,
unless the concurrence of a greater proportion is required for such action by
applicable law or the Declaration of Trust. If enough Trustees have withdrawn
from a meeting to leave less than a quorum but the meeting is not adjourned, the
action of the majority of the Trustees present at such meeting shall be the
action of the Board of Trustees, unless the concurrence of a greater portion is
required for such action by applicable law.
Section 7. Telephone Meetings. Trustees may participate in a meeting by
means of a conference telephone or similar communications equipment if all
persons participating in the meeting can hear each other at the same time.
Participation in a meeting by these means shall constitute presence in person at
the meeting.
Section 8. Action by Written Consent of Trustees. Any action required
or permitted to be taken at any meeting of the Trustees may be taken without a
meeting, if a consent in writing to such action is signed by each Trustee and
such written consent is filed with the minutes of proceedings of the Trustees.
Section 9. Vacancies and Resignations. If for any reason any or all the
Trustees cease to be Trustees, such event shall not terminate the Trust or
affect these Bylaws or the powers of the remaining Trustees hereunder (even if
fewer than three Trustees remain). Any vacancy (including a vacancy created by
an increase in the number of Trustees) shall be filled, at any regular meeting
or at any special meeting called for that purpose, by a majority of the
remaining Trustees, even if such majority is less than a quorum. Any individual
so elected as Trustee shall serve for the unexpired term of the trustee he is
replacing until his successor has been duly elected and qualified. Any Trustee
of the Trust may resign at any time by giving written notice of his resignation
to the Board of Trustees, the chairman of the board, the president or the
secretary. Any resignation shall take effect immediately upon its receipt or at
such later time as specified therein. The acceptance of a resignation shall not
be necessary to make it effective unless otherwise stated in the resignation.
Section 10. Compensation. Trustees shall not receive any stated salary
for their services as Trustees but, by resolution of the trustees, fixed sums
per year and/or per meeting. Expenses of attendance, if any, may be allowed to
trustees for attendance at each annual, regular or special meeting of the
Trustees or of any committee thereof; but nothing herein contained shall be
construed to preclude any Trustees from serving the Trust in any other capacity
and receiving compensation therefor.
Section 11. Removal of Trustees. The shareholders may, at any time,
remove any Trustee in the manner provided in the Declaration of Trust.
Section 12. Loss of Deposits. No Trustee shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or shares have been
deposited.
Section 13. Surety Bonds. Unless required by law, no Trustee shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 14. Reliance. Each Trustee, officer, employee and agent of the
Trust shall, in the performance of his duties with respect to the Trust, 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 Trust,
upon an opinion of counsel or upon reports made to the Trust by any of its
officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Trustees or officers of the Trust,
regardless of whether such counsel or expert may also be a Trustee.
Section 15. Certain Rights of Trustees, Officers, Employees and Agents.
The Trustees shall have no responsibility to devote their full time to the
affairs of the Trust. Any Trustee or officer, employee or agent of the Trust, 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 those of or relating to the
Trust.
ARTICLE IV.
COMMITTEES
Section 1. Number, Tenure and Qualifications. The Trustees may, by
resolution or resolutions passed by a majority of the whole Board, appoint from
among its members an Executive Committee, an Audit Committee and other
committees, composed of one or more Trustees.
Section 2. Powers. The Trustees may delegate to committees appointed
under Section 1 of this Article any of the powers of the Board of Trustees.
Section 3. Committee Procedures. Each Committee may fix rules of
procedure for its business. A majority of the members of a committee shall
constitute a quorum for the transaction of business and the action of a majority
of those present at a meeting at which a quorum is present shall be action of
the committee. In the absence of any member of any committee, the members
thereof present at any meeting, whether or not they constitute a quorum, may
appoint another Trustee to act in the place of such absent member. Any action
required or permitted to be taken at a meeting of a committee may be taken
without a meeting, if a unanimous written consent which sets forth the action is
signed by each member of the committee and filed with the minutes of the
proceedings of such committee. The members of a committee may conduct any
meeting thereof by means of a conference telephone or similar communications
equipment if all persons participating in the meeting can hear each other at the
same time. Participation in a meeting by such means shall constitute presence in
person at the meeting.
Section 4. Emergency. In the event of a state of disaster of sufficient
severity to prevent the conduct and management of the affairs and business of
the Trust by its Trustees and officers as contemplated by the Declaration of
Trust and these Bylaws, any two or more available members of the then incumbent
Executive Committee, if any, shall constitute a quorum of that Committee for the
full conduct and management of the affairs and business of the Trust in
accordance with the provisions of this Article. In the event of the
unavailability, at such time, of a minimum of two members of the then incumbent
Executive Committee, the available Trustees shall elect an Executive Committee
composed of any two members of the Board of Trustees, whether or not they be
officers of the Trust, which two members shall constitute the Executive
Committee for the full conduct and management of the affairs of the Trust in
accordance with the foregoing provisions of this Section. This Section shall be
subject to implementation by resolution of the Board of Trustees passed form
time to time for that purpose, and any provisions of the Bylaws (other than this
Section) and any resolutions which are contrary to the provisions of this
Section or to the provisions of any such implementing resolutions shall be
suspended until it shall be determined by any interim Executive Committee acting
under this Section that it shall be to the advantage of the Trust to resume the
conduct and management of its affairs and business under all the other
provisions of these Bylaws.
ARTICLE V.
OFFICERS
Section 1. General Provisions. The officers of the Trust may consist of
a chairman of the board, a chief executive officer, one or more vice presidents,
a chief financial officer, a secretary, and one or more assistant secretaries.
In addition, the Trustees may from time to time appoint such other officers with
such powers and duties as they shall deem necessary or desirable. The officers
of the Trust shall be elected annually by the Trustees. Each officer shall hold
office until his successor is elected and qualifies or until his death,
resignation or removal in the manner hereinafter provided. Any two or more
offices may be held by the same person. In their discretion, the Trustees may
leave unfilled any office. Election of an officer or agent shall not of itself
create contract rights between the Trust and such officer or agent.
Section 2. Removal and Resignation. Any officer of the Trust may be
removed by a majority of the members of the Whole Board if in their judgment the
best interests of the Trust would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed. Any
officer of the Trust may resign at any time by giving written notice of his
resignation to the Trustees, the chairman of the board, the chief executive
officer or the secretary. Any resignation shall take effect immediately after
its receipt or at such late time specified therein. The acceptance of a
resignation shall not be necessary to make it effective unless otherwise stated
in the resignation.
Section 3. Vacancies. A vacancy in any office may be filled by the
Trustees for the balance of the term.
Section 4. Chairman of the Board. The chairman of the board shall
preside over the meetings of the Trustees and of the shareholders at which he
shall be present. The chairman of the board shall perform such other duties as
may be assigned to him by the Trustees. Except where by law the signature of the
chief executive officer is required, the chairman of the board shall possess the
same power as the chief executive officer to sign deeds, mortgages, bonds,
contracts or other instruments.
Section 5. Chief Executive Officer. The Trustees may designate a chief
executive officer from among the elected officers. In the absence of such
designation, the chairman of the board shall be the chief executive officer of
the Trust. The chief executive officer shall have general responsibility for
implementation of the policies of the Trust, as determined by the Trustees, and
for the management of the business affairs of the Trust. The chief executive
officer shall in general supervise and control all of the business and affairs
of the Trust. He may execute any deed, mortgage, bond, contract or other
instrument, except in cases where the execution thereof shall be expressly
delegated by the Trustees or by these Bylaws to some other officer or agent of
the Trust or shall be required by law to be otherwise executed; and in general
shall perform all duties incident to the office of chief executive officer and
such other duties as may be prescribed by the Trustees from time to time.
Section 6. Vice Presidents. In the absence of the chief executive
officer or in the event of a vacancy in such office, the vice president (or in
the event there be more than one vice president, the vice presidents in the
order designated at the time of their election or, in the absence of any
designation, then in the order of their election ) shall perform the duties of
the chief executive officer and when so acting shall have all the powers of and
be subject to all the restrictions upon the chief executive officer; and shall
perform such other duties as form time to time may be assigned to him by the
chief executive officer or by the Trustees. The Trustees may designate one or
more vice presidents as executive vice president or as vice president for
particular areas of responsibility.
Section 7. Secretary. The secretary shall (a) keep the minutes of the
proceedings of the shareholders, the Trustees and committees of the Trustees in
one or more books provided for that purpose; (b) see that all notices are duly
given in accordance with the provisions of these Bylaws or as required by law;
(c) be custodian of the trust records and of the seal of the Trust; (d) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (e) have general charge of the share
transfer books of the Trust; and (f) in general perform such other duties as
from time to time may be assigned to him by the chief executive officer or by
the Trustees.
Section 8. Chief Financial Officer. The chief financial officer shall
have the custody of the funds and securities of the Trust and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Trust and shall deposit all moneys and other valuable effects in the name and to
the credit of the Trust in such depositories as may be designated by the
Trustees.
The chief financial officer shall disburse the funds of the Trust as
may be ordered by the Trustees, taking proper vouchers for such disbursements,
and shall render to the chief executive officer and Trustees, at the regular
meetings of the Trustees or whenever they may require it, an account of all his
transactions as chief financial officer and of the financial condition of the
Trust.
If required by the Trustees, he shall give the Trust a bond in such sum
and with such surety or sureties as shall be satisfactory to the Trustees for
the faithful performance of the duties of his office and for the restoration of
the Trust, in case of his death, resignation, retirement or removal from office,
all books, papers, vouchers, moneys and other property of whatever kind in his
possession or under his control belonging to the Trust.
Section 9. Assistant Secretaries. The assistant secretaries, in
general, shall perform such duties as shall be assigned to them by the
secretary, or by the chief executive officer or the Trustees.
Section 10. Salaries. The salaries of the officers shall be fixed from
time to time by the Trustees and no officer shall be prevented from receiving
such salary by reason of the fact that he is also a Trustee.
ARTICLE VI.
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Trustees may authorize any officer or agent
to enter into any contract or to execute and deliver any instrument in the name
of and on behalf of the Trust and such authority may be general or confined to
specific instances. Any agreement, deed, mortgage, lease or other document shall
be valid and binding upon the Trustees and upon the Trust when so authorized or
ratified by action of the Board of Trustees and executed by an authorized
person.
Section 2. Checks and Drafts. All checks, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the Trust shall be signed by such officer or officers, agent or agents
of the Trust and in such manner as shall from time to time be determined by the
Trustees.
Section 3. Deposits. All funds of the Trust not otherwise employed
shall be deposited from time to time to the credit of the Trust in such banks,
trust companies or other depositories as the Trustees may designate.
ARTICLE VII.
SHARES
Section 1. Certificates. Except as otherwise provided in these Bylaws,
this Section shall not be interpreted to limit the authority of the Board of
Trustees to issue some or all of the shares of any or all classes or series
without certificates. Each shareholder, upon written request to the Secretary of
Trust, shall be entitled to a certificate or certificates which shall represent
and certify the number of shares of each class of beneficial interests held by
him in the Trust. Each certificate shall be signed by the chief executive
officer or a vice president and countersigned by the secretary or an assistant
secretary or the chief financial officer or an assistant treasurer and may be
sealed with the seal, if any, of the Trust. The signatures may be either manual
or facsimile. Certificates shall be consecutively numbered; and if the Trust
shall, from time to time, issue several classes of shares, each class may have
its own number series. A certificate is valid and may be issued whether or not
an officer who signed it is still an officer when it is issued. Each certificate
representing shares which are restricted as to their transferability or voting
powers, which are preferred or limited as to their dividends or as to their
allocable portion of the assets upon liquidation or which are redeemable at the
option of the Trust, shall have a statement of such restriction, limitation,
preference or redemption provision, or a summary thereof, plainly stated on the
certificate. In lieu of such statement or summary, the Trust may set forth upon
the face or back of the certificate a statement that the Trust will furnish to
any shareholder, upon request and without charge, a full statement of such
information.
Section 2. Transfers. Certificates shall be treated as negotiable and
title thereto and to the shares they represent shall be transferred by delivery
thereof to the same extent as those of a Maryland stock corporation. Upon
surrender to the Trust or the transfer agent of the Trust of a share certificate
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Trust shall issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its
books.
The Trust shall be entitled to treat the holder of record of any share
or shares 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 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 3. Lost Certificate. The Trustees may direct a new certificate
to be issued in place of any certificate previously issued by the Trust alleged
to have been lost, stolen or destroyed upon the making of an affidavit of that
fact by the person claiming the certificate to be lost, stolen or destroyed.
When authorizing the issuance of a new certificate, the Trustees may, in their
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed certificate or his legal representative
to advertise the same in such manner as they shall require and/or to give bond,
with sufficient surety, to the Trust to indemnify it against any loss or claim
which may arise as a result of the issuance of a new certificate.
Section 4. Closing of Transfer Books or Fixing of Record Date. The
Trustees may set, in advance a record date for the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders, or
shareholders entitled to receive payment of any dividend or the allotment of any
other rights, or in order to make a determination of shareholders for any other
proper purpose. Such date, in any case, shall not be prior to the close of
business on the day the record date is fixed and shall be not more than 90 days
and, in the case of a meeting of shareholders not less than ten days, before the
date on which the meeting or particular action requiring such determination of
shareholders is to be held or taken.
In lieu of fixing a record date, the Trustees may provide that the
share transfer books shall be closed for a stated period but not longer than 20
days. If the share transfer books are closed for the purpose of determining
shareholders entitled to notice of or to vote at a meeting of shareholders, such
books shall be closed for at lest ten days before the date of such meeting.
If no record date is fixed and the share transfer books are not closed
for the determination of shareholders, (a) the record date for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders
shall be at the close of business on the day on which the notice of meeting is
mailed or the 30th day before the meeting, whichever is the closer date to the
meeting; and (b) the record date for the determination of shareholders entitled
to receive payment of a dividend or an allotment of any other rights shall be
the close of business on the day on which the resolution of the Trustees,
declaring the dividend or allotment of rights, is adopted.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except where the determination has been made
through the closing of the transfer books and the stated period of closing has
expired.
Section 5. Share Ledger. The Trust shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an
original or duplicate share ledger containing the name and address of each
shareholder and the number of shareholders of each class held by such
shareholder.
Section 6. Fractional Shares; Issuance of Units. Trustees may issue
fractional shares 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 Declaration or these Bylaws, the Trustees may issue units consisting of
different securities of the Trust. Any security issued in a unit shall have the
same characteristics as any identical securities issued by the Trust, except
that the Trustees may provide that for a specified period securities of the
Trust issued in such unit may be transferred on the books of the Trust only in
such unit.
ARTICLE VIII.
ACCOUNTING YEAR
The Trustees shall have the power, from time to time, to fix the fiscal
year of the Trust by a duly adopted resolution.
ARTICLE IX.
DIVIDENDS
Section 1. Authorization. Dividends and other distributions upon the
shares of the Trust may be authorized by the Board of Trustees, subject to the
provisions of law and the Declaration of Trust. Dividends may be paid in cash,
property or shares of the Trust, subject to the provisions of law and the
Declaration.
Section 2. Contingencies. Before payment of any dividends, there may be
set aside out of any funds of the Trust available for dividends such sum or sums
as the Trustees may from time to time, in their absolute discretion, think
proper as the reserve fund for contingencies, for equalizing dividends, for
repairing or maintaining any property of the Trust or for such other purpose as
the Trustees shall determine to be in the best interest of the Trust, and the
Trustees may modify or abolish any such reserve.
ARTICLE X.
INVESTMENT POLICY
Subject to the provisions of the Declaration of Trust, the Trustees may
from time to time adopt, amend, revise or terminate any policy or policies with
respect to investments by the Trust as they shall deem appropriate in their sole
discretion.
ARTICLE XI.
SEAL
Section 1. Seal. The Trustees may authorize the adoption of a seal by
the Trust. The seal shall have inscribed thereon the name of the Trust and the
year of its organization. The Trustees may authorize one or more duplicate seals
and provide for the custody thereof.
Section 2. Affixing Seal. Whenever the Trust is required to place its
seal to a document, it shall be sufficient to meet the requirements of any law,
rule or regulation relating to a seal to place the word "(SEAL)" adjacent to the
signature of the person authorized to execute the document on behalf of the
Trust.
ARTICLE XII.
INDEMNIFICATION
To the maximum extent permitted by Maryland law in effect from time to
time, the Trust, without requiring a preliminary determination of the ultimate
entitlement to indemnification, shall indemnify (a) any Trustee, officer or
shareholder or any former Trustee, officer or shareholder (including among the
foregoing, for all purposes of this Article XII and without limitation, any
individual who, while a Trustee and at the request of the Trust, serves or has
served as a director, officer, partner or trustee of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise),
who has been successful, on the merits or otherwise, in the defense of a
proceeding to which he was made a party by reason of such status, against
reasonable expenses incurred by him in connection with the proceeding, (b) any
Trustee or officer or any former Trustee or officer against any claim or
liability to which he may become subject by reason of such status unless it is
established that (i) his act or omission was committed in bad faith or was the
result of active and deliberate dishonesty, (ii) he actually received an
improper personal benefit in money, property or services, or (iii) in the case
of a criminal proceeding, he had reasonable cause to believe that his act or
omission was unlawful and (c) each shareholder or former shareholder against any
claim or liability to which he may be subject by reason of his status as a
shareholder or former shareholder. In addition, the Trust shall pay or
reimburse, in advance of final disposition of a proceeding, reasonable expenses
incurred by a Trustee, officer or shareholder or former Trustee, officer or
shareholder made a party to a proceeding by reason of his status as a Trustee,
officer or shareholder provided that, in the case of a Trustee or officer, the
Trust shall have received (i) a written affirmation by the Trustee or officer of
his good faith belief that he has met the applicable standard of conduct
necessary for indemnification by the Trust as authorized by these Bylaws and
(ii) a written undertaking by him or on his behalf to repay the amount paid or
reimbursed by the Trust if it shall ultimately be determined that the applicable
standard of conduct was not met. The Trust may, with the approval of its
Trustees, provide such indemnification and payment or reimbursement of expenses
to any Trustee, officer or shareholder or any former Trustee, officer or
shareholder who served a predecessor of the Trust and to any employee or agent
of the Trust or a predecessor of the Trust. Neither the amendment nor repeal of
this Section, nor the adoption or amendment of any other provision of the
Declaration of Trust or these Bylaws inconsistent with this Section, shall apply
to or affect in any respect the applicability of this paragraph with respect to
any act or failure to act which occurred prior to such amendment, repeal or
adoption. Any indemnification or payment or reimbursement of the expenses
permitted by these Bylaws shall be furnished in accordance with the procedures
provided for indemnification and payment or reimbursement of expenses under
Section 2-418 of the Maryland General Corporation Law (the "MGCL") for directors
of Maryland corporations. The Trust may provide to Trustees, officers and
shareholders such other and further indemnification or payment or reimbursement
of expenses as may be permitted by the MGCL, as in effect from time to time, for
directors of Maryland corporations.
ARTICLE XIII.
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the Declaration
of Trust or Bylaws or pursuant to applicable law, a waiver thereof in writing,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice. Neither the business to be transacted at nor the purpose of any meeting
need be set forth in the waiver of notice, unless specifically required by
statute. The attendance of any person at any meeting shall constitute a waiver
of notice of such meeting, except where such person attends a meeting for the
express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.
ARTICLE XIV.
AMENDMENT OF BYLAWS
The Trustees shall have the exclusive power to adopt, alter or repeal
any provision of these Bylaws and to make new Bylaws.
The foregoing are certified as the Bylaws of the Trust, as amended,
approved by the Trustees on June 27, 2003.
/s/ Brad A. Molotsky
---------------------------
Secretary