EXHIBIT 3.5
FORM OF
AMENDED AND RESTATED BYLAWS
OF
NNN APARTMENT REIT, INC.
ARTICLE I
OFFICES
Section 1.1 Principal Office. The principal office of the Company in the
State of Maryland shall be located at such place as the Board of Directors may
designate.
Section 1.2 Additional Offices. The Company may have additional offices,
including a principal executive office, at such places as the Board of Directors
may from time to time determine or the business of the Company may require.
ARTICLE II
STOCKHOLDERS
Section 2.1 Place of Meetings. All meetings of the stockholders shall be
held at the principal executive office of the Company or at such other place as
shall be set by the Board of Directors and stated in the notice of meeting.
Section 2.2 Annual Meetings. The annual meeting of the stockholders, for
the election of Directors and transaction of any business within the powers of
the Company, shall be held in May of each year, beginning with the year 2007, on
such date as determined by the Board of Directors.
Section 2.3 Special Meetings. A special meeting of the stockholders for any
purpose or purposes may be called at any time by the president, by a majority of
the Board of Directors, by a majority of the Independent Directors (as defined
in the Company's charter) or by the secretary upon the written request of
stockholders together holding at least 10% of the number of shares of the
Company at the time outstanding and entitled to vote with respect to the
business to be transacted at such meeting. At a special meeting no business
shall be transacted and no corporate action shall be taken other than that
stated in the notice of the meeting. In the event of a stockholders' meeting
requested by the stockholders meeting the requirements set forth in the first
sentence, the secretary of the Company shall, within ten days of his or her
receipt of the written request required above, notify, in the manner set forth
herein, each stockholder entitled to vote at a meeting of the stockholders.
Notwithstanding anything to the contrary herein, such meeting shall be held not
less than 15 days nor more than 60 days after the secretary's delivery of such
notice. Subject to the foregoing sentence, such meeting shall be held at the
time and place specified in the stockholder request; provided, however, that if
none is so specified, at such time and place convenient to the stockholders.
Unless requested by the stockholders entitled to cast a majority of all the
votes entitled to be cast at such meeting, a special meeting need not be called
to consider any matter which is substantially the same as a matter voted on at
any special meeting of the stockholders held during the preceding 12 months.
Section 2.4 Notice of Meetings. Written or printed notice stating the
place, day and hour of every meeting of the stockholders and, in the case of a
special meeting or as otherwise may be required by the Maryland General
Corporation Law (the "MGCL"), the purpose for which the meeting is called, shall
be provided not less than 10 nor more than 90 days before the date of a meeting
to each stockholder of record entitled to vote at such meeting and each other
stockholder entitled to notice of such meeting. Notice shall be deemed delivered
to a stockholder upon being (a) mailed to the stockholder at his address which
appears in the stock transfer books of the Company, in which case such notice
shall be deemed to be given when deposited in the United States mail with
postage prepaid thereon, (b) personally delivered to the stockholder; (c) left
at the stockholder's residence or usual place of business; or (d) transmitted to
the stockholder by electronic mail to any electronic mail address of the
stockholder or by any other means permitted by Maryland law.
Section 2.5 Scope of Notice. Any business of the Company may be transacted
at an annual meeting of stockholders without being specifically designated in
the notice required in Section 2.4, except such business as is required by
statute to be stated in such notice. No business shall be transacted at a
special meeting of stockholders except as specifically designated in the notice.
Section 2.6 Organization and Conduct. Every meeting of stockholders shall
be conducted by an individual appointed by the Board of Directors to be chairman
of the meeting or, in the absence of such appointment, by the Chairman of the
Board or, in the case of a vacancy in the office or absence of the Chairman of
the Board, by one of the following officers present at the meeting: the
president, the vice presidents in their order of rank and seniority, or, in the
absence of such officers, a chairman chosen by the stockholders by the vote of a
majority of the votes cast by stockholders present in person or by proxy. The
secretary, or, in the secretary's absence, an assistant secretary, or in the
absence of both the secretary and assistant secretaries,
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an individual appointed by the Board of Directors or, in the absence of such
appointment, an individual appointed by the chairman of the meeting shall act as
secretary. In the event that the secretary presides at a meeting of the
stockholders, an assistant secretary shall record the minutes of the meeting.
The order of business and all other matters of procedure at any meeting of
stockholders shall be determined by the chairman of the meeting. The chairman of
the meeting may prescribe such rules, regulations and procedures and take such
action as, in the discretion of such chairman, are appropriate for the proper
conduct of the meeting, including, without limitation, (a) restricting admission
to the time set for the commencement of the meeting; (b) limiting attendance at
the meeting to stockholders of record of the Company, their duly authorized
proxies and other such individuals as the chairman of the meeting may determine;
(c) limiting participation at the meeting on any matter to stockholders of
record of the Company entitled to vote on such matter, their duly authorized
proxies and other such individual as the chairman of the meeting may determine;
(d) limiting the time allotted to questions or comments by participants; (e)
determining when the polls should be opened and closed; (f) maintaining order
and security at the meeting; (g) removing any stockholder or any other
individuals who refuses to comply with meeting procedures, rules or guidelines
as set forth by the chairman of the meeting; and (h) concluding a meeting or
recessing or adjourning the meeting to a later date and time and place announced
at the meeting. Unless otherwise determined by the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with the
rules of parliamentary procedure.
Section 2.7 Quorum; Adjournment. Any number of stockholders together
holding at least a majority of the outstanding shares of equity stock entitled
to vote with respect to the business to be transacted, who shall be present in
person or represented by proxy at any meeting duly called, shall constitute a
quorum for the transaction of business except as otherwise provided by law, the
Company's charter or these Bylaws. If less than a quorum shall be in attendance
at the time for which a meeting shall have been called, the chairman of the
meeting shall have the power to adjourn the meeting from time to time to a date
not more than 120 days after the original record date without notice other than
by announcement at the meeting. At such adjourned meeting at which a quorum
shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
The stockholders present either in person or by proxy, at a meeting which
has been duly called and convened, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
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Section 2.8 Voting. The holders of a majority of the outstanding shares of
equity stock entitled to vote present in person or by proxy at an annual meeting
at which a quorum is present may, without the necessity for concurrence by the
Board of Directors, vote to elect a Director. Each share may be voted for as
many individuals as there are Directors to be elected and for whose election the
share is entitled to be voted. Except as otherwise required by law, the charter
or these Bylaws, a majority of the votes cast at a meeting of the stockholders
duly called and at which a quorum is present shall be sufficient to approve any
other matter which may properly come before the meeting. Unless otherwise
provided by law or the charter, each outstanding share, regardless of class,
shall be entitled to one vote on each matter submitted to a vote at a meeting of
the stockholders. Voting on any questions or in any election may be viva voce
unless the chairman of the meeting shall order that voting be by ballot.
Section 2.9 Proxies. A stockholder may cast the votes entitled to be cast
by the shares of stock owned of record by the stockholder in person or by proxy
executed by the stockholder or by the stockholder's duly authorized agent in any
manner permitted by law. Such proxy or evidence of authorization of such proxy
shall be filed with the secretary of the Company before or at the time of the
meeting. No proxy shall be valid after eleven months from the date of its
execution, unless otherwise provided in the proxy.
Section 2.10 Voting of Stock by Certain Holders. Stock of the Company
registered in the name of a corporation, partnership, trust or other entity, if
entitled to be voted, may be voted by the president or a vice president, a
general partner or trustee thereof, as the case may be, or a proxy appointed by
any of the foregoing individuals, unless some other person who has been
appointed to vote such stock pursuant to a bylaw or a resolution of the
governing body of such corporation or other entity or agreement of the partners
of a partnership presents a certified copy of such bylaw, resolution or
agreement, in which case such person may vote such stock. Any director or other
fiduciary may vote stock registered in his or her name as such fiduciary, either
in person or by proxy.
Shares of stock of the Company directly or indirectly owned by it shall not
be voted at any meeting and shall not be counted in determining the total number
of outstanding shares entitled to be voted at any given time, unless they are
held by it in a fiduciary capacity, in which case they may be voted and shall be
counted in determining the total number of outstanding shares at any given time.
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The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Company that any shares of stock
registered in the name of the stockholder are held for the account of a
specified person other than the stockholder. The resolution shall set forth the
class of stockholders who may make the certification, the purpose for which the
certification may be made, the form of certification and the information to be
contained in it; if the certification is with respect to a record date or
closing of the stock transfer books, the time after the record date or closing
of the stock transfer books within which the certification must be received by
the Company; and any other provisions with respect to the procedure which the
Board of Directors considers necessary or desirable. On receipt of such
certification, the person specified in the certification shall be regarded as,
for the purposes set forth in the certification, the stockholder of record of
the specified stock in place of the stockholder who makes the certification.
Section 2.11 Inspectors. The Board of Directors, in advance of any meeting,
may, but need not, appoint one or more individual inspectors or one or more
entities that designate individuals as inspectors to act at the meeting or any
adjournment thereof. If an inspector or inspectors are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors. In
case any person who may be appointed as an inspector fails to appear or act, the
vacancy may be filled by appointment made by the Board of Directors in advance
of the meeting or at the meeting by the chairman of the meeting. The inspectors,
if any, shall determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. Each such report shall be in writing and signed by
the inspector or by a majority of the inspectors if there is more than one
inspector acting at such meeting. If there is more than one inspector, the
report of a majority shall be the report of the inspectors. The report of the
inspector or inspectors on the number of shares represented at the meeting and
the results of the voting shall be prima facie evidence thereof.
Section 2.12 Nominations and Shareholder Business.
(a) Annual Meetings of Stockholders.
(1) Nominations of individuals for election to the Board of Directors
and the proposal of other business to be considered by the stockholders may be
made at an annual meeting of stockholders (A) pursuant to the Company's notice
of such meeting; (B) by or at the direction of the Board of Directors; or (C) by
any stockholder of the Company who (i) was a stockholder of record both at the
time of giving of notice by the stockholder as provided for in this Section
2.12(a) and at the time of the annual meeting in question; (ii) is entitled to
vote at such meeting; and (iii) has complied with this Section 2.12(a).
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(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to this paragraph (a)(2) or paragraph
(a)(1) of this Section 2.12, the stockholder must have given timely notice
thereof in writing to the secretary of the Company and such other business must
otherwise be a proper matter for action by the stockholders. To be timely, a
stockholder's notice shall set forth all information required under this Section
2.12 and shall be delivered to the secretary at the principal executive office
of the Company not earlier than the 150th day nor later than 5:00 p.m., Pacific
Time, on the 120th day prior to the first anniversary of the date of mailing of
the notice for the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced or delayed by more
than 30 days from the first anniversary of the date of the preceding year's
annual meeting, notice by the stockholder to be timely must be so delivered not
earlier than the 150th day prior to the date of such annual meeting and not
later than 5:00 p.m., Pacific Time, on the later of the 120th day prior to the
date of such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. In no event shall the
public announcement of a postponement or adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. Such stockholder's notice shall set forth (A) as to each individual whom
the stockholder proposes to nominate for election or re-election as a director
(i) the name, age, business address, and residence address of such individual;
(ii) the class, series and number of shares of stock of the Company that are
beneficially owned by such individual; (iii) the date such shares were acquired
and the investment intent of such acquisition; and (iv) all other information
relating to such individual that is required to be disclosed in solicitations of
proxies for election of directors in an election contest (even if an election
contest is not involved), or is otherwise required pursuant to Regulation 14A
(or any successor provision) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (including such individual'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 stockholder proposes to bring
before the meeting, (i) a brief description of such business; (ii) the reasons
for proposing such business at the meeting; and (iii) any material interest in
such business of such stockholder and any Stockholder Associated Person (as
defined below), individually or in the aggregate, including any anticipated
benefit to the stockholder and the Stockholder Associated Person therefrom; (C)
as to the stockholder giving the notice and any Stockholder Associated Person,
the class, series and number of all shares of stock of the Company which are
owned by such stockholder and by such Stockholder Associated Person, if any, and
the nominee holder for, and number of, shares owned beneficially but not of
record by such stockholder and by any such Stockholder Associated Person; (D) as
to the stockholder giving the notice and any Stockholder Associated Person
covered by clauses (B) or (C) of this paragraph (2) of this Section 2.12(a), the
name and address of such stockholder, as they appear on the Company's stock
ledger and current name and address, if different, and of such Stockholder
Associated Person; and (E) to the extent known by the stockholder giving the
notice, the name and address of any other stockholder supporting the nominee for
election or reelection as a director or the proposal of other business on the
date of such stockholder's notice.
(3) Notwithstanding anything in this subsection (a) of this Section
2.12 to the contrary, in the event that the Board of Directors increases or
decreases the maximum or minimum number of Directors in accordance with Article
III, Section 3.2 of these Bylaws and there is no public announcement of such
action at least 130 days prior to the first anniversary of
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the date of mailing of the notice for the preceding year's annual meeting, a
stockholder's notice required by this Section 2.12(a) shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the secretary at the principal executive
office of the Company no later than 5:00 p.m., Pacific Time, on the 10th day
following the day on which such public announcement is first made by the
Company.
(4) For purposes of this Section 2.12, "Stockholder Associated Person"
of any stockholder shall mean (i) any person controlling, directly or
indirectly, or acting in concert with, such stockholder, (ii) any beneficial
owner of shares of stock of the Company owned of record or beneficially by such
stockholder and (iii) any person controlling, controlled by or under common
control with such Stockholder Associated Person.
(b) Special Meetings of Stockholders. Only such business shall be conducted
at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Company's notice of said meeting. Nominations of
individuals for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected (i) pursuant to the
Company's notice of said meeting including the notice contemplated by Section
1.4; (ii) by or at the direction of the Board of Directors; or (iii) provided
the Board of Directors has determined that directors shall be elected at such
special meeting, by any stockholder of the Company who (A) is a stockholder of
record both at the time of giving of notice provided for in this Section 2.12(b)
and at the time of the special meeting; (B) is entitled to vote at the meeting;
and (C) complied with the notice procedures set forth in this Section 2.12(b).
In the event the Company calls a special meeting of stockholders for the purpose
of electing one or more individuals to the Board of Directors, any such
stockholder may nominate an individual or individuals (as the case may be) for
election as a director as specified in the Company's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Section 2.12 shall be
delivered to the secretary at the principal executive office of the Company not
earlier than the 150th day prior to such special meeting and not later than 5:00
p.m., Pacific Time, on the later of the 120th day prior to such special meeting
or the tenth day following the day on which public announcement is first made of
the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of a postponement or adjournment of a special meeting commence a
new time period for the giving of a stockholder's notice as described above.
(c) General.
(1) Upon written request by the secretary or the Board of Directors or
any committee thereof, any stockholder proposing a nominee for election as a
director or any proposal for other business at a meeting of stockholders shall
provide, within five Business Days of delivery of such request (or such other
period as may be specified in such request), written verification, satisfactory,
in the discretion of the Board of Directors or any committee thereof or any
authorized officer of the Company, to demonstrate the accuracy of any
information submitted by the stockholder pursuant to this Section 2.12. If a
stockholder fails to provide such written verification within such period, the
information as to which written verification was requested may be deemed not to
have been provided in accordance with this Section 2.12.
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(2) Only such individuals who are nominated in accordance with this
Section 2.12 shall be eligible for election by stockholders as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with this Section 2.12. The
chairman of the meeting shall have the power to determine whether a nomination
or any other business proposed to be brought before the meeting was made or
proposed, as the case may be, in accordance with this Section 2.12.
(3) For purposes of this Section 2.12, (i) the "date of mailing of the
notice" shall mean the date of the proxy statement for the solicitation of
proxies for election of directors and (ii) "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press, Business Wire, PR Newswire or comparable news service or in a document
publicly filed by the Company with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 2.12, a
stockholder shall also comply with all applicable requirements of state law and
the Exchange Act and the rules and regulations promulgated thereunder with
respect to the matters set forth in this Section 2.12. Nothing in this Section
2.12 shall be deemed to affect any right of a stockholder to request inclusion
of a proposal in, nor the right of the Company to omit a proposal from, the
Company's proxy statement pursuant to Rule 14a-8 (or any successor provision)
under the Exchange Act.
Section 2.13 Control Share Acquisition Act. Notwithstanding any other
provision of the charter or these bylaws, Title 3, Subtitle 7 of the MGCL (or
any successor statute) shall not apply to any acquisition by any person of
shares of capital stock of the Company. This section may be repealed, in whole
or in part, at any time, whether before or after an acquisition of control
shares and, upon such repeal, may, to the extent provided by any successor
bylaw, apply to any prior or subsequent control share acquisition.
ARTICLE III
DIRECTORS
Section 3.1 General Powers. The business and affairs of the Company shall
be managed under the direction of the Board of Directors.
Section 3.2 Number and Tenure of Directors. At any regular meeting or at
any special meeting called for that purpose, a majority of the members then
serving on the Board of Directors may establish, increase or decrease the number
of Directors, provided that, except as otherwise provided in the charter, the
number thereof shall never be less than the minimum number required by the MGCL
or the charter (whichever is greater), nor more than 15, and further provided
that, except as may be provided in the terms of any preferred stock issued by
the Company, the tenure of office of a Director shall not be affected by any
decrease in the number of Directors.
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Section 3.3 Vacancies. If for any reason any or all the Directors cease to
be Directors, such event shall not terminate the Company or affect these Bylaws
or the powers of the remaining Directors hereunder (even if fewer than three
directors remain). Except as may be provided by the Board of Directors in
setting the terms of any class or series of preferred stock, any vacancy on the
Board of Directors may be filled only by a majority of the remaining Directors,
even if the remaining Directors do not constitute a quorum. Any Director elected
to fill a vacancy shall serve for the remainder of the full term of the
directorship in which the vacancy occurred and until a successor is elected and
qualifies.
Section 3.4 Quorum. A majority of the number of Directors then serving
shall constitute a quorum for the transaction of business, provided that if less
than a majority of such Directors are present at said meeting, a majority of the
Directors present may adjourn the meeting from time to time without further
notice, and provided further that, if pursuant to applicable law, the charter or
these bylaws, the vote of a majority of a particular group of Directors is
required for action, a quorum must also include a majority of such group. Less
than a quorum may adjourn any meeting. The Directors present at a meeting which
has been duly called and convened may continue to transact business until
adjournment, notwithstanding the withdrawal of enough Directors to leave less
than a quorum.
Section 3.5 Voting. The act of a majority of Directors present at a meeting
at which a quorum is present shall be the act of the Board of Directors, unless
the concurrence of a greater proportion is required for such action by
applicable statute or the charter; provided, however, that any action pertaining
to any transaction in which the Company is purchasing, selling, leasing or
mortgaging any real estate asset, making a joint venture investment or engaging
in any other transaction in which an advisor, director or officer of the
Company, any affiliated lessee or affiliated contract manager of any property of
the Company or any affiliate of the foregoing has any direct or indirect
interest other than as a result of their status as a director, officer or
stockholder of the Company shall be approved by the affirmative vote of a
majority of the Independent Directors, even if the Independent Directors
constitute less than a quorum. If enough Directors have withdrawn from a meeting
to leave less than a quorum but the meeting is not adjourned, the action of the
majority of that number of Directors necessary to constitute a quorum at such
meeting shall be the action of the Board of Directors, unless the concurrence of
a greater proportion is required for such action by the MGCL, the charter or
these Bylaws.
Section 3.6 Annual and Regular Meetings of Directors. An annual meeting of
the Board of Directors shall be held as soon as practicable after the
adjournment of the annual meeting of stockholders at the same place as the
annual meeting of stockholders, no notice other than this Bylaw being necessary.
In the event such meeting is not so held, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors. The Board of Directors may provide,
by resolution, the time and place for the holding of regular meetings of the
Board of Directors without other notice than such resolution.
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Section 3.7 Special Meetings of Directors. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board, the
president or by a majority of the Directors then in office. The person or
persons authorized to call special meetings of the Board of Directors may fix
any place as the place for holding any special meeting of the Board of Directors
called by them. The Board of Directors may provide, by resolution, the time and
place for the holding of special meetings of the Board of Directors without
other notice than such resolution.
Section 3.8 Notice. Notice of any special meeting of the Board of Directors
shall be delivered personally or by telephone, electronic mail, facsimile
transmission, United States mail or courier to each Director at his or her
business or residence address. Notice by personal delivery, telephone,
electronic mail or facsimile transmission shall be given at least 24 hours prior
to the meeting. Notice by United States mail shall be given at least three days
prior to the meeting. Notice by courier shall be given at least two days prior
to the meeting. Telephone notice shall be deemed to be given when the Director
or his or her agent is personally given such notice in a telephone call to which
the Director or his or her agent is a party. Electronic mail notice shall be
deemed to be given upon transmission of the message to the electronic mail
address given to the Company by the Director. Facsimile transmission notice
shall be deemed to be given upon completion of the transmission of the message
to the number given to the Company by the Director and receipt of a completed
answer-back indicating receipt. Notice by United States mail shall be deemed to
be given when deposited in the United States mail properly addressed, with
postage thereon prepaid. Notice by courier shall be deemed to be given when
deposited with or delivered to a courier properly addressed. Neither the
business to be transacted at, nor the purpose of, any annual, regular or special
meeting of the Board of Directors need be stated in the notice, unless
specifically required by statute or these Bylaws.
Section 3.9 Organization. At each meeting of the Board of Directors, the
Chairman of the Board or, in the absence of the Chairman, the Vice Chairman of
the Board, if any, shall act as chairman of the meeting. In the absence of both
the Chairman and Vice Chairman of the Board, the president or in the absence of
the president, a Director chosen by a majority of the Directors present, shall
act as chairman of the meeting. The secretary or, in his or her absence, an
assistant secretary of the Company, or in the absence of the secretary and all
assistant secretaries, an individual appointed by the Chairman, shall act as
secretary of the meeting.
Section 3.10 Consent by Directors Without a Meeting. Any action required or
permitted by the MGCL to be taken at a Board of Directors meeting may be taken
without a meeting if a consent in writing or by electronic transmission to such
action is given by each Director and is filed with the minutes of proceedings of
the Board of Directors.
Action taken under this Section 3.10 is effective when the last Director
gives the consent unless the consent specifies a different effective date, in
which event the action taken is effective as of the date specified therein,
provided the consent states the date given by each Director.
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Section 3.11 Telephone Meetings. Directors may participate in a meeting of
the Board by means of a conference telephone or other communications equipment
if all persons participating in the meeting can hear each other at the same
time. Participation in a meeting by these means shall constitute presence in
person at the meeting.
Section 3.12 Compensation. Directors shall not receive any stated salary
for their service as Directors but, by resolution of the Board of Directors, may
receive compensation per year and/or per meeting and/or per visit to real
property or other facilities owned or leased by the Company and for any service
or activity they performed or engaged in as Directors. Directors may be
reimbursed for expenses of attendance, if any, at each annual, regular or
special meeting of the Board of Directors or of any committee thereof and for
their expenses, if any, in connection with each property visit and any other
service or activity they performed or engaged in as Directors; but nothing
herein contained shall be construed to preclude any Directors from serving the
Company in any other capacity and receiving compensation therefor.
Section 3.13 Loss of Deposits. No Director shall be liable for any loss
which may occur by reason of the failure of the bank, trust company, savings and
loan association, or other institution with whom moneys or stock have been
deposited.
Section 3.14 Surety Bonds. Unless required by law, no Director shall be
obligated to give any bond or surety or other security for the performance of
any of his duties.
Section 3.15 Reliance. Each Director, officer, employee and agent of the
Company shall, in the performance of his duties with respect to the Company, be
fully justified and protected with regard to any act or failure to act in
reliance in good faith upon the books of account or other records of the
Company, upon an opinion of counsel or upon reports made to the Company by any
of its officers or employees or by the adviser, accountants, appraisers or other
experts or consultants selected by the Board of Directors or officers of the
Company, regardless of whether such counsel or expert may also be a Director.
Section 3.16 Certain Rights of Directors, Officers, Employees and Agents.
The Directors shall have no responsibility to devote their full time to the
affairs of the Company. Any Director, officer, employee or agent of the Company,
in his personal capacity or in a capacity as an affiliate, employee or agent of
any other person, or otherwise, may have business interests and engage in
business activities similar to, in addition to, or in competition with those of
or relating to the Company, subject to the provisions of the charter.
ARTICLE IV
COMMITTEES
Section 4.1. Number, Tenure and Qualifications. The Board of Directors may
appoint from among its members an Executive Committee, an Audit Committee, a
Compensation Committee and other committees composed of at least one director.
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Section 4.2. Composition. Except as provided in the charter, such
committees shall serve at the pleasure of the Board of Directors. The members of
the Audit Committee shall at all times consist solely of Independent Directors,
and the majority of the members of all committees shall be Independent
Directors.
Section 4.3. Powers. The Board of Directors may delegate to committees
appointed under Section 4.1 of this Article any of the powers of the Board of
Directors, except as prohibited by law.
Section 4.4. Meetings. Notice of committee meetings shall be given in the
same manner as notice for special meetings of the Board of Directors. A majority
of the members of the committee shall constitute a quorum for the transaction of
business at any meeting of the committee. The act of a majority of the committee
members present at a meeting shall be the act of such committee. The Board of
Directors may designate a chairman of any committee, and such chairman or, in
the absence of a chairman, any two members of any committee (if there are at
least two members of the committee) may fix the time and place of its meeting
unless the Board of Directors shall otherwise provide. In the absence of any
member of any such committee, the members thereof present at any meeting,
whether or not they constitute a quorum, may appoint another Director to act in
the place of such absent member. Each committee shall keep minutes of its
proceedings.
Section 4.5. Telephone Meetings. Members of a committee of the Board of
Directors may participate in a meeting by means of a conference telephone or
other communications equipment if all persons participating in the meeting can
hear each other at the same time. Participation in a meeting by these means
shall constitute presence in person at the meeting.
Section 4.6. Consent by Committees Without a Meeting. Any action required
or permitted to be taken at any meeting of a committee of the Board of Directors
may be taken without a meeting, if a consent in writing or by electronic
transmission to such action is given by each member of the committee and filed
with the minutes of proceedings of such committee.
Section 4.7. Vacancies. Subject to the provisions hereof, and the charter,
the Board of Directors shall have the power at any time to change the membership
of any committee, to fill all vacancies, to designate alternate members to
replace any absent or disqualified member or to dissolve any such committee.
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ARTICLE V
OFFICERS
Section 5.1 Election of Officers; Terms. The officers of the Company shall
consist of a president, a secretary and a treasurer and may include a Chairman
of the Board, a Vice Chairman of the Board, a chief executive officer, a chief
operating officer, a chief financial officer, one or more Vice Presidents (whose
seniority and titles, including Executive Vice Presidents and Senior Vice
Presidents, may be specified by the Board of Directors), and assistant and
subordinate officers as may from time to time be elected by the Board of
Directors. All officers shall hold office until the next annual meeting of the
Board of Directors and until their successors are elected and qualify or until
their death or their resignation or removal in the manner hereinafter provided.
Any two or more offices except president and vice president may be held by the
same individual. Election of an officer or agent shall not of itself create
contract rights between the Company and such officer or agent.
Section 5.2 Removal of Officers; Vacancies. Any officer or agent of the
Company may be removed, with or without cause, by the Board of Directors if in
its judgment the best interests of the Company would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Any officer of the Company may resign at any time by giving written
notice of his resignation to the Board of Directors, the chairman of the board,
the president or the secretary. Any resignation shall take effect immediately
upon its receipt or at such later time specified in the notice of resignation.
The acceptance of a resignation shall not be necessary to make it effective
unless otherwise stated in the resignation. Such resignation shall be without
prejudice to the contract rights, if any, of the Company. A vacancy in any
office may be filled by the Board of Directors for the balance of the term.
Section 5.3 Chief Executive Officer. The Board of Directors may designate a
chief executive officer. In the absence of such designation, the president shall
be the chief executive officer of the Company. The chief executive officer shall
have general responsibility for implementation of the policies of the Company,
as determined by the Board of Directors, and for the management of the business
and affairs of the Company. He may execute any deed, mortgage, bond, contract or
other instrument, except in cases where the execution thereof shall be expressly
delegated by the Board of Directors or by these Bylaws to some other officer or
agent of the Company or shall be required by law to be otherwise executed; and
in general shall perform all duties incident to the office of chief executive
officer and such other duties as may be prescribed by the Board of Directors
from time to time.
Section 5.4 Chief Operating Officer. The Board of Directors may designate a
chief operating officer. The chief operating officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
Section 5.5 Chief Financial Officer. The Board of Directors may designate a
chief financial officer. The chief financial officer shall have the
responsibilities and duties as set forth by the Board of Directors or the chief
executive officer.
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Section 5.6 Chairman of the Board. The Board of Directors shall designate a
Chairman of the Board. The Chairman of the Board shall preside over the meetings
of the Board of Directors and of the stockholders at which he shall be present.
The Chairman of the Board shall perform such other duties as may be assigned to
him by the Board of Directors.
Section 5.7 President. In the absence of a chief executive officer, the
president shall in general supervise and control all of the business and affairs
of the Company. In the absence of a designation of a chief operating officer by
the Board of Directors, the president shall be the chief operating officer. He
may execute any deed, mortgage, bond, contract or other instrument, except in
cases where the execution thereof shall be expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the Company or
shall be required by law to be otherwise executed; and in general shall perform
all duties incident to the office of president and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 5.8 Vice Presidents. In the absence of the president or in the
event of a vacancy in such office, the vice president (or in the event there be
more than one vice president, the vice presidents in the order designated at the
time of their election or, in the absence of any designation, then in the order
of their election) shall perform the duties of the president and when so acting
shall have all the powers of and be subject to all the restrictions upon the
president; and shall perform such other duties as from time to time may be
assigned to him by the president or by the Board of Directors. The Board of
Directors may designate one or more vice presidents as executive vice president
or as vice president for particular areas of responsibility.
Section 5.9 Secretary. The secretary shall (a) keep the minutes of the
proceedings of the stockholders, the Board of Directors and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these Bylaws or
as required by law; (c) be custodian of the corporate records and of the seal of
the Company; (d) keep a register of the post office address of each stockholder
which shall be furnished to the secretary by such stockholder; (e) have general
charge of the stock transfer books of the Company; and (f) in general perform
such other duties as from time to time may be assigned to him by the chief
executive officer, the president or by the Board of Directors.
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Section 5.10 Treasurer. The treasurer shall have the custody of the funds
and securities of the Company and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Company and shall deposit
all moneys and other valuable effects in the name and to the credit of the
Company in such depositories as may be designated by the Board of Directors. In
the absence of a designation of a chief financial officer by the Board of
Directors, the treasurer shall be the chief financial officer of the Company.
The treasurer shall disburse the funds of the Company as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall
render to the president and Board of Directors, at the regular meetings of the
Board of Directors or whenever it may so require, an account of all his
transactions as treasurer and of the financial condition of the Company. If
required by the Board of Directors, the treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors for the faithful performance of the duties of his office and
for the restoration to the Company, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, moneys and
other property of whatever kind in his possession or under his control belonging
to the Company.
Section 5.11 Assistant Secretaries and Assistant Treasurers. The assistant
secretaries and assistant treasurers, in general, shall perform such duties as
shall be assigned to them by the secretary or treasurer, respectively, or by the
president or the Board of Directors. The assistant treasurers shall, if required
by the Board of Directors, give bonds for the faithful performance of their
duties in such sums and with such surety or sureties as shall be satisfactory to
the Board of Directors.
Section 5.12 Salaries. The salaries and other compensation of the officers
shall be fixed from time to time by the Board of Directors and no officer shall
be prevented from receiving such salary or other compensation by reason of the
fact that he is also a Director.
ARTICLE VI
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 6.1 Contracts. The Board of Directors, the Executive Committee or
another committee of the Board of Directors within the scope of its delegated
authority may authorize any officer or agent to enter into any contract or to
execute and deliver any instrument in the name of and on behalf of the Company
and such authority may be general or confined to specific instances. Any
agreement, deed, mortgage, lease or other document shall be valid and binding
upon the Company when duly authorized or ratified by action of the Board of
Directors or the Executive Committee or such other committee and executed by an
authorized person.
Section 6.2 Checks and Drafts. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the Company shall be signed by such officer or agent of the Company in such
manner as shall from time to time be determined by the Board of Directors.
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Section 6.3 Deposits. All funds of the Company not otherwise employed 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 designate.
ARTICLE VII
EQUITY STOCK
Section 7.1 Certificates. If the Board of Directors authorizes the issuance
of certificates, each certificate shall be signed by the Chairman or Vice
Chairman of the Board, the president, the chief executive officer, the chief
operating officer, the chief financial officer or a vice president and
countersigned by the secretary or an assistant secretary or the treasurer or an
assistant treasurer and may be sealed with the seal, if any, of the Company. The
signatures may be either manual or facsimile. Certificates shall be
consecutively numbered; and if the Company shall, from time to time, issue
several classes of stock, each class may have its own number series. A
certificate is valid and may be issued whether or not an officer who signed it
is still an officer when it is issued. Each certificate representing shares
which are preferred or limited as to their dividends, which are restricted as to
their transferability or voting powers or which are limited as to their
allocable portion of the assets upon liquidation or which are redeemable at the
option of the Company, shall have a statement of such restriction, limitation,
preference or redemption provision, or a summary thereof, plainly stated on the
certificate. If the Company has authority to issue stock of more than one class,
the certificate shall contain on the face or back a full statement or summary of
the designations and any preferences, conversion and other rights, voting
powers, restrictions, limitations as to dividends and other distributions,
qualifications and terms and conditions of redemption of each class of stock
and, if the Company is authorized to issue any preferred or special class in
series, the differences in the relative rights and preferences between the
shares of each series to the extent they have been set and the authority of the
Board of Directors to set the relative rights and preferences of subsequent
series. In lieu of such statement or summary, the certificate may state that the
Company will furnish a full statement of such information to any stockholder
upon request and without charge. If any class of stock is restricted by the
Company as to transferability, the certificate shall contain a full statement of
the restriction or state that the Company will furnish information about the
restrictions to the stockholder on request and without charge. Notwithstanding
anything herein to the contrary, nothing in this Article VII shall be
interpreted to limit the authority of the Board of Directors to issue some or
all of the shares of any or all of its classes or series without certificates.
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Section 7.2 Lost, Destroyed, and Mutilated Certificates. Any officer
designated by the Board of Directors may direct a new certificate to be issued
in place of any certificate previously issued by the Company alleged to have
been lost, stolen or destroyed upon the making of an affidavit of that fact by
the person claiming the certificate to be lost, stolen or destroyed. When
authorizing the issuance of a new certificate, an officer designated by the
Board of Directors may, in his or her discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate or the owner's legal representative to advertise the same in such
manner as he shall require and/or to give bond, with sufficient surety, to the
Company to indemnify it against any loss or claim which may arise as a result of
the issuance of a new certificate.
Section 7.3 Transfer of Shares. Upon surrender to the Company or the
transfer agent of the Company of a stock certificate duly endorsed or
accompanied by proper evidence of succession, assignment 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.
The Corporation shall be entitled to treat the holder of record of any
share of stock as the holder in fact thereof and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such share or
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Maryland.
Notwithstanding the foregoing, transfers of shares of any class of stock
will be subject in all respects to the charter of the Company and all of the
terms and conditions contained therein.
Section 7.4 Closing of Transfer Books or Fixing of Record Date. The Board
of Directors may (i) set, in advance, a record date for the purpose of
determining stockholders entitled to notice of or to vote at any meeting of
stockholders or determining stockholders entitled to receive payment of any
dividend or the allotment of any other rights, or in order to make a
determination of stockholders for any other proper purpose (such record date, in
any case, may not be prior to the close of business on the day the record date
is fixed and shall be not more than 90 days before the date on which the meeting
or particular action requiring such determination of stockholders of record is
to be held or taken); or (ii) in lieu of fixing a record date, direct that the
stock transfer books be closed for a period not greater than 20 days. In the
case of a meeting of the stockholders, the record date or the date set for the
closing of the stock transfer books shall be at least ten days before the date
of such meeting.
If no record date is fixed and stock transfer books are not closed for the
determination of stockholders, (i) the record date for the determination of
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be the later of (a) the close of business on the day on which the notice of
meeting is mailed or (b) the 30th day before the meeting; and (ii) the record
date for the determination of stockholders entitled to receive payment of a
dividend or an allotment of any other rights shall be the close of business on
the day on which the resolution of the Board of Directors authorizing the
dividend or allotment of rights is adopted.
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When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section 7.4, such determination
shall apply to any adjournment thereof, except when (i) the determination has
been made through the closing of the transfer books and the stated period of
closing has expired or (ii) the meeting is adjourned to a date more than 120
days after the record date fixed for the original meeting, in either of which
case a new record date shall be determined as set forth herein.
Section 7.5 Stock Ledger. The Corporation shall maintain at its principal
office or at the office of its counsel, accountants or transfer agent, an
original or duplicate share ledger containing the name and address of each
stockholder and the number of shares of each class held by such stockholder.
Section 7.6 Fractional Stock; Issuance of Units. The Board of Directors may
issue fractional stock or provide for the issuance of scrip, all on such terms
and under such conditions as they may determine. Notwithstanding any other
provision of the charter or these Bylaws, the Board of Directors may issue units
consisting of different securities of the Company. Any security issued in a unit
shall have the same characteristics as any identical securities issued by the
Company, except that the Board of Directors may provide that for a specified
period securities of the Company issued in such unit may be transferred on the
books of the Company only in such unit.
ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to fix the
fiscal year of the Company by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 9.1 Authorization. Dividends and other distributions upon the stock
of the Company may be authorized by the Board of Directors, subject to the
provisions of law and the charter of the Company. Dividends and other
distributions may be paid in cash, property or stock of the Company, subject to
the provisions of law and the charter.
Section 9.2 Contingencies. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Company available
for dividends or other distributions such sum or sums as the Board of Directors
may from time to time, in its absolute discretion, think proper as a reserve
fund for contingencies, for equalizing dividends or other distributions, for
repairing or maintaining any property of the Company or for such other purpose
as the Board of Directors shall determine to be in the best interest of the
Company, and the Board of Directors may modify or abolish any such reserve.
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ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter, the Board of Directors may from
time to time adopt, amend, revise or terminate any policy or policies with
respect to investments by the Company as it shall deem appropriate in its sole
discretion.
ARTICLE XI
SEAL
The Board of Directors may authorize the adoption of a seal by the Company.
The seal shall contain the name of the Company and the year of its incorporation
and the words "Incorporated Maryland." The Board of Directors may authorize one
or more duplicate seals and provide for the custody thereof. Whenever the
Company is permitted or required to affix its seal to a document, it shall be
sufficient to meet the requirements of any law, rule or regulation relating to a
seal to place "[SEAL]" adjacent to the signature of the person authorized to
execute the document on behalf of the Company.
ARTICLE XII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter of the
Company or these Bylaws or pursuant to applicable law, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at nor the purpose of any
meeting need be set forth in the waiver of notice, unless specifically required
by statute. The attendance of any person at any meeting shall constitute a
waiver of notice of such meeting, except where such person attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE XIII
AMENDMENT OF BYLAWS
The Board of Directors shall have the exclusive power to adopt, alter or
repeal any provision of these Bylaws and to make new Bylaws.
Dated: ________________, 2006
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