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EXHIBIT 3.5
FIFTH AMENDED AND RESTATED
BYLAWS
OF
AMERICAN INDUSTRIAL PROPERTIES REIT
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INDEX
PAGE
ARTICLE I OFFICES
Section 1.1 Principal Office..........................................................1
Section 1.2 Other Offices.............................................................1
ARTICLE II MEETINGS OF SHAREHOLDERS
Section 2.1 Place of Meetings.........................................................1
Section 2.2 Annual Meeting............................................................1
Section 2.3 Special Meetings..........................................................1
Section 2.4 Notice of Meetings........................................................1
Section 2.5 Business at Annual Meeting................................................1
Section 2.6 Voting Lists..............................................................2
Section 2.7 Quorum....................................................................2
Section 2.8 Organization..............................................................3
Section 2.9 Proxies...................................................................3
Section 2.10 Voting of Shares..........................................................3
Section 2.11 Voting of Shares by Certain Holders.......................................3
Section 2.12 Election of Trust Managers................................................4
Section 2.13 Telephone Meetings........................................................4
Section 2.14 Action Without Meeting....................................................4
Section 2.15 Inspectors and Voting Procedures..........................................4
ARTICLE III TRUST MANAGERS
Section 3.1 Powers and Responsibilities...............................................5
Section 3.2 Number and Qualification..................................................5
Section 3.3 Election and Term of Office...............................................5
Section 3.4 Nomination of Trust Managers..............................................5
Section 3.5 Resignation...............................................................6
Section 3.6 Removal...................................................................6
Section 3.7 Vacancies.................................................................6
Section 3.8 Bond Not Required; Time Commitment........................................6
Section 3.9 Compensation..............................................................7
Section 3.10 Execution of Documents....................................................7
ARTICLE IV MEETINGS OF THE TRUST MANAGERS
Section 4.1 Place of Meetings.........................................................7
Section 4.2 Annual Meeting............................................................7
Section 4.3 Regular Meetings..........................................................7
Section 4.4 Special Meetings..........................................................7
Section 4.5 Quorum and Action.........................................................7
Section 4.6 Presumption of Assent to Action...........................................7
Section 4.7 Telephone Meetings........................................................8
Section 4.8 Action Without Meeting....................................................8
Section 4.9 Minutes...................................................................8
Section 4.10 Interest of Trust Managers............................................. 8
Section 4.11 Right of Trust Managers and Officers to Own Shares or Other Property and
to Engage in Other Business...............................................8
Section 4.12 Transactions Between Trust Managers and the Trust.........................8
Section 4.13 Persons Dealing with Trust Managers or Officers...........................8
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Section 4.14 Reliance..................................................................9
Section 4.15 Liability of Trust Managers...............................................9
ARTICLE V COMMITTEES OF THE TRUST MANAGERS
Section 5.1 Membership and Authorities................................................9
Section 5.2 Minutes and Rules of Procedure............................................9
Section 5.3 Vacancies.................................................................9
Section 5.4 Telephone Meetings........................................................9
Section 5.5 Action Without Meeting....................................................9
ARTICLE VI OFFICERS
Section 6.1 Number....................................................................9
Section 6.2 Election, Term of Office and Qualification...............................10
Section 6.3 Subordinate Officers.....................................................10
Section 6.4 Resignation..............................................................10
Section 6.5 Removal..................................................................10
Section 6.6 Vacancies................................................................10
Section 6.7 The Chief Executive Officer..............................................10
Section 6.8 The President............................................................10
Section 6.9 The Vice Presidents......................................................10
Section 6.10 The Secretary............................................................11
Section 6.11 Assistant Secretaries....................................................11
Section 6.12 The Treasurer............................................................11
Section 6.13 Assistant Treasurers.....................................................11
Section 6.14 Treasurer's Bond.........................................................11
Section 6.15 Salaries.................................................................11
Section 6.16 Execution of Documents...................................................11
ARTICLE VII TRUST SHARES
Section 7.1 Share Certificates.......................................................12
Section 7.2 Lost Certificates, etc...................................................12
Section 7.3 Transfer of Shares.......................................................12
Section 7.4 Ownership of Shares......................................................12
Section 7.5 Closing of Transfer Books................................................12
Section 7.6 Dividends................................................................13
Section 7.7 Surplus and Reserves.....................................................13
ARTICLE VIII GENERAL PROVISIONS
Section 8.1 General Policies.........................................................13
Section 8.2 Limited Liability of Shareholders........................................13
Section 8.3 Waiver of Notice.........................................................13
Section 8.4 Seal.....................................................................13
Section 8.5 Fiscal Year..............................................................13
Section 8.6 Checks, Notes, etc ......................................................13
Section 8.7 Examination of Books and Records.........................................13
Section 8.8 Voting Upon Shares Held by the Trust.....................................14
Section 8.9 Number, Gender, Etc......................................................14
Section 8.10 Annual and Quarterly Reports.............................................14
Section 8.11 Independent Committee....................................................14
ARTICLE IX AMENDMENTS
Section 9.1 Amendment of Bylaws......................................................14
ARTICLE X SUBJECT TO ALL LAWS
Section 10.1 Subject to All Laws......................................................14
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AMERICAN INDUSTRIAL PROPERTIES REIT
FIFTH AMENDED AND RESTATED BYLAWS
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL OFFICE . The principal office of the Trust shall
be in the City of Irving, Dallas County, Texas or at such other location as the
Trust Managers may from time to time determine.
SECTION 1.2 OTHER OFFICES. The Trust may also have offices at such
other places, both within and without the State of Texas, as the Trust Managers
may from time to time determine or the business of the Trust may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
SECTION 2.1 PLACE OF MEETINGS. The Trust Managers may designate any
place, either within or without the State of Texas, as the place of meeting for
any annual meeting or for any special meeting called by the Trust Managers. A
waiver of notice signed by all shareholders entitled to vote at a meeting may
designate any place, either within or without the State of Texas, as the place
for the holding of such meeting. If no designation is made, or if a special
meeting be otherwise called, the place of meeting shall be the principal office
of the Trust.
SECTION 2.2 ANNUAL MEETING. The annual meeting of shareholders shall
be held at such time, on such day and at such place as may be designated by the
Trust Managers. At the annual meeting, the shareholders shall, subject to
Section 2.5 and Section 3.3 of these Bylaws, elect Trust Managers and transact
such other business as may properly be brought before the meeting. Failure to
hold the annual meeting at the designated time shall not cause the dissolution
of the Trust.
SECTION 2.3 SPECIAL MEETINGS. Special meetings of the shareholders for
any purpose or purposes, unless otherwise prescribed by law or by the
Declaration of Trust, may be called by the Trust Managers, any officer of the
Trust or the holders of at least five percent (5%) of all of the shares entitled
to vote at the meetings. Business transacted at all special meetings shall be
confined to the purpose or purposes stated in the call.
SECTION 2.4 NOTICE OF MEETINGS. Written or printed notice of all
meetings of shareholders stating the place, day and hour thereof, and in the
case of a special meeting the purpose or purposes for which the meeting is
called, shall be personally delivered or mailed, not less than ten (10) days nor
more than sixty (60) days prior to the date of the meeting, to the shareholders
of record entitled to vote at such meeting. If mailed, such notice shall be
deemed to be delivered when deposited in the United States Mail addressed to the
shareholder at his address as it appears on the share transfer books of the
Trust and the postage shall be prepaid. Personal delivery of any such notice to
any officer of a corporation or association, or to any member of a partnership,
shall constitute delivery of such notice to such corporation, association or
partnership.
SECTION 2.5 BUSINESS AT ANNUAL MEETING. No business may be transacted
at an annual meeting of shareholders, other than business that is either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Trust Managers (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the direction
of the Trust Managers (or any duly authorized committee thereof) or (c)
otherwise properly brought before the annual meeting by any shareholder of the
Trust (i) who is a shareholder of record on the date of the giving of the notice
provided for in this Section 2.5 and on the record date for the determination of
shareholders entitled to vote at such annual meeting, and (ii) who complies with
the notice procedures set forth in this Section 2.5.
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In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a shareholder, such shareholder
must have given timely notice thereof in proper written form to the Secretary of
the Trust. To be timely, a shareholder's notice to the Secretary must be
delivered to or mailed and received at the principal office of the Trust (i)
with respect to the Trust's first annual meeting of shareholders following the
adoption of this bylaw, notice by the shareholder to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which public disclosure of the adoption of this Section 2.5 is first
made and (ii) thereafter, not less than sixty (60) days nor more than ninety
(90) days prior to the date of the applicable annual meeting of shareholders,
provided, however, that in the event that less than seventy (70) days' notice or
prior public disclosure of the date of the meeting be given or made, notice by
the shareholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the
date of the applicable annual meeting was mailed or such public disclosure of
the date of such annual meeting was made, whichever first occurs. For purposes
of this Section 2.5, the date of a public disclosure shall include, but not be
limited to, the date on which such disclosure is made in a press release
reported by the Dow Jones News Services, the Associated Press or any comparable
news service or in a document publicly filed by the Trust with the Securities
and Exchange Commission pursuant to Sections 13, 14 or 15(d) (or the rules and
regulations promulgated thereunder) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
To be in proper written form, a shareholder's notice to the Secretary
must set forth as to each matter such shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and record address of such shareholder, (iii) the
number of shares of the Trust that are owned beneficially or of record by such
shareholder, (iv) a description of all arrangements or understandings between
such shareholder and any other person or persons (including their names) in
connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business, and (v) a representation
that such shareholder intends to appear in person or by proxy at the annual
meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of shareholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.5; provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.5 shall be deemed to preclude discussion
by any shareholder of any such business. If the presiding officer of an annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the presiding officer shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
SECTION 2.6 VOTING LISTS. The officer or agent having charge of the
share transfer books for shares of the Trust shall make, at least ten (10) days
before each meeting of the shareholders, a complete list of shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of each shareholder and the number of
shares held by each shareholder, which list, for a period of ten (10) days prior
to such meeting, shall be kept on file at the registered office of the Trust and
shall be subject to inspection by any shareholders at any time during usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
for the duration of the meeting. The original share transfer books shall be
prima facie evidence as to who are the shareholders entitled to examine such
list or transfer books or to vote at any meeting of shareholders. Failure to
comply with this Section 2.6 with respect to any meeting of shareholders shall
not affect the validity of any action taken at such meeting.
SECTION 2.7 QUORUM. The holders of a majority of the shares entitled
to vote, present in person or represented by proxy, shall constitute a quorum at
all meetings of the shareholders for the transaction of business, except as
otherwise provided by law or by the Declaration of Trust. If, however, such
quorum shall not be present or represented at any meeting of the shareholders,
the shareholders entitled to vote at such meeting, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time without notice other than announcement at the meeting until a quorum shall
be present or represented. At such adjourned meeting at which a quorum shall be
present or represented any business may be transacted which might have been
transacted at the meeting as originally convened. The shareholders present at a
duly organized meeting at which a quorum was present may continue to transact
business until adjournment notwithstanding the withdrawal of enough shareholders
to leave less than a quorum present, provided that there remain at such meeting
the holder or holders of at least one-third (1/3) of the shares issued and
outstanding and entitled to vote thereat, present in person or represented in
the manner specified above. A holder of a share shall be treated as being
present at a meeting if the holder of such share
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is (i) present in person at the meeting, or (ii) represented at the meeting by a
valid proxy, whether the instrument granting such proxy is marked as casting a
vote or abstaining, is left blank or does not empower such proxy to vote with
respect to some or all matters to be voted upon at the meeting.
SECTION 2.8 ORGANIZATION. (a) The Chief Executive Officer, if one
shall be elected, shall preside at all meetings of the shareholders. In the
absence of the Chief Executive Officer or should one not be elected, the
following officers shall preside in order of priority: President , Chief
Financial Officer, Chief Operating Officer or Secretary. If no such officer is
available, the meeting shall be adjourned until such an officer is available to
preside over the meeting . The presiding officer shall set the agenda for the
meeting, shall conduct all aspects of the meeting and shall establish and
interpret the rules of order for the conduct of the meeting.
(b) The Secretary of the Trust shall act as secretary at all meetings
of the shareholders. In his or her absence an Assistant Secretary shall so act
and in the absence of all of these officers the presiding officer may appoint
any person to act as secretary of the meeting .
SECTION 2.9 PROXIES. (a) At any meeting of the shareholders every
shareholder entitled to vote at such meeting shall be entitled to vote in person
or by proxy executed in writing by such shareholder or by his duly authorized
attorney in fact. Proxies shall be filed with the Secretary or Trust Managers
immediately after the meeting has been called to order.
(b) No proxy shall be valid after eleven (11) months from the date of
its execution unless such proxy otherwise provides.
(c) A proxy shall be revocable unless the proxy form conspicuously
states that the proxy is irrevocable and the proxy is coupled with an interest
but in no event shall it remain irrevocable for a period of more than eleven
(11) months. A proxy which is revocable as aforesaid may be revoked at any time
by filing with the Secretary an instrument revoking it or a duly executed proxy
bearing a later date. Any revocable proxy which is not so revoked shall, subject
to paragraph (b) above, continue in full force and effect.
(d) In the event that any instrument in writing shall designate two
(2) or more persons to act as proxies, a majority of such persons present at the
meeting or, if only one shall be present, then that one, shall have and may
exercise all of the powers conferred by such written instrument upon all the
persons so designated unless the instrument shall otherwise provide.
SECTION 2.10 VOTING OF SHARES. Except as otherwise provided by law,
the Declaration of Trust or these Bylaws, each shareholder shall be entitled at
each meeting of shareholders to one (1) vote on each matter submitted to a vote
at such meeting for each share having voting rights registered in his name on
the books of the Trust at the time of the closing of the share transfer books
(or at the record date) for such meeting. When a quorum is present at any
meeting (and notwithstanding the subsequent withdrawal of enough shareholders to
leave less than a quorum present) in accordance with Section 2.7 of these
Bylaws, the votes of holders of a majority of the shares entitled to vote,
present in person or represented by proxy, shall decide any matter submitted to
such meeting, unless the matter is one upon which by law or by express provision
of the Declaration of Trust or of these Bylaws the vote of a greater number is
required, in which case the vote of such greater number shall govern and control
the decision of such matter. In determining the number of shares entitled to
vote, shares abstaining from voting or not voted on a matter (including
elections) will not be treated as entitled to vote. The provisions of this
Section 2.10 will govern with respect to all votes of shareholders except as
otherwise provided for in these Bylaws or in the Declaration of Trust or by some
specific statutory provision superseding the provisions contained in these
Bylaws or the Declaration of Trust.
SECTION 2.11 VOTING OF SHARES BY CERTAIN HOLDERS. (a) Shares standing
in the name of another business organization may be voted by such officer, agent
or proxy as the organizational documents of such organization may authorize or,
in the absence of such authorization, as may be determined by the governing body
of such organization.
(b) Shares held by an administrator, executor, guardian or conservator
may be voted by him, either in person or by proxy, without a transfer of such
shares into his name so long as such shares forming a part of an estate are in
the possession and form a part of the estate being served by him. Shares
standing in the name of a trustee may
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be voted by him, either in person or by proxy, but no trustee shall be entitled
to vote shares held by him without a transfer of such shares into his name as
trustee.
(c) Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority to do so
is contained in an appropriate order of the court by which such receiver was
appointed.
(d) A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
SECTION 2.12 ELECTION OF TRUST MANAGERS. At each election for Trust
Managers, each shareholder entitled to vote at such election shall, unless
otherwise provided by the Declaration of Trust or by applicable law, have the
right to vote the number of shares owned by him for as many persons as there are
to be elected and for whose election he has a right to vote. No shareholder
shall have the right or be permitted to cumulate his votes on any basis.
SECTION 2.13 TELEPHONE MEETINGS. Shareholders may participate in and
hold a meeting of the 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
Section shall constitute presence in person at such meeting, except where a
person participates in the 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.
SECTION 2.14 ACTION WITHOUT MEETING. Any action required by any
provision of law or of the Declaration of Trust or these Bylaws to be taken at a
meeting of the shareholders or any action which may be taken at a meeting of the
shareholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof, and such consent shall have
the same force and effect as a unanimous vote of the shareholders.
SECTION 2.15 INSPECTORS AND VOTING PROCEDURES.
(a) The Trust shall, in advance of any meeting of shareholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The Trust may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of shareholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and
ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or
retain other persons or entities to assist the inspectors in the performance of
the duties of the inspectors.
(c) The date and time of the opening and closing of the polls for each
matter upon which the shareholders will vote at a meeting shall be announced at
the meeting. No ballots, proxies or votes, nor any revocations thereof or
changes thereto, shall be accepted by the inspectors after the closing of the
polls unless a court of appropriate jurisdiction, upon application by a
shareholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors may examine and consider such records or factors as allowed by
the Texas Real Estate Investment Trust Act (the "Texas REIT Act").
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ARTICLE III
TRUST MANAGERS
SECTION 3.1 POWERS AND RESPONSIBILITIES. The business and affairs of
the Trust shall be managed under the direction of its Trust Managers who may
exercise all such powers of the Trust and do all such lawful acts and things as
are not by statute, the Declaration of Trust or these Bylaws directed or
required to be exercised or done by the shareholders. The enumeration of any
specific power or authority herein shall not be construed as limiting the
aforesaid powers or the general powers or authority or any other specified power
or authority conferred herein upon the Trust Managers.
SECTION 3.2 NUMBER AND QUALIFICATION. There shall at all times be no
less than two (2) nor more than eight (8) Trust Managers who, subject to Section
3.3 below, shall be elected annually by the shareholders. Subject to any
limitations specified by law or in the Declaration of Trust, the number of Trust
Managers may be fixed from time to time by resolution adopted by a majority of
the Trust Managers. No decrease in the number of Trust Managers shall have the
effect of shortening the term of any incumbent Trust Manager. A majority of the
Trust Managers shall be natural persons. Trust Managers need not be
shareholders, must be at least eighteen (18) years of age and must not be
subject to any legal disability. At least two (2) of the Trust Managers shall at
all times be Independent Trust Managers. For purposes of these Bylaws, the term
"Independent Trust Manager" shall mean a Trust Manager who (i) does not perform
any services for the Trust (except in the capacity of a Trust Manager) whether
as an agent, advisor, consultant, employee, property manager or in any other
capacity whatsoever (other than as a Trust Manager), and (ii) is not an
"affiliate" of any person or entity that performs any services for the Trust
(other than as a Trust Manager). The term "affiliate" as used in these Bylaws
means any individual, corporation, partnership, trust, unincorporated
organization, association or other entity that, directly or indirectly, through
one or more intermediaries, controls, is controlled by, or is under common
control with any person or entity that performs any services for the Trust
(other than as a Trust Manager).
SECTION 3.3 ELECTION AND TERM OF OFFICE. The Trust Manager nominees
who have not been previously elected as Trust Managers by the shareholders of
the Trust shall be elected at the annual meeting of the shareholders (except as
provided in Section 3.7) by the affirmative vote of the holders of majority of
the outstanding shares of the Trust. Trust Managers who have been previously
elected as Trust Managers by the shareholders of the Trust shall be re-elected
at the annual meeting of the shareholders by the affirmative vote of the holders
of a majority of the outstanding shares of the Trust present in person or
represented by proxy at such meeting; provided, however, that any Trust Manager
that has been previously elected as a Trust Manager by the shareholders who is
not re-elected by such majority vote at a subsequent annual meeting shall
nevertheless remain in office until his successor is elected and qualified. Each
Trust Manager shall hold office until his successor is elected and qualified, or
until his death, resignation or removal in the manner provided in these Bylaws.
SECTION 3.4 NOMINATION OF TRUST MANAGERS. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as Trust Managers of the Trust. Nominations of persons for election as
Trust Managers may be made at any annual meeting of shareholders (a) by or at
the direction of the Trust Managers (or any duly authorized committee thereof)
or (b) by any shareholder of the Trust (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Section 3.4 and on the
record date for the determination of shareholders entitled to vote at such
annual meeting, and (ii) who complies with the notice procedures set forth in
this Section 3.4.
In addition to any other applicable requirements, for a nomination to
be made by a shareholder, such shareholder must have given timely notice thereof
in proper written form to the Secretary of the Trust. To be timely, a
shareholder's notice to the Secretary must be delivered to or mailed and
received at the principal offices of the Trust (i) with respect to the Trust's
first annual meeting of shareholders following the adoption of this bylaw,
notice by the shareholder to be timely must be so received not later than the
close of business on the tenth (10th) day following the day on which public
disclosure of the adoption of this Section 3.4 is first made and (ii)
thereafter, not less than sixty (60) days nor more than ninety (90) days prior
to the date of the applicable annual meeting of shareholders; provided, however,
that in the event that less than seventy (70) days' notice or prior public
disclosure of the date of the meeting is given or made, notice by the
shareholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the day on which such notice of the
date of the applicable annual meeting was mailed or such public disclosure of
the date of such annual meeting was made, whichever first
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occurs. For purposes of this Section 3.4, the date of a public disclosure shall
include, but not be limited to, the date on which such disclosure is made in a
press release reported by the Dow Jones News Services, the Associated Press or
any comparable national news service or in a document publicly filed by the
Trust with the Securities and Exchange Commission pursuant to Sections 13, 14 or
15(d) (or the rules and regulations promulgated thereunder) of the Exchange Act.
To be in proper written form, a shareholder's notice to the Secretary
must set forth (a) as to each person whom the shareholder proposes to nominate
for election as a Trust Manager (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the number of shares of the Trust that are owned beneficially
or of record by the person, and (iv) any other information relating to the
person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitation of proxies for
election of Trust Managers pursuant to Section 14 of the Exchange Act, and (b)
as to the shareholder giving the notice (i) the name and record address of such
shareholder, (ii) the number of shares of the Trust that are owned beneficially
or of record by such shareholder, (iii) a description of all arrangements or
understandings between such shareholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such shareholders, (iv) a representation that such shareholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in the notice, and (v) any other information relating to such shareholder
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
Trust Managers pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a written
consent of each proposed nominee to being named as a nominee and to serve as a
Trust Manager if elected.
No person shall be eligible for election as a Trust Manager of the
Trust unless nominated in accordance with the procedures set forth in this
Section 3.4. If the presiding officer of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
presiding officer shall declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
SECTION 3.5 RESIGNATION. Any Trust Manager may resign at any time by
giving written notice to the remaining Trust Managers. Such resignation shall
take effect at the time specified therein, and unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. A Trust Manager judged incompetent or for whom a guardian or
conservator has been appointed, shall be deemed to have resigned as of the date
of such adjudication or appointment.
SECTION 3.6 Removal. A Trust Manager may be removed at any time with
or without cause by the vote of holders of shares representing two-thirds (2/3)
of the total votes authorized to be cast by shares then outstanding and entitled
to vote thereon. Upon the resignation or removal of any Trust Manager, or his
otherwise ceasing to be a Trust Manager, he shall execute and deliver such
documents as the remaining Trust Managers shall require for the conveyance of
any Trust property held in his name, shall account to the remaining Trust
Managers as they require for all property which he holds as Trust Manager and
shall thereupon be discharged as Trust Manager. Upon the incapacity or death of
any Trust Manager, his legal representative shall perform the acts set forth in
the preceding sentence and the discharge mentioned therein shall run to such
legal representative and to the incapacitated Trust Manager or the estate of the
deceased Trust Manager, as the case may be.
SECTION 3.7 VACANCIES. If there is an increase in the number of Trust
Managers or if any or all of the Trust Managers cease to be Trust Managers
hereunder, whether by reason of resignation, removal, incapacity, death or
otherwise, such event shall not terminate the Trust or affect its continuity.
Until vacancies are filled, the remaining Trust Manager or Trust Managers may
exercise the powers of the Trust Managers hereunder. Vacancies may be filled by
successor Trust Managers either appointed by a majority of the remaining Trust
Managers or elected by the vote of the holders of at least a majority of the
outstanding shares at an annual or special meeting of the shareholders. Any
Trust Manager elected to fill a vacancy shall hold office until the next annual
meeting for the election of Trust Managers. The election of a successor Trust
Manager shall be considered an amendment to the Declaration of Trust.
SECTION 3.8 BOND NOT REQUIRED; TIME COMMITMENT. Unless otherwise
required by law, no Trust Manager shall be required to give bond, surety or
security in any jurisdiction for the performance of his duties or
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obligations to the Trust. No Trust Manager shall be required to devote his
entire time to the business and affairs of the Trust.
SECTION 3.9 COMPENSATION. Trust Managers shall receive compensation
for their services to the Trust as may be determined from time to time by the
Trust Managers; provided, however, that the cash compensation of the Trust
Managers shall not be increased by more than 20% over the prior year without the
approval of the holders of a majority of the shares cast at the annual meeting
of shareholders of the Trust. The Trust Managers may delegate to any committee
the power to fix from time to time the compensation of Trust Managers. Officers
of the Trust who also serve as Trust Managers shall not receive compensation for
their service as Trust Managers.
SECTION 3.10 EXECUTION OF DOCUMENTS. Each Trust Manager and any one of
them is authorized to execute on behalf of the Trust any document or instrument
of any nature whatsoever, provided that the execution by the Trust of any such
document or instrument shall have been previously authorized by such action of
the Trust Managers as may be required by statute, the Declaration of Trust or
these Bylaws.
ARTICLE IV
MEETINGS OF THE TRUST MANAGERS
SECTION 4.1 PLACE OF MEETINGS. The Trust Managers of the Trust may
hold their meetings, both regular and special, either within or without the
State of Texas.
SECTION 4.2 ANNUAL MEETING. The annual meeting of the Trust Managers
shall be held immediately following the adjournment of the annual meeting of the
shareholders and no notice of such meeting shall be necessary to the Trust
Managers in order to legally constitute the meeting, provided a quorum shall be
present, or they may meet at such time and place as shall be fixed by the
consent in writing of all of the Trust Managers.
SECTION 4.3 REGULAR MEETINGS. Regular meetings of the Trust Managers,
in addition to the annual meetings referred to in Section 4.2, may be held
without notice at such time and place as shall from time to time be determined
by the Trust Managers.
SECTION 4.4 SPECIAL MEETINGS. Special meetings of the Trust Managers
may be called by the Chief Executive Officer, if one shall be elected, or by the
President, if a Chief Executive Officer is not elected, on ten (10) business
day's notice (oral or written) to each Trust Manager. Special meetings shall be
called by the Chief Executive Officer (if one shall be elected), the President
or the Secretary on like notice on the oral or written request of any Trust
Manager. Neither the purpose of, nor the business to be transacted at, any
special meeting of the Trust Managers need be specified in the notice or waiver
of notice of such meeting. Attendance of a Trust Manager at a meeting shall
constitute a waiver of notice of such meeting except where a Trust Manager
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the grounds that the meeting is
not lawfully called or convened.
SECTION 4.5 QUORUM AND ACTION. At all meetings of the Trust Managers,
the presence of a majority of the Trust Managers shall be necessary and
sufficient to constitute a quorum for the transaction of business and the act of
a majority of the Trust Managers at any meeting at which a quorum is present
shall be the act of the Trust Managers unless the act of a greater number is
required by law, the Declaration of Trust or these Bylaws. If a quorum shall not
be present at any meeting of Trust Managers, the Trust Managers present may
adjourn the meeting from time to time without notice other than announcement at
the meeting until a quorum shall be present. If there are only two Trust
Managers, the presence of both Trust Managers shall be necessary to constitute a
quorum.
SECTION 4.6 PRESUMPTION OF ASSENT TO ACTION. A Trust Manager who is
present at a meeting of the Trust Managers at which action on any Trust matter
is taken shall be presumed to have assented to the action taken unless his
dissent shall be entered in the minutes of the meeting or unless he shall file
his written dissent to such action with the Secretary of the meeting before the
adjournment thereof or shall forward such dissent by registered mail to the
Secretary of the Trust immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a Trust Manager who voted in favor of such
action.
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SECTION 4.7 TELEPHONE MEETINGS. Trust Managers may participate in and
hold a meeting of the Trust Managers by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation in a meeting pursuant to this Section
shall constitute presence in person at such meeting, except where a person
participates in the 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.
SECTION 4.8 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of the Trust Managers may be taken without a meeting if
a consent in writing, setting forth the action so taken, is signed by all the
Trust Managers, and such consent shall have the same force and effect as a
unanimous vote at a meeting.
SECTION 4.9 MINUTES. The Trust Managers shall keep regular minutes of
their proceedings. The minutes shall be placed in the minute book of the Trust.
SECTION 4.10 INTEREST OF TRUST MANAGERS. With respect to the actions
of the Trust Managers, Trust Managers who have any direct or indirect interest
in connection with any matter being acted upon may be counted for all quorum
purposes under this Article IV.
SECTION 4.11 RIGHT OF TRUST MANAGERS AND OFFICERS TO OWN SHARES OR
OTHER PROPERTY AND TO ENGAGE IN OTHER BUSINESS. Any Trust Manager or officer of
the Trust may acquire, own, hold and dispose of shares of the Trust for his
individual account, and may exercise all rights of a shareholder to the same
extent and in the same manner as if he were not a Trust Manager or officer of
the Trust. Except as provided specifically to the contrary in a written
agreement with the Trust, any Trust Manager may, in a capacity other than that
of Trust Manager, have business interests and engage in business activities
similar to or in addition to those relating to the Trust, which interests and
activities may be similar to and competitive with those of the Trust and may
include the acquisition, syndication, holding, management, development,
operation or disposition, for his own account or for the account of others, of
interests in mortgages, interests in real property, or interests in entities
engaged in the real estate business. Except as provided specifically to the
contrary in a written agreement with the Trust, each Trust Manager shall be free
of any obligation to present to the Trust any investment opportunity which comes
to him in any capacity other than solely as Trust Manager of the Trust, even if
such opportunity is of a character which, if presented to the Trust, could be
exploited by the Trust. Subject to the provisions of Article III hereof, any
Trust Manager or officer of the Trust may be a trustee, officer, director,
shareholder, partner, member, advisor or employee of, or otherwise have a direct
or indirect interest in any person who may be engaged to render advice or
services to the Trust, and may receive compensation from such person as well as
compensation as Trust Manager or officer or otherwise hereunder.
SECTION 4.12 TRANSACTIONS BETWEEN TRUST MANAGERS AND THE TRUST. Except
as otherwise provided by the Declaration of Trust or these Bylaws, and in the
absence of fraud, a contract, act or other transaction, between the Trust and
any other person, or in which the Trust is interested, shall be valid and no
Trust Manager or officer of the Trust shall have any liability as a result of
entering into any such contract, act or transaction, even though (a) one or more
of the Trust Managers, directly or indirectly is interested in or connected
with, or is a trustee, partner, director, shareholder, member, employee, officer
or agent of such other person, or (b) one or more of the Trust Managers,
individually or jointly with others, is a party to, or directly or indirectly is
interested in, or connected with, such contract, act or transaction, provided
that (i) such interest or connection is disclosed in reasonable detail or known
to the Trust Managers and thereafter the Trust Managers authorize or ratify such
contract, act or other transaction by affirmative vote of a majority of the
Trust Managers who are not interested in the transaction, or (ii) such interest
or connection is disclosed in reasonable detail or known to the shareholders,
and thereafter such contract, act or transaction is approved by shareholders
holding a majority of the shares then outstanding and entitled to vote thereon.
SECTION 4.13 PERSONS DEALING WITH TRUST MANAGERS OR OFFICERS. Any act
of the Trust Managers or officers of the Trust purporting to be done in their
capacity as such shall, as to any person dealing with such Trust Managers or
officers, conclusively be deemed to be within the purposes of the Trust and
within the powers of the Trust Managers or officers. No person dealing with the
Trust Managers or any of them or with the officers of the Trust or any of them,
shall be bound to see to the application of any funds or property passing into
their hands or control. The receipt of the Trust Managers or any of the officers
of the Trust of moneys or other consideration shall be binding upon the Trust.
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SECTION 4.14 RELIANCE. Trust Managers and officers of the Trust shall
not be liable for any claims or damages that may result from their acts in the
discharge of any duty imposed or power conferred upon them by the Trust, if, in
the exercise of ordinary care, they acted in good faith and in reliance upon the
written opinion of an attorney for the Trust. In discharging their duties, Trust
Managers and officers of the Trust, when acting in good faith and exercising
ordinary care, may rely upon financial statements of the Trust, stated in a
written report by an independent certified public accountant, to fairly present
the financial position of the Trust. The Trust Managers and officers of the
Trust may rely upon any instrument or other document reasonably believed by them
to be genuine.
SECTION 4.15 LIABILITY OF TRUST MANAGERS. No Trust Manager of the
Trust shall be liable to the Trust for any act, omission, loss, damage or
expense arising from the performance of his duty under the Trust, except to the
extent specifically required by statute, the Declaration of Trust or these
Bylaws.
ARTICLE V
COMMITTEES OF THE TRUST MANAGERS
SECTION 5.1 MEMBERSHIP AND AUTHORITIES. The Trust Managers, by
resolution adopted by a majority of the Trust Managers, may designate one (1) or
more Trust Managers to constitute such committees as the Trust Managers may
determine, including, but not limited to, a Compensation Committee and an Audit
Committee, each of which committees to the extent provided in such resolution
shall have and may exercise all of the authority of the Trust Managers in the
business and affairs of the Trust, except in those cases where the authority of
the Trust Managers is specifically denied to the committee or committees by the
Trust Managers, applicable law, the Declaration of Trust or these Bylaws. No
committee shall have the power to alter or to repeal any resolution adopted by
the Trust Managers. The designation of a committee and the delegation thereto of
authority shall not operate to relieve the Trust Managers, or any member
thereof, of any responsibility imposed upon each of them by law. The members of
each such committee shall serve at the pleasure of the Trust Managers. A
majority of the members of each committee shall be Independent Trust Managers;
provided, however, that if a committee shall consist of two (2) members, only
one (1) of such members shall be required to be an Independent Trust Manager.
SECTION 5.2 MINUTES AND RULES OF PROCEDURE. Each committee designated
by the Trust Managers shall keep regular minutes of its proceedings and report
the same to the Trust Managers when required. Subject to the provisions of these
Bylaws, the members of any committee may fix such committee's own rules of
procedure.
SECTION 5.3 VACANCIES. The Trust Managers shall have the power at any
time to fill vacancies in, to change the membership of, or to dissolve, any
committee.
SECTION 5.4 TELEPHONE MEETINGS. Members of any committee designated by
the Trust Managers may participate in or hold a meeting by use of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the grounds that the meeting is
not lawfully called or convened.
SECTION 5.5 ACTION WITHOUT MEETING. Any action required or permitted
to be taken at a meeting of any committee designated by the Trust Managers may
be taken without a meeting if a consent in writing, setting forth the action so
taken, is signed by all the members of the committee, and such consent shall
have the same force and effect as a unanimous vote at a meeting.
ARTICLE VI
OFFICERS
SECTION 6.1 NUMBER. The officers of the Trust shall include a
President and a Secretary. The Trust Managers may also elect a Chief Executive
Officer, one (1) or more Vice Presidents, a Treasurer, one (1) or more Assistant
Secretaries and one (1) or more Assistant Treasurers. One (1) person may hold
any two (2) or more of these offices.
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SECTION 6.2 ELECTION, TERM OF OFFICE AND QUALIFICATION. The Trust
Managers shall elect officers, none of whom need be a Trust Manager, except for
the Chief Executive Officer, if one shall be elected, at any time and from time
to time as they deem necessary. Each officer so elected shall hold office until
his successor shall have been duly elected and qualified or until his death,
resignation or removal in the manner hereinafter provided.
SECTION 6.3 SUBORDINATE OFFICERS. The Trust Managers may appoint such
other officers and agents as it shall deem necessary who shall hold their
offices for such terms, have such authority and perform such duties as the Trust
Managers may from time to time determine. The Trust Managers may delegate to any
committee or officer the power to appoint any such subordinate officer or agent.
No subordinate officer appointed by any committee or superior officer as
aforesaid shall be considered as an officer of the Trust, the officers of the
Trust being limited to the officers elected or appointed as such by the Trust
Managers.
SECTION 6.4 RESIGNATION. Any officer may resign at any time by giving
written notice thereof to the Trust Managers or to the President or Secretary of
the Trust. Any such resignation shall take effect at the time specified therein
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 6.5 REMOVAL. Any officer elected or appointed by the Trust
Managers may be removed by the Trust Managers at any time with or without cause
by majority vote of the entire Board of Trust Managers. Any other officer may be
removed at any time with or without cause by the Trust Managers or by any
committee or superior officer upon whom such power of removal may be conferred
by the Trust Managers. The removal of any officer shall be without prejudice to
the contract rights, if any, of the person so removed. Election or appointment
of an officer or agent shall not of itself create any contract rights.
SECTION 6.6 VACANCIES. A vacancy in any office shall be filled for the
unexpired portion of the term by the Trust Managers, but in case of a vacancy
occurring in an office filled by a committee or superior officer in accordance
with the provisions of Section 6.3, such vacancy may be filled by such committee
or superior officer.
SECTION 6.7 THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer,
if one shall be elected, shall be the chief executive officer of the Trust,
shall preside at all meetings of the shareholders and Trust Managers, shall be
an ex officio member of all standing committees, shall have general and active
management of the business of the Trust, shall have the general supervision and
direction of all other officers of the Trust with full power to see that their
duties are properly performed and shall see that all orders and resolutions of
the Trust Managers are carried into effect. He may sign, with any other proper
officer, certificates for shares of the Trust and any deeds, bonds, mortgages,
contracts and other documents which the Trust Managers have authorized to be
executed, except where required by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Trust Managers or these Bylaws, to some other officer or agent of the Trust.
In addition, the Chief Executive Officer shall perform whatever duties and shall
exercise all powers that are given to him by the Trust Managers.
SECTION 6.8 THE PRESIDENT. If no Chief Executive Officer shall be
elected, the President shall be the chief executive officer of the Trust and
shall have the powers and duties of the Chief Executive Officer as set forth in
Section 6.7. In the absence of the Chief Executive Officer, if one shall be
elected, the President shall preside at all meetings of the shareholders and
Trust Managers. He may sign, with any other proper officer, certificates for
shares of the Trust and any deeds, bonds, mortgages, contracts and other
documents which the Trust Managers have authorized to be executed, except where
required by law to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly delegated by the Trust Managers or
these Bylaws to some other officer or agent of the Trust. In addition, the
President shall perform whatever duties and shall exercise whatever powers given
to him by the Trust Managers or by the Chief Executive Officer, if one shall be
elected.
SECTION 6.9 THE VICE PRESIDENTS. The Vice Presidents shall perform
such duties as are given to them by these Bylaws and as may from time to time be
assigned to them by the Trust Managers, by the Chief Executive Officer, if one
shall be elected, or by the President, if a Chief Executive Officer is not
elected, and may sign, with any other proper officer, certificates for shares of
the Trust. At the request of the President, or in his absence or disability, the
Vice President designated by the President (or in the absence of such
designation, the Vice President
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who has served the longest term of office with the Trust) shall perform the
duties and exercise the powers of the President.
SECTION 6.10 THE SECRETARY. The Secretary, when available, shall
attend all meetings of the Trust Managers and all meetings of the shareholders
and record all votes and the minutes of all proceedings in a book to be kept for
that purpose and shall perform like duties for the Trust Manager committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the shareholders and of the Trust Managers as required by law or these
Bylaws, be custodian of the Trust records and have general charge of the share
books of the Trust and shall perform such other duties as may be prescribed by
the Trust Managers, by the Chief Executive Officer, if one shall be elected, or
by the President, if a Chief Executive Officer is not elected, under whose
supervision he shall be. The Secretary may sign, with any other proper officer,
certificates for shares of the Trust and shall keep in safe custody the seal of
the Trust, and, when authorized by the Trust Managers, affix the same to any
instrument requiring it and, when so affixed, it shall be attested by his
signature or by the signature of the Treasurer or an Assistant Secretary.
SECTION 6.11 ASSISTANT SECRETARIES. The Assistant Secretaries shall
perform such duties as are given to them by these Bylaws or as may from time to
time be assigned to them by the Trust Managers or by the Secretary. At the
request of the Secretary, or in his absence or disability, the Assistant
Secretary designated by the Secretary (or in the absence of such designation the
Assistant Secretary who has served the largest term of office with the Trust),
shall perform the duties and exercise the powers of the Secretary.
SECTION 6.12 THE TREASURER. The Treasurer shall have the custody and
be responsible for all Trust funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the Trust
and shall deposit all monies and other valuable effects in the name and to the
credit of the Trust in such depositories as may be designated by the Trust
Managers. The Treasurer shall disburse the funds of the Trust as may be ordered
by the Trust Managers, taking proper vouchers for such disbursements, and shall
render to the Chief Executive Officer, if one shall be elected, the President
and the Trust Managers, at the regular meetings of the Trust Managers, or
whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Trust. The Treasurer may sign, with any
other proper officer, certificates for shares of the Trust.
SECTION 6.13 ASSISTANT TREASURERS. The Assistant Treasurers shall
perform such duties as are given to them by these Bylaws or as may from time to
time be assigned to them by the Trust Managers or by the Treasurer. At the
request of the Treasurer, or in his absence or disability, the Assistant
Treasurer designated by the Treasurer (or in the absence of such designation,
the Assistant Treasurer who has served the longest term of office with the
Trust), shall perform the duties and exercise the powers of the Treasurer.
SECTION 6.14 TREASURER'S BOND. If required by the Trust Managers, the
Treasurer and any Assistant Treasurer shall give the Trust a bond in such sum
and with such surety or sureties as shall be satisfactory to the Trust Managers
for the faithful performance of the duties of his office and for the restoration
to the Trust, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Trust.
SECTION 6.15 SALARIES. The salary or other compensation of officers
shall be fixed from time to time by the Trust Managers. The Trust Managers may
delegate to any committee or officer the power to fix from time to time the
salary or other compensation of subordinate officers and agents appointed in
accordance with the provisions of Section 6.3.
SECTION 6.16 EXECUTION OF DOCUMENTS. Each officer of the Trust and any
one of them is authorized to execute on behalf of the Trust any document or
instrument of any nature whatsoever, provided that the execution by the Trust of
any such document or instrument shall have been previously authorized by such
action of the Trust Managers as may be required by statute, the Declaration of
Trust or these Bylaws.
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ARTICLE VII
TRUST SHARES
SECTION 7.1 SHARE CERTIFICATES. (a) The certificates representing
shares of beneficial interest of the Trust shall be in such form, not
inconsistent with statutory provisions and the Declaration of Trust, as shall be
approved by the Trust Managers. The certificates shall be signed by the Chief
Executive Officer, if one shall be elected, the President or a Vice President
and a Secretary or Assistant Secretary, or such other or additional officers as
may be prescribed from time to time by the Trust Managers. The signatures of
such officer or officers upon a certificate may be facsimiles if the certificate
is countersigned by a transfer agent or registered by a registrar, either of
which is other than the Trust itself or an employee of the Trust. In case any
officer who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer before such certificate is
issued, it may be issued with the same effect as if he were such officer at the
date of its issuance.
(b) In the event the Trust has, by its Declaration of Trust, limited
or denied the preemptive right of shareholders, there shall be set forth on the
face or back of the certificates, which the Trust shall issue to represent
beneficial interests such legends or statements, if any, as shall be required by
applicable law or the Declaration of Trust or as may be approved by the Trust
Managers.
(c) All certificates shall be consecutively numbered and the name of
the person owning the shares represented thereby, with the number of such shares
and the date of issue, shall be entered on the Trust's books.
(d) All certificates surrendered to the Trust shall be canceled and,
except as provided in Section 7.2 with respect to lost, destroyed or mutilated
certificates, no new certificate shall be issued until the former certificate
for the same number of shares has been surrendered and canceled.
SECTION 7.2 LOST CERTIFICATES, ETC. The Trust Managers may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Trust alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost or destroyed. In authorizing such issue of a
new certificate or certificates, the Trust Managers may, in their discretion and
as a condition precedent to the issue thereof, require the owner of such lost or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as the Trust Managers shall require and/or indemnify the
Trust as the Trust Managers may prescribe.
SECTION 7.3 TRANSFER OF SHARES. Subject to any restrictions upon
transfer, upon surrender to the Trust or the transfer agent of the Trust of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer and satisfaction of the Trust
that the requested transfer complies with the provisions of applicable state and
federal laws and regulations, the Declaration of Trust and any agreements to
which the Trust is a party, the Trust shall issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its books.
SECTION 7.4 OWNERSHIP OF SHARES. The Trust shall be entitled to treat
and recognize 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 or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Texas.
SECTION 7.5 CLOSING OF TRANSFER BOOKS. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or entitled to receive a distribution by the Trust
(other than a distribution involving a purchase or redemption by the Trust of
its own shares) or a share dividend, or in order to make a determination of
shareholders for any other proper purpose, the Trust Managers may provide that
the share transfer books shall be closed for a stated period but not to exceed,
in any case, sixty (60) days. If the share transfer books shall be 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 least ten (10) days
immediately preceding such meeting. In lieu of closing the share transfer books,
the Trust Managers may fix in advance a date as the record date for any such
determination of shareholders, such date in any case to be not more than sixty
(60) days and, in case of a meeting of shareholders, not less than ten (10) days
prior to the date on which the particular action
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requiring such determination of shareholders is to be taken, and the
determination of shareholders on such record date shall apply with respect to
the particular action requiring the same notwithstanding any transfer of shares
on the books of the Trust after such record date.
SECTION 7.6 DIVIDENDS. The Trust Managers may, from time to time,
declare, and the Trust may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by the Declaration of Trust
and by law, such dividends to be paid in cash or in property or in shares of
beneficial interest of the Trust, except no dividends shall be paid when the
Trust is insolvent or when the payment thereof would render the Trust insolvent.
When making a determination of whether to declare a dividend, the Trust Managers
shall make the determination consistent with their fiduciary duties as Trust
Managers.
SECTION 7.7 RESERVES. By resolution the Trust Managers may create such
reserve or reserves of the Trust as the Trust Managers from time to time, in
their absolute discretion, determine to be proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Trust, or for such other purpose as the Trust Managers shall
determine to be beneficial to the interest of the Trust. The Trust Managers may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1 GENERAL POLICIES. The Trust intends to make investments
that are consistent with the applicable requirements of the Internal Revenue
Code of 1986, as amended, and the Texas REIT Act, as amended, and related
regulations with respect to the composition of the Trust's investments and the
derivation of its income.
SECTION 8.2 LIMITED LIABILITY OF SHAREHOLDERS. A shareholder shall not
be personally or individually liable in any manner whatsoever for any debt, act,
omission or obligation incurred by the Trust or the Trust Managers. A
shareholder shall be under no obligation to the Trust or to its creditors with
respect to such shares other than the obligation to pay to the Trust the full
amount of the consideration for which such shares were issued or to be issued.
Upon the payment of such consideration, such shares shall be fully paid and
non-assessable by the Trust.
SECTION 8.3 WAIVER OF NOTICE. (a) Whenever, under the provisions of
applicable law or of the Declaration of Trust or of these Bylaws, any notice is
required to be given to any shareholder or Trust Manager, 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 equivalent to the giving of such
notice.
(b) Attendance of a Trust Manager at a meeting shall constitute a
waiver of notice of such meeting except where a Trust Manager attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the grounds that the meeting is not lawfully
called or convened.
SECTION 8.4 SEAL. If one be adopted, the Trust seal shall have
inscribed thereon the name of the Trust and shall be in such form as may be
approved by the Trust Managers. Said seal shall be kept in the custody of the
Secretary and may be used by causing it or a facsimile of it to be impressed or
affixed or in any manner reproduced.
SECTION 8.5 FISCAL YEAR. The fiscal year of the Trust shall be fixed
by resolution of the Trust Managers.
SECTION 8.6 CHECKS, NOTES, ETC. All checks or demands for money and
notes of the Trust shall be signed by such officer or officers or such other
person or persons as the Trust Managers may from time to time designate. The
Trust Managers may authorize any officer or officers or such other person or
persons to enter into any contract or 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.
SECTION 8.7 EXAMINATION OF BOOKS AND RECORDS. The Trust Managers shall
determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Trust
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(except such as may by statute be specifically opened to inspection) or any of
them shall be open to inspection by the shareholders, and the shareholders'
rights in this respect are and shall be restricted and limited accordingly.
SECTION 8.8 VOTING UPON SHARES HELD BY THE TRUST. Unless otherwise
ordered by the Trust Managers, the Chief Executive Officer, or if no Chief
Executive Officer shall be elected, the President, acting on behalf of the
Trust, shall have full power and authority to attend and to act and to vote at
any meeting of shareholders of any corporation or other entity in which the
Trust may hold shares and at any such meeting, shall possess and may exercise
any and all of the rights and powers incident to the ownership of such shares
which, as the owner thereof, the Trust might have possessed and exercised, if
present. The Trust Managers by resolution from time to time may confer like
powers upon any other person or persons.
SECTION 8.9 NUMBER, GENDER, ETC. WHENEVER the singular number is used
in these Bylaws and when required by the context, the same shall include the
plural, and the masculine gender shall include the feminine and neuter genders.
The term "person," as used herein and as the context requires shall mean and
include individuals, corporations, limited partnerships, general partnerships,
joint stock companies or associations, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts, or other entities
and governments and agencies and political subdivisions thereof.
SECTION 8.10 ANNUAL AND QUARTERLY REPORTS. The Trust shall furnish to
its shareholders annual reports containing audited financial statements with a
report thereon by its independent accountants. The Trust shall also furnish to
its shareholders quarterly reports for each of the first three quarters of each
fiscal year containing unaudited financial information.
SECTION 8.11 INDEPENDENT COMMITTEE. If the Trust receives an offer to
purchase all or substantially all of the assets of the Trust, or if the Trust
receives a proposal for a merger transaction in which the Trust will not be the
surviving entity, the Trust Managers shall create a committee consisting
entirely of Independent Trust Managers (as defined in the Declaration of Trust)
who shall, consistent with their fiduciary duties, review any such offer and
make a recommendation to all of the Trust Managers.
ARTICLE IX
AMENDMENTS
SECTION 9.1 AMENDMENT OF BYLAWS. Except as otherwise provided by
applicable law or the Declaration of Trust, the power to alter, amend or repeal
these Bylaws or to adopt new Bylaws shall be vested in the Trust Managers and
(to the extent not inconsistent with the Texas REIT Act and the Declaration of
Trust and specified in the notice of the meeting) the shareholders. Such action
to amend the Bylaws shall be taken (i) with respect to all Bylaw provisions, by
the affirmative vote of a majority of the Trust Managers , or (ii)(a) with
respect to Section 2.5, Section 3.3, Section 3.4, Section 3.6, Section 3.7 or
Article X of these Bylaws, by the affirmative vote of the holders of two-thirds
(2/3) of the Trust's outstanding shares, or (b) with respect to all other
Bylaws, by the affirmative vote of the holders of a majority of the Trust's
outstanding shares.
ARTICLE X
SUBJECT TO ALL LAWS
The provisions of these Bylaws shall be subject to all valid and
applicable laws, including, without limitation, the Texas REIT Act as now or
hereafter amended, and in the event that any of the provisions of these Bylaws
are found to be inconsistent with or contrary to any such valid laws, the latter
shall be deemed to control and these Bylaws shall be deemed modified
accordingly, and, as so modified, shall continue in full force and effect.
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