EXHIBIT 99.1
COLE CREDIT PROPERTY TRUST II, INC.
AMENDED AND RESTATED
BYLAWS
ARTICLE I
OFFICES
Section 1. PRINCIPAL OFFICE. The principal office of Cole Credit
Property Trust II, Inc. (the "Corporation") in the State of Maryland shall be
located at such place as the Board of Directors may designate from time to time.
Section 2. ADDITIONAL OFFICES. The Corporation 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 Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All meetings of stockholders shall be held at the
principal executive office of the Corporation or at such other place as shall be
set by the Board of Directors and stated in the notice of the meeting.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders for
the election of directors and the transaction of any business within the powers
of the Corporation shall be held on a date and at the time set by the Board of
Directors during the month of May in each year; provided, however, such meeting
shall not be held less than 30 days after delivery of the annual report to
stockholders. The purpose of each annual meeting of the stockholders shall be to
elect directors of the Corporation and to transact such other business as may
properly come before the meeting.
Section 3. SPECIAL MEETINGS. The chief executive officer, a majority
of the Board of Directors or a majority of the Independent Directors as defined
in the Corporation's charter (the "Charter"), may call special meetings of the
stockholders. Special meetings of stockholders shall also be called by the
secretary of the Corporation upon the written request of the holders of shares
entitled to cast not less than ten percent (10%) of all the votes entitled to be
cast at such meeting. Such request shall state the purpose of such meeting and
the matters proposed to be acted on at such meeting. The secretary shall, within
ten (10) days of his or her receipt of such written request, provide written
notice, either in person or by mail, to all stockholders of the Corporation of a
meeting and the purpose of such meeting, to be held on a date not less than
fifteen nor more than sixty days after the distribution of such notice, at a
time and place specified in the request, or if none is specified, at a time and
place convenient to the stockholders.
Section 4. NOTICE. Except as provided in Section 3 of this Article
II, not less than ten nor more than 90 days before each meeting of stockholders,
the secretary shall give to each stockholder entitled to vote at such meeting
and to each stockholder not entitled to vote who is entitled to notice of the
meeting written or printed notice stating the time and place of the meeting and,
in the case of a special meeting or as otherwise may be required by the Maryland
General Corporation Law (the "MGCL"), the purpose for which the meeting is
called. Notice shall be deemed delivered to a stockholder upon (i) presenting it
to such stockholder personally, (ii) leaving it at the stockholder's residence
or usual place of business, (iii) mailing it to the stockholder, (iv)
transmitting it to the stockholder by electronic mail to any electronic mail
address of the stockholder or by any other electronic means, or (v) by any other
means permitted by Maryland law. If mailed, such notice shall be deemed to be
given when deposited in the United States mail addressed to the stockholder at
the stockholder's address as it appears on the records of the Corporation, with
postage thereon prepaid.
Subject to Section 12(a) of this Article II, any business of the
Corporation may be transacted at an annual meeting of stockholders without being
specifically designated in the notice, except such business as is required by
the MGCL 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 5. 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 vice chairman of the board, if there be one, 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, a person appointed by the Board of
Directors or, in the absence of such appointment, a person appointed by the
chairman of the meeting shall act as secretary. In the event that the secretary
presides at a meeting of the stockholders, an assistant secretary, or in the
absence of assistant secretaries, an individual appointed by the Board of
Directors or the chairman of the meeting, 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 Corporation, 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 Corporation entitled to vote on such matter,
their duly authorized proxies and other such individuals 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 individual who refuses to comply with meeting procedures, rules or
guidelines as set forth
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by the chairman of the meeting; and (h) concluding a meeting or recessing or
adjourning the meeting to a later date and time and at a 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 6. QUORUM. At any meeting of stockholders, the presence in
person or by proxy of stockholders entitled to cast a majority of all the votes
entitled to be cast at such meeting on any matter shall constitute a quorum; but
this section shall not affect any requirement under any statute, the charter of
the Corporation, or these Bylaws for the vote necessary for the adoption of any
measure. If, however, such quorum shall not be present at any meeting of the
stockholders, 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 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.
Section 7. VOTING. A majority of all the stockholders present in
person or by proxy at a meeting of stockholders duly called and 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. A majority of the votes cast at a meeting of
stockholders duly called and at which a quorum is present shall be sufficient to
approve any other matter which may properly come before a meeting duly called
and at which a quorum is present, unless more than a majority of the votes cast
is required by the MGCL, the charter of the Corporation or these Bylaws.
Unless otherwise provided by statute or by 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 stockholders.
Section 8. 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 Corporation before or at the
meeting. No proxy shall be valid more than eleven months after its date unless
otherwise provided in the proxy.
Section 9. VOTING OF STOCK BY CERTAIN HOLDERS. Stock of the
Corporation 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
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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 Corporation directly or indirectly owned by it
shall not be voted at any meeting and shall not be counted in determining the
total number of outstanding shares entitled to be voted at any given time,
unless they are held by it in a fiduciary capacity, in which case they may be
voted and shall be counted in determining the total number of outstanding shares
at any given time.
The Board of Directors may adopt by resolution a procedure by which a
stockholder may certify in writing to the Corporation 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 Corporation; 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 10. INSPECTORS. The Board of Directors or the chairman of the
meeting, 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 him or her or by a majority of them if
there is more than one inspector acting at such meeting. If there is more than
one inspector, the report of a majority shall be the report of the inspectors.
The report of the inspector or inspectors on the number of shares represented at
the meeting and the results of the voting shall be prima facie evidence thereof.
Section 11. CONTROL SHARE ACQUISITION ACT. Notwithstanding any other
provision of the charter of the Corporation or these Bylaws, Title 3, Subtitle 7
of the MGCL (or any successor statute) shall not apply to any acquisition by
Cole Capital Advisors, Inc. or any affiliate of Cole Capital Advisors, Inc., of
shares of stock of the Corporation. This section may be repealed, in whole or in
part by a majority of the Board of Directors, at any time, whether before or
after an acquisition of "control shares," as such term is defined in the MGCL,
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and, upon such repeal, may, to the extent provided by any successor bylaw, apply
to any prior or subsequent control share acquisition.
Section 12. NOMINATIONS AND STOCKHOLDER BUSINESS.
(a) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of
Directors and the proposal of business to be considered by the stockholders may
be made at an annual meeting of stockholders (A) pursuant to the Corporation's
notice of such meeting, (B) by or at the direction of the Board of Directors; or
(C) by any stockholder of the Corporation who (i) was a stockholder of record
both at the time of giving of notice provided for in this Section 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 the notice procedures set forth in this
Section 12(a).
(2) For nominations or other business to be properly brought
at an annual meeting by a stockholder pursuant to this paragraph (a)(2) or
paragraph (a)(1) of this Section 12, the stockholder must give timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive office of the Corporation not less than 90 days nor more than 120 days
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 date of mailing of the notice for the annual meeting is advanced or
delayed by more than 30 days from the first anniversary of the date of mailing
of the notice for the preceding year's annual meeting, notice by the stockholder
to be timely must be so delivered not earlier than the 120th day prior to the
date of mailing of the notice for such annual meeting and not later than the
close of business on the later of the 90th day prior to the date of mailing of
the notice for such annual meeting or the 10th day following the day on which
disclosure of the date of mailing of the notice for 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 person whom the stockholder proposes to nominate for election or reelection
as a director (i) the name, age, business address, and residence address of such
person; (ii) the class and number of shares of stock of the Corporation that are
beneficially owned by such person; and (iii) all other information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest (even if an election contest is not
involved), or is otherwise required pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, (i) a brief description of the
business desired to be brought before the meeting, (ii) the reasons for
conducting such business at the meeting, and (iii) any material interest in such
business that such stockholder and beneficial owner, if any, on whose behalf the
proposal is made, may have, and (C) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is
made, (i) the name and address of such stockholder and beneficial owner, if any,
as such appears on the Corporation's books, and (ii) the number of shares of
each class of stock of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner.
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(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Section 12 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased and
there is no public announcement naming all of the nominees for directors or
specifying the size of the increased Board of Directors made by the Corporation
at least 100 days prior to the first anniversary of the date of mailing of the
notice for the preceding year's annual meeting, a stockholder's notice required
by this Section 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 offices of the Corporation
no later than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
(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 Corporation's notice of said meeting. Nominations of
persons 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
Corporation's notice of said meeting, (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
Corporation who (A) is a stockholder of record both at the time of giving of
notice provided for in this Section 12(b) 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 12(b). In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a person
or persons (as the case may be) for election to such position as specified in
the Corporation's notice of meeting, if the stockholder's notice containing the
information required by paragraph (a)(2) of this Section 12 shall be delivered
to the Secretary at the principal executive offices of the Corporation not
earlier than the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th 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) Only such persons who are nominated in accordance with the
procedures set forth in this Section 12 shall be eligible to serve 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 the procedures set forth
in this Section 12. The presiding officer of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Section 12, and, if any proposed nomination or business is not in
compliance with this Section 12, to declare that such defective nomination or
proposal, if any, be disregarded.
(2) For purposes of this Section 12, (i) the "date of mailing
of the notice"
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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 or
comparable news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of
the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
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 12. Nothing in this
Section 12 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
Section 13. VOTING BY BALLOT. Voting on any question or in any
election may be viva voce unless the presiding officer shall order, or any
stockholder shall demand, that voting be by ballot.
ARTICLE III
DIRECTORS
Section 1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of its Board of Directors.
Section 2. NUMBER, TENURE AND QUALIFICATIONS. At any regular meeting
or at any special meeting called for that purpose, a majority of the entire
Board of Directors may establish, increase or decrease the number of directors,
provided that except as provided in the charter of the Corporation, the number
thereof shall never be less than the minimum number required by the MGCL or the
charter of the Corporation, whichever is greater, nor more than 15, and further
provided that the tenure of office of a director shall not be affected by any
decrease in the number of directors.
Section 3. ANNUAL AND REGULAR MEETINGS. An annual meeting of the
Board of Directors shall be held immediately after and 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, either within or without the State of Maryland, without
other notice than such resolution.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by or at the request of the chairman of the board, the
chief executive officer, 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
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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 5. 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 Corporation 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 Corporation 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 6. QUORUM. A majority of the directors shall constitute a
quorum for transaction of business at any meeting of the Board of Directors,
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 of the Corporation 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.
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 7. VOTING.
(a) The action of the majority of the directors present at a meeting
at which a quorum is present shall be the action of the Board of Directors,
unless the concurrence of a greater proportion is required for such action by
applicable law, the charter or these Bylaws. 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 applicable
law, the charter or these Bylaws.
(b) Any action pertaining to any transaction in which the Corporation
is purchasing, selling, leasing or mortgaging any real estate asset, making a
joint venture
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investment or engaging in any other transaction in which an advisor, director or
officer of the Corporation, any affiliated lessee or affiliated contract manager
of any property of the Corporation, 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 Corporation, shall be approved by the
affirmative vote of a majority of the Independent Directors, even if the
Independent Directors constitute less than a quorum.
Section 8. 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 chief executive officer or
in the absence of the chief executive officer, 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 Corporation, or in the absence of the secretary
and all assistant secretaries, a person appointed by the Chairman, shall act as
secretary of the meeting.
Section 9. TELEPHONE MEETINGS. 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 10. CONSENT BY DIRECTORS WITHOUT A MEETING. Any action
required or permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting, if 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.
Section 11. REMOVAL; VACANCIES.
(a) At any meeting of stockholders called expressly, but not
necessarily solely, for that purpose, any director or the entire Board of
Directors may be removed, with our without cause, by a vote of the holders of a
majority of the shares then entitled to vote on the election of directors.
(b) If for any reason any or all the directors cease to be directors,
such event shall not terminate the Corporation 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. Notwithstanding the
foregoing, a majority of the Independent Directors shall nominate replacements
for vacancies among the Independent Directors' positions. Any director elected
to fill a vacancy shall serve for the remainder of the full term of the class in
which the vacancy occurred and until a successor is elected and qualifies.
Section 12. COMPENSATION. Directors, by resolution of the Board of
Directors, may receive compensation per year or per month, fixed sums per
meeting and/or per visit to real property or other facilities owned or leased by
the Corporation and for any service or activity they performed or engaged in as
directors. Directors may be reimbursed for expenses of
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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 Corporation in any other
capacity and receiving compensation therefor.
Section 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 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 or her duties.
Section 15. RELIANCE. Each director, officer, employee and agent of
the Corporation shall, in the performance of his or her duties with respect to
the Corporation, 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 Corporation, upon an opinion of counsel or upon reports made to
the Corporation 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 Corporation, regardless of whether such counsel or
expert may also be a director.
Section 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 Corporation. Any director or officer, employee or agent of
the Corporation, in his or her 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 Corporation, subject to any
restrictions set forth in the charter of the Corporation.
Section 17. PRESUMPTION OF ASSENT. A director of the Corporation who
is present at any meeting of the Board of Directors at which action on any
matter is taken shall be presumed to have assented to the action unless his or
her dissent shall be entered in the minutes of the meeting or unless he or she
shall file a written dissent to such action with the person acting as secretary
of the meeting before the adjournment thereof, or shall forward any dissent by
certified or registered mail to the Secretary of the Corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
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ARTICLE IV
COMMITTEES
Section 1. NUMBER, TENURE AND QUALIFICATIONS. The Board of Directors
may, by a resolution adopted by a majority of the entire Board of Directors,
designate an Executive Committee, an Audit Committee, a Compensation Committee,
a Leasing Committee, and any other committee it deems appropriate and in the
best interest of the Corporation. Each committee shall be composed of one or
more directors, to serve at the pleasure of the Board of Directors. The members
of the Audit Committee and the Compensation Committee shall at all times consist
solely of Independent Directors, and the majority of the members of all
committees shall be Independent Directors.
Section 2. POWERS. Subject to the limitations contained herein and
the limitations contained in the resolution establishing such committee, to the
extent permitted by law, the Executive Committee shall have and may exercise all
of the authority of the Board of Directors in the management of the business and
affairs of the corporation. Each other committee, to the extent expressly
provided for in the resolution establishing such committee and except as
prohibited by law, shall have and may exercise all of the authority of the Board
of Directors in such other matters and affairs concerning the Corporation.
Notwithstanding the foregoing, no committee shall have the authority of the
Board of Directors to fix the compensation of any committee member.
Section 3. MEETINGS. Notice of committee meetings shall be given in
the same manner as notice for special or regular meetings of the Board of
Directors, as applicable. 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 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. 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 5. 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 is filed with the minutes of proceedings of such committee.
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Section 6. VACANCIES. Subject to the provisions hereof, 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.
ARTICLE V
OFFICERS
Section 1. GENERAL PROVISIONS. The officers of the Corporation may
include 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, one or more
vice presidents, a chief operating officer, a chief financial officer, one or
more assistant secretaries and one or more assistant treasurers. In addition,
the Board of Directors may from time to time elect such other officers with such
powers and duties as they shall deem necessary or desirable. The officers of the
Corporation shall be elected annually by the Board of Directors, except that the
chief executive officer or president may from time to time appoint one or more
vice presidents, assistant secretaries and assistant treasurers or other
officers. If an election officers shall not be held at such meeting, such
election shall be held as soon thereafter as may be convenient. Each officer
shall hold office until his or her successor is elected and qualifies or until
his or her death, or his or her resignation or removal in the manner hereinafter
provided. In its discretion, the Board of Directors may leave unfilled any
office except that of president, treasurer and secretary. Any two or more
offices except president and vice president may be held by the same person.
Election of an officer or agent shall not of itself create contract rights
between the Corporation and such officer or agent.
Section 2. REMOVAL AND RESIGNATION. Any officer or agent of the
Corporation may be removed, with or without cause, by the Board of Directors if
in its judgment the best interests of the Corporation 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 Corporation may resign at any time by
giving written notice of his or her 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 Corporation.
Section 3. VACANCIES. A vacancy in any office may be filled by the
Board of Directors for the balance of the term.
Section 4. CHIEF EXECUTIVE OFFICER. Unless otherwise designated by
the Board of Directors, the President shall also be the Chief Executive Officer.
The Chief Executive Officer shall be the highest ranking executive officer of
the Corporation and, subject to the supervision of the Board of Directors, shall
have all authority and power with respect to, and shall be responsible for, the
general management of the business, financial affairs, and day-to-day operations
of the Corporation, including, but not limited to: (i) the supervision and
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management of all other executive officers; (ii) the development of the
Corporation's long-range strategic plan and the annual operating plan; (iii) the
engagement, retention and termination of employees and independent contractors
of the Corporation, the setting of the compensation and other material terms of
employment or engagement of employees and independent contractors, and the
establishment of work rules for employees; (iv) the representation of the
Corporation at any business or financial meeting or presentation with
stockholders, lenders, affiliates, strategic or joint venture partners,
financial institutions, underwriters, analysts and any other entity with which
the Corporation does business; and (v) the initiation, development, and
implementation of new business, markets and technologies. The Chief Executive
Officer shall see that all orders and resolutions of the Board of Directors are
carried into effect and shall perform such other duties and have such other
authority and powers as the Board may from time to time prescribe. At the
request of the Chief Executive Officer, or in case of his absence or inability
to act, unless otherwise directed by the Board of Directors, the President shall
perform the duties of the Chief Executive Officer and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the Chief
Executive Officer. Additionally, in the event that the Corporation has both a
President and a Chief Executive Officer, any powers or duties conferred upon the
President in these Bylaws shall concurrently be conferred upon the Chief
Executive Officer, and in such event the powers granted to the President shall
be subject to the exercise of such powers or duties by the Chief Executive
Officer.
Section 5. 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 6. 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.
Section 7. 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 or her by the Board of Directors. Unless otherwise designated by
the Board of Directors, the Chief Executive Officer shall also be the Chairman
of the Board.
Section 8. 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 Corporation. 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 or she 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 Corporation 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. Unless otherwise designated by the Board of Directors, the Chief Executive
Officer shall also be the President.
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Section 9. 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 such vice president by the president or by the Board of Directors.
The Board of Directors may designate one or more vice presidents as executive
vice president, senior vice president, or as vice president for particular areas
of responsibility.
Section 10. 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 Corporation; (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 Corporation; 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.
Section 11. TREASURER. The treasurer shall have the custody of the
funds and securities of the Corporation and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation 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 Corporation.
The treasurer shall disburse the funds of the Corporation 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 or her transactions as treasurer and of the financial
condition of the Corporation.
If required by the Board of Directors, the treasurer shall give the
Corporation 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 or her office and for the restoration to the Corporation, in case
of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, moneys and other property of whatever kind in his or
her possession or under his or her control belonging to the Corporation.
Section 12. 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.
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Section 13. 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 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
Corporation 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 Corporation 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 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 Corporation shall be signed by such officer or agent of the
Corporation in such manner as shall from time to time be determined by the Board
of Directors.
Section 3. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositories as the Board of Directors
may designate.
ARTICLE VII
STOCK
Section 1. CERTIFICATES. Except as otherwise provided in these
Bylaws, this Section shall not be interpreted to limit the authority of the
Board of Directors to issue some or all of the shares of any or all of the
Corporation's classes or series without certificates. Each stockholder, upon
written request to the secretary of the Corporation, shall be entitled to a
certificate or certificates which shall represent and certify the number of
shares of each class of stock held by him in the Corporation. Each certificate
shall be signed by the chairman of the board, the chief executive officer, the
president 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 Corporation. The signatures may be either manual or
facsimile. Certificates shall be consecutively numbered; and if the Corporation
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 restricted as to their transferability or voting
powers, which are preferred or limited as to their dividends or as to their
allocable portion of the assets upon liquidation or which are redeemable at the
option of the Corporation, shall have a
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statement of such restriction, limitation, preference or redemption provision,
or a summary thereof, plainly stated on the certificate. If the Corporation 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 Corporation 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 Corporation 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 Corporation as to
transferability, the certificate shall contain a full statement of the
restriction or state that the Corporation will furnish information about the
restrictions to the stockholder on request and without charge.
Section 2. TRANSFERS. Upon surrender to the Corporation or the
transfer agent of the Corporation of a stock certificate duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, the Corporation 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 Corporation and all
of the terms and conditions contained therein.
Section 3. REPLACEMENT CERTIFICATE. 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 Corporation 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 Corporation to
indemnify it against any loss or claim which may arise as a result of the
issuance of a new certificate, and any other reasonable requests imposed by the
Board of Directors. When a certificate has been lost, destroyed or stolen and
the stockholder of record fails to notify the Corporation within a reasonable
time after he or she has notice of it, if the Corporation registers a transfer
of the shares represented by the certificate before receiving such notification,
the stockholder of record is precluded from making any claim against the
Corporation for the transfer or for a new certificate.
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Section 4. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. The
Board of Directors may 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 date, in any
case, shall not be prior to the close of business on the day the record date is
fixed and shall be not more than 90 days and, in the case of a meeting of
stockholders, not less than ten days, before the date on which the meeting or
particular action requiring such determination of stockholders of record is to
be held or taken.
In lieu of fixing a record date, the Board of Directors may provide
that the stock transfer books shall be closed for a stated period but not longer
than 20 days. If the stock transfer books are closed for the purpose of
determining stockholders entitled to notice of or to vote at a meeting of
stockholders, such books shall be closed for at least ten days before the date
of such meeting.
If no record date is fixed and the stock transfer books are not
closed for the determination of stockholders, (a) the record date for the
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business on the day on which the notice of
meeting is mailed or the 30th day before the meeting, whichever is the closer
date to the meeting; and (b) the record date for the determination of
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 directors, declaring the dividend or allotment of rights, is adopted,
provided that the payment or allotment may not be made more than 60 days after
the date on which such resolution is adopted.
When a determination of stockholders entitled to vote at any meeting
of stockholders has been made as provided in this section, 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 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 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 Corporation. Any security
issued in a unit shall have the same characteristics as any identical securities
issued by the Corporation, except that the Board of Directors may provide that
for a specified period securities of the Corporation issued in such unit may be
transferred on the books of the Corporation only in such unit.
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ARTICLE VIII
ACCOUNTING YEAR
The Board of Directors shall have the power, from time to time, to
fix the fiscal year of the Corporation by a duly adopted resolution.
ARTICLE IX
DISTRIBUTIONS
Section 1. AUTHORIZATION. Dividends and other distributions upon the
stock of the Corporation may be authorized by the Board of Directors, subject to
the provisions of law and the charter of the Corporation. Dividends and other
distributions may be paid in cash, property or stock of the Corporation, subject
to the provisions of law and the charter.
Section 2. CONTINGENCIES. Before payment of any dividends or other
distributions, there may be set aside out of any assets of the Corporation
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 Corporation or for such other
purpose as the Board of Directors shall determine to be in the best interest of
the Corporation, and the Board of Directors may modify or abolish any such
reserve.
ARTICLE X
INVESTMENT POLICY
Subject to the provisions of the charter of the Corporation, the
Board of Directors may from time to time adopt, amend, revise or terminate any
policy or policies with respect to investments by the Corporation as it shall
deem appropriate in its sole discretion.
ARTICLE XI
SEAL
Section 1. SEAL. The Board of Directors may authorize the adoption of
a seal by the Corporation. The seal shall contain the name of the Corporation
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.
Section 2. AFFIXING SEAL. Whenever the Corporation 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 the word
"(SEAL)" adjacent to the signature of the person authorized to execute the
document on behalf of the Corporation.
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ARTICLE XII
INDEMNIFICATION AND ADVANCE OF EXPENSES
To the maximum extent permitted by Maryland law in effect from time
to time, the Corporation shall indemnify and, without requiring a preliminary
determination of the ultimate entitlement to indemnification, shall pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
(a) any individual who is a present or former director or officer of the
Corporation and who is made or threatened to be made a party to the proceeding
by reason of his or her service in that capacity or (b) any individual who,
while a director or officer of the Corporation and at the request of the
Corporation, serves or has served as a director, officer, partner or trustee of
such corporation, real estate investment trust, partnership, joint venture,
trust, employee benefit plan or other enterprise and who is made or threatened
to be made a party to the proceeding by reason of his or her service in that
capacity. The Corporation may, with the approval of its Board of Directors or
any duly authorized committee thereof, provide such indemnification and advance
for expenses to a person who served a predecessor of the Corporation in any of
the capacities described in (a) or (b) above and to any employee or agent of the
Corporation or a predecessor of the Corporation. The indemnification and payment
of expenses provided in these Bylaws shall not be deemed exclusive of or limit
in any way other rights to which any person seeking indemnification or payment
of expenses may be or may become entitled under any bylaw, regulation,
insurance, agreement or otherwise.
Neither the amendment nor repeal of this Article, nor the adoption or
amendment of any other provision of the Bylaws or charter of the Corporation
inconsistent with this Article, shall apply to or affect in any respect the
applicability of the preceding paragraph with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.
ARTICLE XIII
WAIVER OF NOTICE
Whenever any notice is required to be given pursuant to the charter
of the Corporation 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 XIV
AMENDMENT OF BYLAWS
These bylaws may be amended or repealed and new bylaws may be adopted
by the Board of Directors or the stockholders. No bylaw adopted, amended or
repealed by the stockholders shall be readopted, amended or repealed by the
Board of Directors.
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