EXHIBIT 3
AMENDED AND RESTATED BYLAWS
OF
W. P. CAREY & CO. LLC
(a Delaware limited liability company)
All capitalized words and terms used in these Bylaws and not defined
herein shall have the respective meanings ascribed to them in the Amended and
Restated Limited Liability Company Agreement of W. P. Carey & Co. LLC (the
"Company"), as amended (the "Limited Liability Company Agreement"). These Bylaws
shall be deemed an amendment and supplement to and part of the Limited Liability
Company Agreement.
ARTICLE I
Offices and Fiscal Year
1.1 Registered Office. The registered office of the Company shall be
in the City of Wilmington, County of New Castle, State of Delaware until a
change in such office is established by resolution of the Board of Directors and
a statement of such change is filed in the manner provided by applicable law.
1.2 Other Offices. The Company may also have offices and keep its
books, documents and records at such other places within or without the State of
Delaware as the Board of Directors may from time to time determine or the
business of the Company may require.
1.3 Fiscal Year. The fiscal year of the Company shall end on the
last day of December in each year or on such other date as the Board of
Directors may designate by resolution.
ARTICLE II
Meetings of Shareholders
2.1 Annual and Special Meetings. (a) The annual meeting of
Shareholders of the Company entitled to vote thereon for the election of the
appropriate class and number of Directors, pursuant to the terms of the Limited
Liability Company Agreement, and for the transaction of such other business as
properly may come before such meeting, shall be held at such place, either
within or without the Sate of Delaware, and at such time and on such date as
shall be fixed from time to time by resolution of the Board of Directors and set
forth in the notice or waiver of notice of the meeting.
(b) A special meeting of the Shareholders of the Company may be
called by the Board of Directors or upon receipt by the Company of a written
request for a special meeting, setting forth the purpose or purposes for which
such meeting is called, signed by the holders of at least 10% of the outstanding
Shares.
2.2 Notice of Meetings; Waiver. (a) Subject to the provisions of
Article 13 of the Limited Liability Company Agreement, the Secretary or any
Assistant Secretary shall cause written, telephonic or telecopied notice of the
place, date, and hour of each meeting of Shareholders, and, in the case of a
special meeting, the purpose or purposes for which such meeting is called, to be
given personally or by telephone, facsimile, other electronic transmission, or
mail, not less than ten nor more than 60 days prior to the meeting, to each
Shareholder entitled to vote at such meeting. If such notice is mailed, it shall
be deemed to have been given to a Shareholder when deposited in the United
States mail, postage prepaid, directed to the Shareholder at his, her, or its
address as it appears on the record of Shareholders of the Company, or, if he,
she or it shall have duly filed with the Secretary of the Company a written
request that notices to him, her, or it be mailed to some other address, then
directed to such other address. Such further notice shall be given as may be
required by law.
(b) No notice of any meeting of Shareholders need be given to any
Shareholder who submits a signed waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of Shareholders need be specified in a written waiver
of notice. The attendance of any Shareholder at a meeting of Shareholders shall
constitute a waiver of notice of such meeting, except when the Shareholder
attends a meeting for the sole and express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
2.4 Quorum. The required number of Shareholders to be present at any
meeting of Shareholders so to constitute a quorum thereat shall be as set forth
in the Limited Liability Company Agreement.
2.5. Voting. When a quorum is present at any meeting of the
Shareholders, the vote of a majority of the total Shares actually cast by
Shareholders present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which, by express
provision of the Limited Liability Company Agreement, listing standards of the
New York Stock Exchange or applicable law or regulation, a vote by another
number or manner is required, in which case such express provision shall govern
and control the decision of the question.
2.6 Adjournment. If a quorum is not present at any meeting of
Shareholders, the Shareholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of Shareholders of the Company need not be given
if the place, date, and hour thereof are announced at the meeting at which the
adjournment is taken; provided, that if the adjournment is for more than 30
days, a notice of the adjourned meeting, conforming to the requirements of
Section 2.3 hereof, shall be given to each Shareholder entitled to vote at such
meeting. At any adjourned meeting at which a quorum is present, any business may
be transacted that might have been transacted on the original date of the
meeting.
2.7 Proxies (a) Any Shareholder entitled to vote at a meeting of
Shareholders or to express consent to or dissent from action without a meeting
may, by a written instrument signed by such Shareholder or his, her or its
attorney-in-fact, authorize another Person to vote at any such meeting and
express such consent or dissent for him, her or it by proxy. Execution may be
accomplished by the Shareholder or his, her or its authorized officer,
director, employee or agent signing such writing or causing his, her or its
signature to be affixed to such writing by any reasonable means including, but
not limited to, facsimile signature. A Shareholder may authorize another Person
to act for him, her or it as proxy by transmitting or authorizing the
transmission of a telegram, facsimile or other means of electronic transmission
to the Person who will be the holder of the proxy; provided, that any such
telegram, facsimile or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegram, facsimile or other electronic transmission was authorized by the
Shareholder.
(b) No such proxy shall be voted or acted upon after the expiration
of three years from the date of such proxy, unless such proxy provides for a
longer period. Every proxy shall be revocable at the pleasure of the Shareholder
executing it, except in those cases where applicable law provides that a proxy
shall be irrevocable. A Shareholder may revoke any proxy that is not irrevocable
by attending the meeting and voting in person or by filing an instrument in
writing revoking the proxy or by filing another duly executed proxy bearing a
later date with the Secretary. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power.
2.8 Organization; Procedure. At every meeting of Shareholders, the
presiding officer shall be the Chairman of the Board or, in the event of his or
her absence or disability, the President or, in the event of his or her absence
or disability, a presiding officer chosen by the Board of Directors prior to or
at such meeting. The Secretary, any Assistant Secretary, or any appointee of the
presiding officer shall act as secretary of the meeting. The order of business
and all other matters of procedure at every meeting of Shareholders may be
determined by such presiding officer.
2.9 Inspectors. The presiding officer of the meeting of Shareholders
shall appoint one or more inspectors to act at any meeting of Shareholders. Such
inspectors shall perform such duties as shall be specified by the presiding
officer of the meeting. Inspectors need not be Shareholders. No Director or
nominee for the office of Director shall be appointed to be such inspector.
2.10 Consent of Shareholders in Lieu of Meeting. (a) To the fullest
extent permitted by the Delaware Limited Liability Company Act, DEL. CODE ANN.
tit. 6, ch. 18, as amended from time to time (the "Act"), but subject to the
terms of the Limited Liability Company Agreement (which limit, define or modify
such rights in certain circumstances), whenever the vote of Shareholders at a
meeting is required or permitted to be taken for or in connection with any
action, such action may be taken without a meeting, without prior notice, and
without a vote of Shareholders, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of such percentage of
the Shares entitled to vote as would be necessary under the terms of the Limited
Liability Company Agreement to authorize or take such action and shall be
delivered to the Company by delivery to its registered office in the State of
Delaware, its principal place of business, or a Director, officer, or agent of
the Company having custody of the books in which proceedings of meetings of
Shareholders are recorded.
(b) Prompt written or telephonic notice of the taking of any action
without a meeting by less than unanimous written consent of the Shareholders
entitled to vote shall be given to those Shareholders (entitled to vote thereon)
who have not consented in writing.
2.11 Action by Telephonic Communications. Shareholders may
participate in a meeting of Shareholders by means of conference telephone or
similar communications equipment by means of which all Persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting.
2.12 Shareholder Proposals. For any Shareholder proposal to be
presented in connection with an annual meeting of Shareholders of the Company,
as permitted by these Bylaws or required by applicable law, including any
proposal relating to the nomination of a person to be elected to the Board of
Directors of the Company, the Shareholders must have given timely notice thereof
in writing to the Secretary of the Company. To be timely, a Shareholder's notice
shall be delivered to the Secretary at the principal business offices of the
Company not less than 90 days nor more than 120 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, notice by the
Shareholder to be timely must be so delivered not earlier than the 120th day
prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made.
Such Shareholder's notice shall set forth (a) as to each person whom the
Shareholder 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 Securities Exchange Act of 1934,
as amended (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a Director if elected); (b) as to any
other business that the Shareholder 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 Shareholder and of the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the Shareholder giving the notice and
the beneficial owner , if any, on whose behalf the nomination or proposal is
made, (i) the name and address of such Shareholder, as they may appear on the
Company's books, and of such beneficial owner and (ii) the class and number of
Shares of the Company which are owned beneficially and of record by such
Shareholder and such beneficial owner.
ARTICLE III
Board of Directors
3.1 General Powers. Except as may otherwise be provided by the Act
or by the terms of the Limited Liability Company Agreement, the property,
affairs and business of the Company shall be managed by or under the direction
of the Board of Directors, and the Board of Directors may exercise all the
powers of the Company as set forth in the Limited Liability Company Agreement.
The Directors shall act only as a Board or by designated committees, and the
individual Directors shall have no power as such.
3.2 Number and Term of Office. The number and classes of Directors
constituting the entire Board of Directors shall be as provided by the terms of
the Limited Liability Company Agreement. Each Director (whenever elected) shall,
subject to the terms of the Limited Liability Company Agreement, hold office
until his or her earlier death, resignation, or removal. A Director shall not be
required to be a Shareholder or a resident of the State of Delaware.
3.3 Election of Directors. Except as provided in Section 3.12
hereof, or as otherwise provided in the Limited Liability Company Agreement, the
appropriate class and number of Directors shall be elected at each annual
meeting of Shareholders. At each meeting of Shareholders for the election of
Directors, provided a quorum is present, the appropriate class and number of
Directors to be elected thereat shall be elected by the vote of Shareholders
(entitled to vote thereon) in the manner as set forth in Section 2.5 of the
Bylaws. The Limited Liability Company Agreement shall govern the election of
specific classes of Directors.
3.4 Annual and Regular Meetings. The annual meeting of the Board of
Directors for the purpose of electing officers and for the transaction of such
other business as may come before the meeting shall be held as soon as possible
following adjournment of the annual meeting of Shareholders at the place of such
annual meeting of Shareholders or at such other place as the Board of Directors
may determine. Notice of such annual meeting of the Board of Directors need not
be given. The Board of Directors from time to time may by resolution provide for
the holding of regular meetings and fix the place (which may be within or
without the State of Delaware) and the date and hour of such meeting. Notice of
regular meetings need not be given; provided, that if the Board of Directors
shall fix or change the time or place of any regular meeting, notice of such
action shall be mailed, given by telephone, hand delivered or sent by facsimile
promptly, to each Director who shall not have been present at the time of the
meeting at which such action was taken. Notice of such action need not be given
to any Director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him or her, prior to or at the
commencement of such meeting, or to any Director who submits a signed waiver of
notice, whether before or after such meeting.
3.5 Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, by the
President or by a majority of the members of the Board of Directors, at such
place (within or without the State of Delaware), date and hour as may be
specified in the respective notices or waivers of notice of such meetings.
Special meetings of the Board of Directors may be called on 24 hours' notice, if
notice is given to each Director personally or by telephone or facsimile, or on
three days' notice, if notice is mailed to each Director. Unless otherwise
indicated in the notice thereof, and subject to the terms of Limited Liability
Company Agreement, any and all business may be transacted at any special meeting
of the Board of Directors. Notice of any special meeting need not be given to
any Director who attends such meeting without protesting the lack of notice to
him or her, prior to or at the commencement of such meeting, or to any Director
who submits a signed waiver of notice, whether before or after such meeting.
3.6. Quorum; Voting. Subject to the terms of the Limited Liability
Company Agreement and these Bylaws with respect to matters on which action may
be taken without the presence of a quorum, at all meetings of the
Board of Directors, the presence of a majority of the total authorized number of
members of the Board shall constitute a quorum for the transaction of business.
Except as otherwise required by law, and subject to the terms of the Limited
Liability Company Agreement and these Bylaws (with respect to the required vote
of disinterested Directors on certain specified matters or otherwise), the vote
of a majority of the Directors present at any meeting at which a quorum is
present shall be the act of the Board of Directors.
3.7 Adjournment. A majority of the Directors present, whether or not
a quorum is present, may adjourn any meeting of the Board of Directors to
another time or place. No notice need be given of any adjourned meeting unless
the time and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 3.5
hereof shall be given to each Director.
3.8 Action Without a Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting if
all members of the Board of Directors consent thereto in writing, and such
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
3.9 Regulations; Manner of Acting. To the extent consistent with
applicable law and the terms of the Limited Liability Company Agreement, the
Board of Directors may adopt such rules and regulations for the conduct of
meetings of the Board of Directors and for the management of the property,
affairs and business of the Company as the Board of Directors may deem
appropriate.
3.10 Action by Telephonic Communications. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
Persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
3.11 Resignations; Removal. Subject to the terms of the Limited
Liability Company Agreement, a Director may resign at any time upon 60 days'
prior written notice to the Company. A Director may be removed, with or without
cause at any time pursuant to the terms of the Limited Liability Company
Agreement.
3.12 Vacancies and Newly Created Directorships. Subject to the terms
of the Limited Liability Company Agreement, if any vacancies shall occur in the
Board of Directors, by reason of death, resignation, removal or otherwise, or if
the authorized number of Directors shall be increased by the Board of Directors,
the Directors then in office shall continue to act, and such vacancies and newly
created directorships may be filled by a majority of the Directors then in
office, although less than a quorum. A Director elected to fill a vacancy or a
newly created position on the Board shall hold office until his or her successor
has been elected and qualified or until his or her earlier death, resignation or
removal. Any such vacancy or newly created position on the Board of Directors
also may be filled at any time by vote of Shareholders pursuant to the terms of
the Limited Liability Company Agreement and Section 3.3 hereof. In the event
that a vacancy on the Board of Directors is filled pursuant to the terms of this
Section 3.12, any such replacement shall assume the term of his/her predecessor.
3.13 Books and Records. (a) The Board of Directors shall cause to be
kept complete and accurate books and records of account of the Company. The
books of the Company (other than books required to maintain Capital Accounts)
shall be kept on a basis that permits the preparation of financial statements in
accordance with generally accepted accounting principles, and shall be made
available to the Board of Directors for review from time to time, at the
principal business office of the Company, for a purpose reasonably related to a
Director's position as a "manager" (within the meaning of the Act) of the
Company.
(b) In addition to the foregoing, and for purposes of fully
complying with the Act so to allow Shareholders access to certain information
relating to the Company (for any purpose reasonably related to the requesting
Shareholder's interest as a Shareholder of the Company), the Company shall
maintain at its principal business office the following information: (i) a
current list of the full name and last known business or mailing address of each
Shareholder and Director, set forth in alphabetical order, (ii) a copy of the
Certificate, the Limited Liability Company Agreement and Bylaws including all
amendments thereto, and executed copies of all powers of attorney pursuant to
which the Limited Liability Company Agreement or any amendment thereto has been
executed, (iii) copies of the Company's federal, state and local income tax
returns and reports, for each fiscal year of the Company, (iv) copies of any
financial statements of the Company for the three most recent years (or for such
number of years as shall be necessary to afford a Shareholder full information
regarding the financial condition of the Company), (v) true and full information
regarding the status of the business of the Company, (vi) true and full
information regarding the amount of cash and a description and statement of the
agreed value of any other property or services contributed by each Shareholder
and which each Shareholder has agreed to contribute in the future, and the date
on which each became a Shareholder, and (vii) all other records and information
required to be maintained pursuant to the Act. A Shareholder desiring to review
any of the foregoing information must, prior to being given access to such
information, make a written request on the Board of Directors or President of
the Company for permission to review such information. The Shareholders' rights
to obtain any of the foregoing information shall be subject to such reasonable
standards (including standards governing what information and documents are to
be furnished at what time and location and at whose expense) as shall be
established by the Board of Directors from time to time.
(c) Notwithstanding anything contained in the foregoing to the
contrary, but subject to the provisions of the Act, the Board of Directors each
has the right to keep confidential from the Shareholders, for such period of
time as the Board of Directors or President deems reasonable, any information
which the Board of Directors or President reasonably believes to be in the
nature of trade secrets or other information the disclosure of which the Board
of Directors or President in good faith believes is not in the best interest of
the Company or could damage the Company or its business or which the Company is
required by law or by agreement with a third party to keep confidential.
3.14 Reports. Forthwith upon request, the Board of Directors shall,
at the cost and expense of the Company, cause the officers of the Company to
furnish to each Director such information bearing on the financial condition and
operations of the Company as any such Director may from time to time reasonably
request for a purpose reasonably related to a Director's
position as a "manager" (within the meaning of the Act) of the Company, provided
however, that such Director shall hold and maintain all such information in
confidence unless otherwise approved in advance by the Board of Directors.
3.15 Compensation to Directors. Compensation for any Director shall
be determined by the affirmative vote of a majority of the Directors. Upon
submission of appropriate documentation, the Company shall reimburse Directors
for all reasonable costs and expenses incurred by each Director in the
performance of his/her duties as a Director of the Company.
3.16 Reserves. The Board of Directors may from time to time in its
discretion establish reasonable cash reserves.
3.17 Committees of the Board of Directors. The Board of Directors
may, from time to time, establish committees of the Board of Directors to
exercise such powers and authorities of the Board of Directors and to perform
such other functions, as the Board of Directors may from time to time determine
by resolution. Such committees shall initially include the Executive Committee
and the Audit Committee. Such committees shall be composed of two or more
Directors, and , in the case of the Audit Committee, such Directors shall be
Independent Directors. The Chairman of the Board shall appoint the chairman of
each such committee, and the Board of Directors shall appoint the remaining
members of the committee.
ARTICLE IV
Officers
4.1 Number. The officers of the Company shall consist of a Chairman
of the Board, a President, one or more Vice-Presidents, a Secretary, and, if
deemed necessary, expedient, or desirable by the Board of Directors, one or more
Assistant Secretaries, one or more Assistant Financial Officers, and such other
officers with such titles as the resolution of the Board of Directors choosing
them shall designate.
4.2 Election. Unless otherwise determined by the Board of Directors,
officers of the Company shall be elected by the Board of Directors at the annual
meeting of the Board of Directors, and shall be elected to hold office until the
next succeeding annual meeting of the Board of Directors. In the event of the
failure to elect officers at such annual meeting, officers may be elected at any
regular or special meeting of the Board of Directors. Each officer shall hold
office until his or her successor has been elected and qualified, or until his
or her earlier death, resignation or removal.
4.3 Salaries. The salaries of all officers, employees and other
agents of the Company shall be fixed by the Board of Directors, or by the
officer or officers designated by the Board of Directors to establish such
salaries.
4.4 Resignation, Vacancies and Removal. Subject to any employment
contractual arrangements that may be in place with the Company, any officer may
resign at any time by giving written notice of resignation, signed by such
officer, to the Board of Directors, at the Company's principal office. Unless
otherwise specified therein, such resignation shall take effect upon delivery.
Any vacancy occurring in any office of the Company by
death, resignation, removal or otherwise, shall, subject to the terms of the
Limited Liability Company Agreement, be filled by the Board of Directors.
Subject to any employment contractual arrangements that may be in place with the
Company, all officers, agents and employees of the Company shall be subject to
removal with or without cause at any time by the affirmative vote of a majority
of all members of the Board of Directors then in office.
4.5 Authority and Duties of Officers. The officers of the Company
shall have such authority and shall exercise such powers and perform such duties
as may be specified in the Limited Liability Company Agreement, in these Bylaws
or from time to time by the Board of Directors, except that in any event each
officer shall exercise such powers and perform such duties as may be required by
law. The express powers and duties set forth below for each officer shall not
restrict nor be in limitation of any powers or duties that may be delegated to
any such officer by the Board of Directors or the President.
4.6 The Chairman of the Board. The Chairman of the Board shall be
the chief executive officer of the Company and shall preside at all meetings of
the Shareholders and of the Board of Directors at which he or she is present.
The Chairman of the Board (a) shall perform all of the duties usually incident
to such office (analogizing to the office of chairman of the board of directors
of a Delaware corporation), subject to the direction of the Board of Directors
and (b) shall perform such other duties as may from time to time be assigned by
the Board of Directors to the Chairman of the Board.
4.7 The President. The President shall be the chief operating
officer of the Company, shall have general control and supervision of the
policies and operations of the Company, and shall see that all orders and
resolutions of the Board of Directors are carried into effect. He or she shall
manage and administer the Company's business and affairs. In the event of the
absence or disability of the Chairman of the Board, the President shall preside
at all meetings of the Shareholders and of the Directors at which he or she is
present. He or she shall have the authority to sign, in the name and on behalf
of the Company, checks, orders, contracts, leases, notes, drafts and other
documents and instruments in connection with the business of the Company, and
together with the Secretary or an Assistant Secretary, conveyances of real
estate and other documents and instruments to which the seal of the Company, if
any, is affixed, subject to any requirements for prior approval of the Board of
Directors and/or the Shareholders contained in the Act or in the Limited
Liability Company Agreement. He or she shall have the authority to cause the
employment or appointment of such employees and agents of the Company as the
conduct of the business of the Company may require, and to remove or suspend any
employee or agent elected or appointed by him or her. The President shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
4.8 The Vice President. If one or more Vice-Presidents is elected,
he/they shall perform the duties of the President in his absence (in their order
of rank) and such other duties as may from time to time be assigned to them by
the Board of Directors or the President.
4.9 The Secretary. The Secretary shall have the following powers and
duties: (a) keep or cause to be kept a record of all the proceedings of the
meetings of Shareholders and of the Board of Directors in
books provided for that purpose; (b) cause all notices to be duly given in
accordance with the provisions of these Bylaws and as required by law; (c) be
the custodian of the records of the Company; (d) properly maintain and file all
books, reports, statements, certificates and all other documents and records
required by law, the terms of the Limited Liability Company Agreement or these
Bylaws; (e) have charge of the books and ledgers of the Company and cause the
books to be kept in such manner as to show at any time the Shares of all
Shareholders, the names (alphabetically arranged) and the addresses of the
Shareholders, the Shares held by such Shareholders, and the date as of which
each became a Shareholder; (f) sign (unless the Chief Financial Officer, an
Assistant Financial Officer or Assistant Secretary shall have signed)
certificates (if any) representing Shares, the issuance of which shall have been
authorized by the Limited Liability Company Agreement; and (g) perform, in
general, all duties incident to the office of Secretary (analogizing to the
office of secretary of a Delaware corporation) and such other duties as may be
assigned to him or her from time to time by the Board of Directors or the
President.
4.11 Additional Officers. The Board of Directors may appoint such
other officers and agents as it may deem appropriate, and such other officers
and agents shall hold their offices for such terms and shall exercise such
powers and perform such duties as may be determined from time to time by the
Board of Directors. The Board of Directors from time to time may delegate to any
officer or agent the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him or her, for or without cause.
4.12 Failure to Elect. A failure to elect officers shall not
dissolve or otherwise affect the Company.
ARTICLE V
Notice; Waivers of Notice
5.1 Notice, What Constitutes. Except as otherwise provided by
applicable law, any provision of the Limited Liability Company Agreement or
these Bylaws which requires notice to be given to any Director or Shareholder of
the Company shall not be deemed or construed to require personal notice (unless
otherwise expressly provided therein), such notice may be given in writing and
delivered by telecopy, first or second class mail or Federal Express or similar
expedited commercial carrier, addressed to such Director or Shareholder at his
address as it appears on the records of the Company, with postage thereon
prepaid, and such notice shall be deemed to be given at the time when the same
is received or deposited in the U.S. mail or with Federal Express or similar
expedited commercial carrier or at the time it is telecopied.
Whenever any notice is required to be given by the terms of the
Limited Liability Company Agreement or these Bylaws to any Shareholder, to whom
(a) notice of two consecutive annual meetings, and all notices of meetings or of
the taking of action by written consent without a meeting to such Shareholder
during the period between such two consecutive annual meetings, or (b) all, and
at least two, distributions (if sent by first class mail, Federal Express or
similar expedited commercial carrier) during a twelve-month period, have been
mailed addressed to such Shareholder at his address as shown on the records of
the Company and have been returned
undeliverable, the giving of such notice to such Shareholder shall not
thereafter be required. Any action or meeting which shall be taken or held
without notice to such Shareholder shall have the same force and effect as if
such notice had been duly given.
If any such Shareholder shall deliver to the Company a written
notice setting forth his then current address, the requirement that notice be
given to such Shareholder shall be reinstated.
5.2. Waivers of Notice. Except as otherwise provided by the terms of
these Bylaws, whenever any notice is required to be given under the terms of the
Limited Liability Company Agreement or these Bylaws, a written waiver thereof,
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Except as
otherwise provided by applicable law, the terms of the Limited Liability Company
Agreement or these Bylaws, neither the business to be transacted at, nor the
purpose of, any regular or special meeting of Shareholders, Directors or members
of a committee of Directors need be specified in any written waiver of notice of
such meeting.
ARTICLE VI
Certificates of Shares, Transfer, etc.
6.1 Issuance. Each Shareholder shall be entitled to a certificate or
certificates for Shares of the Company owned by him, her or it. The Share
certificates of the Company shall be registered in the Share ledger and transfer
books of the Company as they are issued. They shall be signed by (i) the
Chairman of the Board, the President or a Vice-President, and (ii) the Secretary
or an Assistant Secretary, if any, or by the Chief Financial Officer or an
Assistant Financial Officer, if any; and shall bear the Company's seal, if any,
which may be a facsimile, engraved or printed. Any or all of the signatures upon
such certificate may be a facsimile, engraved or printed. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any certificate shall have ceased to be such officer, transfer
agent or registrar before the certificate is issued, it may be issued with the
same effect as if he or she were such officer, transfer agent or registrar at
the date of its issue.
6.2 Transfer, Legend, etc. Upon surrender to the Company or the
transfer agent of the Company of a certificate for Shares duly endorsed or
accompanied by proper evidence of succession, assessment or authority to
transfer, the Company shall issue a new certificate to the person entitled
thereto, cancel the old certificate, and record the transaction upon its books.
Subject to applicable law, the Board of Directors may, by resolution, (a) impose
restrictions on transfer or registration of transfer of Shares of the Company,
and (b) require as a condition to the issuance or transfer of such Shares that
the person or persons to whom such Shares are to be issued or transferred agree
in writing to such restrictions. In the event that any such restrictions on
transfer or registration of transfer are so imposed, the Company shall require
that such restrictions be conspicuously noted on all certificates representing
such Shares.
6.3 Certificates. Certificates of the Company shall be in such forms
as is required or authorized by statute and approved by the Board of Directors.
The Share record books and the blank Share certificate books
shall be kept by the Secretary or an Assistant Secretary, if any, or by any
agent designated by the Board of Directors or Secretary for that purpose.
6.4. Lost, Stolen, Defaced, Worn Out, or Destroyed. 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 Company alleged to
have been lost, stolen, defaced, worn out or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost,
stolen, defaced, worn out or destroyed. When authorizing such issuance of a new
certificate or certificates, the Company may, as a condition precedent thereto,
(a) require the owner of any defaced or worn out certificate to deliver such
certificate to the Company and order the cancellation of the same, and (b)
require the owner of any lost, stolen, or destroyed certificate or certificates,
or his, her or its legal representative, to advertise the same in such manner as
the Company shall require and to give the Company a bond in such sum as it may
direct as indemnity against any claim that may be made against the Company with
respect to the certificate alleged to have been lost, stolen, or destroyed.
Thereupon, the Company may cause to be issued to such person a new certificate
in replacement for the certificate alleged to have been lost, stolen, defaced,
worn out or destroyed. Upon the stub of every new certificate so issued shall be
noted the fact of such issue and the number, date and name of the registered
owner of the lost, stolen, defaced, worn out or destroyed certificate in lieu of
which the new certificate is issued. Every certificate issued hereunder shall be
issued without payment to the Company for such certificate; provided, that there
shall be paid to the Company a sum equal to any exceptional expenses incurred by
the Company in providing for or obtaining any such indemnity and security as is
referred to herein.
6.5. Record Holder of Shares. Except as otherwise provided by
applicable law, the terms of the Limited Liability Company Agreement, or the
Bylaws, the Company (a) shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of Shares to receive distributions
and to vote as such owner and (b) 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.
The Company may treat a fiduciary as having capacity and authority
to exercise all rights of ownership in respect of Shares held by such fiduciary
in the name of a decedent holder, a person, firm or corporation in conservation,
receivership or bankruptcy, a minor, an incompetent person, or a person under
disability, as the case may be, for whom such fiduciary is acting, and the
Company, its transfer agent and its registrar, if any, upon presentation of
evidence of appointment of such fiduciary shall be under no duty to inquire as
to the powers of such fiduciary and shall not be liable for any loss caused by
any act done or omitted to be done by the Company or its transfer agent or
registrar, if any, in reliance thereon.
6.6 Determination of Shareholders of Record. In order that the
Company may determine the Shareholders entitled to notice of or to vote at any
meeting of Shareholders or any adjournment thereof, or to express consent to the
Company's actions in writing without a meeting, or entitled to exercise any
rights in respect of any change, conversion or exchange of Shares, 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 sixty (60) nor
less than ten (10) calendar days before the date of such meeting, nor more than
sixty (60) calendar days prior to any other action.
If no record date is fixed:
(a) The record date for determining Shareholders entitled to
notice of or to vote at a meeting of Shareholders shall be at
the close of business on the day next preceding the day on
which notice is given, or, if notice is waived, at the close
of business on the day next preceding the day on which the
meeting is held.
(b) The record date for determining Shareholders entitled to
express consent to limited liability company action in writing
without a meeting, when no proper action by the Board of
Directors is necessary, shall be the day on which the first
written consent is expressed.
(c) The record date for determining Shareholders for any other
purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
A determination of Shareholders of record entitled to notice of or to vote at a
meeting of Shareholders shall apply to any adjournment of the meeting; provided,
that the Board of Directors may fix a new record date for the adjourned meeting.
6.7 Appointment of Transfer Agents, Registrars, etc. The Board of
Directors may from time to time by resolution appoint (a) one or more transfer
agents and registrars for the Shares of the Company, (b) a plan agent to
administer any employee benefit, distribution reinvestment, or similar plan of
the Company, and (c) a distribution disbursing agent to disburse any and all
distributions authorized by the Board and payable with respect to the Shares of
the Company. The Board of Directors shall also have authority to make such other
rules and regulations, not inconsistent with applicable law, the terms of the
Limited Liability Company Agreement or these Bylaws, as it seems necessary or
advisable with respect to the issuance, transfer and registration of
certificates for Shares and the Shares represented thereby.
ARTICLE VII
General Provisions
7.1. Contracts etc. Except as otherwise provided by applicable law,
the terms of the Limited Liability Company Agreement or these Bylaws, the Board
of Directors may authorize any officer or officers, any employee or employees,
or any agent or agents, to enter into any contract or to execute, acknowledge or
deliver any agreement, deed, mortgage, bond or other instrument in the name of
an on behalf of the Company, and to affix the Company's seal, if any, thereon.
Such authority may be general or confined to specific instances.
7.2. Checks. All checks, notes, obligations, bills of exchange,
acceptances or other orders in writing shall be signed by such person or
persons as the Board of Directors may from time to time designate by resolution,
or by those officers of the Company given such express authority by the terms of
these Bylaws.
7.3. Company's Seal. The Company's seal, if any such seal is
approved by the Board of Directors, shall have inscribed thereon the name of the
Company and the year of its formation. The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
7.4. Deposits. All funds of the Company shall be deposited from time
to time to the credit of the Company in such banks, trust companies or other
depositories as the Board of Directors may approve or designate, and all such
funds shall be withdrawn only upon checks or other orders signed by such one or
more officers, employees or agents as designated in the Limited Liability
Company Agreement, in these Bylaws or from time to time by the Board of
Directors.
7.5 Amendment of Bylaws. Except as otherwise provided by the terms
of the Limited Liability Company Agreement, these Bylaws may be amended,
modified or repealed, or new Bylaws may be adopted, by the affirmative vote of a
majority of all members of the Board of Directors then in office at any regular
meeting of the Board of Directors, or at any special meeting thereof, if notice
of such amendment, modification, repeal, or adoption of new Bylaws is contained
in the notice of such special meeting.
7.6. Limited Liability Company Agreement. In the event of a conflict
between the provisions of these Bylaws and the provisions of the Limited
Liability Company Agreement or of applicable law or regulation, the terms of the
Limited Liability Company Agreement, such law or such regulation respectively,
shall control.