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RESTATED BY-LAWS
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OF
SIZELER PROPERTY INVESTORS, INC.
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AS AMENDED THROUGH FEBRUARY 26, 1996
ARTICLE I - STOCKHOLDERS
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SECTION 1. ANNUAL MEETING
An annual meeting of the stockholders, for the election of
Directors to succeed those whose terms expire and for the transaction of such
other business as may properly come before the meeting, shall be held at such
place, on such date, and at such time as the Board of Directors shall each year
fix.
SECTION 2. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or
purposes prescribed in the notice of the meeting, may be called by the Board of
Directors and shall be held at such place, on such date, and at such time as
the Board shall fix. The call of a special meeting shall state the nature of
the business to be transacted and that no other business shall be considered at
the meeting.
SECTION 3. NOTICE OF MEETINGS
Written notice of the place, date and time of all meetings of
the stockholders shall be given to each stockholder, whether or not such
stockholder is entitled to vote at such meeting, not less than ten (10) nor
more than sixty (60) days before the date on which the meeting is to be held,
except as otherwise provided herein or required by law.
When a meeting is adjourned to another place, date or time,
written notice need not be given of the adjourned meeting if the place, date
and time thereof are announced at the meeting at which the adjournment is
taken; provided, however, that if the date for any adjourned meeting is more
than thirty (30) days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting, written
notice of the place, date and time of the adjourned meeting shall be given in
conformity herewith. At any adjourned meeting, any business may be transacted
which might have been transacted at the original meeting.
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SECTION 4. QUORUM
At any meeting of the stockholders, the holders of a majority
of all of the shares of the stock entitled to vote at the meeting, present in
person or by proxy, shall constitute a quorum for all purposes, unless or
except to the extent that the presence of a larger number may be required by
law.
If a quorum shall fail to attend any meeting, the chair of the
meeting or the holders of a majority of the shares of the stock entitled to
vote who are present, in person or by proxy, may adjourn the meeting to another
place, date, or time.
SECTION 5. ORGANIZATION
Such person as the Board of Directors may have designated or
in the absence of such a person the highest ranking officer of the Corporation
who is present shall call to order any meeting of the stockholders and act as
chairman of the meeting. In the absence of the Secretary of the Corporation,
the secretary of the meeting shall be such person as the chairman appoints.
The chairman of the meeting shall have the power, in his sole discretion, to
adjourn, recess, delay or otherwise postpone the date or time of any annual or
special meeting of stockholders.
SECTION 6. CONDUCT OF BUSINESS
The chairman of any meeting of stockholders shall determine
the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
in order.
SECTION 7. NOMINATION OF DIRECTORS
Only persons who are nominated in accordance with the
procedures set forth in this Section 7 shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders by or at the direction
of the Board of Directors or by any stockholder of the Corporation entitled to
vote for the election of Directors at the meeting who complies with the notice
procedures set forth in this Section 7. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be made pursuant
to timely notice in writing to the Secretary of the Corporation. To be timely,
a stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 60 days nor more
than 90 days prior to the meeting; provided, however, that in the event that
less than 70 days notice or prior public disclosure of the date of the meeting
is given or made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the 10th day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made, whichever is earlier. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder
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proposes to nominate for election or reelection as a Director, (i) the name,
age, business address and residence address of such person, (ii) the principal
occupation or employment of such person, (iii) the class and number of shares
of the Corporation which are beneficially owned by such person and (iv) any
other information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (including, without limitation, such person's written consent
to being named in the proxy statement as a nominee and to serving as a Director
if elected); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the Corporation's books, of such stockholder and
(ii) the class and number of shares of the Corporation which are beneficially
owned by such stockholder. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 7. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the meeting that a nomination was not made in accordance with the procedures
prescribed by the By-Laws, and, if he should so determine, he shall so declare
to the meeting and the defective nomination shall be disregarded.
SECTION 8. PROXIES AND VOTING
At any meeting of the stockholders, every stockholder entitled
to vote may vote in person or by proxy authorized by an instrument in writing
filed in accordance with the procedure established for the meeting.
Each stockholder shall have one vote for every share of stock
entitled to vote which is registered in his name on the record date for the
meeting.
All voting, except on the election of directors and where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or his proxy, a stock vote
shall be taken. Every stock vote shall be taken by ballots, each of which
shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting.
Every vote taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
SECTION 9. STOCKHOLDER LIST
A complete list of stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order for each class of stock
and showing the address of each stockholder and the number of shares registered
in his name, shall be open to the
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examination of any such stockholder, for any purpose germane to the meeting,
during ordinary business hours for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting
during the whole time thereof and shall be open to the examination of any such
stockholder who is present. The stock ledger from which this list is prepared
shall presumptively determine the identity of the stockholders entitled to vote
at the meeting and the number of shares held by each of them.
SECTION 10. BUSINESS OF MEETING
At an annual meeting of the stockholders, only such business
shall be conducted as shall have been properly brought before the meeting. To
be properly brought before an annual meeting, an item of business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise brought before the
meeting by or at the direction of the Board of Directors, or (c) otherwise
brought before the meeting by a stockholder (i) involving an item of business
which is appropriate for stockholder action and does not pertain to ordinary
business operations of the Corporation or to any other item which, under
applicable corporate law, is a matter for primary decision by the Board of
Directors; and (ii) as to which item, the stockholder shall have given timely
notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 20 days nor more than 40 days prior to the meeting. A request to the
Corporation by a stockholder to include a proposal in the Corporation's proxy
statement for the annual meeting will not constitute the stockholder's notice
required by this Section if the Corporation has not granted the request for
inclusion in the proxy statement and the stockholder has been so informed in
writing by the Corporation prior to the date of the Corporation's proxy
statement to stockholders with respect to the annual meeting.
A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before the annual meeting (a) a
brief description of the item or items of business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation's books,
of the stockholder proposing such business, (c) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business.
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Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at any annual meeting except in accordance with the
procedures set forth in this Section 10. The Chairman of the annual meeting
shall, if the facts warrant, determine and declare to the meeting that an item
of business was not properly brought before the meeting in accordance with the
provisions of this Section 10 or for any other appropriate reason; and if he
should so determine, the Chairman shall so declare to the meeting and any such
item of business shall not be transacted.
At any special meeting of stockholders, no business shall be
transacted except as stated in the notice or notices of meeting.
ARTICLE II - BOARD OF DIRECTORS
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SECTION 1. NUMBER AND TERM OF OFFICE
The number of Directors of the Corporation shall be determined
by the Board of Directors as provided in the Certificate of Incorporation.
SECTION 2. VACANCIES
Vacancies on the Board of Directors shall be filled as
provided in the Certificate of Incorporation.
SECTION 3. REGULAR MEETINGS
Regular meetings of the Board of Directors shall be held at
such place or places, on such date or dates, and at such time or times as shall
have been established by the Board of Directors and publicized among all
Directors. A notice of each regular meeting shall not be required.
SECTION 4. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by
one-third of the Directors then in office or by the Chairman of the Board and
shall be held at such place, on such date and at such time as they or he shall
fix. Notice of the place, date and time of each such special meeting shall be
given to each director by whom it is not waived by mailing written notice not
less than four (4) days before the meeting or by telegraphing the same not less
than twenty-four (24) hours before the meeting. Unless otherwise indicated in
the notice thereof, any and all business may be transacted at a special
meeting.
SECTION 5. QUORUM
At any meeting of the Board of Directors, a majority of the
total number of the whole Board shall constitute a quorum for all purposes. If
a quorum shall fail to attend any meeting, a majority of those present may
adjourn the meeting to another place, date or time, without further notice or
waiver thereof.
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SECTION 6. PARTICIPATION IN MEETINGS BY CONFERENCE TELEPHONE
Members of the Board of Directors, or of any committee
thereof, may participate in a meeting of such Board or committee by means of
conference telephone or similar communications equipment that enables all
persons participating in the meeting to hear each other. Such participation
shall constitute presence in person at such meeting.
SECTION 7. CONDUCT OF BUSINESS; UNANIMOUS WRITTEN CONSENT
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the Board may from time to time
determine, and all matters shall be determined by the vote of a majority of the
directors present, except as otherwise provided herein or required by law.
Action may be taken by the Board of Directors without a
meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors.
SECTION 8. POWERS
The Board of Directors may, except as otherwise required by
law, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, including, without limiting the
generality of the foregoing, the unqualified power:
(1) To issue and sell shares of the Corporation's
authorized stock;
(2) To declare and pay dividends from time to time in
accordance with law;
(3) To purchase or otherwise acquire any property, rights
or privileges on such terms as it shall determine;
(4) To authorize the creation, making and issuance, in
such form as it may determine, of written obligations of every kind, negotiable
or non-negotiable, secured or unsecured, and to do all things necessary in
connection therewith;
(5) To remove any officer of the Corporation with or
without cause, and from time to time to devolve the powers and duties of any
officer upon any other person for the time being;
(6) To confer upon any officer of the Corporation the
power to appoint, remove and suspend subordinate officers and agents;
(7) To adopt, amend or terminate from time to time such
stock option, stock purchase, bonus or other compensation plans for directors,
officers, employees and agents of the Corporation and its subsidiaries as it
may determine;
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(8) To adopt, amend or terminate from time to time such
insurance, retirement and other benefit plans for directors, officers,
employees and agents of the Corporation and its subsidiaries as it may
determine; and
(9) To adopt, amend or terminate from time to time
regulations not inconsistent with these By-Laws for the management of the
Corporation's business and affairs.
SECTION 9. COMPENSATION OF DIRECTORS
Directors, as such, may receive, pursuant to resolution of the
Board of Directors, fixed fees and other compensation for their services as
directors, including, without limitation, their services as members of
committees of the Board of Directors.
ARTICLE III - COMMITTEES
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SECTION 1. COMMITTEES OF THE BOARD OF DIRECTORS
The Board of Directors, by a vote of a majority of the whole
Board, may from time to time designate committees of the Board, with such
lawfully delegable powers and duties as it thereby confers, to serve at the
pleasure of the Board and shall, for those committees and any others provided
for herein, elect a Director or Directors to serve as the member or members,
and designate, if it desires, other Directors as alternative members who may
replace any absent or disqualified member at any meeting of the committee. In
the absence or disqualification of any member of any committee and any
alternate member in his place, the member or members of the committee present
at the meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified
member.
SECTION 2. CONDUCT OF BUSINESS
Each committee may determine the procedural rules for meeting
and conducting its business and shall act in accordance therewith, except as
otherwise provided herein or required by law. Adequate provisions shall be
made for notice to members of all meetings; a majority of the members shall
constitute a quorum, and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee.
ARTICLE IV - OFFICERS
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SECTION 1. GENERALLY
The officers of the Corporation shall consist of a chairman of
the board, a president, one or more vice-presidents, a secretary, a treasurer
and such other subordinate officers as may
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from time to time be appointed by the Board of Directors. The Board of
Directors, in its discretion, may establish for such period of time as it deems
advisable the offices of vice chairman and of principal operating officer,
respectively. Officers shall be elected by the Board of Directors, which shall
consider that subject at its first meeting after every annual meeting of
stockholders and at other meetings as may be appropriate to fill a vacancy in
an office. Each officer shall hold his office until his successor is elected
and qualified or until his earlier resignation or removal. Any number of
offices may be held by the same person, including without limitation the
offices of Chairman of the Board and President and the offices of Vice Chairman
and Principal Operating Officer, except that holders of the offices of Chairman
of the Board, Principal Operating Officer or President shall not simultaneously
hold the office of Secretary.
SECTION 2. CHAIRMAN OF THE BOARD
The Chairman of the Board shall be the Chief Executive Officer
of the Corporation. Subject to the provisions of these By-Laws and to the
direction of the Board of Directors, he shall have the responsibility for the
general management and control of the affairs and business of the Corporation
and shall perform all duties and have all powers which are commonly incident to
the office of chief executive or which are delegated to him by the Board of
Directors.
SECTION 3. VICE CHAIRMAN
The Vice Chairman, if any, shall exercise such duties as are
delegated to him by the Chairman of the Board, and he shall report primarily to
the Chairman of the Board. In the absence or disability of the Chairman of the
Board, the Vice Chairman shall perform the duties of the Chairman of the Board,
subject to the right of the Board of Directors to designate another officer to
perform some or all of these duties.
SECTION 4. PRINCIPAL OPERATING OFFICER
The Principal Operating Officer, if any, shall have
supervision of the assets of the Corporation and shall perform so much of the
duties normally performed by a chief operating officer as shall be assigned to
him by the Board of Directors or, to the extent not inconsistent with any
assignment by the Board of Directors, by the Chairman of the Board. The
Principal Operating Officer shall report primarily to the Chairman of the
Board.
SECTION 5. PRESIDENT
The President shall be the Chief Operating Officer of the
Company and, except as set forth in the following sentence, shall perform all
duties incident to the Office of Chief Operating Officer and such other duties
as from time to time may be assigned to him by the Board of Directors. If
there shall be a Principal Operating Officer, the President shall perform such
duties as are
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assigned to him by the Chairman of the Board or, to the extent not inconsistent
with any assignment by the Chairman of the Board, by the Principal Operating
Officer. The President shall report primarily to the Chairman of the Board,
but if there shall be a Principal Operating Officer, the President shall report
primarily to the Principal Operating Officer.
SECTION 6. VICE-PRESIDENTS
Each vice-president shall perform such duties as the Board of
Directors shall prescribe. In the absence or disability of the President, the
vice-president who is designated by the Board of Directors shall perform the
duties and exercise the powers of the President; and in the absence or
disability of the Principal Operating Officer, the person who is designated by
the Board of Directors shall perform the duties and exercise the powers of the
Principal Operating Officer.
SECTION 7. TREASURER
The Treasurer shall be the Chief Financial Officer of the
Corporation and shall have the custody of all monies and securities of the
Corporation and shall keep regular books of account. He shall make such
disbursements of the funds of the Corporation as are proper and shall render to
the Board of Directors from time to time an account of all such transactions
and of the financial condition of the Corporation.
SECTION 8. SECRETARY
The Secretary shall issue all authorized notices for, and
shall keep minutes of, all meetings of the stockholders and the Board of
Directors. He shall have charge of the corporate books.
SECTION 9. DELEGATION OF AUTHORITY
The Board of Directors may from time to time delegate the
powers or duties of any officer to any other officer or agents, notwithstanding
any provision hereof.
SECTION 10. REMOVAL
Any officer of the Corporation may be removed at any time,
with or without cause, by the Board of Directors.
SECTION 11. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS AND
ENTITIES
Unless otherwise directed by the Board of Directors, the
Chairman of the Board, or any other officer of the Corporation authorized by
the Chairman of the Board, shall have power to vote and otherwise act on behalf
of the Corporation, in person or by proxy, at any meeting of stockholders of or
with respect to any action of stockholders of any other corporation or entity
in which this Corporation may hold securities and otherwise to exercise any
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and all rights and powers which this Corporation may possess by reason of its
ownership of securities in such other corporation or entity.
ARTICLE V - INDEMNIFICATION
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SECTION 1. RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative ("Proceeding"), by reason of
the fact that he, or a person of whom he is the legal representative, is or was
a director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, trust or other enterprise, including service
with respect to an employee benefit plan, whether the basis of such proceeding
is alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the Delaware General Corporation Law, as the same
exists or hereafter may be amended (but, in the case of any amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than said Law permitted the Corporation to provide prior
to such amendment) against all expenses, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith. Such right shall include the right to be paid
by the Corporation expenses incurred in defending any such Proceeding in
advance of its final disposition; provided, however, that the payment of such
expenses incurred by a director or officer in his capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of such
Proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this section or otherwise.
SECTION 2. RIGHT OF CLAIMANT TO BRING SUIT
If a claim under Section 1 of this Article V is not paid in
full by the Corporation within 90 days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending a
Proceeding in advance of its final
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disposition where the required undertaking has been tendered to the
Corporation) that the claimant has not met the standard of conduct which makes
it permissible under the Delaware General Corporation Law for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he has met the applicable standard of conduct set forth in the Delaware
General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or its stock
holders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
SECTION 3. NON-EXCLUSIVITY OF RIGHTS
The rights conferred on a person by Sections 1 and 2 of this
Article V shall not be exclusive of any other right which such person may have
or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 4. INSURANCE
The Corporation may maintain insurance, at its expense, to
protect itself and any such director, officer, employee or agent of the
Corporation or another corporation, partnership, trust or other enterprise
against any such expense, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability
or loss under the Delaware General Corporation Law.
SECTION 5. COOPERATION BY INDEMNITEE
Subject to, and not in nullification of, any right of
indemnification conferred by Section 145(c) of the Delaware General Corporation
Law, as amended, or any successor provision in the Delaware statutes, the right
of indemnification granted by this Article V to any person ("indemnitee") is
governed by the following provisions: The Corporation is entitled to the
cooperation and assistance of the indemnitee in obtaining or directing payments
by an insurer or insurers (collectively, "Insurer") issuing a directors' and
officers' liability insurance policy (i) from which the Company is seeking
total or partial recovery for indemnification payments which the Corporation
has made to or on behalf of the indemnitee or (ii) from which the indemnitee or
others on behalf of the indemnitee are receiving indemnification payments.
Without limiting the generality of the preceding sentence, the ways in which
the indemnitee shall assist the Corporation shall include the following:
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After all indemnifiable losses of the indemnitee with respect
to any particular Proceeding against the indemnitee shall have been
paid, the indemnitee, at the request of the Corporation, shall
execute and deliver to the Corporation a written confirmation of
that fact.
At the Corporation's request, the indemnitee shall execute.
Acknowledge before a notary public, and deliver to the Corporation a
Power of Attorney specifically authorizing each of certain
designated officers of the Corporation as attorneys-in-fact for
indemnitee to execute, acknowledge and deliver indemnitee's written
release to the Insurer with respect to the losses arising from a
particular Proceeding for which indemnitee has been fully
indemnified; and, if requested by the Corporation, indemnitee shall
execute, acknowledge before a notary public, and deliver to the
Insurer indemnitee's written release with respect to the losses
arising from a particular Proceeding for which indemnitee has been
fully indemnified.
If the indemnitee were to revoke the Power of Attorney or refuse to provide the
Corporation with the written confirmation to which it is entitled under the
provisions of this Section 5, the Corporation shall have no further
indemnification obligations hereunder with respect to any then-pending or
future Proceeding. In any event, indemnitee is deemed to have released the
Corporation from liability to indemnitee hereunder with respect to any specific
claim for which indemnitee has been fully indemnified hereunder, regardless
whether indemnitee executes a separate release.
ARTICLE VI - STOCK
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SECTION 1. CERTIFICATES OF STOCK
Each stockholder shall be entitled to a certificate signed by,
or in the name of the Corporation by, the Chairman of the Board, the President
or a vice president, and by the Secretary or an assistant secretary, or the
Treasurer or an assistant treasurer, certifying the number of shares owned by
him. Any of or all the signatures on the certificate may be facsimile.
SECTION 2. TRANSFERS OF STOCK
Transfers of stock shall be made only upon the transfer books
of the Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a
certificate is issued in accordance with Section 4 of Article VI of these
By-Laws, an outstanding
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certificate for the number of shares involved shall be surrendered for
cancellation before a new certificate is issued therefor.
SECTION 3. RECORD DATE
The Board of Directors may fix a record date, which shall not
be more than sixty (60) nor less than ten (10) days before the date of any
meeting of stockholders, nor more than sixty (60) days prior to the time for
the other action hereinafter described, as of which there shall be determined
the stockholders who are entitled: to notice of or to vote at any meeting of
stockholders or any adjournment thereof; to express consent to corporate action
in writing without a meeting; to receive payment of any dividend or other
distribution or allotment of any rights; or to exercise any rights with respect
to any change, conversion or exchange of stock or with respect to any other
lawful action.
SECTION 4. LOST, STOLEN OR DESTROYED CERTIFICATES
In the event of the loss, theft or destruction of any
certificate of stock, another may be issued in its place pursuant to such
regulations as the Board of Directors may establish concerning proof of such
loss, theft or destruction and concerning the giving of a satisfactory bond or
bonds of indemnity.
ARTICLE VII - NOTICES
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SECTION 1. NOTICES
Whenever notice is required to be given to any stock holder,
director, officer or agent, such requirement shall not be construed to mean
personal notice. Such notice may in every instance be effectively given by
depositing a writing in a post office or letter box, in a postpaid, sealed
wrapper, or by dispatching a prepaid telegram, addressed to such stockholder,
director, officer or agent at his or her address as the same appears on the
books of the Corporation. The time when such notice is dispatched shall be the
time of the giving of the notice, provided that where any provision of these
By-Laws or the Certificate of Incorporation prescribes a manner in which
notices must be given, there shall have been compliance with such provision.
SECTION 2. WAIVERS
A written waiver of any notice, signed by a stockholder,
director, officer or agent, whether before or after the time of the event for
which notice is to be given, shall be deemed equivalent to the notice required
to be given to such stockholder, director, officer or agent. Neither the
business nor the purpose of any meeting need be specified in such a waiver.
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ARTICLE VIII - SPECIAL REIT PROVISIONS
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SECTION 1. DEFINITIONS
The following definitions of terms apply to the provisions
contained in this Article VIII:
(1) "Advisor" means the person(s) or entity responsible
for directing or performing the day-to-day business affairs of the Company,
including a person or entity to which an Advisor subcontracts substantially all
such functions. To the extent the provisions of this Article VIII are germane,
they shall apply to an independent contractor the Company has engaged to manage
the Company's properties.
(2) "Affiliate" means (i) any person directly or
indirectly controlling, controlled by or under common control with another
person, (ii) any person owning or controlling 10% or more of the outstanding
voting securities or beneficial interests of such other person, (iii) any
officer, director or trustee of, or general partner in, of such person and (iv)
if such other person is an officer, director or trustee of, or general partner
in, another entity, then the entity for which that person acts in any such
capacity.
(3) "Competitive Real Estate Commission" means that real
estate or brokerage commission paid for the purchase or sale of a property
which is reasonable, customary and competitive in light of the size, type and
location of such property.
(4) "Unaffiliated Director(s)" means the Directors of the
Company who are not affiliated, directly or indirectly, with an Advisor of the
Company, whether by ownership of, ownership interest in, employment by, any
material business or professional relationship with, or service as an officer
or director of, such Advisor or an affiliated business entity of such Advisor.
Unaffiliated Directors shall also mean those Directors who perform no other
services for the Company, except as Director(s). An indirect relationship
shall include circumstances in which a member of the immediate family of a
Director (which shall include such person's spouse, parents, children,
siblings, mothers and fathers-in-law, sons and daughters-in-law and brothers
and sisters-in-law) has one of the foregoing relationships with an Advisor of
the Company or the Company.
(5) "REIT" is a corporation, trust or association (other
than a real estate syndication) which is engaged primarily in investing in
equity interests in real estate (including fee ownership and leasehold
interests) or in loans secured by real estate or both.
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SECTION 2. CONFLICTS OF INTEREST
(1) The Company shall not purchase property from an
Advisor, a Director or Affiliate thereof, unless a majority of directors
(including a majority of Unaffiliated Directors) not otherwise interested in
such transaction approve the transaction as being fair and reasonable to the
Company and at a price to the Company no greater than the cost of the asset to
such Advisor, Director or Affiliate thereof, or, if the price to the Company is
in excess of such cost, that substantial justification for such excess exists
and such excess is not unreasonable. In no event shall the cost of such asset
to the Company exceed its current appraised value.
(2) The Company shall not sell property to an Advisor, a
Director or Affiliates thereof, unless a majority of Directors (including a
majority of Unaffiliated Directors) not otherwise interested in such
transaction approve the transaction as being fair and reasonable to the
Company. In no event shall the price of an interest in real property to be
sold by the Company to the Advisor, a Director or any Affiliate thereof be less
than its current appraised value.
(3) The Company may not make loans to or borrow money
from an Advisor, a Director or Affiliate thereof, unless a majority of
Directors (including a majority of Unaffiliated Directors) not otherwise
interested in such transaction approve the transaction as being fair,
competitive, and commercially reasonable and no less favorable to the Company
than loans between unaffiliated lenders and borrowers under the same
circumstances.
(4) The Company shall not invest in any joint venture
with an Advisor, a Director or Affiliates thereof, unless a majority of
Directors (including a majority of Unaffiliated Directors) not otherwise
interested in such transaction approve the transaction as being fair and
reasonable to the Company and the participation of the Company is on
substantially the same terms and conditions as that of the other joint
venturers.
(5) All other transactions between the Company and an
Advisor, a Director or Affiliates thereof shall require approval by a majority
of the Directors (including a majority of Unaffiliated Directors) not otherwise
interested in such transactions as being fair and reasonable to the Company and
on terms and conditions not less favorable to the Company than those available
from unaffiliated third parties.
SECTION 3. ANNUAL REPORTS
(1) The Company shall prepare an annual report concerning
its operations for each fiscal year containing financial statements prepared in
accordance with generally accepted accounting principles which are audited and
reported on by independent certified public accountants.
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(2) Annual reports shall be mailed or delivered to each
stockholder of the Company as of a record date after the end of such fiscal
year within 120 days after the end of the fiscal year to which it relates.
SECTION 4. ADVISORY CONTRACT
It shall be the duty of the Directors to evaluate the
performance of the Advisor before entering into or renewing an Advisory
Contract. The criteria used in such evaluation shall be reflected in the
minutes of such meeting. Each contract for the services of an Advisor entered
into by the Company shall have a term of no more than one year.
SECTION 5. ADVISOR COMPENSATION
The Unaffiliated Directors shall determine from time to time
and at least annually that the compensation which the Company contracts to pay
to the Advisor is reasonable in relation to the nature and quality of services
performed. The Unaffiliated Directors shall also supervise the performance of
the Advisor and the compensation paid to it by the Company to determine that
the provisions of such contract are being carried out. Each such determination
shall be based on the factors set forth below and all other factors such
Unaffiliated Directors may deem relevant, and the findings of such Directors on
each of such factors shall be recorded in the minutes of the Directors:
(1) The size of the advisory fee in relation to the size,
composition and profitability of the portfolio of the Company;
(2) The rates charged to other REITs and to investors
other than REITs by advisors performing similar services;
(3) Additional revenues realized by the Advisor and its
Affiliates through their relationship with the Company, including loan
administration, underwriting or broker commissions, servicing, engineering,
inspection and other fees, whether paid by the Company or by others with whom
the Company does business;
(4) The quality and extent of service and advice
furnished by the Advisor; and
(5) The performance of the investment portfolio of the
Company, including income, conservation or appreciation of capital, frequency
of problem investments and competence in dealing with distress situations.
SECTION 6. REAL ESTATE BROKERAGE COMMISSIONS ON RESALE OF PROPERTY
If an Advisor, Director or Affiliate provides a substantial
amount of the services in the effort to sell any property of the Company, then
such person may receive up to
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one-half of the brokerage commission paid but in no event in excess of an
amount equal to 3% of the contracted-for sales price. In addition, the amount
paid when added to the sums paid to unaffiliated parties in such a capacity
shall not exceed the lesser of the Competitive Real Estate Commission or an
amount equal to 6% of the contracted for sales price.
SECTION 7. DISTRIBUTION REINVESTMENT PLANS
All Distribution Reinvestment Plans adopted by the Company
shall, at a minimum, provide for the following:
(1) All material information regarding the distribution
to the stockholders and the effect of reinvesting such distribution, including
the tax consequences thereof, shall be provided to the stockholders at least
annually, and
(2) Each stockholder participating in the plan shall have
a reasonable opportunity to withdraw from the plan at least annually after
receipt of the information required in subparagraph (1) above.
ARTICLE IX - MISCELLANEOUS
--------------------------
SECTION 1. FACSIMILE SIGNATURES
In addition to the provisions for the use of facsimile
signatures elsewhere specifically authorized in these By-Laws, facsimile
signatures of any officer or officers of the Corporation may be used whenever
and as authorized by the Board of Directors or a committee thereof.
SECTION 2. CORPORATE SEAL
The Board of Directors may provide a suitable seal, containing
the name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a committee
thereof, duplicates of the seal may be kept and used by the Treasurer or by the
assistant secretary or assistant treasurer.
SECTION 3. RELIANCE UPON BOOKS, REPORTS AND RECORDS
Each Director, each member of any committee designated by the
Board of Directors and each officer of the Corporation shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or other records of the Corporation, including reports made to
the Corporation by any of its officers, by an independent certified public
accountant or by an appraiser selected with reasonable care.
SECTION 4. FISCAL YEAR
The fiscal year of the Corporation shall be as fixed by the
Board of Directors.
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SECTION 5. TIME PERIODS
In applying any provision of these By-Laws which require that
an act be done or not done a specified number of days prior to an event or that
an act be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the doing of the act shall be excluded
and the day of the event shall be included.
ARTICLE X - AMENDMENTS
----------------------
SECTION 1. AMENDMENTS
These By-Laws may be amended or repealed by the Board Of
Directors or by the stockholders at any meeting, so long as any amendment is
not inconsistent with the Certificate of Incorporation.
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